§ MR. PEACOCKE
rose to call attention to the subject of which he had given notice, and thought, when the House was made acquainted with the facts, that they would agree with him that it was one of the most bungling transactions that any Government was ever engaged in. It would appear that the Confederate vessel of war the Alabama, under the command of Captain Semmes, captured off the coast of Brazil a Federal bark, the Conrad, which he armed and converted into a, tender to the Alabama, under the Confederate flag. Some weeks afterwards Captain Semmes had occasion to proceed: to the vicinity of the Cape, accompanied by the tender, then called the Tuscaloosa, and he informed the authorities at the Cape that his vessel needed some repairs, 1778 and that the Tuscaloosa was a tender to his ship cruising off the coast. When that information reached the authorities at the Cape, there began a correspondence to which he should have to call attention. In the first place, he must observe that a valuable and esteemed friend—no less a person than Sir Baldwin Walker—was the Admiral on the station, and it would be a consolation to that gallant officer's admirers to know that although so distant from this country, he still displayed the same amount of party zeal which had distinguished him at home. Sir Baldwin Walker immediately wrote to the Governor of the Cape to know how the Tuscaloosa was to be treated; and he was informed that in the opinion of the Attorney General of the Colony that vessel must be regarded as a tender and not as a prize. But Sir Baldwin Walker was not satisfied with this opinion of the Attorney General—he returned to the charge, and again asked the Governor how the vessel should be treated and then he was referred to Wheaton, to show that if certain conditions were complied with—that if the vessel had a commission of war, or was in the command of an officer of the Confederate navy—she must be treated as a tender and not as a prize. That reply reduced Sir Baldwin Walker to submission, but not to silence. He was determined that if the Attorney General had the best of it at the Cape, he would have the best of it at home; so he wrote home at once to the Admiralty a despatch, in which he said—I would here beg to submit to their Lordships' notice that the power of a captain of a ship of war to constitute every prize he may make a 'tender,' appears likely to me to lead to abuse and evasion of the laws of strict neutrality, by being used as a means of bringing prizes into neutral ports, for disposal of their cargoes and secret arrangements."— Correspondence, North America, No. 6 (1864), p. 1.Now, what was this opinion of Sir Baldwin Walker but an imputation upon that of the Attorney General; nor was it consoling to think, when so many delicate and difficult questions were likely to arise there, that we had a second Commodore Wilkes commanding at that station. These facts were duly reported by Sir Philip Wodehouse to the Duke of Newcastle, who also forwarded the claim which had been made by the United States Consul at the Cape, that the Tuscaloosa should be given up. He would read to the House the grounds upon which the claim was made by Mr. Graham— 1779I am well aware that your Government has conceded to the so-called Confederate States the rights of belligerents, and is thereby bound to respect Captain Semmes's commission; but having refused to recognize the 'Confederacy' as a nation, and having excluded his captures from all the ports of the British Empire, the captures necessarily revert to their real owners, and are forfeited by Captain Semmes as soon as they enter a British port."—Correspondence, No. 6 (1864), p. 11.Now, as Her Majesty's Government had thought fit to endorse that claim, he would ask whether Her Majesty's Government acquiesced in the reasons which were urged in its favour. Meanwhile, Mr. Adams had not been idle. He brought a good deal of pressure to bear upon Lord John Russell, who wrote a despatch in compliance with his demand.
Now, the House would observe that there was at least one pleasing feature in the despatch, because it showed that there was at all events one country to which Her Majesty's Secretary for Foreign Affairs could be courteous or even submissive. He could picture to himself the surprise with which the Ambassadors of Russia, Austria, Prussia, and even France would have received a despatch couched in such language; and he would venture to assert that if such a despatch were addressed to any of the smaller Powers of Europe, such as Portugal or Greece, the document would be looked upon as a hoax, and the signature as a forgery. These were not mere idle words upon the part of Earl Russell— the promise was fulfilled to the letter; and in consequence of this promise a despatch was sent out from the Colonial Office to Sir Philip Wodehouse, the Governor of the Cape, which was one of the most extraordinary documents he had ever read. He believed he was stating an undoubted fact when he asserted that, although the despatch was signed by the Duke of Newcastle, it was no more that nobleman's than it was his own, the Colonial Office acting merely as an official channel for the transmission of the despatch from the Foreign Office. He would begin by calling attention to the 7th paragraph—Whether, in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra prœsidia, or condemned by a Court of Prize, the character of prize, within the meaning of Her Majesty's Orders, would or would not be merged in that of a national ship of war, I am not called upon to explain.He called upon to explain! Why, this is precisely one of those questions upon which 1780 it was his duty to give the most clear and positive instructions. The despatch went on to say—I think it right to observe that the third reason alleged by the Attorney General for his opinion assumes (though the fact had not been made the subject of an inquiry) that 'no means existed for determining whether the ship had or had not been judicially condemned in a Court of competent jurisdiction;' and the proposition that, 'admitting her to have been captured by a ship of war of the Confederate States, she was entitled to refer Her Majesty's Government, in case of any dispute, to the Court of her States, in order to satisfy it as lo her real character.' This assumption, however, is not consistent with Her Majesty's undoubted right to determine within her own territory, whether her own orders, made in vindication of her own neutrality, had been violated or not.The Attorney General's opinion was not given at length; but he (Mr. Peacocke) would show, in a case he should quote, that the part of it which was found fault with was exactly in accordance with the law as laid down in the Courts. As regards the concluding part of the despatch, it might be nothing more than a harmless platitude; but it might mean a good deal more; it might mean that we were to look behind the flag and the commission of a vessel of war, and he would presently show that such was the spirit in which those instructions were understood and carried out. The cream and gist of the despatch lay in the concluding paragraph—I think that the allegations of the United States Consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's Orders, made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances, most consistent with Her Majesty's dignity and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by her captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners."—Correspondence, No. 6 (1864), pp. 18, 19.Now, he did not believe that there was any learned Gentleman in that House who would rise in his place and defend the legality of those instructions. Let there be no mistake upon the point. He asked the hon. and learned Member for Richmond (the Attorney General) if he was 1781 prepared to stake his professional reputation in defence of those instructions, for it was a well known principle of International Law that, as between two belligerents, the property of one belligerent, when seized by another, became the property of the captor, and that the claim of the original owner was entirely and absolutely extinguished; and therefore it would have been just as much within the principles of International Law if our Government had ordered our Governor at the Cape to seize the vessel and hand it over to the Emperor of Russia as to hand the vessel over to the original owner. But he had the satisfaction of finding that whereas, in a previous paragraph, the Colonial Secretary stated that he was advised in the last paragraph the writer only "thought;" and putting this in connection with what he had heard in another place, he believed that these instructions were not issued in accordance with the advice of the Law Officers of the Crown, but simply and solely upon the responsibility of Her Majesty's Government. He regarded them simply as a weak and illegal concession by Lord Russell to the demands of Mr. Adams. Sir Philip Wodehouse replied—Your Grace intimates that the citation from this authority by the Acting Attorney General does not appear to have any direct bearing upon the question. You will assuredly believe that it is not from any want of respect for your opinion, but solely from a desire to avoid future error, that I confess my inability to understand this intimation; or, in the absence of instructions on that head, to see in what direction I am to look for the law bearing on this subject. The paragraph cited made no distinction between a vessel with cargo and a vessel without cargo; and your Grace leaves me in ignorance whether her character would have been changed if Captain Semmes had got rid of the cargo before claiming for her admission as a ship of war. Certainly, acts have been done by him, which, according to Wheaton, constituted a 'setting forth as a vessel of war.' Your Grace likewise states, 'Whether in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra, prœsidia, or condemned by a Court of Prize, the character of prize, within the meaning of Her Majesty's orders, would or would not be merged in a national ship of war, I am not called upon to explain.' I feel myself forced to ask for further advice on this point, on which it is quite possible I may be called upon to take an active part. I have already, in error apparently, admitted a Confederate prize as a ship of war. The chief authority on International Law in which it is in my power to refer is Wheaton, who apparently draws no distinction between ships of war and other ships when found in the position of prizes, and I wish your Grace to be aware that within the last few days the commander of a United 1782 States ship of war observed to me, that if it were his good fortune to capture the Alabama he should convert her into a Federal cruiser. I trust your Grace will see how desirable it is that I should be fully informed of the views of Her Majesty's Government on these points, and that I shall be favoured with a reply to this despatch at your earliest convenience," — Correspondence, No. 6 (1864), p. 20.He had only to add that his Grace had not considered it "desirable" to furnish Sir Philip Wodehouse with the information he required, nor to reply to him at his earliest convenience; for (the House would hardly believe it) no answer had been sent up to the present time, or at all events there was no reply included in the papers before the House. The Tuscaloosa sailed from the Cape and returned, after a cruise of some weeks' duration. She had before been treated as a vessel of war, and expected to be so treated again; but on her return she was captured by Sir Baldwin Walker, who thus reported the circumstance. On the return of the Tuscaloosa to the Cape they found their old friend Admiral Sir Baldwin Walker writing—As it appears that this vessel, the Tuscaloosa, late Federal ship Conrad, is an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I therefore consider that she ought to be detained, with the view of her being reclaimed by her original owners, in accordance with the opinion of the Law Officers of the Crown forwarded for my guidance, the copy of which I have already transmitted to you."—p. 21.He believed that when the hon. and learned Member for Richmond rose to address the House, he would not defend the course of transmitting the opinion of the Law Officers for the guidance of the Colonial authorities, but observe a discreet silence upon the point. When he (Mr. Peacocke) asked the noble Lord at the head of the Government to produce the opinion of the Law Officers, the noble Lord replied that it was not the custom to lay on the table the opinions of the Law Officers, and that those opinions were confidential and were intended only for the guidance of the Government, upon which they could act or not as they pleased. He concurred with this statement; but why, then, was not the opinion of the Law Officers embodied in a despatch; and why was not that despatch sent to the authorities at the Cape for their information and guidance? A very bad habit had grown up of late upon the part of many Ministers, and more especially on the part of Lord Russell, of stating, whenever a point of International 1783 Law arose, that he had taken the opinion of the Law Officers; and, as this opinion could not be produced, the jurisdiction of the House was thereby fettered, and they were unable to discuss satisfactorily a question of policy. Responsibility was thus shuffled off, if even the paper was ultimately laid on the table. Matters were not very much improved, for, oven in that case, Ministerial responsibility would be very much shuffled off and evaded. Take the present case for instance. Who were responsible? The authorities at the Cape were not responsible, for they had only acted on a fair interpretation of the opinion forwarded to them for their guidance. The Ministry were hardly responsible, for they had been little more than the official channel for sending the opinion of the Law Officers to the Cape. And lastly, the Law Officers could not be regarded as responsible, because, in the language of Lord Palmerston, they had only given a confidential opinion to the Ministry. He hoped that the noble Lord, who seemed to be alive to the unconstitutional nature of the practice, would at once put a stop to it on the part of his Colleagues and subordinates. Though they had not got the opinion of the Law Officers, the House might arrive at some approximate idea of what that opinion was from the answers given to questions which Sir Baldwin Walker, in accordance with instructions, put to the commander of the Tuscaloosa. From this it appeared that the vessel was sailing under the Confederate flag; that her commander was Lieutenant Low; that she had on board four officers and twenty men; that she had three small brass guns — two rifled 12-pounders, and a smooth-bore; that she was cruising and had put into the Cape for repairs and supplies; that her commander had a commission from Captain Semmes; that the other officers also had commissions signed by him, and that she had no cargo on board. This showed that the opinion of the Law Officers of the Crown did not turn upon the nature of the cargo. Now, what was the law upon this question? Wheaton said that the jurisdiction of the National Courts of the captor to determine the validity of captures made in war under the authority of the Government was conclusive of the judicial authority of every other country, with two exceptions only—1, when the capture was made within the territorial limits of a neutral State; and 2, when it was made by armed vessels fitted out with- 1784 in the neutral territory. Neither of these exceptions applied here. In the case of the Exchange, an American vessel seized by the French, and armed by them, and which afterwards entered under the French flag the Port of Philadelphia, where she was attached, Chief Justice Marshal said—It seems, then, to the Court to be a principle of public law that ships of war entering the port of a friendly Power open for their reception are to be considered as exempted by the consent of that Power from its jurisdiction.…. The arguments in favour of this opinion have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration that the sovereign power of the nation is alone competent to avenge wrongs committed by a Sovereign; that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic rather than legal discussion.In other words, if the English Government had wished to raise any question in this case, they should have raised it at Richmond and not at the Cape. In the case of the Santissima Trinidad, Chief Justice Story said—Nor will the Courts of a foreign country inquire into the means by which the title to property has been acquired. It would be to exert the right of examining the validity of the acts of the foreign Sovereign, and to sit in judgment upon them in cases where he has not conceded the jurisdiction, and where it would be inconsistent with his own supremacy. The commission, therefore, of a public ship when duly authenticated, so far at least as foreign Courts are concerned, imparts absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted.These opinions established the fact, that if there was a commission you could not look beyond it; and the only question remaining, therefore, was whether Captain Semmes had any right to grant this commission. In the case of the Ceylon, which was an English East Indiaman, captured by some French frigates, supplied with carronades and a crew of seventy men, and which then cruised under the command of a lieutenant, with a commission from a commodore, Sir William Scott, afterwards Lord Stowell, said—I hold it to be unnecessary that she should have been regularly commissioned; it is enough that she was employed in the public military service of the enemy by those who had competent authority so to employ her.Sir William Scott then quoted the case of the Castor, which ship was not carried into port, and added—There was no regular commission, for it is not in the power of the Admiral to grant a regular commission; he has only an inchoate authority 1785 for such a purpose, and his acts necessarily require confirmation. Yet in that case it was held that the ship, though commissioned by the Admiral alone, was sufficiently clothed with the character of a vessel of war…. We know extremely well that in remote parts of the world where the domestic authority cannot be immediately resorted to, the commanders are of necessity vested with larger powers than are usually intrusted to them when employed on European stations. I think this vessel was sufficiently commissioned by the French commander on the station. This lieutenant de vaisseau and seventy men were put on board by his order in the first instance, subject undoubtedly to the approbation of the French Minister of Marine; but can I doubt that this appointment would have been confirmed by the constituted authorities at home in the present situation of the French navy.Could the Government doubt that the commission granted by Captain Semmes would have been duly confirmed by the authorities of Richmond. Another case, that of the Georgiana, was stronger still, and seemed to be exactly on all fours with the present. The Georgiana was a British whaler, captured by the American frigate Essex. The American captain, without taking his prize into port or taking out the cargo, supplied her with ten additional guns and sixty men, and employed her, under one of his lieutenants, to cruise against British vessels. The force with which she had been supplied was sub sequently reduced, and when she was taken she had only four guns and fifteen men on board. In that case Sir William Scott held that she was sufficiently set forth for war, and that a commander of a single vessel had the same authority to grant a commission as a commodore. It seemed to him that, unless the Law Officers could override this decision by Lord Stowell, it was decisive of the question. It had been commonly our practice to commission vessels captured from an enemy; it is repeatedly referred to in James's Naval History; and this practice was so commonly received that the American captain at the Cape told the authorities there that if he captured the Alabama he would turn her into a Federal cruiser. It was a curious fact that the Government had taken no notice of these despatches until March 4, and the dates coincided exactly with the time when this subject was taken up by the House. When pressed on the subject, and asked if the vessel had been seized, the Government took the matter into consideration and came to a hasty conclusion to write to the Governor and say that they would give up the vessel; but they took a week to wrangle among themselves as to the reasons which 1786 should be assigned for that conclusion. At last, in a despatch of March 10, (the Duke of Newcastle to Sir Philip Wodehouse,) they assigned these special reasons—I have now to explain that this decision was not founded on any general principle respecting the treatment of prizes captured by the cruisers of cither belligerent, but on the peculiar circumstances of the case. The Tuscaloosa was allowed to enter the port of Cape Town and to depart, the instructions of the 4th of November not having arrived at the Cape before her departure. The captain of the Alabama was thus entitled to assume that he might equally bring her a second time into the same harbour, and it becomes unnecessary to discuss whether, on her return to the Cape, the Tuscaloosa still retained the character of a prize, or whether she had lost that character, and had assumed that of an armed tender to the Alabama, and whether that new character, if properly established and admitted, would have entitled her to the same privilege of admission which might be accorded to her captor, the Alabama. Her Majesty's Government have, therefore, come to the opinion, founded on the special circumstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the captain of the Alabama, that the ships of war of the belligerents are not to be allowed to bring prizes into British ports, and that it rests with Her Majesty's Government to decide to what vessels that character belongs." p. 31.Now, in all this, there was not a single word in answer to the request of Sir Philip Wodehouse, to have some requisite instructions given him how he was to act, and not one word as to the damages which had been incurred. What were the leading characteristics of the despatch? They were uncertainty, uncertainty, uncertainty. Her Majesty's Government declined to discuss the point whether the Tuscaloosa still retained her original character of a prize. They preferred shifting the responsibility from their own shoulders to those of the Governor of the Cape—ready to condemn him if he was wrong, equally ready to condemn him if he was right. They gave him to understand that the Tuscaloosa was a prize, was seized as a prize, and that she was released because she had not before been treated as a vessel of war. But they did not lay down one of these propositions distinctly, and the Governor could only arrive at this conclusion by implication. It was true that in this despatch the Duke of Newcastle stated that the Tuscaloosa had been released for special reasons, but the Governor could only judge what those reasons were by implication. Now, he would ask, was this a fair and straightforward manner of dealing with a servant of the Crown? Was it not, on the other 1787 hand, acting in a most cowardly and impolitic manner? If the servants of the Crown were to observe the law, they ought to have clear and definite instructions; but if the Government wished to embroil the country with foreign Powers, the best way was to take the opposite course, to act as they had done, to harass them with contrary instructions, to involve them in legal subtleties which they themselves refused to solve, and to embarrass them with diplomatic difficulties which they refused to explain. If everything else was misty and uncertain, one thing, at all events, was sure, and that was that the instructions of November remained unrepealed, and were virtually re-affirmed; and he now called upon the House to demand their immediate repeal. As long as they continued in force what was our position? If we enforced them against the South we must also enforce them against the North. A Federal captain had given notice that if he captured one of the Confederate vessels he would turn her into a cruiser. If we were to seize that vessel and give her up to the Confederates, would the Federal Government tolerate such treatment? If we applied these instructions against a strong Power we should plunge the country into war. If we applied them against a weak Power we should cover the country with unutterable shame. In the interests of peace, he called upon the House to pass a Resolution for the revocation of those instructions, which, so long as they remained in force and unrepealed, were to this country a standing source at once of danger and disgrace.
To leave out from the word "That" to the end of the Question, in order to add the words "the instructions contained in the Despatch of the Duke of Newcastle to Sir P. Wodehouse, dated the 4th day of November, 1863, and which remain still unrevoked, are at variance with the principles of International Law,"—(Mr. Peacocke,)
§ Question proposed "That the words proposed to be left out stand part of the Question."
THE SOLICITOR GENERAL
said, the hon. Member who had moved the Resolution (Mr. Peacocke) did not ask the opinion of the House on a question of policy, but asked their judgment on a pure question of International Law. He did not specify any objection he had to the despatch of the Duke of Newcastle, but 1788 left his objection to be gathered from the tenor of his speech. In replying to the hon. Member, he was far from denying the perfect right and the competence of the House to entertain questions of International Law; but all would agree that if the House were to entertain such questions they should approach them in a judicial spirit, apart from any sympathies or antipathies that might be entertained. Questions of International Law were not questions of a party character. And it appeared to him that the House ought to well consider before, by a solemn Resolution, they affirmed or denied any principle of International Law. It was not a usual course for the House to adopt. We should remember that we were now neutrals and looked upon questions of International Law from a neutral point of view. But the time might come, and might not be far distant, when we might again be belligerents and have to exercise belligerent rights; and when we exercised them it might happen that other neutral nations might turn any decision at which this House might arrive against us. It was right, therefore, to consider well before we furnished them with a weapon forged by ourselves and which might be turned against us. Nothing could be quoted with such crushing effect as a Resolution which the House had gone out of the way to adopt. The first question to be determined in this case was this — was the Tuscaloosa when she came into Simon's Bay still a prize, or had she lost the character of a prize and assumed the new character of a vessel of war? There was no dispute about this—that she was a prize—that she had not been taken into any port of the Confederate States to be adjudicated upon and condemned, and that she was brought into the neutral harbour of Simon's Bay. Now, had she been bonâ fide converted from a merchant ship into a vessel of war in the Confederate service — had she been bonâ fide converted? That was the real question. International Law, like all other laws, distinguished between real transactions and mere pretences. If in one of our Courts it appeared that a trader had passed his property by a hill of sale to a friend, even though all the formalities had been adopted, the Court would inquire as to whether the transaction was real or was merely a pretence—whether the trader really meant to convey his property or merely intended to deceive his creditors. 1789 There was no rule of International Law which required us to bandage our eyes so as not to see the reality of a transaction. The question here was, whether the conversion of this trader into a man-of-war was a reality or a mere sham for the purpose of evading the Queen's orders. He thought the evidence would show beyond doubt that the conversion into a man-of-war was a mere pretence. What would be the consequences of adopting the opposite doctrine? Was it to be asserted that, upon either a Federal or a Confederate captain bringing a prize into one of our ports, choosing to say, "This is a vessel of war," we had not the right to inquire whether that statement was true or false? If this were so, what would be the use of the Queen's orders? They might be set at naught, vessels might be brought into a port with two or three guns, or a flag to conceal their true character, in defiance of the Queen's orders, and the effect of those orders would be rendered null and void. Now, what were the facts as to the Tuscaloosa? Upon this point he could not help expressing his surprise and astonishment at the terms in which the hon. Gentleman had spoken of so distinguished an officer as Sir Baldwin Walker. His case could not be very strong if it required to be supported by such unfounded and ungenerous attacks. What difference on earth could it make personally to Sir Baldwin Walker whether this was a vessel of war or not? But certainly if there was any man who knew the difference between a merchantman and a vessel of war it was Sir Baldwin Walker, and the opinion of Sir Baldwin Walker was conclusive. It appeared that Captain Semmes mentioned, after his arrival at the port, that he had left outside one of his prizes previously taken, the Tuscaloosa, which he had equipped and fitted as a tender, and had ordered her to meet him in Simon's Bay, and said that she was a vessel of the Confederate navy. That was the communication which he made to the Governor. There was not one single word said as to any real or supposed commission. The Attorney General of the colony thought upon that statement that it was not necessary to prevent her from coming into the port, and it was not necessary to determine whether that gentleman was right or wrong in that view of the case, and indeed it had never been the intention of the Law Officers of the Crown, or of the Government, to impute the slightest blame 1790 to the Attorney General or the Governor; so far from it, in the last despatch of the Duke of Newcastle, he disclaimed any imputation whatever on any of the colonial authorities. The Government differed from his second, if not from his first opinion, but it would be highly improper if they had attempted to blame him for the conclusion at which he had arrived on a difficult question, which might well be argued for several days, as in a late well known case, before four learned Judges, who in the end might be divided in opinion. The report of Sir Baldwin Walker upon the state of the vessel was perfectly conclusive as to her real character. Sir Baldwin, in his letter of the 8th of August, said—The vessel in question, now called the Tuscaloosa, arrived here this evening, and the boarding officer from my flagship obtained the following information:—That she is a bark of 500 tons, with two small rifled 12-pounder guns and ten men, and was captured by the Alabama on the 21st of June last, off the coast of Brazil; cargo of wool still on board" —Correspondence, No. 6 (1864), p. 31.These guns, it appeared, were guns which had been taken from another prize; they were no portion of the Alabama's armament. Sir Baldwin Walker then went on to say—The admission of this vessel into port will, I fear, open the door for numbers of vessels captured under similar circumstances being denominated tenders, with a view to avoid the prohibition contained in the Queen's instructions; and I would observe that the vessel Sea Bride, captured by the Alabama off Table Bay a few days since, or all other prizes, might be in like manner styled tenders, making the prohibition entirely null and void. I apprehend that, to bring a captured vessel under the denomination of a vessel of war, she must be fitted for warlike purposes, and not merely have a few men and two small guns put on board her (in fact nothing but a prize crew) in order to disguise her real character as a prize. Now this vessel hag her original cargo of wool still on board, which cannot be required for warlike purposes, and her armament and the number of her crew are quite insufficient for any services other than those of slight defence. Viewing all the circumstances of the case, they afford room for the supposition that the vessel is styled a 'tender' with the object of avoiding the prohibition against her entrance as a prize into our ports, where, if the captors wished, arrangements could be made for the disposal of her valuable cargo, the transhipment of which, your Excellency will not fail to see, might be readily effected on any part of the coast beyond the limits of this colony,"—p. 3.He would now call the attention of the House to the statement of Mr. Graham, the United States Consul, which showed that the fears of Sir Baldwin Walker were not unfounded. This gentleman said— 1791The Tuscaloosa remained in Simon's Bay seven days with her original cargo of skins and wool on board. This cargo, I am informed by those who claim to know, has been purchased by merchants in Cape Town; and if it should be landed here directly from the prize, or be transferred to other vessels at some secluded harbour on the coast beyond this colony, and brought from thence here, the infringement of neutrality will be so palpable and flagrant that Her Majesty's Government will probably satisfy the claims of the owners gracefully and at once, and thus remove all cause of complaint. In so doing it will have to disavow and repudiate the acts of its executive agents here—a result I have done all in my power to prevent."—Correspondence, No. 6 (1864), p. 12.Now, he thought the House would be of opinion that the American Consul's information was very correct, for something more was known of this transaction. The case of the Saxon had been brought before the House a short time since, and it was known what had become of the cargo of the Tuscaloosa. The cargo of the Tuscaloosa actually was deposited at a place just outside the limits of the colony called Angra Pequena, and the Saxon was sent from Cape Town to fetch it. No man could doubt for a moment that the arrangement was made while the Tuscaloosa was at Simon's Bay, and the object of this disguise, this sham, this imposture, was to make that arrangement. That was the real transaction. The Government were of opinion that, under the circumstances, the vessel did not lose her character as a prize, and that she had not obtained the character of a vessel of war. They were also of opinion that the passage from Wheaton, which the Colonial Attorney General had fired at the Admiral, to which that gallant officer reluctantly succumbed, did not apply. The Admiral stood out, but the Attorney General and Wheaton compelled him to surrender. The passage cited by the Attorney General referred entirely to the construction of the words of a municipal statute, which this country and the United States, in pretty nearly the same words, were in the habit of passing at the breaking out of a war, for the simple object of regulating the distribution of prize money. It was to the effect that if a merchant vessel were captured by the enemy, and if subsequently she were recaptured by one of our own vessels, then, if she had been "set forth as a vessel of war," her proceeds would go to her captors; but if she retained her original character of a merchant vessel, then she would revert to her original owners, paying salvage. That was the sole object of the 1792 statute, and it had no reference whatever to International Law. The House would see, therefore, that the question which arose in this case could not possibly arise under that statute, because the enemy could have no object in colourably and ostensibly "setting forth" a vessel as a vessel of war; for it was no matter to him, if she were recaptured, to whom her proceeds would go. No doubt it was easy for any one reading only the passage by itself, without referring to the authorities, to be misled by it. This was what Wheaton said—Thus it has been settled that where a ship was originally armed for the slave trade, and after capture an additional number of men were put on board, but there was no commission of war and no additional arming, it was not a setting forth as a vessel of war under the Act. But a, commission of war is decisive if there be guns on board, and where the vessel after the capture has been fitted out as a privateer it is conclusive against her, although, when re-captured, she is navigating as a mere merchant ship.The hon. Gentleman said it did not signify how many guns there were. He (the Solicitor General) had taken the trouble to ascertain on what authority that rested, and he found it to be the case of the Ceylon, in the 1st volume of Dodson's Reports. Hero were the words of Lord Stowell's judgment—She had on board twenty-six guns, 110 men, with arms and ammunition of every description in sufficient quantities for offensive and defensive operations…. She sustained an engagement with British ships, and assisted in the destruction of the Sirius and Magicienne, and in the capture of two English frigates. Here, then, was an operation, not merely defensive, but an actual offensive attack, terminating in the destruction of the British blockading squadron. I cannot doubt that under these circumstances the ship was sufficiently 'set out for war.'He ventured to think that if Lord Stowell had had the case of the Tuscaloosa before him, and had to determine the question whether she was "set out" as a ship of war, he would, unquestionably, have said that she was not sufficiently set out for war. She was armed with two guns only; she had only ten men—hardly enough for navigating her, to say nothing of fighting; and she had her cargo on board, which made her almost unavailable for fighting purposes. She had not been employed for any hostile operations; and further, Admiral Walker said, after inspecting her, that in his judgment she was not capable of attack or defence. His words were, "except of very slight defence." Now, even if all the cases cited did apply—if the 1793 statute did apply—which he had shown that it did not, still, he ventured to say there was no case of "setting forth for war" that would not exclude the Tuscaloosa. It therefore appeared to him perfectly clear that Admiral Walker was right in his view of that vessel not having lost her character of prize, and that unquestionably she ought not to be admitted as a man of war. This led him to the despatch sent to the authorities at the Cape that had been objected to, by the hon. Gentleman. The Motion of the hon. Gentleman would appear to intimate that every proposition of International Law contained in that despatch was wrong, although he understood him to limit that by his speech. Now he (the Solicitor General) undertook to show that it was strictly in accordance with the principles of International Law. After referring to the Sea Bride the despatch said—With respect to the Alabama herself, it is clear that neither you nor any other authority at the Cape could exercise any jurisdiction over her; and that, whatever may have been her previous history, you were bound to treat her as a ship of war belonging to a belligerent Power."—p. 18.He apprehended that hon. Gentlemen opposite would admit that that was right. Then came this passage—With regard to the vessel called the Tuscaloosa, I am advised that this vessel did not lose the character of a prize captured by the Alabama, merely because she was, at the time of her being' brought within British waters, armed with two small rifled guns, in charge of an officer and manned with a crew of ten men from the Alabama, and used as a tender to that vessel under the authority of Captain Semmes."—Correspondence, No. 6(1864), p. 18.The hon. Gentleman had imported into the case the state in which the vessel was when she returned at another time; but the real question was as to her state at the time when she first entered Simon's Bay. His Grace's despatch went on to say—It would appear that the Tuscaloosa is a bark of 500 tons, captured by the Alabama off the coast of Brazil on the 21st of June last, and brought into Simon's Bay on or before the 7th of August, with her original cargo of wool (itself, as well as the vessel, prize) still on board, and with nothing to give her a warlike character (so far as is stated in the papers before me), except the circumstances already noticed. Whether, in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra prœsidia or condemned by a Court of Prize, the character of prize, within the meaning of Her Majesty's orders, would or would not be merged in that of a national ship of war, I am not called upon to explain. It is enough to say that the citation from Mr. Wheaton's book by your Attorney General does not appear 1794 to me to have any direct bearing upon the question."—Correspondence, No. 6 (1864), p. 18.That was perfectly correct, for the question there was a question of fact, whether she was actually turned into a public vessel of war. It was clear that she was not, and therefore the question did not arise of what would have been done if she had been. The Duke of Newcastle very properly eliminated points of difficulty which it was thus unnecessary to consider. The despatch continued—Connected with this subject is the question as to the cargoes of captured vessels which is alluded to at the end of your despatch. On this point I have to instruct you that Her Majesty's orders apply is much to prize cargoes of every kind which may be brought by any armed ships or privateers of either belligerent into British waters as to the captured vessels themselves. They do not, however, apply to any articles which may have formed part of any such cargoes, if brought within British jurisdiction, not by armed ships or privateers of either belligerent, but by other persons who may have acquired or may claim property in them by reason of any dealings with the captors, I think it right to observe that the third reason alleged by the Attorney General for his opinion assumes (though the fact had not been made the subject of any inquiry) that 'no means existed for determining whether the ship had or had not been judicially condemned in a court of competent jurisdiction;' and the proposition that, 'admitting her to have been captured by a ship of war of the Confederate States, she was entitled to refer Her Majesty's Government, in case of any dispute, to the Court of her States, in order to satisfy it as to her real character.' This assumption, however, is not consistent with Her Majesty's undoubted right to determine within her own territory, whether her own orders, made in vindication of her own neutrality, have been violated or not."—p. 18.He apprehended that the assertion of that proposition was necessary to the maintenance of any independent sovereignty. Was it to be contended that, when Her Majesty issued an order, directing that prizes should not be brought into her ports, if a Federal or a Confederate brought in a prize and said, "Oh! this is a vessel of war," Her Majesty was not to determine the question? It was an admitted fact that the vessel had not been condemned or taken before any court of competent jurisdiction by the captor. The hon. Member had referred to the case of Santissima Trinidad; but if he had examined it he would have found that it affirmed, beyond all question, the doctrine for which he (the Solicitor General) was now contending; because in that case the United States took upon themselves to determine whether a prize brought into their ports should or should not be re- 1795 stored to the original owners. And they did determine that question in their own courts. Ordinarily, the determination of the question of prize or no prize was for the court of the captor; but the United States, where the prize was brought into their ports in violation of their neutrality, claimed to determine, and did determine, that question. Therefore the case cited by the hon. Gentleman was entirely fatal to his argument. He now came to the latter part of the despatch, which was in these terms—The question remains what course ought to have been taken by the authorities of the Cape—1, In order to ascertain whether this vessel was, as alleged by the United States Consul, an uncondemned prize brought within British waters in violation of Her Majesty's neutrality; and 2, What ought to have been done if such had appeared to be really the fact? I think that the allegations of the United States Consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances, most consistent with Her Majesty's dignity and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners."—p. 18.On that subject he would deal quite frankly with the House. He would admit, on the part of Her Majesty's Government, that upon re-consideration, they thought these instructions were not as full and explicit as they ought to have been—that was to say, as they should and would have been if meant to be used as a guide for colonial Governors throughout the empire. But he would be allowed to observe that that despatch was not in the nature of a circular or order issued to the Governors of colonies throughout the empire. It was merely a comment of the Duke of Newcastle on that particular transaction after it had passed, and when he had no reason to suppose that the Tuscaloosa would return. If it had occurred to his Grace as probable that she would return (and he would hardly be blamed for not foreseeing what, after all, was a remote possibility), the despatch would have contained some 1796 further instructions—such instructions as were subsequently given to the effect that, inasmuch as the Tuscaloosa was, rightly or wrongly, treated as a vessel of war after she came into their ports, and after her real character was ascertained, she should have been warned off. If it had occurred to the Duke of Newcastle, provision might have been made in the despatch for possible circumstances, and, undoubtedly, some fuller instructions would have been advisable to the effect that a vessel of war bringing with her a prize should be prohibited from entering our ports, or if she entered, be immediately warned to depart. He might inform the House that this subject had received the serious consideration of the Government, and instructions were about to be sent by way of a circular to the colonial Governors of this country. These instructions were, in fact, drawn up, though they had not yet been sent off. Ample and detailed instructions would be given, which would hereafter leave no difficulty to colonial Governors and Law Officers. He was at liberty to say that those instructions would in a very short time be laid on the table. The House would, therefore, see that this was an isolated case, and not likely to be drawn into a precedent. But having said thus much, he now proceeded to the question raised by the hon. Gentleman, whether this despatch asserted doctrines at variance with the principles of International Law. He contended that it did not. He had frankly admitted that more full instructions were desirable, and would be sent; but that the despatch enunciated any false principle of International Law he entirely denied. What was the principle of International Law on this subject? He apprehended that the governing principle of International Law applicable to such cases as this was that the territory of a neutral was inviolate—that a neutral had the right to possess its territory entirely free from all hostile operations, direct or indirect, and if it pleased, from the presence of either belligerent. A neutral had a right to say to both belligerents—procul este profani. Her Majesty had not gone the length she might have done, of preventing the entrance into her ports of armed vessels of either belligerent; but she had strictly prohibited armed vessels bringing their prizes within her ports. He was now dealing with the question of International Law, and the hypothesis was this—a prize was brought in 1797 in violation of the Queen's orders, and of her neutrality: and lie said if a prize was brought in in defiance of the Queen's orders, the captain was guilty at once of a violation of International Law and of the Queen's neutrality. Under these circumstances, it was for the Queen to determine in what manner she should think fit to vindicate her neutrality; and if she chose to vindicate her neutrality by detaining the prize, in order that the claimant might have the opportunity, which the United States Consul desired, of instituting proceedings, or that other inquiry she thought fit might be made, she had a right to do so; and further, if she did exercise that power, he maintained that the captain of the offending vessel who brought the prize in in contravention of the Queen's orders being himself an offender against International Law and a wrong-doer, had no locus standi on the ground of International Law, to complain of any measures Her Majesty might think proper to take for the vindication of that neutrality which he had violated. That was the principle of International Law applicable to this case. The Queen had a perfect right to restore the vessel to her original owner. There was abundant authority for that doctrine. He repeated it. The principle was that neutrality had been violated, and it was for the neutral whose neutrality was violated to determine the manner in which that neutrality should be vindicated. Suppose a vessel captured within neutral waters—in our waters—and subsequently brought back as a prize, had the Queen, aye or no, the power of restoring her to her original owner? The right hon. Gentleman who was about to follow him must deal with that question. All authority was in favour of the right. Wheaton, who has been so much referred to, had this passage—Where the capture of enemy's property is made within neutral territory, or by armaments unlawfully fitted out within the same, it is the right as well as the duty of the neutral State, when the property thus taken comes into its possession, to restore it to the original owners.What was the principle on which a vessel taken ill neutral waters was restored? Be it remembered that as between belligerents the capture of a vessel in neutral waters was perfectly good. The principle was that when neutrality had been violated, it was for the neutral to determine in what manner he should vindicate his neutrality. The United States had acted on that principle for upwards of 1798 seventy years. The same principle applied to cases of the restoration of prizes made by armaments unlawfully fitted out within the territories of neutrals. That had been done again and again. Why? Because their neutrality had been violated. It was true that there had been no case decided in the United States in precisely the same circumstances, and why? Because the circumstances had never existed. The United States had not issued, like Her Majesty, orders prohibiting prizes coming into their ports, and therefore a breach of neutrality of that species had not occurred; but there could be no doubt, if it had occurred, the United States would have acted accordingly. This principle and practice were entirely applicable to this case, which was, no doubt, novel in its circumstances; the principle, however, was identical. He therefore called on the House most emphatically not to approve the Resolution of the hon. Gentleman, which wont the full length of declaring that Wheaton was wrong and the whole course of the United States for seventy years, of which we had enjoyed the benefit, had also been wrong. If these authorities were to be upset, it should be not by one night's discussion in that House, but by the judicial decision of a competent Court of Law. He ventured to point out to the House the great danger of adopting such a Resolution as that of the hon. Gentleman, Such a course might be very inconvenient to this country, as he would show. We believed that our maritime strength was such that with whatever Power we might happen to be at war we should always be able to blockade his ports to prevent the issue of vessels of war and the entrance of prizes taken from us. But suppose that the enemy resorted to American ports, and fitted out Alabamas from them, and took their prizes into the American ports? What should we do? We should claim that those prizes be restored to us. But how could we do that if; this Resolution were passed? We should I be met with the reply, "You have passed a Resolution which, in fact, avers that, however much, and in whatever manner, the neutrality of a State has been violated, the State has no jurisdiction to restore prizes." In that way we might find this Resolution, to the last degree, inconvenient to ourselves. Upon those grounds, and thanking the House for the patience with which they had listened to him upon what was chiefly a technical subject, he trusted that the House would not affirm a Reso- 1799 lution which was not necessary, which could not be useful, which could have no practical effect, and which might hereafter he attended with serious inconvenience to ourselves.
§ MR. WHITESIDE
Sir, the hon. and learned Gentleman said, at the outset of his able speech, that there was no question of policy involved in this discussion. I beg leave to deny that proposition. There is the policy which led to instructions so legal and so perfect that we are told by the hon. and learned Gentleman that they are about to be immediately modified or repealed. I say there are involved in this debate questions of policy and law, of a very interesting character, I agree with the hon. and learned Gentleman that these questions should be discussed in a manner commensurate with their importance. When I first read these papers I asked myself how it happened that such extraordinary despatches should have emanated from any Department of the Government, I answered myself by saying, "The authorities ruling at the Foreign Office at that moment thought the war was going against the South, and that it was extremely likely the North would be successful." I called to mind the speech at Blairgowrie; and although I remembered the more statesmanlike speech of the Chancellor of the Exchequer at Newcastle — that Jefferson Davis, as he called him, had not only made an army and a navy but had made a nation—yet I saw that one was later in date than the other. I accept the declaration of the Solicitor General that we ought to preserve strict neutrality. But we complain that the law of neutrality has been improperly violated in this matter, that the transaction is indefensible, and I am satisfied that the hon. and learned Gentleman, and his learned Colleague the Attorney General, have advised the Crown that it is indefensible, and that they have corrected the very instructions of this despatch, which the Solicitor General employed a good portion of his speech to prove were so perfect as not to need correction. The facts of the case are very simple. I heard with surprise the hon. and learned Gentleman, several times in the course of his speech, talk of "shams" as well as realities. There are no "shams" in the case of the Tuscaloosa—it was a painful reality as my hon. and learned Friend would admit. That vessel was originally called the Conrad, under which name she had been a merchant vessel. It is important to bear 1800 in mind the real facts when we find astute lawyers raising questions which do not arise, supposing facts which do not exist, upon which they construct a visionary argument, and call upon the House to decide, not upon the facts before us, but upon other matters imagined by the learned Gentleman who addresses us. It seems to I me that now it is the Admirals who decide the law and the lawyers who decide upon naval tactics; because, as the case stands, Admiral Walker has overruled the Attorney General, and I understand the Law Officers at home have sent out instructions to the naval captains, telling them how they are to behave. It was not by acting upon such instructions that Nelson won the Nile and Trafalgar. I will not say anything about the Duke of Newcastle in relation to this despatch, because I agree with my hon. Friend that there are traces of another hand being engaged upon it—a hand with which we are painfully acquainted. Now, it is agreed that the Tuscaloosa, while called the Conrad, formerly belonged to the Federal States. The vessel was captured by the Confederates off the coast of Brazil on the 21st of June with a cargo of wool on board. I ask my hon. and learned Friend and the House what was on that day the law arising out of those facts. When the ship of one belligerent strikes its flag to a ship of the other belligerent, what is the result that arises? Does not the ship which yields belong to the captor; or can it by any ingenious argument be made to belong to somebody else? The captor may burn or destroy the vessel, or not, according as the interests of his country might suggest. That has been done, and Lord Stowell says the captor has a right to do so when he is so instructed. It is really ridiculous to argue, then, as though there were any nation which had more frequently asserted that right than ourselves. Surely you are not going to apply a different law to the Confederate States from what our own Admirals act upon, and then plume yourselves upon your strict neutrality, and your strong sense of justice? I say that the ownership of the property was changed by the fact of the capture. I deny that any judgment or adjudication was necessary. If a man on board a captured ship disputed the right of the captor, his answer would be, "Do not make a noise, or I will shoot you." The object—the horrible object—of war is to cripple the commerce and to damage the power of the country with 1801 which you are at war, and not to indulge in the interchange of polite compliments. We have acknowledged to be a belligerent that Power which the Chancellor of the Exchequer has described as a Nation—a Power which is now commencing her fourth campaign in vindication of her independence; she is entitled to all the rights of a belligerent; and having by the exercise of such rights captured the Conrad on the 21st of June, the property in that vessel passed at once to Captain Semmes without any necessity for adjudication or condemnation. The captain of the Alabama then put on hoard two guns and ten men, under a lieutenant, mid changed her name to the Tuscaloosa. The next question is, whether the officer in command of the Alabama was lawfully commissioned by the Confederate States? That has been clearly admitted by the Duke of Newcastle, who says that his authority as commander of a vessel belonging to a belligerent Power is not open to dispute. The next question is, had Captain Semmes power to grant a commission to the person he placed in command of the Tuscaloosa? Is that denied by the Law Officers of the Crown? The words of Lord Stowell in a similar case were, that it was only necessary to see that the officer put in command had even the semblance of authority, and we ought not to inquire at length into the nature of the commission. We will see how the matter stands when we come to the statement of Sir Baldwin Walker, as we find that all he says is to be adopted, and everything said by everybody else at the Cape is to be rejected. Our practice is, that a commission granted by the Admiral or captain abroad is subject to the approval of the Admiralty at home; but Lord Stowell decided that the commander of a single ship might grant a commission; and thus the commander of the Alabama would have full authority to do so, I say that you cannot go behind the Commission according to the decisions of our own Courts, nor by the reason of the thing; nor can you inquire whether the ship is something different from what she appears to be. I say the effect of the commission in this case was to change the character of the captured ship and to make her a vessel of war, employed by a lawfully appointed commander in the Confederate navy. She was a ship in the lawful employment of a belligerent Power, having the right to burn, sink, destroy, or capture the ships and property of an enemy with whom that 1802 Power was at war. We find that the Alabama and Tuscaloosa remained some time in company. The talk about the wool is a mere device of no value — of no more value than it would have been if the whaler captured by the Americans during the last war had had a cargo of whales on board. It was decided by Sir William Scott that the fact of the American officer having put some guns on board the whaler had changed it into a ship of war, and it became the prize of the officer who took it. The Alabama and Tuscaloosa continued in company until the 6th of August. It is, as the Solicitor General said, quite true that the Cape of Good Hope is a neutral port; but, then, this vessel must be regarded either as a prize or as a ship of war; and if it was a prize, the conduct of the framers of these instructions is indefensible, while, if it was a ship of war, the course which they took is quite inexcusable. Now, I admit that there was a proclamation of the Queen that forbids the captor to bring a prize into the Cape; but there remains the question, what was to be done in the present instance? The course which was taken, notwithstanding what has fallen from the Solicitor General, will, I would venture to say, never again be repeated by this or any other Government. Be that, however, as it may, the proclamation was very important. It was perfectly well known to the commander of the Alabama, who is described by Sir Baldwin Walker—(banished at a particular crisis from the country to appear in a superior position at the Cape) as a courteous and gentlemanly person. Captain Semmes, it seems, applied for leave to procure some fresh water and provisions, and repairs, and announced that he had outside the harbour his tender called the Tuscaloosa, [A laugh.] His hon. and learned Friend the Attorney General appeared quite amused; but it appeared to him (Mr. Whiteside) a very proper course to pursue; and here I may observe that it is somewhat remarkable that, if an official or a clerk at a distant station acts illegally, rashly, or unscrupulously, he is sure to be defended by the noble Viscount at the head of the Government; while, if lie acts with ability and discretion, he is certain to be thrown overboard. We all remember the declaration of the noble Viscount about the judgment and discretion displayed in the well known case of the lorcha Arrow; but passing by that point, it would seem that Admiral Walker undertook to decide the 1803 law in this matter. Now, although I have the greatest respect for seafaring men, yet I deny that their authority is in such cases so satisfactory as that of the Attorney General. Now, there is an Attorney General at the Cape—Mr. Porter—than whom, if he be the man I knew in former times, you could have no better educated person. [An hon. MEMBER: Mr. Stevenson is the acting Attorney.] Well, that did not matter; the Attorney General gave his opinion, but the Government set it aside. The Solicitor General has used the term sham, and repeated the expression. He compared the case to mere cases of roguishness that occurred in Westminster Hall. The captain of the Alabama was asked how long he wished to remain, how many days, and what was the list of articles he required. All these particulars were furnished. During that time was there a particle of evidence to show that he sought to sell the wool; and what was the use of the Solicitor General saying that he meant to do that which he did not, and that the fact asserted was to be taken for granted. He remained there as he ought to remain; got his provisions; the Tuscaloosa got the repairs she wanted; Admiral Walker was overruled, and the two vessels left, I believe, in about seven days. I beg now to call the attention of the House to what was said by another able lawyer, the Consul of the United States at the Cape. Before the ships left, he applied to the Governor to seize the vessel. "I cannot," said the Governor. "I tell you what we will do then," answered the Consul; "the moment we take the Alabama we will do everything this captain has done with the Tuscaloosa; we will turn it into a ship to be used against the Confederates." "Quite fair," added the Governor; "I cannot prevent you from doing so any more than I can prevent this gentleman from turning the Tuscaloosa into a tender to the Alabama, and putting a lieutenant on board." "But," replied the Consul, "if you do not seize the vessel, you ought at once to order her to depart from this port." Here the Consul suggested the right course to adopt if there had been a violation of the law and the proclamation of neutrality. Now, I do not find a single thing to complain of in this Correspondence. I do not at all complain of Sir Baldwin Walker for having laid his doubts before the Governor; and it will, I think, be time enough for the Solicitor Gene- 1804 ral, when every ship taken is converted into a tender to lay down his maxims with as much solemnity as he has done to-night. No candid man can, in my opinion, underrate the fact that the lieutenant on board the ship had a legal commission at the outset. And what happened next? The proceedings at the Cape were, together with the opinion of Sir Baldwin Walker, sent to the Government in this country. The affair so far as the Cape of Good Hope was concerned was at an end, and the vessels departed unmolested. The subordinate officials at the Cape performed their duty faithfully, conducted the inquiry honourably, and acted with the strictest propriety, and without the least deviation from the laws of neutrality. And here I may observe, that we had in the North American Correspondence a despatch which gives us a key to the course pursued by Earl Russell. Mr. Adams having had the case laid before him by the American Consul at the Cape, pressed the noble Earl to do something in reference to this ship. The despatch of the 29th of October shows pretty clearly what led to the issuing of the instructions of the 4th of November. As to those instructions, they were told that nothing occurred prior to the 4th of November of any consequence. But with all deference to my hon. and learned Friend a very important matter occurred in the interval. The Alabama visited the Cape again. On the 17th of September there is a despatch from Sir Baldwin Walker, who had misgivings about the ship. This document was in your possession early in October, and it proves that the Commander had made explanations to the gallant Admiral in reference to what had been done. On the 17th of September Sir Baldwin Walker writes—Captain Semmes frankly explained that the prize Sea Bride, in the first place, had put into Saldanha Bay through stress of weather, and on being joined there by the Tuscaloosa, both vessels proceeded to Angra Pequena, on the West Coast of Africa, where he subsequently joined them in the Alabama, and there sold the Sea Bride and her cargo to an English subject who resides at Cape Town. The Tuscaloosa, had landed some wool at Angra Pequena and received ballast, but, he states, is still in commission as a tender. I have no reason to doubt Captain Semmes' explanation; he seems to be fully alive to the instructions of Her Majesty's Government, and appears to be most anxious not to commit any breach of neutrality." — Correspondence, No. 6 (1864), p. 17.Thus the matter stands — the wool was not sold at the Cape, but was disposed 1805 of long afterwards in Africa; Captain Semmes returned to the Cape in September, and gave an explanation of everything connected with the Tuscaloosa to Sir; Baldwin Walker, who wrote home that he was entirely satisfied with that explanation, part of which was that the Tuscaloosa was still in commission as a tender to a Confederate ship of war. It was with these facts before him, and advised by the lawyers whom I see opposite, or rather, I suspect, not advised by them, that somebody at home sat down and contrived the despatch to which I must now call attention. The Solicitor General asks what complaints we have to make. I complain of almost everything in the conduct of the case, whether as matter of fact or of law. After Sir Baldwin Walker had written home, stating that he was satisfied with the explanation of Captain Semmes respecting the Tuscaloosa, the following despatch was sent out from Downing Street:—With regard to the vessel called the Tuscaloosa, I am advised that this vessel did not lose the character of a prize captured by the Alabama, merely because she was, at the time of her being brought within British waters, armed with two small rifled guns, in charge of an officer and manned with a crew of ten men from the Alabama, and used as a tender to that vessel under the authority of Captain Semmes,"—p. 18.Let me here remark that the question whether she was or was not that thing had been investigated at the Cape. The despatch of the Governor is explicit on the matter; the decision of the Law Officers is clear; the opinion of Sir Baldwin Walker is conclusive; yet with all those things before him the Colonial Secretary disputes a fact that had been inquired into in the only place where it could be investigated. He then proceeds to lay down this most extraordinary doctrine—Whether, in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra prœsidia or condemned by a Court of Prize, the character of a prize, within the meaning of Her Majesty's orders, would or would not be merged in that of a national ship of war, I am not called upon to explain."—p. 18.Not called upon to explain? The Colonial Office might as well be shut up at once. It was its business to explain. The distracted Governor at the Cape says, "Tell me what to do." "No," replies the Colonial Secretary, "I scorn to enlighten you, I will leave you in your difficulties, but, at the same time, I will reverse your decision;" and the ground alleged is that most, exquisite one by the Solicitor General, 1806 "We do not believe any such case will occur again. We do not believe it could." They never wish to hear the name of the Tuscaloosa again, and while they invent a doctrine theoretically, it is not to be put in force practically. Surely, says the Solicitor General, the Duke of Newcastle could not suppose that the Tuscaloosa would return. Alas for the Duke! she did comeback, for at the end of five months the same ship upon which an inquiry had been held, and the explanation respecting which given by Captain Semmes had been considered satisfactory, sailed one fine morning into the Cape. "Oh!" cried Sir Baldwin Walker, "here she is again. Do not breathe a word to the Attorney General, but seize the ship." The Governor says there is no ground for seizing her; she has no wool on board. "We are to seize her," replies Sir Baldwin Walker, "in accordance with the general principles of International Law, which do not apply to the case; we are to suppose she was in neutral waters when she was not so; we are to suppose she had English property on board, when she had no English property on board; we are to suppose that she was re-captured, when she was not re-captured; we are to suppose every thing we cannot suppose, and, after exhausting our imaginations by inventing impossible cases, we are to obey the Duke." During her absence the Tuscaloosa had been cruising in the service of a belligerent Power, under the Confederate flag, with a commission from a lawfully constituted officer, and she was seized because five months before she had wool on board, which she did not sell. "It is not possible," cried her astonished commander, "that you have seized my ship. Why have you done so?" They were very delicate about giving him the information he sought for, but eventually they told him they had been directed to act as they had done against their own judgments, and that they had no discretion but to obey orders, and I must do our authorities at the Cape the justice to say that it was impossible to understand their instructions. The officer in command of the Tuscaloosa, when his vessel was seized, sat down and wrote words which, I think, no Englishman can read without a blush. I felt ashamed when I read them. Lieutenant Low, writing from Simon's Bay to Sir Philip Wodehouse, on the 28th December, 1863, said—In August last the Tuscaloosa arrived in Simon's Bay, She was not only recognized in the 1807 character which she lawfully claimed and still claims to be—namely, a commissioned ship of war belonging to a belligerent Power, but was allowed to remain in the harbour for the period of seven days, taking in supplies, and effecting repairs with the full knowledge and sanction of the authorities. No intimation was given that she was regarded merely in the light of an ordinary prize, or that she was considered to be violating the laws of neutrality. Nor, when she notoriously left for a cruise on active service, was any intimation whatever conveyed that on her return to the port of a friendly Power, where she had been received as a man-of-war, she would be regarded as a prize, as a violator of the Queen's proclamation of neutrality, and consequently liable to seizure. Misled by the conduct of Her Majesty's Government, I returned to Simon's Bay on the 26th inst. in very urgent want of repairs and supplies; to my surprise I find the Tuscaloosa is now no longer considered as a man-of-war, and she has by your orders, as I learn, been seized for the purpose of being handed over to the person who claims her on behalf of her late owners. The character of the vessel—namely, that of a lawful commissioned man-of-war of the Confederate States of America, has not been altered since her first arrival in Simon's Bay, and she, having been once fully recognized by the British authorities in command in this colony, and no notice or warning of change of opinion or of friendly feeling having been communicated by public notification or otherwise, I was entitled to expect to be again permitted to enter Simon's Bay without molestation. In perfect good faith I returned to Simon's Bay for mere necessaries, and in all honour and good faith in return I should, on change of opinion or of policy on the part of the British authorities, have been desired to leave the port again. But by the course of proceedings taken I have been (supposing the view now taken by your Excellency's Government to be correct) first misled and next entrapped."—Correspondence, No. 6 (1864), p. 23.That is the statement of Lieutenant Low. Is it not strictly true? Was he not first misled and then entrapped? All the answer the Governor at the Cape could make was, that he could not help it. I have referred to the despatch of the 4th of November from Downing Street, and to the ingenious argument which the Solicitor General founded upon it. He asks what would be the case of a vessel taken in neutral waters? Why, the law applicable to a clear violation of neutrality would be enforced. But the present case is one wholly different. The Tuscaloosa could not lawfully be seized either as a ship of war or as a prize. It is admitted on all sides that, if a ship of war, she could not be touched, while, if a prize, she could be sent away for violating the Royal proclamation. Our authorities could have warned her off, but they had no authority to pursue any other course, and all the ingenuity of the Solicitor General has been employed simply to conjure up some fanciful case, which has 1808 nothing to do with the subject of our present discussion. How were they to find the owner, and how was a question of the kind to be properly investigated? The invariable course adopted was, therefore, to warn such a vessel not to enter a port, or, if it had already entered, to order it to quit. The latter part of the despatch of the 4th of November—which my hon. and learned Friend read in a gentle tone, and said required amplifying and explaining—which is perfectly true—and adding to, which is not only correct, but will be done, said, "You are to keep the Tuscaloosa, if she comes in again, until properly reclaimed by her owners." Such an instruction was indefensible, and the plea that it applied only to a particular ship, and to a particular harbour, could not possibly be upheld in fair argument. To make the thing more completely ridiculous, the advice of the Law Officers of the Crown was taken, and another despatch was written, instructing the Governor to give back the vessel, which, according to the opinion of the Solicitor General, had been rightly seized. Whether you admit my hon. and learned Friend's argument or not, they cannot but confess that the conduct pursued was highly inconsistent. The whole thing proves that the course adopted was a wrong one, and that the statement of the captain, when he said he had been deceived and entrapped, is perfectly correct. The case is not at all improved from the manner in which this restoration was effected. It was not pretended that the restoration was made because any unwise or unsound principle had been laid down, but simply because of certain facts which had occurred in connection with this particular vessel. I deny that the ship could be termed a prize under any circumstances, acting as she had done, in the belief of Sir Baldwin Walker and every one at the Cape, for six or seven months as a tender to a man-of-war under a lawful commission. This is a case, I submit, in which the House ought to affirm the Resolution of the hon. Member for Maldon, by way of inking care that in future the principles of International Law shall not be violated, and in order to declare that the doctrine of neutrality shall be observed towards all nations—towards the South and towards the North—towards Germany and towards Denmark—with impartiality, consistency, and justice.
MR. J. J. POWELL (Gloucester)
said, it seemed to him that the right hon. Gen- 1809 tleman who had just sat down had concealed behind the exuberant foliage of his speech the barrenness of his answer to the facts and arguments brought forward by his hon. and learned Friend the Solicitor General. He presumed that those who had listened attentively to the speech of the right hon. Gentleman would regard, as the most powerful portion of it, that which impugned what the Government had never concealed to be a mistake — namely, the seizure of the Tuscaloosa on her return to Simon's Bay. The hon. and learned Gentleman contended first of all that when the vessel arrived at that port she was duly commissioned, and that we had no right to seize or deal with her. He would ask the right hon. Gentleman what authority there was beyond his own statement for the assertion that the Tuscaloosa, when she first entered Simon's Bay, had on board any commission whatever? Captain Semmes, who must have known whether such was the case, had not said a single word about it. The Government conceded that if she had been a commissioned vessel, and bonâ fide a tender to the Alabama, she would have had as much right to be there as the Alabama herself; but as far as the facts were known to the House and to the country, they all went to show that she was only colourably a tender, and that she was then without any commission. When she first came into Simon's Bay she had her cargo onboard, and only two small swivel guns and ten men. He did not profess to know much about naval matters, but he believed that there were few vessels which now traversed the ocean I without having a few such arms on board. Every fact, therefore, which had come to their knowledge proved that the Tuscaloosa remained then what she originally had been—a merchantman and a prize. He had read these papers with the greatest attention, and with the greatest respect for the Gentlemen who had penned them, and he rejoiced to find that the national interests were so well looked after by our officers at the Cape. He ventured to think that if any mistake had been made in the first instance it was to be attributed to the acting Attorney General at the Cape, and not to the Governor, or any one else. Sir Baldwin Walker said—On the 8th of August the tender Tuscaloosa, a sailing bark, arrived in Simon's Bay, and the boarding officer having reported to me that her original cargo of wool was still on board, I felt that there wore grounds for doubting her real 1810 character, and again called the Governor's attention to this circumstance. My letter and his reply are annexed. And I would here beg to submit to their Lordships' notice, that this power of captain of a ship of war to constitute every prize he may take a 'tender,' appears to me to be likely to lead to abuse and evasion of the laws of strict neutrality, by being used as a means for bringing prizes into neutral ports for disposal of their cargoes, and secret arrangements—which arrangements, it must be seen, could afterwards be easily carried out at isolated places."—Correspondence, No. 6 (1864), p. 1.He maintained that the view taken by Sir Baldwin Walker was a very sensible one. The Attorney General, however, naturally enough had recourse to Wheaton, but interpreted his rules according to the letter instead of the spirit, and gave his opinion on a technical rather than on any broad ground. The vessel was accordingly allowed to leave. Then came the despatch of the Duke of Newcastle, about which so much had been said. Having received the decision of the Secretary of State, Sir Baldwin Walker and the Governor, of course, had no other course left them but to seize the vessel. The hon. and learned Gentleman opposite had challenged both the facts and the law in the Duke of Newcastle's despatch; but he (Mr. Powell) maintained that the facts were correct and law sound. This was a case, it should be remembered, where, if there was no authority for the law laid down, it was equally impossible to cite any authority against it; and, in his opinion, it would be better for the House, instead of attempting to decide a question with which it was really incompetent to grapple, to wait until it had been disposed of by a proper tribunal. He begged the House to observe that the despatch did not assert any general principles of law, but was limited to the specific case under consideration.
With regard," wrote the Duke, "to the Tuscaloosa, I am advised that this vessel did not lose the character of a prize captured by the Alabama merely because she was, at the time of her being brought within British waters, armed with two small rifled guns, in charge of an officer and manned with a crew of ten men from the Alabama, and used as a tender to that vessel under the authority of Captain Semmes."—Correspondence, No. 6 (1864,) p. 18.The Duke of Newcastle assumed the facts to be as he stated them, and was justified in doing so from the information he had received. No one could doubt for a moment that if the vessel was armed, not bonâ fide, but merely for the purpose of evasion, she did not thereby lose the 1811 character of a prize. Then the Duke of Newcastle went on to say—I think that the allegations of the United States Consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners." — Correspondence, No. 6 (1864), p. 19.He would not enter into the question whether a correct interpretation of International Law was given in the concluding portion of the despatch, which said that the vessel ought to be retained until properly reclaimed by her original owners. That was a point quite beside the main and substantial question at issue, which was—not what was to be done with the vessel after she had been detained and forfeited—but whether the authorities at the Cape had the right to detain and forfeit her at all. He would not say that a vessel under such circumstances ought not to be given up to her original owner; but he was disposed to think that the forfeiture would enure to the benefit of the Crown, and that the original owner would have little or no right to reclaim the ship. Putting that question, however, aside as immaterial to the main issue, he submitted that all the principles of law were in favour of the assertion that, under such circumstances, the Crown had a right to detain the vessel. At the commencement of the war Her Majesty had issued a proclamation forbidding both belligerents alike to bring prizes into our ports. That Captain Semmes was acquainted with that proclamation, was proved by some of the facts in this very case. It was significant that Captain Semmes did not bring in the tender with him in the first instance. He left her outside, but mentioned in port where she was. Thus he ascertained whether there would be any objection to the tender being brought in. The authorities at the Cape naturally assumed that Captain Semmes was speaking the truth, and that the tender to which 1812 he referred really was a vessel answering to that description, and not one merely fitted up for purposes of evasion. Consequently, they offered no opposition to her coming in. As soon, however, as they discovered the truth of the matter—that the Tuscaloosa was not properly a tender, but was only disguised as one—they ought to have done as the Duke of Newcastle pointed out—prohibited the exercise of any further control over her by the captors, and retained her under Her Majesty's jurisdiction. All vessels entered foreign ports only by the courtesy and permission of the Sovereign of the country, who had an undoubted right, especially in time of war, to prescribe the conditions under which ships should be admitted. Any vessel which disregarded or violated the limitations thus imposed offered an insult to the Sovereign, and rendered herself liable to punishment accordingly. Could any one doubt that if Captain Semmes had brought the Tuscaloosa as a prize into Simon's Bay, and had persisted in entering after having been warned to desist, Admiral Sir Baldwin Walker would have been justified in opening fire and even sinking both the Alabama and the Tuscaloosa? Well, then, if he would have been; entitled to sink her when force was used, surely he had a right to seize and detain her when fraud, the substitute for force, was resorted to. The hon. and learned Gentleman had blended together two things which were totally distinct—the arrival of the Tuscaloosa on the first and on the second occasion. "How inconsistent," it was said, "is the Duke of Newcastle. The first time the vessel comes in he says you ought to keep her, and when she returns again and is seized he orders her to be let go directly." The right hon. Gentleman well knew, however, that in the interval between the two visits a great change had occurred in the circumstances of the case—such a change as made what was wrong in the first instance right in the second. The second time the vessel appeared, whether or not she had a formal commission from Captain Semmes or the Confederate Admiralty, she was a duly commissioned vessel within the case of the Ceylon, which had been cited. She had got rid of her cargo; she had mounted several guns, instead of two; she was manned not by ten, but by twenty men. In fact, she had become a vessel of war. Where a vessel had become beyond all question the property of the captor, the conduct of the captor might, nevertheless, 1813 be such as warranted the forfeiture of the vessel. As to this there was no doubt, and if you wanted an instance of misconduct which justified forfeiture, it was certainly supplied by the entrance of a belligerent vessel into a neutral port in defiance of the proclamation of the neutral Government, He wanted to know what, after they had spent the night in discussing this question, the issue was to be? Of course, the House had a right to discuss abstract questions of law if they thought fit, but in doing so they were, in his opinion, travelling beyond their proper functions. What good would result from any discussion of the House on this question? Their decision was just as likely to be wrong as right; but whatever it was, would the Government venture to advise Her Majesty upon the strength of it? Would the Judges even take judicial notice of it should any ease arising out of it come to be tried before them? Certainly not. Instead of applying itself to its proper business, which was legislation, the regulation of finance, the amending of grievances, and the material and political welfare of the nation, this House became something like a Discussion Hall when it debated abstract questions of law, a decision upon which could answer no good purpose whatever. He submitted that it was most inconvenient for the House to debate such questions; still more to attempt to decide them. He therefore hoped they would not come to any decision on this question; but if they did decide, he hoped the decision would be based on those sound principles of International Law which had been laid down by the Solicitor General, and which he also had humbly attempted to enforce.
§ SIR JAMES ELPHINSTONE
said, that in his opinion it was clear that the Tuscaloosa, on her second visit to Simon's Bay, had all the appearance of a vessel of war. She had increased her crew to twenty-five officers and men, and was fitted with all the necessary instruments for the navigation of a large ship. Her armament was such as would have enabled her to capture easily any unarmed merchant vessel—in fact, she was a man-of-war of a most formidable character. Acting on the advice to detain the vessel till claimed by her proper owners, Sir Philip Wodehouse offered the ship to the American Consul, who, however, declined to have anything to do with her. Some stress had been laid upon the fact that on the first occasion when she entered Simon's Bay she had a 1814 cargo on board, and it was argued that this fact invalidated her pretensions to be considered a vessel of war. Upon this head, however, he begged to call attention to what took place in the Pacific in 1813. In that year the American Commodore Porter of the Essex, having captured twelve British whaling ships fitted out two of them as cruisers, after re-christening them the Essex Junior and the Georgiana, sent them to cruise on the coast of Chili. Both these vessels were re-captured by the British—the Essex and the Essex Junior off the harbour of Valparaiso by the Phoebe, and the Georgiana on her way to the United States by the Barossa. She had then on board an armament of fifteen guns and forty men, and a valuable cargo of oil and spermaceti. The owner of the Georgiana claimed to have her restored. Now, here was a case of an armed vessel loaded with property which had confessedly belonged to the former owners of the ship; but the Prize Court held that she was a national ship, and that being the prize of the captors the property found on board no longer belonged to the former owners. The case of the Georgiana seemed to be upon all fours with that of the Tuscaloosa; she was an armed ship, confessedly loaded with a cargo which belonged to her original owners, yet a Prize Court held that she belonged to her captors. It had been asked what was the licence under which the Tuscaloosa sailed? And the reply was that her licence was the commission of the officer who had charge of her; a commission which rendered him perfectly qualified to command her as a ship of war. It was quite clear that the Government did not intend to uphold the order by which the ship was seized. But there remained the question, who was to assess the damage which had been done to the Confederate States by the Tuscaloosa having been detained at the Cape, her cruise having been spoiled by the intervention of Her Majesty's Government. It appeared to him that throughout the whole dealing of Her Majesty's Government with the Confederate States they had been actuated more by a spirit of hostility than of neutrality. We had acknowledged the Confederate States as belligerents, but we would not acknowledge that they could have a Government to direct their movements; and the consequence was that we had not been able to communicate with them upon any of the questions of International Law which had arisen between us. 1815 He must repeat that it would be a flagrant breach of justice if Her Majesty's Government did not compensate the Confederate States for the detention of the Tuscaloosa, which had rendered her cruise abortive.
§ MR. SHAW LEFEVRE
said, the Question before the House was one of great difficulty, and much better fitted for discussion in a Court of Law than in the House of Commons; but, at all events, it ought to be treated by hon. Members in a spirit of neutrality. There appeared to him to be two questions involved—first, what course should have been adopted in reference to the Tuscaloosa when she went into Simon's Bay for the first time; and second, what course should be adopted in reference to prizes which might in future come into our ports. After a careful reading of the despatches—particularly those of Sir Baldwin Walker—he could come to no other conclusion than that arrived at by the Duke of Newcastle, that the Tuscaloosa should, on her first visit, have been detained and handed over to the original owners. He thought that it had been conclusively shown that the Tuscaloosa had not at that time lost her character as a prize, but that her captors had to some extent given her the character of a vessel of war, for the fraudulent purpose of enabling her to evade the Queen's Proclamation so to come into our ports ostensibly as a vessel of war, but really for the purpose of disposing of her cargo and equipping her as a vessel of war. Subsequent events showed what the intention of her captors had been, as they had disposed of her cargo, and had added to her equipment, doubtless at Simon's Bay, thus effecting the very purpose which it was the object of the Proclamation to prevent. A precisely similar case had not before arisen, and, therefore, they could only treat it by analogy; and, perhaps, the closest analogy was that of prizes brought into the ports of a neutral by ships which had been illegally equipped as vessels of war in violation of the laws of the neutral. The earliest cases of this kind arose in 1793, in America, where prizes had been brought in captured by French privateers illegally equipped in American ports. Washington was in doubt as to what course should be adopted with respect to these prizes which England demanded to have restored to her; and the question was referred to the Judges, who refused to enter upon the question on the ground that they had no jurisdiction, and 1816 that the question was one for the determination of the Executive. Washington was therefore obliged to take the case in his own hands; he directed the prizes to be restored to their original owners, and afterwards introduced the Foreign Enlistment Act, which not only settled the law as to the equipment of vessels of war in their ports, but also gave power to the Courts of Law to determine questions arising upon prizes coming into their ports. Our own Foreign Enlistment Act, though mainly taken from the American Act, contained no clause similar to this last. It was, he thought, most desirable that our Courts of Law also should have cognizance of such cases. Reasoning from what had occurred in those cases, we ought at first to have handed over the Tuscaloosa to her original owners, on the ground that there had been a violation of our neutrality by the Tuscaloosa in coming into Simon's Bay. There was also another ground upon which this should have been done — a. ground not raised by the Government, nor alluded to in the Duke of Newcastle's despatch, but one which could not have escaped the notice of our Law Officers—and that was that the Tuscaloosa was prize to a vessel which had been equipped in our ports in violation of our neutrality. There was no International Law which was more clearly laid down than this—that a prize taken by a vessel equipped in violation of the neutrality of another country, if brought into the port of that country, should be restored to its original owners. Without entering into questions as to the meaning of the Foreign Enlistment Act, he apprehended there could be no doubt that the Alabama had been equipped and manned in violation of our neutrality. The question also arose whether vessels like the Alabama were justified in burning their prizes upon the sea without attempting to send them into port for condemnation. In the days of Grotius, no doubt, a vessel within twenty-four hours of her capture became the absolute property of her captors; but considerable alteration in the law, and especially in the law of England, had taken place since that time. Sir William Scott in his well known letter for the information of Prize Courts in America, said that before a ship could be disposed of by her captors, there must be a judicial proceeding, and a condemnation of the prize; and in the instructions to our commanders of vessels of war, and in the letters of marque to pri- 1817 vateers, it was laid down that when vessels were captured they were to be taken into a court for condemnation; and there were no instructions which warranted their being burnt as soon as seized. This showed that a great change had taken place, and it could not now be considered a usage sanctioned by International Law to burn and destroy private property at sea, and consequently, in the consideration of this question, the Alabama's constant practice of burning her prizes ought to be borne in mind. No doubt it might be said that as between belligerents there was no law upon the matter; but, still, whenever a neutral had the power to interfere to put a stop to such a practice, was it not her duty to do so? Had a country which had no ports into which it could send its ships, a right to have cruisers upon the sea capturing and destroying vessels? He thought not, and he was glad to observe that so great an authority as the Lord Chancellor had expressed the opinion that such practice could not be considered as altogether according to the usage of modern warfare.
§ [Notice taken, that 40 Members were not present;
§ House counted, and 40 Members being found present,]
§ MR. SHAW LEFEVRE
With respect to the course to be adopted in future towards prizes brought into our ports, it was hardly safe to Bay that all prizes which came into ports belonging to Her Majesty should be handed over to their original owners, for ships with prizes intended to be submitted to the adjudication of a Prize Court might be obliged by stress of weather, or for want of provisions, to enter, those ports. In such cases the prizes should not be handed over to the owners, unless the vessels which captured them had been equipped in British ports, in violation of the Queen's proclamation of neutrality. But in all cases where there was reason to believe that they came in for other purposes than that of going to the ports of their captors for condemnation, he thought they should be detained or restored to their original owners. In common with many other hon. Members, he sympathised with the gallantry of the Confederates, though he had no sympathy with their cause; but he must say that he had also no sympathy for them in respect of vessels like the Alabama, which were equipped, not for fighting, but for lighting bonfires upon the sea by burning private property; and he thought that if 1818 Her Majesty's Government could put a stop to such a practice, it became them to do so. They might do much towards effecting this by prohibiting all access to our ports to vessels which were given to this practice, and by detaining their prizes on whatever pretence they came into our ports. By all means in your power, he would say, Prohibe infandos a navibus ignes.
§ SIR JOHN HAY
said, he should not have risen to take part in the discussion but for one observation made by the hon. and learned Member for Reading (Mr. Shaw Lefevre), but before he did so he must say that Her Majesty's Government did not deserve any great credit for attempting again a count out after the very disgraceful manœuvre the other night on the China debate. It was a very easy, and, no doubt, convenient mode of getting rid of a disagreeable question—when they found that the feeling of the House was setting strongly against them, to get one of their supporters to move the count out of the House; but he thought that some quieter mode of getting rid of the discussion would have been more consonant with their dignity than resorting to this flagrant abuse of one of the privileges of that House. Having made those remarks, he must say that the hon. and learned Member for Reading had advanced some doctrines which he, as a naval officer, must pronounce altogether heretical. He must remind the hon. and learned Member that there was a wise distinction between a privateer and a tender. A tender carried with her all the powers and character of the ship from which she receives her commission, and, therefore, the Tuscaloosa derived her power to navigate the ocean and carry on war entirely from the commission which was borne by the captain of the Alabama. It might be that Captain Semmes was not, in the opinion of the House, the captain of a man-of-war, and in that case the hon. and learned Gentleman's argument might hold good; but Her Majesty's Government had acknowledged, through their officers, the commission of the Alabama. He was recognized for the purposes of war as the captain of a man-of-war navigating the ocean, and he communicated to the captain of his tender the same full power and authority he exercised as a captain of the Confederate navy, and, therefore, the argument which the hon. and learned Member based upon the supposition that the Tuscaloosa was merely a privateer, entirely fell to the ground. It 1819 was quite a new doctrine to him that Her Majesty's ships, or the ships of any other Power when at war, were not to sink, burn, or destroy the vessels of the other belligerent Power. As to its policy he would not then inquire; but there could be no doubt that if war was to be carried to anything like a successful issue, no naval officer would consent to be bound to hamper himself with a number of prizes which must necessarily reduce the number of his crew, which he required for the purposes of fighting his ship. In such a case it was the duty of every naval officer not to respect the feelings or interests of those who belonged to the captured ships, or the advantages which might accrue to himself and crew by retaining those prizes, and bringing them into port to be condemned by a Prize Court, but to sink, burn, and destroy them on all occasions when the public service demanded it. Speaking for those officers on foreign stations who had been the victims of the extraordinary and ambiguous despatches of the Government, he trusted they would be more explicit for the future, and not seek thereby, as had been the case in this instance, to shirk the responsibility, and cast it upon their officers. He could assure the House that naval officers endeavoured to discharge their duty, in spite of the mistaken opinions of the hon. and learned Member for Reading and others in that House, who thought it their duty to state such heresies at home.
§ MR. NEATE
said, that although the proposal to count out the House had proceeded from that side of the House, there was no reason to impute it to the Government. Of those who rushed in to make the House a large majority belonged to the Government side, and all through the debate there had been two Members on the Government side to one on the other. He thought there would not be much difference of opinion that the Tuscaloosa ought to have been detained at the outset if the Duke of Newcastle's despatch had arrived earlier. When the Tuscaloosa was first brought into Simon's Bay she was brought in in fraudulent violation of our neutrality. She was a ship of 500 tons, and she was brought into the bay commissioned as a vessel of war, with ten men on board. He would ask the hon. and gallant Gentleman (Sir John Hay) if he had the honour and responsibility of commanding Her Majesty's fleet, whether he would send such a ship to sea with less than 100 men? But it had been said 1820 that upon her return she was, to all intents and purposes, a vessel of war. But what was her state then? Why, she had twenty men and three guns on board, 100 cartridges, six 12-pounder shot, and twelve revolver pistols. Sir Baldwin Walker said he had learnt since the departure of the Alabama and her so-called tender, that overtures were made to some parties in Cape Town to purchase the Tuscaloosa's cargo of wool. Would the hon. and gallant Gentleman opposite think a transaction of that kind the business of a vessel of war? He was not entirely satisfied with the vague and general language at the end of the Duke of Newcastle's despatch; it would have been desirable that there should have been a little more precision. But they had been told that that defect had been remedied, and therefore he submitted that no injustice had been done.
MR. MONTAGUE SMITH
said, he agreed with his hon. and learned Friend the Solicitor General that, in dealing with questions of this kind, the House should approach them in something like a judicial spirit. He also agreed with him that there was some inconvenience in the House of Commons taking up questions of International Law; but it had always been the practice both of that and the other House of Parliament to express an opinion upon such questions. And when the Solicitor General expressed a hope that the votes of hon. Members would be given that evening without any party spirit he entirely sympathized with him; but he ventured to say that in that case his hon. and learned Friend himself must vote in favour of the Resolution. His hon. and learned Friend had made a most gallant defence of the instructions sent out, probably by his own advice, to the colony. He (Mr. M. Smith) was quite willing to admit the difficulty, which none but a lawyer could properly appreciate, in which the Law Officers of the Crown would feel themselves placed in such a case. They would have to apply principles not to be found in the ordinary current of authorities, but in books of international jurisprudence, which required some research, and to apply them to cases presenting circumstances of novelty and difficulty. But when he was asked to express an opinion upon the despatch of the Duke of Newcastle, and when his hon. and learned Friend the Solicitor General in such bold and defiant language laid it down that nothing in that despatch could 1821 be said to be wrong in point of law, in that case a duty was cast on hon. and learned Members on his (Mr. M. Smith's) side of the House to state what opinion they had formed on the subject. Now, there were three points in the question before the House, in which he felt bound to state his opinion that the Government had gone wrong. The first point was whether the Tuscaloosa, when she first came into Simon's Bay, ought to have been treated as a prize, or as a ship of war commissioned by Confederate authority. The Government decided that she was to be treated as a prize and not as a ship of war, and he thought in that decision the Government were wrong. The second point was whether, supposing she were a prize, the Admiral on the station was entitled to detain her for the purpose of having her handed over to her original owners. The Home Government thought that she should have been detained until claimed by the original owners. That decision appeared to him (Mr. M. Smith) to be utterly erroneous in point of law, and to be a clear misconception of all the authorities upon International Law. The third point was whether, when the Tuscaloosa came in the second time and was seized, and when the Home Government felt it necessary that she should be restored to those from whom they had taken her, they acted rightly or not. He thought that even in this last case the Government had mistaken their course, for they had not the courage and right feeling to order her to be restored upon the proper grounds, but they put the restoration upon the narrow, mistaken ground, that because she had been once in the bay and had been allowed to sail she ought to be restored. The two former errors were mistakes in point of law, the latter was a mistake in point of policy, and was, perhaps, the most serious of all, because the Government, more than their Law Officers, were responsible for it. With reference to the first question, whether the Tuscaloosa ought in the first instance to have been treated simply as a prize brought in in contravention of the proclamation, or as a ship of war, he agreed with his hon. and learned Friend to a certain extent that it was a question of fact, and that to some extent the bonâ fides of the conversion might have been inquired into. It was clear if a ship were brought in without any of the insignia of a vessel of war, those who had to exercise the Queen's authority might take it upon themselves to say, "This is in 1822 clear contravention of the Queen's proclamation—it is a mere deception intended to be practised upon us." But on this question the colonial authorities appeared to have formed a correct opinion both on the facts and the law. The question was, whether the Tuscaloosa was a ship of war or a tender, and as such entitled to the privileges of a ship of war; or whether she went in to deliver her cargo and make a profit to the captors? He thought that any one who read the papers that had been laid before the House on this subject without party spirit must come to the conclusion that the Tuscaloosa had been made a bonâ fide tender to the Alabama, and therefore was as much a ship of war as the Alabama herself. One great test of a ship of war was, had she a commission? The Duke of Newcastle, in his despatch, omitted altogether the circumstance that she had been commissioned by the Commander of the Alabama. There could, however, be no doubt that the fact was known to Sir Baldwin Walker, for he wrote to the Governor on the 7th of August, saying—Captain Forsyth has informed me that the Alabama has a tender outside captured by Captain Semmes on the coast of America, and commissioned by one of the Alabama's lieutenants.From beginning to end, the fallacy that ran through the Correspondence and influenced the decision of the Government was that, because the Tuscaloosa was not condemned as a prize she was not to be treated as a ship of war. This was in the minds of the American Consul, of the legal advisers of the Crown, and of the Duke of Newcastle. Was she then a tender? Why, Sir Baldwin Walker himself said she was; it is true she had a small crew, but a tender to a man-of-war did not carry as many men as the man-of-war herself—she was simply what her name indicated her to be, an attendant upon a man-of-war. Could there then be any doubt that the Alabama was a ship of war? and was the Solicitor General entitled to say that it was a mere sham to take the Tuscaloosa into Simon's Bay as her tender? On what ground did the American Consul desire that she should be detained? Why, on the very ground that she was a warlike vessel. On the 10th of August he wrote—An armed vessel, named the Tuscaloosa, claiming to act under the authority of the so-called Confederate States, entered Simon's Bay on Saturday, the 8th inst. That vessel was formerly owned by citizens of the United States, and 1823 while engaged in lawful commerce was captured as a prize by the Alabama. She was consequently fitted out with arms by the Alabama to prey upon the commerce of the United States, and now, without having been condemned as a prize by any Admiralty Court of any recognized Government, she is permitted to enter a neutral port in violation of the Queen's Proclamation, with her original cargo on board. Against this proceeding hereby most emphatically protest, and I claim that the vessel ought to be given up to her lawful owners,What stronger evidence could there be that she was a vessel of war than this statement of the American Consul? And as to the argument that the vessel had not been condemned by any Prize Court, and therefore remained the property of her original owners—that could not be admitted for a moment. No doubt, as between neutrals, according to some modern authorities, the property was not changed by the capture for all purposes; but as regarded belligerents themselves, when the capture was complete, the dominion and property passed to the captors. The fact that the Tuscaloosa had a commission was, to a great extent, decisive of her character as a public ship of war. The case of the Georgiana, decided by Lord Stowell, was almost exactly similar to that of the Tuscaloosa, and both the American and English lawyers bowed to the authority of that learned Judge. Lord Stowell said—It has been usual for the Court to look in the first place for the commission of war, because where that is found nothing more is wanted.In answer to the argument that it was the case of a commission from an officer of a single ship, Lord Stowell said —Take it to be as stated, that it is the act of an officer commanding one ship only, the distinction does not appear to me to be very material. When it has been held that the commander of two or three ships may sufficiently 'set forth to war,' it, is not going much further to say that the commander of a single ship may possess the same authority.He had not heard it asserted that the commission given to the Tuscaloosa was not a real commission, nor was it disputed that the captain of the Alabama was competent to give such a commission. Having, as he (Mr. M. Smith) hoped, established the fact that she was a ship of war— then came the question, how she ought to have been dealt with? It was no answer to say that the Confederate States had not been recognized, because the Government of this country had conceded to the Confederate States belligerent rights. There could be 1824 no degrees in belligerent rights, for once given to a State they were possessed by it fully and entirely. They were bound to have treated the Tuscaloosa not as a prize, but as a ship of war of the Confederate States. As he had already said, considerable allowance must be made for the difficulties under which the Law Officers laboured; but this was a question of fact, and there was ample evidence on which they could have grounded their opinion; and upon a question of International Law the Governors of their colonies were entitled to be heard, and their opinions were entitled to some respect. In this case, too, the Colonial Governor acted on the advice of his Law Officers; and he ventured to say that in this case the colonial Law Officers were right; and, therefore, he thought his hon. and learned Friend the Solicitor General assumed an amount of dignity to which he was not entitled when, with great condescension, he said the Law Officers here did not throw blame on the Law Officers of the colony. In fact, the Law Officers of the colony had been right throughout, and the Duke of Newcastle's despatch was wrong throughout. Then, supposing the ship was a prize, how was she to be dealt with? He (Mr. M. Smith) held that the Government had no right to detain her, and to hand her over to the Federal Government, or to her original owner. His hon. and learned Friend was determined to support the despatch throughout, but he confessed he was rather surprised at his hon. and learned Friend saying there was nothing wrong in the despatch, except that it was not sufficiently explicit. That might be a convenient mode of getting rid of a despatch that was wrong in point of law, but he should have thought that that was the last thing for which this despatch could be found fault with. It seemed to him so explicit that no one could mistake it. It was so explicit that the Governor felt bound to act upon it, and did act upon it, against his own convictions. Like a former memorable despatch of the noble Duke, it was too peremptory—it left no discretion to the Governor as to what he was to do with the vessel, supposing she were a prize; indeed, nothing could be more explicit or more to the point, and the Admiral acted on it most effectually by turning her own crew out of the Tuscaloosa, and placing a crew of British man-of-war's men on board. His hon. and learned Friend contended that a right view of International Law had been taken, but he must say he thought differ- 1825 ently—it seemed to him entirely novel and fraught with the most dangerous consequences; because, if Governors of our colonies were to act on the law laid down by the Colonial Office in this case, we should be in danger of war every day of our lives. His hon. and learned Friend had adverted to what had occurred in another place. In the debate so referred to, a noble Lord high in office and particularly interested in this transaction observed that the despatches written by the Duke of Newcastle went beyond what the Law Officers advised, and that the Law Officers entertained serious doubts.
THE ATTORNEY GENERAL
Earl Russell said the Law Officers declared that it was a matter for serious consideration.
MR. MONTAGUE SMITH
said, he quite accepted the interpretation that it was "a matter for serious consideration;" but the Solicitor General went much further than this, and treated the question as beyond doubt, and that all that had been done was perfectly right. Surrounded as they were by eminent politicians, he could not help thinking that the law of his hon. and learned Friends was somewhat warped by the politics and exigencies of the moment. Away from their present associations, it was impossible to have two better opinions; but, unconsciously to themselves, no doubt, their views had been distorted by their position. His hon. and learned Friend had referred to instances in which a neutral Power was entitled to seize a ship in the hands of a belligerent when brought into its own ports; but in the authorities from which those instances were drawn, including the excellent treatise of the Queen's Advocate on "International Law," he must have seen that they were all exceptions, founded on the fact that the original capture was bad in law. There was no authority justifying the neutral Power in manning the prize from one of its own ships of war in such a case; and had the Confederates been a strong Power, no doubt they would have resented that proceeding as an act of war. If the same step had been taken with a nation able to enforce its own views on international usage, he believed the "serious doubts" of the Law Officers would still have remained. What was such an act, in effect, but making the Queen a recaptor for the Federal Government? In explanation of the instructions sent out to the Cape, altering the decision of the colonial authorities, both as to the law 1826 and the facts, and giving explicit and arbitrary instructions for the future, his hon. and learned Friend urged that it was not then foreseen that the Tuscaloosa would return. If not, then these instructions were a mere waste of harmless powder. But, unfortunately, the Tuscaloosa did come again, and was seized. His hon. and learned Friend could not have been as confident then as he was now; because no one could read the despatches which were subsequently written, without seeing, that when it became known that their instructions had been acted on, and the Tuscaloosa, in fact, detained, the Government were in a great fright and endeavoured to recall what they had done. The colonial authorities were then told to restore the ship; and when they inquired the grounds for so doing were supplied with very scanty information, and left utterly without guide for their future action. The vessel in truth was to be let go because it was not expedient to keep her. But she was detained for her original owner; how then, to be consistent, could the Government let her go without his consent? It would have been more generous to the colonial authorities to have said that they were right in their original opinion, and therefore the ship must be released; and it would have been more generous to the Confederate States if her liberation had been accompanied by some expression of regret for what had occurred. Such an act from a strong Power to a weak one could not have been mistaken, and might have been gracefully rendered. He thought it unfortunate that Lieutenant Low should have cause to make use of such strong expressions as that he had been "misled" and "entrapped." He admitted that there were difficulties in maintaining a strict and impartial neutrality; but the House and the country had a right to expect that our neutrality, more especially in a contest between a weak country and a strong one, should, if rigid, be at the same time impartial.
§ MR. DENMAN
said, that if the discussion of questions of this sort in that House was attended with inconveniences, still greater were those which would arise from rash votes upon questions of great international importance. He hoped that, in the present instance, no vote would be come to upon the Resolution before the House, because either its adoption or rejection could not fail to be productive of mischief. If it was carried, there would be danger, not only that it might 1827 be quoted against us at some future time, but that a wrangle would take place between our own and some foreign Government as to what it was that the House had affirmed. If it was rejected, it was certain that on some future occasion either our own or a foreign Government would appeal to it as affirming positively as good and legal every word which was contained in the despatch of the Duke of Newcastle. He, therefore, trusted that the Resolution would be withdrawn. Passing to the subject of this Correspondence, he apprehended that nothing could be clearer than that the question as to whether the Tuscaloosa was a prize or a ship of war was not a pure unadulterated question of law, but a question of law so entirely depending upon facts that you could not have any better judge in such a matter than a naval officer like Sir Baldwin Walker, who had seen the vessel on the spot, and who understood her character, her equipment, and all about her. The evidence of experts was constantly admitted in our courts of law, and in this instance there was no better authority than — there was, in fact, no competent authority except—Sir Baldwin Walker. And was there any authority to the contrary? Not a bit. Even the hon. and learned Gentleman the Member for Truro (Mr. Montague Smith) had abstained from saying that he did not accept the authority of Sir Baldwin Walker. [Mr. MONTAGUE SMITH: I said distinctly that I thought she was a ship of war.] He was aware that it was his hon. and learned Friend's opinion that she was a ship of war; but that opinion was held entirely against Sir Baldwin Walker's better judgment. All those who had in this debate opposed the view taken by Sir Baldwin Walker had relied upon passages culled from text books and upon decisions by Lord Stowell and others; but those decisions, as presented by the hon. Gentlemen themselves, did not make out the proposition that the mere existence of the commission was enough to make the vessel a ship of war, and that you were not to look behind that commission, and go into other facts, and examine whether the vessel really was a ship of war or an uncondemned prize. On the contrary, in the case of the Georgiana, his hon. and learned Friend quoted words which showed clearly that the judgment of the Court was not founded upon the mere fact that there had been a commission, but upon other facts which were of great importance. ["No, no!"] The hon. and learned 1828 Member for Truro cited the strongest case, that of the Ceylon, which had been quoted in the course of the debate as to the power of a captain to commission another ship as a tender; but even there the words were that the officer who received the commission might set the vessel forth as a ship of war; and there was nothing in the decisions which established that where there was nothing but a commission and an officer put on board the vessel you were in, the presence of all facts and in spite of all arguments to the contrary, to consider the vessel a ship of war. In the case of the Georgiana there had, as stated by the hon. Member for Maldon (Mr. Peacocke), been put on board ten additional guns and a fighting crew of sixty men, and Lord Stowell decided that the officer had sufficiently "set her forth for war." Now, in the case of the Tuscaloosa, Admiral Walker in effect said: "I, who am a naval officer and who know what a ship of war and also what a tender is, am perfectly certain that this vessel was not a ship of war, but a merchant vessel, with her cargo on board." That, he contended, was a statement worth a hundred opinions of legal Gentlemen in that House who took a contrary view, who could not have the same knowledge of the character of a ship, and who, moreover, had never set eyes upon this ship. But the truth was, that questions of International Law were perpetually arising upon which no decision had been previously given, and this case of the Tuscaloosa was an exceptional case. Was there to be found among the records of past cases any case standing on all fours with this? In such a case what were they to do? They could only look to analogy and reason, and submit to be governed by those two principles; nor was it possible, he thought, to deny that the analogy drawn by his hon. and learned Friend the Solicitor General was a good one. The real principle involved in the question was, that the neutrality of this country had been violated, and that the parties by whom it had been violated had no right to turn round and demand restitution for the results of their own wrong. That was a true principle, which would be admitted by all. With regard to Captain Semmes, it was stated that he had pledged his own truth to the fact that this ship was a tender, and that the British authorities ought to have accepted his statement as a verity. Sir Baldwin Walker had no doubt said that he saw no reason to dispute the 1829 accuracy of Captain Semmes' statement. Now, a considerable fallacy lay concealed under this argument. Captain Semmes was a commissioned officer of the Confederate States. It was his duty, if lie found the British Government willing to let him treat this vessel as a tender, to run the gauntlet through all our arrangements. But Captain Semmes had really no authority for calling this vessel a tender. He (Mr. Denman) did not mean to impute anything dishonourable to Captain Semmes in the conduct he had pursued. There was little doubt but that Captain Semmes thought that by putting a commissioned officer on board and by calling the vessel a tender, he actually made her what he called her; but then he had done an act which was no less an evasion of our neutrality. The Attorney General at the Cape, he might add, in giving his opinion on the matter, had cited a passage from Wheaton, which was not applicable to the case; but the Governor had, nevertheless, done quite right in acting on that opinion; while, with respect to that portion of the despatch of the Duke of Newcastle which had been complained of, it was quite clear that it was not the result of the deliberation of the Law Officers of the Crown, but had been added in the urgency of the moment by the Duke himself. If that were so, the House would, he thought, hardly deem it desirable that when the subject was said to be under the consideration of the Law Officers of the Crown, they should bind themselves and the country in all future wars to the statement that the particular part of the despatch to which he referred was at variance with the principles of International Law. With respect to the third point raised by the hon. and learned Member for Truro, he maintained that, as gentlemen and as Englishmen, the heads of the Colonial Office could not have acted otherwise than they did after receiving intimation that the Tuscaloosa had been detained. The letter of Mr. Low, the officer in command of the vessel when Captain Semmes was absent, had been quoted to the House. The writer spoke of having been "entrapped." When the ship went away the first time she had the wool and the skins on board, and the two small guns which Admiral Walker said it was ridiculous to call an armament. She went away as a regular uncondemned prize. When she returned again she certainly had more the appearance of the tender of a man-of-war; and, therefore, if they were not en- 1830 titled to stop her on the first occasion, she had a right to consider that she would not be stopped on the second. Whatever, therefore, their opinion might have been as to the right of detaining her on the first occasion, it would have been a wrong thing, and, he would add, a shabby thing, for the Colonial Office to detain her on the second occasion. However, she was then seized, owing to a misconception of his instructions on the part of Sir Philip Wodehouse. The despatch of the 4th November never told him that he was to shut his eyes to altered circumstances and act in a blindfold manner. There was to him something like the exhibition of a little pique in the letter of Sir Philip Wodehouse, stating that the commander of the Tuscaloosa not unnaturally complained of her having been seized after being recognized on the previous occasion as a ship of war; but that that was manifestly nothing more than the inevitable result of the overruling by the Home Government of the decision of a subordinate officer. He thought it was rather the natural result of Sir Philip Wodehouse's not having — as he did on the first occasion — consulted his Attorney General, who would most probably have told him that he was estopped from detaining the vessel. The Home Government then sent out another despatch cancelling the detention. The hon. Member for Maldon (Mr. Peacocke) had complained that this despatch assigned no special reasons for that course being taken. To him (Mr. Denman) it seemed that the reasons assigned were very special. It was stated that the decision taken was not founded on any general principle, but on the peculiar circumstances of the case, among which one was, that she had been called the tender of a ship of war, when really she was merely an uncondemned prize; nevertheless, she had been allowed to enter and to depart from the Cape, by which her commander might naturally have thought that he could go there again. The Government, therefore, came to the conclusion that she ought to be released, with a fair warning to her commander and to the captain of the Alabama, that ships of war could not be permitted to bring their prizes into British ports, and that it rested with Her Majesty's Government to decide to what vessels that character belonged. The despatch concluded by expressly disclaiming, in kind and courteous terms, the intention to censure, in any degree, the course pursued by Sir Philip 1831 Wodehouse on a question of difficulty and doubt. Now that the Duke of Newcastle had retired from office, he thought it was as ungracious as it was unnecessary and improper, and even mischievous, for the House to put on record a Resolution which would be quoted against them as meaning something which it did not mean; and, for the sake of the country, for the sake of that which they would all allow Her Majesty's Government desired in spirit to preserve—namely, an honourable neutrality in our relations with America, he trusted that his hon. Friend would not force the House to a vote on that occasion.
§ MR. BOVILL
said, he concurred in thinking that a vote on this subject might lead to a mischievous result if it should affirm a principle of International Law which was not correct. The country had been placed in a state of humiliation by the seizure of a vessel belonging to a weak State, and our being afterwards obliged to surrender the vessel so seized; and whilst the instructions which had been given remained unrepealed, what had occurred might occur again, and subject us to further humiliation. While the instructions of the 4th November, issued to the Governors of the Colonies, remained uncancelled and unaltered, other cases might occur which would be equally mischievous; and although he quite agreed that that House was not a proper tribunal for the discussion of questions of International Law, yet the attention of Parliament must be called to the subject, and an attempt made to put the matter upon a proper footing. In cases of this kind there was always a difficulty in ascertaining the precise facts to which the law was to be applied; and a dispute had arisen as to the true character of the Tuscaloosa. She was originally a Federal merchant vessel, and was captured by the Confederate vessel of war, the Alabama. On her capture, an officer of the Confederate navy was placed on board with a complement of men from the Alabama, and from that time she had been continuously employed in the service of the Confederate States. The only ground on which the American Consul claimed the restitution of the vessel was, that having been fitted out as a vessel of war and a tender of the Alabama, she was allowed to enter a neutral port, not having been condemned as a prize in any Admiralty Court. The character of the vessel, however, was placed beyond all dispute by the demand 1832 made by Mr. Graham on Sir Philip Wodehouse, wherein he stated that she was subsequently fitted out with arms by the Alabama "to prey on the commerce of the United States." Every person capable of forming an opinion arrived at that conclusion. Sir Baldwin Walker saw the vessel, and communicated with her commander, and he came to the conclusion that she ought to be treated as a vessel of war. If hon. Members would refer to the correspondence they would see that an officer and ten men of the crew of the Alabama were put on board, and it was admitted that she had been fitted out "to prey on the commerce of the United States." The conclusion come to by Sir Philip Wodehouse, by the acting Attorney General at the Cape, and by the Consul of the United States, was that the vessel was fitted out for that purpose. If all parties came to the same conclusion, how was it that the Duke of Newcastle was entitled to consider the vessel to possess a character which all admitted she had not—the character of a merchant vessel? But all were overruled, and notwithstanding that every one said that this was to be considered a vessel of war, his hon. and learned Friend the Solicitor General said that to consider this as a vessel of war was a mere sham. The only allegation of weight on the other side was that she had a cargo of wool on board; but it never could be made a question, in the face of the papers, whether she was a vessel of war or not. He would challenge his hon. and learned Friend the Attorney General to say that she had not this character simply because she had not been condemned as a prize. It would be a most serious thing if the House should be called on, upon the authority of the Law Officers of the Crown, to affirm the correctness of the instructions sent out by the Duke of Newcastle, and within a few days afterwards to find on the table amended instructions on which all colonial officers were in future to act. But the misfortune was that those instructions being sent out on the 4th of November, a despatch of the 10th of March of the present year placed the release of the vessel on entirely different grounds. To this hour no alteration had been made in the instructions, and if another merchant vessel which had been taken as a prize, fitted out by the Confederate States, and placed in charge of an officer of their navy found its way to Simon's Bay, what course would Sir Baldwin Walker take with regard to it? The 1833 instructions of the 4th of November remained uncancelled, and he would only have one course to pursue. He had no alternative but to act on those instructions, He acted on them, and seized a vessel of war. Could anything be more humiliating? Instructions went out; contrary to the opinion of the officers of the colony, they were acted on; and when the Government could not retain their position, they were glad to put forward some excuse for giving up the vessel by admitting that the captain had been misled and entrapped. Hence the necessity for the House taking notice of the subject. If the vessel was not of the character which had been supposed, then she was a vessel of war. It was not necessary to be a vessel of war that she should be equipped as a large vessel would be. Even a launch, under the command of a midshipman, detailed for a cutting out expedition, was a vessel of war. But even supposing that she could be treated in any other character, then she must be a prize. Then she was a prize, taken lawfully, and the property in her had passed to the captors, and no adjudication was necessary. The Solicitor General said that the vessel passing through neutral waters became liable to seizure, and to be handed over to the original owners. He (Mr. Bovill) maintained there could be no more false proposition, and he should be surprised indeed if it were put forth by the Attorney General. The country had a right to expect a clear statement of the law, because they were told that the subject had been under the serious consideration of the Government. The Solicitor General had referred to captures in neutral waters. Everybody knew that such captures were illegal if the neutral State interposed; but in the case of a captured vessel passing within neutral territory, there was no power to restore the property to persons who had ceased to be the owners by the law of nations. He would not enter further into the argument, but he thought it would have been better if more candour had been shown. It had been admitted that the instructions issued had gone beyond what had been sanctioned by the Law Officers of the Crown, and he trusted that, in future, instructions of a different character would be issued.
THE ATTORNEY GENERAL
Sir, there are two principal questions as to which, if I rightly understand the Motion of the hon. Gentleman opposite, it is intended by this vote to ask the House to 1834 pronounce, that this despatch contains doctrines at variance with the principles of International Law. At all events, in the course of the debate, two questions have been raised and discussed on one side or the other. The first proposition laid down in the despatch is, that the vessel called the Tuscaloosa did not lose the character of a prize captured by the Alabama, merely because she was at the time of being brought into British waters armed with two small rifled guns, in charge of an officer, and manned with a crew of ten men from the Alabama, and used as a tender to that vessel, under the authority of Captain Semmes, having nothing to give her a warlike character except those circumstances. The first question is, whether that proposition is contrary to the principles of International Law. The second question is, whether the final proposition in the despatch is of that character. I must express my unfeigned surprise at the manner in which the hon. and learned Member for Guildford (Mr. Bovill) has dealt with the facts bearing upon the first of these two propositions. I had hoped that all who took part in this debate would confine themselves to the real facts, and there was no Member from whom I should less have expected a miscarriage in that respect than from my hon. and learned Friend. But when my hon. and learned Friend gravely rises and gravely tells the House that every authority at the Cape—Sir Baldwin Walker as well as others — had agreed in pronouncing this vessel to be a ship of war, and entitled to be recognized in that character, I am placed in the dilemma of supposing either that he has not read the papers, or that— which, of course, I do not suppose—having read them he meant to misrepresent them. ["Oh!"] The House shall judge whether I have reason for saying so; and I must also correct an error into which, I am sure by accident and involuntarily, my hon. and learned Friend the Member for Truro (Mr. Montague Smith) has fallen. He said in the course of his able speech—to which I listened with much attention — that Sir Baldwin Walker had expressed an opinion that this ship was duly commissioned as a ship of war. I will show the House that a more complete mistake could not be made. What are the facts? In the first place, the letter to which the hon. Member for Truro referred does, indeed, use the word "commission," which is the source of his mistake; but how do the 1835 subsequent papers correct the erroneous ideas suggested by its use? Under the date of the 7th of August, Sir Baldwin Walker, writing to the Governor of the Cape, says—Captain Forsyth having informed me that the Alabama has a tender outside captured by Captain Semmes on the coast of America, and commissioned by one of the Alabama's lieutenants.["Hear, hear!"] The hon. and gallant Gentleman opposite (Sir John Hay) may have a better idea of these words than myself, but it seems to be that of one of the lieutenants of the Alabama, granting a commission. ["Oh!"] I can only say that it appeared ultimately that there was no commission in the proper sense of the word. I read the words as set down by Sir Baldwin Walker, "commissioned by one of the Alabama's lieutenants," and I defy anybody to define from them what sort of commission this represents. ["Oh!"]
§ SIR JOHN HAY
said, that having been personally alluded to by the hon. and learned Gentleman, he wished to remark that when it was said that a captain at Portsmouth had commissioned one of Her Majesty's ships, it did not mean that he had conferred that commission upon himself.
THE ATTORNEY GENERAL
The hon. and gallant Gentleman interprets those words as equivalent to "under the command of one of the Alabama's lieutenants." I believe that is so, and the sequel shows that when the matter came to be more carefully considered, the element of a commission was eliminated, and there is nothing to be founded on that consideration. In the first place, Sir Baldwin Walker having requested the opinion of the Colonial Law Officers, obtained that opinion, and the House will observe the important consequences which followed from it, as expressed in Sir Philip Wodehouse's letter of the 8th of August to Sir Baldwin Walker, enclosing the opinion of the acting Attorney General—I shall take care to submit this question to Her Majesty's Government by the next mail, but in the meantime I conclude that your Excellency will be prepared to act upon the opinion of the Attorney General in respect to any vessels which may enter these ports in the character of prizes converted into ships of war by the officers of the navy of the Confederate States."—Correspondence, No. 6 (1861), p. 3.I confess that was a somewhat alarming proposition, as it would suggest to the officers of the Confederate States navy a 1836 very simple and easy mode of escaping the provisions of Her Majesty respecting the bringing prizes into her ports by putting them into the position of the Tuscaloosa, and calling them ships of war, and introducing them into our ports as acknowledged in that character. Sir Philip Wodehouse treated that as a conclusion which naturally followed from the opinion of the Colonial Attorney General; and he said that he should take care to submit the question to Her Majesty's Government. But what was the effect of that opinion upon the mind of Sir Baldwin Walker, who has been treated by my hon. and learned Friend as among those who have pronounced this vessel to be a ship of war? Sir Baldwin Walker having, for the first time, through his own officer, obtained true information of the real facts, wrote on the 16th of August to this effect—The vessel in question, now called the Tuscaloosa, arrived here this evening, and the boarding officer from my flagship obtained the following information:—That she is a bark of 500 tons, with two small rifled 12-pounder guns and ten men, and was captured by the Alabama on the 21st of June last, off the coast of Brazil; cargo of wool still on board. The admission of this vessel into port will, I fear, open the door for a number of vessels captured under similar circumstances being denominated tenders, with a view to avoid the prohibition contained in the Queen's instructions; and I would observe that the vessel Sea Bride, captured by the Alabama off Table Bay a few days since, or all other prizes, might be in like manner styled tenders, making the prohibition entirely null and void. I apprehend that to bring a captured vessel under the denomination of a vessel of war she must be fitted for warlike purposes, and not merely have a few men and two small guns put on board her (in fact, nothing but a prize crew) in order to disguise her real character as a prize."—Correspondence, No. 6 (1864), p. 3.My hon. and learned Friend must have overlooked that despatch. Then what does Sir Baldwin add?—Now this vessel has her original cargo of wool still on board, which cannot be required for warlike purposes, and her armament and the number of her crew are quite insufficient for any services other than those of slight defence. Viewing all the circumstances of the case, they afford room for the supposition that the vessel is styled a 'tender' with the object of avoiding the prohibition against her entrance as a prize into our ports, where, if the captors wished, arrangements could be made for the disposal of her valuable cargo, the transhipment of which, your Excellency will not fail to see, might be readily effected on any part of the coast beyond the limits of this colony. My sole object in calling your Excellency's attention to the case is to avoid any breach of strict neutrality." — Correspondence, No. 6 (1864), p. 3.1837 It is not upon the papers, but we know, as a matter of fact, that what Sir Baldwin Walker apprehended about the cargo actually happened. We know that when the Tuscaloosa left the Cape she went to Angra Pequena, and deposited her cargo of wool and skins on the rocks of an island, having previously, while in the waters of the Cape, made such an arrangement that she was followed by the colonial ship Saxon, which took in the cargo for the purpose of disposing of it for Captain Semmes in the Cape Colony—an enterprise which unhappily resulted in loss of life, and in the capture of the Saxon by the Vanderbilt. The real question is, whether that is not a mischief of the most serious character, which, if permitted, would place it within the power of any captain of the Federal or Confederate navy by an easy ruse to set at nought and violate and trample under foot, with contempt, the order made by the British Crown for the preservation of British neutrality. If any opinion can be more strongly expressed than another it is that of Sir Baldwin Walker, and I agree with my hon. and learned Friend the Member for Tiverton (Mr. Denman) that this matter of fact is one of which Sir Baldwin Walker was a far better judge than all the lawyers in the world. It was his conclusion, from the ascertained facts concerning the Tuscaloosa, that the character assumed of a ship of war was not real but feigned, and that to recognize it would have the effect of enabling anybody to laugh at Her Majesty and Bet her prohibitions within her own territory at defiance. What was the result? So much impressed was Sir Philip Wodehouse with the force of these observations, and with the authority from which they proceeded, that he thought it necessary to refer the question once again to the acting Attorney General of the colony. I wish to speak with the utmost respect of the colonial Attorney General. I have had more opportunity than the House would have, from the simple perusal of these papers, of knowing that he is a most able, upright, and excellent public servant. He exercised his judgment to the best of his ability upon the question put before him. If he was in error—and it is not for me to do more than submit my view upon that point to the House—he is not to be blamed for it, for it was one into which he fell because he was called upon to determine a most difficult question under circumstances which precluded him from having full and 1838 accurate information. The House will understand, therefore, that not a word I say is intended otherwise than most respectfully towards that learned person. I believe his first opinion was based upon an assumption of facts which, if correct, would probably have justified it; but I must take the liberty respectfully of saying, that the propositions contained in his second opinion, which was given on the 10th of August, 1863, are propositions which, I think, are most dangerous and erroneous. He was evidently misled by the error of supposing that the passage he had referred to in Wheaton was applicable to this case. Of course, you may reason by analogy from one thing to another, but I shall show that the passage in Wheaton cited by the colonial Attorney General and the authorities referred to in this debate are quite beside the mark, relating to a subject of an entirely different character. What were the conclusions drawn by the colonial Attorney General from those authorities? They are stated in a despatch of the Governor, dated August 10—The information given respecting the actual condition of the Tuscaloosa is somewhat defective; but, referring to the extract from Wheaton transmitted in my last letter, the Attorney General is of opinion that if the vessel received the two guns from the Alabama, or other confederate vessel of war, or if the person in command of her has a commission of war, or if she be commanded by an officer of the Confederate navy, in any of these cases there will be a sufficient setting forth as a vessel of war to justifying her being held to be a ship of war." — Correspondence, No. 6 (1864), p. 4.So that the Colonial Attorney General was of opinion that though the Tuscaloosa should have no commission, though she should not even have an officer of the Confederate navy on board, yet if her two guns had been received from the Alabama, that was a good reason for calling her a ship of war. He was also of opinion that though she should have no commission and no guns, yet if she were commanded by a Confederate officer that was enough. I am bound to say that I think his opinion was founded upon a complete misconception of the law. The authorities to which he referred— although I admit be discharged his duty to the best of his ability and judgment —misled him, because he read them in a text-book, was not able to make himself acquainted with the cases on which the passages he cited were founded, and did not observe how special and limited was their bearing upon the question before him. Let the House mark what was the result. 1839 The Governor, who of course thought it his duty to act upon the opinion of the Attorney General, communicated that opinion to Sir Baldwin Walker. Sir Baldwin did not change his own original opinion, but of course he had to apply the law of the Attorney General to the facts of the case. Accordingly, on the 11th of August, he writes—I have the honour to acknowledge the receipt of your Excellency's letter, dated yesterday, respecting the Confederate bark Tuscaloosa now in this bay. As there are two guns on board, and an officer of the Alabama in charge of her, the vessel appears to come within the meaning of the cases cited in your above-mentioned communication."—p. 4.There were three cases put—first, guns put on board by a Confederate vessel; second, a commission; third, an officer of the Confederate navy in command; and Sir Baldwin Walker finds that the first condition is fulfilled, and the third, but not the second. To make it more clear it is distinctly so stated in the despatch of Sir Philip Wodehouse, dated August 19. I ask the attention of those, who wish to see how serious a question the Government had to consider and determine, to the whole of that despatch, because it shows that with all the courtesy, address, and gallantry which would no doubt distinguish officers in command of ships of the Confederate, or, I should hope, any other navy, yet if you give them an inch they will take an ell, and that the effect of any relaxation of your laws and rules of neutrality may be such, that you will soon be entangled in questions of a character which, if you permit them to arise, will embarrass you in a manner which it is the interest as well as the duty of this country to avoid. No one can accuse Sir Philip Wodehouse of any prejudice against Captain Semmes, or any partiality against the Alabama. I believe him to be impartial, fair, and just. But what are the doings of the Alabama in the Cape waters recited by Sir Philip Wodehouse himself? He says—The Alabama leaving her prize outside, anchored in the bay at 3. 30 p.m., when Captain Semmes wrote to me that he wanted supplies and repairs, as well as permission to land thirty-three prisoners. After communicating with the United States Consul, I authorized the latter, and called upon him to state the nature and extent of his wants, that I might be enabled to judge of the time he ought to remain in the port. The same afternoon he promised to send the next morning a list of the stores needed, and announced his intention of proceeding with all despatch to Simon's Bay to effect his repairs there. The next morning (August 6) the paymaster called on 1840 me with the merchant who was to furnish the supplies, and I granted him leave to stay till noon of the 7th. On the morning of the 8th Captain Forsyth, of the Valorous, and the port captain, by my desire, pressed on Captain Semmes the necessity for his leaving the port without any unnecessary delay; when he pleaded the continued heavy sea and the absence of his cooking apparatus, which had been sent on shore for repairs and had not been returned by the tradesman at the time appointed, and intimated his own anxiety to get away. Between 6 and 7 a.m. on Sunday, the 9th, he sailed, and on his way to Simon's Bay captured another vessel, but on finding that she was in neutral waters, immediately released her." —Correspondence, No. 6 (1864), p. 5.It was quite right to release her, and it was also necessary. But see the state of things you have got here. Captain Semmes gets an enlargement of time, and when he leaves he captures a vessel in neutral waters. These are circumstances which ought to warn every one of the importance and necessity of observing strictly the rules made for the preservation of neutrality. Further on, in the same despatch, Sir Philip Wodehouse says—An important question has arisen in connection with the Alabama, on which it is very desirable that I should, as soon as practicable, be made acquainted with the views of Her Majesty's Government. Captain Semmes had mentioned, after his arrival in port, that he had left outside one of his prizes previously taken, the Tuscaloosa, which he had equipped and fitted as a tender, and had ordered to meet him in Simon's Bay, as she also stood in need of supplies. When this became known to the Naval Commander-in-Chief, he requested me to furnish him with a legal opinion; and whether this vessel could be held to be a ship of war before she had been formally condemned in a Prize Court; or whether she must not be held to be still a prize, and as such prohibited from entering our ports. The acting Attorney General, founding his opinion on Earl Russell's despatch to your Grace of the 31st January, 1862, and on Wheaton's International Law, stated in substance that it was open to Captain Semmes to convert this vessel into a ship of war, and that she ought to be admitted into our ports on that footing. On the 8th of August the vessel entered Simon's Bay, and the Admiral wrote that she had two small rifled guns with a crew of ten men, and that her cargo of wool was still on board. He was still doubtful of the propriety of admitting her. On the 10th of August, after further consultation with the acting Attorney General, I informed Sir Baldwin Walker that if the guns had been put on board by the Alabama, or if she had a commission of war, or if she were commanded by an officer of the Confederate Navy, there must be held to be a sufficient setting forth as a vessel of war to justify her admission into port in that character. The Admiral replied in the affirmative, on the first and last points, and she was admitted." — Ibid.Sir Baldwin Walker replied in the affirmative as to the guns and as to the officer, but not—and let the House and the 1841 hon. and learned Member for Guildford take notice — not as to the commission. My hon. and learned Friend the Member for Truro (Mr. Montague Smith) will see that his inference from the use of the word "commission" in the first letter of Sir Baldwin Walker, written before the facts were ascertained, falls to the ground when we know that the facts when they were ascertained were found to meet the first and last points laid down by the Attorney General, but not the second. One thing is quite clear, that no commission belonging to the Tuscaloosa was at that time exhibited.
And now I wish the House to do me the favour to turn for a moment to the error into which the Acting Attorney General, not at all unnaturally, fell—an error in which he has been followed by several speakers in the debate this evening—when he took the "setting forth" the vessel for war as being a criterion for deciding the question which arose under the Queen's neutrality orders. The authorities on that subject, to which he referred, are authorities on the construction of particular words in the English Prize Acts, and in some similar American statutes. These statutes provided, that if in a war in which we were belligerents one of our ships were taken by the enemy, on being re-taken at a later time it should be restored to the original owner, except in cases where the vessel, after her capture, had been "set forth" or employed for purposes of war. We had all the dangers and perils of war to encounter in capturing a ship once employed in fighting against us, and it was therefore but fair that the reward of that danger and peril should also fall to the lot of the re-captors, and that the title of the original owner should not in that case be recognized. The title of the original owner is, however, recognized by these statutes in many cases where it would have been entirely forfeited by International Law; it is recognized by them, even after a regular sentence of condemnation has been pronounced. The rule thus laid down to govern cases of re-capture by a belligerent Power, has nothing to do with the question, whether a neutral Power not at war shall in one way or another vindicate its neutrality when that neutrality has been violated. The Prize Acts have no force in reference to the subject with which you are dealing. This view was taken by Mr. Justice Story, no mean 1842 authority, in a similar case which has been decided by him. I refer to the case of the Nereyda, a Spanish ship of war, taken by a privateer which had been fitted out in the United States for the service of the Venezuelan Government contrary to the Foreign Enlistment Act of the United States. The Nereyda, after her capture, was herself regularly commissioned and set forth as a privateer, in the service of the Venezuelan Government. If re-taken by a Spanish vessel (and supposing the Spanish law as to restitution in cases of re-capture to be similar to our own) she would have been condemned as prize to the re-captors, and would not have been liable to be restored to her original owners. But, nevertheless, Judge Story adjudged her original character of a prize taken from Spain not to be obliterated by her subsequent employment for warlike purposes, when the question was, what was to be done with her on her being brought within the waters of the United States; and he ordered her to be restored to her original Spanish owners on the ground, that the ship which took her was fitted out in violation of the laws of the United States. That case went much beyond the present. We were bound, in the present case, to guard ourselves against admitting what I believe to be a very dangerous doctrine—namely, that we should allow any concealment of the character of the prize to be the means of enabling the captor to take the vessel beyond the reach of Her Majesty's neutrality Orders. Such a principle would find no authority in International Law. No Sovereign would be mindful of his dignity if he allowed his authority to be set at naught by the captor of a ship merely going through certain forms. It is as competent for a Sovereign to prohibit or limit the entry even of public ships of war within his territory as to prohibit the entry of prizes. The principles of International Law would fully vindicate a Sovereign in the exertion of such authority. The methods for effecting this object are within his discretion; though, at the same time, he ought not to use harsher means than the exigencies of the case demand. It appears to me, therefore, that this portion of the despatch is not only well justified, but that this country would have been unmindful of its dignity, and its neutrality orders might have been absolutely set at defiance, if it had arrived at a different conclusion, taking the facts as they were reported. When the Tuscaloosa 1843 came back the second time there was something resembling an equipment, and something resembling a commission, and therefore questions of a totally different character then arose as compared with those which her first visit gave rise to. The question, however, before the House is not the determination of her character upon the occasion of her second visit. We must take the facts as they stood upon the 4th of November, and as they were reported to the Government.
And now I come to the second branch of the case, and that is, the suggestion of what should be done if the result of the inquiries proved that the vessel was really an uncondemned prize brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality. The words employed by the Duke of Newcastle are—I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction, until properly reclaimed by her original owners."—p. 19.Now, I have not the least wish to avoid any portion of the responsibility for that passage. It is true, as was stated in another place, that the Law Officers of the Crown had suggested that which is expressed in the words I have read as matter for serious consideration. Undoubtedly if the despatch had been submitted to them, it is probable that they might have proposed some qualifications, or some supplement to it, and it would not have been entirely in accordance with their intentions that it should go out in a form be short and little developed as that in which it now appears. Of course the House will understand that I would not have said so much, if it had not been for the statement made in another place, that the despatch went beyond what was stated by the Law Officers of the Crown. We are bound to accept the full responsibility for the passage as it stands, because, with the exception that the matter was mentioned by us as worthy of serious consideration and not with a view to its immediate settlement in those precise terms, the very words are those in which it was suggested for consideration by the Law Officers. The Duke of Newcastle might naturally suppose that the Law Officers intended thereby to intimate the opinion which he adopted, and they would 1844 not have intimated what they did had they not thought the principle involved sound. If blame be due anywhere, it is to us, and I am ready to take upon myself a principal share of it. At the same time, although the question is an open one, and there may be differences of opinion as to whether or not, under such circumstances as those of the Tuscaloosa, it would be an extreme exercise of Her Majesty's powers to retain a prize for the purpose of restoring her to the original owner, I am prepared to maintain with confidence that no principle inconsistent with International Law is expressed in any part of this passage. The case assumed is that either of a wilful violation or fraudulent evasion of the Orders issued by the British Crown for the maintenance of our neutrality, that violation or evasion taking place within the territory of Great Britain. That is the state of facts which raises the principle involved. The rest is merely a question of discretion and moderation in carrying out the principle. Can it be said that a neutral Sovereign has not a right to make orders for the preservation of his own neutrality, or that any foreign Power whatever violating these orders, provided it be done wilfully or fraudulently, is protected to any extent by International Law within the neutral territory, or has any right to complain on the ground of International Law of any means which the neutral Sovereign may see fit to adopt for the assertion of his territorial rights? By the mere fact of coming into neutral territory in spite of the prohibition, a foreign Power places itself in the position of an outlaw against the rights of nations; and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral Sovereign? We have had no answer to what was stated by the Solicitor General as to the principle upon which neutral Governments have hitherto acted, when their neutrality had been violated under circumstances at all of a parallel character to those of the present case. Reference has been made to the case of prizes taken within neutral jurisdiction, as if that case depended upon some different principle; but there is some confusion on this point. If there is one proposition more clear than another in International Law it is, that in such a case the wrong is against the neutral alone. At the engagement off Lagos, in the time of Lord Chatham's Ministry, our navy captured a number of ships in Portuguese 1845 waters. Lord Chatham said to our Minister, "Make any apology you please, say anything you like to satisfy the dignity of the King of Portugal, but give back not one of the ships." Thus we see the principle laid down that between belligerent and belligerent a prize is a good prize, provided the neutral does not interfere to vindicate his own neutrality. It is usual for the neutral who has interfered under such circumstances to restore the prize to the original owner, but the latter has no right to claim it from the neutral as a man can claim his property in a court of law. The object of the proceeding being to vindicate the territorial rights and guard the neutrality of the Sovereign, he does not, of course, want to make money out of the transaction, and therefore restores the prize to the original owner. The considerations which suggest the determination to vindicate the neutrality of the Sovereign suggest the propriety of the neutral restoring the prize taken from the captors to the original owners. No one disputes that, as between belligerent and belligerent, there are no rights in such a case; the capture is good, provided the neutral does not interfere to vindicate his sovereignty; but where the neutral does interfere to seize the prize, the invariable practice is to restore the property to its original owners. I quite admit that the United States Consul was all at sea about the matter. He seems to have thought that, until there was a condemnation in a Prize Court, or something else done, the original owner, in a neutral territory, would, as a mere matter of course, be entitled to the restoration of his property. There is no foundation for that idea. If Her Majesty's Government had not been pleased to issue orders that prizes should not be brought into British ports, it would have been competent to bring them in, and no demand for the restoration of any prize by the original owner could have been listened to.
I must now remind the House of a still more recent doctrine as to the restoration of prizes, the origin of which may be said to be due in a great measure to ourselves, and which has been laid down and recognized in the United States. I refer to the case where, although the prize itself has been captured at sea far from the jurisdiction of the neutral Sovereign, yet it has been taken by a ship which has violated by equipment or fitting out the territorial rights of the neutral Power, into whoso ports it is afterwards brought, and is con- 1846 sequently supposed to come in with the taint of a violation of neutrality attaching to it. Under these circumstances it has been held, that the neutral Sovereign has a right to retain the prize, with a view to restore it to the original owner. In 1793, when certain privateers were fitted out by the French in the ports of the United States, if not with the connivance of, at least without being prevented by, the Government of the States, Mr. Hammond, the English Minister, urged them not only to repress those privateers for the future, but to restore every prize which they had brought into the ports of the United States. What was the course taken by the United States Government on that occasion? They took a course which has been the foundation of the doctrine acted upon by them ever since. They determined at once to accede to that part of the demand which was directed against the future preparing of privateers in their ports, and communicated that decision on the 5th of June to M. Génét, the French Minister. At the same time, they refused peremptorily to restore the prizes already brought in by those privateers, because they had been fitted out, they said, with the knowledge and permission of the Government. The French, however, continued to fit out more privateers, and the American Government, after again considering the matter, on the 25th of June, 1793, determined that all prizes brought in by privateers fitted out after a certain date should be detained in the custody of the Consuls of the ports "until the Government of the United States should be able to inquire into and decide on the facts." Subsequently the President, on the 12th of July, announced his resolution to refer the questions concerning prizes "to persons learned in the laws," and requested that certain vessels enumerated in the letter should not depart "until his ultimate determination should be made known." Again, on the 7th of August, the President, through his Secretary, informed M. Génét that he had determined to restore all such prizes brought into American ports by privateers fitted out in their ports. When the treaty was made in 1794–5, there was an article by which the United States bound themselves to make compensation to this country for all prizes which might be brought into their ports by privateers fitted out in their territory after the 5th of June, and the restitution of which had not been effected. That is the origin of the doctrine, and it 1847 shows that all these cases proceed upon the principle that where there has been a violation of neutrality the neutral Government has, within its own territory, the right to determine how that violation shall be redressed, as regards all prizes brought within its jurisdiction. The principle upon which the American Government acted in establishing this doctrine — the principle upon which all Governments act with respect to the restitution of prizes taken within their territorial limits—is applicable here, subject only to the question, whether in the particular circumstances it is necessary to resort to that mode of vindicating the honour and dignity of the Sovereign? I can refer to an older precedent even more directly in point than those that have been given. In 1658 the States General of Holland had occasion to issue ordinances for the purpose of preventing the entrance into their ports of ships of war bringing prizes. It had been usual to allow the free access of such ships with their prizes; but these ordinances were issued, and in some parts they go far beyond anything which is suggested by the Duke of Newcastle in his despatch. The first ordinance, issued on the 9th of August, 1658, prohibited the captors of prizes brought into the ports of Holland, even under stress of weather, from disposing of anything on board, and they were put under strict watch and ward. In the ordinance of November 7, 1658, there was a further prohibition against bringing the vessel into the harbour; it could only be brought into the Zee-gaten, where it was safe from danger; and if any one acted otherwise, the prize, as if it had not been captured, was to be restored to him from whom it had been taken, the captor was to be detained, and, after due inquiry, his ship was to be forfeited and sold. These ordinances were, indeed, disapproved by Bynkershoek, who advocated the practice of allowing all belligerents to bring in their prizes; and they certainly went a great deal further than Her Majesty's Government could ever be advised to go. It is quite plain, however, that the States General had no doubt about their right to enforce these prohibitions, by the threatened restitution of prizes and even by stronger measures. Then I say that the principle cannot possibly be shown to be against International Law. Whether or no persons may come to the conclusion that, under certain circumstances, a less strong course would be sufficient is another question. But the question before the House 1848 now is, whether the principle laid down in the despatch is against International Law; and I say that it is justified by every precedent which can be cited on the subject. It does not follow from this proposition either that all uncondemned prizes are to be restored, or that the original owner has a right to claim their restitution. The neutral Sovereign restores them, when they are restored, in vindication of his own dignity and authority, and the violation of neutrality is the indispensable condition of calling this principle into play at all. It is on this principle that the despatch was written, and there is nothing in it contrary to the principle of International Law. Reference is made to the absence of a sentence of condemnation, not under the notion that every uncondemned prize should be restored where there is no violation of neutrality; but because the fact of a condemnation in a Prize Court may be a reason for not treating the vessel as still having the character of a prize. In the case before Mr. Justice Story, it was attempted to be proved that a condemnation had taken place; and he seems, undoubtedly, to have entertained the opinion that, if it had been shown that the ship had been regularly condemned, there would have been an end of the question. I think I have now said all that is necessary to meet the Motion of the hon. Gentleman, and to prove that no principle is here laid down at variance with International Law, and that within her own territory Her Majesty is absolutely sovereign and supreme; that she has a right to prohibit the entrance of any foreign ships which she pleases, prizes or no prizes; and that, if her prohibition be disregarded, she is the competent and the only judge of the measures which ought to be taken for the vindication of her authority. That is the principle of the despatch, and it cannot be shown that such an offender against International Law, as a belligerent who disregards such orders, is entitled to complain of the measures taken to vindicate the rights of the territorial Sovereign. Whether milder measures would have been sufficient in any particular case is fair matter for consideration and controversy. The Government is not bound by what has passed, and is as much at liberty now as before the despatch was written to consider the question, and either to recede from or adhere to the course indicated, as they may think proper. Although I have 1849 no doubt that Sir Philip Wodehouse acted in the most loyal manner, with the most sincere and upright intention to follow his instructions, I think with the hon. and learned Member for Tiverton (Mr. Denman) that, if he had construed his instructions differently, he would have been well borne out. For what do his instructions say?—If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances, most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners."—p. 19.But when the ship had been recognized by the authorities of the colony as a public ship of war on a former occasion, of course her commander had a right to assume that on a subsequent occasion, even if her claim to that title were no better than before, she would be received in the same character. As soon as the news that the Tuscaloosa had been detained arrived here, Her Majesty's Government felt not only deep regret, but a stronger feeling, and had no doubt that she ought to be released. She was released, and for doing this on the ground that good faith and honour required us to do so we have been taunted. Why, when good faith and honour are in question, will any one say that you ought not to put those grounds first and foremost? If this ship had come into the port with fewer men and with fewer guns on board, and with the character of a vessel of war less strongly impressed upon her, still these grounds of honour and good faith would have made it absolutely necessary under the circumstances not to take advantage of that state of things, but at once to release her. The only becoming course for the Government to take, therefore, was to recognize immediately the justice of Lieutenant Low's reclamations, founded upon the fact that the ship had been at first received without question— to treat her as coming in under a virtual safe-conduct, and to say that the instructions sent to the Cape had been misconstrued. I regret that this should have occurred, but no other course could properly have been taken by the Government, Well, then, is the House to affirm the Resolution of the hon, Member, that the 1850 principles laid down in the despatch are contrary to International Law? I say that if the House affirms any such thing it will be affirming that which will be derogatory to the supremacy and the sovereignty of the Queen; it will be affirming that there are Powers in time of war which have a right to set at nought, either by device and fraud or otherwise, the orders of the territorial Sovereign, not only upon the high seas but within the territory of that Sovereign; it will be affirming that belligerents may violate that territory, and at the same time claim the benefit of International Law against any measures taken in vindication of the authority of the territorial Sovereign. I hope the House by its vote will protest against such a doctrine. The question is, not whether this was the wisest, the most moderate, the most proper course; a point on which opinions may differ, though some credit should be given to the sincere desire of the Minister who wrote this despatch to be strictly impartial and fair in carrying out a sound principle. Even if the House thinks that the orders given went upon too extreme an application of the principle, still it must appreciate the purpose and intention of the Minister—namely, to enforce the authority of his Sovereign within her own territories, and to maintain that neutrality to which this country stood pledged towards both parties in the present unhappy war.
§ SIR HUGH CAIRNS
Sir, I am glad the Attorney General has told us that our business was not to affirm the wisdom of the conduct of the Government in these transactions. I believe if that had been the proposition before the House, not even the Attorney General, who has been as bold as most men to-night—not even the Solicitor General, who was not quite so bold as the Attorney General—not a single Member—would have ventured to say that the transactions which are detailed in those papers have been characterized by the attribute of wisdom. But before we go to a division, I want the House to understand what is the question on which we are going to divide, for I think the Attorney General has mistaken the question. I venture to think that the discussion has ranged over two questions which are of a very different nature. The first is—What was done to the Tuscaloosa, and was she a ship of war or not? The other, the one raised by the Motion of my hon. Friend the Member for Maldon (Mr. Peacocke) is 1851 —What are the instructions given to our agents as to what is to be done in future? Now, on the Tuscaloosa and her character I shall say a very few words. It has been stated by the Attorney General, and by the Solicitor General also, that the circumstances connected with this vessel when she first came to the Cape were of a very suspicious character. Now, I will make an admission to the Government. I think those circumstances were very suspicious. I think that was eminently a case in which the Colonial Government was bound to consider what was really the character of the Tuscaloosa, and whether she was in reality a prize when she was passed off as a vessel of war. But I think no better opinion could have been had on that point than the opinion of the American Consul. He of all men was interested in making the best case he could against the vessel, and I will take his statement concerning her when she came into the harbour and before the Attorney General was consulted. I find, on the 10th of August, the United States Consul writing to Governor Wodehouse in these terms —An armed vessel, named the Tuscaloosa, claiming to act under the authority of the so-called Confederate States, entered Simon's Bay on Saturday, the 8th instant. That vessel was formerly owned by citizens of the United States, and while engaged in lawful commerce was captured as a prize by the Alabama. She was subsequently fitted out with arms by the Alabama to prey upon the commerce of the United States." —Correspondence, No. 6 (1864), p. 11.The United States Consul says she came in as a man-of-war, to do the business of a man-of-war, and prey on the commerce of the United States. Now, what is the use of splitting hairs on the number of guns she had on board or the number of men, when the only person put in Motion at all was the United States Consul, and that is his judgment as to the character of the vessel? I must also set the Attorney General right with respect to a grave mistake. He says the commission of the ship was moonshine—there was no commission at all — nobody supposed there was any commission. I should like to know whether Sir Baldwin Walker, or any other person on the part of the Government, asked for her commission. Did any one say, "As you are equipped for warfare, have you a commission from the belligerent Government you represent?" That was the natural course to take. We must remember that, of course, the officer in command could not volunteer that in- 1852 formation, because there never was a word said to him on the subject, though this controversy was going on between Sir Baldwin Walker and Sir Philip Wodehouse, and the only person not acquainted with the subject of the controversy was the person who could have given the necessary information. But what took place when she carne back? Why, then it occurred to the authorities to ask whether she had a commission or not; and a number of very proper questions were framed by Sir Baldwin Walker to be put to the commander, and among them was this, "What papers are on board to constitute her as the Confederate bark Tuscaloosa?" To which the commander's reply was, "The commission of the Lieutenant commanding the Tuscaloosa, from Captain Semmes. The officers also have commissions to their ship from him." It thus appears that as to her papers the vessel was regular, and that the necessary ingredient which the Attorney General said was wanting was not wanting at all, and the moment it was asked for it was produced. When they did not know whether she had a commission they let her alone, but the moment she produced her commission they seized her. I shall now state the objection I have to what the Duke of Newcastle did when information was sought from the Home Government by our agents at the Cape. When I say the Duke of Newcastle, I do not mean to throw the responsibility on him, because the reports and despatches sent out by him were the embodiment of the deliberate opinion of the Government. The Government knew that the difficulty experienced by our colonial agents arose from the fact that the Tuscaloosa had been a prize, but had come into the harbour under the appearance of being a man-of-war, and that what they wanted to know was whether her character as a man-of-war merged the character she had as a prize. That was a very plain question. What was the reply given to it by the Duke of Newcastle, writing for the Government?Whether in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra prœsidia or condemned by a Court of Prize, the character of a prize, within the meaning of Her Majesty's orders, would or would not be merged in that of a national ship of war, I am not called upon to explain. It is enough to say that the citation from Mr. Wheaton's book by your Attorney General does not appear to me to have any direct bearing upon the question,"— Correspondence, No. 6 (1864), p. 18.1853 The Colonial Ministers having pressed Her Majesty's Government to give them their views on that and other very important questions, the despatch in reply commences—I will now proceed to convey to you the views of Her Majesty's Government on these questions.And then proceeds, in the passage which I have just quoted, to state that on the first of these questions the Government did not consider themselves bound to give any information at all. Well, on the second visit of the Tuscaloosa she was seized by the authorities in the Cape, and when the Home Government heard of her seizure they gave orders for her release, I agree with the Attorney General in thinking that that was the best thing that could be done under the circumstances. But observe the ungracious way in which that was done. In a letter of the 10th of March the Duke of Newcastle says—Her Majesty's Government have, therefore, come to the opinion, founded on the special circumstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the captain of the Alabama, that the ships of war of the belligerents are not to be allowed to bring prizes into British ports, and that it rests with Her Majesty's Government to decide to what vessels that character belongs." — Correspondence, No. 6 (1864), p. 31.Her Majesty's Government had decided that the Tuscaloosa was a ship of war. Her Majesty's Government had not blamed or reprimanded Sir Baldwin Walker for the view he had taken, and the Attorney General has told us, that, as she had been allowed to depart after her first visit, it would have been a gross violation of faith to keep her when came the second time. Accordingly she was ordered to be released; but as she had been detained for some time the duty of the Government was to have made an apology—to have said,. "We are sorry for what has occurred; it occurred under a misapprehension; you shall have your ship back, and for any loss you may have sustained you shall be indemnified." The Government say that they wish to maintain strict neutrality; but I want to know whether they do so. Will any Member of the Government stand up and say, that if a ship of ours had been seized by another Power, as they seized the Tuscaloosa, would they have been content with a despatch stating that it was a mistake, and with the restoration of the ship without apology? You act so with a people with whom you 1854 think you can deal in that way with safety; but would you have acted so with the United States? Was that the course you took with the United States when you found that they had been guilty of a gross violation of our neutrality with respect to enlistment on the coast of Ireland? This may be the vaunted neutrality of the Government, but it in no wise deserves the name, because it consists in doing all the mischief you can to one belligerent so long as you think it is safe to do it, and, when you find you can no longer do it with safety, in ungraciously, churlishly, and without apology, restoring the property you are afraid any longer to keep.
I now pass from the matter connected with the Tuscaloosa, and come to the more important point to which the Motion of the hon. Member for Maldon refers— namely, that the instructions contained in the Duke of Newcastle's despatch of the 4th of November, 1863, which still remains unrevoked, are at variance with the principles of International Law. This has nothing to do with the case of the Tuscaloosa, for that is past and gone, and the question is, whether those instructions, issued for the future, may not land you any morning in a war, not only with one of the belligerent Powers, but with the neutral Powers of Europe? I thought from what had passed a few evenings ago in another place, that we might have been relieved from discussing this question. I did not understand the Foreign Secretary to have justified for one moment, in point of International Law, the correctness of the Duke of Newcastle's instructions with respect to the future. On the contrary, I understand him to have said that he agreed in thinking that the despatch went somewhat too far;—considering the noble Lord's capacity for putting everything into a despatch which ought not to be there, that was saying a good deal;—and he said that the question whether prizes should be seized and detained was one deserving serious consideration. If the despatch had contained those words it would have been the climax of the despatch, for in the first part it would refuse to give the information asked for in one point; and on the other point it would have stated that the question was one deserving serious consideration. However, to-night we have had a view presented to the House, which makes it incumbent for the House to deal with the question. If the Law Officers of the Crown had fol- 1855 lowed the course taken by the Foreign Secretary, "we do not justify the instructions in that despatch, and are proceeding to take measures to revoke them," we might have been relieved from the present discussion; but to-night, in the boldest and strongest language, the Attorney General and the Solicitor General have been heard to affirm every word of the instructions, and to contend that they are consistent with International Law. What is the order of Her Majesty which is said to have been violated? It is this (it will be found in one of the papers before the House):—Lord Russell, writing to the Lords of the Admiralty, says that Her Majesty is desirous of preserving strict neutrality; and with a view to carry that intention into effect, it is proposed to interdict the armed ships and privateers of both parties from bringing prizes into the ports, harbours, and roadsteads of the United Kingdom and colonies; therefore, the Government desire to issue instructions to naval and other authorities accordingly. That is the only intimation given; and if the matter rests there, I contend, with perfect confidence, that it would have been a gross violation of good faith and International Law for the Government to give instructions to their officers without notice to the officers of either of the belligerents —that, if a prize came into a harbour belonging to the Queen, they were to seize it, divest it from the persons who brought it in, and restore it to the original owner —there is no good faith in that. But the matter does not rest there, I will ask the House to get rid of the question altogether as relating to the Confederates, because some Gentlemen have strong views with regard to them; but suppose a vessel belonging to the United States captured a prize at sea, and found it convenient to bring it into one of our colonial harbours, I want to know what course would be taken. I can understand that our officials in the colonies might desire the prize to be taken away, might prevent the prize having communication with the shore, and might use force, if necessary, to make the prize leave the harbour and go out to open sea; but do you suppose that if our naval forces at one of our colonies were to attempt to capture the prize and give it over to the Confederates, that the United States would for one moment tolerate such conduct? It would be as clear a casus belli as any step that could be taken. The Attorney General asks if a belligerent ought not to bear 1856 the blame if he violates an order of which he has notice? Take the case of a Power not a belligerent. Suppose the Northern States of America captured a French ship, thinking her a proper prize, and carried it into one of our harbours. The Governor, acting on your instructions, seizes the prize and hands it over to the French owner. But he will not come to you at all; he will go to the court of the capturing Power—the Prize Court of the United States—and say, "Where is my ship? Restore it to me with costs and damages." The French owner goes to the American Court and says, "Bring in my ship, in order that I may have it restored and get my costs and damages." "No," says the captor, "we havn't got it; the English Government took it from us—very likely they are keeping it for you at the Cape of Good Hope." To the Cape of Good Hope then goes the French owner and makes his demand. "Oh yes!" says the Colonial Governor, "We've got it all right; here it is, you are quite welcome to it." "Well, but," says the French owner, "what about my costs and damages, my ship has been rotting, she has lost a voyage, and the damages I want are a great deal more than the value of the ship;" I want to know whether the Government are going to undertake to pay costs and damages in such cases. This is not the case of a belligerent; it is the case of the French Government; and will you tell the French Government that you will not pay costs and damages, that they may be thankful to get back the ship, although you have deprived them of the advantage which International Law gave them of going to the court of the captor and getting costs and damages there? Does the Attorney General mean to say that is International Law—that there is any precedent for such doctrine? If we are to have any more argument to-night, I shall be glad to hear whether the Government can controvert that clear proposition? I should like to know how Government are prepared to deal with cases of this kind? I venture to say that it is as clear as any proposition of International Law, that in such a case you are injuring not the belligerent but a co-neutral power. What is the sole fragment of authority for the doctrine which the Attorney and Solicitor Generals have propounded in the House of Commons tonight? I was very much surprised to hear this authority first put forward by the 1857 Solicitor General in a very solemn manner, and repeated afterwards by the Attorney General. Says the Solicitor General, it is not a new doctrine—it is quite old and common; it depends upon the simplest and clearest principles, because it is a plain doctrine of International Law, that if a prize is taken in neutral waters the neutral steps in, takes the prize, and restores it to the owner. Moreover, he said, the same I thing happens when a prize is taken on the high seas by a ship fitted out in the neutral jurisdiction — whenever the prize comes within the jurisdiction of the neutral, the neutral may seize and hold it for the owner. And say the Attorney and Solicitor General, the ground of this is that your neutrality has been violated, and whenever your neutrality has been violated you may go at once and seize any prize which comes into your possession. I was very much amused at an observation of the Attorney General in reference to his fellow Attorney at the Cape, which he might perhaps have rather more justly applied to the Solicitor General. My hon. and learned Friend said, that the Colonial Attorney General when he quoted Wheaton—which was a text-book — did not perceive the special and limited application of what he was quoting. I venture to recommend that observation to the Solicitor General. It is a dangerous thing to quote elementary writers unless you cite the whole of what they say on a particular subject. If the Solicitor General had looked a little closer at this part of Wheaton he would have seen there a most material statement, which would have relieved him from much of the obscurity into which he has fallen. Wheaton says—The jurisdiction of the national courts of the captors to determine the validity of captures made under the authority of their Government is exclusive of the judicial authority of every other country, with two exceptions only,Which two exceptions are the cases mentioned by the Solicitor General, and which, being two exceptions only, negative the idea of there being any other exceptions. The first is where a capture has been made within the territorial limits of the neutral, and the second where it has been made by an armed vessel fitted out within the neutral jurisdiction. Wheaton then goes on to say that Louis XIV. did make an ordonnance in 1681, by which he attempted to extend the rule; but it was always considered unsound International Law, and had never been acted on. This is not a 1858 mere question of words. No Power has got the right to take a prize by the strong hand and restore it by the strong hand. What your right is, is to set up an Admiralty jurisdiction to determine the question of rightful capture. These questions are not to be determined by a Colonial Secretary, but by a Court duly founded for the purpose; and no International Law has said that you may have a Prize Court unless in those two excepted cases; and if you go beyond those cases you go beyond the limits and violate International Law. The Attorney General was driven by despair to rely on an ordinance of Holland 200 years old, which, so far as we know, has never been acted on, and which, if it were acted on, would prove immensely too much; in fact so much, that I do not suppose the Attorney General would rely on it for a moment. It was a municipal ordinance passed to this effect, that if a ship of war and a prize came into a certain part of their canals, not only the prize should be seized, but the ship of war also, and everybody on board put in prison. Is that the view of International Law taken by the Government? These are the only authorities which the Government can produce. Mr. Wheaton, into whom the Solicitor General has only cursorily looked, when he is properly understood, limits interference expressly to two exceptional cases; and as for the Dutch ordinance, I make the Attorney General a present of that with all my heart. If the Government had told us here as was declared in another place, that they were not prepared to contend for such propositions of International Law, then we should have no more to say; but here they contend that these propositions are right; and I say it is the duty of this House to take the matter up. The Government, we are told, are considering the matter, but they are considering it with the idea that they have got a right to seize these prizes. It is an affair which demands the attention of the House of Commons, for I some morning we may wake up and find a conflict arisen in some one of our colonies, in which we shall have the mortification of having to admit that we are altogether in the wrong. I appeal, therefore, to the House of Commons to affirm the proposition contained in the Motion of my hon. Friend, that the instructions given by the Duke of Newcastle to Governor Wodehouse, which remain still unrevoked, are at variance with the principles of International Law.
§ Question put.
§ The House divided:—Ayes 219; Noes 185: Majority 34.
§ Main Question put, and agreed to.