CO885-(10-11) — Page 55

9279.

No. 35.

(MALTA.)

PUBLIC RECORD OFFICE

Reference :-

C.O.

885

10 PUBLIC RECORD OFFICE, LONDON

| ALLY WITHOUT PERMISSION OF THE

BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD DUKE,

ATTORNEY GENERAL to COLONIAL OFFICE.

Hackwood Park, Basingstoke, September 24, 1860. I HAVE had the honour of receiving Mr. Elliot's letter dated the 22nd September instant, transmitting copies of a Despatch from the Governor of Malta, accompanied by various other documents relating to the seizure of the British steamship "The Orwell," and also of a Despatch addressed to Lord John Russell by Her Majesty's Minister at Turin, and requesting me to take these papers into my consideration, and to state to your Grace my opinion as to the instructions which ought to be given to the Governor of Malta for his guidance in disposing of this case.

In obedience to your Grace's commands thus signified I have perused and considered all the accompanying papers, and the question appears to be whether any criminal charge, triable in an English court of justice, can and ought to be prosecuted against the persons now in custody in the naval prison at Malta, or whether such persons ought not to be set at liberty.

"

The suggested accusation against these persons are, first, the crime of piracy, in that they are alleged to have taken forcible possession of the vessel (the British steamer Orwell") whilst in the port of Genoa, and, having taken her out to sea, to have kept possession of her until her recapture in the harbour of Messina. Secondly, robbery and acts of violence committed by some of these persons in the island of Monte Christo, on which they had landed from the vessel. Thirdly, it is alleged that some of these persons are British subjects, and that they have violated the Foreign Enlistment Act by enlisting themselves to serve under General Garibaldi in hostile operations against the King of Naples.

With respect to the first charge of piracy, it is most clear from the language of the contract of the 18th of August last, and the conduct of the master of the "Orwell" and of the

of the owners, that the seizure of the ship "Orwell" by the accused persons agent was concerted and agreed on between the master and agent and the accused, and that there is no pretence for asserting that in taking possession of the vessel and carrying her from Genos to Messina the crime of piracy was committed.

Secondly, as to the acts supposed to have been done on the island of Monte Christo, the statements are most vague and uncertain, but it seems that the guns and military stores brought from the island on board the steamer were freely rendered to the persons who landed by the Sardinian authorities, and if any theft was committed of Mr. Taylor's property, or injury done to it, as Mr. Weiss infers, it was an act done by foreigners in a foreign country, and is not cognizable by any English tribunal at Malta or elsewhere. There is no ground afforded by any of these loose statements or rather conjectures as to what was done on Monte Christo for the detention of any of the persons now imprisoned at Malta.

3. As to the charge under the Foreign Enlistment Act, I cannot find in the papers before me any evidence, or any means of obtaining evidence, that those of the prisoners who are stated to be British subjects either have that character or have committed any

offence cognizable by a British tribunal under the provisions of that statute. There is therefore no ground for their detention.

But I do not hesitate to add, that if there were ground for believing that some evidence might be obtained, I should not, in the present state of circumstances, advise that any prosecution for breach of the Foreign Enlistment Act ought to be instituted.

The conclusion is, therefore, that in my opinion instructions ought to be immediately given to the Governor at Malta to set the prisoners at liberty.

His Grace the Duke of Newcastle,

&c.

&c.

&c.

·

I have, &c. (Signed) RICHARD BETHELL.

Ů 18978.--744.

25.-2/86.