CO885-(11-13) — Page 676

11,076.

PUBLIC RECORD OFFICE

Reference :-

། ། ། ། །

C.O.

885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH—NOT TO

MY LORD,

No. 44.

(NEW SOUTH WALES.)

LAW OFFICERS to COLONIAL OFFICE.

WE were honoured with your Lordship's commands, signified in Mr. Bramston's

Royal Courts of Justice, June 23, 1885. letter of the 11th of March last, stating that a question had arisen at Sydney, New South Wales, as to the right of the mail steamers of the Messageries Maritimes Company to exemption from search by the Customs officers of the Colony :

That the steamers, which also were regular traders carrying cargo and passengers for hire, were subsidized by the Government of the French Republic for the carriage of mails, and that the French Consul claimed that they were exempt from search under Article 5 of the Convention (of which a copy was enclosed) dated 24th September 1856:

That that Convention had not been the subject of legislation in England or in the Colony of New South Wales:

That a copy of a memorandum by the Colonial Secretary of the Colony, stating the case more at length, and of an opinion on the subject by the Colonial Attorney General, were enclosed for convenience of reference.

That Mr. Bramston was to refer us to the case of the "Parlement Belge" (5 P. D. 199), where it was decided that the immunities of Foreign Public National ships were not forfeited by reason of their also carrying merchandize and passengers for hire; and to a report in reference to that case, made upon the 23rd of April 1880* to the Foreign Office by the then Law Officers of the Crown; that a copy of that report would be found at page 17 of the accompanying confidential print of cor- respondence respecting the privileges of mail steamers, 1880-84 :

That Mr. Bramston was to request us to be good enough to take those papers into our consideration, and to favour your Lordship with our opinion:

1. Whether, in the absence of any legislation confirming the Convention of September 24th, 1856, the vessels of the Messageries Maritimes could, in New South Wales, claim the immunities of vessels of war.

2. If so, whether the Attorney General of the Colony was correct in his opinion that such vessels were nevertheless subject to search, either by virtue of section 52 of 39 & 40 Victoria, Chapter 36, or on the other grounds stated in his opinion. That Mr. Bramston was also to state that your Lordship would be pleased to receive any observations upon the subject generally that might occur to us. In obedience to your Lordship's commands we have the honour to

Report

That the Convention of September 24th, 1856, has already caused much embarrass- ment, and the question raised in this case is one of considerable difficulty. We think the Convention would not of itself, and in the absence of legislation by the competent authority, justify the doing or omitting any act which the law prevailing in any part of Her Majesty's dominions would otherwise require to be there abstained from or done.

We think that the Attorney General is right in considering that Section 52 of the Imperial Act of the 39 & 40 Victoria, chapter 36, warrants the enforcement of Customs regulations therein enacted, notwithstanding the Convention. But it is to be observed that that section applies only to vessels enterrng a port of the "United Kingdom." We rather gather that the view taken by the Attorney General is that if, consistently with the Convention, mail steamers may be treated in the manner prescribed by that section in the United Kingdom, they may be so treated in any

A 15927.-29. 35.-12 85.

No. 219 in Miscellaneous No. 51.

2

part of Her Majesty's Dominions. We doubt whether this would be safe ground to rest upon. But if, as seems probable, there is some Customs Act of the Colonial Legislature the terms of which would be sufficient to include ships of war, we think the same reasoning would apply, and that the enactment might, consistently with the Convention, be applied to mail steamers.

The Right Hon. the Earl of Derby, K.G.,

&c.

&c.

&c.

We have, &o,

(Signed) (Signed)

HENRY JAMES. FARRER HERSCHELL

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