PUBLIC RECORD OFFICE
Reference :-
TELEC.O.
885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
10 PUBLIC RECORD OFFICE, LONDON
2
the Confederate authorities for all legitimate purposes, and we should recommend that in preference to the payment of money for the redemption of a British subject from unlawful captivity, demand should be made upon the Confederate Government (in such a manner as to make it understood that the case is one which Her Majesty's Government regard in a serious light) for their co-operation in the discovery and release of Edwards and for the punishment of the person by whom he was stolen from the Bahama Islands, if that person be within the Confederate jurisdiction.
It is not, we conceive, at all necessary in order to support the principle of such a demand, so far as the liberation of Edwards is concerned, that Her Majesty's Govern- ment should be able to invoke the authority of any local law.
We may, however, observe that by the Act of Congress of the 20th April 1818 (3 Hertalet, 475, sec. 5), which we presume is still law in the Confederate States, neither the importer, "nor any person or persons claiming from or under him," is capable of holding "any right, interest, or title whatsoever in or to any negro or "mulatto, or person of colour, imported or brought into the United States or the "territories thereof in violation of the provisions of that Act;" and the case of Edwards is unquestionably within that section.
3. The punishment of the offending captain remains a question apart from and beyond the liberation of the kidnapped and enslaved boys. The act of kidnapping having been committed within British territory, the offender, whatever be the country of his birth or allegiance, is liable to be apprehended, tried, and punished wherever and whenever he may be found within British jurisdiction. We have already advised that the offence of kidnapping does not come within the Extradition Treaty between the United States and Great Britain, and that if the captain were known to be within the United States territory his surrender for the purpose of trial could not be demanded under such treaty. We observe it stated, however, in the Despatch of his Grace the Duke of Newcastle, that the crime of kidnapping is "piracy," but, although it is made so by the law of England in certain cases (not, indeed, by the common law but by the Slave Trade Act, 5 Geo. 4. cap. 113. sec. 9), and also by the statute law of the United States (see the Act of Congress of 15th May 1820, 3 Hertslet, 482), there is no provision in the slave trade treaties between Great Britain and the United States to the like effect, and under these circumstances we think that the word "piracy" as used n the Extradition Treaty of 9th of August 1842 must be construed to mean piracy by the law of nations (which mere kidnapping is not), and not to include crimes to which that designation may have been extended in either country by special
enactment.
Apart from extradition, which involves a trial in the country of the offence, we think that Her Majesty's Government in regard of the sufferers being British subjects is entitled on the part of the Government of any friendly State to the use of reasonable efforts within the limits of the local law to bring the offender to punishment. Since, therefore, the criminal act of Clark, though committed in the Bahamas, is a crime in the United States according to the law there prevailing, the United States Govern- ment might in fairness so bring the offender to trial if he were found within their jurisdiction, and there appears to be no reason to doubt that they would do so.
With reference to the Confederate States, the case is the same if Clark should ve found (as is more probable) within their jurisdiction, and if the impediments at present existing in the way of communication on public matters between Her Majesty's Government and the authorities of these States were (so far as necessary for this and similar purposes) overcome or removed.
The Earl Russell,
&c.
&c.
We have, &c.
(Signed)
WM. ATHERTON. ROUNDELI. PALMER. ROBERT PHILLIMORE.
8530.
No. 211. (GIBRALTAR.) (MALTA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, August 29, 1863. We are honoured with your Grace's commands signified in Mr. Elliot's letter of the 12th instant, stating that he was directed by your Grace to request that we would take into consideration the accompanying papers, namely:-
1. A copy of the Letters Patent erecting the Bishopric of Gibraltar, and appointing 21 Aug. Dr. Tomlinson to be the first Bishop.
2. A copy of the Letters Patent which it is proposed to issue appointing Dr. Trower to be Bishop of Gibraltar.
1842.
3. A copy of an opinion* signed by Sir H. Cairns and Mr. Stephens to the effect 21 July that, having reference to the provisions of the Letters Patent creating the Bishopric of 1863. Gibraltar, Dr. Trower cannot legally be appointed Bishop of that See.
That we should observe that the first mentioned Letters Patent contain a clause requiring that the Bishop of Gibraltar shall be consecrated by the Archbishop of Canterbury, and another clause requiring that at the time of his consecration he shall take an oath of obedience to that archbishop, and that theso provisions are revoked by the Letters Patent which it is now proposed to issue.
Mr. Elliot was to request that we would inform your Grace whether, after perusal of the above opinion, we consider there is any ground for doubting that by the pro- posed Letters Patent Dr. Trower will be lawfully appointed Bishop of Gibraltar, and if this instrument should appear to us in any respect defective whether there is any other process by which he can be so appointed. And Mr. Elliot was to add that your Grace would be particularly glad to receive an early answer to these questions, as the Grace issue of Bishop Trower's Letters Patent is necessarily suspended until shall be informed by us that they are effectual for their purpose.
your
In obedience to your Grace's commands, we have perused the opinion of Sir H. Cairns and Mr. Stephens and have taken the whole case into consideration, and have the honour to
Report
That we are of opinion that the proposed Letters Patent, constituting Dr. Trower Bishop of Gibraltar and Malta, are perfectly legal and proper to be adopted. Gibraltar and Malta are both Colonies (or possessions) without Constitutional Government, and subject to the legislative authority of the Crown.
The present question relates to a bishopric in those possessions created and founded by Royal Letters Patent, and in the sole patronage of the Crown.
The Letters Patent do not expressly reserve any power of revocation, but we think that during a vacancy the Crown may, by new Letters Patent, legally and effectually modify the terms of the former letters by which the bishopric was created. This is not a question of English law at all, but one of the authority of the Crown, with respect to a spiritual corporation sole established by the Crown in Gibraltar, and to which a legal status and functions are attributed by the same authority in Malta also. Even if the new Letters Patent ought to be regarded as a new foundation of a bishopric not in all respects legally identical with the old (the bishopric under the old Letters Patent not being filled up), a similar operation has been repeatedly per- formed during a vacancy in various colonies; at the Cape of Good Hope, for instance, Bishop Gray now exercises his episcopal functions under Letters Patent which are not those which were originally granted for that diocese, but of a much later date.
Moreover, we see no reason, even if the analogy of the English law unfettered by statute were to prevail, why the Crown, being founder and sole patron, may not during a vacancy remodel by a new charter its own creation.
It does not appear that there is any property held in trust for this See as to which any question depending on the particular terms of the original Letters Patent can
arise.
With respect to the objection that every Anglican Bishop established under Royal of the Colonies or foreign possessions of the British Crown, must
Letters Patent in his consecration from the Archbishop of Canterbury or from some
of necessity receive English Prelate acting under his authority, or at all events, in the precise form used by the English Church: this we think is a notion wholly unfounded in principle and
0 16278.-797. 25,-9/86.
* No. 202.