PUBLIC RECORD OFFICE
C.O.885
Reference :-
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
tion to the United States Government on the subject, pressing for the issue of instruc- tions to prevent the recurrence of such unjustifiable seizures, and asking for compensation for the loss inflicted on the owners by the action of the United States cruiser.
I am to request that you will take these papers into Lord Kimberley with your opinion as to-
"
your consideration, and favour
1. Whether the seizure of the "Wanderer" by the officer commanding the United States ship "Concord was warranted by the facts of the case, and, if not, in what respects, and on what grounds, his proceedings were open to objection.
2. Whether, having regard to the circumstances of the case generally, and especially to the fact that the Admiral Commanding-in-chief on the North Pacific Station abandoned all proceedings against, and released, the vessel, without having previously communicated with the United States authorities and ascertained their views, Her Majesty's Government would be justified in putting forward a claim for compensation on behalf of the owners of the "Wanderer" against the United States Government, and, if so, on what specific grounds such a claim could most properly and advan- tageously be based.
Lord Kimberley would be glad at the same time to be favoured with such general observations on the papers submitted as you may desire to offer.
I have, &c.
(A.) Behring Sea Award Act.
FRANCIS BERTIE.
List of Papers.
(B.) Admiralty
January 26, 1895.
(C.) Sir J. Pauncefote
(D.) Order in Council 1894.
(No. 115.) May 14, 1894,
March 11, 1895.
(E.) Colonial Office
-
コ
7528
No. 83.
(GENERAL.)
LAW OFFICERS to PRIVY COUNCIL OFFICE. SIR,
Royal Courts of Justice, April 29, 1895. We were favoured with your letter of the 17th instant stating that, with reference to previous correspondence on the subject of the application of the Rules Publication Act, 1893, to Orders in Council made under various Acts, you were directed by the Lord President of the Council to transmit to us the accompanying draft of a proposed Order in Council to be entitled Council, 1895." which had been received from the Foreign Office, together with a The Foreign Marriages Order in letter from that Department, in reply to a letter from your Office, inquiring if, in the opinion of the Secretary of State, the Order in Council proposed to be made came within the provisions of the Rules Publication Act.
That you were to request us to favour his Lordship with our opinion whether the Draft Order in Council above mentioned came within the provisions of the first section of the Rules Publication Act, 1893.
We have taken the matter into our consideration, and, in compliance with the request contained in your letter, have the honour to
Report-
That, in our opinion, the Draft Order in Council to be entitled Marriages Order in Council, 1895," contains a Statutory Rulo, and thus comes within "The Foreign the provisions of section 1 of the Rules Publication Act, 1893. It embodies a regulation which is subsidiary to the Foreign Marriages Act, 1892, and which supplies a supplementary detail for carrying out the designed objects of that Act.
We think it may be of advantage to offer a further comment upon the somewhat difficult construction of the Rules Publication Act, 1893.
AStatutory Rule" is defined to be a "Rule," "Regulation,” or “
Bye-law."
Rules, Regulations, and Byelaws, in our opinion, mean provisions subsidiary to an Act of Parliament which supply supplementary details for carrying out its designed objects.
Those three words are not mutually exclusive, but all three are used, presumably
because some Acts of Parliament authorise the making of "Rules," others authorise
the making of "Regulations," and others authorise the making of "Byelaws."
An Order in Council which directs that an Act of Parliament shall come into
operation (e.g., under the Extradition Act, 1870, sec. 2) does not appear to us to be, or to contain, a Statutory Rule at all.
It is not subsidiary or supplementary to an Act of Parliament, but summons into activity the powers of an Act theretofore dormant.
And even where such an Order in Council under the Extradition Act is accompanied by limitations, restrictions, conditions, exceptions, or qualifications, (under sec. 2) it does not appear to us to be, or to contain, a Statutory Rule. For such an Order in Council, if it applies the Act at all, must apply the whole Act. It cannot add to, or subtract from, the Act, though it may exclude particular areas or particular individuals, or make the operation of the Order itself dependent upon conditions of time, or place, or upon any contingency, such, for example, as consents in any case of the Sovereign or Minister of either State.
We do not, however, consider that the term "Statutory Rule" is limited to Rules, Regulations, or Bye-laws which apply only within the United Kingdom. This would be inconsistent with the generality of the language used in the Rules Publication Act, 1893, and especially in the definition clause (sec. 4), of which the first part is limited to the United Kingdom, while the second part extends to every Secretary of State, including the Foreign and Colonial Secretary:
Doubtful cases will no doubt arise, as the distinctions are somewhat fine, but in each case we think the question will have to be decided by the test we have indicated.
We are, &c.,
Colonel R. B. Fellows,
&c., &c., &c.,
Privy Council Office.
R. T. REID. FRANK LOCKWOOD.
*3965.-8.
25.-5/95
}