CO885-(15-16) — Page 34

M

15491.

PUBLIC RECORD OFFICE

C.O. 88

Reference :-

No. 35A

SOUTH AFRICA,

LAW OFFICERS to FOREIGN OFFICE.

Law Officers' Department,

Boyal Courts of Justice,

May 4, 1900. WE were honoured with Your Lordship's commands, signified in Sir Thomas Sanderson's letter of the 24th ultimo, stating that he was directed by Your Lordship to

MY LORD,

A. Colonial Office, 17th March.

9th April.

B.

"

"1

C. Admiralty, 9th April.

D.

11th April.

E. Colonial Office, 5th April.

transmit to us the papers as marked in the margin respecting the case of the "Mashona," a British steamship, which was seized in Algoa Bay on the 8th December last by H.M.S." Partridge," on suspicion of trading with the enemy, and subse-

F. Admiralty with enclosure, 24th April. quently brought in for adjudication by the Prize Court at Cape Town.

That on March 15th the High Commissioner for South Africa telegraphed (Paper A) to the effect that judgment in the case had been delivered on the 13th March, and that in accordance with its terms the ship had been released. That he added, however, that the Attorney-General of the colony was of the opinion, in which he shared, that the judgment was erroneous, and that he had accordingly given notice of appeal, which could be pro- secuted or not as Her Majesty's Government might see fit when the text of the judgment itself reached this country, and so allowed of a definite opinion being formed in the

matter.

That that judgment had now been received (Paper B), and Sir Thomas Sanderson was accordingly to request us to take it into our consideration, and to favour Your Lordship with our opinion as to whether the appeal already lodged against it should or should not be prosecuted, as well as with any general observations which we might have to offer on the case.

That a copy of the interim judgment was also enclosed (Paper E), as well as some remarks on the general aspects of the matter by the Admiral in Command on the Cape of Good Hope Station (Papers C and D and F).

In obedience to Your Lordship's commands, we have taken the judgment into our consideration, and have the honour to

Report

The

That in our opinion the appeal ought not to be prosecuted. There is no doubt as to the law applicable to the case. If the intention is to trade with the enemy only after obtaining a licence from the British Government, no offence is committed. "Mecurius," Edwards 53. On the other hand, the offence may be committed if the intention was to trade with the enemy without a licence, under the erroneous belief that no licence was required in respect of the particular goods. "The Hoop," 1 C.R., 196.

In the present case it was alleged, on behalf of the shipowner, that the intention was, before carrying the cargo to Delagoa Bay, to give bond to the satisfaction of the Com- missioners of Customs that the goods should be held at the disposal of the British authorities. It must, we think, be taken that the Commissioners of Customs in allowing goods to proceed after such bonds had been given were acting within the authority of the British Government.

The difference between the majority of the Court and the dissenting Judge, Lawrence, J., was merely a question of fact.

As it

We think that the view of the majority of the Court is the more reasonable. was known that such bonds were being exacted, we think that it ought in fairness to be

5929-25-5/1900 Wt 324 D & S-5

885

15 PUBLIC RECORD OFFICE. LONDON

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

}