(12.) JOINT OPINION of the Attorney and Solicitor General, SIR A. E. COCKBURN and SIR RICHARD BETHELL, as to the illegality of the delivery up of Russian Sailors (Deserters), and the conveyance of them back to their ships.

Case. Some Russian sailors were found wandering in the streets of Guildford without any visible means of subsistence, and were locked up for the night by the superintendent of police. They were afterwards identified by a Russian naval officer as deserters from a Russian man-of-war which had arrived in England, and they were conveyed by him to Portsmouth with the assistance of the superintendent. The Law Officers were requested to advise as to the legality of the proceeding.

Temple, January 3, 1854.

Opinion. We are of opinion that the delivering-up of the Russian sailors to the lieutenant, and the assistance offered by the police for the purpose of their being conveyed back to the Russian ship, was contrary to law.

A. E. COCKBURN.
RICHARD BETHELL

(13.) JOINT OPINION of the same Law Officers, as to how far Statute 16 & 17 Vict. c. 99, abolishing Transportation in certain cases, is in force in the Colonies.

Temple, December 5, 1858. SIR, We were honoured with your commands, contained in Mr. Merivale's letter of the 15th ultimo, in which he stated that he was directed by you to transmit to us the accompanying despatch from the Governor of New South Wales, with its enclosures, and to request that we would favour you with our advice on the following point:

That, referring to the letter of the 20th of February last, from

suspect the person arrested to be the felon. "It is lawful," said Abbott, C.J., in Ex parte Kraus, 1 B. & C. 261, "for any person to take into custody a man charged with felony, and keep him until he can be taken before a magistrate :” Mure v. Kaye, 4 Taunt. 34; West v. Baxendale, 6 C. B. 141. A constable is justified in arresting any person whom he has probable cause to suspect of having committed a felony, even although the prisoner is found not guilty, or it turns out that no felony was committed by anybody: Beckwith v. Philby, 6 B. & C. 635.

the Horse Guards to the General Officer commanding at New South Wales, and to our own opinion, as stated in that letter, as to sentences of transportation passed on military offenders, were we of opinion that the same principle applies to sentences of transportation passed by the ordinary Courts in the colonies on the other offenders, insomuch that all such sentences, passed since the 16 & 17 Vict. c. 99 came into operation, and which, if passed in England, would have been invalid by reason of that Act, were invalid and I could not be enforced?

In obedience to your request, we have taken the subject into our consideration, and have the honour to report

That, in our opinion, the question whether the principle embodied in our opinion as to sentences of transportation passed on military offenders applies to sentences of transportation passed by the ordinary Courts in the colonies, and whether, consequently, such sentences, passed since 16 & 17 Vict. c. 99, which, if passed in England, would have been invalid under that Act, are invalid and cannot be enforced, must depend materially on the constitution of the particular colony, and whether the law is administered in such colony under the authority of the British Crown, or under the laws passed by the local legislature. Generally speaking, Acts of Parliament do not apply to the colonies, unless the latter are expressly specified therein; but some classes of statutes, which appear to be of imperial concern, and to affect the whole of the dominions of the Crown, have been held to be excepted from this rule.

In the case of military offences, the trial takes place under the martial law, as established by the Mutiny Acts. In such a case there is no doubt that the 16 & 17 Vict. c. 99 applies, though the trial takes place in a colony. We are disposed to think, looking to the general scope and purport of the Act in question, that it would apply generally to sentences passed in the ordinary Colonial Courts also; but, as we have just pointed out, there may be circumstances of local legislation or law, which may make the local application of this statute, in which no reference is made to the colonies, very questionable.

We concur with the Law Officers of New South Wales in thinking

that legislative provision should be made that statutes passed in this country, unless expressly declared to take effect from a particular period, should not take effect in a colony till promulgated

there.

The Right Hon. Sir G. Grey, Bart., &c. &c. &c.

A. E. COCKBURN.
RICHARD BETHELL.

471

CHAPTER XVIII.

ON MISCELLANEOUS SUBJECTS (1).

(1.) LETTER from the Lord Chancellor, LORD THURLOW, to SIR JAMES MARRIOTT, King's Advocate, on the necessity of Declaration of War before Hostilities (2).

December 12, 1778.

I need not explain to you the Attorney General's doubts: he has stated them to you, and it would be too long to discuss them in a billet.

Without enquiring in books whether a nation may commence hostilities before declaration of war, or may seize the property of another, or may sell or otherwise use it when seized; without resorting to the present practice of France, as being next at hand, for the justification of such proceeding, I believe, if it were well searched, these facts would be found—that orders had been given to the King's ships to make prize, letters of marque and reprisals issued, proclamations to offer such letters to the King's subjects, commissions to the Admiralty to issue them, commissions to the Admiralty to appoint judges for trying them, distribution among the captors, and perhaps more acts of the same kind than I can

(1) The Opinions in this chapter relate to various matters which could not properly be classed in any of the preceding chapters. I have therefore collected them together here.

(2) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott.

On July 10, 1739, letters of reprisal were granted, and I believe that period would furnish instances of all the kinds I have mentioned before.

These suggestions are hinted to you, rather to explain my own ideas than to assist you, who are much better acquainted than I am with them; but, as I know your diligence, perhaps you will be so good as to order enquiries in the Council Office, Admiralty, and Secretary of State's Office (1).

THURLOW.

(2.) JOINT OPINION of the Queen's Advocate, SIR JOHN D. HARDING, and the Attorney and Solicitor General, SIR A. E. COCKBURN and SIR RICHARD BETHELL, that Her Majesty's mere Declaration of War with a foreign Power does not place the Ionian Republic in a state of war with that Power; and that it does not appear to be illegal for an Ionian to trade with a country with which Great Britain is at war.

Doctors' Commons, July 11, 1855.

MY LORD,-We are honoured with Mr. Merivale's letter of the 9th June last, stating that he was directed by your Lordship to transmit to us a copy of the shorthand writer's notes of the judg ment recently pronounced in the Court of Admiralty in the case of the Leucade; that the Leucade was an Ionian vessel, sailing

(1) By the modern law of nations, no declaration or other formal notice to the enemy of the existence of war is necessary to legalize hostilities. The ancients were more punctilious, and, as is well known, heralds were employed to announce an impending war. As to Greece, see Paus. iv. 5, 8; Polyæn. Strateg. iv. 7, 11; Ostermann, De Præcon. Græc. Cicero lays down the principle: Nullum bellum esse justum nisi quod aut rebus repetitis geratur, aut denuntiatum ante sit et indictum: De Off. i. 11. The last example of a declaration of war by heralds at arms, according to the forms observed in the Middle Ages, was by France against Spain, in 1635: Wheaton, Internat. Law, s. 297. Woolsey sensibly remarks (Internat. Law, s. 115), that the disuse of these declarations does not grow out of an intention to take the enemy at unawares, but out of the publicity and circulation of intelligence peculiar to modern times.