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PUBLIC

༄། ། ཏ།

RECORD OFFICE

61

Reference :-

C.O. 885

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

11 PUBLIC RECORD OFFICE, LONDON

It might be well also to ascertain what part Messrs. Betham and Moore, the owners of the vessel, have had in these transactions, and whether they were in any way parties to these nefarious proceedings; if so, they ought also to be put upon their trial.

Before concluding this Report it will be proper to advert to a fact which arises incidentally in the case. It will be seen that it was chiefly through the instrumentality of the native missionaries at Manikiki and Puka-puka, Taiti and Okotai by name, that the natives were induced to go on board; it was with these missionaries that Captain Hayes chiefly communicated, and he resided with his woman, Mary Jordan, in Taiti's house at Manikiki for several days; there is also a charge against this missionary of having sent two young girls to Captain Hayes by Moete.

It does not appear whether these persons are agents of the Church Missionary Society, but it might be well to suggest to Lord Granville that the attention of that Society should be called to the facts, in order that the charges may be investigated, and, if well founded, that steps should be taken to prevent their recurrence.

In conclusion, I would observe that the conduct of Mr. Hunkin, the Consular Agent in Tutuila, and of Mr. Powell, the missionary at Pago-pago, are, in my opinion, deserving of commendation, they appear to have acted under circumstances of great difficulty with promptitude and discretion. It is, however, to Manga, the Chief of Pago-pago, to whose courage and determination these poor natives entirely owe their liberty, that the greatest praise is due; the skill with which he succeeded in disarming Captain Hayes, and thus preventing bloodshed, and the consideration with which he seems to have subsequently treated him whilst still retaining him as a prisoner, are deserving of the highest commendation; the service, too, was one which was not unattended with danger, looking at the desperate character of Captain Hayes, and it seems to have been performed with great judgment and discretion.

All of which is most humbly submitted to your Lordships' wisdom.

Doctors' Commons, October 15, 1870.

(Signed) H. C. ROTHERY.

Opinion of the Law Officers of the Crown on the above Report.

We concur generally in the views expressed by Mr. Rothery. We are of opinion that the Acts to which he refers are wide enough to embrace this case; that legal proceedings, such as he recommends, may be taken against the vessel; that Captain Hayes may be legally taken into custody on his arrival in British territory, and sent for trial before a British court of law; and that the Consul is justified in detaining the vessel and sending her for trial to Sydney.

Temple, November 22, 1870,

(Signed)

R. P. COLLIER.

J. D. COLERIDGE. TRAVERS TWISS.

21617/92.

MY LORD,

No. 666A.

(GENERAL.)

LAW OFFICERS to FOREIGN OFFICE.

Temple, October 14, 1870. We are honoured with your Lordship's commands signified in Mr. Otway's letter of the 10th instant, stating that he was directed by your Lordship to request that we would favour your Lordship, at our earliest convenience, with any observations which we might have to make upon the inclosed note, in which Count Bernstorff replied to the observations made by your Lordship in your note of the 15th ultimo upon the position of England as a neutral in the present war.

Inclosed was a copy of that note and of the Memorandum communicated on the 1st ultimo by Count Bernstorff, to which it was a reply.

In obedience to your Lordship's commands we have taken this matter into con- sideration, and have the honour to

Report-

That we have in the first place to observe that Count Bernstorff refers to the cases of the "Hypatia" and "Norseman," which he had not included in the catalogue of grievances set forth in his former despatch, and alleges that "a twofold violation of the international law and the English law had been clearly established."

This statement is based on a complete misapprehension of both international and English law. The former Foreign Enlistment Act of England and that of America were based upon the principle that a belligerent should not be allowed to use neutral territory for hostile operations, and they accordingly prohibited the arming or equipping ships of war, transports, or store-ships for belligerent purposes on neutral ground. As far as we are aware, no other country has given effect to this principle by similar legislation.

The Foreign Enlistment Act of the last Session went further and prohibited the mere despatching of a vessel with intent that she should be used in the service of a belligerent, but Her Majesty's Government expressly stated that in proposing this provision they were going beyond any duty cast upon neutrals by international law. This statement was supported by the opinion of the highest authorities in both Houses of Parliament, as it is by all text writers of mark on international law, and was con- troverted by nobody. There is no pretence that either of these vessels was "equipped for belligerent service in this country, and, therefore, no obligation by international law or by the former Foreign Enlistment Act to detain them; the allegations of their sale to French owners are wholly immaterial.

Count Bernstorff's complaint, therefore, as to the matter itself, and his apparent imputation of something like breach of faith on the part of your Lordship and of Her The communication from your Majesty's Government, admit of the same answer. Lordship, whatever it amounted to, took place after the new Foreign Enlistment Act came into operation, and must be interpreted with reference to that Act. Now that

Hypatia Act, as we have already explained, had no application to the "

”

or the

• Norseman.' It became law on the 9th August, and neither it, nor anything said in respect of what the Government would do under it, could by any possibility have any reference to vessels which had left England in July, and which, therefore, would not be affected by that Act.

The observation that both vessels had sailed under the British flag after the conclusion of the sale has not been established by evidence. Her Majesty's Govern- ment has reason to suppose that the sale took place after the vessels' arrival at Cherbourg, and if the transfer to French owners had not been entered in the ship's books up to 8th August, the presumption from the fact would be that the sale had not at that time been completed. With regard to Count Bernstorff's remark that remonstrances about coal, &c., had remained without any practical result, Her Majesty's Government has reason to believe that no British vessels have supplied coals directly from British ports to French vessels. Count Bernstorff' in one paragraph

K

70451.-87. 25.-11/92.