Got under weigh and anchored in the harbor. Found the Confederate States bark Tuscaloosa and prize bark Sea Bride at anchor. Officers and prize crew of Sea Bride returned. Since our departure from Simon's Bay the condensing apparatus was found to be out of order. Compelled to take twelve casks of water from a schooner.

30th. Strong southerly wind. Put a man on shore, at his own request, in accordance with sentence of court-martial.

31st.-Got under weigh and stood out to sea. Strong southerly wind.

2d September, 6.30 a. m.-Saw a large sail to windward. 10.-Hove her to by signal. On boarding I found her to be the Punjaub, of and to London from Kurrachee, laden with saltpeter and cotton. 5 a. m.-Made a sail on weather bow.

3d, 2.15 a. m.-Saw a sail one point on weather bow. Made all sail in chase. At 3.15 hove chase to with blank cartridge. On boarding, found her to be the Isle O'May, of and to London, from Colombo, with coffee. Short allowance of water.

5th, 7.30 p.m.-A steamer passed us on weather beam. Supposed to be the Cape mail steamer.

8th.-Strong southeast wind. Two sails in sight. By signal found her to be an English ship from Bombay to Liverpool. United States steamer Dakotah.

9th.-Moderate wind. Eight vessels in sight; all English, and principally from Calcutta to London. Hove one to. Boarding I found her to be the Cameronian, of Liverpool, Calcutta to London, with a general cargo,

10th, 10.15.-Made a sail on weather bow, found her by signals to be an English bark, Calcutta to London. 8.30 p.m.-Sail in sight on weather bow. At 10.35, after hailing three times, and firing a blank cartridge, chase hove to. On boarding I found her to be the ship Flora, of Liverpool, from Manilla, with a general cargo.

11th.-At 5 p. m., made a bark on weather bow. Made sail in chase. 6 a. m.-Chase showed English colors.

Sunday, 13th.-At 6.17 a. m., saw high land right ahead. Found it to be Table Mountain. Cruising, land still in sight, until the

16th. At 7.15 a. m. lowered propeller. 8.-Under weigh, steaming towards Simon's Bay. At 4 p. m. anchored in Simon's Bay. Learnt of the visit of the Confederate States steamer Georgia, and also of the visit of the United States steamer Vanderbilt, the latter leaving on the 11th instant.

APPENDIX NO. VIII.

LETTER OF "HISTORICUS" ON THE ALABAMA.*

[From the London Times, February 17, 1864.]

To the Editor of the Times:

THE CASE OF THE ALABAMA.

SIR: It is greatly to be regretted that there should be found politicians on both sides of the Atlantic who seem for party objects to desire nothing better than to inflame and exasperate national animosities by demands and recriminations which are neither justified by the doctrines of law nor founded in the principles of justice. It is some consolation, however, to think that, while in America this course has been resorted to by the responsible government of the country, in England it has only found favor with an irresponsible opposition. Some recent orators in both houses of Parliament have been laboring to stimulate public indignation by endeavoring to persuade us that we have been the tame and spiritless victims of unmerited ill-usage. This view of the subject is founded on peculiar notions of law which they have thought fit to assume, and in accordance with which they have undertaken to criticise the action of the English government, and to denounce the conduct of the American prize courts. It is, however, satisfactory to observe that the vehement sallies of these unprofessional partisans have received no countenance from the eminent lawyers of whom the conservative party are justly proud. While these attacks rest on the unsupported authority of party politicians, they are not likely to make much impression on the public mind, or to work any considerable national mischief.

I am glad to observe that the attorney general-than whom on such a subject no higher authority is to be found-has fully confirmed the opinion which I have ventured on former occasions to express as to the general rectitude and fairness of the American prize courts. The grounds on which the decision in the case of the Springbok has been attacked show that the critics of the American judges are very little conversant with the elements of the subject they have undertaken to discuss. It is assumed that a shipment whose immediate and ostensible destination is to a neutral port is necessarily and absolutely in all cases innocent. This is, no doubt, as a general rule, true, but it is equally certain that, if this destination be only a section of a voyage whose real and ultimate intention is to a belligerent port, the mere interposition of a neutral resting place will not alter the real character of the transaction. The whole voyage will be regarded according to the reality, and not according to the appearance, and will be dealt with according to its real and ultimate, not according to its apparent and immediate, destination, This principle rests on the foundation of that which is known to jurists as the doctrine of continuous voyages. Those of your readers who may care to pursue this interesting and somewhat complicated question any further will find the authorities collected and discussed in two letters I printed on this subject in the summer as a supplement to my collected letters. The weight of the opinion of the attorney general may now be added to the authorities which are there cited.

But, while it is to be deplored that inconsiderate speakers in this country should disturb the public mind by unfounded complaints, it is still more a subject of regret and censure that the government of Washington, who can hardly plead the excuse of ignorance in these matters, should pervert the judgment of their own countrymen by persistent assertions of claims which they must know to be wholly unjustifiable. I have already in former letters, and especially in one which I had the honor to address to you on November 7, 1863, examined in detail the pretensions which the American government have advanced against England in respect of the captures of the Alabama. I do not propose to repeat the arguments, for I have never seen any attempt to dispute their conclusions. With every disposition to look at the matter in an impartial spirit, I do not believe that it is possible to find any basis, either of authority or of reason, to give color to such a claim. Upon this point the law and practice of nations alike are clear and settled. It is the right of every neutral state to prevent the violation of its soyereignty by the equipment within its territory of belligerent armaments. In a certain but more imperfect and restricted sense it is its duty to do so. But the injury arising from the violation of this right is an injury primarily and essentially to the neutral * Transmitted with dispatch No. 599, from Mr. Adams to Mr. Seward, February 18, 1864. See vol. 3, p. 245.

and not to the belligerent. The neutral is in no sense an insurer to one belligerent against the wrongful acts of the other belligerent. Nor can any claim in the nature of damages arise against the neutral in respect of an injury which the neutral has involuntarily sustained. These are principles founded in reason, and established by authority, and they are decisive against the American claim.

But the former American practice is equally conclusive against their present pretensions. During the course of the war between Spain and her revolted colonies in South America the ports of the United States became the grand officina of the rebellious privateers. The South American seas were covered with cruisers fitted out in the American ports in violation of their foreign enlistment act. The instances of adjudication on suits for the restitution of prizes taken by these privateers in the American law books are numerous, but we may be quite sure that the recorded cases indicate a very small percentage of the captures thus effected. That being the state of things, the course adopted by the American courts and the government was this: When a prize captured by a cruiser thus unlawfully equipped was brought within the jurisdiction of the United States the prize was duly restored by legal process to its original owner. The government of the United States did not pretend to deal with the cruiser herself, (vide the facts and the judgment in the case of the Santissima Trinidad;) they distinctly repudiated all authority and liability in respect of captures by such vessels not brought within their jurisdiction, (vide "La Amistad de Rues," 5 Wheaton's Reports.) And I venture to challenge the American government to produce a single example in which they acknowledged any claim to compensation for prizes taken by cruisers equipped within their ports to "prey upon the commerce" of Spain, or attempted any other redress than that of the restitution in specie of prizes brought infra præsidia. The terms of the Jay and Grenville treaty between Great Britain and the United States in 1795 (which was discussed at length in my letter of November 7) are, when properly understood, equally conclusive against the present pretensions of America. That being the case, it is lamentable, indeed, to see a responsible government, for the temporary political purposes of the moment, inflaming the passions and perverting the judgment of the nation with whose destinies it is charged, by preferring claims which it cannot sustain in right, and which it is notorious it is without the means of enforcing by might.

Before I quit this topic I must ask leave to offer a few remarks on some circumstances disclosed by the last papers on the subject of the Alabama laid upon the table of Parliament, (North America, No. 1, 1864,) which are likely to give rise to new questions of considerable delicacy and difficulty. The circumstances to which I refer will be found narrated at pp. 19-25 of the Parliamentary Paper, and have reference to certain transactions which took place at the Cape of Good Hope in the course of last summer. The material facts, if correctly stated, seem to be these: On July 28, 1863, the Alabama entered the bay of Saldanha for the purpose of repainting, and remained there till August 4; on August 5 she sailed for Table Bay, and within sight of the persons on shore, though apparently at a distance of more than three miles, captured the federal bark Sea Bride. The captain and the crew of the Sea Bride were taken on board the Alabama and put in irons, and seem afterward to have been landed at Cape Town. After the capture was effected it is asserted that the prize was brought within a mile and a half of the English shore in charge of a prize crew, and it appears that attempts were made to sell the prize to some speculators at Cape Town. What ultimately became of the Sea Bride does not appear upon the papers. Now, assuming the facts thus stated to be correct-and there is no intimation on the face of the papers that they are disputed—some important questions arise.

And, first, ought the Alabama ever to have been allowed to enter the bay of Saldanha at all! I confess I am very strongly of opinion that she ought not. As soon as the war between the Federal and Confederate States broke out the English government defined the exact terms and conditions on which the ships of war of both nations should be admitted into our ports. In our character as a neutral nation we extend impartially to both such a limited hospitality as shall keep us clear from any participation in their hostile pursuits. To this hospitality so defined the duly commissioned vessels of war of both belligerents are clearly entitled so long as our regulations remain unaltered. It is equally certain, however, that we are at perfect liberty to make precisely what rules upon the subject we think fit. The principles of the rights and duties in this respect of neutral states are laid down with admirable clearness in the case of the Exchange, (7 Cranch Rep.,) one of the greatest judgments, perhaps, ever delivered in a court of law. If the Alabama is admitted into our ports it is undeniable that while she is there she is entitled, as a properly commissioned vessel of war, to enjoy the immunity of her flag. The legality of her origin cannot be inquired into, so as to authorize the neutral state, or any one else, to exercise jurisdiction over her. Still the question remains, ought the Alabama to be admitted into our ports at all? Now, it is a sound and salutary rule of international practice, established by the Americans themselves in 1794, that vessels which have been equipped in violation of the laws of a neutral state shall be excluded from that hospitality which is extended to other belligerent cruisers, on whose origin there is no such taint. Accordingly, the cabinet of Washington com

pelled all the French privateers which had been illegally fitted out in America against England to leave the ports of the United States, and orders were issued to the customhouse officers to prevent their return. This course of proceeding appears equally consonant to the principles of law and the dictates of policy. The question, then, remains, was the Alabama unlawfully equipped and manned within the jurisdiction of Great Britain? Now, setting aside the vexed question of equipment, I think there can be very little doubt on that of enlistment. The question is one which from its very nature is not and cannot become the subject of judicial determination, because a neutral government cannot exercise jurisdiction over such a vessel. It is a matter on which the executive of the neutral government must, according to the best information it can obtain, form its own judgment, and that judgment is final and conclusive on all parties. Now, I observe that in a dispatch dated March 27, 1863, (Parliamentary Paper, p. 2,) Lord Russell writes: "The British government has done everything in its power to execute the law; but I admitted that the cases of the Alabama and the Oreto were a scandal and in some degree a reproach to our law." Now, with the greatest deference to those persons who may be of an opposite opinion, I submit that vessels of which such a statement can be properly made-and that it was properly made no one acquainted with the circumstances of their outfit and manning can honestly doubt-are not entitled to the hospitality of the country whose laws they have eluded and abused. I think that to deny to the Florida and the Alabama access to our ports would be the legitimate and dignified manner of expressing our disapproval of the fraud which has been practiced upon our neutrality. If we abstain from taking such a course, I fear we may justly lie under the imputation of having done less to vindicate our good faith than the American government consented at our instance on former occasions to do.

But, assuming this position not to be well founded, and that the Alabama was rightly admitted into Saldanha Bay, it remains to consider whether the capture of the Sea Bride can be justified as it affects the neutrality of Great Britain. This, I confess, appears to me somewhat more than doubtful. Supposing the Alabama were to anchor at Spithead for a week to repaint; suppose thence she were to sail along the coast and capture a federal vessel four miles off Deal, and afterward were to proceed with her prize to the mouth of the Thames: the circumstances would be precisely similar to those which took place last August at the Cape. Is this permissible? I venture to say clearly not. Assume that the capture was actually effected-of which there seems little doubt-beyond the limits of the neutral jurisdiction, still within the principles of well known English judgment, this act of hostility is far too proximate to be permitted. The law on the subject is laid down with great distinctness by Lord Stowell in the case of the Twee Gebroeders, (3 Rob. Rep., p. 165.)

"Direct hostility appears not to be necessary, for whatever has immediate connection with it is forbidden. An act of hostility is not to take its commencement on neutral ground. It is not sufficient to say it is not completed there-you are not to take any measure there that shall lead to immediate violence; you are not to avail yourself of a station on neutral territory, making it as it were a vantage ground of the neutral country, a country which is to carry itself with perfect equality between both belligerents. Many instances have occurred in which such an irregular use of a neutral country has been warmly resented, and some during the present war; the practice which has been tolerated in the northern states of Europe of permitting French privateers to make stations of their ports, and to sally out to capture British vessels, is of that number."

Vide also the Anna (5 Rob., p. 385.) It is true that in the case of the Vrow Anna Catharina (5 Rob. Rep., p. 18) a distinction is taken between the "making a harbor an habitual station for captures," and the case of a privateer "accidentally lying in the port," which goes out to capture an enemy whom she sees approaching. But as far as I can understand the occurrences at the Cape, they range themselves rather under the former than the latter rule. If this be so, the capture of the Sea Bride comes within the same category as captures made actually within the limits of the neutral jurisdiction, and in such cases it is the duty of the neutral government to effect restitution. But, again, assuming this not to be so, and the capture is to be regarded as clear from all objection on the score of violation of neutral territory, there still arises another question from the fact that the prize was subsequently brought within the limits of our jurisdiction. Now, this having been done, the consul of the federal government had a clear right, according to the doctrine of the Santissima Trinidad and similar cases, to litigate the question of restitution on the ground that the vessel was captured by a cruiser unlawfully equipped within the English dominions. This he was entitled to do, on a claim for restoration brought either at his suit or that of the English government, and upon such a suit the character and origin of the Alabama would have been judicially investigated. It is difficult to understand why this course was not adopted, except that both the English colonial authorities and the American consulate appear, from their reciprocal arguments, to have been imperfectly versed in the legal principles applicable to the occurrence. The American consul seems to have omitted to demand that to which he was justly entitled, while he put forward all sorts of claims which were wholly untenable. On the other hand, the colonial authorities do not appear

either to have received very explicit instructions or to have exercised any great caution or sagacity on the occasion.

It remains to notice the case of the Tuscaloosa, which arose just about the same time in the same waters, and which, from what I perceive by your paper of this morning has more recently occurred, is likely to become a matter of some interest. This vessel, it appears from the Parliamentary Paper, was originally the federal bark Conrad captured by the Alabama; she had some guns put on board her, and was named the Tuscaloosa. Whether she was ever legitimately commissioned as a vessel of war does not distinctly appear; and if she was so, the authority and the manner in which the commission was conferred are not stated. However this may be, on the 8th of August, 1863, she entered Simon's Bay, where she remained seven days with her original cargo of skins and wool on board, and it is stated that her cargo was sold to merchants at Cape Town. Under these circumstances the American consul demanded her detention by the English colonial authorities on the ground that she was a prize, and that the English government "having excluded prizes from all the ports of the British empire, the captures necessarily revert to their real owners as soon as they enter a British port." It is hardly necessary to say that as a general proposition this is wholly untenable. The rule is, that questions of prize are cognizable only in the courts of the captor; and the mere fact that a prize is brought into our ports, in breach of these orders, does not give to the neutral any jurisdiction over the prize of a legitimate cruiser, whether the prize has or has not been condemned. The only remedy in such a case is to order its instant departure. But to the general rule that questions of prize are cognizable only by the courts of the captors, there are two important exceptions-one, where the prize has been taken in violation of the neutral territory; the other, where the prize has been taken on the high seas by a cruiser equipped within the neutral territory in breach of its laws. In both these cases the neutral government lawfully assumes authority over the prize in vindication of its violated neutrality. Neither the American consul nor the colonial authorities seems to have adverted to this important distinction between the rule and the exceptions. The matter was further complicated by the pretension of the Tuscaloosa to be a commissioned vessel of war. The colonial authorities decided that she was entitled to be so regarded, and declined in any way to interfere with the vessel. It appears from a letter of Lord Russell to Mr. Adams, dated October 29, 1863, (Parliamentary Paper, p. 43,) that the Foreign Office was not altogether satisfied with the view taken of the matter by the authorities at the Cape, and it would seem that fresh instructions were issued, under which, in December last, the vessel was seized on her return to the Cape. The grounds of this seizure and the circumstances attending it are not stated with any precision, and the facts of the case are too little known to admit of any one venturing an opinion on the subject. Those who desire to acquaint themselves with the principles of law involved will do well to study the case of the Nereyda, (8 Wheat. Rep.,) which appears, as far as the facts are known, to be remarkably similar to that of the Tuscaloosa. The profound and masterly arguments at the bar in that case seem to exhaust every aspect of the question, and are a good deal more instructive than the somewhat timid and inconclusive judgment of the court. The question there was whether a prize which assumed to have been duly condemned and to have received a legitimate belligerent commission could, when brought into a neutral port, be seized by a neutral government and restored to her original owners on the ground that she was originally captured by a vessel unlawfully equipped within the territory of the neutral government. It is not very easy to discover from the judgment of the court whether they held the satisfactory proof of a lawful condemnation would have absolutely defeated the neutral jurisdiction; nor is it clear what view they took of the operation of the alleged commission. I confess I am disposed to think that in such a case the question of condemnation is not the most material, and that, whatever may be the case of a bona fide purchaser under the sentence of a prize court, at all events as against the original captors the mere sentence of condemnation would not defeat the right or dispense with the duty of the neutral government to effect restitution in such a case. The question of the commission of the Tuscaloosa is a much more serious matter. It is certainly a strong thing to attempt to exercise jurisdiction of any kind, upon any pretext, over a commissioned vessel of war; and in this respect it must be confessed that it is not very easy to reconcile the course taken in the case of the Nereyda with the doctrine laid down with so much precision in that of the Exchange. It is probable, however, that the legitimacy of the commission of the Tuscaloosa is not admitted by the English authorities. In that case the matter will resolve itself simply into a suit for the restitution of a prize brought within our jurisdiction, on the allegation that she was captured by a cruiser unlawfully fitted out and manned within our dominions. Such a suit would be strictly in accordance with well-established precedents, and in its discussion the whole question of the origin and character of the Alabama and her outfit will be adjudicated upon.

Before quitting these topics I should wish to say one in which it becomes us to enter on these discussions. that we do ourselves injustice if, when the Americans

word on the tone and temper Some people seem to consider swagger, we do not bluster in