CO885-(10-11) — Page 319

8369.

No. 265.

(TURKS' ISLANDS.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, August 22, 1864. We are honoured with your Lordship's commands, signified in Mr. Murray's letter of the 21st ultimo, stating that with reference to our Report of the 17th of June, he was directed by your Lordship to transmit to us the instructions which your Lordship addressed to Her Majesty's Minister at Madrid regarding the cases of vessels seized, and of British subjects detained, by the Spanish authorities in Sto. Domingo, and also respecting the blockade established by the Spanish naval forces.

And also a letter and its enclosures from the Colonial Office, together with Despatches lately received from Her Majesty's Minister at Madrid, from Mr. Vice-Consul Leon, and from Her Majesty's Chargé d'Affaires in Hayti, containing details on these subjects, and to request that we would report to your Lordship any further suggestions which we might have to offer upon this matter.

We are also honoured with your Lordship's command, signified in Mr. Layard's letters of the 30th ultimo and of the 2nd instant, transmitting further papers upon this

matter.

In obedience to your Lordship's commands, we have taken these papers into our consideration, and have the honour to

Report

That we now learn for the first time (from your Lordship's Despatch of 22nd June 1864, No. 76, to Sir J. Crampton, and Mr. Cardwell's letter to Mr. Hammond, dated 16th June 1864) that on receiving information in February last of the then reported intention of the Dominican insurgents to issue letters of marque, your Lordship made a communication to the Lords of the Admiralty to the effect" that the Dominican insurgents could not be admitted to belligerent rights, and that their letters of marque could not be recognised."

14

"

This fact (which was unknown to us when we made our report of the 17th June last) explains the view taken by Admiral Hope and the Attorney General of Jamaica that the ordinary belligerent rights of visit, search, and capture for the purpose of enforcing the blockade of ports in possession of an enemy and preventing the intro- duction of articles contraband of war into those ports ought not to be conceded to Spain as against British vessels beyond the limits of the territorial waters belonging to Spain or to the coasts in the possession of the insurgents.

If we had understood at that time that this view was founded on any positive decla- ration of your Lordship to the above effect and not (as we supposed) upon the mere absence of any formal recognition by Her Majesty's Government of a state of war as existing between Spain and the insurgent Dominicans, it would have been due both to your Lordship and to the Admiralty and the Attorney General of Jamaica, that we should have then submitted the remarks which we now proceed to offer.

It is not possible that belligerent rights can be lawfully exercised against neutrals by one of two contending parties without entitling the other party also to exercise similar rights. The inference therefore drawn by the Attorney General of Jamaica and Admiral Hope from your Lordship's refusal to recognise the Dominican insurgents as entitled to belligerent rights, viz., that those rights ought not to be conceded to either party in this contest was logically correct. But the question whether a state of war does or does not exist between insurgents holding possession of a particular territory and a government claiming their allegiance and attempting to subdue them, is one of fact quite as much as of law, and if the facts are such as really to constitute a state of war between the contending parties according to the law of nations, it is not, we think, competent by that law to any neutral power to withdraw its hips and subjects upon the high seas from the operation of the ordinary laws incident to that state of things merely by declining to acknowledge its existence.

Applying these principles to the present contest between Spain and the Dominican insurgents it appeared (and still appears) to us that there were adequate grounds for recognising the existence of a state of war between these parties, and for regarding the disputed territory as under the de facto authority of the insurgents and not of the

o 16278.--966. 25.-2/86.

PUBLIC RECORD OFFICE

C.O.

Reference :-

·885

PUBLIC RECORD OFFICE, LONDON

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