PUBLIC RECORD OFFICE
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C.O.
Reference :-
• 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
13 PUBLIC RECORD OFFICE,
LONDON
2
of 1887, which waived the reservation of gold, silver, and other precious metals, provided by Regulation 16.
In obedience to your Lordship's commands, we have the honour to
Report
(1.) That we are of opinion that there would be a grave objection to your Lordship assenting to the Provisional Agreement of the 23rd October 1889. By section 7 of 18 & 19 Vict. c. 56. Her Majesty is empowered by Her Secretary of State to regulate the sale or disposal of the waste lands of the Crown. Regulations were made in 1882 under which the Hampton Company became lessees under a pastoral lease (form Schedule 11).
•
Certain rights of pre-emption are given under Regulation 68, but we are of opinion that, having regard to Regulations 3, 8, 90, 108, and 109, and the form of Grant Schedule 2 under the Regulations of 1882, no valid grant of gold, silver, or precious metals could be made, and the Company cannot claim any right to such grant.
The Regulations of 1887, which superseded those of 1882, distinctly prohibit any such grant (see Regulation 16), and, saving of rights under Regulation 1, only preserved the rights existing under the previous regulations.
If it is considered desirable to authorise such arrangements as that contained in the Provisional Agreement, regulations should be made under section 7 of the Act of 1855 dealing with the matter, and revoking the existing regulations so far as they are inconsistent.
2. We are of opinion that Regulation No. 115 of 1887 does not empower the Governor in Council to make a special concession waiving the rights of the Crown to gold, silver, and other precious metals.
The Right Hon.
Lord Knutsford, G.C.M.G.,
&c. &c. &c.
We have, &c., (Signed)
RICHARD E. WEBSTER. EDWARD CLARKE.
8277.
No. 177.
(NEWFOUNDLAND.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
We were honoured with your Lordship's commands signified in Sir Philip
Royal Courts of Justice, April 2, 1890. Currie's letter of the 19th February last, stating that he was directed by your Lordship to transmit to us the papers noted in the accompanying list, in further reference to the cases of the French fishing-schooners " Virginie " and " Amazone," which formed the subject of our Report to your Lordship of the 19th July last.
That upon receipt of that Report a communication was addressed to the French ambassador at this Court in the terms of the draft despatch, as approved by us, adopting the conclusion arrived at by the Judgment of the Newfoundland Court of Appeal.
That the French Government, however, renewed the claim for 44,500 fr. as com- pensation for the detention of each of the vessels, chiefly on the ground that the Magistrate's sentence of confiscation, which led to their detention, was illegal; and that they again raised the question whether it was consistent with international usage that the right of search should be exercised on foreign vessels except when taken in flagrante delicto, or when exercised by officials on board of ships other than those of a public character.
That information on the following points was thereupon sought to be obtained, namely (a), from Her Majesty's Secretary of State for the Home Department, and from Her Majesty's Ambassador at Paris, whether it was in accordance with precedent that compensation should be given by Her Majesty's Government for the erroneous, but bona fide, decision of a Magistrate while sitting on the Bench and administering the law in ordinary course; and (b) from the Board of Customs, through Her Majesty's Secretary of State for the Colonies, as to the practice of exercising the right of search in this country for the enforcement of Customs or other internal Regulations.
That with regard to the point (a) it was understood that in all cases, where com- pensation had been given by Her Majesty's Government, it had been given as an act of grace and not as a matter of right.
That from the Report of M. Clunet, the legal adviser to Her Majesty's embassy at Paris, it was understood that in France a British subject would not obtain com- pensation under the above circumstances as matter of right, but that at the same time M. Clunot considered that, as an act of international courtesy, compensation' might reasonably be given to owners for the condemnation and subsequent detention of their vessels.
That with regard to the points (b); it was gathered that the Solicitor to the Customs was of opinion that forcible search of a foreign vessel, even when in British territorial waters, could scarcely be made by a British official from a purely commercial ship, but that it could be made from any vessel distinctly in Government employ.
He stated, moreover, that, in his belief, no record existed in this country of any foreign vessel having been searched by officials acting on board of ships having no public character.
That it would be observed that M. Jusserand, in his note of the 20th October last, assumed that the right of visitation and search was, in the case of the two vessels in question, exercised "en debors de tout cas de flagrant délit ou d'indices indubitables de délit," and denounces the proceeding as being, on that gound, "contraire au principe de la liberté de circulation dans les eaux territoriales" admitted by Great Britain since the signature of the Convention of the Hague in 1882, of which document a copy was inclosed to us for reference.
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But that the facts of the case seemed to be very far from bearing out the assumption thus made, inasmuch as the vessels appeared to have been “ some of the said "fishes within the said limits" (see section 2 of the Newfoundland
* conveying Bait Act, 50 Vict.) at the very time they were boarded and searched, and that, although not "flagrante delicto" qui the "catching or taking" of such fish, they were "flagrante delicto" quâ the "conveying" of them, which was in itself a substantivo offence against the Bait Act.
That moreover, the presence of those fish on board would appear to furnish in itself "indices indubitables de délit."
61207.-12. 25-590.