officers and crew of that vessel, or by their own efforts, without the aid of the Deerhound. The men were either already actually prisoners, or they were desperately pursued by the Kearsarge. If they had perished, the Kearsarge would have had the advantage of a lawful destruction of so many enemies; if they had been recovered by the Kearsarge, with or without the aid of the Deerhound, then the voluntary surrender of those persons would have been perfected, and they would have been prisoners. In neither case would they have remained hostile confederates. The Deerhound, by taking the men from the waves and conveying them within a foreign jurisdiction, deprived the United States of the lawful benefits of a long and costly pursuit and successful battle. I freely admit that it is no part of a neutral's duty to assist in making captives for a belligerent; but I maintain it to be equally clear that, so far from being neutrality, it is direct hostility for a stranger to intervene and rescue men who had been cast into the ocean iu battle, and then convey them away from under the conqueror's guns.1 Possibly, in strictness of law, Mr. Seward was right in contending that a belligerent is entitled to the death of his enemy, and that a neutral cannot interfere to save the latter from destruction. But it is idle to propound legal theories in such a case; the instinct of humanity will be certain to prevail over all considerations of legal right-God forbid that it should not!-and the neutral who has rescued a sinking fellowcreature from impending death may be excused if he does not deliver up as a prisoner the man whom he has saved from perishing. Be this as it may, the British government had but one answer to make to the demand that these persons should be given up as prisoners, namely, that, however they had reached British soil, when on it they were entitled to the protection of its laws; and that the government, which had had nothing to do with the manner of their escape, even if it had the will, had not the power to deliver them up. CASE OF THE TUSCALOOSA. Immediately connected with the case of the Alabama is that of the Tuscaloosa. The Tuscaloosa. This vessel, originally called the Conrad, was a merchantvessel of the United States. She was taken by the Alabama when off the coast of Brazil, being then loaded with a cargo of wool. Captain Semmes, the commander of the Alabama, put an officer and ten men on board of her, with two small rifled 12 pounder guns, gave her the name of Tuscaloosa, and, bringing her to the Cape, where she arrived on the 7th of August, 1863, requested that she might be admitted to the harbor of Simon's Bay as a tender of the Alabama, in other words, as a ship of war. The admiral on the station, Sir Baldwin Walker, learning that the so-called tender had never been condemned in a prize court, conceived doubts as to the legality of considering her in the light of a tender. He therefore wrote to the governor, Sir Philip Wodehouse, requesting him to obtain the opinion of the law-officers as to whether the vessel ought not to be looked upon as a prize, and as such prohibited from entering the bay.2 The attorney-general of the colony reported that the Tuscaloosa could not be looked upon as a prize, on the ground that she purported to be a ship of war, and there was no legal proof to satisfy the local government that such was not her true character; that Captain Semmes, as commanding a ship of war of the Confederate States, had authority to convert a captured vessel into a ship of war, and so to invest her with all the rights and immunities accorded to such vessels, and that it was not for the local authorities, but for the courts of the captor, to determine 1 United States Appendix, vol. iii, p. 273. 2 British Appendix, vol. i, p. 308. her real character, while no means existed in the colony for determining whether she had or had not been legally condemned.1 Having afterward found that the vessel had her cargo of wool still on board, and that her armament was only what has been stated, Sir B. Walker felt still more doubtful as to the real character of the vessel. Writing to the governor on the 9th of August he says: 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, the 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 on board her, (in fact nothing but a prize crew,) in order to disguise her real character as a prize. 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 defense. 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. My sole object in calling your excellency's attention to the case is to avoid any breach of strict neutrality.2 in The attorney-general, however, on being again referred to, reported 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, any of these cases there will be a sufficient setting forth as a vessel of war to justify her being held to be a ship of war. If all of these points be decided in the negative, she must be held to be only a prize and ordered to leave forthwith." 3 4 The admiral on this gave way, and the Tuscaloosa was treated as a ship of war, and as such admitted into the harbor and allowed to obtain provisions. She left the bay on the 14th of August, and Captain Semmes having contrived to dispose of her cargo of wool at a place on the coast beyond the precincts of the colony, dispatched her on a cruise to Brazil.5 While thus occupied she is said to have done some mischief to United States vessels. The Tuscaloosa again put into Simon's Bay on the 26th of December, 1863.6 In the mean time, the government having reported to the secretary of state for the colonies what had happened on the occasion of her former visit, the Duke of Newcastle had deemed it right to take the opinion of the law-officers of the Crown as to the law applicable to such a case. On the 19th of October the law-officers reported as follows: Upon the point raised with regard to the vessel called the Tuscaloosa, we are not able to agree with the opinion expressed by the attorney-general of the Cape Colony, that she had ceased to have 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 guns, in charge of an officer, and manned with a crew of teu 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 appears from the papers before us,) except the circumstances already noticed. We therefore do not feel called upon, in the circumstances of this case, to enter into the question 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 præsidia 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. It is enough to say that the citation from Mr. Wheaton's book, by the colonial attorneygeneral, does not appear to us to have any direct bearing upon this question. Connected with this subject is the question as to the cargoes of captured vessels, which is noticed at the end of Sir Philip Wodehouse's dispatch of the 19th August last. We think that, according to the true interpretation of Her Majesty's orders, they apply as 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. We think it right to observe that the third reason alleged by the colonial attorneygeneral 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 competent of 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 dispute, to the court of her States, in order to satisfy it as to her real character," appears to us to be at variance with Her Majesty's undoubted right to determine, within her own territory, whether her orders, made in vindication of her own neutrality, have been violated or not. The question remains, what course ought to have been taken by the authorities at the Cape, first, 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 secondly, what ought to have been done if such had appeared to be really the fact? We 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, it would, we think, deserve very serious consideration whether 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 not 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.1 It will be observed that in the foregoing opinion of the law-officers, the question whether the Tuscaloosa should, under the circumstances, have been detained for the purpose of being restored to her original owners, is suggested as one deserving, should the like case recur, of very serious consideration; it is by no means one on which a positive opinion was intended to be given. The governor and the admiral, however, considered it as establishing not only that they ought to have detained the Tuscaloosa, when formerly within their jurisdiction, but as imposing on them the duty of doing so now that, having returned to the Cape, she was again within their power. They accordingly took possession of her. Her commander, Lieutenant Low, thereupon addressed the following protest to the governor: TUSCALOOSA, SIMON'S BAY, CAPE OF GOOD HOPE, SIR: As the officer in command of the Confederate States ship Tuscaloosa, tender to the Confederate States steamer Alabama, I have to record my protest against the recent extraordinary measures which have been adopted toward me and the vessel under my command by the British authorities of this colony. 1 British Appendix, vol. ii, p. 323. In August last the Tuscaloosa arrived in Simon's Bay. She was not only recognized in the character which she lawfully claims to be, viz, a commissioned ship of war belonging to a belligerent power, but was allowed to remain in the harbor 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 23th instant, 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, viz, 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 honor 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 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. I demand, however, the release of my ship; and, if this demand be not promptly complied with, I hereby formally protest against her seizure, especially under the very peculiar circumstances of the case.1 Upon this proceeding being reported to the government at home, the opinion of the law-officers was again taken. It was felt that what had been done could not be properly upheld. It was obviously one thing to have seized the Tuscaloosa on the former occasion, as a prize brought into a port of her Her Majesty; a very different thing, after she had been treated as a ship of war, and allowed to go free, to let her come again into port in the like character without notice of any hostile intention, and then to seize and practically condemn her. Assuming-of which, however, I must say I entertain very serious doubts-the right and power of the government to take such a course, it savors too much of perfidy to be a course which Her Majesty's government could pursue with a due regard to honor and good faith. Orders were therefore sent out by the secretary of state for the colonies "to restore the vessel to the lieutenant of the Confederate States who lately commanded her; or, if he should have left the Cape, then to retain her until she can be handed over to some person who may have authority from Captain Semmes, of the Alabama, or from the government of the Confederate States, to receive her.”2 The order to restore this vessel has been reflected upon in the case of the United States;3 but I cannot but think that the decision come to by the government was, under the circumstances, perfectly right; not only for the reason assigned, but also because, whatever might have been the power of the British government to seize this vessel while still retaining the character of a prize, she had now been invested with that of a vessel of war belonging to a belligerent, and was therefore no longer amenable to the municipal jurisdiction. The question is, however, of no practical importance whatsoever. The Tuscaloosa never was delivered up. Lieutenant Low having left the Cape when the order of the Duke of Newcastle came out, she remained in the custody of the local authorities till the end of the war, and was then delivered up to the United States. No claim of damages can arise, therefore, with regard to her in this respect.1 A serious question of law, however, presents itself in respect of whatsoever damage may have been done by the Tuscaloosa, while cruising in the interval between her leaving the Cape and her return to it. This liability may be asserted on two grounds: first, it may be said that, the Alabama having been enabled to make war on the commerce of the United States through the want of due diligence on the part of the British government, and the Tuscaloosa having been taken by the Alabama and converted into a ship of war employed in the same warfare, the mischief done by her must be looked upon as the consequence of such original default of the government, and must be answered for accordingly; a proposition obviously involving very serious consequences, as leading to a liability of a most extensive and unlimited character. Secondly, it may be said that the Tuscaloosa ought to have been seized and delivered up to her original owners, when first found at the Cape, and that the British government must, as having allowed her to go free, be held liable for any damage afterward done by her. But this argument, of course, assumes, first, that the government had the power and right to seize this vessel; secondly, that it was under any obligation to do so; thirdly, that if such an obligation existed, it rendered the government liable to do more than compensate the original owners, and involved them in liability toward the United States Government. The question, though of some legal interest, is otherwise but of small importance by reason of the very small amount of damage done by this vessel. On the whole I am disposed to think, though not without some doubt as to whether the damage may not be too remote to found a legal liability, that the mischief done by the Tuscaloosa being the direct consequence of the equipment of the Alabama, on the principle that "omne accessarium sequitur suum principale," those who are answerable for the one must be answerable also for the other. I acquiesce, therefore, in the decision of the rest of the tribunal in respect of this vessel. CASE OF THE GEORGIA. The case of the Georgia is one in which not even the desire to establish great principles of neutrality at the expense of Great Britain can, as it appears to me, find matter on which to found a charge of want of due diligence. The Georgia. This vessel was built at Dumbarton, on the Clyde, and was evidently originally intended as a blockade-runner, which may account for the interesting fact, thrice repeated in the American case and argument, that she was christened by a young lady, the daughter of Captain North, who was in some way connected with the insurgent service. The Georgia was evidently not constructed as a vessel of war, though afterward applied to that purpose. The vigilance of the government having been aroused by the escape of the Florida and the Alabama, the building of ships of war for the confederate service had become a matter of extreme difficulty, and recourse was had to the contrivance of converting ships, originally built as blockade-runners, into vessels of war. 1 British Appendix, vol. i, p. 363. |