CO885-(10-11) — Page 142

PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

PUBLIC RECORD OFFICE, LONDON

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By the 32nd section of the Imperial Act, 13 & 14 Vict. a. 59. (by which alone power was given to the Governor and the former Legislative Council of South Australia to establish any new legislative authority in the Colony) it is expressly required that every Bill passed for any of the purposes mentioned in that section shall be reserved for the signification of Her Majesty's pleasure thereon, and laid before both Houses of Parliament for 30 days at least before Her Majesty's pleasure thereon shall be signified.

The 33rd section makes applicable to every Bill so reserved the provisions of the Imperial Act 5 & 6 Vict. c. 76,, of which the 33rd section provides that no Bill which shall be reserved for the signification of Her Majesty's pleasure thereon shall have any force or authority until the Governor of the Colony shall signify, either by speech or message, to the Legislative Council of the Colony, or by proclamation, that such Bill has been laid before Her Majesty in Council, and that Her Majesty has been pleased to assent to the same.

If, therefore, the Colonial Act No. 10 of 1855-6 has been passed for any of the purposes mentioned in section 32 of 13 & 14 Vict. c. 59., it seems to us to be quite clear that, not having been reserved it, and all subsequent Acts founded thereon must be invalid. But the purposes mentioned in section 32, are (inter alia) to establish legislative bodies, “to consist of such members, to be appointed or elected respectively by "such persons and in such manner as by such Act or Aots shall be determined." An Act, which determines what constituencies shall have the power of returning represen- tatives, what test is to be applied in order to entitle the persons claiming to be electors to exercise the franchise, and in what manner the suffrages of the electors are to be taken, appears to us to be plainly and indisputably an Act passed for some of the purposes mentioned in the 32nd section. And, indeed, this Act cannot be regarded as distinguishable, for any material purpose, from the Constitutional Act, No. 2 of 1855-6, the necessity of reserving which has never been doubted. Sections 14 and 16 of that Act pre-suppose the creation of that machinery, of electoral districts, and an electoral roll in each district, which it is the object of the Act, No. 10, to create. Neither Act could possibly work without the other; and whatever was necessary to give validity to the one, must, from the very nature of the case, have been equally necessary to give validity to the other.

3. Our answer to this question is in the negative. But, although we do not think that the 32nd section of the 13 & 14 Vict. c. 59. itself applies to any Acts which might be passed, not by the Legislative Councils then existing, but by the new legislative bodies which might be called into existence under the powers given by that section, we must observe, that the 34th section of the Constitutional Act of South Australia, No. 2 of 1855-6 provides, that every Bill which shall be passed by the South Australian Parliament, thereby established, for altering the constitution of the Legislative Council or House of Assembly, shall be reserved for the signification of Her Majesty's pleasure thereon. Her Majesty by assenting to that Act must be taken to have conferred upon the new South Australian Parliament, not an unlimited legislative power, but a legislative power subject to the limitations contained in the 34th section, and therefore, even if the subsequent Acts of the South Australian Parliament, as de facto constituted, had not been (as we think they were) invalid on the ground that the Act No. 10 of 1855-6 was not reserved, we should be of opinion, that under the 34th section of the Colonial Act, No 2 of 1855-6 itself, all subsequent Acta relating to the appointment or election of members of the Council and Assembly ought to have been reserved, and would be invalid on account of their not having been so reserved.

4. The annexed Draft Act of Parliament appears to us to be insufficient in its present form to cure the irregularity of the previous legislation; inasmuch as it does not meet the difficulty which we have just noticed in our answer to the 3rd question. We have, therefore, auggested some additions, both to the preamble and to the clauses, which (if adopted) will, we think, render it sufficient for all the purposes in view.

We have, &c. (Signed) WM. ATHERTON.

ROUNDELL PALMER,

His Grace the Duke of Newcastle,

&c.

&c.

&c.

3544.

*

No. 109..

(Hora Kosa.)

LAW OFFICERS to FOREIGN OFFICE.

EXTRACT from REPORT of April 8, 1862, on the proceedings instituted against the Captain of the Spanish vessel "Malespina."

We observe that the legal proceedings in this case commenced against the Captain are stated by Sir H. Robinson to have been "amicably settled," and they "appear to have originated in the Agent (Mr. Reynolds) not only declining either to make good "the damage or to answer in respect of the claim in Court, but referring Mr. Cecil (the plaintiff) to the Captain of the 'Malespina' as the only responsible person." The particular question, therefore, has been settled; the general principle involved is one of some legal nicety.

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With respect to the liability of the Captain to be sued in a Colonial court, and to be served with process "if found in any portion of Hong Kong" or its waters beyond the limits of his vessel, we concur with the opinion expressed by Sir H. Robinson. With respect to his liability to be served with such process when on board his ship or to the liability of the ship herself to any process we are unable to concur with him.

The better opinion of jurists and the usual practice of nations appears to be that foreign ships of war in the ports or territorial waters of a country should be considered and treated as extra territorial in relation to that country, and that, consequently, neither the ships themselves nor those actually on board of them should be considered as being within the local jurisdiction. Although this concession has been made on the suggestion that such ships and persons do not engage in any commercial operations, yet we cannnot say that the fact of their doing so, to a limited extent (as under the circumstances stated in this case), would of itself change their character or render them amenable to the local jurisdiction, a conclusion which would be attended with very inconvenient consequences to all concerned.

Sir H. Robinson has no power to interfere with the action of any Colonial court, and the party sued, or served with process, must appear and raise any legal defence which may be competent to him. It must be borne in mind, however, that no process of the court can be put in force against either person or goods on board the ship of war.

Sir H. Robinson's suggestion that the Spanish authorities should appoint an agent, as the only responsible person in relation to the packets in question, appears reasonable, but this appointment would not settle the international question involved.

We can only suggest that in case of any serious difficulty arising from the sorvice of. process at Hong Kong against a foreign naval officer on board a foreign ship of war, Sir H. Robinson would be authorised, in the exercise of his discretion, to direct the Crown Solicitor to appear and require the discharge of the officer, or the ship, as the case may be; as recommended by the Law Officers in their Report of April 24, 1860, on the case of an officer of the Sardinian frigate " Beroldo" served with a summons from the County Court of Bow.

EXTRACT from Law OFFICERS' REPORT of April 24, 1860.

In our opinion the proper course to be pursued by Her Majesty's Government under the circumstances is to intimate to the Sardinian Ambassador that the Government "Beroldo" from further concern with reference to the will relieve the officer of the summons with which he has been served from the Bow County Court.

The Treasury Solicitor should attend before the County Court Judge, taking with him the copy summons which was served on the defendant, and prepared with evidence both that the "Beroldo" is a Sardinian ship of war and that the defendant is an officer of the ship and a Sardinian subject, and that the service was effected on board the vessel.

It should be stated that the appearance is directed by the Government and is out of respect to the court and only for the purpose of seeking the judgment of the court as to the efficiency or inefficiency of the service, and to ask for the discharge of the complaint on the ground of no sufficient service.

o 16978.-81.

25.-2/86.

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