CO885-(13-15) — Page 276

1111 C.O. 8

885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE | BE REPRODUCED PHOTOGRAPHIC- |

Government of the Queen, and cannot, within the meaning of the Proclamation, be regarded as a party other than the Crown.

Both departments agree that the question turns on the meaning of the words of the Proclamation of 1888" belonging to parties other than the Crown.' contend that the treasure may belong to the Crown, either in its private or public But the Admiralty capacity, and that the treasure of the Crown in its public capacity must be construed to mean/in a Proclamation issued at the seat of Government and containing no refer- ence to the Colonies Treasure available for Imperial purposes only.

The Attorney and Solicitor-General are requested to advise :

If freight is payable on the treasure in question.

Opinion.

We are of opinion that the contention of the Colonial Office is correct.

We think the words "the Crown" in the Proclamation of the 10th August 1888 are equivalent to "for the public service on behalf of the Crown," and that the Govern- ment of a Crown Colony is. for the purpose of this part of the Proclamation, the Crown.

Royal Courts of Justice,

15th March 1892.

(Signed)

RICHARD E. WEBSTER. EDWARD CLARKE,

6536.

MY LORD,

No. 9.

(NEWFOUNDLAND.)

LAW OFFICERS to FOREIGN OFFICE.

Royal Courts of Justice, March 17, 1892. We were honoured with your Lordship's commands signified in Sir Thomas Sanderson's letter of the 19th ultimo, stating that he was directed by your Lordship to transmit to us the papers noted in the margin* relative to a representation made by the United States Minister at this Court respecting the claim of Messrs. Oakes and Foster, United States citizens, of Gloucester, Massachusetts, for 7,232 dol. 42 c. on account of the illegal seizure and detention of their fishing schooner "Howard Holbrook" by the Colonial authorities of Newfoundland.

That it appeared from Mr. Lincoln's note and the other papers that the "Howard Holbrook "sailed on the 22nd April 1890, on a voyage to the fishing-grounds off the east coast of Cape Breton Island, and arrived on the 30th of that month at

St. Jacques, Newfoundland, where a bait licence was procured, for which Pinelli Dominique, the master, paid 92 dollars.

That on the same day the vessel proceeded to take bait-fish on board, which was shipped under the supervision of the captain of the Government vessel belonging to the Bait Protection Service.

That on the following day (the 1st May) the " Howard Holbrook by the master of another vessel, in the service of the Newfoundland Government, was boarded the "Fiona," who, after examining the amount of bait on board, seized her, on the ground that she was in possession of more bait-fish than was allowed by the license aforesaid.

That Pinelli Dominique, the master of the "Howard Holbrook,

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on a warrant issued by the stipendiary magistrate, on the complaint and information was also arrested of one James McGrath, of the Bait Protection Service.

That he was taken on board the "Fiona," and thero tried, where the following judgment was pronounced by the stipendiary magistrate upon him:-

"That the said defendant, for his said offence, do pay a fine of 500 dollars, or, in default, be imprisoned in Her Majesty's gaol at Harbor Breton for three months; to forfeit the penal amount of his bond and also his license; and that the said vessel, the * Howard Holbrook,' on board of which said herring have been found to be unlawfully shipped, with the herring so taken, in violation of the provisions of the said Bait Act, shall be confiscated and sold."

That subsequently the owners of the Howard Holbrook" made a deposit of 5,000 dollars, by way of security to abide the result of an appeal to the Supreme Court of Newfoundland, and that the master and his men were released. That in the meanwhile, however, the voyage of the vessel was stated to have been broken up, and a great loss occasioned to the owners, as shown in the documents enclosed in Mr. Lincoln's letter.

CA

That it appeared from the judgment of Mr. Justice Little, in the Supreme Court on Circuit of Newfoundland, enclosed with the Colonial Office letter of the 10th February, that the result of Messrs. Oakes and Foster's appeal was as follows:-

That the Newfoundland Bait Act of 1889, in section 1, made the issue of a license obligatory, but that it did not enjoin the levy of a fee, nor authorise any limita.ion in the license as to the amount of bait fish to be obtained.

That no sufficient legal sanction could be pleaded in support of the imposition of those two latter conditions, which had been simply laid down by circular instructions forwarded to the officers of the Bait Protection Service in a letter signed by the Colonial Secretary (vide Memorandum of Instructions relative to carrying out the provisions of the Bait Act of 1889, dated Colonial Secretary's Office, St. John's, April 9, 1890. Enclosure 1 in Colonial Office letter of the 8th February 1892).

That the Court held that that was not the intention of the Act, and that regulations of that kind should have been enacted by Proclamation; and that, consequently, the master of the "Howard Holbrook," having complied with the law in obtaining a licence, was wrongly prosecuted for having any excess of fish on board, and should not have been charged a fee in respect thereof.

A

• Mr. Lincoln, April 13, 1891; Colonial Office, January 4, February 8 and 10, 1992.

70451.-11.

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