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(3.) Joint Opinion of the Attorney and Solicitor General, Sir Samuel Shepherd and Sir Robert Gifford, as to the Jurisdiction of Hie Superior Court of New South Wales, in case of Persons not resident within the Territory; and as to the disability to sue of Prisoners convicted of Felony.
Serjeants' Inn, May 13, 1818.
My Lord,—We have had the honour to receive your Lordship's letter of the 4th of May, transmitting to us the copy of a letter which has been addressed to your Lordships' under-secretary by the Judge Advocate and Judge of the Supreme Court of the colony of New South Wales, inclosing a case for consideration, viz.: whether, by the present charter of justice under which the courts of civil jurisdiction are established in the colony, any person can sue or be sued therein, unless he be resident within the territory or its dependencies at least at the commencement of the action, as also whether convict prisoners, even though in the employ of Government, cannot sue and be sued in the courts there under the general terms of the legal charter; and your Lordship is pleased to request that we will take the same into consideration, and report on the cases in question.
We have the honour to report to your Lordship, that by the present charter of justice under which the courts of <civil jurisdiction are established in the colony, it is necessary that the person sued should be resident within the territory or its dependencies at the commencement of the suit, but we do not think it is necessary that the party suing as plaintiff should be so resident, the restriction with respect to residence not applying to them; and the provisions of the statute 54 Geo. 3, c. 15, fortify us in this opinion. We think that prisoners convicted of felony, even though in the employ of Government, cannot sue in the courts of the colony; for, though the words of the charter are general, "any person or persons," yet we think they must be taken to mean any person or persons capable of suing, and felons convict are not so capable; but though they cannot be plaintiffs in a suit, they may be sued as defendants, since they cannot take advantage of their own disability.
(4.) Joint Opinion of the Attorney and Solicitor General, Sir John S. Copley and Sir Charles Wetherell, on the Foreign Enlistment Act, 59 Geo. 3, e. 69.
Serjeants' Inn, October 13, 1825.
My Lord,—We have had the honour to receive your Lordship's letter of the 30th ultimo, stating that his Majesty's Government having received such information as induces them to believe, that some of his Majesty's natural-born subjects, at present resident in this kingdom, have either enlisted or intend to enlist themselves to serve against the Government of Turkey, in the war at present carrying on in various parts of Greece; and it being deemed expedient that measures should be taken to prevent this violation of the law, your Lordship was pleased to request our attention to the questions which your Lordship proposed to us with reference to that subject, and which questions are stated in the following terms:—
Supposing that any person, while resident in England, should either enlist, or agree to enlist, in the service of the Greeks, or should accept a commission as an officer or commander of a privateer in that service, or should contract to go to Greece with an intent to serve in the military operations of that country either by sea or land, or should hire persons to enter into such service; and supposing, further, that in the prosecution of any such engagement or design, such a person should arrive at Malta or Gibraltar, could he be prosecuted and tried in the superior courts of criminal jurisdiction at those settlements, or must he be sent for trial to England? If the trial might lawfully take place at Malta or Gibraltar, are the civil authorities there to proceed precisely in the same manner as in the ordinary administration of justice they would proceed on the trial of any other offenders; or is any particular mode of proceeding required by the statute? Or if, on the contrary, the trial is to take place in England, in what method are the civil authorities in Malta or Gibraltar (where the office of justice of the peace is unknown) to proceed for the apprehension of the offender, and what measures may they lawfully take for sending him to England?
In the case already supposed, would it be competent to the civil authorities at Malta or Gibraltar, in pursuance of the statute 59 Geo. 3, cap. 69, to arrest or detain the vessel in which any such offender might arrive at those settlements; and is any particular course of proceeding to he ohserved for the purpose of effecting such arrest or detention; or are the supreme courts of justice to proceed for the arrest or detention of the vessel, in the same manner as in other ordinary causes, where vessels may be seized in those settlements under judicial process? And in what manner is the vessel to be disposed of after she had been thus seized and detained?
And your Lordship requested that we would report to your Lordship, for his Majesty's information, our opinion upon the questions thus proposed to us at our earliest convenience.
In obedience to your Lordship's request, we beg leave to report, for the information of his Majesty, that if any person, while himself in England, should enlist or agree to enlist in the service of the Greeks, or should accept a commission as an officer or commander of a privateer in that service, or should contract to go to Greece with an intent to serve in the military operations of that country either by sea or land, or should hire persons to enter into such service, such offences would be complete in England, and could only be tried here; and that if such a person should arrive at Malta or Gibraltar in the prosecution of any such engagement, he could not, we think, be tried in those settlements for any of the offences above enumerated. In the same section, however, of the statute, it is enacted that if any natural-born subject of his Majesty shall without leave, &c., go to any place beyond the seas with intent to serve in any warlike or military operation, whether by land or sea, in the service, &c., he shall be deemed guilty of misdemeanor. We conceive, therefore, that if any of the above-mentioned persons should, in the prosecution of their engagements, touch at Gibraltar or Malta, places beyond the seas, they would, under this part of the section, commit an offence for which they might be tried at such places; for they would have gone to those places with intent to serve in the military or naval operations of the Greeks.
No person offending against the Act could in any case be sent for trial to England.
No particular mode of proceeding is required by the statute. The civil authorities in the above-mentioned settlements must proceed in the same manner as in the ordinary administration of justice against other offenders guilty of what in the law of England are usually styled misdemeanors—that is, offences punishable by fine, or imprisonment, or both.
Though the office of justice of the peace may be unknown in Gibraltar and Malta, yet if, for offences of this class—that is, offences punishable in the manner above-mentioned—parties may be arrested and held to bail, the same course of proceeding may be adopted under this Act.
We have already stated that offenders against this Act cannot be apprehended and sent to England.
We are of opinion that any vessel which should arrive at Gibraltar or Malta, having any such offenders on board, might be lawfully detained and prevented from proceeding with such persons on her voyage. The vessel can only be detained for this purpose, and if the commander should put the offenders on shore he would be entitled immediately to proceed upon his voyage. But as long as the persons continued on board it would be lawful to detain the vessel. Authority is given for this purpose to the principal officers of his Majesty's customs, if there be any such; and, if not, then to the Governor or person having the chief civil command. There must be an information upon oath to justify the detention, and such information must also state the facts upon which the knowledge or belief of the informer is founded. The officers who may be called upon to act upon this clause of the statute must be particularly directed strictly to conform to its provisions.
In a subsequent section (the 7th), authority is given to seize and condemn the vessels therein described, viz.:—vessels fitted out as transports or storeships, or cruisers for the service, or in aid of any foreign power, &c. The mode of proceeding in the seizure and condemnation of any such vessel, and the tribunal by which the adjudication is to be made will be the same as where a vessel is seized and condemned for any forfeiture incurred under the laws of customs or excise, or the laws of trade and navigation. The seizure may be by any officer of his Majesty's customs or excise, or any officer of his Majesty's navy who is empowered to make seizures for forfeitures incurred under the laws above-mentioned. The officers who may be required to act upon this section of the statute should also be directed to attend carefully to its provisions.
J. S. Copley.
(5.) Joint Opinion of the King's Advocate, Sir Herbert Jenner, and the Solicitor General, Sir N. C. Tindal, as to whether Slaves escaping to a Foreign Territory could be brought bach to a Colony to be there dealt with as Slaves.
Doctors' Commons, May 30, 1829.
Sir,—We are honoured with your letter stating that during the last autumn three slaves belonging to the Bahama Islands obtained possession of a boat in which they effected their escape to Cuba. On their arrival at Cuba, they were seized by the authorities at that island and placed in confinement. The commandant of the port of Remedios, in Cuba, reported this transaction to the Governor of the Bahama Islands, offering to restore the slaves to their owners in that colony upon payment of the expenses which had been incurred. The Governor has applied for instructions for his guidance on this occasion, and has expressed a doubt whether, if the slaves were restored, they could lawfully be brought back to the Bahamas, there to be dealt with as slaves.
And you are therefore pleased to desire that we would report our opinion, whether these slaves could lawfully be brought back from Cuba to the Bahama Islands for the purpose, and with the intention, of dealing with them as slaves in those islands upon their return.
In obedience to your commands, we have the honour to report that we think, that these slaves, having made their escape from the Bahamas to a colony under foreign dominion, cannot, with reference to the provisions of the statute 5th Geo. 4, c. 113, be legally brought back into any of the territories or dominions belonging to his Majesty, there to be dealt with as slaves.
Right Hon. Sir George Murray, Herbert Jenner.
&c. &c. &c. N. C. Tindal.
(6.) Joint Opinion of the Attorney and Solicitor General, Sir John Campbell and Sir R. M. Rolfe, as to jurisdiction over offences committed in Territory outside of the Gates of Gibraltar.
Temple, July 23, 1838. My Lord,—We have had the honour to receive your Lordship's letter of the 14th instant, transmitting to us various papers relating to the question, how far the courts established in Gibraltar are