2215.
PUBLIC RECORD OFFICE
༄། །།
Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
1
No. 4.
(VICTORIA.)
LAW OFFICERS to ADMIRALTY.
Law Officers' Opinion.
(After reciting sections 3 and 6 of the Colonial Naval Defence Act, 1865, 28 Vict.
cap. 14.)
Two armed vessels are being built, and are now nearly completed, for the Victorian Government in the Tyne. A captain in the Royal Navy has, with the sanction of the Admiralty, been appointed Commander-in-Chief of the Victorian Naval Forces, and he will take command of these vessels as the representative of the Victorian Government. He desires to avoid taking these vessels out to Melbourne as merchant vessels, as the provisions of the Merchant Shipping Act would work inconveniently in the case in question.
The Orders in Council contemplated by sections 3 and 6 of the Colonial Naval Defence Act, 1865, have never been obtained.
The Law Officers and Mr. Staveley Hill are requested to favour the Lords of the Admiralty with their opinion on the following questions:-
1. Has a Colony any power within its own territory, or out of it, to equip and arm vessels, and to engage officers and raise men for manuing the same, and to frame regulations for such officers and men, other than by Order in Council obtained in pursuance of the Colonial Naval Defence Act?
2. Can a Colony obtain an Order in Council under section 6 of the said Act without
first obtaining an Order in Council under section 3 of the said Act?
3. If it should be found competent to Her Majesty to issue an Order in Council under section of this Act without issuing one under section 3, would it then be competent to the Admiralty to accept these vessels and declare them British men-of-war, for the purpose only of the voyage out to Melbourne?
Opinion.
1. Without the authority of the Imperial Parliament a Colony has no such power. 2. Section 6 authorises the Crown to accept, for Imperial purposes, vessels legally existing as Colonial armed vessels. It is clear, therefore, that such vessels must first obtain their status under section 3 before section 6 can be applied to them.
3. This question is disposed of by answer 2.
Upon the questions submitted to us, in the further papers which have been laid before us, we are of opinion that the best course, under the circumstances, is for the Colonial Office to obtain, by cable from the Colony, the assurance that a commission has been granted to Captain Thomas, under section 5 of the Victorian Act of 1870; and that with this officially communicated to him, Captain Thomas may safely proceed to sea. An Order in Council should be obtained, expressing the approval of Her Majesty, as required by section 3 of the Colonial Defence Act, 1865.
We will prepare a draft Order in Council.
Royal Courts of Justice,
8th February 1884,
(Signed)
HENRY JAMES. FARRER HERSCHELL. ALEX. STAVELEY HILL.
A
15927-65. 35-12/85.