No. 9.
Case of the "Creole." In- demnity for un- authorized seizure of a foreign vessel
in Colonial waters for contravention of a Convention between Great Britain and a foreign country, ought to be paid by Great Britain.
12
both cases are equally within the mischief which the Act was intended to guard against, yet, as the language of the Act is ambiguous, and as the act is of a highly penal nature, we are of opinion that it will not be advisable to forfeit under it any but foreign vessels.
Even if the Imperial Act 59 Geo. III, cap. 38, should be insufficient to give Her Majesty power to impose all or any of the rules and regulations in question (a question which we need not now consider), the authority of the Local Legisla- ture appears to us to be sufficient to make them valid in effect, by its express legislative enactment of them. The authority of the Local Legislature extends (like that of the Imperial Parliament) over the space of the three miles upon the high seas next the coast, which is, by the comity of nations, part of the country to which it is adjacent; and we are of opinion that upon this general principle, and irrespective of the Convention, the Imperial Statute, or the Regulations of the Sovereign in Council, the Colonial Legislature was legally entitled to legislate as it has done relative to the fisheries, and that its enactments are valid and binding.
3. We are of opinion that such a vessel is, under the circumstances stated, liable to forfeiture under the express provisions of the Colonial Statute already referred to.
4. We are of opinion that the effect of the 8th & 9th Vict., cap. 89, is controlled by the 12th & 13th Vict, cap. 29, sec. 17, and that it is no longer necessary that the owner of a vessel shall be resident within the Queen's domi- nions in order to satisfy the requirements of the British Navigation Law.
5. The master in all cases, and, besides the master, either three-fourths of the crew, or one seaman to every twenty tons, by the 12th & 13th Vict., cap. 29, sec. 27, must be British subjects.
6. A foreign fishing vessel, duly registered and manned as a British vessel, may legally prosecute the fishery, as suggested by virtue of the 12th & 13th Vict., cap. 29.
7. Such a ship will be liable to forfeiture and condemnation, if deficient in any requirement absolutely necessary to her nationality, as, for instance, if she be not registered or navigated as a British ship; but she will not be liable to forfeiture for deficiencies in other points of mere regulation, which involve only specific penalties, as, for instance, if she has not her tonnage carved on her beam, or her name painted on her stern.
His Grace the Duke of Newcastle,
&c.
&c.
&c.
We have, &c.
(Signed)
No. 9.
J. D. HARDING. A. E. COCKBURN. RICHARD BETHELL.
COPY of a LETTER from the LAW OFFICERS of the CROWN to Mr. ELLIOT.
Doctors' Commons, November 12, 1855.
SIR,
WE are honoured with your letter of the 22nd September last, stating that, with reference to our Report of the 6th August, 1853, on the subject of the judgment given in the Vice-Admiralty Court at Halifax, in the case of the "Creole," you were directed by the late Sir William Molesworth to send us a copy of a despatch from Lieutenant-Governor Sir Gaspard le Marchant, enclosing a petition from Mr. Elliot, one of the claimants of the vessel in that case, for indemnity for damages; and to request that we would take the same into consideration, and report our opinion whether we consider such pecuniary indemnity ought to be given, and, if so, whether by the Home Government or by the Government of Nova Scotia.
In obedience to the above commands we have the honour to report- That, in our opinion, the pecuniary indemnity sought by the owner of the "Creole " ought to be given. The question, in order to decide which the Creole" was captured, arose out of a Convention between Great Britain and the United States, and she was captured by one of Her Majesty's ships, under instructions from the Imperial Government. The matter was therefore one of
13
Imperial concern, and we are of opinion that the indemnity must be paid by the Imperial Government, and not by that of Nova Scotia.
T. Fred. Elliot, Esq., &c. &c.
SIR,
&c.
We have, &c. (Signed)
J. D. HARDING. A. E. COCKBURN. RICHARD BETHELL.
Prince Edward's Island.
No. 10.
COPY of a LETTER from the LAW OFFICERS of the CROWN to Sir J. PAKINGTON.
Doctors Commons, August 24, 1852.
No. 10.
WE were favoured with a letter from Mr. Elliot on the 12th instant, in Patronage of which he stated that he was directed by you to request that we would intimate benefices. our opinion on the following point:
Missionaries.
There appear to be, in Prince Edward's Island, two classes of Ministers of the Church of England; some commonly designated as Rectors, who enjoy, as such, certain lands attached to parish Churches; others who are merely stationed at places in the Island, and employed as Missionaries of the Society for the Propagation of the Gospel.
Mr. Elliot also stated that he was directed to request that we would take into consideration the Local Act 43 Geo. III, cap. 6, the annexed extracts from the Commission, and instructions from the Governor of Prince Edward Island, and the inclosed correspondence, and report to you our opinion-
What are the respective rights of the Governor, the parishioners, and the Bishop, in respect of the institution, presentation, collection, or induction of Rectors ?
Has the Governor any, and what, rights or duties in respect of the appoint- ment of Missionaries of the Society for Propagation of the Gospel to minister in the Island?
In obedience to your commands, we have perused the several documents accompanying Mr. Elliot's letter, and have the honour to report that, by the Colonial Act 43 Geo. III, cap. 6, the patronage of all benefices is vested in the parishioners, who are entitled to present to them whenever vacancies occur. The Lieutenant-Governor, upon such a presentation, is required to induct. The Clerk so presented must, however, produce a license from the Bishop of London, or from the Bishop of Nova Scotia, and he must also have publicly declared his assent and consent to the Book of Common Prayer, and must have subscribed to be conformable to the Orders and Constitution of the Church of England, and the laws there established; but the Lieutenant-Governor, having ascertained that these preliminaries have been complied with, his office is merely ministerial, and he has no power to refuse induction. The Bishop's functions are confined to licensing the Clerk, who is presented (of course after due examination), if such Clerk has not already obtained a license from the Bishop of London.
The Lieutenant-Governor has no rights or duties in respect of the appoint- ment of Missionaries of the Society for the Propagation of the Gospel, but such Missionaries cannot officiate without the license of the Bishop, and if they should do so, or fail to declare their assent to the Book of Common Prayer, or to subscribe the Articles and Canons of the Church, we think that, according to the spirit of the Colonial Act, they may be suspended and silenced by the Lieutenant-Governor and the Council.
We have, &c.
The Right Hon. Sir J. Pakington, Bart.,
&c.
&c.
&c.
(Signed)
J. D. HARDING. FRED. THESIGER. FITZROY KELLY.
PUBLIC RECORD OFFICE
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