given by the acting attorney general of that colony with regard to the latter vessel, into our consideration, and favor your lordship with such observations as we might have to make thereupon. We are also honored with your lordship's commands signified in Mr. Hammond's letter of the 2d October instant, stating that, with reference to his letter of the 30th [114] ultimo, he was directed by your lordship to transmit to us the accompanying letter, dated the 29th September ultimo, from Mr. Adams, relative to the proceedings of the Alabama off the Cape of Good Hope, and to request that we would take the same into our consideration, together with papers on this subject then before us, and favor your lordship with our opinion thereupon. In obedience to your lordship's commands we have taken these papers into consideration, and have the honor to report— That, so far as relates to the capture of the Sea Bride made by the Alabama, it appears, as we understand the evidence, to have been effected beyond the distance of three miles from the shore; and, as we have already had the honor to report to your lordship, that distance must be accepted as the limit of territorial jurisdiction, according to the present rule of international law upon that subject. It appears, however, that this prize, very soon after her capture, was brought within the distance of two miles from the shore; and as this was contrary to Her Majesty's orders, it might have afforded just grounds (if the apology of Captain Semmes for this improper act, which he ascribed to inadvertence, had not been accepted by Sir Philip Wodehouse) for the interference of the authorities of the Cape Colony upon the principles which we are about to explain. Secondly, with respect to the Alabama herself, we are clearly of opinion that neither the governor nor any other authority at the cape could exercise any jurisdiction over her; and that, whatever was her previous history, they were bound to treat her as a ship of war belonging to a belligerent power. Upon the third 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 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 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 prasidia 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 attorney general 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 ast. 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 attorney general for his opinion assumes (though the fact had not been made the subject of any quiry) that "no means existed for determining whether the ship had or had not been judicially condemned in a court of competent jurisdiction;" and the proposition that, admitting her to have been captured by a ship of war of the Confederate States, she was entitled to refer Her Majesty's government, in case of 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 her captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners. (Signed) ROUNDELL PALMER. Instructions in accordance with this opinion were accordingly sent to Sir P. Wodehouse.' [115] loosa. *In connection with the above correspondence it may be convenient to state here the subsequent history of the Tusca The question which arose as to this ship was not whether there had been a violation of the law of nations or of Her Majesty's neutrality, but whether the orders issued by Her Majesty's government, that no prizes should be suffered to be brought into ports within Her Majesty's dominions, had or had not been infringed. This again depended on the question whether the Tuscaloosa had or had not been divested of the character of a prize. The governor of the Cape Colony was advised that she had, and he accordingly permitted her to depart. Her Majesty's government was advised that she had not. She returned to Simon's Bay on the 26th December, 1863, and was then seized by the rear-admiral commanding on the station, with the concurrence of the governor. Directions were subsequently sent by Her Majesty's gov ernment that she should be restored to her commander, Lieutenant Low, on the special ground that, having been once allowed to enter and leave the port, he was fairly entitled to assume that he might do so a second time.3 She was not, however, actually given up; Lieutenant Low having left the cape at the time, and there being no one to receive her. At the conclusion of the war she was handed over to the consul of the United States as the representative of her original owners.* A further question afterward arose respecting certain goods which had been imported by a French ship into the Mauritius, and had been claimed by the United States consul there, on the ground that they had formed part of the cargo captured by the Alabama in the Sea Bride. This question having been referred to the law-officers of the Crown, they reported on it as follows:5 The law-officers of the Crown to Earl Russell. LINCOLN'S INN, May 11, 1864. MY LORD: We are honored with your lordship's commands signified in Mr. Murray's letter of the 5th instant, stating that he was directed by your lordship to transmit to us the papers as marked in the margin, respecting some goods which had been brought to the Mauritius in the French bark Sirène, and for the detention of which application was made by the United States consul to the governor of the colony, on the ground that they had formed part of the cargo of the confederate prize Sea Bride: and Mr. Murray stated that we should observe from the letter from the colonial office of the 5th instant, that Mr. Secretary Cardwell is of opinion that, as the question of the general instructions to be issued to the governors of Her Majesty's colonies was Brought under our consideration in Mr. Layard's letter of the 16th ultimo, it is desirable that we should also have before us the papers now sent to us, relative to the dis 1 Appendix, vol. i, p. 327. 2 Ibid., pp. 330–342. 5 Ibid., p. 365. 3Ibid., pp. 342-344. posal of the cargoes of prize vessels brought into a colonial port in British or other neutral vessels; and Mr. Murray was accordingly to request that we would take these papers into consideration, together with those lately before us, and embody in the proposed instructions to the colonial governors such directions as we may consider advisable on this particular head. In obedience to your lordship's commands we have taken these papers into consideration, and have the honor to report that, after considering these papers, it does not appear to us to be necessary to make any change in, or addition to, the draught instructions prepared by us, pursuant to the request conveyed in Mr. Layard's letter of the 16th ultimo. Questions such as that lately raised at the Mauritius by the United States consul with respect to the cargo of the Sea Bride must be left, in our opinion, to the civil tribunals. The executive government has no authority to disregard or call in question the prima facie title, evidenced by possession, of a private non-belligerent person who brings property of this description into a neutral port, whether he be a foreigner or a British subject. And there is no foundation in law for the idea that a valid title cannot be made to property taken in war, by enemy from enemy, without a prior sentence of condemnation. The absence of such a sentence may be material when the question is whether captured goods, brought by a belligerent ship of war, exempt from civil jurisdiction, into a neutral port from which prizes are excluded, ought to be regarded by the neutral government as still having the character of prize; but this is altogether different from a mere question of property in the goods themselves. We have, &c., (Signed) ROUNDELL PALMER, It has been previously stated that the Alabama sailed from Simon's Bay on the 15th August. On the 16th September she returned thither,1 and soon afterward sailed for the Indian Seas. The United States warsteamer Vanderbilt had, in the interval, visited both Cape Town and Simon's Bay, coaled, and departed for the Mauritius. She had pre viously coaled at St. Helena, and at the Mauritius she obtained [116] a renewed supply. The Alabama touched and coaled at Singa pore on or about the 21st of December, 1863; returned a second time to the Cape of Good Hope on the 20th of March, 1864;2 and thence proceeded to Europe, anchoring, on the 11th June, 1863, in the port of Cherbourg. The United States minister at Paris, Mr. Dayton,3 protested in writing against her being received into a French port. She was, however, admitted, and suffered to coal and to make such repairs as might be necessary, but did not obtain permission to enter the government docks. On the 19th June, 1864, she engaged the United States war-steamer Kearsarge, off the coast of France, and was sunk, after an action lasting about an hour. Some of her officers and crew were picked up and saved by an English yacht, which happened to be near at hand, and some by a French pilot-boat. With reference to this incident some correspondence passed between Mr. Adams and the government of Her Britannic Majesty, Mr. Adams erroneously contending that it was the duty of the owner of the yacht to surrender the persons whom he had picked up to the captain of the Kearsarge. To the representations made on this subject Earl Russell replied:* Earl Russell to Mr. Adams. FOREIGN OFFICE, June 27, 1864. SIR: I have the honor to acknowledge the receipt of your note of the 25th instant, complaining of the interference of a British vessel, the Deerhound, with a view to aid in effecting the escape of a number of persons belonging to the Alabama, who you Appendix, vol. i, p. 325. 2 Ibid., p. 372. state had already surrendered themselves prisoners of war, and calling my attention to the remarkable proportion of officers and American insurgents, as compared with the whole number of persons rescued from the waves. You state further that you can scarcely entertain a doubt that this selection was made by British subjects with a view to connive at the escape of these particular individuals from captivity. I have the honor to state to you, in reply, that it appears to me that the owner of the Deerhound, of the royal yacht squadron, performed only a common duty of humanity in saving from the waves the captain and several of the crew of the Alabama. They would otherwise, in all probability, have been drowned, and thus would never have been in the situation of prisoners of war. It does not appear to me to be any part of the duty of a neutral to assist in making prisoners of war for one of the belligerents. I shall, however, transmit to the owner of the Deerhound a copy of your letter and its inclosures, together with a copy of this letter. I am, &c., (Signed) RUSSELL The following correspondence also passed between the captain of the Kearsarge and M. Bonfils, who is stated to have been an agent, in France, of the government of the Confederate States:1 Captain Winslow, United States Navy, to M. Bonfils. UNITED STATES STEAMSHIP KEARSARGE, le 21 jain, 1871. MONSIEUR: Certains canots de pilots, auxquels j'avais permis, par humanité, de sauver plusieurs prisonniers lorsque l'Alabama eût sombré, les ont amenés à Cherbourg. Ces officiers et hommes d'équipage n'en sont pas moins soumis aux obligations que la loi de la guerre impose; ils sont mes prisonniers, et je demande qu'ils se rendent à bord du Kearsarge pour s'y constituter prisonniers. Dans le cas qu'ils chercheraient à se délier de cette obligation à la faveur des moyens qui ont été employés, dans des cas semblables qui pourraient se présenter ils ne doivent plus attendre aucune clemence. (Signé) JNO. A. WINSLOW. M. Bonfils to Captain Winslow, United States Navy, MONSIEUR: J'ai reçu votre lettre du 21 juin. L'objet de votre réclamation est un de ceux sur lesquels je n'exerce ancun contrôle, et je vous ferai remarquer que votre demande aurait du étre addressée au gouvernement français,chez lequel ces malheureux ont trouvé refuge. Je ne connais aucune loi de la guerre qui empêche un soldat de s'échapper d'un champ de bataille après un revers, lors même qu'il aurait été déjà fait prisonnier, et je ne vois pas pourquoi un marin n'en pourrait pas faire autant à la nage. Je dois refuser d'agir comme votre intermédiaire auprès de certaines personnes que vous ne nonmez même pas, et que néanmoins vous réclamez comme étant vos prisonniers. Je ne puis non plus comprendre comment les autorités des États-Unis peuvent prétendre retenir des prisonniers dans les limites de l'empire français. Je suis, &c., (Signé) BONFILS. [117] *After the original departure of the Alabama from Liverpool, many communications were from time to time addressed by Mr. Adams to Her Majesty's government, in which he dwelt on the circumstances that the vessel was built in England, and subsequently received her armament from England; that coal and supplies had also been procured for her from England; that many of her crew were British subjects, and that their wages were paid to their wives and families in England, through merchants resident at Liverpool. These circumstances were repeatedly referred to by Mr. Adams; and, in a letter inclosed by him to Earl Russel, dated the 11th January, 1864,2 and written by Mr. Dudley, they were enumerated as proving that the Alabama ought to be deemed a British ship, and her acts piratical. The law-officers of the Crown were requested to advise the Government whether any proceedings could be taken with reference to the supposed breaches of neutrality alleged by Mr. Adams and Mr. Dudley, and they reported as follows: Appendix, vol. i, p. 390. Ibid., p. 226. 3 Ibid., p. 235. Opinion of law officers. We are of opinion that no proceedings can at present be taken with reference to any of the matters alleged as breaches of neutrality in the accompanying printed papers. If the persons alleged to be Englishmen or Irishmen who have been serving on board the Alabama are natural-born British subjects, they are undoubtedly offenders against the foreign-enlistment act. But, not being (so far as it appears) within British jurisdiction, no proceedings can now be taken against them; and it is, under these circumstances, unnecessary to enter into the question of the sufficiency or insufficiency, in other respects, of the evidence against them contained in John Latham's affidavit of the 8th January last. Whether any acts were done within the United Kingdom to induce all or any of these persons to enlist in the confederate service, or to go abroad for that purpose, which would be punishable under the foreign-enlistment act, is a question on which these papers throw little or no light; certainly, they furnish no evidence of any such acts against any persons or person now within British jurisdic tion, on which any proceedings could possibly be taken under that statute. So far as relates to the supply of coals or other provision or stores to the Alabama, and the payments made to relatives of seamen or others serving on board that ship by persons resident in the country, we are not aware of any law by which such acts are prohibited, and therefore no proceedings can be taken against any person on that account. So far as relates to Mr. Dudley's argument (not now for the first time advanced) that the Alabama is an English piratical craft, it might have been enough to say that Mr. Dudley, while he enumerates almost everything which is immaterial, omits everything that is material, to constitute that character. The character of an English pirate cannot possibly belong to a vessel armed and commissioned as a public ship of war by the Confederate States, and commanded by an officer belonging to the navy of those States, under their authority. Such the Alabama undoubtedly is, and has been, over since she first hoisted the confederate flag, and received her armament at Terceira. Even by the schedule to John Latham's aflidavit, in which he describes the greater part of her petty-officers and seamen (on what evidence we know not) as Englishmen or Irishmen, it appears that twenty ont of the twenty-five superior officers (as well as the captain) are not so described; and of these twenty officers one is stated to be the brother-in-law of the President of the Confederate States. It is to be regretted that, in any of the discussions on this subject, so manifest an abuse of language as the application of the term "English piratical craft" to the Alabama should still be permitted to continue. (Signed) ROUNDELL PALMER. SUMMARY. The Alabama was built at Birkenhead by a ship-building firm which had for a long time carried on a very extensive business. The building of ships of war required for the use of foreign governments, and ordered by such governments directly or through agents, had formed a part of the ordinary business of the firm. It has been alleged that one of the members of the firm was a member of the House of Commons. This allegation, if it were true, would be immaterial; but Her Majesty's government has been informed and believes that it was not true, and that Mr. John Laird, who was member of Parliament for Birkenhead, and had formerly been a partner in the business, had ceased to be so before the building of the Alabama. The vessel appears to have been completed by the builders for delivery in the port of Liverpool, and to have been delivered accordingly; and Her Majesty's government sees no reason to doubt that the building and delivery of the vessel were, so far as the builders were concerned, transactions in the ordinary course *of their business, though they probably knew, and did not disclose, the employment for which she was intended by the person or persons to whose order she had been built. [118] The general construction of the vessel was such as to make it apparent that she was intended for war and not for commerce. |