15169.
PUBLIC RECORD OFFICE
C.O.885
Reference :-
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NUT TU|
MY LORD,
No. 75.
(Hong KoNG.)
LAW OFFICERS to COLONIAL OFFICE.
We were honoured with your Lordship's commands, signified in Mr. Wingfield's
Royal Courts of Justice, August 25, 1894. letter of the 10th instant, stating that he was directed by your Lordship to invite our consideration of a question which had arisen upon the 16th and 17th sections of the Colonial Courts of Admiralty Act, 1890.
That we were aware that, before the passing of that Act, Admiralty matters were dealt with in the Colonies by Vice-Admiralty Courts-Imperial Courts, of which the local Chief Justices were ex officio judges by virtue of the fourth section of the Vice- Admiralty Courts Act, 1863. That rules and tables of fees for these courts were established by an Order in Council dated 24th of September 1883, that the table of fees prescribed certain fees "to be taken by the judges, registrars, marshals, and practitioners of the Vice-Admiralty Courts."
That the Act of 1890 abolished the Vice-Admiralty Courts, and transferred their jurisdiction to the Colonial Courts, except in a few Colonies, on which no question arose, and those Colonial Courts now dealt with Admiralty matters as part of their ordinary jurisdiction. That in some Colonies Rules of Court had been made under Section 7 of the Act and approved by Her Majesty in Council, but that this had not yet been done in Hong Kong, which was the Colony in question. That the fees established by the Vice Admiralty Court were still paid there by suitors, and the point to be considered was as to the destination of these fees, so far as related to the fees formerly payable to the judge, registrar, and marshal of the Vice-Admiralty Court. received no Imperial salary beyond the fees; but that they were also officials of the That these officials Colonial Supreme Court, and in that capacity received salaries from Colonial funds.
That the Act came into force in Hong Kong on the 1st July 1891, and that there were up to that date a judge, a registrar, a deputy registrar, and a marshal of the Vice-Admiralty Court. That of these the judge, Sir James Russell, who was also Chief Justice of the Colony, had since died, the Registrar, Mr. Ackroyd, had been promoted to be a Puisne Judge of the Supreme Court, the Deputy Registrar, Mr. Sangster, and the Marshal, Mr. Haziland, were officials of the Supreme Court holding the same position in that Court as they did before the abolition of the Vice-Admiralty Court; and were capable of discharging the same functions as they formerly discharged as deputy registrar and marshal.
That it was supposed in the Colonial Office that the effect of the Act was to change the Vice-Admiralty fees into Court fees of the Supreme Court in its Admiralty jurisdiction, which, like other Court fees received from suitors by the officials of the Supreme Court, would, if taken in cash, be carried into the Colonial-Treasury and form part of the Colonial Revenue, or, if taken in stamps, would be carried to account in the same way as other fees paid in stamps, while any ex-official of the Vice- Admiralty Court doing work for which fees were paid was to be protected from loss, ✦ and, under section 16 (3) of the Act, was to receive from the Colonial Government an amount equal to the fees which represented that work, and which, under the old system, would have been paid direct to him.
That the interests of the ex-officials was further protected by sec. 17 (3) of the Act, which provided for their receiving compensation in the event of their suffering any pecuniary loss in consequence of the change. That such loss might happen in various ways, the duties of marshal (for instance), which in some Colonies had been performed by persons having no position in the Supreme Court, might be transferred to an official of that Court, or that the scale of fees might be reduced without altering the Vice- Admiralty Rules; but that such loss would not happen if the ex-marshal continued to discharge the duties, and were paid from the Colonial Treasury the amount of the fees received from the suitors 'for the work done by the marshal.
That the late Chief Justice, however, appeared to have read section 16 (3) as empowering the Court to direct that the fees should not be carried into the Colonial Treasury, but should be paid direct to the ex-officials-a view, which whether correct or not, and Mr. Wingfield was to submit that it was not correct, was comparatively unimportant, as it was admitted that either way the same amount would come to the
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Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NU] [U]
2
ex officials if they were in office at the passing of the Act. But that the present Chief Justice claimed as a matter of law that, as long as the Vice-Admiralty Rules remained in force, he and the present registrar, notwithstanding they were appointed after the commencement of the Act, were included in the words of section 16 (3) “the "amount of each such fee shall as nearly as practicable be paid to the same officer or person who but for the passing of this Act would have been entitled to receive the same in respect of the like business."
L
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That no other Chief Justice had taken up this ground, and that, subject to our opinion, your Lordship believed it to be unsound. That the fees in Vice Admiralty were taken by the judge and the registrer of the Vice-Admiralty Court, positions never filled by the present Chief Justice or the present registrar of the Supreme Court, so that they never became entitled to the fees. That the claim appeared to assume that the words, "taken in such manner as the Court may direct necessarily meant "taken by the officials," an interpretation which would fail if the words would admit of another meaning, such as "taken from the suitors in such manner" (whether in cash or by stamps or by the cashier-if there were one-instead of the registrar) “as the Court may direct." That the reason why the Court should give directions as to the taking of fees was not on the face of it apparent if the amount to be taken by each official was exactly fixed by the Act. That, at the same time, if the fees were carried to the Revenue the proviso for payment of the amount to the officers who would have been entitled became exhausted as soon as there were no more ex-officers in existence, but up to that time would form a charge upon the Colonial Revenue.
Mr. Wingfield further stated that he was to transmit with his letter a statement of the case prepared by Sir Fielding Clarke, the present Chief Justice, a letter from the present registrar, a copy of the circular despatch referred to in that letter, together with a semi-official note from the Parliamentary Counsel, and that he was to ask us to favour your Lordship with our opinion whether the Chief Justice of Hong Kong or the registrar of the Supreme Court of that Colony was in law entitied to demand for his own benefit payment from the Crown, or from the suitors of the amount of each fee which under the Vice-Admiralty rules were formerly taken by the judge or by the registrar of the Vice-Admiralty Court in respect of the like business.
That in considering the case of the Registrar, Mr. Wingfield was to point out that he had taken the fees under the direction of the Court, and he was to ask whether that direction was a legal justification for his retaining those fees.
We have considered the inatter, and, in obedience to your Lordship's commands, have the honour to
Report-
That in our opinion neither the Chief Justice of Hong Kong, nor the Registrar of the Supreme Court are in law entitled to demand for his own benefit payment from the Crown or from the suitors of the amount of any fee which under the Vice- Admiralty Rules was formerly taken by the Judge or by the Registrar of the Vice- Admiralty Court in respect of the like business.
Neither of the officers mentioned is. in our opinion. the same officer or person who would have been entitled but for the passing of the Colonial Courts of Admiralty Act, 1890.
As to the registrar, we are of opinion that he did not by taking the fees under direc- tion of the Court acquire any legal right in them, and that he might now be required to repay them, if, under the circumstances, it were thought right to press the demand, which would involve a certain amount of hardship.
The Most Hon. the Marquess of Ripon, K.G., &c. &c. &c.
We have, &c.
(Signed)
JOHN RIGBY. R. T. REID.
15240.
No. 76.
(NEW ZEALAND.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands, signified in Mr. Bramston's
Royal Courts of Justice, August 25, 1894. letter of the 20th April last, stating that he was directed by your Lordship to transmit to us the enclosed Despatch, with the accompanying papers, from the Earl of Glasgow, Governor of New Zealand, from which it would be seen that the Chief Justice of the Colony had expressed a doubt as to the sufficiency of the steps taken in 1887 for the annexation of the Kermadec Islands to New Zealand.
That at the request of the Colonial Government Her Majesty's Government consented to annex to New Zealand this group of Islands which were of small value, but which, from their position, it was desirable should be placed under the jurisdiction of the Colonial Legislature. That subsequently, the Islands having been formally annexed to the British dominions, the Legislative Council and Legislative Assembly by resolution prayed Her Majesty to declare that the Islands should be annexed to, and form part of, the Colony.
That thereupon Letters Patent were issued reciting the resolution of the Legislature and empowering the Governor to declare by Proclamation that on a day to be named the Islands should be annexed to the Colony, but requiring that such proclamation should not be made unless the Colonial Legislature should have passed a law providing that the Islands should on the day so to be named become part of the Colony and subject to its laws.
That these various steps were accordingly taken and copies of the Letters Patent of the Colonial Law (No. 1 of 1887) and of the Governor's Proclamation dated 21st of July 1887 were enclosed in the Earl of Glasgow's Despatch. That these steps were taken in reliance upon the reports given from time to time by former Law Officers, and in the belief that the object in view might be effected by Letters Patent, followed by legislation in the Colony, without having recourse to the Imperial Parliament, notwithstanding that the boundaries of the Colony of New Zealand had been defined in the Act 20 Vict. cap. 23.
The various Law Officers' Reports referred to were transmitted to us by Mr Bramston.
Mr. Bramston further stated that he was to request us to favour your Lordship with our opinion,
Whether the Kermadec Islands had been legally annexed to the Colony of New Zealand and were now under the jurisdiction of the Colonial Legislature.
In obedience to your Lordship's commands, we have considered the matter, and have the honour to
Report-
That, although the case has relation to a comparatively unimportant territory, it involves principles of great importance, as to which we find it difficult to adopt in full the opinions of some of our predecessors set forth in the reports before us.
We consider it to be established law (a) That the legislative enactments of a Colony cannot (unless under the express provisions of an Imperial Act) have any operation out- side its local boundaries. They cannot effect or assist in any annexation of territory outside the Colony. At most they are solemn evidence of the assent of the Colony to the annexation.
(b) That where a constitution is granted to a Colony by Imperial Act it cannot in any way be altered by prerogative.
It would seem, then, that, in principle at any rate, where an Imperial Act has established a constitution within certain boundaries, neither a Colonial legislature, nor Her Majesty by virtue of Her prerogative, nor both combined, can so houndaries of the Colony as to include other territory, in the sense of making that extend the territory parcel, to all intents and purposes, of the Colony which by Imperial Act has a constitution. For instance, it cannot be included in any province of the Colony, or electoral division. This seems to have been the opinion of Sir Hugh Cairns (Report of
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