200

ship being still at the port, and requiring
their services on the homeward voyage,
was informed that the Articles (which
contained as usual a stipulation to serve
on a voyage to the colony and back to England) were put an end to by the punishment, and that his right to the seaman’s
services had therefore terminated. That
it further stated that this is the prevailing
opinion among the Magistrates at Port
Philip.

That the point is one of very great importance to the shipping interest, since
if a seaman is, after having been once
convicted of desertion and punished, to
be considered as released from all further
duty to the ship, great encouragement
would be given to desertion in places,
such as the Colony in question, where
the temptations to desert, far out-balance
the terrors of a short imprisonment.

The question submitted to us for our
opinion is, "whether, if a man has been
convicted of desertion and punished,
either under the 7th and 8th Vic. c.112,
s. 6, or 13 and 14 Vic. c. 93, s. 70, he is
thereby released from his Articles; or
whether, when the punishment is at an
end, he can still be treated as belonging
to the ship, and compelled to rejoin her
and perform his duty to her according to
the original Articles."

In obedience to your Lordships’ request, we have taken the same into our
consideration, and have the honor to report that we are of opinion that a seaman
who has been convicted of desertion and
punished under the Acts in question, is
not thereby released from his Articles;
and as they remain in force, notwithstanding his conviction and punishment,
we do not see why he may not be guilty
of another offence by again neglecting or
refusing to join his ship, and again be
dealt with under the 70th sec. of the 13th
and 14th Vic., c. 93, by another imprisonment, or by being conveyed on board
the ship. Clearly, if instead of being
imprisoned in the first instance he had
been conveyed on board, or had voluntarily joined the ship after such imprisonment, and had again deserted, he would
have been amenable to a second proceeding for such desertion, and we cannot see
any distinction between these cases and
that of a second neglect or refusal to
perform his duty under the Articles,
which remain binding upon him.

(Signed)

FRED. THESIGER.
FITZROY KELLY.

The Lords of the Committee
of Privy Council for Trade.

(Circular.)

Downing-street,
14th August, 1852.

SIR,—I transmit herewith for your
information and guidance, the accompanying copy of a Report from the Law
Officers of the Crown, (5th July, 1852,)
in reply to a reference which was made
to them on the subject of the desertions
now taking place among the crews of
Merchant Vessels at the Australian
Ports, in which they state their opinion
that on the application of a Magistrate,
the Officers and Crews of Her Majesty’s
ships may be lawfully called upon to
prevent such desertion.

I have &c.,
(Signed) JOHN S. PACKINGTON.
Governor Sir George Grey,
K.C.B., &c., &c., &c.

Temple, July 5th, 1852.

SIR,—We were honored with a letter
from Mr. H. Merivale on June 29th, in
which he states that it having been lately
represented to you that great inconvenience is felt at the principal Australian
Ports from the desertion of the crews of
merchant vessels, and on this as well as
other accounts, measures have been taken
for stationing some of Her Majesty’s Ships
to be stationed at those ports or in the
neighbourhood.

And also that a question has been
raised in what manner the naval force
thus supplied can be rendered serviceable
for the purpose of checking desertion.

And that he was commanded to direct
our attention to the provisions of the
Merchant Seaman’s Act, 7 & 8 Vict., 112,
especially sections 6 & 7 (modified as to
particular vessels by section 61), and to
request that we would inform you whether,
in our opinion, magistrates acting under
those provisions, may lawfully call on the
officers and crews of Her Majesty’s ships
to assist them in the execution of their
duties; and what instructions it would
be proper to issue to the Magistrates in
question, and to the Commanders of Her
Majesty’s ships with reference to this subject.

In obedience to such command we
have the honor to report that we are of
opinion that if the Magistrates require
assistance for the purpose of apprehending seamen, who have offended against
the provisions of the Act of Parliament
in question, it is as lawful for them to
call upon the officers and crews of Her
Majesty’s Ships to assist them in
the execution of their duties as Magistrates.