Mallet to Under-Secretary of State

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 of 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:

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 or 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 Her 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:

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 the 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 Act 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 and 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 doubtful 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 of 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 Act should only be given on this distinct condition.