CO885-(10-11) — Page 283

1267.

No. 231.

T ། ། ། །

PUBLIC RECORD OFFICE

سلسلاتلا

Reference :-

C.O.

885

10

PUBLIC RECORD OFFICE, LONDON

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

(CAPE OF GOOD HOPE.)

17

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, February 8, 1864. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 30th ultimo, stating that, with reference to the case of the "Sea Bride' and the proceedings at the Cape of Good Hope of the Confederate steamer “ Alabama and her reputed tender, the " Tuscaloosa," he was directed by your Lordship to transmit to us, together with the previous printed papers, a letter from the Colonial Office, enclosing a copy of an instruction which was addressed by the Duke of Newcastle to Governor Wodehouse on the 5th of November in the terms of our Report to the Foreign Office of the 19th of October last, and a Despatch which has been received from Governor Wodehouse in reply. That we should observe that it is stated that the Duke of Newcastle proposes to inform Sir Philip Wodehouse that it was not intended to censure his conduct in any respect, or to express a doubt as to its propriety in regard to the "Sea Bride"; but that his Grace wishes to be informed what instruction should be given to the Governor on the second and third points raised in his Despatch, and also to be able to convey to the Governor auch instructions as may be necessary by the mail of the 5th of February (instant), and Mr. Hammond was accordingly to request that we would take Governor Wodehouse's Despatch into consideration, and furnish your Lordship, in time to admit of an answer being made to it by the outgoing mail, with our opinion on the points with regard to which Sir P. Wodehouse asks for further instructions.

In obedience to your Lordship's commands we have taken Sir P. Wodehouse's Despatch and the other papers in this case into consideration, and have the honour to

Report

(1.) That, with reference to Sir P. Wodehouse's present explanation that "the facts were not disputed," &c., we cannot but observe that the possibility of a dispute about the facts relative to the "Tuscaloosa " was assumed in the opinion of the Colonial Attorney General, dated August 7, 1863 (paragraph 4), where it was said, "no means exist for determining whether she has or has not been judicially condemned

by a court of competent jurisdiction."

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It was with reference to the ground so taken by the Colonial Attorney General that we suggested the propriety under such circumstances of making those inquiries which Sir P. Wodehouse now says were rendered unnecessary by the notoriety of the real facts.

(2.) With respect to the passage cited by the Colonial Attorney General from Wheaton's Elements (Laurence's Wheaton, 2nd edition, page 663), and which was considered by us to have "no direct bearing upon the question whether in the case "of a vessel duly commissioned as a ship of war after being made prize by a belligerent Government without being first brought infra presidia or condemned by a court of prize, the character of prize within the meaning of Her Majesty's Orders "would or would not be merged in that of a national ship of war," we beg to submit the following remarks:

46

"+

This passage and the authorities referred to by Wheaton in support of it relate to the construction placed by the Prize Courts of Great Britain upon particular words in certain English (and which also occur in certain American) Prize Acts (see particularly 45 Geo. 3. c. 72. s. 7). By these Acts the rule previously applicable in this country to cases of recapture was extended, and provision was made for the restitution to the original owners on payment of salvage of all British or neutral vessels "taken as prize" by the King's enemies, at whatever subsequent time they might have been recaptured, subject, however, to the exception expressed in the following words: But if such ship or vessel so retaken shall appear to have been after the taking by His Majesty's enemies by them set forth as a ship or vessel of war," the said ship or vessel

"shall not be restored to the former owners or proprietors, but shall in all cases, whether retaken by any of Ilis Majesty's ships or by any privateer, "be adjudged lawful prize for the benefit of the captors." The passage in Wheaton

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• No. 218.

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o 16279.-N. 82,-5/86.