CO885-(10-11) — Page 267

PUBLIC RECORD OFFICE

C.O.

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885

10 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO |

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war. It is enough to say that the citation from Mr. Wheaton's book by the Colonial Attorney General does not appear to us to have any direct bearing upon this question. Connected with this subject is the question as to the cargoes of captured vessels which is noticed at the end of Sir Philip Wodehouse's Despatch of the 19th August last. We think that, according to the true interpretation of Her Majesty's Orders, they apply as much to prize cargoes of every kind which may be brought by any armed ships or privateers of either belligerent into British waters, as to the captured vessels themselves. They do not, however, apply to any articles which may have formed part of any such cargoes if brought within British jurisdiction, not by armed ships or privateers of either belligerent, but by other persons who may have acquired or may claim property in them by reason of any dealings with the captors.

C

We think it right to observe that the third reason alleged by the Colonial Attorney General for his opinion assumes (though the fact had not been made the subject of any inquiry) that "no means existed for determining whether the ship had or had not been judicially condemned in a court of competent jurisdiction," and the proposition that, "admitting her to have been captured by a ship of war of the Confederate any dispute States, she was entitled to refer Her Majesty's Government in case of "to the court of her States, in order to satisfy it as to her real character," appears to us to be at variance with Her Majesty's undoubted right to determine within her own territory whether her own orders, made in vindication of her own neutrality, have been violated or not.

The question remains, what course ought to have been taken by the authorities at the Cape, first, in order to ascertain whether this vessel was, as alleged by the United States Consul, an uncondemned prize brought within British waters in violation of Her Majesty's neutrality; and, second, what ought to have been done if such had appeared to be really the fact? We think that the allegations of the United States Consul ought to have been brought to the knowledge of Captain Semmes while the "Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the “Tuscaloosa's " papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize brought into British waters in violation of Her Majesty's Orders made for the purpose of maintaining her neutrality, it would, we think, deserve very serious consideration whether the mode of proceeding in such circum- stances most consistent with Her Majesty's dignity and most proper for the vin- dication of her territorial rights, would not have been to prohibit the exercise of any further control over the "Tuscaloosa" by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original

We have, &c. (Signed)

Owners.

The Earl Russell.

ROUNDELL PALMER.

R. P. COLLIER. B. J. PHILLIMORE.

10425.

No. 219.

(NEW SOUTH WALES.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUI,

Lincoln's Inn, October 28, 1863. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 20th October, instant, stating that he was directed by your Grace to request that we would take into our consideration the enclosed copy of a Despatch from the Governor of New South Wales, with the accompanying petition addressed to you by the Newcastle Wallsend Coal Company, and the opinion of the Colonial Attorney General thereupon.

Sir Frederick Rogers was also pleased to state that it appears that the above company consider the Minister of Public Works, in his public capacity, to have entered into a certain engagement with them, and to have failed to fulfil it.

That the Company have therefore prayed the Governor that he would endorse s Petition of Right, in pursuance of a local Act, 24 Vict., No. 27 (copy annexed), which would enable them to bring the question between them and the Government for trial before a court of justice.

That the Attorney General has advised that the Petition of Right should be referred to the Minister of Public Works, and not endorsed, unless that officer should desire to obtain a judicial decision on any of the facts alleged or points of law raised by it. That his advice is based (as your Grace understands) on the following grounds :—

1. That no minister is competent to enter into a contract or binding agreement' whatever as to his public duties.

2. That the complainant knew that on this occasion the minister did not intend to enter into any such agreement.

3. That the granting of a Petition of Right in such a case would bring the executive Acts of the Colonial ministers within the jurisdiction of the Colonial courts of law, and on appeal within that of the Judicial Committee of the Privy Council in England.

4. That any damages and costs which might be recovered would have to be paid either by the minister himself or by the public Treasury.

That the present case is disposed of by arrangement between the parties. But similar cases are likely to arise, and the Governor is desirous of being furnished with suggestions which he may tender for the guidance of his Executive Council.

Sir Frederic Rogers was therefore directed to request that we would inform your Grace whether in our opinion the principles laid down in the concluding part of the Opinion of the Colonial Attorney General are correct, and if not, what are the prin- ciples by which the Queen would in this country be advised to guide herself in endors. ing or refusing to endorse Petitions of Right presented to Her Majesty under circum- stances analogous to those of the case now under consideration.

Sir Frederic Rogers was further pleased to ask whether, in case the Governor, acting on the advice of his responsible ministers, refused to endorse a Petition of Right under authority of local Act, 24 Vict., No. 27, it would be legally and constitutionally competent to the Queen, on such petition being presented to Her Majesty in this country, to endorse it in the manner suggested in our Report of the 28th December 1862, viz., "Let right be done in the Supreme Court of New South Wales."

In obedience to your Grace's commands we have taken this matter into consideration, and have the honour to

Report

That we are unable to agree with the Colonial Attorney General as to the periples applicable to the allowance of Petitions of Right.

We have to

The Attorney General expresses his opinion that "no minister of the Crown can "possibly enter into any binding contract as to his public duties." obeerve that inasmuch as no contract by a minister in his private capacity could.form the subject of a Petition of Right, this doctrine would put an end to all Petitions of Right founded upon contracts, that is to say, to the greater number of them.

▸ 16278.-519 95.-2/86.