The following important decision as to the applicability of this act to colonial registered vessels was pronounced by the full Court on Monday last.

Matter Of Deedo Late A Seaman On Board The Ship Strathisla

On the last day of last term, cause was shown against a rule nisi for a mandamus, to be directed to Henry Macdermott, Esq., one of her Majesty's Justices of the Peace in and for the City of Sydney; commanding him to hear and determine a summons exhibited by Deedo, late a seaman on board the ship Strathisla, against the owners of that vessel, for the recovery of wages claimed to be due to him, to an amount not exceeding �20. The Justice refused to adjudicate, on the ground of want of jurisdiction.

The Strathisla was a colonial registered vessel, of 387 tons, and owned by resident merchants, Sydney. The applicant had hired himself to serve as a seaman on board the vessel from Batavia to any port or ports in the Indian Islands, and to the port of Sydney; there to be discharged. The vessel having returned to her home port and been discharged, Deedo summoned the owners for his wages, under the Act 5 and 6 Wm. IV., c: 19.s. 16, which gives jurisdiction to decide on claims to an amount not exceeding �20 for seamen's wages, to any Justice, in any part of Her Majesty's dominions, residing near to the place where the ship shall have ended her voyage, cleared at the Custom House, or discharged her cargo, or near to the place where the master or owner, upon whom respectively the claim is made, shall be or reside. By the 54th section of the same Act, it in enacted that that Act " shall not extend or apply to any ship registered in or belonging to any British colony having a Legislative Assembly, or to the crew of any such ship, while such ship shall be within the precincts of such colony, anything hereinbefore contained to the contrary notwithstanding ".

By the Local Act of the Governor and Legislative Council, 7th Victoria, No. 21, entitled. "An Act to amend an Act, entitled an Act for the further and better regulation and government of seamen within the colony of New South Wales and its dependencies, and for to establishment of a Water Police," - and further to amend the law relating to the government of seamen in the merchant service," which was passed on the 23rd December, 1843, after reciting by the 17th section, that " it is expedient to remove doubts as to whether the statute 5 and 6 William IV., c. 19, be now in force in the colony of New South. Wales;" it is in the gross " Declared and enacted: that that Act is and shall be in force and operation in this colony " Notwithstanding this declaratory enactment of the Local Legislature, the Justice below refused to adjudicate on the claim, being of opinion that the 54th section of the recited Act deprived him of all power of adjudication.

It could not be disputed but, for the 54th section of the English statute, which is popularly called Sir James Graham's Act, the Justice below would have had jurisdiction to adjudicate upon this seaman's claim ; that section, however, having expressly enacted that the statute shall not apply to any ship registered in or belonging to any British colony " having a Legislative Assembly," one question presented for our determination was, whether for the purposes of that enactment the legislature of this, as a British colony, must not now be held to be a Legislative Assembly within the intent and meaning of Parliament, and consequently that the Justice below had no jurisdiction.

Until the passing of the statute 5 and 6 Vic., c. 76, establishing the present Legislative Council, composed as it is of twelve nominees of the Crown, and twenty-four elected representatives, this colony could not be said to possess a Legislative Assembly, according to the constitutional meaning of that description of Legislative body. It is to be observed that the 64th section of the Act does not say " having a House of Assembly " but " having a Legislative Assembly. " The former has a definite meaning, as a body of popular representatives, analogous to the House of Commons, distinct from Councillors appointed by the Crown. By the new legislative constitution for this colony, the distinct elements, which form the Legislatures of other colonies, are amalgamated into one body, for the same common purpose of ordaining laws for the welfare and good government of the people. In common parlance, as well as for all practical purposes, when their elements are congregated together, they form a Legislative Assembly. In name, it is true, they are called a Legislative Council; but in substance and fact they are a Legislative Assembly. By 5 and 6 Vic., c. 76, did Parliament mean to confer something more of political power on the people of this colony for the purpose of local legislation, that was imparted by the statute 9 Geo. IV, c. 83 ? If it did, what was the meaning and intent of the concession? The 22nd section of that Act, acknowledging the necessity of devolving upon persons resident in the colony, the power, under proper restrictions, of making laws and ordinances for the welfare and good government of the colony, recites, " And whereas it is not at present expedient to call a Legislative Assembly in either of the said colonies," - and then proceeds to constitute a Council of nominees of the Crown, not exceeding fifteen, nor less than ten. If it was inexpedient then to call a Legislative Assembly, what has Parliament now done by the statute 5 and 6 Victoria, c. 76 ? It has in fact, called together twenty-four elective representatives of the people, and has associated with them twelve nominees of the Crown, who, but for this arrangement, would have been a separate body as a Council, in like manner with some other colonies. In name, they are properly called, when assembled together, a Legislative Council; but in fact, they are a Legislative Assembly. The establishment of a Legislative Council so constituted, appears to us to satisfy the meaning of the 54th section of Sir James Graham's Act, when it speaks of a Legislative Assembly, that is, an Assembly in which popular representatives are collected, armed with full powers of local legislation: If the Act had said, " having a House of Assembly," there might have been a difficulty in holding that our present Council; with its conjoined elements, answered the meaning of the Parliament it must be taken, that the Act contemplated colonies which had not, within themselves powers of legislation with popular elements, adequate to the satisfactory enactment of local laws for the welfare and government of Her Majesty's subjects. This view of the question seems to be somewhat fortified by bearing in mind the date of Sir James Graham's Act, and the date of that for the government of New South Wales. The former was passed on 30th July, 1835 ; and the latter on the 30th July, 1842 ; and Parliament may be fairly supposed to have in view, that the constitution of the New Legislature for New South Wales, would except the colony out of the operation of the Seaman's Act. Taking, therefore, that the Legislative Council of this colony may be regarded as synonymous with a Legislative Assembly, with power to adopt or reject Acts of Parliament which are in force in other parts of the British Empire; the second difficulty which arises in this case, is ; as to the mode in which the power has been exercised. The Local Act, 7 Vic., No. 22., sect. 17, has, without discriminating what parts of Sir James Graham's Acts are, and what are not, applicable to the colony, in the gross declared and enacted that the whole act shall be in full force and operation in the colony. Now, there are several clauses which are wholly inapplicable to the colony, such as those which relate to parish boys ; parish apprentices, contributions towards hospitals, and others.

Notwithstanding, however, this seeming incongruity, and taking it to be clear that the present Legislature of the colony may be regarded as a Legislative Assembly within the meaning of Sir James Graham's Act, still the question is, whether that Act was not in operation, either by its own force, or by force of the Local Act, 7 Victoria 21. It is clean that up to the institution of the present Legislative Body, Sir James Graham's Act was in force here, even with respect to colonial vessels, inasmuch as this colony in 1835, (when the Act was passed), was not a colony previously to that time " having a Legislative Assembly." Taking it then that the present Colonial Legislature is a Legislative Assembly within the meaning of the Act, still if Sir James Graham's Act was in force at the moment the new Local Legislature was instituted, surely it did not become the less in force by the mere change in the Legislative constitution of the colony. Having once commenced its operation in the colony, it could not ipso facto cease to operate, because of the change is the Colonial Legislature. There is nothing in the Act showing that it was thus to fluctuate and shift about in its application. The words are " having " (that is then, in 1835) "a Legislative Assembly," and not " which shall have;" and enacting " that thereupon the Act as to such colony should cease."

In this view of the case presented to us, it is unnecessary to give any opinion as to the force or effect of the Local Act; 7 Vict., No. 21, sec. 17. There may have been doubts entertained as to the applicability of Sir James Graham's Act in the colony, and the Local Legislature may have felt it necessary to enact the 15th section, which is little more than a transcript of the 6th section of Sir James Graham's Act. It appears to us that the 17th section of the local Act may be simply regarded as inoperative ; but that at all events, whatever difficulties there may be in the case, with respect to portions of Sir James Graham's Act, which are clearly inapplicable to the colony, we cannot regard it as " suicidal ;" but the intention may be inferred to have been, to recognise that statute, so far are it could be applied as the law of the colony. There is not much weight to be attached to the supposed difficulty that the 54th section was also adopted. There is no doubt that there were clearer and better ways of effectuating the intention of the Local Legislature; but that intention, we may conclude, was to adopt all the provisions of the Act preceding that section for if this be not its meaning, the 17th section has none at all.

On the whole we are of opinion that the mandamus ought to go.

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