CO882-(1-2) — Page 226

PUBLIC

RECORD OFFICE

Reference :-

TLC.O. 882

1

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

4

ships there registered, for the purpose of investing with a national character, or placing under Her Majesty's protection, such vessel." Who are the persons entitled to be owners must now,

it is pre- sumed, be collected from the 17th section of the 12th & 13th Vict., c. 29, before cited, p. I.

The inference from the use of these passes appears to be, that the Crown has, by prerogative, conferred certain limited rights on colonial vessels of Malta and Gibraltar, though not entitled to be registered as British; that these rights involve the protection of the Crown, implying the use of the British flag; and that these rights have been conferred at one period on vessels belonging, not to British subjects, but to “ residents," for a certain number of years; and this without any impeachment, so far as I am aware, on the score of illegality.

The analogy to the case of the Hong Kong Ordinance seems exact, for in conquered colonies, (as has been said,) generally speaking, whether the Crown proceeds to legislate by Order in Council, or

through the Legislature established by itself, is

immaterial. But there is an additional reason in this case in favour of the Ordinance.

14

all or

The Alien Act, 10 & 11 Vict., cap. 83, enables Colonial Legislatures to grant to aliens any

" of the privileges of British-born or naturalized subjects; a power already exercised, and lawfully exercised, by the same Hong Kong Legislature, in giving Chinese residents the power to take and hold lands, though not naturalized.

It

may be objected that the privileges which the

statute empowers Colonial Legislatures to grant to alius, are only privileges "to be enjoyed within the limits of the Colony," and therefore would not cover the carrying a flag outside the colonial waters. But this seems to be a fallacy. No Registration Law, British or Colonial, gives the power of carrying a flag in foreign waters: or, expressly, the right of protection by the British Power in foreign waters. These are matters out of the limits of municipal law. The British Registry Law (Merchant Shipping Act) directs certain things to be done in this country by specially qualified persons, and thereupon follows the general right to the flag and its protection.

5

So, in strict analogy, the Hong Kong Registry Ordinance directs certain things to be done in the Colony by specially qualified persons; and there- upon follows, in similar manner, the general right to the flag and to protection. It is a corollary from the Ordinance, not part of the Ordinance.

This first Ordinance was confirmed only by despatch (December 12, 1855, p. 8), as is usual with Hong Kong Ordinances. I am aware of no reason why an Order in Council should have been passed. It could have given no additional validity to the law, so far as I can perceive, and would have been contrary to usage.

Has, then, the present Merchant Shipping Act, 17 & 18 Vict., c. 104, had the effect of repealing such local laws as the Hong Kong Ordinance, and the Mediterranean Orders in Council? Certainly not

that

in express terms; and not, I think, by any reason- able implication. Section 19 says

British every ship must be registered in manuer hereinafter men- tioned, "with the exception of certain coasting vessel of limited employment, which are therein described." It certainly seems as if the framer of this section did not recognise, or was not aware of, the existence of any class of vessels with limited registers. See also section 103, about the use of the flag. But it is submitted that an Act of Parlia- ment cannot, through a mere inference of this kind, be held to abolish existing usages, Orders in Council, and Ordinances. It would be a doctrine of dangerous consequences in our colonial jurisprudence. See also section 4 of the Repealing Act, which accom- panied the Merchant Shipping Act, 17 & 18 Vict. c. 120. It only repeals in a general way whatever laws, &c., are "inconsistent" with the Merchant Shipping Act: a provision unnecessary as to Colo- nial Ordinances, which, if really "inconsistent," are of course repealed.

Next, as to the second Ordinance (Paper, p. 11). The Merchant Shipping Act, sec. 547, enables Colonial Legislatures to "repeal” any part of itself, by Ordinance confirmed by the Queen in Council.

But the first Ordinance was passed, as has been seen, in March 1855, before this power had been given by the Merchant Shipping Act.

1

6

The Board of Trade thought that "some doubts might be entertained" as to the lawfulness of the use of the British flag, hy vessels owned by foreigners.

Although, for the reasons offered above, it is suggested that there is no real foundation for these doubts, yet it was thought by this department ex- pedient to guard against them, and Sir J. Bowring was directed to pass an Ordinance, as suggested by the Board of Trade, professing to “repeal" part of the Merchant Shipping Act, under sec. 547. Such un Ordinance could not have operation till con- firmed by Order in Council.

The Hong Kong Legislature passed an Ordinance accordingly (May 29, 1856). But it reached this department in a shape which made it somewhat difficult to deal with.

It recited a power

"to amend " the Merchant Shipping Act (a power not given by the Act in these words), and then proceeded not to amend, or repeal any specific portion of it--but merely to enact that the British flag might be borne by Chinese residents on board ships registered under the former Ordinance. Additional provisions were inserted of quite a different nature, and having nothing to do with the power given by the Merchant Seaman's Act.

If the defective form of this Ordinance had been disregarded, and it had been confirmed by Order in Council as an. Ordinance “repealing" part of the Merchant Shipping Act, it seems very doubtful whether, in thua ratifying the special doubt sug- gested by the Board of Trade, we should not have been throwing a general doubt (without foundation, if my former reasonings are correct) on the validity of the first Ordinance, by treating it as an Ordi- nance giving a British register, and therefore inter- fering with the Acts of Parliament.

These are the reasons which are thought to justify the course taken in abandoning the line at first suggested by the Board of Trade, and treating this second Ordinance (notwithstanding its incorrect recital) as really passed only in exercise of the common power of a Colonial Legislature, and (as to its first section) in excess of caution; and, accord-