3433.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
10
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON
MY LORD,
No. 12.
(ST. HELENA.)
QUEEN'S ADVOCATE to FOREIGN OFFICE.
Doctors' Commons, March 28, 1860. I AM honoured with your Lordship's commands, signified in Lord Wodehouse'a letter of March 8th instant, stating that with reference to his letter of the 2nd of March instant he was directed to transmit to me a letter from the Colonial Office, enclosing a Despatch from the Governor of St. Helena, reporting that, in compliance with a requisition made to him by the Commander of the United States squadron on the African coast, he had surrendered the master of the slaver "Orion," and such of the crew as had been sent in that vessel to St. Helena to the Commander of the United States steamer "Mystic," to be by him forwarded to the United States for trial on a charge of piracy; and to request that I would take these papers into consideration, together with those already in my possession relating to that vessel.
In obedience to your Lordship's commands I have taken these papers into con- sideration, and have the honour to
Report
That it is established by the depositions that the prisoner Morgan acted as the master, and that the two others belonged to the crew of the "Orion," a United States merchant vessel, which was captured with slaves on board on the high seas (and consequently within the jurisdiction of the United States) by Her Majesty's ship "Pluto.' The "Orion" had previously been engaged in the traffic and been captured, and, it is said, had been bailed and condemned in the United States for slaving.
There is no reasonable doubt but that by the Statute Law of the United States (Act of May 15th, 1820) these persons would be "adjudged pirates"; and that con- sequently they were in effect duly "charged with piracy" within the true intent and meaning of the 6 & 7 Vict. c. 76. and of the Treaty of Washington; but I do not observe that any formal evidence of the United States Law was adduced before the magistrate. This omission, however, can only be viewed under the circumstances as a technical defect, which should be remedied in any future case of this kind, but which Her Majesty's Government is by no means bound to insist upon or to notice to the United States Government in this case.
The prisoners were cautioned, and asked if they wished to say anything in answer to the charge in the regular form, and they answered "that they had nothing to say to that court." They seem to have made no defence or objection of any kind, and both they and the United States naval officers were (doubtless) perfectly aware of the law there prevailing as to slave trading being piracy.
Their extradition having been demanded by a naval officer of the United States, that Government cannot complain; and it is much to be desired that all such demands of extradition should succeed, in order to secure some chance of the punishment of the offenders, and to excite official and public attention to this class of cases in the United States.
Lord John Russell, &c. &c. &c.
I have, &c.
(Signed)
J. D. HARDING.
16278.-4. 25.---9/86.
Page 30Page 31
3699.
PUBLIC RECORD OFFICE
חי
C.O.
Reference :-
885
10 PUBLIC RECORD_OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
MY LORD,
No. 13.
(FALKLAND ISLANDS.)
LAW OFFICERS to COLONIAL OFFICE.
Doctors' Commons, April 12, 1860. WE were honoured with your Grace's commands, signified in Mr. Elliot's letter of the 10th of January last, in which he stated that he was directed by your Grace to transmit to us copies of two Despatches received from the Governor of the Falkland Islands, including a protest from the Captain of the "Helen A. Miller" American ship, against the legal proceedings taken in the Colony in the matter of his differences with the stewards of his vessel.
Mr. Elliot was also pleased to state that Mr. Brooke was also stipendiary magistrate of the Colony, and his duties were defined by Ordinance, of which copy was annexed.
Mr. Elliot was also pleased to annex copy of the Ordinance adapting the Merchant Shipping Act to the Colony.
Mr. Elliot was also pleased to state that he was directed by your Grace to request that we would favour your Grace with our opinion on the following points, so far as the information transmitted therewith enabled us to judge:
Had Mr. Brooke jurisdiction in the question of wages between the Captain and the steward?
Was Mr. Brooke legally justified in the conduct which he pursued in the matter of the Captain's complaint against the steward of desertion?
Has Captain Sweeney any legal ground, as shown by these papers, of complaint against Mr. Brooke or the Colonial authorities, and any legal means to obtain the redress of such complaint, if any?
What course is the police magistrate în a foreign dependency of the Crown to adopt (independently of any particular provisions which may exist in the local laws) when the captain of a foreign vessel requires his assistance for the arrest of a seaman alleged to be a deserter, such seaman being noted as a deserter by the consular agent of the power to which the vessel belongs?
In obedience to your Grace's commande, we have taken these papers into our con- sideration, and have the honour to
Report
1st. We are of opinion that Mr. Brooke had jurisdiction in the action brought by the steward against the Captain of the "Helen A. Miller." The question was one of contract: the Captain was present and personally served with process at Stanley; and under such circumstances the law of England assumes and exercises jurisdiction, and such jurisdiction is in conformity to the law of nations. The soundness of the conclusion at which Mr. Brooke arrived in the exercise of this jurisdiction in the action is another matter, and we must add that, in determining the effect of the contract, Mr. Brooke ought to have been guided by the law of the United States where the contract was made; but we find no evidence to show that, according to American law, the steward became entitled to any wages on the wreck of the ship in the course of the voyage to which the contract related; and the general rule apart from special enactment is that, under such circumstances, no wages are earned. In justice to Mr. Brooke, however, it is to be observed that no defence on this ground appears to have been set up for the Captain on the trial of the action on the lat September. Indeed, the alleged absence of jurisdiction was, avowedly and consistently, the only resistance then made to the demand of the steward. By the English Merchant Shipping Act (which, however, could not affect the operation of the American contract) wages are earned, though the ship be lost during the voyage, only in case the mariner has "exerted himself to the utmost to save the ship, cargo, and stores." If the American law be to the like effect, the issue raised should have been, not the question of jurisdiction, but the conduct of the steward, and whether, under the circumstances, he had used his best exertion to save the ship, &c., &o. This, of course, he had not done, if guilty of desertion or any similar conduct.
We take it for granted that the imprisonment of Captain Sweeney, for nonpayment of the sum awarded against him by the jury, was conformable to the ordinary practice of the court under the like circumstances.
o 16978.-919. 95.-9/88.