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5373.
PUBLIC RECORD OFFICE
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C.O. 8
Reference :-
885
No. 343.
(BAHAMAS)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Lincoln's Inn, June 2, 1865. We are honoured with your Lordship's commands signified in Mr. Hammond's letter of the 1st instant stating that he was directed by your Lordship to transmit to us a letter from the Colonial Office enclosing copies of two Despatches from the Governor of the Bahamas relating to the arrival at Nassau of the unarmed Confederate prize schooner "St. Mary"; and to request that we would take these papers into con- sideration and favour your Lordship with our opinion as to any instructions which it may be desirable to transmit to the Governor of the Bahamas; and that he was directed by your Lordship to point out to us that it is stated in the letter from the Colonial Office that the mail for the Bahamas would be made up on Saturday next, the 3rd
instant.
In obedience to your Lordship's commands, we have taken these papers into our consideration, and have the honour to
Report
That we cannot think that the Governor of the Bahamas exercised a sound judgment in permitting the "St. Mary' to remain within Her Majesty's waters even for the purpose of obtaining necessary repairs and supplies under the circumstance disclosed by these papers.
Her Majesty's orders as to the exclusion of prizes captured by either belligerent during the present (or late) war, were, as we understand them, general and positive; and we do not conceive that they were intended to be relaxed in any case unless a prize vessel should be driven into British waters by mere stress of weather, or by some other vis major of a different kind from the want of supplies and ordinary repairs which existed in the present case.
The "St. Mary" was described by the officer himself who was in command of her as a "prize schooner." She had no papers, and it was not alleged that she had been in any way commissioned as a public ship of war of the Confederate States. In what manner she was captured does not clearly appear. The only evidence produced by Mr. Brain, tending to relieve him even from the imputation of piracy, was a letter from the Secretary of the Navy of the Confederate States, addressed to him as a
"Lieut. of the Volunteer Navy" of those States (what ever that might mean) acceding to his request for authority" to capture" some particular vessel (not named) at some placo (also not named). It does not appear that he was or had been in command of or serving in any public ship of war, or even any privateer of the Confederate States. If facts not appearing by admission or proof in these papers can properly be taken notice of, it was matter of general notoriety that he had captured the "Chesapeake" and the "Roanoke," not by any regular or ordinary means of warfare, but by a mode of pro- ceeding, which made the application of the most vigorous rule of exclusion on the part of neutral States, to prizes so captured extremely necessary. We think the most proper mode of dealing with this person so found in the possession of the "St. Mary would have been to order his instant departure, as soon as his presence within British waters became known.
If the want of provisions and repairs were admitted as a plea for exceptional indulgence in such a case, neutral powers would be instrumental in relieving adventurers of this description from the principal risks and difficulties incident to such fraudulent enterprises, and would practically encourage deviations from the recognised course of honourable warfare, which it is the interest of all civilised nations to discountenance.
In declining to act upon the demand of extradition presented to him by the United States Consul, Governor Rawson has again been influenced by the same erroneous interpretation of the Act of Parliament, which we have pointed out and explained in former reports. He seems to confound the Governor's preliminary warrant, on which the jurisdiction of the magistrate to inquire into the case is founded (and for which the statute does not make any evidence strictly necessary) with the magistrate's own
o 16278.-279. 25.-9/66.
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