CO885-(10-11) — Page 392

2981.

PUBLIC RECORD OFFICE

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C.O. 885

Reference :--

10 PUBLIC RECORD OFFICE, LONDON

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No. 320. (FALKLANDS.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, March 28, 1865.

We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 18th of March instant, stating that he was directed by you to request that we would favour you with our opinion upon the following case.

On the 31st of July 1849 the Governor of the Falkland Islands made known by proclamation that the purchasers of certain quantities of rural land would have the option of leasing adjacent land to the extent of 6,000 or 10,000 acres.

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That in the year 1853 an Ordinance (No. 11 of 1853), called the "Summary Jurisdiction Ordinance," was passed by the local Legislature, the 37th section of which provided, "That if any person until the 1st day of January 1860, without being "authorised by the Falkland Islands Company or their agent, or after that period "without the permission of the Governor in writing, shall without lawful cause hunt, wound, capture, or destroy any wild cattle, pigs, goats, or horses in the Falkland Islands he shall for each animal so killed, wounded, captured, or destroyed, pay a "fine not exceeding twenty pounds, and any person who shall receive such animal "or any part thereof, knowing the same to have been so unlawfully captured and "found destroyed, shall pay a fine not exceeding five pounds;" and any person committing any offence contrary to this section may be taken into custody without a warrant by the said agent or by any constable, and may be detained until he " can be brought before a justice to be dealt with according to law, and such agent or constable may also stop, search, and detain any boat in or upon which there "shall be reason to suspect that such animal or any part thereof so unlawfully "obtained may be found, and if upon search thereupon made such animal or any portion thereof shall be found, then to convey the same before a justice, and to take into custody and carry before a justice any person reasonably suspected of having "committed any offence contrary to this section."

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That on the 14th of February 1860 the Governor of the Falkland Islands conveyed to the Falkland Islands Company (upon purchase by them at public auction) certain Crown lands; and on the 16th of the same month he granted to the company under That these grants the proclamation of the 31st of July 1849 leases of 40,000 acres. and leases were in July 1864 held by the Judicial Committee of the Privy Council to have conveyed the right of capturing and killing cattle on the lands so granted and leased.

That by proclamation dated the 5th of April 1861 the Governor prescribed con- ditions subject to which occupiers of land under the proclamation of 1849 and other persons might obtain licenses to capture or kill wild animals.

That in 1861 the company's agent obtained licenses to kill a limited number (400) of wild cattle, but reserved the company's right to kill wild animals trespassing upon their leased and purchased lands. That he did not proceed at once to exercise this right.

That on the receipt of advices from England he proceeded to kill cattle on the company's leased and purchased lands, either after the expiration of the above licenses or beyond the limits to which those licenses applied. That he was thereupon prosecuted, and being convicted by the proper court under the above cited clause of the Summary Jurisdiction Ordinance was condemned in a fine of 1,0801. (201. a head on the cattle killed) and costs, 111: 88. 2d.

That the costs were paid by the agent and 2501. on account of the fine, the remainder of which was remitted by the Duke of Newcastle.

That from this decision the company appealed to the Queen in Council.

That on the 23rd of June 1863 the Judicial Committee of Privy Council (a copy of whose judgment was annexed) consented to entertain the appeal, but remarked that they did so only with the object of determining the question of right involved and not with the object of reversing what was in form a criminal sentence.

That on the 23rd of July 1864 in another judgment, of which a copy was annexed, the Judicial Committee decided upon the appeal that the grants made by the Governor of the Falkland Islands to the Falkland Islands Company in February 1862 and their attendant leases had conveyed the right (in the absence of any reservation

0 16978.-580. 25.-2/86.

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