stood in reference to such matters; and when the noble earl challenged him to prove his case, although he was quite ready to take up his challenge, he could not do so unless the noble earl supplied him with the materials. He should only further press for a copy of the instructions which were sent out to the colonial authorities at the Cape of Good Hope, and on which they had acted in the case of the Tuscaloosa. He hoped there would be no objection to give a copy of these instructions. EARL RUSSELL said that he should have no objection to the motion of the noble earl, on the understanding that names, dates, and other details of that kind only were to be given. With regard to the papers connected with the case of the Saxon, he was quite ready to produce them, if the noble earl would move for them. The EARL OF CARNARVON then moved for the correspondence or extracts relative to the capture of the Saxon, and for copy of instructions to the colonial authorities relative to the detention of the Tuscaloosa. EARL RUSSELL said it would be necessary to communicate with the colonial office in regard to the instructions to the authorities at the Cape. Address for "Return of claims made by British subjects upon the United States government, sustained either in person or property since the secession of the southern States, specifying how and the grounds on which such claims have been disposed of." Also, "Correspondence, or extracts from correspondence, relative to the capture of the Saxon by the United States ship Vanderbilt." And, also, "Copy of instructions to the colonial authorities relative to the detention of the Tuscaloosa." APPENDIX No. XX. DEBATES IN THE HOUSE OF LORDS OF APRIL 26, 1864 AT THAT PORT.* [From Hansard's Parliamentary Debates, vol. 174, pages 1595-1617.] HOUSE OF LORDS, April 26, 1864. UNITED STATES-THE LAW OF PRIZE. 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 commencement 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, harbors, 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 be * Transmitted with dispatch No. 675, from Mr. Adams to Mr. Seward, April 29, 1864, see vol. III, p. 255. 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 dispatch 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 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 Bay 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's 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 Semures, 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 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 dispatch 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 dispatch 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 funish 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 dispatch 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 dispatch 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 consul at the Cape, to which he (Lord Chelmsford) had direct their lordships' attention. In the papers No. 1, North America, the correspondence respecting the Alabama, their lordships would find a dispatch of the noble earl of the 29th of October, just six days before the dispatch 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 tenor 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 instruction: "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 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, 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 anthorities of the Cape-1st, 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 2d, 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 circunstances 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 dispatch 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 have 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 Baldwin 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 Russel,) 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 obtained 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 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 controversey without a special authority." 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 dock-yard, 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 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 26th instant, 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 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 the character of my ship, will most certainly be vindicated by my govern |