PUBLIC RECORD OFFICE
Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
all pending proceedings in the cases of the British schooners referred to, and the release of all persons connected therewith.
That repeated protests had been from time to time addressed by Her Majesty's Minister at Washington, acting on instructions from the Secretary of State, to the United States' Government in respect of the seizures in question, but that that Government had hitherto, and apparently designedly, abstained from either disavowing or entering upon a justification of the action of the "Corwin."
That the questions at issue had, it was thought, an indirect but somewhat important bearing upon the controversy now pending between the United States and this country with respect to the Canadian fisheries, and that it was therefore considered particularly desirable to obtain, without further delay, some succinct declaration from the United States' Government as to the position which they intended to take up upon them.
That your Lordship was therefore disposed, having regard to that consideration and to the unreasonable delay in dealing with the matter which had already taken place on the part of the United States, at once to advance a general claim for compensation on behalf of the owners and masters of those three vessels, should we consider that grounds of law exist upon which such a demand could clearly be supported.
That with respect to the claim to sovereignty over certain of the waters of the Behring Sea beyond the 3-mile limit, which it was gathered that the United States were now disposed to advance in reliance upon the terms of the Treaty of 1867, it appeared in the first place open to doubt, having regard to the wording of the Treaty itself, whether Russia either intended or purported to make any such grant.
But that even if, on the proper construction of that Treaty, it must be held that Russia did purport to cede those waters to the United States of America, the further question whether she had any right so to cede them would still remain.
That the possession of any such right would appear to be quite repugnant to the general doctrines of international law, while the attempts of Russia in the early part of this century to arrogate to herself such rights, and to treat the whole of the Behring Sea and Straits as mare clausum, were always most strenuously resisted, not only by this country, but also by the United States.
That it was conceived, therefore, that the grant by Treaty of any such general jurisdiction would, if actually made, be entirely ultra vires in so far as the subjects or vessels of Powers other than the contracting parties to such Treaty were concerned, and that, even assuming that a grant of such jurisdiction by Russia to the United States of America might possibly be binding on Russian subjects and vessels within the specified limits, it could under no circumstances extend to the subjects and ships of Great Britain or of any other third Power not a party to that Treaty without the express consent of such third power.
That Sir Philip Currie was to request that we would take the papers transmitted with his letter into our consideration, and that we would favour your Lordship with our opinion as to whether the above views were correct, and whether the case was one in which a demand for compensation might properly be made without further delay. That in so doing, Sir Philip Currie was also to ask us to be good enough to add any general observations which we might have to offer on the case.
We also have the honour to acknowledge the receipt of Sir Philip Currie's notes of the 13th and 15th instant, enclosing some additional papers* which your Lordship desired us to take into consideration, with the papers already before us, in connexion with the seizure by the American authorities of British Colombian vessels engaged in seal-fishing in the Behring Sea.
In obedience to your Lordship's commands we have taken all the papers into our consideration, and have the honour to
Report
That, in our opinion, for the reasons stated in Sir Philip Currie's letter, the seizure of the vessels in question was entirely unwarranted, and that a claim for compensation may properly be made and pressed without further delay.
We have, &c.,
(Signed) RICHARD E. WEBSTER.
EDWARD CLARKE.
To Sir I.. West, Nos. 193 and 194; Sir L. West, No. 28 (Telegraphic), August 12; ditto, No. 225. August 4, 1897.
17,278.
SIR,
No. 100.
(WESTERN AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
We were honoured with Mr. Wingfield's letter of the 12th instant, stating that he was directed by you to transmit to us, for our consideration, a copy of a Despatch from the Governor of Western Australia, with an application from the Colonial Attorney-General, for our opinion on the case of Egan v. Phillips, which had been tried in the Supreme Court of the Colony.
That you would be obliged if the case could be taken into consideration by us at an early date.
We have taken the matter into our consideration, and have the honour to
Royal Courts of Justice, 25th August, 1887.
Report
That upon the pleadings as they stand, and in the absence of any demurrer or any allegations upon which the question of law could be raised, we are of opinion that the judgment of the Supreme Court is correct. subject, nor is the amount in dispute sufficiently large, to justify our recommending We have not sufficient doubt upon the an application to the Privy Council for leave to appeal.
The Right Hon.
Sir Henry Holland, Bart., M.P.,
&c.
&c.
&c.
We have, &c., (Signed) RICHARD E. WEBSTER.
EDWARD CLARKE.
CASE FOR THE OPINION OF THE LAW OFFICERS OF THE CROWN.
EQAN V. PHILLIPS.
This was an action upon a petition of right, and was tried before his Honor the Chief Justice and a common jury on the 15th and 16th November 1886, and resulted in a verdict for the plaintiff, damages 3001. On a previous occasion the defendant had obtained a verdict, but a rule absolute for a new trial was afterwards granted to the plaintiff.
At the close of the plaintiff's case counsel for the defendant moved for a nonsuit, on the ground that an action in trespass does not lie against the Crown.
The Court reserved leave to the defendant to move to enter judgment at a future time, and the case was allowed to go to the jury.
In pursuance of leave reserved the Full Court was moved to enter a nonsuit but the application was refused, and the plaintiff has now signed judgment.
A copy of the pleadings is herewith, also a copy of the written judgment* delivered by the Chief Justice, and a copy of the Local Statute* relating to petitions of right.
By the Local Statute 31 Vict. c. 7, it is enacted that "In all cases of dispute or difference touching any claim which may arise
a petition may be presented."
By the English law a petition of right will not lie in respect of a claim for damages in trespass. Tobin v. Reg. 16 C.B., Ñ.S. 310, and 10 Jur. N.S. 1029.
This case was decided after the passing of the Imperial Statutes 23 & 24 Vict. 34, and has not been overruled.
The Imperial Statute empowers a subject to claim "relief," but does not give him a remedy in any case in which he would not have been entitled before the passing of
* Not printed.
▲ 50089.-31. 25.--9/87.