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Decisions of the Superior Courts of New South Wales, 1788-1899

In re de Mestre [1830] NSWSupC 31

British subject status, nationalisation, ship registration, liquor laws

Supreme Court of New South Wales

Forbes C.J., 23 April 1830

Source: Forbes C.J. to Governor Darling, 23 April 1830, Historical Records of Australia, Series 1, Vol. 15, pp 453-454[1 ]]

 

I have the honor to acknowledge the receipt of Your Excellency's Letter, addressed to the Judges of the Supreme Court, under the date the 8th inst. enclosing Papers, relative to the Claim of Mr. P.De Mestre to the privilege of registering a Ship as a British Native Subject, and requesting our opinion thereon; and, at the desire of Their Honors Mr. Justice Stephen and Mr. Justice Dowling, who are both absent from Sydney, I have to state to your Excellency that, under the circumstances alleged by Mr. De Mestre, we are of opinion, he is entitled to Register a Ship as a British born Subject for the following reason:-

It appears that the Parents of Mr. De Mestre were French Royalists, who quitted their Country at the Commencement of the Civil War and placed themselves under the protection of the British Flag, on board of an English Ship, at the time of the Birth of P. De Mestre. Had the Parents been on the Land, within the Dominions of the Crown of Great Britain, at the moment of P. Demestre's being born, there could be no question but that he would be a Native Subject of His Majesty; the law upon this point is stated by a text Writer of Authority in the following manner:- "The issues of an Alien, born within the Realm, are accounted Natural Subjects, in which respect, there is not any difference between our Laws and those of France. In each Country, Birth confers the rights of Naturalization". 1Wood, 386. The only question is, whether being born on board a British Ship, at Sea, of Parents at the time within the protection, and Subject to the operation of the Laws of Great Britain, confers the same Rights, as being born within the Realm.

It is laid down by Vattel, a French Jurist of acknowledged and high Authority in our Admiralty Courts (1 Rob., A.R. 363), upon this point as follows:- "As to Children born at Sea, if they are born in those parts of it, that are possessed by their Nation, they are born in the Country" (and see Molloy 3, 2, 9) "and, if the Children are born in a Vessel belonging to the Nation, they may be reputed born in its Territories; for it is natural to consider the Vessels of a Nation as parts of its Territory, especially when they sail upon a Free Sea, since the State retains its Jurisdiction over these Vessels" (Vattel I, 19, Sec. 216).  The Ship, on board of which P. De Mestre was born, and all Persons on board, in Amity with His Majesty, were clearly subject to the operation of the Laws of Great Britain, both by the Law of Nations and the express Enactments of the English Legislature. 28 Henry 8th, c. 15.[2 ] 39 Geo. 3, c. 37.

 

Notes

[1 ] For original handwritten copies of the document, see Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 256; Forbes Papers, Mitchell Library, A 1267-12 (Reel 773), p. 721.  The Historical Records of Australia version has been proofread against the latter, and except in one point, varies only in matters of punctuation.  The exception is that the Historical Records of Australia incorrectly cited the statute at the end as 28 Henry 8th, C.B. rather than c. 15.

This letter was sent in response to a request for advice by Governor Darling, dated 8 April 1830: Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 255.  Darling sent the papers in this case to the British government (Murray) on 26 April 1830, Historical Records of Australia, Series 1, Vol. 15, pp 450-454.  The issue was initially raised by Cotton and Langer, Collector and Comptroller of Customs.

This was an advisory opinion, but the distinction between legislative, judicial and administrative actions was unclear in (1828) 9 Geo. 4 c. 83, the colony's constitution.  See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995,  pp 70-71.

[2 ] The Historical Records of Australia incorrectly cited the statute at the end as 28 Henry 8th, C.B.  See note 1 above.  This correction has been made by reference to the version in the Mitchell Library.

Published by the Division of Law, Macquarie University