ing the necessary facilities, and making equipments for the continuance of her unlawful vocation." To this letter the following answer was returned by the colonial secretary of the dependency :1 Mr. Freeling to Mr. Sprague. SECRETARY'S OFFICE, Gibraltar, January 19, 1862. SIR: I am directed by his excellency the governor to acknowledge the receipt of your letter of yesterday's date on the subject of the confederate steamer Sumter, now at anchor in this bay. His excellency desires me, in reply, to inform you that the instructions contained in Her Majesty's proclamation of the 13th of May last (published in the Gibraltar Chronicle of the 1st of June, 1861) with reference to the strict neutrality to be observed by Her Majesty's subjects in the contest between the Government of the United States of America and certain States styling themselves "the Confederate States of America," will be strictly carried out with regard to the rights and obligations toward both belligerent parties. I have, &c., (Signed) S. FREELING, On the 21st January, 1862, the consul addressed a letter to the senior naval officer at Gibraltar, asking to be informed, for the guidance of the masters of American vessels then lying in the bay, what rules he intended to lay down and enforce "in case any American vessels should leave port before the Sumter, or if the Sumter should be outside the port, waiting to intercept them." He was informed, in answer, that "American merchant-vessels quitting Gibraltar while the Sumter was in the bay, are entitled to a start of twenty-four hours before being pursued with a hostile intention, and it is the duty of the authorities concerned to see that such protection is extended over them." He was further informed that notice of this regulation has been given to the commander of the Sumter.2 On the same 21st of January, the consul telegraphed to the minister of the United States in London information that the Sumter was still in the harbor, and added, "the British governor observes strict neutrality, in conformity with the Queen's proclamation." The Sumter was, in fact, according to the statements of the United States consul, unable to leave Gibraltar for want of coal, the consul having succeeded in inducing the merchants of the place to refuse to supply her with coal, though her commander offered 50 per cent. more than the market price. She then applied to be allowed to purchase coal from the government stores; but this was refused, in conformity with the rule observed throughout the war, at all British ports, toward the vessels of both belligerents.3 On the 12th February, 1862, the United States war-steamer Tuscarora arrived at Gibraltar, and proceeded to coal at the neutral port of Algeciras. She was soon afterward joined by the United States war steamer Ino, and subsequently by the Kearsarge; and the Ino and Kearsarge remained off Algeciras waiting to intercept the Sumter. The Sumter was paid off in April, and lay in harbor till December, 1862, when she was sold by public auction (after having been first deprived of her armament) to a British subject resident at Liverpool. The United States consul addressed to the governor a protest against the sale, on the ground, first, that the Sumter had come into the possession of the confederate government as a prize of war, (which was proved not to be the fact, the vessel having been purchased by that government from a 1Appendix, vol. ii, p. 13. 2 Ibid., pp. 9 and 10. 3 Ibid., p. 18. private owner,) and secondly, that the sale was made "for the purpose of avoiding a capture by the cruisers of the United States." This protest was not accompanied by any proofs, but notice of it was officially published by the colonial secretary before the day fixed for the sale.1 With reference to this sale the subjoined letters passed between the United States minister in London and Her Britannic Majesty's secretary of state for foreign affairs:2 Mr. Adams to Earl Russell. LEGATION OF THE UNITED STATES, MY LORD: On the 19th of this mouth, I am informed by the consul of the United States at Gibraltar, that a public sale is said to have been made of the steamer [19] Sumter, a vessel which had committed *much depredation upon the commerce of the United States, and which had taken shelter in that port from pursuit from the national ships. Having the strongest reason, from the known character and previous conduct of the alleged purchaser, to believe that this sale is effected solely for the purpose of rescuing the vessel from its present position, and of making use of Her Majesty's flag to convert it to new purposes of hostilities to the United States, I must pray your lordship's attention to the necessity under which I am placed of asking the assistance of Her Majesty's government to prevent any risk of damage to the United States from a fraudulent transaction in one of her ports; or, in default of it, of declining to recognize the validity of the transfer, should that vessel subsequently be found by the armed ships of the United States sailing on the high seas. Renewing, &c. CHARLES FRANCIS ADAMS. Earl Russell to Mr. Adams.3 FOREIGN OFFICE, January 1, 1863. SIR: I have the honor to acknowledge the receipt of your letter of the 30th ultimo, calling my attention to the circumstances attending the sale of the steamer Sumter at Gibraltar, and I have the honor to state to you, in reply, that the law-officers of the Crown have already the case before them. I have, &c. Earl Russell to Mr. Adams. RUSSELL. FOREIGN OFFICE, January 15, 1863. SIR: With reference to my letter of the 1st instant, in which I acknowledged the receipt of your letter of the 30th ultimo, respecting the sale of the Sumter at Gibraltar, I have now the honor to inform you that Her Majesty's naval and military officers at that port have received instructions not to give any protection to that vessel beyond the waters of Gibraltar; but it will of course be clearly understood that those instructions do not preclude the owners of the Sumter, if that vessel should be taken by United States cruisers, from appealing, according to the usage and practice of international law, to the prize court in the United States against the captors; nor will Her Majesty's government be precluded from taking any course which may appear hereafter to them proper, if the Sumter, now assumed to be British property, should be hereafter condemned, or otherwise dealt with in any manner which might not be, in their judgment, warranted by international law. I have, &c. RUSSELL. Mr. Adams had on the 3d January, 1863, telegraphed to the American consul at Gibraltar that Captain Bryson, commanding the United States war-steamer Chippewa, was to endeavour to capture the Sumter should she leave Gibraltar under the British flag; and on the 19th January, 1863, he again telegraphed, "The Sumter should be captured if 'Appendix, vol. ii, p 45. 3 Ibid., p. 52. 2 Ibid., p. 47. she goes out of the British waters on the high seas. If she have nominal British papers she must be sent home for adjudication as prize." The American consul, on the 21st January, answered as follows: "Your telegram communicated to our commanders: Sumter coaling again and provisioning to-day." She sailed from Gibraltar on the 7th February, was not captured, and reached Liverpool on the 13th. At Liverpool she remained until the 3d July, 1863, when she sailed as a merchantvessel, without armament, and carrying as freight some heavy ordnance, which could not possibly have been used on board of her. She had undergone repairs, but all fittings for warlike purposes had been removed from her, and she had been re-named the Gibraltar. While in port she had been carefully watched by order of Her Majesty's government, as a precaution lest she should be in any way armed or equipped for war; and she was not permitted to clear till it had been satisfactorily shown that she was in no respect so equipped and had no armament. She is believed to have been wrecked at last in attempting to enter Charleston. After the time when she entered the harbor of Gibraltar she never appeared at sea as an armed ship, nor was employed to commit hostilities against the United States or their citizens. With reference to the sale and transfer of this vessel, the views of Her Britannic Majesty's government were further expressed in the following letter addressed to the minister of the United States in London: 3 Earl Russell to Mr. Adams. FOREIGN OFFICE, April 20, 1863. SIR: There are several statements in your letter of the 14th of March respecting the sale of the Sumter, at Gibraltar, to a British owner, upon which, if any advantage were likely to result from further discussion of the subject, I should feel it [20] right to observe. But it appears to me sufficient to say, that you seem to have * confounded, both in your reasoning upon the subject and in you reference to authority, the positions of a neutral and belligerent in regard to the sale of ships belonging to another belligerent, and to have forgotten, as in the instance of your reference to a statement in a passage on the law of prize, that no neutral state, such as Great Britain now is, administers prize law in favor of either belligerent. The neutral and belligerent have distinct rights in the matter: the neutral has a right to acquire such property offered to him for purchase, but the belligerent may, in the particular circumstances of the case, not recognize the transfer of such property as being that of his enemy, only parted with to the neutral in order to protect it from capture on the high seas. The prize court of the belligerent, when property so circumstanced is brought before it, decides whether the transfer is fair or fraudulent. The British government, when neutral, is not bound to refuse to a British subject the right to acquire by purchase a vessel which a belligerent owner may desire to part with, but it would not deny the right of the adverse belligerent to ascertain, if such vessel were captured by its cruisers, whether the vessel had rightfully, according to the law of nations, come into the possession of the neutral; and if Great Britain were herself belligerent, she would not complain of a neutral government allowing one of its subjects to acquire by purchase a vessel which her adversary might desire to part with, though she would have the right of capturing such vessel on the high seas, and sending it before the prize court for judgment as to whether the vessel had rightfully, according to the law of nations, become the property of a neutral owner. I have, &c. (Signed) The course RUSSELL. pursued by Her Majesty's government in this case was adhered to in 1864, in the case of the confederate ship Georgia. It was afterwards judged expedient by the government to prohibit vessels of war belonging to either belligerent from being dismantled or sold in British ports. It is not the duty of a neutral government to prohibit the sale within 'Appendix, vol. ii, p. 59. * Ibid., pp. 64-80. 3 Ibid., p. 62. its territory of a ship owned by a belligerent to a neutral purchaser. This is a transaction which in no way concerns the neutral government, and with which it cannot be called upon to interfere. Under certain circumstances indeed-as in the case of a ship of war driven by superior force to take refuge in a neutral port-such a sale may be liable to be declared void by a prize court of the other belligerent. But this is a jurisdiction exercised by prize courts alone. Until so set aside, the sale (even in the case supposed above) is valid everywhere, and operates to transfer the property to the neutral purchaser. Nor again can a neutral government be called upon to apply rules applicable exclusively to vessels of war to a vessel which, having originally been armed for war, has been disarmed and sold as aforesaid, unless it clearly appear that the sale was a fictitious transaction, intended to disguise, without altering, the true character of the ship. THE NASHVILLE. The Nashville, an armed steamer commissioned as a ship of war of the Confederate States, arrived at the British dependency of Bermuda on the 30th of October, 1862, having sailed from Charleston on the 26th.1 Her commander applied for leave to draw a supply of coals from Her Majesty's dock-yard, but this request was refused. She procured coal from a private yard, and sailed on the 4th November. On the 21st November she entered the harbor of Southampton, having, on her way, taken and destroyed an American packet-ship (the Harvey Birch,) and on the 22d went into dock for repairs. On the same day directions were sent from the Foreign Office that she "should not be allowed to equip herself more completely as a vessel of war, or to take in guns or munitions of war." On the same 22d of November, Mr. Adams addressed a note to Earl Russell in reference to the Nashville, inclosing certain papers received from the consul of the United States in London. From statements in these papers it would, Mr. Adams alleged, appear that the Nashville was not equipped under a commission as a ship of war, nor even with the pretense of a letter of marque; and, further, that she was sent to England with the avowed design that she should be refitted in English ports and made a formidable vessel of war, and that the officers who came in her should be put in command of two other ships which were alleged to be then fitting out in the ports of Great Britain for the purpose of carrying on war against the United States. He proceeded to request that Her Majesty's government would cause inquiry to be made, and would adopt such measures as the case, upon investigation, might seem to demand. "This inquiry may be solicited to the ascertainment of two classes of facts: the first, as to the authority possessed by this vessel to commit so aggressive an act on the citizens of a friendly power, and then to claim a refuge and recognition in the harbors of Great [21] Britain. The second, in case the nature of that authority be deemed sufficient-at least in the view of Her Majesty's government-as to the purposes for which the ship is alleged to have come across the ocean, to wit, the making more effective preparation in the ports of Great Britain for carrying on a war against the people of a friendly nation. In the former case, the question will arise whether the vessel be or be not subject to due process of law as a common disturber of the peace of the world; in the second, whether a recognized 'Appendix, vol. ii, p. 87. Ibid., pp. 90, 91. 3 Ibid., p. 92. belligerent shall or shall not be permitted with impunity to violate the terms of Her Majesty's proclamation forbidding the fitting out, within the ports of Great Britain, of any armament intended to be used against a nation with which she is at peace." The foregoing note was immediately answered by Earl Russell, as follows: Earl Russell to Mr. Adams,1 FOREIGN OFFICE, November 23, 1861. Lord Russell presents his compliments to Mr. Adams, and begs leave to acquaint him that his letter and the inclosure shall receive the immediate attention of Her Majesty's government. Lord Russell has already given directions that no infringement of the foreign enlistment act shall be permitted in regard to the Nashville. On the 28th November, 1861, Earl Russell addressed to Mr. Adams, with reference to his note of the 22d, a further note, which was as follows: Earl Russell to Mr. Adams. FOREIGN OFFICE, November 28, 1861. The undersigned, Her Majesty's principal secretary of state for foreign affairs, has the honor to inform Mr. Adams, envoy extraordinary and minister plenipotentiary of the United States at this court, that his note of the 22d instant has been the subject of careful and anxious consideration by Her Majesty's government. Mr. Adams, after reciting the capture and destruction by fire of the United States merchant-ship on the high seas by order of the commander of the armed steamer called the Nashville, and the subsequent arrival of the Nashville in the port of Southampton, asks for an inquiry as to two classes of facts: the first, "as to the authority possessed by this vessel to commit so aggressive an act on the citizens of a friendly power, and then to claim a refuge in the harbors of Great Britain;" the second, "in case the nature of that authority be deemed sufficient, at least in the view of Her Majesty's government, as to the purposes for which the ship is alleged to have come across the ocean, to wit, the making more effective preparations in the ports of Great Britain for carrying on war against the people of a friendly nation." Her Majesty's government have directed their inquiries to both these points, and also to the state of the law as applicable to the facts thus by them ascertained. With regard to the first point, the undersigned has to state that the Nashville appears to be a confederate vessel of war; her commander and officers have commissions in the so-styled confederate navy; some of them have written orders from the Davy department at Richmond to report to Lieutenant Pegram "for duty" on board the Nashville, and her crew have signed articles to ship in the confederate navy. In these circumstances the act done by the Nashville, of capturing and burning on the high seas a merchant-vessel of the United States, cannot be considered as an act "voluntarily undertaken by individuals not vested with powers generally acknowledged to be necessary to justify aggressive warfare," nor does it at all " approximate within the definition of piracy." Such being the answer of Her Majesty's government on the first point raised by Mr. Adams, the undersigned passes to the second. The undersigned stated to Mr. Adams, in his informal note of the 23d instant, that be had already given directions that no infringement of the foreign enlistment act should be permitted in regard to the Nashville. In fact, directions had already been given to prevent the Nashville from augmenting her warlike forces within Her Majesty's jurisdiction in contravention of the foreign enlistment act. With respect to the allegation made by Mr. Adams that some of the officers of the Nashville are to be put in command of vessels now fitting out in British ports for purposes hostile to the Government of the United States, the undersigned can only say that, if reasonable evidence can be procured to that effect, all parties concerned who shall be acting in contravention of the foreign enlistment act shall be legally proceeded against, with a view to the punishment of the persons and to the forfeiture of the ves sels. Having thus answered Mr. Adams upon the two points to which his attention was called, the undersigned has only further to say that, if, in order to maintain inviolate the neutral character which Her Majesty has assumed, Her Majesty's government 2 Ibid., p. 101. Appendix, vol. ii, p. 95. H. Ex. 282 |