CO885-(13-15) — Page 351

PUBLIC RECORD OFFICE

TUC.O. 885

Reference :-

14 PUBLIC RECORD OFFICE, LONDON

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

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First Instance, even although it was admittedly erroneous in itself and was also subsequently set aside upon appeal according to due and proper course of law, did not suffice to found any claim for compensation as of right from the country whose tribunals had committed the error.

That such a decision might however very well afford ground upon which to base a moral claim which Her Majesty's Government would be disposed to recognize, for reasonable compensation as an act of grace.

That it would be observed that the report of the late Law Officers in no way conflicts with this view, and indeed the opinion expressed by them that it was "desirable that "the amount of such compensation should be settled by the direct action of Her "Majesty's Government without recourse to legal proceedings" tended to indicate that in their view also the action of the Newfoundland authorities gåve the owners and master of the "Howard Holbrook" a moral claim to compensation as an act of grace, rather than a legal claim thereto as matter of right.

That your Lordship would be glad to know whether the views expressed in Mr. Bertie's letter met with our concurrence, and we were also requested, in taking the papers into our consideration, to favour your Lordship with our opinion generally upon the present aspect of the case, and as to the course to be now pursued with regard to it by Her Majesty's Government.

Mr. Bertie further requested us to furnish your Lordship with such more detailed observations and criticisms on the correspondence generally and on Judge Prowse's report in particular, as we thought might be of assistance to your Lordship in dealing with the matter.

We have taken the papers into our consideration, and in obedience to your Lord- ship's commands, have the honour to

Report-

That the offence with which the master of the " Howard Holbrook" ought to have been charged, was having in his possession a quantity of bait fish for the purpose of exportation without a license (sec. 1. sub-seos. (2) and (5) of the Act of 1889, chap. VI.).

The information was for having more than allowed by the license, and the conviction is for an offence in the latter form.

We are of opinion that the latter description of the offence was substantially correct, but Mr. Justice Little seems to have come to the conclusion that because a fee was charged for the license (which was apparently unauthorised) and because there was no proclamation under section 4 of the Act of 1889. C. VI., that no offence against the Act was committed. In other words, that under the license in fact granted, the master might take any quantity of fish he liked, and for any purpose he liked, without infringing the Act.

We cannot agree in this view. But it is obvious that the Newfoundland authorities are themselves to blame for the complication which has arisen. If they had followed the fourth and fifth (amongst other) sections of the Act of 1889, there would have been -no difficulty, and the affidavit contemplated by section 5 would have fixed the purpose for which the bait fish were required, and the proclamation, under section 4 would have fixed the quantities proper for the purpose of exportation.

Mr. Justice Little further decided that the conviction was bad, because it adjudged penalties not authorized by the statute. We think that in this respect, Mr. Justice Little was right and that the conviction was properly quashed.

Although, therefore, we are unable to agree in Mr. Justice Little's view of what

may

be called the merits of the case, we think the conviction by the Magistrate was in the respect indicated erroneous.

But as to the merits of Mr. Justice Little's judgment it is to be borne in mind that it stands as the judgment of a judge of the Superior Court from which, as we under- stand, there is no appeal.

pro-

In these circumstances, although it is not to be taken that every unsuccessful secution entitles the person prosecuted to compensation, we do not desire, at this stage of the proceedings to contravene the view of our predecessors, that the case is one in which it may be desirable to pay moderate compensation.

We think our predecessors in office had not before them the facts as fully as we have, and assuming those facts to be as set out in the Report of Judge Prowse, and in the accompanying papers, we think the conduct of the master of the "Howard Holbrook "highly reprehensible.

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There seems to be no doubt that the bait was intended for exportation, that he knew that he was receiving a much larger quantity than the terms of license permitted, that he bribed an officer of the Government in order to obtain such quantity, and that he resorted to contrivance to conceal the fact.

Assuming that moderate compensation is to be given, we think that the criticisms of Judge Prowse upon the claim are well founded, and that the figures he suggests would represent ample compensation.

We think it not improbable that our predecessors, if they had had all the facts before them, might have thought that no compensation should have been paid, and if the case came before us for the first time that would have been our own view, but having regard to the irregularities on the part of the Newfoundland authorities, we think the better course is that above suggested, but care should be taken not to admit that compensation is given as a matter of right,

The amount paid for the license ought to be returned.

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

&c.

&c.

&c.

We have, &c. (Signed) C. RUSSELL.

JOHN RIGBY.

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