The "Salvador."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 28 June 1870 |
| Date | 28 June 1870 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 818
ON APPEAL FROM THE VICE-ADMIRALTY COURT OF THE BAHAMAS.
Mews' Dig. tit. Shipping, A. XXVI. Admiralty Law and Practice, 13. Foreign Enlistment; tit. War, 2. Foreign Enlistment, b. Cases decided under Act of 1819. S.C. L.R. 3 P.C. 218; 39 L.J. Adm. 33; 23 L.T. 203; 18 W.R. 1054. See now Foreign Enlistment Act, 1870 (33 and 34 Vict. c. 90.).
ON APPEAL FROM THE VICE-ADMIRALTY COURT OF THE BAHAMAS. THE QUEEN,-Appellant; JAMES CARLIN,-Respondent * [June 27 and 28, 1870]. the :; salvador." The Foreign Enlistment Act, 59 Geo. 3, c. 69, for prevention of enlisting into Foreign Service, or the fitting out or equipping in Her Majesty's dominions Vessels for warlike purposes provides, by sect. 7, (1) That such Ship or Vessel must be acting without leave or licence of the Sovereign of this Country; (2) That she must be equipped, furnished, fitted out, or armed, or there must * Present: Lord Cairns, Sir James William Colvile, Sir Robert Phillimore (Judge of the High Court of Admiralty), and Sir Joseph Napier, Bart. 818 REG. V. CARUN-SALVADOR (the) [1870] VI MOORE N.S., 510 be a procuring, or an attempt, or endeavour to equip, furnish, fit-out, or arm the Ship ; (3) That such equipment, furnishing, fitting-out, or arming, must be done with the intent or in order that the Ship or Vessel shall be employed in the service of some " Foreign Prince, State, or Potentate, or of any Foreign Colony, Province, or part of any Province or People, or of any Person or Persons exercising, or assuming to exercise, any powers of Government in or over any Foreign State, Colony, Province, or part of any Province or People;" (4) That there must be an intent to employ the Ship or Vessel either as a Transport or Store-ship, or with intent to cruise or commit hostilities against any Prince, State, or Potentate, or against the subjects or Citizens of such Prince, etc., or the persons exercising, or assuming to exercise, the powers of Government in any Colony, Province, or part of any Province or Country, or against the inhabitants of any Foreign Colony, Province, or part of any Province or Country; (5) That such Foreign Prince, State, or Potentate, etc., is one with whom His Majesty should not then be at war. A Vessel having been seized under warrant from the Governor of the Bahama Islands, and proceeded against in the Vice-Admiralty Court there, for breach of the 7th section of the Foreign Enlistment Act, was, upon the hearing of the cause, ordered to be restored, the Vice-Admiralty Court not being satisfied that the Vessel was engaged, within the meaning of that section, in aiding parties in insurrection against a Foreign Government, as such parties did not assume to exercise the powers of Government over any portion of the territory of such Government. Such decision overruled on appeal by the Judicial Committee, on the ground that it was established, that there was an insurrection in the Island of Cuba, the Foreign Government in question; that there were Insurgents who had formed themselves into a body of people, who formed part of the Province or people of Cuba, acting together, and undertaking and conducting hostilities; that the Vessel was employed as a Transport or Store-ship in connection with, and in the service of, this body of Insurgents; and that the Judge of the Court below had miscarried in confining his attention to the second alternative of the third branch of the section, which requires that the person or persons aided must be exercising, or assuming to exercise, the powers of Government. This was an appeal from the decision of the Deputy Judge of the Vice-Admiralty Court of the [510] Bahamas, restoring the Vessel Salvador, which had been seized by the Receiver-General and Treasurer for a breach of the Foreign Enlistment Act, 59Geo. 3, c. 69, s. 7, under a warrant issued by the Governor of Her Majesty's Bahama Islands. The cause commenced in the Vice-Admiralty Court of the Bahamas. An appearance under Protest was entered for Carliri, the Respondent, the Master and Owner of the British Steamship Salvador, and a claim filed in his name for restoration of the Vessel. [511] The Act on protest raised the question, amongst others, whether a cause of forfeiture could be sustained under the 6th section of the above Act, and the Judge ultimately decided, that the cause of the forfeiture must be confined to alleged breaches of the 7th section, and the protest was overruled, so far as related to those causes of forfeiture, and the Claimant was ordered to appear absolutely. On the 22nd of June, 1859, an information on the part of the Crown was filed, claiming forfeiture of the Vessel, for a breach of the 7th section of the above-mentioned Act. The Respondent filed a plea denying the allegations, and alleging that neither he nor any other person or persons did, within Her Majesty's dominions, equip, furnish, or fit-out, nor did he or they aid or assist, nor were lie or they concerned, in the equipping, furnishing, or fitting-out of the Steamship Salvador, with intent, or in order, that she should be employed as a Transport or Store-ship in the service and for the purposes in the information alleged, and prayed restitution of the Ship, with costs and damages. No evidence was adduced on the part of the Claimant, but from the witnesses produced on the part of the Crown, and the proceedings had in the Vice-Admiralty 819 VI MOORE N.S., 512 REG. V. CARLIN-SALVADOR (THE) [1870] Court, the circumstances under which the Salvador was seized appeared to be as follows: - The Salvador sailed from the port of Havana, in the Island of Cuba, on the 22nd of February, 1869, under a provisional register, the Respondent being sole owner and Master, for Jacksonville. On the 24th of March, 1869, his Excellency the [512] Governor of the Bahama Islands, in consequence of the insurrection in Cuba, issued a Proclamation to the following effect: - " Whereas an armed insurrection against the Government of Spain is reported to have taken place, and to be now existing in the Island of Cuba, one of the dependencies of Spain. " And whereas from the proximity of these Islands to the said Island of Cuba, persons engaged or interested in such insurrection may be induced to resort to these Islands with a view to using the different ports thereof as points of departure for the said Island of Cuba. " And whereas Her most Gracious Majesty Queen Victoria is now at peace with the Government of Spain, and it is requisite that Her Majesty's subjects and other persons residing and being within this Colony should abstain from any acts which can be construed into a violation of the amicable relations so existing between Great Britain and Spain, and from violating or in any way contravening the provisions of a certain Statute of the Imperial Parliament of Great Britain and Ireland, made and passed in the 59th year of the reign of the late King George III., to prevent the eplisting or engagement of British subjects to serve in Foreign service, and the fitting out and equipping in the dominions of Great Britain Vessels for warlike purposes. " Now, therefore, that persons may not plead ignorance of the provisions of the said Statute, or unwarily render themselves liable to the penalties thereby imposed, I do issue this my Proclamation notifying as well to all Her Majesty's loving subjects within these Islands, as to all other persons residing [513] or being within the same, that in and by the said Statute so made and passed as aforesaid, 59 Geo. 3, c. 69, entitled ' An Act to prevent the enlisting or engagement of His Majesty's subjects to serve in Foreign service, and the fitting-out and equipping in His Majesty's dominions Vessels for warlike purposes without His Majesty's license, it is, amongst other things enacted as follows:-'" The Proclamation then contained the principal provisions of the British Foreign Enlistment Act, 59 Geo. 3, c. 69, including the 7th...
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