Mallet to Under-Secretary of State
Office of Committee of Privy Council for Trade
13 November 1867
I am directed by the Lords of the Committee of Privy Council for Trade to acknowledge the receipt of your letter of the 26th ultimo transmitting, by direction of the Duke of Buckingham for the consideration of this Board a copy of a Despatch from the Governor of British Columbia, enclosing an ordinance of the recent session of the Legislature ofthatManuscript image that Colony together with the Report of the Attorney General upon the measure.
In reply I am to request that you will lay the following observations before His Grace:
The 163rd clause of 16 & 17 Vic. c. 107 (Customs Consolidated Act) provides that,
No Goods or Passengers shall be carried from one part of any British Possession in Asia, Africa, or America to another part of the same Possession except in British Ships.
The 190th clause declares that:
AllManuscript image
All Bye Laws, usages or customs, at this time or which hereafter shall be in practice, or endeavored or pretended to be in force or practice in any of the British Possessions in America which are in any wise repugnant to this Act or to any Act relating to the Customs or to Trade and Navigation so far as the same shall relate to the said possessions, are and shall be null and void to all interests and purposes whatsoever.
The 328th section provides that:
If the Legislature orproperManuscript image proper legislative authority of any of the British Possessions abroad shall present an address to Her Majesty, praying Her Majesty to authorize or permit the conveyance of Goods or Passengers from one part of such possessions to another part thereof in other than British Ships, or if the Legislatures of any two or more Possessions which for the purposes of this Act Her Majesty in Council shall declare to be neighbouring Possessions shall present addresses or a joint address to Her Majesty, praying HerMajestyManuscript image Majesty to place the Trade between them on the footing of a Coasting Trade or of otherwise regulating the same so far as relates to the Vessels in which it is to be carried on, it shall thereupon be lawful for Her Majesty, by Order in Council to authorize the conveyance of such goods or Passengers or so to regulate the Trade between such Neighbouring Possessions as the case may be, on such terms and under such conditions as to Her Majesty may seem good.
The 15th Sec. of 20 & 21 Vic c. 62 declares that:
WhereasManuscript image
Whereas doubts have arisen whether the several sections of 'The Customs Consolidation Act of 1859' other than those containing particular provisions relating thereto, as also the 'Supplemental Customs Consolidation Act of 1855' are applicable to the British Possessions abroad. Be it enacted that the said recited Acts, and the several clauses therein and in this Act contained shall, and the same are hereby declared to extend to and be of full force and effect in the several British Possessions abroad except where expressly otherwise provided for by thesaidManuscript image said Act or limited by express reference to the United Kingdom or the Channel Islands, and except also as to any such possession as shall by local Act or ordinance have provided or may hereafter with the sanction and approbation of Her Majesty and Her Successors make entire provision for the management and regulation of the Customs Trade and Navigation of any such Possession or make in like manner express provisions in lieu or variation of any of the Clauses of the said ActforManuscript image for the purposes of such Possession.
The legal effect of these several Clauses appear to My Lords to be somewhat obscure. The Coasting Trade of the Colonies is absolutely closed against Foreign Ships by the 163rd section of 16 & 17 Vict. c. 107 while the 328th section of that Act provides a means of opening it, but these means have not been made use of in the present case. The Colonial Authorities relying on the provisions of the 15th sect. of 20 & 21 Vict. c. 62.
The meaning andeffectManuscript image effect of this last section is not very clear. From the form of language adopted it might be inferred that it was intended not to exempt from the operation of the previous Acts, cases which undoubtedly were within its provisions, but to make it clear that certain clauses as to which there was doubt, were to apply to the Colonies unless steps were taken by the Colonies to exclude their operation. If such were the case the power given to the Colonies to exclude the operation of the previous Act would apply to those Parts only of that Act, the operation of which was doubtfulandManuscript image and not to clauses such as the 163rd about which there could be no doubt; but on the other hand the terms of the concluding part of the clause are so wide that it may fairly be argued by the Colonial Authorities that they would comprehend every section of the former act.
In pointing out these legal questions for the consideration of the Duke of Buckingham I am to express at the same time the entire concurrence of this Board in the policy of the present Ordinance in providing for the opening oftheManuscript image the Coasting Trade of the Colony, even to the limited extent contemplated, and their regret that the Legislature of British Columbia is not prepared to open it altogether.
My Lords assume that in the event of the exercise of the power conferred by this Ordinance on the Governor, Foreign Ships without any distinction of flag would be in all cases admitted to the Trade in question, but they would suggest that the sanction of Her Majesty to this ActshouldManuscript image should only be given on this distinct condition.
I have the honor to be,
Your obedient Servant
Louis Mallet
Minutes by CO staff
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CC 14 Nov
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Sir F. Rogers
This question whether Colonial Legislatures can by ordinance admit foreign bottoms into their coasting trade seems to me important enough to justify a reference to the L. Officers. The question is purely legal, & is by no means free from doubt.
I have drafted a case for the Law Officers in case it should be thought desirable to refer to them.
HTH 15/11
Other documents included in the file
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Rogers to Attorney General and Solicitor General, 22 November 1867, calling for their opinion on the controversial clauses of the ordinance.
Minutes by CO staff
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The B. of T. have sent us lately a proposal to repeal clauses 163 & 328 of the Customs Conn Act.
FR 16/11
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Sir F. Rogers
I have added a paragraph with reference to the last letter of the B of Trade in which a repeal of the clauses in the Imp Act is suggested.
HTH 19/11