CO885-(10-11) — Page 750

10578.

PUBLIC RECORD OFFICE

דדווו

Reference :--

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

Provided

that the

vessel be not

intended to

be employed

in the service

2

8. If you have reason to believe that a vessel has actually committed a breach of the 7th section of the statute, then, providing the case be one of emergency admitting of no delay, it will be your duty to detain the vessel until you have communicated with the civil authorities.

9. This power of detention is exercisable in British waters over any private vessel whatever be her nationality.

10. This power is also exercisable on the high seas, not being territorial waters. over British vessels, but over no other vessels.

"

11. It is not exercisable over any vessel in foreign territorial waters.

12. It is not exercisable in any waters over a vessel belonging to the public navy of any foreign power.

13. As soon as you have come to the determination to exercise the power of deten- tion entrusted to you, you will announce the same to her master, and take proper measures to secure the vessel.

14. You will use your own discretion as to whether you will detain the vessel on the spot or bring her into the nearest British port; and as to whether you will take possession of her or allow her to be navigated by her own crew.

15. You will not use force except in the last resort, but you are authorised to use force if you meet with resistance from the vessel, or, if the vessel after having been duly warned pertinaciously attempt to escape to sea.

16. Having secured the vessel, you will forthwith apply to the civil authorities for

instructions.

17. A breach of the 5th section of the statute is committed if any private vessel of whatever nationality enters British waters having on board, or being in British waters takes on board, with or without the knowledge of her master or owner

(1.) Any British subject who anywhere

(2.) Any person of whatever nationality who in British territory or in British

waters

·

has enlisted

or

has engaged to enlist

or

has left Her Majesty's dominions with a view to enlist

in any naval or military capacity in the service of any foreign power.

18. A breach of the 6th section of the statute is committed if the master or owner of any private vessel of whatever nationality in British waters knowingly takes on board any person of whatever nationality-

who has enlisted

or

is engaged to enlist

or

is leaving Her Majesty's dominions with a

view to enlist

in any naval or military capacity in the public service of any foreign power.

19. A breach of the 7th section is committed if a private vessel of whatever nation- ality whilst in British waters be commissioned or he equipped, furnished, fitted out, or armed in order to be employed in the service of a foreign power as a transport, store- ship, or cruizer against any country with which Great Britain is at peace.

But the following acts are not breaches of this section

1. The mere building or putting together the hull of a vessel for whatever purpose, provided nothing be done in the way of equipping, furnishing, fitting out, or arming the vessel.

2. Equipping a merchantman in order that as such she may carry a cargo contra- band of war.

3. Putting on board a merchantman a cargo contraband of war.

4. Equipping a merchantman in order that, as such, she may run a blockade.

A breach of the 8th section is committed if a ship of war or privateer of either

of a foreign belligerent whilst in British waters augments her warlike force, whether by embarking power as a

sailors or soldiers, or by undergoing any warlike equipment, or by taking on board transport, etoreship, or munitions of war.

cruizer.

(Signed)

J. PARKER DEANE. GODFREY LUSHINGTON.

No. 598.

(TRINIDAD.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, September 18, 1869. We are honoured with your Lordship's commands signified to us in Sir F. R. Sandford's letter of the 3rd instant, stating that he was directed by your Lordship to transmit to us copies of a Despatch of the 7th August from the Acting Governor of No. 112,

7 Aug. Trinidad, and of the enclosures thereto, and to request that we would favour your Lordship with our opinion upon the question submitted by the Attorney General of Trinidad.

In obedience to your Lordship's commands we have the honour to

Report

That the question raised by the Attorney General of Trinidad is not free from doubt, but on the whole we are of opinion that the Receiver General of that Island has no power under the Ordinance of December 1860 to refuse to grant a license at his discretion.

There is nothing in the Ordinance itself as to his discretion, and in statutes (at least in Imperial statutes) in pari materia, where the intention is to vest discretion in an officer, it is almost always made clear by the words of the statute itself. In this Ordinance there are various provisions as to the class of persons to whom licenses are to be granted, and it seems to us the most natural inference from the words of the Ordinance that licenses can be obtained by all persons who fulfil the conditions pre- scribed by the Ordinance itself. There is, besides, nothing whatever to restrict "the discretion if it exists, so that if there be a discretion in the Receiver General it is absolute and unfettered and might extend if his contention be correct to the refusal to grant any license whatever. But this is a conclusion which does not seem to us to be reasonable, and we therefore advise your Lordship that the Receiver General of Trinidad has not the discretion he claims.

We have, &c. (Signed)

The Right Hon. Earl Granville, K.G.,

&c.

0 14278-118.

&c.

95.-5/86.

&c.

R. P. COLLIER J. D.

COLERIDGE.

Page 750Page 751

10693.

PUBLIC RECORD OFFICE

Reference :-

6

། ༴།། །། mumimimC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

No. 599.

(Hong KoNG.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, September 23, 1869. We are honoured with your Lordship's commands signified to us in Sir Frederic Rogers' letter of the 14th instant, stating-1st. That he was directed by your Lord- ship to transmit to us extracts from a Despatch of the 5th July from the Governor of Hong Kong, and a report of the Attorney General of the same date accompanying that Despatch, and he was to call our attention to the paragraphs 6 to 21, inclusive, of that report.

2. That Sir F. Rogers was also pleased to enclose a copy of the Local Ordinance No. 8 of referred to by the Attorney General, and was to request that we would favour your 1865. Lordship with our opinion whether the right to institute and conduct a private prose- cution existed at Hong Kong, or whether the Attorney General was a public prosecutor in the sense of an officer in whom was vested the prerogative of conducting all criminal trials to the exclusion of private prosecutions.

In obedience to your Lordship's commands, we have the honour to

Report

That it does not appear to us that the 4th section of the Ordinance of Hong Kong 3, 1865 imposes upon the Attorney General of that Colony the duty of acting as public prosecutor in the sense of conducting criminal cases in the Supreme Court. Indeed, the 15th and 16th sections of the same Ordinance appear in their terms inconsistent with any such construction of the 4th section, for they speak of the "prosecutor" and of the "prosecutor or his attorney," whereas if the Attorney General had been the prosecutor it is clear that the Attorney General would have been named.

Your Lordship does not invite and we therefore do not feel called upon to express any opinion on the claim of the Chief Justice to command the attendance and assis- tance of the Attorney General of the Colony, nor on the conduct of the Chief Justice generally.

The Right Hon. Earl Granville, K.G.

We have, &c.

(Signed)

R. P. COLLIER.

J. D. COLERIDGE.

o 16978.-119. 25.-5/86.