Where are they to go? The respt. says to London. But the English Court has no jurisdiction here. If the S.-S. refused to sustain his jurisdiction in this case, it would, in his opinion, mount to a complete denial of justice to the petrs. "The question here raised turns upon whether the ship was British or foreign at the time the order of detention was pronounced. She was sold to the petrs. They say they are aliens not naturalized. The respt. does not know, and does not admit this. This point must ante omnia be cleared up. The burden of doing so lies on Mr. Granfelt, who is carrying on business and living in this country. The respt. may possibly get such information privately from the petrs. as will justify him in judicially admitting Mr. Granfelt's averment, and so proof may be rendered unnecessary. J. C. T."

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Aberdeen, December 30, 1873.-Having resumed consideration of the cause, together with the deposition of, and productions made by the pursuer Granfelt -Finds that, prior to 7th November 1873, the registered British ship 'Florida,' of Banff, was owned by Thomas Adam, shipowner, Aberdeen, and others: That on that date the said owners accepted an offer made by the petrs., Granfelt & Company, to buy the said ship: That it was agreed that the ship should be immediately handed over to the care of the purchasers on payment of a deposit of £120: That the said deposit was paid on 8th November, and that the vessel was at the same time handed over to Granfelt & Company: That on the same date the owners executed a bill of sale of the ship in favour of the petr. A. E. Granfelt: That on 11th November there was delivered to the said Thomas Adam an intimation by the Board of Trade that they had ordered the detention of the said vessel till she could be surveyed: That on the 13th November she was surveyed by officials of the Board of Trade: That on the same date the said Thomas Adam and the petrs. Granfelt & Company, who described themselves as acting on behalf of clients abroad, intimated to the said surveyors and to the Assistant Secretary, Marine Department, Board of Trade, that the 'Florida' had been purchased on the 8th of said month by the said petrs. for clients abroad : That the said ship has since been detained at the instance of the respt., acting on instructions from the Board of Trade: That on 20th November the bill of sale in favour of the petr. Granfelt, along with the ship's register, was handed to the respt., and on 4th December was caused by the petrs. to be sent to the registrar at the port of Banff, who the next day entered the same in his register, and intimated that the registration had been cancelled: That the petrs. are foreigners, and are incompetent to own a British ship: Finds, in point of law, that on a sound construction of the Merchant Shipping Acts, 1854 to 1873, the said vessel ceased to be subject to the provisions of the 12th sec. of the Merchant Shipping Act, 1873, as at 8th November last, being the date when the petrs. acquired a beneficial interest in the said ship: Therefore interdicts, prohibits, and discharges, in terms of the prayer of the petition, and decerns accordingly: Finds the petrs. entitled to expenses, subject to modification, &c.

"J. COMRIE THOMSON.

"Note. The questions of fact raised in this case may be said now to be undisputed; but points of great delicacy in regard to the construction of the Statutes anent merchant shipping have been raised, and now fall to be disposed of. The Act of 1873 confers upon the Board of Trade very arbitrary powers in regard to the detention of vessels which are reported to them to be unseaworthy. The first question is whether these powers extend to all vessels lying in British ports, whatever may be their nationality, or only to British ships. The S.-S. is of opinion that they apply only to British ships. The 12th section of the Act of 1873, which contains the leading enactment on this subject, is headed Safety and Prevention of Accidents (Part IV. of Merchant Shipping Act, 1854).' The first clause of the fourth part of the Act of 1854 is in these terms: The fourth part of this Act shall apply to all British ships, and all foreign steam ships carrying passengers between places in the United Kingdom, shall be subject' to all its provisions, &c. Again, the first words of the 12th section of the Act of 1873 proceed thus:- Where the Board of Trade have received a complaint, or

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have reason to believe that any British ship is, by reason' of her defective condition, unfit to proceed to sea, they may appoint a surveyor, etc. Foreign ships are not altogether overlooked by the Statute, as the 23rd section provides that any one who carries dangerous goods, without certain specified precautions, in any vessel, British or foreign,' shall be liable to a penalty. The policy of the Act, apparently, is to prevent foreign vessels as well as British from being sources of risk to other vessels which may be in their neighbourhood, but not to interfere directly for the protection of the lives of those who sail in foreign ships, in respect of their unseaworthiness. The use of the word 'Foreign' in one part of the Act and not in another, indicates that, when not expressed, it is not to be held as implied. So far it seems pretty clear that the 12th clause of the recent Statute does not apply to foreign vessels. But it is proper to notice the last clause of that section, which is in these terms;- When a ship has been detained under this section she shall not be released by reason of her British register having been closed.' Two views of the effect to be given to this clause have been presented to the S.-S. The petrs. argued that its true meaning was that when once an order of detention had been made upon a ship to which such an order was legally applicable, the fact that during the currency of the order the vessel ceased to be the property of British owners should not operate as a release. There can be no doubt that the clause means as much as that. But the respt. maintained that it meant more, and that it extended the powers of detention to vessels whose British character had been lost at any time prior to the order being served. The S.-S. is unable to adopt the latter view, although he does not deny that it is plausible, but for the reasons given above, and also because such an interpretation would leave no limit as to the time when the ship ceased to be British, he holds that an order of detention is effectual only upon a vessel which at the time the order was made was British.

"The next question is, What constitutes a British ship? The answer to that is not difficult. A ship ceases to be British when she is transferred to any person not qualified to be the owner of a British ship. That is clear from the 53rd section of the Act of 1854. Two sanctions are imposed by the Statute in order to secure that there shall be no mistake about this matter. First, at the time of the transfer, the former owner must immediately give notice to the registrar of the ship's port of registry, and if he makes default in obeying that provision he incurs a penalty not exceeding £100; and second, by the 103rd section of the same Statute, it is provided that if any unqualified person acquires as owner any interest, either legal or beneficial, in a ship using a British flag and assuming the British character, such interest shall be forfeited to Her Majesty.' Now, it is admitted that the present petrs, are unqualified persons,' and, accordingly, either their interest in the Florida' has been forfeited to Her Majesty, or the vessel has ceased to be British.

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"This brings the Court naturally to consider the third question, which consists of two parts-First, Has the Florida' ceased to be a British vessel? and second, if so, when?

In the ordinary case of the sale of a British ship to persons qualified to own British shipping, three things are necessary: a bill of sale or instrument in writing, an entry on the register at the ship's port, and either an endorsement on the certificate or a new registry. But when a British ship is sold to a foreigner a bill of sale cannot be recorded in his favour. A valid transfer, it is true, may be made of the whole vessel or of any share in her to an unqualified person, but in either case the vessel ceases to be British, and must be taken off the register, and must cease to use the British flag or to assume the British national character, under the penalty, as has been noticed above, of forfeiture of the whole ship to the Queen. It appears to the S.-S. that the change of nationality occurs at the moment of transfer, and does not depend upon the closing of the registry. The effect of the owner omitting to get the register closed immediately is, as has been shown, to expose him to a penalty, not to suspend the transfer; and, on the other hand, the result of a foreigner sailing a British flag is not to leave the vessel the property of its former owners, but to

forfeit it to the Crown. The interest which a foreigner is to have in order to such forfeiture taking effect is declared by the Act to be either a 'legal or a beneficial' one, and the amending Act of 1862, section 3rd, declares that the expression beneficial interest,' whenever used in the second part of the Act of 1854, includes interests arising under contract and other equitable interests.' "Such being the law as the S.-S. interprets it, it seems to him that the petrs. had, at the date when their offer to purchase the 'Florida' was accepted, and they had paid the stipulated deposit, acquired a beneficial interest in the vessel; that she therefore ceased to be a British ship; and that the order of detention subsequently made did not affect her. It is not pretended that after the transfer the vessel (used the British flag, or assumed the British character; and any question as to delay in closing the registry, and the consequent incurring of penalties, is not before the Court,

"It is satisfactory to notice that, so far as appears from the correspondence, the negotiations for the transfer of the ship seem to have been conducted in bond fide, and that there is a certificate in process by three skilled persons-viz., Messrs. Hall, Cargill, and Main-to the effect that, in their opinion, the ‘Florida is in a trustworthy state to take in ballast to proceed to any port in Norway.

"J. C. T."

"Aberdeen, 7th January 1874.-The Sheriff having heard parties' procurators on the respt.'s appeal, and considered the record and whole process, Recalls the interlocutors appealed against: Finds that in the matter of this petition the Court has no jurisdiction: Therefore dismisses the petition: Finds the respt. entitled to expenses: Allows an account to be given in, and remits the same, when lodged, to the auditor for taxation: And decerns. J. GUTHRIE SMITH.

"Note. The act challenged in this process is an act of the Board of Trade. They only have the power of seizing unseaworthy ships under sec. 12 of the Merchant Shipping Act of 1873; and it may be assumed that if this action had been raised in the Supreme Court, the Board of Trade, or the Lord-Advocate as representing the Board (within the meaning of the Crown Suits Act) would have been the proper respt. The Board, however, cannot be called before this Court, except when this method of proceeding is by Statute expressly authorised-1st, because it is not locally situated within the country; 2d, because it is one of the great departments of State amenable to Parliament, and subject to the jurisdiction of Her Majesty's Superior Courts, but in no way answerable for its conduct in the administration of public affairs to any of the inferior tribunals of the country.

"The petrs. have endeavoured to get over this difficulty by calling the respt., the collector of customs, to whom the orders of the Board of Trade were entrusted for execution. It is contended that the Board of Trade having gone entirely out of the Act of Parliament by seizing as a British ship a vessel which has now become Swedish in point of nationality, the remedy lies, as in the case of any illegal and injurious act, against the principal and his agent, or both.

"It is no doubt true that a public official like the collector of customs may render himself liable in damages (and by parity of reasoning to an interdict) by the manner in which he performs a duty imposed on him by Statute. Of this the cases relative to the collection of the revenue afford abundant examples. But here it is to be observed that he may often fill a double character. He may be the mere servant of some superior authority, like a Minister of State, or the Commissioner of Customs, or he may himself constitute a substantive and immediate officer of the Crown. In the latter case he acts on his own responsibility; and, though always subject more or less to a certain measure of supervision, is bound to think for himself as to what should be done, and the best way of doing it. Consequently, in the event of his being guilty of any disobedience to the Statute imposing the duty said to be infringed he is liable in damages. But in the other case the act is not his act; he never applies his mind to the subject at all; he simply carries out the orders of his official

superior, to whom he is bound to yield all due obedience. The plea of agency is no defence to an action ex delicto, for the reason that no command to commit a wrong is binding. But it would make government impossible if, in a matter like this of marine police, or any similar proceeding involving the detention of a merchant ship, British or foreign, every subordinate were to hold himself entitled to sit in judgment on the legality of the orders which might issue from the head of a department. Possibly the orders were dictated by high reasons of State, which it would be imprudent to divulge, and on which, therefore, neither the local official nor the district judge of the territory is in a position to form an opinion. Or their lawfulness or unlawfulness may depend on an obscure clause of an Act of Parliament, the construction of which is not the proper work of a Government subordinate. The proposition that a public officer may justify a trespass by showing that he was acting under the authority of the State and by orders of his superior officer, although not directly supported by any Scotch case, is, in the opinion of the Sheriff, sound in itself, and fairly deducible from the rules in observance in the law of damages. And if this be so, it seems to the Sheriff to follow that where the legality of the Act is impeached, the question must be tried in a Court of competent jurisdiction, with the official giving the order, and not with him who is the mere hand in carrying it out.

"The present case does not raise any question of property in which the Sheriff is required to regulate the possession till the matter of right is determined. The vendors and vendees are not disputing as to their contract. The proceeding complained of does not belong to the domain of private patrimonial right, like the questions of which this Court is accustomed to take cognisance. The demand made is, that the Sheriff shall stop the Board of Trade in the exercise of the powers conferred on them by public law for the safety of the public and persons employed in the mercantile marine, by forbidding the local official to carry out their orders. But no decree would affect any one but the present respt. Were he interdicted to-day, another functionary might be required by the Board of Trade to do the very same thing to-morrow. For these reasons the Sheriff is of opinion that there is no course open to him but to dismiss the petition, and leave the petrs. to obtain their remedy elsewhere.

The respt. appealed against both these interlocutors.

"J. G. S."

THE

JOURNAL OF JURISPRUDENCE.

THE DEMAND OF THE ARTISANS.

IT has been said that the reform in the representation of the people which took place in 1867 has not yet produced any perceptible influence on the tone of legislation. In one sense this is true. As yet the House of Commons contains only two members elected by and from the working-classes. The most advanced radicals below the gangway adopt the attitude of sentimental patronage or benevolent arbitration: they do not profess an identity of interest with the vast new constituency which every year makes more powerful in matters political and social. To expect permanence in this arrangement is entirely to mistake the temper of "our masters." Rightly or wrongly, they have an incurable suspicion of the political sincerity of the middle classes, and they will proceed to act on that suspicion. The origin of this feeling and its justification are unimportant: but no one can doubt its reality, or the manner in which it will affect the treatment of those fundamental questions which the proletariat are bringing to the front of public discussion. Perhaps they recollect that in 1831 they were incited almost to revolution by leaders who left them out in the cold to rejoice over the emancipation of the small shopkeepers. Perhaps their minds are soured by the contemplation of their former favourites relapsing into the indifference of office, or mistaking their own fatigue for a cessation of national progress. But, however unreasonable the hopes they may have entertained, and however unjust their judgments upon particular statesmen, one thing is certain that for the future they mean to act according to their ability on their own account-not so much to redress paltry grievances, as to shape legislation and to control political action-in a word, to realise that mastery which has already been conceded to them by word of statute. Class-legislation is the formidable charge they bring against their predecessors in power: class-legislation is what they propose as their own programme; but, with a naïveté which reminds one of certain arguments used in support of an Established Church, they explain that their class is the nation, and that legislation dictated by the self-interest of the working-classes must of necessity be national in object and effect.

Now, there are one or two demands, recently made by a noisy VOL. XVIII. NO. CCVII.-MARCH 1874.

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