CO885-(10-11) — Page 130

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON

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

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express provision against the coaling of ships of war of either belligerent in such ports and places as it may not be thought proper to allow to be used for that purpose.

3. With respect to any belligerent operations within British waters (which are to be considered as extending everywhere in all British possessions to a distance of three miles from the shore), we are of opinion that they should be strictly prevented, and that force ought, if necessary, to be used for that purpose. But we think that Her Majesty's naval officers cannot be instructed to interfere with any hostile operations which may be carried on by either belligerent wholly beyond these limits, and that, although the presence in the immediate neighbourhood of British waters, but beyond these limits, of a belligerent naval force on the look out for ships of the other belli- gerent or for neutral ships suspected of carrying contraband or breaking blockade, may be attended with inconvenience to the trade of the Bahama Islands, it cannot law- fully be prevented by any interference on the part of the British authorities.

4. We observe that Commodore Dunlop mentions the presence in the port of Nassau of a Southern steamer suspected of having contraband of war on board, in terms which imply that if sufficient proof of that fact had been brought forward this vessel would have been deemed liable to seizure by the Colonial authorities. But, unless there be some local law applicable to such a case (of which we are not aware), we do not con- ceive that the Colonial authorities would be justified in seizing any vessel, either of one of the belligerents, or of any neutral power which might come into any British port, She might be merely on the ground that such vessel had on board contraband of war. entitled to no protection if seized by the other belligerent beyond the limits of neutral waters, but she would not be liable to seizure by the British authorities on that ground,

Having so recently reported our opinion upon the important questions of maritime law raised by Mr. Seward's note in the case of the Trent, we do not conceive it to be necessary that we should advert on this occasion to those parts of Commodore Dunlop's Despatch which relate to the same or any similar questions.

We have, &c. (Signed)

The Earl Russell.

WM. ATHERTON.

ROUNDELL PALMER,

616.

No. 101.

(NEW SOUTH Waleb.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, January 17, 1862. MY LORD DUKE,

We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 3rd instant, in which he stated that he was directed by you to enclose the copy of a Despatch which had been received from the Governor of New South Wales relating to the treatment of certain lands formerly belonging to the “Church and School Estates Corporation" (with its enclosures), and to request that we would furnish you with our opinion on certain questions of law on which it was expedient that the Governor should receive instructions.

That by a charter of 9th March 1826, under the seal of the Colony of New South Wales, a corporation of an exclusively Church of England character was established under the title of "Trustees of the Clergy and School Lands in New South Wales."

That it contained the following clause "XXXVI., And we do further will and ordain "that it shall be lawful for us, our heirs and successors, by an order to be issued by us for that purpose, with the advice of our or their Privy Council, to dissolve and put an end to the said corporation in case it shall appear to us, our heirs and suc- cessors, with the advice aforesaid, expedient so to do; and thereupon all the lands "which may by us, our heirs and successors, be granted to the said corporation shall "revert and become absolutely vested in us or them, to be held, applied, and disposed

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"

of in such manner as to us, our heirs and successors, shall appear most conducive to "the maintenance and promotion of religion and the education of youth in the said

Colony."

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That to this corporation some hundred thousand acres of land appeared to have been granted at different times, but on the 4th February 1833 it was dissolved, and those lands accordingly reverted to the Crown subject to the understanding pledge or trust embodied in the concluding words of the above-quoted article of the charter.

That a local Act (5 Will. 4. No. 11) was passed on the 5th August 1834 to remove some difficulties in transferring the corporation property to the Crown, which Act, among other things, authorised the Governor (s. 6) to grant, sell, or dispose of the lands granted to the corporation, provided that the purchase money was paid to an agent to be appointed by him for managing the property. The property was afterwards dealt with under that Act as applicable to the general support of religion and educa- tion (though that object was not alluded to in the Act). That in 1841 a system was adopted of letting out the lands for seven, fourteen, or twenty-one years, the object evidently being to secure some present revenue without losing the gains ultimately derivable from the necessary increase in the fee simple value of the lands.

That in 1842 the Imperial Land Sales Act, 5 & 6 Vict. c. 36., was passed, providing (8.2) that all waste lands should be dealt with by way of sale, reserving, however, (s. 3) to the Crown the power of disposing of such lands (otherwise than by sale) for various specified purposes, and in general for any purpose "of public safety, convenience, health, or enjoyment," and saving existing "promises, engagements, and coutracts,' B. 20. That waste lands were defined to mean (s. 23) lands vested in the Crown which had "not been already granted to any person or persons in fee simple, or for an estate " of freehold, or for a term of years, and which have not been dedicated and set apart

for some public use."

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That finally by the Act 18 & 19 Vict. c. 54. 8. 2., subject to the same provision as to "contracts, promises, and engagements," the disposal of waste lands of the Crown in New South Wales was transferred to the Colonial Legislature.

That it was alleged that the lands as at present managed interfered with the progress of settlement, and the Assembly claimed that they should be treated as part of the "waste lands of the Crown" transferred to the Legislature by the Act 18 & 19 Vict. and discharged from the obligation to perform any trust.

That Messrs. Martin and Lutwyche, the Colonial Attorney and Solicitor General in 1856, held, and were followed by a majority of the Legislative Assembly in holding, "waste lands of the Crown," and that that the church and school lands were simply the leases under which they were then occupied (or at least those granted subsequently

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16278.528.

25.-2/86.