New Zealand Gazette – 1870 – No. 71

Page 637

✨ Legal Ruling & Appointments

THE NEW ZEALAND GAZETTE.
637

it be the potentate who has the absolute dominion,
or the Government, or a part of the province or of
the people, or the whole of the province or the
people acting for themselves, that is sufficient. But
by way of alternative, it is suggested that there may
be a case where, although you cannot say that the
province or the people, or a part of the province or
people are employing the ship, there yet may be
some person or persons who may be exercising or
assuming to exercise powers of government in the
foreign colony or state, drawing the whole of the
material aid for the hostile proceedings from abroad;
and therefore, by way of alternative, it is stated to be
sufficient if you find the ship prepared or acting in
the service 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;" but that alternative need
not be resorted to if you find the ship is fitted out
and armed for the purpose of being employed in the
service of any foreign state or people, or part of any
province or people.

Upon that the observation of the learned Judge
was this:-"We have no evidence of the object of
the insurrection, who are the leaders, what portion
of Cuba they have possession of, in what manner
this insurrection is controlled or supported, or in
what manner they govern themselves. How, there-
fore, can I say that they are assuming the powers of
Government in or over any part of the Island of
Cuba?"

Now, it appears to their Lordships that the
error into which the learned Judge below fell, was
in confining his attention to what I have termed
the second alternative of this part of the clause,
and in disregarding the first part of the alternative.
It may be (it is not necessary to decide whether it
is so or not) that you could not state who were the
person or persons, or that there were any person or
persons, exercising or assuming to exercise powers of
Government in Cuba, in opposition to the Spanish
authorities. That may be so: their Lordships express
no opinion upon that subject, but they will assume
that there might be a difficulty in bringing the case
within that second alternative of the clause; but
their Lordships are clearly of opinion that there is
no difficulty in bringing the case under the first
alternative of the clause, because their Lordships find
these propositions established beyond all doubt,
there was an insurrection in the Island of Cuba;
there were insurgents who had formed themselves
into a body of people acting together, undertaking
and conducting hostilities; these insurgents, beyond
all doubt, formed part of the province or people of
Cuba; and beyond all doubt the ship in question was
to be employed, and was employed, in connection
with and in the service of this body of insurgents.

Those propositions being established, as their Lord-
ships think they clearly are established, both by the
evidence of Mr. Dumaresq and Mr. Butler, to which
I have already referred, and further by the evidence
of the three witnesses Loinaz at page 36, Wells at
page 7, and Mama at page 25, their Lordships think
that the requisitions of the 7th clause in this respect
are entirely fulfilled, and that the case is made out
under this head, as it is upon all other heads of the
clause.

Their Lordships, therefore, will humbly recommend
to Her Majesty that the decision of the Vice-
Admiralty Court should be reversed, and that
judgment should be pronounced for the Crown
according to the prayer of the Information.

It has been intimated to their Lordships that, on
the 7th of February, there was a decree by their
Lordships for the appraisement and sale of the vessel.
She has been sold, and the net proceeds, £163 4s. 8d.,
paid into Her Majesty's Commissariat chest in the
Bahamas. The Colonial Government, it appears,
have incurred expenses to the amount of £145 5s. 10d.
in keeping the vessel while she was under arrest, and
they claim to be reimbursed those expenses out of
the proceeds of the sale. That of course will be proper;
and if it is necessary to make that part of this order,
it will be done.