§ LORD CHELMSFORD
, in rising to call the attention of the House to the statement of the views of Her Majesty's Government as to the mode of dealing with Prizes brought by the belligerent Powers of America within the dominions of Her Majesty, contained in the Correspondence respecting the Tuscaloosa, which has been presented to the House, said, that the subject was of such great importance that he would not apologize for submitting it to the attention of their Lordships. In the deplorable war which had been so long raging on the other side of the Atlantic, both belligerents had shown themselves so extremely sensitive as to the conduct of this country, that it was necessary for the Government to be extremely careful not to exceed the strict limit of neutral rights and obligations, and to do nothing not strictly in conformity with the principles of international law. In the papers laid on the table of the House under the title of "Correspondence respecting the Tuscaloosa" he found some instructions issued by the Government with respect to the mode of dealing with prizes brought by the belligerents into ports belonging to this country, which appeared to him so much at variance with principle and policy, and which, if acted upon, seemed so likely to lead to unpleasant consequences, that he felt bound to present to their Lordships his views on the matter, for their Lordships' careful consideration, or necessary correction. At the commence- 1596 ment of the present unhappy war in America, Her Majesty was advised to issue a proclamation interdicting the armed ships of both contending parties from coming with their prizes into the ports, harbours, and roadsteads of the United Kingdom, or of any of the British Colonies and Possessions. This he thought a wise precaution and perfectly consistent with our neutral character. The writers on International Law laid it down that, although it was not a violation of neutrality for a belligerent to bring her prizes into a neutral port, and even to dispose of them there, yet they all added that the neutral might refuse that privilege provided the refusal extended to both parties. No fault, therefore, was to be found with the proclamation, and the only consideration was as to the proper course of proceeding in case the prohibition should be disregarded. The Tuscaloosa was originally a Federal vessel named the Conrad. On the 21st of June last, she was off the coast of Brazil with a cargo of wool, and was there captured by the well-known Confederate cruiser, the Alabama. The captors put some guns on board, placed in her a lieutenant of the Confederate navy, and ten men, and changing her name to the Tuscaloosa, employed her as a tender of the.Alabama. The two vessels were in company at the Cape of Good Hope in the beginning of August, and Captain Semmes ordered the Tuscaloosa to Simon's Bay for the purpose of obtaining provisions, and undergoing some slight repairs. She arrived off Simon's Bay on the 7th of August. The Admiral upon the station, Sir Baldwin Walker, who had heard something of the previous history of the Tuscaloosa, doubted whether she could properly be considered as the tender of the Alabama—whether she did not retain her previous character of an uncondemned prize, and, therefore, whether she could be admitted under the terms of Her Majesty's Proclamation. He wrote to Governor Wodehouse, and requested that he would take the opinion of the Law Officers of the Colony on the subject. The Governor accordingly consulted the Attorney General at the Cape, who founding his opinion upon passages of International Law which were to be found in Wheaton, and which were printed in the papers, and also upon a despatch from Earl Russell, of the 31st of January, 1862, gave it as his opinion that, by reason of the vessel having been armed by the captors, and having had 1597 a lieutenant and crew put on board, the Tuscaloosa had been "set forth" as a vessel of war, and might be permitted to enter the bay. A communication to that effect was made to Sir Baldwin Walker, who was not quite satisfied with the opinion of the Attorney General; but, of course, he yielded, and the Tuscaloosa anchored in Simon's Buy on the 8th of August, and remained there till the 15th. While she was lying at anchor there, the American Consul claimed that she should be retained on behalf of the original owners, and that claim had such an important bearing on the instructions which he should bring under the consideration of their Lordships, that he begged their special attention to it. Having mentioned that the Tuscaloosa's true name was the Conrad, and that she had never been condemned as prize by any lawfully constituted Admiralty Court, he proceeded to say—I 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' 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, the Governor, with his Attorney General, seemed to have taken a more correct view of International Law than Her Majesty's Government, for in reply to the American Consul, he says—The Governor is not aware, nor do you refer him to the provisions of International Law by which captured vessels, as soon as they enter our neutral ports, revert to their real owners, and are forfeited by their captors. But his Excellency believes that the claims of contending parties to vessels captured can only be determined in the first instance by the courts of the captor's country."—Correspondence, No. 6 (1864), p. 12.The American Consul was not satisfied with that reply, and wrote another letter repeating his claim, and repeating it in the most extraordinary manner. He said —The Tuscaloosa being a prize, was forbidden to enter Simon's Bay by the Queen's Proclamation, and should have been ordered off at once, but she was not so ordered. Granting that Her Majesty's Proclamation affirmed the right of Captain Semmes as a 'belligerent' to take and to hold prizes on the high seas, it just as emphatically denied his right to hold them in British ports. Now, if he could not hold them in Simon's Bay, who else could hold them except those whose right to hold them was antecedent to his—that is, the owners?"—p. 12.He (Lord Chelmsford) would have said that that claim was as extravagant as the 1598 reasoning was illogical, if he had not been checked by finding that it had been sanctioned by Her Majesty's Government apparently on the advice of the Law Officers of the Crown. The Governor sent a despatch upon the subject to the Secretary for the Colonies:—and he could not refer to the noble Duke who lately held the seals of the Colonial Office without expressing his deep and sincere regret that the country should be deprived, he feared, not for a time only of his long tried and eminent services. In that despatch Governor 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 of 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,"—Correspondence, No, 6 (1864), p. 5.It was in reply to that despatch that the answer was sent by Her Majesty's Government, to which he was about to direct their Lordships' attention, and he could not help thinking that the instructions conveyed in it were the result of Federal pressure. He ought not to make that assertion without proof; but he thought he was in a position to prove it, and it would be for their Lordships to say how far he was successful. During the time in which the proceedings to which he had referred were going on, a very active correspondence was being prosecuted between the noble Earl the Foreign Secretary and the American Minister, upon the subject of what Mr. Adams called "the depredations" of the Alabama, and the claims of American citizens to be indemnified for the losses which they had sustained by the capture of their vessels by the Alabama. Those claims the noble Earl of course repudiated; but Mr. Adams mentioned many causes of complaint, and amongst them he sent to the noble Earl the extraordinary claim of the American 1599 Consul at the Cape, to which he (Lord Chelmsford) had directed their Lordships' attention. In the papers No. 1, North America, the Correspondence respecting the Alabama, their Lordships would find a despatch of the noble Earl, of the 29th of October, just six days before the despatch of the 4th of November, in which the instructions to the Governor were contained. The noble Earl mentioned various matters of complaint under three different heads, and among others the case of the Tuscaloosa, and how it had been dealt with by the authorities at the Cape. He said—As regards the Tuscaloosa, although Her Majesty's Government would have approved the British authorities at the Cape if they had adopted towards that vessel a course different from that which was adopted, yet the question as to the manner in which a vessel under such circumstances should, according to the tenour of Her Majesty's Orders, be dealt with, was one not altogether free from uncertainty. Nevertheless, instructions will be sent to the British authorities at the Cape for their guidance in the event of a similar case occurring hereafter, and Her Majesty's Government hope that under those instructions nothing will for the future happen to admit of a question being raised as to Her Majesty's Orders having been strictly carried out."—Correspondence, No. 1 (1864), p. 43.Thus, then, on the 29th of October, after a rather menacing correspondence on the part of the American Minister, Her Majesty's Government promised that instructions should be issued, and they were issued six days afterwards, sanctioning and adopting the extraordinary claims made by the American Minister. The noble Duke gave the following instructions:—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. 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 1600 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.And then the noble Duke concluded as follows:—The question remains what course ought to have been taken by the authorities of the Cape— 1st, in order to ascertain whether this vessel was, as alleged by the United States Consul, an un-condemned prize, brought within British waters in violation of Her Majesty's neutrality; and 2nd, 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 her captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners."—p. 19.These were the views of Her Majesty's Government; and the despatch having been sent to the Governor, he found himself in a situation of great embarrassment. He required further explanation with respect to the mode in which he was to act, and he wrote on the 19th of December as follows:—I think it right to take advantage of the first opportunity for representing to your Grace the state of uncertainty in which I am placed by the receipt of this communication, and for soliciting such further explanations as may prevent my again falling into error on these matters.He added—Your Grace intimates that the citation from Wheaton 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 the 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 had 1601 been done by him which, according to Wheaton, constituted a 'setting forth as a vessel of war.'"—Correspondence, No. 6 (1864), p. 19.To add to his embarrassments, the Tuscaloosa, after an absence of four months, returned on the 26th of December to Simon's Bay. Admiral Sir Bald win Walker wrote to the Governor stating the course which in his opinion ought to be pursued—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 could not pass over the extraordinary departure from the usual course which this letter disclosed. They had been told in that House over and over again, that the opinions of the Law Officers of the Crown were confidential, and the Government had repeatedly refused to lay them upon the table. The noble Earl (Earl Russell), when asked in the House when it was that the Attorney General had changed his opinion on the subject of the steam rams, said—I consider the opinion of the Attorney General to be a privileged communication, and I decline to answer the question.Yet it now appeared that these confidential communications were sent out as instructions to Admiral Sir Baldwin Walker, and by him communicated to the captains of the fleet. If they obtain such publicity as that, he (Lord Chelmsford) could see no reason for withholding them from the House of Lords or the House of Commons. The Governor of the colony agreed with Sir Baldwin Walker that, in conformity with the instructions furnished by the Government on the 4th of November, the vessel ought to be detained for the purpose of being delivered up to her original owners; and, accordingly, she was seized by the colonial authorities. The Governor offered her to the United States Consul, who most fortunately appeared to have some scruples about receiving her. The Consul said—I can institute a proceeding in rem where the rights of property of fellow-citizens are concerned, without a special procuration from those for whose benefit I act, but cannot receive actual restitution of the res in controversy without a special authority.1602 If the Consul had not had these scruples, there would have been a little bill to pay at the present moment to the captors. The stores and ammunition were taken, out and deposited in the dockyard, but not without an indignant protest on the part of the Lieutenant of the Confederate Navy who was in command of the Tuscaloosa. He said—In August last the Tuscaloosa arrived in Simon's Bay. She was not only recognized in the 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 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. My position and the character of my ship will most certainly be vindicated by my Government. I am powerless to resist the affront offered to the Confederate States of America by your Excellency's conduct and proceedings."— Correspondence, No. 6 (1864), p. 23.In due course the Governor communicated to the Secretary of State for Colonial Affairs the seizure of the Tuscaloosa. In a despatch, dated the 11th of January, he said—I very much regret having to acquaint your Grace that the Confederate prize vessel the Tuscaloosa has again entered Simon's Bay, and that the naval Commander-in-Chief and myself have come to the conclusion that, in obedience to the 1603 orders transmitted to his Excellency by the Admiralty, and to me by your Grace's despatch of the 4th November last, it was our duty to take possession of the vessel, and to hold her until properly claimed by her original owners. The Admiral, therefore, sent an officer with a party of men from the flagship to take charge of her, and to deliver to her commander a letter in explanation of the act. Copies of his protest, addressed to me, and of my reply, are enclosed. He not unnaturally complains of having been now seized after he had, on the previous occasion, been recognized as a ship of war. But this is manifestly nothing more than the inevitable result of the overruling by Her Majesty's Government of the conclusion arrived at on the previous occasion by its subordinate officer."—Correspondence, No. 6 (1864), p. 25.By a despatch, dated the 4th of March, the Governor was directed by the noble Duke the Secretary of State to deliver back the Tuscaloosa, to the lieutenant who commanded her, the reasons for so doing being promised to be communicated to him in a subsequent despatch. Now, the instructions sent out on the 4th of November were either right or wrong. If they were wrong, Her Majesty's Government ought not to have been satisfied by merely ordering that the vessel should be restored —they need have felt no humiliation in admitting their error and making an apology, and it would further have been a generous act to which the Confederates are entirely unaccustomed. If the instructions were right, let their Lordships see the position in which the Government placed itself by the order to deliver back the vessel. By the seizure of the vessel under the instructions, the original owners had been remitted to their rights, and the Government ought not to have ordered her to be given back to the Confederates without the consent of the owners. The fact was, Her Majesty's Government did not like to admit they were wrong, and could not assert that they were right; and, therefore, in the despatch communicating the reasons why the Tuscaloosa was to be restored, they took a course which was always an indication of weakness — they made the Tuscaloosa a special case. The announcement was conveyed in these terms—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 either 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 1604 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."—Correspondence, No. 6 (1864), p. 31.So ended the history of the Tuscaloosa. That the Government were wrong in seizing that vessel, and that they were right in restoring her, he was willing to concede; and if that were an individual case in which no general principle was involved, he should dismiss it without any further observations. But the instructions issued on the 4th of November had never to his knowledge been recalled, their impropriety had never been acknowledged; and, therefore, he desired to point out what in his view formed the error and illegality of those instructions. He said — and he challenged contradiction of the statement —that no writer on International Law had laid down the doctrine that a neutral which had prevented a belligerent from bringing prizes into her ports had any right whatever, if that prohibition was disregarded, to seize the prize and to restore her to her original owners. All that the neutral had a right to do in such a case was to order the vessel away; and, if she refused to go, the neutral might use force for the purpose of urging her departure. By the rules of International Law the moment a capture takes place the property, as between belligerents, is vested in the captors, and therefore a neutral dealing with the property in the way proposed by Her Majesty's Government would be taking the property of one of the belligerents and giving it to the other. A neutral has no right whatever to enter into the consideration of the validity of prizes brought into its waters. The capture may have been invalid and illegal, but the neutral has no right to raise the question. There were only certain eases in which the neutral might and ought to inquire, and those were exceptions very strongly establishing the rule. Where a vessel is seized by a belligerent within neutral waters, a violation of neutrality takes place, and it is not only the right, but the duty, of the neutral to restore the vessel to its original owners, because the captures are illegal and void, and there never was a moment at which the vessel was legally a prize. But that rule certainly could not be made to 1605 apply to the case of the Tuscaloosa, which, after a lapse of six months from the time of her capture, came into neutral waters. So it is held that a neutral may exercise the authority of seizing prizes brought into its waters, and of returning them where the property of its subjects has been illegally captured and afterwards brought into its ports: the extraordinary reason upon which his right is founded being, that it is a compensation for the asylum afforded. But he repeated that no authority was to be found for the proposition that neutrals were entitled to deal with prizes brought into their waters in the manner in which Her Majesty's Government had dealt with the Tuscaloosa. It would, no doubt, be urged by the Government, that the bringing of a prize into neutral waters, contrary to the prohibition contained in the Proclamation, was a violation of neutrality. But with this view, taking the plain meaning of the words "violation of neutrality," he could not agree. He contended that the instructions issued by Her Majesty's Government were wholly improper and illegal. He presumed, they had not been confined to the Governor of the Cape of Good Hope, but had been sent round to all our colonial possessions. At the very moment when he was addressing their Lordships, it might be that prizes had been seized in some of our colonies and delivered up by the different local Governors either to the Confederates or the Federals. If the prize improperly seized under the instructions of the Government belonged to the Federals, he could anticipate fully what would happen: strong remonstrances and high toned menaces on one side, submission, apology, restoration, and, perhaps, compensation, on the other. Should the prize taken be from the Confederates, the remonstrances might be equally loud, but they would not be so much regarded. Restoration, as shown by the present case, might be necessary; but it would be restoration unaccompanied by any apology—it would be mere restoration, and nothing more. Whichever alternative happened, the position of the British nation would not be very dignified. He trusted that, in the reply about to be made by Her Majesty's Government, he should hear either that the propositions which he had ventured to lay down were capable of refutation, or that the instructions issued by the Government had been recalled, or were about to be recalled. In either event, he 1606 should feel that he had not provoked the discussion in vain.
§ EARL RUSSELL
My Lord, the noble and learned Lord has, no doubt, brought a very serious question under your Lordships' consideration. At the same time it must be recollected, that all these applications of the principles of international law to the contest between the Federals and so-styled Confederate States have to be made under very exceptional circumstances. It has been usual for a Power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Confederate States have no ports except those of the Mersey and the Clyde, from which they fit out ships to cruise against the Federals; and having no ports to which to bring their prizes, they are obliged to burn them upon the high seas. It is natural, under these circumstances, that the Confederate officers and Confederate authorities should somewhat resent the Orders of Her Majesty, of which the noble and learned Lord was pleased to approve, and should endeavour to evade their operation. These Orders, as your Lordships are aware, were that no prizes made by either belligerent should be brought into the ports of the United Kingdom or of Her Majesty's possessions abroad. It thus became very difficult for the Confederates to determine what they should do with their prizes. The Tuscaloosa, so called, was brought into a port of the Cape of Good Hope. The noble and learned Lord passed over with little more than a depreciatory notice the Reports of the naval officers upon that station. For my part, I have found that the officers of Her Majesty's naval service, being bound to apply the law of nations according to the rules with which they are furnished, and the books which they have in their possession, have, generally speaking, applied them with remarkable sense and discretion, and in a spirit of equal firmness and moderation, showing themselves disposed always to maintain the rights of the British Crown and the honour of the British flag, but at the same time to do nothing for the purpose of irritation or mere vexatious interference. Such has been the conduct of Sir Alexander 1607 Milne, who has for four years directed the operations of Her Majesty's forces on the coast of America, in such a manner as, while securing the approbation of his own Government, to conciliate the regard of all with whom he has had to deal, and particularly of the Government of the United States. And such, I will venture to say, was the conduct of Sir Baldwin Walker. Now what had he to consider in this case? It struck Sir Baldwin Walker, as, I think, it would have struck any one else, that if Confederate ships of war were to be allowed to send in prizes with their cargo on board, and by putting one or two guns and a Confederate officer on board to call them ships of war, the policy of Her Majesty's Government would be defeated, and Her Majesty's Proclamation would become null and void. They would send in their prizes with a couple of guns and an officer, who, having sold first the cargo and then the vessel, would return to his ship; and this process might be repeated with any number of prizes. Thus Her Majesty's neutrality would become a mere name. Sir Baldwin Walker has expressed this in some passages to which the noble and learned Lord did not refer, but which I will read to your Lordships. In his letter of the 19th of August he says—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 were grounds for doubting her real 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 a captain of a ship of war to constitute every prize he may take a 'tender' appears to me 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.And in another letter—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."—p. 3.With reference to that the noble and learned Lord expressed no opinion. He did not tell us whether, under the law of 1608 nations, it is permissible for the captain of a man-of-war to make any number of his prizes into tenders or vessels of war, and send them into neutral ports, and thus evade a proclamation of neutrality. Sir Baldwin Walker further says—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 transshipment 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.The question was, whether it was to be permitted that prizes should be sent into our ports under the disguise of being vessels of war, and thus Her Majesty's Proclamation should be entirely defeated. The Attorney General of the colony thought this was perfectly permissible, and that it could not be avoided or counteracted in any way, and in support of that opinion he quoted a paragraph of Wheaton. The Law Officers in this country are of opinion that that paragraph does not apply, because it was written with reference to a different subject, namely, the Prize Acts. In that paragraph it is said—and very truly and justly said—that although in certain cases merchant ships which have been recaptured must be restored to their owners, yet when a vessel has taken the character of a man-of-war, if the captain of a British man-of-war has to fight such a vessel, and has to use his warlike forces to capture her, she then loses the character of a merchant ship, and the naval officers are fairly entitled to consider her as a prize. That principle does not seem to apply to the present case. This, then, was the case with which the Government had to deal, having the opinion of the Attorney General of the colony on the one side, and that of Sir Baldwin Walker on the other. The opinion of Sir Baldwin Walker is clearly the opinion of common sense, and the Law Officers say that it is well founded in law, and that it is not permissible to put a few guns into a prize, retaining her cargo on board, and send her into a neutral port to sell it. My noble Friend (the Duke of Newcastle) who, with the noble and learned Lord, I regret, has been compelled by ill-health to resign his office, or we 1609 should have heard him vindicate his own despatch—my noble Friend the late Secretary for the Colonies followed the opinion of the Law Officers. Their opinion was that this vessel, not being, in fact, a vessel of war, but being a prize, ought not to have been admitted to the Cape as a vessel of war. But it then became a question—and a very serious question I admit it to be—whether she ought to have been warned off in the first instance, or whether she should be taken possession of and restored to her owners? The noble and learned Lord seemed at first to say that there was no such thing as taking possession of the prize of a belligerent; that when it once became a prize it was out of the power and jurisdiction of the authorities of another country; but he afterwards very properly and justly said that there were certain cases in which the courts have held, and authorities have concurred with them, that vessels can be restored to their owners if they are not properly prizes, and he avoided the contradiction into which he had fallen by saying that in that case they never had been prizes. That, however, does not get over the contradiction of the general dictum which he had laid down; because it is certainly true that there are cases decided by the Courts of the United States in which vessels have come in as vessels of war, and, nevertheless, the Courts have, after argument, ordered them to be restored to their owners, and they have been so restored. Undoubtedly the ground of their being restored has been that the vessel which took them had been originally fitted out and manned by the United States themselves, and, therefore, they were bound to restore those vessels and their cargoes to the owners. But, whatever the ground may be, it is quite clear that there are cases in which according to principles which the United States admit the vessels ought to be restored, and here is a passage from Wheaton on the subject. He says—In such cases the judicial tribunals of the neutral State have authority to determine the validity of the capture thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other States at amity with the original owners.Therefore, there are cases in which a vessel may be considered as a prize unlawfully taken, and it may be restored to the owners. The Duke of Newcastle at the end of his despatch said that the real character of the Tuscaloosa ought to have been inquired into, that Captain 1610 Semmes should have been called upon to produce her papers, and he concluded —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."—See p. 19.Now, I must say, as the general tenour of the despatch is founded on the opinion of the Law Officers of the Crown, that the Duke of Newcastle, in this instance, as I would have done in his place, went somewhat beyond that opinion. The Law Officers said, "it is worthy of serious consideration," meaning that it was a point evidently deserving of being maturely weighed. The Duke of Newcastle, however, clearly saw that it was a point which he must decide for the time, and that his instructions to the Governor must be explicit. I am at the same time ready to admit that this is a question which turns on a nice point of International Law, arising under circumstances which are quite new, owing to the fact that the Confederate States have no port to which they can send their prizes. The point, therefore, is open to further consideration, whether the proper treatment of such vessels should not be to warn them off rather than to allow them to remain in port. But to say that the question can be decided only in the courts of the captors is, I think, altogether an error. It is impossible to say, "Here is a vessel with a cargo evidently a prize; but no action shall be taken with regard to that vessel until some prize court at Richmond or Charleston shall have pronounced an opinion." The Law Officers of the Crown held—and most rightly— that these are questions to be decided in Her Majesty's courts and not in the courts of the captors. The noble and learned Lord ended by saying, that if this had happened in the case of a vessel captured by the Federals there would have been strong and angry remonstrances on their part, and we should have made an ample apology. Now, in my opinion, we have heard enough of this kind of allegation. If the noble and learned Lord alluded to the course Her Majesty's Government took with respect to the Trent, in which 1611 our honour was at stake, and we acted so mean a part and played so truckling a part that the Americans had it all their own way, and kept their prisoners; and if the other day, when an American vessel committed a breach of neutrality in British waters, and Her Majesty's Government were satisfied to allow that violation to take place and did not ask for an apology, then the remarks might be true. But I must tell the noble and learned Lord that there have been many cases pending in which very loud complaints were made in this House when the question was not decided; but immediately there has been any concession to justice on the part of the United States, the noble Lords opposite are so mortified that the British Government should have justice done them by the American Government, and so mortified with the United States for doing them that justice, that there is a total silence on their part. We were told early in the Session, that the case of the Saxon was a violation of neutrality, and that a murder had been committed, and that the officer ought to be tried. The case was brought before the United States Court; the Saxon was given up, and the further question with regard to damages was pending; but in the main, justice has been done to the owner. Then a complaint was made that the accused ought not to be tried by a court martial; it was pointed out that in the way in which the accusation was drawn a fair trial could not take place. The United States Government agreed to amend the indictment, and the question is still under consideration. I really think when this is done, it would be but decent on the part of noble Lords opposite to admit that the United States Government were ready to do justice when a fair case was pointed out to them. But I own that in all these cases Her Majesty's Government ought not to take one side or the other; and that we ought not to be, as the noble Lords opposite are, animated by any partiality to the Federal or Confederate States, but ought to do justice between both.
§ LORD KINGSDOWN
said, that two entirely distinct questions had been raised in the despatches of Sir Baldwin Walker —one whether in point of law the prize ship had been converted from a prize into a ship of war—the other supposing her to remain a prize, what ought to be done with her? With the first question their Lordships at present were not concerned; the other—if it were a question at all— 1612 was one of the most important that had arisen out of the application of the principles of International Law. The proposition of Sir Baldwin Walker was, that a prize remained the property of the original owners until it had been condemned in a court of legal competency—namely, a Prize Court; and that any one into whose hands it might afterwards come must hold it for the original owners. That, so far as he (Lord Kingsdown) understood, was also the view taken by the Government. Now, it was a great relief to him to hear that the Duke of Newcastle, in his despatch on the subject, had gone beyond the opinion of the Law Officers of the Crown. It was not the first time that he (Lord Kingsdown) had expressed his high opinion of those distinguished persons, and it was in a great measure owing to this opinion that he and noble Lords who sat on the same side of the House had abstained from interfering in those nice questions and angry discussions which had arisen between Her Majesty's Government and the Government of the United States. The attacks which had been made on the Government policy had proceeded not from that side of the House but from the other. He (Lord Kingsdown) must say that a grave mistake had been fallen into on this occasion. It was very unfortunate that the copy of Wheaton which had been referred to was an old edition in which the passage was found that the despatch quoted; but in a later edition of Wheaton the doctrine was more fully stated and explained. The rule requiring the condemnation in a Prize Court in order to change the property had nothing to do with the rights as between belligerents. When one belligerent had captured and taken possession of the vessel of another, it became his property as if he were the original owner, as completely as if it had been condemned by all the Prize Courts in Europe. The law upon this subject was very clearly and accurately stated by Dr. Twiss in his recent Treatise on the Law of Nations, vol. ii. p. 330. He states distinctly that the personal obligation of a captor to bring his captures into port for inquiry and adjudication is founded on the instructions that he has received from his own Government; that this rule is for the benefit of neutrals and not of belligerents who have no locus standi in a Prize Court, and cannot claim a right that their property, upon capture by a belligerent, should be taken into port for adjudication; that capture alone 1613 divests an enemy of his property jure belli. Let their Lordships observe what had been done in the present case. Her Majesty had forbidden armed vessels, with their prizes, to come into her ports. According to law, if a ship of war with her prize entered a British port, she could be ordered away, but in what way did the British Government obtain the right to take possession of this ship? They might have sent her away upon, the ground that she had come in contrary to the Orders in Council; but how did she become liable to seizure and confiscation by the British Government? Even supposing it could be said that the violation of the municipal laws of Great Britain entitled the British Government to seize her and confiscate her to the Crown, their Lordships would observe that the conduct pursued by our authorities was based upon an entirely different ground. Their argument was that the Tuscaloosa having come under their control, they were bound by law to restore her to her original owner. But, beyond all doubt, the original owner had lost his property, for the ship had never been re-captured. If the Governor had seized the ship for violation of our municipal laws, we were entitled to confiscate it, which he entirely denied. The original owner would have had no possible; claim, unless the Queen had thought fit to make a present to him. The cases in which, and the purposes for which, adjudication was required were very distinctly; stated by Dr. Twiss in a passage of his work at page 340—Every capture of a vessel is complete as between the belligerents when the surrender has taken place, and the spes recuperandi is gone; but as between the original owner of the vessel and a third party in respect of the jus postliminii, if the vessel should be re-captured, or as between the captor of the vessel and a third party in respect of the right of the former to dispose of the vessel in favour of the latter by way of sale, positive rules have been introduced, partly from equity to extend the jus postliminii in favour of the original owner, partly from policy to prevent any irregular, conversion of property before it has, been ascertained to have been lawfully acquired; jure belli.The Confederate States could not obtain adjudication in their own Courts, for by reason of what was recognized by Europe as the blockade they had no means of carrying their vessels in safety into their own ports. Under such circumstances, Lord Stowell had, in the case of the Felicity, laid it down that it was not only the right but the duty of a belligerent to destroy 1614 the enemy's property. He said that, in such a case—Nothing is left to the belligerent vessel but to destroy the vessel which she has taken, for she cannot consistently with her general duty to her own country, or, indeed, under its express injunctions, permit enemy's property to sail away unmolested. If it should be impossible to bring her in, her next duty is to destroy enemy's property.He did not blame the officers of the Cape. It was not to be expected that they could be familiar with the law upon such subjects. But it was necessary to point out the mistake which had been made, as we; might otherwise be involved in serious difficulties. Fortunately in this case the American consul had disclaimed any interference with the ship. If the Government had held it, and a claimant had come for ward, how was the right to be determined? What Courts had any jurisdiction? He was satisfied that the opinions of the Law Officers had been misunderstood; and for his part he should not be unwilling to leave it to them to say, whether the law, as it had been laid down in the despatch by the Government, could be maintained?
THE LORD CHANCELLOR
My Lords, I am always unwilling, in a matter of this kind, to take part in the debate, because no noble and learned Lord who is in the habit of sitting here on appeals I can feel certain that some question on which he gives his opinion in the House in his deliberative character may not come before him in his judicial capacity, when he may be considerably embarrassed by his speech. It is in that spirit of caution that I rise now, because my noble and learned Friend who has just spoken (Lord Kingsdown) has expressed opinions which, if they went forth to the world on his authority and in no respect questioned or modified, might be received as doctrines which had commanded the assent of your Lordships. I should have been glad if my noble and learned Friend had examined the cases which have been cited, instead of being content with the language of the text written. Let me beg him to observe the case of the Actæon. [Lord KINGSDOWN: It was the Endymion I referred to.] Then that is a still stronger case. Sir William Scott says—There was no doubt that the Endymion had a full right to inflict that (that is, the burning of the vessel) if any grave call of public service required it. Regularly a captor is bound by the law of his own country, conforming to the general law of nations, to bring in for adjudication, in order that it may be ascertained whether it be 1615 enemy's property; and that mistakes may not be committed by captors in the eager pursuit of gain, by which injustice may be done to neutral subjects, and national quarrels produced with the foreign States to which they belong.Thus, the very case on which, my noble and learned Friend rested his argument would, if he had examined it, have led him to the conclusion that the old rule by which the object seized became at once the property of the captor has been qualified by the more merciful usage of civilized nations, and that there is an obligation to obtain condemnation; and Sir William Scott distinctly explains that this law has been established in order to place some control upon captors, that, in pursuit of gain, they might not be led to commit injustice. The case of the Endymion was this:—She was on a cruise in search of the American frigate President, and in the course of her cruise she captured an American merchantman. She was, however, so confined by her instructions to continue cruising that she could not bring her prize into court, but burnt it at sea. Afterwards a claim was brought by the owner of the prize for damages in consequence of its destruction, and Sir William Scott held that the captor was excused from the obligation of bringing in the prize for adjudication by reason of the express and stringent nature of his instructions, which did not allow him to quit the sea. But there is not only that opinion. My noble and learned Friend will find that Lord Mansfield, the greatest authority in English law, held the same view. I would also direct his attention to the remarks which Lord Stowell made in the case of the Flad Oyen. [1 Robinson, page 135.] It was the case of a ship taken by a French privateer, and carried into a port in Norway, where she underwent a sort of process which terminated in a sentence of condemnation pronounced by the French Consul. It was therefore a case of capture by a belligerent. Lord Stowell, in that case, said—But another question has arisen in this case upon which a great deal of argument has been employed—namely, whether the sentence of condemnation which was pronounced by the French Consuls is of such legal authority as to transfer the vessel, supposing the purchase to have been bonâ fide made?… It has frequently been said that it is the peculiar doctrine of the law of England to require a sentence of condemnation as necessary to transfer the property of prize; and that, according to the practice of some nations, twenty-four hours, and, according to the practice of others, the bringing infra prœsidia is authority enough to convert the prize. I take that to be 1616 not quite correct; for I apprehend that, by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man, having purchased a prize vessel of a belligerent, has thought himself quite secure in making that purchase, merely because the ship has been in the enemy's possession twenty-four hours, or carried infra prœsidia."Without saying that there may not be contradictory passages found in a great variety of writers, I think the passages I have quoted are sufficient to show that property is not, as a rule, transferred by the mere fact of capture; and the reason why the old rule has thus been qualified by the general practice of nations is, as stated by Sir William Scott, the necessity of putting some limitation on the act of the captor. Nothing in the world can illustrate that so strongly as the case of the Endymion, which has been referred to where the captor was not held to be justified in destroying his prize, except by reason of the urgency of the service on which he was engaged, because otherwise he would have been held to be under an obligation to bring the ship to a court for adjudication. Hence this question is, in the language of the Law Officers, "worthy of very serious consideration." There may be no instance precisely parallel, but, at the same time, the Law Officers were perfectly justified in the opinion they gave, that the matter required serious consideration. Serious consideration has been given to it, and the result will be embodied in clear and definite instructions, which will be generally circulated throughout all our colonial possessions. The only point in which the despatch in question is open to challenge is, that it speaks of the course taken as being deemed the best, instead of saying that the question deserved "very serious consideration;" but it should be borne in mind that the despatch was written in regard to a past transaction, and that it did not lay down a rule, but merely described the application which had already been made of one.
§ THE EARL OF HARDWICKE
said, he had looked carefully through the history of the American war, and he had found a case which occurred to him to bear precisely upon the one under discussion, with this exception, that the captor was not a neutral, but a belligerent. The case was this: a United States frigate, on the 14th of March, 1813, having previously cap- 1617 tured the Nottingham, and taken £11,000 in specie out of her, proceeded to cruise on the coast of Chili, and during that cruise she captured twelve whalers; but did she send them to the United States for adjudication? She did not, for they were all re-captured by the English. But there was one of them that fitted this case, and that was the case of the Georgina. Captain Porter, thinking her a useful vessel, armed her with sixteen guns and put a crew on board of her, and in that condition she was captured. She had never been condemned in any of the United States Prize Courts, but on her being re-captured by one of our ships she was brought into our Prize Courts; and after an elaborate argument, which he had no doubt the present noble and learned Lord on the Woolsack would respect, Sir William Scott gave judgment in favour of her original captors, and she was accordingly handed over.
§ LORD CHELMSFORD
, in reply, said, he had understood the noble and learned Lord on the Woolsack to say there had been a modification of the instructions, and, if so, he thought their Lordships had a right to know in what respect they had been modified.
THE LORD CHANCELLOR
explained he was sorry he had been misunderstood. What he said was, that new instructions were under consideration with a view of being sent out.
§ House adjourned at half past Seven o'clock, to Thursday next, half past Ten o'clock.