10.
No. 221.
(BAHAMAS)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Lincoln's Inn, November 27, 1863. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 16th instant, stating that he was directed by your Lordship to transmit to us the accompanying Despatch and its enclosures from Her Majesty's Minister at Washington respecting the case of a vessel called the "Etta" which had previously sailed as a Confederate privateer, but having been condemned at Nassau as unseaworthy had been sold to certain merchants there, and finally sent on a voyage to New York, where she was seized by the Government of the United States, and to request that we would take the same into our consideration and favour your Lordship with our opinion thereupon.
In obedience to your Lordship's commands, we have taken these papers into our consideration, and have the honour to
Report
That the peculiar circumstances of this case may possibly raise some important questions of international law, and especially the question how far a belligerent is bound to recognise the validity of a transfer of a ship of war by the other belligerent, durante bello, to a neutral, and the change of her character in the hands of the neutral purchaser from a warlike to a commercial purpose. It may be in your Lordship's recollection that, in the case of 'the "Sumter" (afterwards called the "Gibraltar), the United States Government appeared disposed not only to maintain the absolute invalidity of such a sale as against their own belligerent rights, but even to expect, that it would be treated as invalid by our own municipal law. It became the duty of the Law Officers on that occasion to advise your Lordship that there was no municipal law of this country against such a transaction (assuming its bond fide character) and that the question whether such a ship so transferred would still be liable to capture was one which, if it should arise, might properly be left to the determination (in the first instance, at all events,) of a prize court. The peculiarity of the present case is that the ship "Etta" has not been captured upon the high seas, but has been seized (as we understand) by the Government of the United States within their own territory. The means must, we presume, oxist of raising the question of the legality of this seizure in the courts of law of the United States by proper proceedings at the suit of the owners of the vessel, and we are disposed to think that this course, if open, is that which may most properly be taken. There cannot, however, be any objection to an inquiry by Lord Lyons, under your Lordship's instructions, of the United States Government as to the grounds of the seizure, and as to the steps which it is proposed to take to establish its legality against the British owners who claim the vessel. The answer to this inquiry may better enable us to judge of the validity of those grounds, and as to the course which it may be expedient for Her Majesty's Government to take on the subject.
The Earl Russell,
We have, &c. (Signed)
ROUNDELL PALMER. R. P. COLLIER. ROBERT PHILLIMON
◊ 16978.-264. 25.-2/86.
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Reference :-
TTTTT C.O. 885
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