Lord Lyons to Mr. Seward.
Sir: Her Majesty’s government have had under their consideration reports addressed by Mr. Stuart on the subject of the representations which he had the honor to make to you in the month of October last, with regard to supposed intentions of the naval authorities to appropriate the captured vessel Bermuda, before the proceedings in the admiralty court against that vessel had been brought to a close.
Her Majesty’s government observe, in the first place, that the reference made by you in conversation to a British statute authorizing the sale of a ship before the decision of the appellate court has been pronounced is well founded. Her Majesty’s government are advised that there are, in point of fact, two kinds of sale: first, pendente lite,’ during the period when proceedings are being carried on in the admiralty, or first prize court; and secondly, after condemnation in the admiralty, or first prize court, and before the decision in the appellate court.
The British prize act, passed on the 2d of June, 1854, (17 Vic., cap. 18, sec. 24-5-6,) provides for both these kinds of sale. First, it empowers the judge of the court to order a ship to be duly appraised and sold “whenever it appears desirable, either from the nature of the property captured, the probable length [Page 482] of the proceedings, or any other sufficient cause,” that “the ship, goods, &c., should be sold,” (sec. 24.) On the other hand, it also empowers the judge to direct the ship or goods to be delivered up to the claimant, “upon his giving good and sufficient security to pay to the captain the appraised value thereof, in case the same should be adjudged lawful prize,” (sec. 25.) Secondly, the statute, apart from these claims, directly empowers the admiralty, or first prize court, to sell after condemnation, (sec. 26.)
It is not known to her Majesty’s government whether the United States have passed a similar prize act; but, at all events, the exercise of such an abstract power of sale is not denied by her Majesty’s government to the United States authorities. Her Majesty’s government have, however, instructed me earnestly to represent to you, that if it be found necessary to sell a ship, pendente lite, the claimant ought to be preferred as a purchaser, and that the necessity contemplated as justifying the sale, at this stage of the case, is clearly and unquestionably not the necessity of the belligerent state to supply her naval marine, but a necessity arising from the condition of the ship itself, namely, that it is becoming lessened in value, or otherwise deteriorated, by remaining in the custody of the marshal of the court.
Upon this principle is founded the well-known practice of admiralty courts, both in their civil and prize jurisdictions, to order a sale of “perishable commodities.” But as to the sale after condemnation in the admiralty, or first prize court, I am instructed to represent to you that, in such a case, a sale, if ordered by the court, should be conducted at a public auction, after due notice and advertisements, at which sale, of course, all persons, including the claimant, would be at liberty to be present, to bid for, and purchase the ship.
This appears to her Majesty’s government to be a matter of plain justice to the claimant or owner of the captured vessel, and is, it is believed, in accordance equally with the British and American practice during former wars. The proceeds of the sale would, of course, be paid into court, to abide the issue of the decision by the court of appeal.
I have the honor, &c., &c.,
Hon. William H. Seward, &c., &c., &c.