Page images

cation, and whether/after having been released, she conld lawfully have been again seized and brought to adjudication?

In obedience to your Lordship's commands, we have taken the papers into consideration, and have the honour to report that, assuming the Industria to have come into Black River, in the island of Jamaica, through distress, we apprehend that she could not be deemed to have thereby committed any offence against the laws of Great Britain, and therefore think that she was not liable to seizure and confiscation by the civil authorities of the island. We are, however, of opinion, that she might have been seized by a British cruiser, duly commissioned, under the treaty with Spain for the abolition of the slave-trade, and carried before a Court of Mixed Commission for adjudication.

The prior release of a vessel does not prevent a subsequent lawful seizure.

(4.) Extract from Opinion of the United States Attorney General, Mr. Legare, in the case of the Creole, an American Vessel, which under stress of weather put into port at the Bahamas with Slaves on hoard (i).

Office of the Attorney General, July 20, 1842.

The principle is, that if a vessel be driven by stress of

weather, or forced by vis major, or, in short, be compelled by any overruling necessity, to take refuge in the ports of another, she is not considered as subject to the municipal law of that other, so far as concerns any penalty, prohibition, tax, or incapacity that would otherwise be incurred by entering the ports; provided she do nothing further to violate the municipal law during her stay. The comity of nations—which is the usage, the common law, of civilized nations, and a breach of which would now be justly regarded as a grave offence—has gone very far on this point. The law of Europe, barbarous as it was in many respects (e.g., wrecks), furnishes examples of this exemption (see 2 Inst., 57; Coke's Com. on Magna

The Right Hon. Lord J. Russell, &c. &c. &c.


J. Campbeix.
Thos. Wilde.

(i) 4 Attorney Generals' Opinions, 98.

Charta, and a citation of ancient Saxon laws). When a ship is driven into port by stress of weather, and there unloads her cargo, she is not bound to pay duties or customs in that place, because she came there by force; nor is she liable to forfeiture; neither are duties to be paid on goods forcibly driven into port. If there is a case in which the excuse of necessity would be regarded with suspicion, and received with disfavour, it is undoubtedly a breach of blockade, one of the extreme cases of the law of war, involving in its own nature a necessity that would seem to supersede all others. Set Sir William Scott admits it to be a good plea when the facts fully support it (see 5 Rob. 27—the Fortune).

Under the English Navigation Act it has been'settled, that coming in by stress of weather could not be an importation without reference to intention or mala fides (see the cases collected in 1 Chitty's Commercial Law, p. 245). What is this but an admission, by statute, that a ship in that category is, like a ship of war belonging to a friendly Power, considered by the law of England as not subject to the municipal law? This analogy of a ship of war, like that of a foreign Sovereign travelling in the dominions of a friendly Power, and of ambassadors of all classes, shows the principle of immunity, by reason of a quasi or fictitious extra-territoriality, to be familiar to the law. But put it on the ground of comity, it is plainly juris gentium. To show how sacred the duties of humanity have been considered in England, even as between enemies, Sir William Scott rejected with indignation a claim of capture by persons going on board in distress, allowing freight, expenses, and demurrage to the ship (1 Rob. 243—the Yonge, Jaeobi v. Bannermari). Further, the distinction is plain between calling on the foreigner for help (though even that is not often refused in case of distress), and demanding of him only a temporary asylum. In the former case, we ask him to aid in executing our municipal law in his territory; in the latter, we ask to be exempted from his municipal law in our territory. Beyond all question, a ship on the high seas, beyond a marine league from shore, is part of the territory of the nation to which she belongs. Why should her being blown &c., within a marine league, by tempests, &c., make a difference? We affirm that to shut up our ports absolutely to vessels in distress, would be loss hostile than to admit them on such conditions. Hospiiio prohibemur arena in either case, and the relation is one of covert hostility. Suppose the case of a British transport or cartel filled with impressed seamen driven into our ports, or a convict ship into those of France (i).

(5.) Case and Joint Opinion of the Queen's Advocate, Sib J. D. Harding, and the Attorney and Solicitor General, Sib Fredebick Thesiger and Sir Fitzroy Kelly, on the seizure of some French Vessels at the Gambia. 1852.

Case.—In the year 1848 a French vessel and five canoes were seized (at separate times), and in March, 1850, another French vessel was seized, by order of the Governor of Gambia, in the neighbourhood of, or above, the French factory of Albreda, which is situate on the River Gambia, thirty miles above the town of Bathurst, which is a British settlement.

In an account given by the Governor of the seizures (in a letter addressed to Earl Grey), he said that he had seized the first of those vessels, the Nancy, because she was French-owned, Frenchmanned, without papers, and trading above the highest limits to which any French vessel was permitted to go in that river; and for a breach of the Navigation Act, 8 & 9 Vict. c. 88, s. 14, being neither British-owned nor British-navigated, s. 24 declaring, under such circumstances, her cargo forfeited, and the 4th section of the Registry Act declaring, under the same circumstances, the vessel forfeited. He next caused to be seized several canoes, laden with brown nuts, the produce of the Gambia river, and proceeding to the French Comptoir at Albreda. They were either owned by or hired by Frenchmen, and the seizure was made on the alleged ground that it was illegal for any French boat, or boat hired by the French, to trade or move, with or without cargo, on the waters of the river beyond Gambia. The last vessel seized was the Combo, a small cutter, which the Governor saw anchored in front of the French Comptoir, and she was publicly seized as being without papers or any avowed owner. No claim was made for any of the vessels or canoes so seized by the Governor. In a despatch

(il See the debate on the case of the Creole in the House of Lords, Feb. 14, 1842: Hansard's Pari. Deb. vol. Ix. p. 318.

from the Governor defending the seizure, he referred to the Treaty of Versailles (1783), which contains, amongst others, the following articles:—

Art . 9. The King of Great Britain cedes in full right, and guarantees to his Most Christian Majesty, the River Senegal and its dependencies, with the forts of St. Louis, Podor, Galam, Arguin, and Portendie; and his Britannic Majesty restores to France the island of Goree, which shall be delivered up in the condition it was in when the conquest of it was made.

Art. 10. The Most Christian King, on his part, guarantees to the King of Great Britain the possession of Fort James, and of the River Gambia.

Art. 11. For preventing all discussion in that part of the world, the two high contracting parties shall, within three months after the exchange of the ratification of the present treaty, name commissaries, who shall be charged with the settling and fixing of the boundaries of the respective possessions. As to the gum trade, the English shall have the liberty of carrying it on from the mouth of the River St. John to the bay and fort of Portendie inclusively: provided that they shall not form any permanent settlement of what nature soever in the said River St. John, upon the coast, or in the Bay of Portendie.

Art. 12. As to the residue of the coast of Africa, the English and French subjects shall continue to resort thereto, according to the usage which has hitherto prevailed.

In addition to the statutes above-mentioned, the Law Officers were referred to statute 12 & 13 Vict. c. 29, s. 20 (" An Act to amend the Laws in force for the encouragement of British Shipping and Navigation, 1849 "), and they were requested to advise upon the legality of the seizures in question.

Opinion.—We are of opinion that the seizures in question are not warranted by law.

These not being British vessels, there is nothing in the Acts in force relating to customs and navigation at the time of the seizure which renders any but British vessels liable to forfeiture; although, by the 24th section of 8 & 9 Vict. c. 89, the goods on board the vessels in question became forfeited, and the master of each incurred a penalty of £100.

There appears to be nothing in the Treaty of Versailles (to which we are referred) which gives any right of seizure.

It may be worthy the consideration of Her Majesty's Government, whether such violation of the law of nations, and the spirit of our own statutes, ought not to be made punishable by statute with the forfeiture of the offending vessel.

J. D. Harding.

Doctors' Commons, April 3, 1852. Fred. Thesigeb.1

FrrzBoY Kelly.

(C.) Joint Opinion of the Queen's Advocate, Sir J. D. HardIng, and the Attorney and Solicitor General, Sir A. E. Cockbuen and Sir Richard Bethell, as to what constitutes loss of Nationality in a Ship.

Doctors' Commons, August 6, 1853.

My Lord Duke,—We are honoured with your Grace's commands, signified in Mr. Merivale's letter of the 20th of April last, stating that he was directed to transmit to us copy of a despatch, with its enclosures, received from the Lieutenant-Governor of Nova Scotia, and to request that we would jointly report to your Grace, whether we agree in the view of the law taken by the Judge of the Admiralty Court at Halifax, in the case of the Creole, and if not, in what respect we differ from it?

Whether, also, it appears to us that such amendments of the law, as suggested by the Judge in his letter of the 31st of March, are called for or advisable?

We are also honoured with Mr. Merivale's letter of the 4th of June, stating that, with reference to the Queen's Advocate's letter of the 23rd of April, he was directed by your Grace to transmit to us the copy of a further despatch from the Lieutenant-Governor of Nova Scotia, supplying the documents and other information required to enable us to report our opinion upon the case of the Creole, seized for the infraction of the Fishery Regulations.

In obedience to your Grace's commands, we have taken the papers into consideration, and have the honour to report—

That we do not agree with the view of the law taken by the Judge of the Admiralty Court at Halifax, in the case of the Creole; and that we are of opinion that, inasmuch as the Creole, although

« PreviousContinue »