CO885-(10-11) — Page 316

PUBLIC RECORD OFFICE

C.O.

Reference :-

· 885

PUBLIC RECORD OFFICE, LONDON

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

2

Sir Frederic Rogers was therefore pleased to request our opinion on the following questions :—

1. Whether the proclamation of Sir J. Cockburn was effectual to extend the port of Hamilton beyond the limits of the township.

2. If not, whether the usage under that proclamation, and its recognition by the Act of the Legislature is sufficient to give it validity, and

3. Whether the Act of 1790 disables the Legislature in point of equity from declaring or empowering the executive to declare ports of entry and export beyond the limits of the port of Hamilton.

Sir Frederic Rogers was further pleased to state that, with reference to this question, he was to draw our attention to the circumstances that the Act of 1790 was passed to remedy an experienced inconvenience (the "diffused state" of the trade), and without any expressed intention of precluding future legislatures from establishing ports of entry as might prove convenient; and that at the passing of the Act, the Corporation did not exist.

That if the proclamation is, in our opinion, absolutely ineffectual, he was further to ask---

4. Whether any compensation is due to the Corporation for the injury to their interests which may have resulted from the infringement of the law under that proclamation.

5. Whether it is the duty of Government to prevent the landing of goods at Allbuoy's point, and if so, whether any compensation is due to those who have erected wharves and warehouses on the faith of the proclamation of 1819.

6. Whether the Legislature may properly be applied to to legalize all that has been done in virtue of the proclamation of 1819.

In obedience to your commands we have taken this matter into consideration, and have the honour to

Report

(1.) That we are disposed to think that the proclamation of Sir James Cockburn, in as far as it extended the limits of the port of Hamilton beyond those of the township, for the purpose of loading or unloading cargoes (although these cargoes are only to consist of lumber, naval stores, or other articles of an inflammable nature), was ultra vires. The reservation in the Act of 1790, s. 7, appears to point to "special sufferance and leave" applied for in particular cases. Our opinion, however, on this point becomes in the result immaterial, because we think that the extension of the limits of the port by this proclamation, if originally invalid, has since become valid by a sufficient legislative confirmation and recognition.

2. We are of opinion that mere usage would not, but that recognition by an Act of the Legislature would, be sufficient to give it validity. And this recognition it has, in our opinion, received by the Act No. 14 of 1861, in the construction of which, we think, the words "the port of Hamilton" must throughout be understood according to the definition of that port, contained in the 19th section.

3. We think that it puts the Legislature under no such disability. It appears to us impossible to contend that such an Act could be, or could be supposed by any reason- able person to be. final, and not subject to alteration or modification under altered circumstances of the Colony. We may add, that we see nothing in that Act which can be fairly construed as approaching to a contract by the Legislature with the corpora- tion which came into existence in 1793, or with any purchasers or purchaser of land within the township of Hamilton.

4. We cannot advise that any compensation is payable by the Government to the corporation under the circumstances.

(5.) We think that such is not the duty of the Government, inasmuch as such landing of goods has been authorised by the Act of 1861.

(6) We think that this may properly be done, and it appears to us under the circumstances the best course that can be adopted.

The Right Hon. Edward Cardwell, M.P.

We have, &c. (Signed) ROUNDELL PALMER.

R. P. COLLIER.

7825.

No. 262.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, August 12, 1864. We are honoured with your Lordship's commands, signified in Mr. Layard's letter of the 27th of July ultimo, stating that with reference to our Report of the 24th ultimo (? 24th June*), respecting the alleged abduction of a man named Peter Needham from Canadian soil, he was directed by your Lordship to transmit to us for our perusal a Despatch and its enclosures on this case, which had been received from Her Majesty's Minister at Washington.

+

Mr. Layard was also pleased to state that the previous papers were also annexed for reference if required.

Mr. Layard was further pleased to transmit to us for perusal the papers as marked in the margin, respecting the case of Ira Lee and George Cooper, two American citizens abducted by a Canadian constable from United States territory, and to request that your Lordship might be favoured with any observations which we might have to

offer upon the papers then transmitted.

In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to

Report

That with respect to the case of Peter Needham, we have to observe, in addition to the remarks which we had the honour to offer in our former Report, that we think no further application should be made to the United States Government respecting him, and that regard being had to all the circumstances of the case, no remonstrance need be offered as to the mode by which the United States Government propose to try him.

With respect to the two United States citizens improperly taken on American soil and tried and sentenced in Canada, the course adopted by Lord Monck appears to us very proper, and we are glad to see that it was so considered by Mr. Seward. Lord Monck and Mr. Seward agree that more stringent regulations with respect to these arrests on the frontier of the British and American territories are necessary, and we trust that such measures will be taken without delay as may for the future prevent the recurrence of these cases which lead to delicate questions of international law, and tend greatly to embarrass the Governments of both countries.

The Earl Russell, K.G.,

&c.

&c.

We have, &c. (Signed) ROUNDELL PALMER.

R. P. COLLIER.

&c.

• No. 253.

16978.-505. 25.-9/86.

ROBERT PHILLIMORE.