• Jn.
55
Natal.
No. 48.
No. 48.
No. 47.
Slave Trade, de- tention of a vessel
suspected of being engaged in, by private person, not
lawful under
5 Geo. IV, c 113. *. 43.
No. 47.
Cory of a LETTER from the Law Officers of the Crows to Mr. Secretary
SIR,
LABOUCHERE.
Doctors' Commons, January 23, 1857. WE were favoured with Mr. Merivale's letter of the 18th of December last, in which he was directed by you to transmit to us a copy of a despatch from the Governor of Sierra Leone, forwarding a correspondence relative to an alleged slave-canoe seized within the waters of the Colony by the Acting Collector of Customs, and released by the Acting Judge of the Vice-Admiralty Court there.
Mr. Merivale was pleased to state, that it appears froin these papers (omitting minor points) that the canoe in question having on board articles which might raise the suspicion of her being employed in the Slave Trade, was detained by a private resident in the Colony, Mr. Davis, until the arrival of Mr. Pike, the Collector of Customis, who took possession of her.
Mr. Merivale also stated that Mr. Montagu, the Acting Judge, was of opinion (although, as he expresses himself in his letter of the 15th October, with some doubt), that the Act 5 Geo. IV, cap. 113, has not empowered "any unautho- rized person" to detain a canoe, and that the subsequent seizure by the Collector of Customs did not render valid the previous detention.
Mr. Merivale was also pleased to add, that he was directed by you to request that we would favour you with our answer to the question whether the opinion of the Acting Judge was correct.
In compliance with the request contained in Mr. Merivale's letter, we have perused the correspondence transmitted to us, and have the honour to report-
That although we are of opinion that the Statute 5 Geo. JV, cap. 113, sec. 43, does not empower any persons other than those mentioned in that section, or duly deputed and authorized as therein directed, to seize or detain vessels (including canoes) and slaves or persons; and although no subsequent valid seizure can, strictly speaking," render valid" a previous unauthorized detention; we are nevertheless of opinion that the subsequent seizure by the Collector of Customs in this case was not rendered invalid by the fact of the previous irregular detention.
The proceedings before the Judge were at the suit of the Crown upon a valid seizure by the Collector of Customs; and we do not, therefore, consider that the opinion of the Acting Judge was correct.
We have, &c.
J. D. HARDING. RICHARD BETHELL.
The Right Hon. H. Labouchere, M.P.
&c.
&c.
J. STUART WORTLEY.
&c.
COPY of a LETTER from the Law OFFICERS of the Cnown to Earl GREY.
MY LORD,
Doctors' Commons, July 3, 1850.
WE were honoured by your Lordship's commands contained in Mr. Meri- Aliens may be vale's letter of the 4th ultimo, in which he stated that he was directed by your empowered by the Lordship to transmit to us the inclosed copy of an Ordinance recently passed by Colonial Legisla the Legislature of the Colony of Port Natal, for imparting to aliens residing within of trust. the district of Natal some of the privileges of naturalization," in order to obtain our opinion on a question which this Ordinance appears to raise.
By section of this Ordinance, it is provided that upon taking the oath,
" and obtaining the certificate hereinafter prescribed, every alien now residing in, or who shall hereafter come to reside in the district of Natal, with intent to settle therein, shall enjoy all the rights and capacities which a natural-born subject of Her Majesty can enjoy or transmit, except that such alien shall not be capable of becoming a member of the Executive or Legislative Councils of the said district."
By the Act 12 & 13 Wm. III. cap. 2, sec. 3 (enforced by 1 Geo. I, statute 2, cap. 4, sec. 2), aliens are disabled, even after naturalization, from enjoying any office or place of trust, civil or military, and from having any grant of land from the Crown.
But by the Act 10 & 11 Vict., cap. 83, for the naturalization of aliens, it is enacted (sec. 2), “that all Laws, Statutes, and Ordinances which shall hereafter be made and enacted by the Legislatures of any of Her Majesty's Colonies or possessions abroad, for imparting to any person or persons the privileges or any of the privileges of naturalization, to be by any such person or persons exercised and enjoyed within the limits of any such Colonies and possessions respectively, shall, within such limits, have the force and authority of law, any law, statute, or usage to the contrary in any wise notwithstanding."
Mr. Merivale then stated that the question, therefore, on which he was instructed to request our opinion was, whether an alien, naturalized in Natal according to the manner prescribed in this Ordinance (which passed subsequently to 10 & 11 Vict., cap. 83), would be able to enjoy an office or place of trust (except such as are specially excepted in the Ordinance), and to take a grant of land from the Crown.
Mr. Merivale concluded by saying he was directed to subjoin a Memorandum which was drawn up in the Colonial Office on the legal state of Colonial aliens, prior to the passing of 10 & 11 Vict., cap. 83; and a Circular to the Governors of the Colonies, which was transmitted after the passing that Act; and also a copy of an opinion given by the Queen's Advocate-General, and the Attorney- and Solicitor-General, on the 25th May, 1840, on the subject of a Mauritius Naturalization Ordinance.
In obedience to the commands of your Lordship, we have taken the papers into our consideration, and have the honour to report-
That in our opinion an alieu naturalized in Natal, according to the manner prescribed in this Ordinance, would be able to enjoy an office or place of trust, except such as are specially excepted in the Ordinance, and to take a grant of land from the Crown.
The Right Hon. Earl Grey,
&c.
&c
&c.
We have, &c.
(Signed)
J. DODSON. JOHN JERVIS. JOHN ROMILLY.
ture to hold offices
P
PUBLIC RECORD OFFICE
Reference :-
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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDONPage 151
PUBLIC RECORD OFFICE
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3PUBLIC RECORD OFFICE, LONDON
No 49.
Boundary of
Colony, Crown
retains prerogative
power to define, after the concession
of a partly Repres
sentative Legisin-
tore.
SIR,
56
No. 49.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to
Mr. Secretary LABOUCHERE.
Lincoln's Inn, July 9, 1857.
WE were favoured with your commands, signified in Mr. Merivale's letter of the 15th June ultimo, in which he stated that he was directed by you to request that we would favour you with our opinion upon the following questions.
The district (now colony) of Natal, like that of the Cape of Good Hope, of which it once formed a part, had been esteemed a conquered Colony, and legislated for as such by the Crown by Order in Council; that the boundaries of the District of Natal were defined by the annexed Proclamation issued by Lieutenant-General Sir P. Maitland on the 21st August, 1945; and that the description of the boundaries contained in the Proclamation had not been inserted in any of the letters-patent issued from time to time for the government of Natal.
That in a despatch, of which a copy was annexed (of the 18th January, 1-57), Sir George Grey (as Lord High Commissioner for the affairs of the frontier) suggested that the boundaries of Natal should be more particularly described and rectified; and that it was proper to effect this purpose by Order in Council approving a proclamation, of which a draft was annexed.
But it was important to observe that, by letters-patent of the 15th July, 1856 (termed the Charter of Natal), of which copy was also annexed, Natal was erected into a Colony, and a Legislative Council was appointed, to consist of 16 members, of whom 12 were elective, and 4 non-elective.
Mr. Merivale was pleased to say that he was directed, therefore, to request that we would favour you with our opinion-
Whether, after the grant which this Charter contains of a mixed elective and non-elective Legislature, the proposed Order in Council and Proclamation, thus defining the boundaries of the Colony, will have legal validity?
And, if not, whether, under the reservation of powers contained in the last clause of the Charter, it would be competent to the Crown to effect the same purpose by issuing letters-patent "amending" or “. altering" the Charter by the insertion of the proposed boundary?
That. if we should think the proposed Order in Council and Proclamation within the authority of the Crown to issue, we were requested to suggest any corrections which might occur to us.
In compliance with the request contained in Mr. Merivale's letter, we have perused the papers submitted to us, and have the honour to report-
That in the despatch of Sir George Grey, dated the 18th January, 1857, is the following passage: "Its inland boundary was in the original Proclamation, and in the Letters-Patent which have flowed from that Proclamation, thus defined," &c.
The Proclamation here referred to is that of the 21st of May [August ?], 1845; but we cannot find any Letters-Patent which contain any definition of the boundaries of the Colony. If there be such Letters-Patent, and they have not been revoked, it will be necessary to revoke them.
In the Letters-Patent of the 15th July, 1856, there is no definition of the boundaries of the Colony; but there is a specification of eight electoral districts, which we assume will not be affected by the alteration of boundaries proposed to be made by the intended Proclamation.
If this be so, there is nothing contained in the Charter which affects the right of the Crown to define and settle the boundaries of the Colony; and in answer, therefore, to the question in Mr. Merivale's letter, we beg leave to state that, notwithstanding the grant contained in the Charter of a mixed elective and non-elective Legislature, we are of opinion that the Crown retains full prerogative authority to make the proposed Order in Council and Proclamation, and that the same will have legal validity.
We have considered the proposed Order and Proclamation, and beg to state that in our opinion they are correct and proper.
We have, &c.
(Signed) RICHARD BETHELL.
HENRY S. KEATING,
The Right Hon. H. Labouchere, M.P.,
&c. &c. &c.
SIR,
57
St. Helena.
No. 50.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir G. GREY.
I
Temple, July
1854.
No. 50.
WE have had the honour of receiving Mr. Merivale's letter dated the Alien may be cm- 4th instant, stating that he was directed to ask whether, having regard to the powered by Orli- Constitution of the Island of St. Helena as described in the said letter, we were nance to hold land. of opinion,-
1. That it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty's Government) to pass an Ordinance conferring on a foreigner power to hold and transfer land within the Colony of St. Helena.
2. That (in the event of such a course being deemed more advisable) land might be purchased by a British subject or subjects in St. Helena, to hold it as a trustec or trustees for the French Government, or for any person or body authorized by the French Government, to do the necessary acts for keeping the land in a proper state for the purpose required; that purpose being, the fencing, watching, and protecting from injury, the spot occupied until recently by the remains of the Emperor Napoleon I.
We have taken the subject into our consideration, and beg to state that the difference between the Island of St. Helena and the Settlement of Hong Kong Alienage, English (to our opinion with respect to which latter place we are referred) lies in this: law of, extends to that Hong Kong is territory ceded by a foreign State, and therefore retaining its St. Helena. own laws, and not subject to English law, save so far as English law may be introduced and established by the authority of the Crown; whereas, according to the information given us by Mr. Merivale's letter, the Island of St. Helena was occupied" by British subjects in the year 1650, who therefore carried with them such of the then existing laws of England as were applicable to the condition of a new settlement, and in which the law prohibiting aliens to hold land may probably be deemed to be included. But whether this he so or not is, we think, immaterial, because we are clearly of opinion that, even if the law against aliens being owners of land, and also the law of mortmain, be considered as having been introduced into St. Helena, it is competent to the Legislature of St. Helena, under the authority of the Act 3 & 4 Win. IV, cap. 85, sec. 112, and the Order in Council of 1835, to alter those laws; and we therefore think that it would be lawful for the Legislature of St. Helena (under the direction of Her Majesty's Government) to pass an Ordinance conferring on a foreigner power to hold and transfer land within the Colony of St. Helena.
2. We are also of opinion that the course pointed out in the second question might be adopted, but that in such case, also, an Ordinance of the Legislature would be requisite, and we think the first course is to be preferred.
We have, &c.
A. E. COCKBURN RICHARD BETHELL.
The Right Hon. Sir G. Grey; Bart.,
&c.
&c.
&c.
(Signed)
No. 51.
COPY of a LETTER from the QUEEN'S ADVOCATE and ATTORNEY-GENERAL to Mr. Secretary LABOUCHERE.
SIR,
Doctors'
March 31. 1857, Commons,
No. 51.
Ordinance might
WE were favoured with your commands, signified in Mr. Merivale's letter ret land in a of the 24th March instant, in which he stated that he was directed by you to and his heirs for
foreign Sovereign
ever.