Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I

Mr. Adams to Mr. Seward.

No. 675.]

Legation of the United States, London, April 29, 1864.

Sir: I transmit a copy of the London Times of the 27th, containing a report of a debate in the House of Lords on the subject of the Tuscaloosa. Some of the animus displayed in it is of a purely party nature. Underneath it, however, is the temper prevalent in men of that class, hostile to the United States, and anxious to seize every opportunity to injure them in the public estimation. Lord Russell, in his reply, has for the first time ventured to expose that a little.

The same subject was brought up in the House of Commons last evening. A report of that debate is printed in this morning’s Times, a copy of which I likewise transmit. The same phenomena were elicited as in the Lords, with only the customary difference of earnestness in the demonstration. Considering how untenable the proposition at issue was, the majority is not over-large.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, &c., &c., &c.

[From the London Times of April 27, 1864.]

The law of prizes.

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, said that the subject was of such great importance that he needed not to apologize for now submitting it to the attention of their lordships. In the deplorable war which had lasted so long 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 obligations. 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 polity, and so likely to lead to unpleasant consequences, that he felt bound to present to their lordships his views on the matter. At the commencement of the present unhappy war in America her Majesty was advised to issue a proclamation inter-dieting the armed ships of both contending parties from coming with their prizes into the ports, harbors, and roadsteads of the United Kingdom, or any of the British colonies and possessions. 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. The Tuscaloosa was originally a federal vessel named the Conrad, and 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, a lieutenant of the confederate navy, and ten men, and changed her name to the Tuscaloosa, and employed her as a tender of the Alabama. The two vessels were in company at the Cape of Good Hope in the beginning to 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 he would take the opinion of the law officers of the crown on the subject. The governor accordingly consulted the attorney general at the Cape, who founded 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 despatch from Earl Russell of the 31st of January, 1862. The attorney general 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 was a vessel-of-war, and might enter the bay. Sir B. Walker 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 Semmes, as soon as they enter a British port.”

Now the governor seemed to have taken a more correct view of international. law than her Majesty’s government, for, in reply to Mr. Graham, 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.”

The American consul was not satisfied with that reply, but 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? The Tuscaloosa remained in Simon’s bay seven days with her original cargo of skins and wool on hoard. This cargo, I am informed by those who claim to know, has been purchased by merchants in Cape Town; and if it should be landed here directly from the prize, or be transferred to other vessels at some secluded harbor on the coast beyond this eolony, and brought from thence here, the infringement of neutrality will be so palpable and flagrant that her Majesty’s government will probably satisfy the claims of the owners gracefully and at once, and thus remove all cause of complaint. In so doing it will have to disavow and repudiate the acts of its executive agents here; a result I have done all in my power to prevent.”

He 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 despatch 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 would be deprived, he feared, for a long time of his tried and valued services. [Hear, hear.] In that despatch Governor Wodehouse says:

“An important question has arisen in connexion 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 furnish 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 despatch 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.”

It was in reply to that despatch that an 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, [hear, hear;] but he thought he was in a position to prove it, and it would be for their lordships to say how far he should be 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 among others he sent to the noble lord the extraordinary claim of the American consul at the Cape, to which he (Lord Chelmsford) had directed their lordships’ attention. In the papers No. 1, North America, the correspondence respecting the Alabama, their lordships would find a despatch of the noble earl of the 29th of October, just six days before the despatch 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 uncertaint. 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.”

There, 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, which sanctioned and adopted the extraordinary claims made by the American minister. The noble duke gave the following instructions:

“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 into 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 prœsidia 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.”

And then the noble duke concluded as follows:

“The question remains, what course ought to have been taken by the authorities 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 circumstances 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.”

These were the views of her Majesty’s government, and the despatch having been sent to the governor, he found himself in a situation of great embarrassment. He required further explanation, 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 pf the cargo before claiming for her admission as a ship-of-war. Certainly, acts had been done by him which, according to Wheaton, constituted a ‘setting forth as a vessel-of-war.’”

To add to these embarrassments, the Tuscaloosa, after an absence of four months, returned on the 26th of December to Simon’s bay. Admiral Sir B. Walker wrote to the governor stating the course 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.”

This was certainly an extraordinary departure from the ordinary course of procedure. Parliament had been told that the opinions of the law officers of the crown were confidential communications, and the government had repeatedly refused to lay them upon the table. The noble earl, (Russell,) 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 B. Walker, and by him communicated to the captains of the fleet. On the 4th of November the instructions from the colonial office to the governor were that the governor ought to retain the Tuscaloosa until properly reclaimed by her original owners. The governor offered to give her up 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 controversy 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. The stores and ammunition were taken out and deposited in the dock-yard, but not without a 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, 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 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, 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. [Cheers.] 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.”

In due course the governor communicated to the secretary of state for colonial affairs the seizure of the Tuscaloosa. In a despatch, dated the 11th of January, he said:

“I very much regret having to acquaint your grace that the confederate prize vessel the Tuscaloosa has again entered Simon’s bay, and that the naval commander-in-chief and myself have come to the conclusion that, in obedience to the orders transmitted to his excellency by the admiralty, and to me by your grace’s despatch of the 4th November last, it was our duty to take possession of the vessel, and to hold her until properly claimed by her original owners. The admiral therefore sent an officer with a party of men from the flag-ship to take charge, of her, and to deliver to her commander a letter in explanation of the act. Copies of his protest, addressed to me, and of my reply, are enclosed. He not unnaturally complains of having been now seized after he had, on the previous occasion, been recognized as a ship-of-war. But this is manifestly nothing more than the inevitable result of the overruling by her Majesty’s government of the conclusion arrived at on the previous occasion by its subordinate officer.”

By a despatch, dated the 4th of March, the governor was directed by the noble duke to deliver back the Tuscaloosa to the lieutenant who commanded her, the reasons for so doing being promised to be communicated to him in a subsequent despatch. Now, the instructions sent out on the 4th of November were either right or wrong. If they were wrong, her Majesty’s government need have felt no humiliation in admitting their error and making an apology, and it would further have been a generous act to which the confederates were entirely unaccustomed. [Hear, hear.] If these instructions were right, let their lordships see the position in which the government placed itself by the order to deliver back the vessel. By the seizure of the vessel under the original instructions the original owners had been remitted to their rights, and the government ought not to have ordered her to be given back to the confederates without the consent of the original owners. [Hear.] The fact was, her Majesty’s government did not like to admit they were wrong, and could not assert that they were right; [hear;] and, therefore, in the despatch communicating the reasons why the Tuscaloosa was to be restored they took a course which was always an indication of weakness—they made the Tuscaloosa a special case. The announcement was conveyed in these terms:

“I have now to explain that this decision was not founded on any general principle respecting the treatment of prizes captured by the cruisers of either belligerent, but on the peculiar circumstances of the case. The Tuscaloosa was allowed to enter the port of Cape Town and to depart, the instructions of the 4th of November not having arrived at the Cape before her departure. The captain of the Alabama was thus entitled to assume that he might equally bring her a second time into the same harbor, and it becomes unnecessary to discuss whether, on her return to the Gape, the Tuscaloosa still retained the character of a prize, or whether she had lost that character and had assumed that of an armed tender to the Alabama, and whether that new character, if properly established and admitted, would have entitled her to the same privilege of admission which might be accorded to her captor, the Alabama.”

So ended the history of the Tuscaloosa, and if no general principle were involved he should dismiss the individual case without any further observations. But the instructions issued on the 4th of November had never to his knowledge been recalled, their impropriety had never been acknowledged; and, therefore, he desired to point out what in his view formed the error and illegality of those instructions. He challenged his noble and learned friends to point out in any writer on international law a passage declaring that where a neutral had prohibited belligerents from bringing prizes into its waters, that neutral, on the prohibition being disregarded, had any right whatever to seize the prize and to restore it to the original owners. The power of the neutral was confined to ordering the vessel away, and if she refused to go force might be used to expedite her departure. By the rules of international law the moment a capture took place the property, as between belligerents, was vested in the captors, and therefore a neutral dealing with the property in the way attempted by her Majesty’s government was in effect to take it from one of the belligerents and to give it to the other. [Hear, hear.] Further, the neutral had no right whatever to enter upon the consideration of the validity of prizes brought into its waters. The capture might have been invalid and illegal, but the neutral had no power to inquire. There were only certain cases in which the neutral might and ought to inquire, and those were exceptions very strongly establishing the rule. Where a vessel was seized by a belligerent within neutral waters, a violation of neutrality took place, and it was not only the right, but the duty, of the neutral to restore the vessel to its original owners, because there never was a moment at which the vessel was legally a prize. But that rule certainly could not be made to apply to the case of the Tuscaloosa, which, after a lapse of six months from the time of her capture, came into neutral waters, and was seized for the purpose of being delivered back. It was also said that a neutral might exercise the authority of seizing prizes brought into its waters, and of returning them where the property of its subjects had been illegally captured and was afterwards brought into its ports; the very extraordinary reason given being that this was intended as a compensation for the asylum afforded. But he repeated that no authority was to be found for the proposition that neutrals were entitled to deal with prizes brought into their waters in the manner in which her Majesty’s government had sought to deal with the Tuscaloosa. [Hear.] It would, no doubt, be urged by the government that the bringing of a prize into neutral waters, contrary to the prohibition contained in the proclamation, was a violation of neutrality. But with this view, taking the plain meaning of the words “violation of neutrality,” he could not agree. He contended that the instructions issued by her Majesty’s government were wholly illegal, void, and improper; and there was this further disadvantage, that, he presumed, they had not been confined to the governor of the Cape of Good Hope, but had been sent round to all our colonial possessions. At the very moment when he was addressing their lordships it might be that prizes had been seized in some of those quarters and delivered up by the different local governors either to the confederates or the federals. If the prize improperly seized under the instructions of the government belonged to the federals, he could anticipate fully well what would hpppen: strong remonstrances and high-toned menaces on one side, submission, apology, restoration, and, perhaps, compensation, on the other. [Hear.] Should the prize taken be from the confederates, the remonstrances might be equally loud, but they would not be so much regarded. [Hear, hear.] Restoration, as shown by the present case, might be necessary, but it would be restoration unaccompanied by any apology; it would be mere restoration, and nothing more. [Hear, hear.] Whichever alternative happened, the position of the British nation would not be very dignified. He trusted that in the reply about to be made by her Majesty’s government he should hear either that the propositions which he had ventured to lay down were capable of refutation, or that the instructions issued by the government had been recalled or were about to be recalled. In either event, he should feel that he had not provoked the discussion in vain. [Cheers.]

Earl Russell. The noble and learned lord has, no doubt, brought very serious questions under your lordships’ consideration. At the same time, it must be recollected that all these applications of international law to the contest between the federals and so-called Confederate States have to be made under very exceptional circumstances. It has been usual for a power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or acquitted. But it so happens that in this conflict the confederates have no ports except those of the Mersey and the Clyde, from which they send out ships to cruise against the federals; and having no ports to which to bring their prizes, they are obliged to burn them upon the high seas. It is natural, under these circumstances, that the confederate officers and confederate authorities should somewhat resent the orders of her Majesty, of which the noble and learned lord was pleased to approve, and should endeavor to evade their operation. These orders, as your lordships are aware, were not to bring prizes made by either belligerent into the ports of the United Kingdom or of her Majesty’s possessions abroad. The Tuscaloosa, so called, was brought into the port of the Cape of Good Hope. The noble and learned lord passed over with little more than a depreciatory notice the reports of the naval officers upon that station. For my part, I have found that the officers of her Majesty’s naval service, being bound to apply the law of nations according to the rules with which they are furnished, and the books which they have in their possession, have, generally speaking, applied them with remarkable sense and discretion, [hear, hear,] and in a spirit of equal firmness and moderation, showing themselves disposed always to maintain the rights of the British crown and the honor of the British flag, but at the same time to do nothing for the purpose of irritation or mere vexatious interference. [Hear, hear.] Such has been the conduct of Sir A. Milne, who has for four years directed the operations of her Majesty’s forces on the coast of America in such a manner as, while securing the approbation of his own government, to conciliate the regard of all with whom he has had to deal, and particularly of the government of the United States. And such, I will venture to say, was the conduct of Sir Baldwin Walker, who had this case to consider. It struck Sir B. Walker, as I think it would have struck any one else, that if confederate ships-of-war were to be allowed to send in prizes with their cargo on board, and by putting one or two guns and a confederate officer on board to call them ships-of-war, the policy of her Majesty’s government would be defeated and her Majesty’s proclamation would become null and void. They would send in their prizes with a couple of guns and an officer, who, having sold first the cargo and then the vessel, would return to his ship; and this process might be repeated with any number of prizes. Sir B. Walker has expressed this in some passages to which the noble and learned lord did not refer, but which I will read to your lordships. In his letter of the 19th of August he says:

“On the 8th of August the tender Tuscaloosa, a sailing bark, arrived in Simon’s bay, and the boarding officer having reported to me that her original cargo of wool was still on board, I felt that there were grounds for doubting her real character, and again called the governor’s attention to this circumstance. My letter and his reply are annexed. And I would here beg to submit to their lordships’ notice that this power of a captain of a ship-of-war to constitute every prize he may take a ‘tender’ appears to me to be likely to lead to abuse and evasion of the laws of strict neutrality, by being used as a means for bringing prizes into neutral ports for disposal of their cargoes and secret arrangements— which arrangements, it must be seen, could afterwards be easily carried out at isolated places.”

And in another letter:

“The admission of this vessel into part 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 Sea Bride, captured by the Alabama off Table bay a few days since, or all other prizes, might he in like manner styled tenders, making the prohibition entirely null and void.”

With reference to that the noble and learned lord expressed no opinion. He did not tell us whether, under the law of nations, it is permissible for the captain of a man-of-war to make any number of his prizes into tenders or vessels-of-war, and send them into neutral ports, and thus evade a proclamation of neutrality. Sir B. Walker further says:

“Now, this vessel has her original cargo of wool still on hoard, 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 defence. 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 transhipment 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.”

The question was whether it was to be permitted that prizes should he sent into our courts under the disguise of being vessels-of-war, and thus her Majesty’s proclamation should be entirely defeated. The attorney general of the colony thought this was perfectly permissible, and that it could not be avoided or counteracted in any way, and in support of that opinion he quoted a paragraph of Wheaton. The law officers in this country are of opinion that that paragraph does not apply, because it was written with reference to a different subject, viz: the prize acts. In that paragraph it is said, and very truly and justly said, that although in certain cases merchant ships which have been recaptured must be restored to their owners, yet when a vessel has taken the character of a man-of-war, if the captain of a British man-of-war has to fight such a vessel; and has to use his warlike forces to capture her, she then loses the character of a merchant ship, and the naval officers are fairly entitled to consider her as a prize. That principle does not seem to apply to the present case. This, then’ was the case with which the government had to deal, having the opinion of the attorney general of the colony on the one side, and that of Sir B. Walker on the other. The opinion of Sir B. Walker is clearly the opinion of common sense, and the law officers say that it is well founded in law, and that it is not permissible to put a few guns into a prize, retaining her cargo on board, and send her into a neutral port to sell it. My noble friend—who, with the noble and learned lord, I regret has been compelled by ill health to resign his office, or we should have heard him vindicate his own despatch—my noble friend, the late secretary for the colonies, followed the opinion of the law officers. Their opinion was that this vessel, not being in fact a vessel-of-war, but being a prize, ought not to have been admitted to the Cape as a vessel-of war. [Hear, hear.] But it then became a question (and a very serious question I admit it to be) whether she ought to have been warned off in the first instance, or whether she should be taken possession of and restored to her owners. The noble and learned lord seemed at first to say that there was no such thing as taking possession of the prize as a belligerent; that when it once became a prize it was out of the power and jurisdiction of the authorities of another country; but he afterwards very properly and justly said that there were certain cases in which the courts have held, and authorities have concurred with them, that vessels can be restored to their owners if they are not properly prizes, and he avoided the contradiction into which he had fallen by saying that in that case they never had been prizes. That, however, does not get over the contradiction of the general dictum which he had laid down, because it is certainly true that there are cases decided by the courts of the United States in which vessels have come in as vessels of war, and, nevertheless, the courts have, after argument, ordered them to be restored to their owners, and they have been so restored. Undoubtedly the ground of their being restored has been that the vessel which took them had been originally fitted out and manned by the United States themselves, and therefore they were bound to restore those vessels and their cargoes to the owners; but whatever the ground may be, it is quite clear that there are cases in which, according to principles which the United States admit, the vessels ought to be restored, and here is a passage from Wheaton on the subject. He says:

“In such cases the judicial tribunals of the neutral state have authority to determine the validity of the capture thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other states at amity with the original owners.” [Hear, hear.]

Therefore there are cases in which a vessel may be considered as a prize unlawfully taken, and it may be restored to the owners. The Duke of Newcastle, at the end of his despatch, said that the real character of the Tuscaloosa ought to have been inquired into; that Captain Semmes should have been called upon to produce her papers; and he concluded:

“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 circumstances 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 the captors, and to retain that vessel under her Majesty’s control and jurisdiction until properly reclaimed by her original owners.”

Now, I must say, as the general tenor of the despatch is founded on the opinion of the law officers of the crown, that the Duke of Newcastle, in this instance, as I would have done in his place, went somewhat beyond that opinion. The law officers said, “It is worthy of serious consideration,” meaning that it was a point evidently deserving of being maturely weighed. The Duke of Newcastle, however, clearly saw that it was a point which he must decide for the time, and that his instructions to the governor must be explicit. I am at the same time ready to admit that this is a question which turns on a nice point of international law, arising under circumstances which are quite new, owing to the fact that the Confederate States have no port to which they can send their prizes. The point, therefore, is open to further consideration, whether the proper treatment of such vessels should not be to warn them off. But to say that the question can be decided in the courts of the captors is, I think, altogether an error. The noble and learned lord went on to say that if this case had occurred to the federals there would have been an angry remonstrance, but that we should finally have apologized. Now, we have, in my opinion, heard enough of this kind of allegation. Does the noble lord think that in the case of the Trent, in which our honor was involved, her Majesty’s government played either a mean or truckling part? It will be seen, I may add, that when only the other day a federal vessel violated the neutrality of British waters in the case of the Chesapeake, the federal government made ample satisfaction for that violation; but these acts of justice on the part of the United States in an swer to the representatives of her Majesty’s government noble lords opposite deem it right to pass over in silence. We Were told early in the session that the case of the Saxon was a dreadful violation of the neutrality of England; that a murder had been committed, and that the offender ought to be tried. That case, however, was brought before the United States courts, and justice has, in the main, been done to the owners of the vessel. Then, with regard to the killing of the mate, the United States government ordered the officer who perpetrated the act to be tried by court-martial, and, in accordance with a rep resentation made to them, consented to have the informations laid before the court amended, so that the noble and learned lord had no good ground for saying that they refused to do an act of justice when their attention was drawn to the subject. It appears to me that in all these cases the right course to pursue is that of perfect neutrality, and that we ought not to show ourselves to be ani mated by a feeling of partiality either on the one side or the other. [Hear, hear.]

Lord Kingsdown said that the question involved in the present discussion was one of the most important that had arisen out of the application of the principles of international law. Sir B. Walker, to whom allusion had been made, had rested his case upon the supposition that a prize remained the property of the original owner until it had been condemned by a court of legal adjudication. That also was the principle on which, so far as he understood, the government and the Duke of Newcastle in his despatch acted, but he confessed it was a great relief to him to find that in writing that despatch the noble duke had gone beyond the opinions of the law officers of the crown, on whose judgment and learning the utmost reliance was to be placed. The question of capture, he might add, as between belligerents, was conclusive when the capture was made. It required no adjudication. The moment one belligerent obtained possession of the goods of another, they were as much his property as if they had been condemned by all the prize courts in Europe. In that view of the subject he was supported by Wheaton, who said: “The obligation of a captor to bring his captures into port for inquiry and adjudication depends on the instructions which he has received from his own government. But this obligation under the law of nations exists only with respect to vessels navigated under the neutral flag, the object being to ascertain whether the property belongs to a neutral or an enemy. Enemies cannot claim a right that their property, upon capture by a belligerent cruiser, should be taken into the port of the belligerent, or his ally, for inquiry and adjudication. Capture alone divests an enemy of his property. Upon the surrender of a vessel under an enemy’s flag on the high seas a belligerent may destroy her under the general law of nations, and if the captor is unable to bring her into port; he will be justified towards his own government in destroying her. [Hear, hear.] Let their lordships observe what had been done in the present case. Her Majesty had forbidden armed vessels, with their prizes, to come into her ports. According to law, if a ship-of-war with her prize entered a British port she could be ordered away, but he was at a loss to understand how our government obtained the right to take possession of the Tuscaloosa. [Hear, hear.] That vessel had violated the proclamation of her Majesty, and might have been sent away, but how could she become confiscated and liable to seizure by our government? Even supposing it could be said that the violation of the laws of neutrality of which she had been guilty entitled the British government to seize her and confiscate her to the crown, their lordships would observe that the conduct pursued by our authorities was based upon an entirely different ground. Their argument was that the Tuscaloosa having come under their control, they were entitled to seize her and restore her to the original owner, forgetting that the original owner was Captain Semmes, she never having been recaptured. [Hear, hear.] It was highly important that there should be no mistake on this point, because the Confederate States could not obtain adjudication in their own ports, to which access was barred by a blockade, recognized by Europe, and under any circumstances the enforcement of the laws of neutrality must operate with very different force upon one belligerent and upon the other. What, then, was the opinion of Lord Stowell upon the want of adjudication? Lord Stowell was reported to have held, when a captor could not bring in his prize, that

“Nothing is left to the belligerent vessel but to destroy the vessel which she has taken, for she cannot consistently with her general duty to her own country, or, indeed, under its express injunctions, permit enemy’s property to sail away unmolested. If it should be impossible to bring her in, her next duty is to destroy enemy’s property.”

It was laid down everywhere in the same way that adjudication had nothing to do with the matter except as between neutrals, and that the moment an enemy’s ship had struck her flag and was taken possession of by an officer of the other belligerent she became the property of her captor, and remained so until she was recaptured. [Hear, hear.] There was no ground for saying, as had been said in the present case, that the Tuscaloosa having innocently come into the power of our government she was liable to seizure, and that the effect was to revest the property in the original owner, because there had been no adjudication. The law was so clear that it could not be misunderstood:

“Every capture of a vessel is complete as between the belligerents when the surrender has taken place, and the spes recuperandi is gone; but as between the original owner of the vessel and a third party in respect of jus postliminii, if the vessel should be recaptured, or as between the captor of the vessel and a third party in respect of the right of the former to dispose of the vessel in favor of the latter by way of sale, positive rules have been introduced, partly from equity to extend the jus postliminii in favor of the original owner, partly from policy to prevent any irregular conversion of property before it has been ascertained to have been lawfully acquired jure belli.”

He did not say that any blame was to be attributed to our officers at the Cape. What he complained of was that they had misapplied a general principle of law, which had no reference to the circumstances of the present case, and, but for the interference of his noble and learned friend, might have involved us in great difficulties. So satisfied was he that the doctrine he had stated was correct, that he had no objection to leave it to the law officers, of the crown themselves to say whether or not there had been a forfeiture of the Tuscaloosa. [Hear, hear.]

The Lord Chancellor. I am always unwilling, in a matter of this kind, to take part in tke debate, because no noble and learned lord who is in, the habit of attending here on appeals can feel certain that some question on which he gives his opinion in the house in his deliberative character may not come before him in his judicial capacity, when he may be considerably embarrassed by his speech. It is in that spirit of caution that I rise now, because my noble and learned friend who has just spoken has expressed opinions which, if they went forth to the World on his authority and in no respect questioned or modified, might be received as doctrines which had commanded the assent of your lordships. I should have been glad if my noble and learned friend had examined the cases which have been cited. Let me beg him to observe the case of the Actæon. [Lord Kingsdown: It was the Endymion I referred to.] Then that is a still stronger case. Sir W. Scott says:

“There was no doubt that the Endymion had a full right to inflict it (that is, the burning of the vessel) if any grave call of public service required it Regularly, a captor is bound by the law of his own country, conforming to the general law of nations, to bring in for adjudication, in order that it may be ascertained whether it be enemy’s property; and that mistakes may not be committed by captors in the eager pursuit of gain, by which injustice may be done to neutral subjects, and national quarrels produced with the foreign states to which they belong.”

Thus, the very case on which my noble and learned friend rested his argument would, if he had examined it, have led him to the conclusion that the old rule by which the object seized became at once the property of the captor has been qualified by the more merciful usage of civilized nations, and that there is an obligation to obtain condemnation; and Sir W. Scott distinctly explains that this law has been established in order to place some control upon captors, that, in the pursuit of gain, they might not be led to commit injustice. The case of the Endymion was this: She was on a cruise in search of the American frigate President, and in the course of her cruise she captured an American merchantman. She was, however, so confined by her instructions to continue cruising that she could not bring her prize into court, but burnt it at sea. Afterwards a claim was brought by the owner of the prize for damages in consequence of its destruction, and Sir W. Scott held that the captor was excused from the obligation of bringing in the prize for adjudication by reason of the express and stringent nature of his instructions, which did not allow him to quit the sea But there is not only that opinion. My noble and learned friend will find that Lord Mansfield, the greatest authority in English law, held the same view. I would also direct his attention to the remarks which Lord Stowell made in the case of the Mad Oyen. (1 Rob., page 135.) It was the case of a ship taken by a French privateer, and carried into a port in Norway, where she underwent a sort of process which terminated in a sentence of condemnation pronounced by the French consul. It was therefore a case of capture by a belligerent. Lord Stowell, in that case, said:

“But another question has arisen in this case upon which a great deal of argument has been employed—namely, whether the sentence of condemnation which was pronounced by the French consul is of such legal authority as to transfer the vessel, supposing the purchase to have been bonâ fide made? * * It has frequently been said that it is the peculiar doctrine of the law of England to require a sentence of condemnation, as necessary to transfer the property of prize; and that, according to the practice of some nations, twenty-four hours, and, according to the practice of others, bringing infra prœsidia, is authority enough to convert the prize. I take that to be not quite correct, for I apprehend that, by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship, if he buys a prize vessel. I believe there is no instance in which a man, having purchased a prize vessel of a belligerent, has thought himself quite secure in making that purchase, merely because the ship has been in the enemy’s possession twenty-four hours, or carried infra prœsidia.”

Without saying that there may not be contradictory passages found in a great variety of writers, I think the passages I have quoted are sufficient to show that property is not, as a rule, transferred by the mere fact of capture, and the reason why the old rule has thus been qualified by the general practice of nations is, as stated by Sir W. Scott, the necessity of putting some limitation on the act of the captor. Nothing in the world can illustrate that so strongly as the case of the Endymion, which has been referred to, where the captor was not held to be justified in destroying his prize, except by reason of the urgency of the service on which he was engaged, because otherwise he would have been held to be under an obligation to bring the ship to a court for adjudication. Hence this question is, in the language of the law officers, worthy of very serious consideration. There may be no instance precisely parallel, but at the same time the law officers were perfectly justified in the opinion they gave that the matter required serious consideration. Serious consideration has been given to it, and the result will be embodied in clear and definite instructions which will be generally circulated throughout all our colonial possessions. The only point in which the despatch in question is open to challenge is that it speaks of the course taken as being deemed the best, instead of saying that the question deserved very serious consideration; but it should be borne in mind that the despatch was written in regard to a past transaction, and that it did not lay down a rule, but merely described the application which had already been made of one. [Hear, hear.]

The Earl of Hardwicke said he had looked into the history of the American war and had found a case bearing on the present question in every respect, with the exception that the captor was not a neutral but a belligerent. It was a case which happened in 1813, when a United States frigate captured a number of whalers, which were immediately afterwards retaken by the English. One of the vessels seized was the Georgina. Captain Porter, thinking the vessel a very good one, armed her with sixteen guns and put a body of men on board. In that state, and never having been condemned in any prize court in the United States, she was recaptured by a British brig, and the case was brought before a British prize court. On the 26th of April, 1814, Sir William Scott gave a decision, condemning the vessel to the captors.

Lord Chelmsford said he understood the noble and learned lord to state that the Duke of Newcastle’s instructions had been modified, and in that case he thought that their lordships were entitled to know the nature of the modifications.

The Lord Chancellor explained that what he had said was that the instructions were under consideration.

The house then adjourned at twenty-five minutes to eight o’clock.

The seizure of the Tuscaloosa.

Upon the motion for going into committee of supply,

Mr. Peacocke rose to call attention to the subject of which he had given notice, and thought when the house was made acquainted with the facts, that they would agree with him that it was a subject worthy of their most serious consideration. It would appear that the confederate vessel-of-war the Alabama, under the command of Captain Semmes, captured, off the coast of Brazil, a federal bark, the Conrad, which he armed and converted into a tender to the Alabama, under the confederate flag. Some weeks afterwards Captain Semmes had occasion to proceed to the vicinity of the Cape, accompanied by the tender, then called the Tuscaloosa, and he informed the authorities at the Cape that his vessel needed some repairs, and that the Tuscaloosa was a tender to his ship, cruising off the coast. When that information reached the authorities at the Cape, there began a correspondence to which he should have to call attention. In the first place, he must observe that a valuable and esteemed friend—no less a person than Sir Baldwin Walker—was the admiral on the station, and it would be a consolation to that gallant officer’s admirers to know that although so distant from this country he still displayed the same amount of party zeal which distinguished him at home. [Hear, hear.] Sir B. Walker immediately wrote to the governor of the Cape to know how the Tuscaloosa was to be treated, and he was informed that in the opinion of the attorney general of the colony that vessel must be regarded as a tender and not as a prize. But Sir B. Walker was not satisfied, and he again asked the governor how the vessel should be treated, and then he was referred to Wheaton, to show that if certain conditions were complied with, she must be treated as a tender and not as a prize. That reply reduced Sir B. Walker to submission, but not to silence, so he wrote home at once to the admiralty a despatch, in which he said:

“I would submit to their lordships’ notice, that the power of a captain of a ship-of-war to constitute every prize he may take a ‘tender’ appears to me to be likely to lead to abuse and evasion of the laws of strict neutrality.”

Under the difficulties which might possibly arise it could hardly be a matter of congratulation that we had a second Commodore Wilkes commanding at that station. These facts were duly reported by Sir Philip Wodehouse to the Duke of Newcastle, who also forwarded the claim which had been made by the United States consul at the Cape. He would read to the house the grounds upon which the claim was made by Mr. Graham:

“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 Semmes as soon as they enter a British port.”

Now, as her Majesty’s government had thought fit to indorse that claim, he would ask whether her Majesty’s government acquiesced in the reasons which were urged in its favor. Meanwhile, Mr. Adams had not been idle. He brought a good deal of pressure to bear upon Lord John Russell, who wrote the following despatch in compliance with his demands:

“I acquainted you, in my letter of the 2d instant, that the matters connected with the proceedings of the confederate steamer Alabama at the Cape of Good Hope, to which your letter on the 29th of September referred, were under the consideration of her Majesty’s government. Those matters were: 1. The capture, by the Alabama, of the United States vessel. Sea Bride, within, as was alleged, the territorial jurisdiction of Great Britain. 2. The character of the Alabama herself. 3. The manner in which the Tuscaloosa, alleged to be a tender of the Alabama, was dealt with by the authorities of the Cape. On these several points I have to state to you—1. That her Majesty’s government are satisfied by the concurrent testimony of the colonial and naval authorities at the Cape, that at the time of the capture the Sea Bride was considerably more than three miles distant from the nearest land. 2. That as regards the character of the Alabama, that vessel is entitled to be treated as a ship-of-war belonging to a belligerent power, and that neither the governor nor any other British authority at the Cape was entitled to exercise any jurisdiction over her. 3. That 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.”

Now, the house would observe that there was at least one pleasing feature in the despatch, because it showed that there was, at all events, one country to which her Majesty’s secretary for foreign affairs could be courteous or even submissive. [Hear, hear.] He could picture to himself the surprise with which the ambassadors of Russia, Austria, Prussia, and even France would have received the despatch, and he would venture to assert that if such a despatch were addressed to any of the smaller powers of Europe, such as Portugal or Greece, the document would be looked upon as a hoax, and the signature as a forgery. [Hear, hear.] These were not mere idle words upon the part of Lord Russell. The promise was fulfilled to the letter, and in consequence of this promise a most extraordinary despatch was sent out from the colonial office to Sir Philip Wodehouse. He believed he was stating an undoubted fact when he asserted that although the despatch was signed by the Duke of Newcastle, it was no more that nobleman’s than it was his own, the colonial office acting merely as an official channel for the transmission of the despatch from the foreign office. He would begin by calling attention to the 7th paragraph:

“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 prœsidia 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.”

He regarded the case cited as being precisely the one in which such an explanation was called for. The despatch went on to say:

“I think it right to observe that the third reason alleged by the attorney general 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 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 any dispute, to the court of her states, in order to satisfy it as to her real character.’ This assumption, however, is not consistent with her Majesty’s undoubted right to determine within her own territory whether her own orders, made in vindication of her own neutrality, have been violated or not.”

The conclusion of the report was as follows:

“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 circumstances, 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 the captors, and to retain that vessel under her Majesty’s control and jurisdiction until properly reclaimed by her original owners.”

Now, he did not believe that there was any learned gentleman in the house who would rise in his place and defend the legality of those instructions. [Loud cries of “Hear, hear,”] Let there he no mistake upon the point. He asked the honorable and learned member for Richmond (the attorney general) if he was prepared to stake his professional reputation in defence of those instructions, for it was a well-known principle of international law that the property of one belligerent when seized by another became the property of the captor. [Hear, hear.] It was, therefore, as much in accordance with the principles of international law to order our governor at the Cape to seize the vessel and hand it over to the Emperor of Russia as to transmit such a despatch as the one he had just read. He believed it to be but fair to state that he thought those instructions were not issued in accordance with the advice of the law officers of the crown, but simply and solely upon the responsibility of her Majesty’s government. He regarded them simply as a weak and illegal concession by Lord Russell to the demands of Mr. Adams. [Hear, hear.] Sir P. Wodehouse replied:

“Your grace intimates that the citation from this authority 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, [loud cries of “Hear, hear,”] or, in the absence of instructions on that head, to see in what direction I am to look for the law bearing on this 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.’ Your grace likewise states, ‘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 prœsidia, 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 a national ship-of-war, I am not called upon to explain.’ I feel myself forced to ask for further advice on this point, on which it is quite possible I may be called upon to take an active part. I have already, in error, apparently, admitted a confederate prize as a ship-of-war. The chief authority on international law to which it is in my power to refer is Wheaton, who apparently draws no distinction between ships-of-war and other ships when found in the position of prizes, and I wish your grace to be aware that within the last few days the commander of a United States ship-of-war observed to me that if it were his good fortune to capture the Alabama he should convert her into a federal cruiser.” [Hear, hear.] “I trust your grace will see how desirable it is that I should be fully informed of the views of her Majesty’s government on these points, and that I shall be favored with a reply to this despatch at your earliest convenience.”

He had only to add that his grace had not considered it desirable to furnish Sir Philip Wodehouse with the information he required, nor to reply to him at his earliest convenience, for no answer had been sent up to the present time, or at all events there was no reply included in the papers before the house. [Hear, hear.] On the return of the Tuscaloosa to the Cape they found their old friend Admiral Sir Baldwin Walker writing—

“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.”

He believed that when the honorable and learned member for Richmond rose to address the house, he would not defend that statement, but observe a discreet silence upon the point. [“Hear, hear,” and a laugh.] The noble lord at the head of the government said that it was not the custom to lay on the table the opinions of the law officers, and that those opinions were confidential, and were intended only for the guidance of the government. He concurred with this statement; but why, then, was not the opinion of the law officers embodied in a despatch, and why was not that despatch communicated to the authorities at the Cape for their information and guidance? [Hear, hear.] Whenever a point of international law arose, a very bad practice had grown up. A minister stated that he had taken the opinion of the law officers, and, as this opinion could not be produced, the jurisdiction of the house was limited, and they were unable to discuss satisfactorily a question of policy. Responsibility was thus shuffled off, if even the paper was ultimately laid on the table. Here the authorities at the Cape were not responsible, for they had acted on a fair interpretation of the opinion forwarded to them. The ministry were hardly responsible, for they had been little more than the official channel for sending the opinion of the law officers to the Cape. And lastly, the law officers could not be regarded as responsible, because they had only made a confidential communication to the ministry. He hoped that the noble lord, who seemed to be aware of the unconstitutional nature of the practice, would put a stop to it as regarded his colleagues. Though they had not got the opinion of the law officers, the house might arrive at some approximate idea of what that opinion was from the answers given to questions which Sir Baldwin Walker, in accordance with instructions, put to the commander of the Tuscaloosa. From this it appeared that the vessel was sailing under the confederate flag; that her commander was Lieutenant Low, late of the Alabama; that she had on board four officers and twenty men; that she had three small brass guns, two rifled 12-pounders, and a smooth-bore; that she was cruising, and had put in to the Cape for repairs and supplies; that she was a federal ship, captured by the Alabama, and commissioned by Captain Semmes, without being condemned by any prize court, and that there was no cargo on board. Now, what was the law of this question? Wheaton said that the jurisdiction of the national courts of the captor to determine the validity of captures made in war under the authority of the government was conclusive of the judicial authority of every other country, with two exceptions only: 1, when the capture was made within the territorial limits of a neutral state; and 2, when it was made by armed vessels fitted out within the neutral territory. Neither of these exceptions applied here. In the case of the Exchange, an American vessel seized by the French, and armed by them, and which afterwards entered under the French flag the port of Philadelphia, where she was attached, Chief Justice Marshall said:

“It seems, then, to the court to be a principle of public law that ships-of-war entering the port of a friendly power open for their reception are to be considered as exempted by the consent of that power from its jurisdiction. * * * * The arguments in favor of this opinion have been drawn from the general inability of the judicial power to enforce its decisions in cases of this description, from the consideration that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign; that the questions to which such wrongs give birth are rather questions of policy than of law; that they are for diplomatic rather than legal discussion.”

In other words, if the English government had wished to raise any question in this case, they should have raised it at Richmond, and not at the Cape. In the case of the Santissima Trinidad, Chief Justice Story said:

“Nor will the courts of a foreign country inquire into the means by which the title to property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them in cases where he has not conceded the jurisdiction, and where it would be inconsistent with his own supremacy. The commission, therefore, of a public ship when duly authenticated, so far at least as foreign courts are concerned, imparts absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted.”

These opinions established the fact that if there was a commission you could not look behind it, and the only question remaining, therefore, was whether Captain Semmes had any right to grant this commission. In the case of the Ceylon, which was an English East Indiaman, captured by some French frigates, supplied with carronades, and a crew of seventy men, and which then cruised under the command of a lieutenant, with a commission from a commodore, Sir W. Scott said:

“I hold it to be necessary that she should have been regularly commissioned; it is enough that she was employed in the public military service of the enemy by those who had competent authority so to employ her.”

Sir W. Scott then quoted the case of the Castor, which ship was not carried into port, and added:

“There was no regular commission, for it is not in the power of the admiral to grant a regular commission; he has only an inchoate authority for such a purpose, and his acts necessarily require confirmation. Yet in that case it was held that the ship, though commissioned by the admiral alone, was sufficiently clothed with the character of a vessel-of-war. * * * We know extremely well that in remote parts of the world where the domestic authority cannot be immediately resorted to, the commanders are of necessity vested with larger powers than are usually intrusted to them when employed on European stations. I think this vessel was sufficiently commissioned by the French commander on the station. This lieutenant de vaisseau and seventy men were put on board by his order in the first instance, subject undoubtedly to the approbation of the French minister of marine; but can I doubt that this appointment would have been confirmed by the constituted authorities at home in the present situation of the French navy?”

Could the government doubt that the commission granted by Captain Semmes would have been duly confirmed by the authorities of Richmond? [Hear, hear.] Another case, that of the Georgiana, was stronger still, and seemed to be exactly on all-fours with the present. The Georgiana was a British whaler, captured by the American frigate Essex. The American captain, without taking his prize into port, or taking out the cargo, supplied her with ten additional guns and sixty men, and employed her, under one of his lieutenants, to cruise against British vessels. The force with which she had been supplied was subsequently reduced, and when she was taken she had only four guns and fifteen men on board. In that case, Sir W. Scott held that she was sufficiently set forth for war, and that a commander of a single vessel had the same authority to grant a commission as a commodore. It seemed to him that, unless the law officers could override this decision by Lord Stowell, it was decisive of the question. It had been commonly our practice to commission vessels captured from an enemy, and this practice was so commonly received that the American captain at the Cape told the authorities there that if he captured the Alabama he would turn her into a federal cruiser. [Hear.] It was a curious fact that the government had taken no notice of these despatches until March 4, and the dates coincided exactly with the time when this subject was taken up by the house. The government, when pressed on the subject, adopted the hasty conclusion of writing to say, “We give up the vessel,” but they took a week to wrangle among themselves as to the reasons which should be assigned for that conclusion. In a despatch of March 10, the Duke of Newcastle stated to Sir P. Wodehouse:

“I have now to explain that this decision was not founded on any general principle respecting the treatment of prizes captured by the cruisers of either belligerent, but on the peculiar circumstances of the case. The Tuscaloosa was allowed to enter the port of Cape Town and to depart, the instructions of the 4th of November not having arrived at the Cape before her departure. The captain of the Alabama was thus entitled to assume that he might equally bring her a second time into the same harbor, and it becomes unnecessary to discuss whether, on her return to the Cape, the Tuscaloosa still retained the character of a prize, or whether she had lost that character, and had assumed that of an armed tender to the Alabama, and whether that new character, if properly established and admitted, would have entitled her to the same privilege of admission which might be accorded to her captor, the Alabama. Her Majesty’s government have, therefore, come to the opinion, founded on the special circumstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the captain of the Alabama, that the ships-of-war of the belligerents are not to be allowed to bring prizes into British ports, and that it rests with her Majesty’s government to decide to what vessels that character belongs.”

That was not any answer to the question of Sir Philip Wodehouse as to how he was to act. The characteristic of the despatch was uncertainty. It was evident the government wished to shift the responsibility off their own shoulders, ready to condemn the governor if he was wrong, and equally ready to take advantage of his conduct if it was such as to suit their purpose. The governor was expected to arrive at the conclusion that the vessel was released because she was a vessel-of-war, but they did not state that. He was to arrive at it by implication. He asked the house whether that was not an unworthy manner of dealing with servants of the crown? [Hear, hear.] The government ought not to involve their agents abroad in legal subtleties which they themselves refused to solve, or in diplomatic difficulties which they refused to explain. [Hear, hear.] Against the instructions of November he pointed his resolution. If they were to be put in force against one power they must be put in force against another. If we put them in force against a strong power we involved the country in war; if we used them only against a weak one, we covered England with indelible shame. [Hear, hear.] Viewing those instructions as a standing danger to the country, he asked the house to adopt the resolution which he now begged leave to move, “That the instructions contained in the despatch of the Duke of Newcastle to Sir P. Wodehouse, dated the 4th day of November, 1863, and which remain still unrevoked, are at variance with the principles of international law.”

The Solicitor General said the honorable member who had moved the resolution did not ask the opinion of the house on a question of policy, but asked their judgment on a pure question of international law. He did not specify any objection he had to the despatch of the Duke of Newcastle, but left his objection to be gathered from the tenor of his speech. In replying to the honorable member, he was far from denying the perfect right of the house to entertain questions of international law; but if the house were to entertain them they should approach them in a judicial character, for questions of international law were not questions of a party character. [Hear, hear.] And it appeared to him that the house ought to well consider before by any resolution they affirmed or denied any principle of international law. We were neutrals now, and took a neutral’s view of those questions; but the day might not be far distant when we might be belligerents, and when any decision at which the house arrived at this moment might be used against England. [Hear, hear.] They might, in fact, be forging a weapon to be used against themselves. The first question to be considered in this case was, whether the vessel when she came into Simon’s bay was a naval prize, or had lost the character of a prize, and assumed the new character of a vessel-of-war?

There was no doubt of this—that if she had been a prize she had not the less been brought into any of the ports of the United States to be adjudicated upon; but had she been converted from a prize into a vessel-of-war? Now, international, like all other law, knew how to distinguish between realities and shams. If in one of the courts it appeared that a trader had passed his property by a bill of sale to a friend, even though all the formalities had been adopted, the court would inquire as to whether the transaction was real or was merely a pretence—whether the trader really meant to convey his property, or merely intended to deceive his creditors. There was nothing in international law which required them to bandage their eyes; and he thought that, when they looked at the evidence in this case, they could see beyond doubt that the supposed conversion of this prize into a man-of-war was a mere pretence. When a federal or a confederate brought a vessel into one of our ports, and said, “This is a vessel of war,” was there to be no inquiry? If go, any vessel might be brought into one of our ports in defiance of the Queen’s order. The honorable gentleman had referred to Sir B. Walker, and certainly he must here express his surprise that the honorable gentleman had thought it worthy of him to attack that gallant and distinguished officer. [Hear, hear.] His case could not be very strong if it required to be supported by such unfounded and ungenerous attacks. What difference on earth could it make personally to Sir B. Walker whether this was a vessel-of-war or not? But certainly if there was any man who could tell the difference between a merchantman and a vessel-of-war, it was Sir B. Walker. [Hear, hear.] Captain Semmes, before he came into Simon’s bay, had ordered the Tuscaloosa to meet him there. He saw the governor, and the communication he bad made to the governor was that he had fitted and equipped the Tuscaloosa as a tender, and that she was then a vessel in the confederate navy. Not a single word was said then as to any real or supposed commission. The colonial attorney general was then consulted, and his opinion was that upon that statement it was not necessary to prevent the Tuscaloosa coming into port. It was unnecessary to determine whether the attorney general was right or wrong in his opinion, and it never had been the intention either of the law officers of the crown or of the government to impute the slightest blame to the colonial attorney general [Hear, hear.] In his last despatch the Duke of Newcastle expressly disclaimed casting any imputation upon him. The government differed from his second, if not from his first opinion, but it would be highly improper if they had attempted to blame him for the conclusion at which he had arrived on a difficult question, which might well be argued for seven days, as in a late well-known case, before four learned judges, who in the end might be divided in opinion. [Hear, hear.] Sir B. Walker’s opinion on the state of things would be found at page 3 of the papers. He said:

“The vessel in question, now called the Tuscaloosa, arrived here this evening, and the boarding officer from my flag-ship obtained the following information: That she is a bark of 500 tons, with two small rifled 12-pounder guns and ten men, and was captured by the Alabama, on the 21st of June last, off the coast of Brazil; cargo of wool still on board.”

[Hear, hear.] These guns, it appeared, were guns which had been taken from another prize; they were no portion of the Alabama’s armament. [Hear, hear] Sir B. Walker then went on to say:

“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 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 put on board her (in fact nothing hut 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 defence. 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 transhipment 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.”

Following up this suggestion, he would read to the house the letter of the American consul to the governor. This gentleman said:

“The Tuscaloosa remained in Simon’s bay seven days, with her original cargo of skins and wool on board. This cargo, I am informed by those who claim to know, has been purchased by merchants in Cape Town; and if it should be landed here directly from the prize, or be transferred to other vessels at some secluded harbor on the coast beyond this colony, and brought from thence here, the infringement of neutrality will be so palpable and flagrant that her Majesty’s government will probably satisfy the claims of the owners gracefully and at once, and thus remove all cause of complaint. In so doing it will have to disavow and repudiate the acts of its executive agents here—a result I have done all in my power to prevent.”

If the house would bring to its recollection the case of the Saxon, which was brought under its notice a short time back, it would see that the information of the American consul was very good. [Hear, hear.] The cargo of the Tuscaloosa actually was deposited at a place just outside the limits of the colony, called Angra Pequena, and the Saxon was sent from Cape Town to fetch it. No man could doubt for a moment that the arrangement was made while the Tuscaloosa was at Simon’s bay, and the object of this disguise, this sham, this imposture, was to make that arrangement. [Hear, hear.] That was the real transaction. The government were of opinion that, under the circumstances, the vessel did not lose her character as a prize, and that she had not obtained the character of a vessel-of-war. They were also of opinion that the passage from Wheaton which the colonial attorney general had fired at the admiral did not apply. That passage referred entirely to the construction of the words of a municipal statute which this country and the United States, in pretty nearly the same words, were in the habit of passing at the breaking out of a war, for the simple object of regulating the distribution of prize money. It was to the effect that if a merchant vessel were captured by the enemy, and if subsequently she were recaptured by one of our own vessels, then, if she had been “set forth as a vessel-of-war,” her proceeds would go to her captors; but if she remained a merchant vessel, then she would revert to her original owners, paying salvage. That was the sole object of the statute, and it had no reference whatever to international law. [Hear, hear.] The house would see, therefore, that the question which arose in this case could not possibly arise under that statute, because the enemy could have no object in colorably and ostensibly setting forth a vessel as a vessel-of-war; since it was no matter to him, if she were recaptured, to whom her proceeds would go. No doubt it was easy for any one reading only the passage by itself, without referring to the authorities, to be misled by it. This was what Wheaton said:

“Thus it has been settled, that where a ship was originally armed for the slave trade, and after capture an additional number of men were put on board, but there was no commission of war and no additional arming, it was not a setting forth as a vessel-of-war under the act. But a commission of war is decisive if there be guns on board, and where the vessel, after the capture, has been fitted out as a privateer it is conclusive against her, although, when recaptured, she is navigating as a mere merchant ship.”

He had taken the trouble to ascertain on what authority that was rested, and he found it to be the case of the Ceylon, in the 1st volume of Dodson’s Reports. Here were the words of Lord Stowell’s judgment:

“She had on board 26 guns, 110 men, with arms and ammunition of every description in sufficient quantities for offensive and defensive operations. * * She sustained an engagement with British ships, and assisted in the destruction of the Sirius and Magicienne, and in the capture of two English frigates. Here, then, was an operation, not merely defensive, but an actual offensive attack, terminating in the destruction of the British blockading squadron. I cannot doubt that under these circumstances the ship was sufficiently ‘set out for war.’”

He ventured to think that if Lord Stowell had had the case of the Tuscaloosa before him, and had had to determine the question whether she was set forth as a ship-of-war, he would, unquestionably, have said that she was not sufficiently set out for war. She was not armed; she had only ten men, hardly enough for navigating her, to say nothing of fighting; and she had her cargo on board, which made her almost unavailable for fighting purposes. She had not been employed for any hostile operations; and, further, Admiral Walker said that in his judgment she was not capable of attack or defence. His words were, “except of very slight defence.” Now, if all the cases cited did apply— if the statute did apply—he ventured to say there was no case of setting out for war that would not exclude the Tuscaloosa. It therefore appeared to him perfectly clear that Admiral Walker was right in his view of that vessel not having lost her character of prize, and that unquestionably she ought not to be admitted as a man-of-war. This led him to the despatch that had been objected to by the honorable gentleman. The motion of the honorable gentleman would appear to intimate that every proposition of international law contained in that despatch was wrong, although he understood him to limit that by his speech. After referring to the Sea Bride the despatch said:

“With respect to the Alabama herself, it is clear that neither you, nor any other authority at the Cape, could exercise any jurisdiction over her, and that, whatever may have been her previous history, you were bound to treat her as a ship-of-war belonging to a belligerent power.”

He apprehended that honorable gentlemen opposite would admit that that was right. Then came this passage:

“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 beeause 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.”

The honorable gentleman had imported into the case the state in which the vessel was when she returned at another time, but the real question was as to her state at the time when she first entered Simon’s bay. [Hear, hear.] His grace’s despatch went on to say:

“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 prœsidia 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.”

That was perfectly correct, for the question there was a question of fact, whether she was actually turned into a public vessel-of-war. It was clear that she was not, and therefore the question did not arise of what would have been done if she had been. The Duke of Newcastle very properly eliminated points of difficulty which it was thus unnecessary to consider. The despatch continued:

“Connected with this subject is the question as to the cargoes of captured vessels which is alluded to at the end of your despatch. On this point I have to instruct you that her Majesty’s orders 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 eaptured 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. I think it right to observe that the third reason alleged by the attorney general 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 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 any dispute, to the court of her States, in order to satisfy it as to her real character.’ This assumption, however, is not consistent with her Majesty’s undoubted right to determine, within her own territory, whether her own orders, made in vindication of her own neutrality, have been violated or not.”

He apprehended that the assertion of that proposition was necessary to the maintenance of any independent sovereignty. [Hear, hear.] Was it to be contended that when her Majesty issued an order directing that prizes should not be brought into her ports, if a federal or a confederate brought in a prize and said, “Oh! this is a vessel-of-war,” her Majesty was not to determine the question? It was an admitted fact that the vessel had not been condemned or taken before any court of competent jurisdiction by the captor. The honorable member had referred to the case of the Santissima Trinidad; but if he had examined it he would have found that it affirmed, beyond all question, the doctrine for which he was now contending; because in that case the United States took upon themselves to determine whether a prize brought into their ports should or should not be restored to the original owners. They determined that question in their own courts. Ordinarily, the determination of the question of prize or no prize was for the court of the captor; but the United States, where the prize was brought into their ports in violation of their neutrality, claimed to determine, and did determine, that question. Therefore the case cited by the honorable gentleman was entirely fatal to his argument. He now came to the latter part of the despatch, which was in these terms:

“The question remains what course ought to have been taken by the authorities of the Cape—1. 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 circumstances, 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 the captors, and to retain that vessel cinder her Majesty’s control and jurisdiction until properly reclaimed by her original owners.” [Hear, hear.] On that subject he would deal quite frankly with the house. He would admit, on the part of her Majesty’s government, that, upon reconsideration, [hear, hear,] he thought these instructions were not as full and explicit as they ought to have been—that was to say, as they should and would have been if meant to be used as a guide for colonial governors throughout the empire. But he would be allowed to observe that that despatch was not in the nature of a circular or order issued to the governors of colonies throughout the empire. It was merely a comment of the Duke of Newcastle on that particular transaction after it had passed, and when he had no reason to suppose that the Tuscaloosa would return. If it had occurred to his grace as probable that she would return—and he would hardly be blamed for not foreseeing what, after all, was a remote possibility—the despatch would have contained some further instructions, such instructions as were subsequently given, to the effect that inasmuch as the Tuscaloosa was, rightly or wrongly, treated as a vessel-of-war after she came into their ports, and after her real character was ascertained, she should have been warned. If it had occurred to the Duke of Newcastle, provision might have been made in the despatch for possible circumstances, and, undoubtedly, some fuller instructions would have been advisable to the effect that before a vessel-of-war was allowed to bring in a prize she should have been warned. He might inform the house that this subject had received the serious consideration of the government, and instructions were about to be sent by way of a circular to the colonial governors of this country. These instructions were, in fact, drawn up, though they had not yet been sent off. Ample and detailed instructions would be given, which would hereafter prevent any difficulty to colonial governors and law officers. He was at liberty to say that those instructions would in a very short time be laid on the table. The house would, therefore, see that this was an isolated case, and not likely to be drawn into a precedent. [Hear, hear.] But, having said thus much, he now proceeded to the question raised by the honorable gentleman, whether this despatch asserted doctrines at variance with the principles of international law. He contended that it did not. He had frankly admitted that more full instructions were desirable, and would be sent, but that the despatch enunciated any false principle of international law he entirely denied. What was the principle of international law on this subject? He apprehended that the governing principle of international law applicable to such cases as this was that the territory of a neutral was inviolate—a neutral had the right to possess its territory entirely free from all hostile operations, direct or indirect, and, if it pleased, from the presence of either belligerent. A neutral had a right to keep them off, procul este profani. Her Majesty had not gone that length; but she had strictly prohibited armed vessels bringing their prizes within her ports. [Hear.] The hypothesis was this—a prize was brought in in violation of her orders and of her neutrality; and he said if a prize was brought in in defiance of the Queen’s orders the captain was guilty at once of a violation of international law and of the Queen’s neutrality. Under these circumstances it was for the Queen to determine in what manner she should think fit to vindicate her neutrality; and if she chose to vindicate her neutrality by detaining the prize, in order that the claimant might have the opportunity which the United States consul desired of instituting proceedings, or to make any other inquiry he thought fit in the case, she had a right to do so, and the captain of the offending vessel, being the wrong-doer, had no locus standi to object to the vindication by the Queen of that neutrality he had violated. That was the principle of international law applicable to this case. The Queen had a perfect right to restore the vessel to her original owner. There was abundant authority for that doctrine. He repeated it: The principle was that neutrality had been violated, and it was for the neutral whose neutrality was violated to determine the manner in which that neutrality should be vindicated. Suppose a vessel captured within neutral waters, in our waters, and had been subsequently brought back as a prize, had the Queen, ay or no, the power of restoring it to her original owner? The right honorable gentleman who was about to follow him must deal with that question. All authority was in favor of the right. Wheaton, which had been so much referred to, had this passage:

“Where the capture of enemy’s property is made within neutral territory, or by armaments unlawfully fitted out within the same, it is the right as well as the duty of the neutral state, when the property thus taken comes into its possession, to restore it to the original owners.”

What was the principle on which a vessel taken in neutral waters was restored? The principle was that their neutrality had been violated. The United States had acted on that principle for upwards of seventy years. The same principle applied to cases of the restoration of prizes made by armaments unlawfully fitted out within the territories of neutrals. That had been done again and again. Why? Because their neutrality had been violated. It was true that there had been no case decided in the United States in precisely the same circumstances; and why? Because the circumstances had never existed. The United States had not issued, like her Majesty, orders prohibiting prizes coming in, and therefore a breach of that species of neutrality had not occurred; but there could be no doubt, if it had occurred, the United States would have acted accordingly. This principle and practice were entirely applicable to this case, which was, no doubt, novel in its circumstances; the principle, however, was identical. He therefore called on the house most emphatically not to approve the resolution of the honorable gentleman, which went the full length of declaring that Wheaton was wrong, and the whole course of the United States for seventy years, of which we had enjoyed the benefit, had also been wrong. If these authorities were to be upset, it should be not by one night’s discussion in that house, but by the judicial decision of a competent court of law. [Hear, hear.] He ventured to point out to the house the great danger of adopting such a resolution as that of the honorable gentleman. Such a course might be very inconvenient to this country, as he would show. We believed that our maritime strength was such that with whatever power we might happen to be at war we should always be able to blockade his ports to prevent the issue of vessels-of-war and the entrance of prizes taken from us. But suppose that the enemy resorted to American ports, and fitted out Alabamas from them, and took their prizes into the American parts? What should we do? We should claim that those prizes be restored to us. But how could we do that if this resolution were passed? [Hear.] We should be met with the reply, “You have passed a resolution which, in fact, avers that, however much and in whatever manner the neutrality of a state has been violated, the state has no jurisdiction to restore prizes.” In that way we might find this resolution very inconvenient to ourselves. [Hear, hear.] Upon those grounds, and thanking the house for the patience with which they had listened to him upon what was chiefly a technical subject, [hear, hear,] he trusted that the house would not affirm a resolution which was not necessary, which could not be useful, which could have no practical effect, and which might hereafter be attended with serious inconvenience to ourselves. [Hear.]

Mr. Whiteside. The honorable and learned gentleman said, at the outset of his able speech, that there was no question of policy involved in this discussion. I beg leave to deny that proposition. There is the policy which led to instructions so legal and so perfect that we are told they are about to be immediately modified or repealed. I say there are questions of policy and of law. I agree with the honorable and learned gentleman that these questions should be discussed in a manner commensurate with their importance. When I first read these papers I asked myself how it happened that such extraordinary despatches should have emanated from any department of the government. I answered myself by saying, “The authorities ruling at the Foreign Office at that moment thought the war was going against the south, [‘Oh! and ‘Hear’,] and that it was extremely likely the north would be successful.” I called to mind the speech at Blairgowrie; and, although I remembered the more statesmanlike speech of the chancellor of the exchequer at Newcastle, yet I saw that one was later in date than the other. [Hear, hear.] I accept the declaration of the solicitor general that we ought to have strict neutrality. But we complain that the law of neutrality has been shamefully violated in this matter, [hear, hear,] that the transaction is indefensible, and I am satisfied that the honorable and learned gentleman, together with his able colleague the attorney general, has advised the crown that it is indefensible, and they have corrected the very instructions which the solicitor general employed a good portion of his speech to prove were so perfect as not to need correction. The facts of the case are very simple, but I heard with surprise the honorable and learned gentleman talk of “shams” as well as realities. There are no “shams” in the case of the Tuscaloosa. That vessel was originally called the Conrad, under which name she had been a merchant vessel. It is important to bear in mind the real facts when we find able lawyers raising questions which do not arise— supposing facts which do not exist, [hear, and laughter,] upon which they construct a visionary argument and call upon the house to decide, not upon the facts before us, but upon some matters imagined by the learned gentleman who addresses us. [Hear, hear.] It seems to me that now it is the admirals who decide the law and the lawyers who decide upon naval tactics; [laughter;] because, as the case stands, Admiral Walker has overruled the attorney general, and I understand the law officers at home have sent oat instructions to the naval captains telling them how they are to behave. [Hear.] I will not say anything about the Duke of Newcastle in relation to this despatch, because I agree with my honorable friend that there are traces of another hand being engaged upon it—a hand with which we are painfully well acquainted.

Now, it is agreed that the Tuscaloosa formerly belonged to the federal States. Well, we are agreed upon that; and why, then, should there be any inquiry needed? [Hear, hear.] The vessel was captured off the coast of Brazil on the 21st of June, with a cargo of wool on board. I ask my honorable and learned friend and the house what was on that day the law arising out of those facts. When the ship of one belligerent strikes its flag to a ship of the other belligerent does not the ship which yields belong to the captor; or can it by any ingenious argument be made to belong to somebody else? The captor may burn or destroy the vessel, or not, according as the interests of his country might suggest. That has been done, and Lord Stowell says the captor has a right to do so when he is so instructed. It is really ridiculous to argue, then, as though there were any nation which had more frequently asserted that right than ourselves. [Hear, hear.] Surely you are not going to apply a different law to the Confederate States from what our own admirals act upon, and then plume yourselves upon your strict neutrality and your strong sense of justice! [Hear, hear.] I say that the ownership of the property was changed by the fact of the capture. I deny that any judgment or adjudication was necessary. If a man on board a captured ship disputes the right of the captor, his answer would be, “Do not make a noise, or I will shoot you.” The object, the horrible object of war is to cripple the commerce and to damage the power of the country with which you are at war, and not to indulge in the interchange of polite compliments. [A laugh.] No one can doubt that a nation which is now commencing her fourth campaign for the vindication of her independence is entitled to all the rights of a belligerent, and having by the exercise of such rights captured the Conrad on the 21st of June the property in that vessel passed at once to Captain Semmes without any necessity for adjudication or condemnation. The captain of the Alabama then put on board two guns and ten men, under a lieutenant, and changed her name. The next question is whether the officer in command of the Alabama was lawfully commissioned by the Confederate States. That has been clearly admitted by the Duke of Newcastle, who says that his authority as commander of a vessel belonging to a belligerent power was not open to dispute. The next question is, had Captain Semmes power to grant a commission to the person he placed in command of the Tuscaloosa? Is that denied by the law officers of the crown? The words of Lord Stowell in a similar case were that it was only necessary to see that the officer put in command had even the semblance of authority, and we ought not to inquire at length into the nature of the commission. [Hear, hear.] We will see how that matter stands when we come to the statement of Sir B. Walker, as we find that all he says is to be adopted, and everything said by everybody else at the Cape is to be rejected. Our practice is that a commission granted by the admiral or captain abroad is subject to the approval of the admiralty at home; but Lord Stowell decided that the commander of a single ship might grant a commission, and thus the commander of the Alabama would have full authority to do so. I say that you can’t go behind the commission according to the decisions of our own courts, nor can you inquire whether the ship is something different from what she appears to be. [Hear, hear.] I say the effect of the commission in this case was to change the character of the captured ship and to make her a vessel of war, employed by a lawfully appointed commander in the confederate navy. We find that the Alabama and the Tuscaloosa remained some time in company. The talk about the wool is a mere device of no value [hear, hear]—of no more value than it would have been if the whaler captured by the Americans during the last war had had a cargo of whales on board. [Laughter.] It was decided by Sir W. Scott that the fact of the American officer having put some guns on board the whaler had changed it into a ship-of-war, and it became the prize of the officer who took it. The Alabama and the Tuscaloosa continued in company until the 7th of August; and it is, as the solicitor general said, quite true that the Cape of Good Hope is a neutral port; but, then, this vessel must be regarded either as a prize or as a ship-of-war; and if it was a prize the conduct of the framers of these instructions is indefensible, while if it was a ship the course which they took is quite inexcusable. [Hear, hear, and a laugh.] Now, I admit that there was a proclamation of the Queen that forbids the captor to bring a prize into the Cape, but there remains the question, what was to be done in the present instance? The course which was taken, notwithstanding what has fallen from the solicitor general, will, I would venture to say, never again be repeated. [Hear.] Be that, however, as it may, the proclamation was very important. It was perfectly well known to the commander of the Alabama, who is described by Sir B. Walker—who vanished at a particular crisis from this country to appear in a superior position at the Cape—as a gracious and gentlemanly person. This officer, it seems, applied for leave to procure some fresh water and provisions, and announced that he had outside what he called his tender—the Tuscaloosa. Now, that was, in my opinion, a very proper thing to do; and here I may observe that it is somewhat remarkable that if an official or a clerk at a distant station acts illegally, rashly, or unscrupulously, he is sure to be defended by the noble viscount at the head of the government, while if he acts with ability and discretion he is certain to be thrown overboard. [Hear, hear, and a laugh.] We all remember the declaration of the present lord chancellor about the judgment and discretion displayed in the well-known case of the Lorcha, but, passing by that point, it would seem that Admiral Walker undertook to decide the law in this matter, and, although I have the greatest respect for seafaring men, yet I deny that their authority is in such cases so satisfactory as that of the attorney general. Now, there is an attorney general at the Cape—Mr. Porter—than whom, if he be the man I knew in former times, you could have no better educated person. [An honorable member.—“Mr. Stevenson is the acting attorney general.”] Well, that did not matter; the attorney general gave his opinion, but the government set it aside. The captain of the Alabama, I may add, said he knew well the neutrality prescribed by the proclamation of the Queen, and during the whole time that he remained at the Cape there was not a particle of evidence to show that he sought to sell the Tuscaloosa or the wool. [Hear, hear.] He remained there in accordance with the law of neutrality; he got his provisions. Admiral Walker was overruled and the vessel left in about seven days. I beg now to call the attention of the house to what was said by another able lawyer, the consul of the United States. He applied to the governor to seize the vessel. “I cannot,” said the governor. “I tell you what we will do,” answered the consul; “the moment we take the Alabama we will do everything this captain has done with the Tuscaloosa; we will turn it into a ship to be used against the confederates.” “Quite fair,” added the governor, “I. cannot prevent you from doing so any more than I can prevent this gentleman from turning this into a tender to the Alabama, and putting a lieutenant on board.” “But,” replied the consul, “if you do not see the vessel, you ought at once to order her to depart from this port.” Now, the consul suggested the right course to adopt if there had been a violation of the law and the proclamation of neutrality, and I do not at all complain of Sir B. Walker for having laid his doubts before the governor; and it will, I think, be time enough for the solicitor general when every ship taken is converted into a tender to lay down the law with as much solemnity as he has done to-night. No candid man can, in my opinion, underrate the fact that the lieutenant on board the ship had a legal commission at the outset; and what happened next? The proceedings at the Cape were, as far as I can see, creditable to the officials there, and an account of the transaction, together with the opinion of Sir B. Walker, is sent to the government in this country; and here I may observe, that we had in the North American correspondence a despatch which gives us a key to the course pursued by Earl Russell. Mr. Adams, having had the case laid before him by the American consul, pressed the noble earl to do something in reference to this ship. The despatch of the 29th of October shows pretty clearly what led to the issuing of the. instructions of the 4th of November. On the 17th of September there is a despatch from Sir B. Walker, who had misgivings about the ship. This document was in your possession early in October, and it proves that the commander had made explanations to the gallant admiral in reference to what had been done. On the 17th of September Sir Baldwin Walker writes:

“Captain Semmes frankly explained that the prize Sea Bride, in the first place, had put into Saldanha bay through stress of weather, and on being joined there by the Tuscaloosa, both vessels proceeded to Angra Pequena, on the west coast of Africa, where he subsequently joined them in the Alabama, and there sold the Sea Bride and her cargo to an English subject who resides at Cape Town. The Tuscaloosa had landed some wool at Angra Pequena and received ballast but, he states, is still in commission as a tender. I have no reason to doubt Captain Semmes’s explanation; he seems to be fully alive to the instructions of her Majesty’s government, and appears to be most anxious not to commit any breach of neutrality.”

[Hear, hear.] Thus the matter stands; the goods were not sold at the Cape, but were disposed of long afterwards in Africa; Captain Semmes returned to the Cape in September, and gave an explanation of everything connected with the Tuscaloosa to Sir Baldwin Walker, who wrote home that he was entirely satisfied with that explanation, part of which was that the Tuscaloosa was still in commission as a tender to a confederate ship-of-war. [Hear, hear.] It was with these facts before him, and advised by the consummate lawyers whom I see opposite, or rather, I suspect, not advised by them, that somebody at home sat down and contrived the despatch to which I must now call attention. The solicitor general asks what complaints we have to make. I complain of almost everything in it, whether as matter of fact or of law. [A laugh.] After Sir Baldwin Walker had written home, stating that he was satisfied with the explanation of Captain Semmes respecting the Tuscaloosa, the following despatch was sent ou from Downing street:

“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.”

Let me here remark that the question whether she was or was not that thing had been investigated at the Cape. The despatch of the governor is explicit on the matter; the decision of the law officers is clear; the opinion of Sir Baldwin Walker is conclusive; yet with all those things before him the colonial secretary disputes a fact that had been inquired into in the only place where it could be investigated. [Hear, hear.] He then proceeds to lay down this most extraordinary doctrine:

“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 prœsidia or condemned by a court of prize, the character of a 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.”

Not called upon to explain? The colonial office might as well be shut up at once. [A laugh.] It was its business to explain. The distracted governor at the Cape says, “Tell me what to do.” “No,” replies the colonial secretary, “I scorn to enlighten you; I will leave you in your difficulties, but, at the same time, I will reverse your decision;” and the ground alleged is that most exquisite one by the solicitor general, “We don’t believe any such case will occur again.” [A laugh.] They never wish to hear the name of the Tuscaloosa again, and while they invent a doctrine theoretically it is not to be put in force practically. Surely, says the solicitor general, the Duke of Newcastle could not suppose that the Tuscaloosa would return. Alas for the duke, she did come back, for at the end of five months the same ship upon which an inquiry had been held, and the explanation respecting which given by Captain Semmes had been considered satisfactory, sailed one fine morning into the Cape “Oh!” cried Sir Baldwin Walker, “here she is again. Don’t breathe a word to the attorney general, but seize the ship.” [A laugh.] The governor says there is no ground for seizing her; she has no wool on board. “We are to seize her,” replies Sir Baldwin Walker, “in accordance with the general principles of international law, which don’t apply to the case; we are to suppose she was in neutral waters when she was not so; we are to suppose she had English property on board when she had no English property on board; we are to suppose she was recaptured when she was not recaptured; we are to suppose everything we can’t suppose, and, after exhausting our imaginations by inventing impossible cases, we are to obey the duke.” [Cheers and laughter.] During her absence the Tuscaloosa had been cruising in the service of a belligerent power, under the confederate flag, with a commission from a lawfully constituted officer, and she was seized because five months before she had wool on board, which she did not sell. [Hear, hear.] “It is not possible,” cried her astonished commander, “that you have seized my ship. Why have you done so?” They were very delicate about giving him the information he sought for, but eventually they told him they had been directed to act as they had done against their own judgments, and I must do our authorities at the Cape the justice to say that it was impossible to understand their instructions. [A laugh.] The officer in command of the Tuscaloosa, when his vessel was seized, sat down and wrote words which, I think, no Englishman can read without a blush. I felt ashamed when I read them. He says:

“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, 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 eonveyed 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 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. Bat 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.”

[Cheers.] That is the statement of Lieutenant Low. Is it not strictly true? [Cheers.] Was he not first misled and then entrapped? [Renewed cheering] All the answer the governor at the Cape could make was, that he could not help it. I have referred to the despatch of the 4th November from Downing street, and to the ingenious argument which the solicitor general founded upon it. He asks what would be the case of a vessel taken in neutral waters. Why, the law applicable to a clear violation of neutrality would be enforced; but the present case is one wholly different. The Tuscaloosa could not lawfully be seized either as a ship-of-war or as a prize. It is admitted on all sides that, if a ship-of-war, she could not be touched, while, if a prize, she could be sent away for violating the royal proclamation. Our authorities could have warned her off, but they had no authority to pursue any other course, and all the ingenuity of the solicitor general has been employed simply to conjure up some fanciful case, which has nothing to do with the subject of our present discussion. [Hear.] How were they to find the owner, and how was a question of the kind to be properly investigated? The invariable course adopted was, therefore, to warn such a vessel not to enter a port, or, if it had already entered, to order it to quit. The latter part of the despatch of the 4th of November, which his honorable and learned friend had read in a gentle tone, and had said required amplifying and explaining—which was perfectly true— [a laugh,] and adding to—which was not only correct, but would be done—said, “You are to keep the Tuscaloosa, if she comes in again, until properly reclaimed by her owners.” Such an instruction was indefensible, and the plea that it applied only to a particular ship and to a particular harbor could not possibly be upheld in fair argument. To make the thing more completely ridiculous, the advice of the law officers of the crown was taken, and another despatch was written, instructing the governor to give back the vessel, which, according to the opinion of the solicitor general, had been rightly seized. Whether they admitted his honorable and learned friend’s argument or not, they could not but confess that the conduct pursued was highly inconsistent. The whole thing proved that the course adopted was a wrong one, and that the statement of the captain, when he said he had been deceived and entrapped, was perfectly correct. The case was not at all improved from the manner in which this restoration was effected. It was not pretended that the restoration was made because any unwise or unsound principle had been laid down, but simply because of certain facts which had occurred in connexion with this particular vessel. He denied that the ship could be termed a prize under any circumstances, acting as she had done, in the belief of Sir Baldwin Walker and every one at the Cape, for six or seven months as a tender to a man-of-war under a lawful commission. The house ought to take care that for the iuture the principles of international law should not be violated, and that neutrality should be exercised to all nations impartially, consistently, and justly. The right honorable gentleman was loudly cheered on resuming his seat.

Mr. J. Powell was of opinion that the right honorable gentleman who had just sat down had supplied by the exuberant fallacy of his arguments the barrenness of his answer [hear, hear] to the facts and solid arguments brought forward by his honorable and learned friend the solicitor general. He presumed that those who had listened attentively to the speech of the right honorable gentleman would regard as the most powerful that portion which exposed what the government had acknowledged to be a mistake, namely, the seizure of the Tuscaloosa on her return. He would ask the right honorable gentleman what authority there was beyond his own statement for the assertion that the Tuscaloosa, when she first entered Simon’s bay, had on board any commission whatever? Captain Semmes, who must have known whether such was the case, had not said a single word about it. As far as the facts were known to the house and to the country they all went to show that she was only colorably a tender, and that she was acting without any eommisson. When she came into Simon’s bay she had her cargo on board, only two small swivel guns and ten men. He did not profess to know much about naval matters, but he believed that there were few vessels which now traversed the ocean without having a few such arms on board. [Hear, hear.] Every fact, therefore, which had come to their knowledge proved that the Tuscaloosa was what she originally had been, a merchantman and a prize. [Hear, hear.] He ventured to think that if any mistake had been made in the first instance, it was to be attributed to the attorney general, and not to the governor, or any one else. Sir Baldwin Walker said:

“On the 8th of August, the tender Tuscaloosa, a sailing bark, arrived in Simon’s bay, and the boarding officer having reported to me that her original cargo of wool was still on board, I felt that there were grounds for doubting her real character, and again called the governor’s attention to this circumstance. My letter and his reply are annexed. And I would here beg to submit to their lordships’ notice that this power of a captain of a ship-of-war to constitute every prize he may take a ‘tender,’ appears to me to be likely to lead to abuse and evasion of the laws of strict neutrality, by being used as a means for bringing prizes into neutral ports for disposal of their cargoes, and secret arrangements— which arrangements, it must be seen, could afterwards be easily carried out at isolated places.”

He maintained that the view taken by Sir Baldwin Walker was a very sensible one. The attorney general, however, naturally enough, had recourse to Wheaton, and interpreted his rules according to the letter instead of the spirit. Having received his decision, Sir Baldwin Walker and the governor of course had no other course left them but to seise the vessel. The right honorable gentleman opposite had challenged both the facts and the law in the Duke of Newcastle’s despatch, but he maintained that the facts were correct and the law sound. [Hear, hear.] This was a case, it should be remembered, where, if there was no authority for the law laid down, it was equally impossible to cite any authority against it; and, in his opinion, it would be better for the house, instead of attempting to decide a question with which it was really incompetent to grapple, to wait until it had been disposed of by a proper tribunal. He begged the house to observe that the despatch did not assert any general principles of law, but was limited to the specific case under consideration.

“With regard,” wrote the duke, “to 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.”

The Duke of Newcastle assumed the facts to be as he stated them, and was justified in doing so from the information he had received. No one could doubt for a moment that if the vessel was armed, not bona fide, but merely for the purpose of evasion, she did not thereby lose the character of a prize. Then the Duke of Newcastle went on to say:

“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 circumstances 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 the captors, and to retain that vessel under her Majesty’s control and jurisdiction, until properly reclaimed by her original owners.”

He would not enter into the very nice question as to whether a correct interpretation of international law was given in the concluding portion of the despatch, which said that the vessel ought to be retained until properly reclaimed by her original owners. That was a point quite beside the main and substantial question at issue, which was, not what was to be done with the vessel after she had been detained and forfeited, but whether the authorities at the Cape had a right to detain and forfeit her at all. [Hear, hear.] He would not say that a vessel under such circumstances ought not to be given up to her original owner; but he was rather disposed to think that the forfeiture would inure to the benefit of the crown, and that the original owner would have very little right to reclaim the ship. Putting that question, however, aside as immaterial to the main issue, he submitted that all the principles of law were in favor of the assertion that, under such circumstances, the crown had a right to detain the vessel.

At the commencement of the war, her Majesty had issued a proclamation, forbidding both belligerents alike to bring prizes into our ports. Captain Semmes was acquainted with that proclamation, and that was proved by some of the facts in this very case. It was significant that Captain Semmes did not bring in the tender with him in the first instance. [Hear, hear.] He left her outside, but mentioned in port where she was. Thus he ascertained whether there would be any objection to the tender being brought in. The authorities at the Cape naturally assumed that Captain Semmes was speaking the truth, and that the tender to which he referred really was a vessel answering to that description, and not a sham, fitted up for purposes of evasion. Consequently, they offered no opposition to her coming in. As soon, however, as they discovered the truth of the matter, that the Tuscaloosa was not properly a tender, but was only disguised as one, they ought to have done as the Duke of Newcastle pointed out—prohibited the exercise of any further control over her by the captors, and retained her under her Majesty’s jurisdiction. All vessels entered foreign ports only by the courtesy and permission of the sovereign of the country, who had an undoubted right, especially in time of war, to prescribe the conditions under which ships should be admitted. Any vessel which disregarded or violated the limitations thus imposed offered an insult to the sovereign, and rendered herself liable to punishment accordingly. Could any one doubt that if Captain Semmes had brought in the Tuscaloosa as a prize, and had persisted in entering after having been warned to desist, Admiral Sir Baldwin Walker would have opened fire, and perhaps sunk both the Alabama and the Tuscaloosa? Well, then, if he would have been entitled to sink her when force was used, surely he had a right to seize and detain her when fraud, the substitute for force, was resorted to. [Hear.] The right honorable gentleman had blended together two things which were totally distinct—the arrival of the Tuscaloosa on the first and on the second occasion. “How inconsistent,” it was said, “is the Duke of Newcastle! The first time the vessel comes in he says you ought to keep her; and when she returns again and is seized, he orders her to be let go directly.” It must be remembered that in the interval between the two visits a great change had occurred in the circumstances of the case. The second time the vessel appeared, whether or not she had a formal commission from Captain Semmes or the confederate admiralty, she was a duly commissioned vessel within the case of the Ceylon, which had been cited. She had then got rid of her cargo; she had mounted several guns, instead of two; she was manned not by ten but by twenty men. In fact, she had become a vessel-of-war. [Hear.] Where a vessel had become beyond all question the property of the captor, the conduct of the captor might, nevertheless, be such as warranted the forfeiture of the vessel. As to this there was no doubt, and if you wanted an instance of misconduct which justified forfeiture, it was certainly supplied by the entrance of a belligerent vessel into a neutral port in defiance of the proclamation of the neutral government. [Hear, hear.] As to the discussion which had occupied the house, he should like to know what was the use of it? Of course, the house had a right to discuss abstract questions of law if they thought fit, but in doing so they were, in his opinion, travelling beyond their proper functions. Their decision was just as likely to be wrong as right; but, whatever it was, would the government venture to advise her Majesty upon the strength of it? Would the judges even take judicial notice of it? Certainly not. Instead of applying itself to its proper business, which was legislation, the regulation of finance, the amending of grievances, and the material and political welfare of the nation, this house became something like a discussion hall when it debated abstract questions of law, a decision upon which could answer no good purpose whatever. The house would do well to give no decision on this subject; but if it did decide, he hoped its decision would be based on those sound principles of international law which had been laid down by the solicitor general, and which he also had humbly attempted to enforce. [Cheers.]

Sir J. Elphinstone repeated the facts connected with the arrival of the Tuscaloosa at the Cape, and, calling the attention of the house to the armament which was on board at her detention, asked how it was possible to argue that this ship was not a man-of-war. In point of fact, she was perfectly able to capture any more slightly armed merchantmen, and she was a man-of-war of the most dangerous character. Some stress was laid upon the fact that on the first occasion when she entered Simon’s bay she had a cargo on board, and could not, therefore, be regarded as a ship-of-war. But in 1813, the American Captain Porter, of the Essex, captured in the Pacific twelve British whale ships, of Avhich he armed and manned two as cruisers, naming them the Essex Junior and the Georgiana. Both these vessels were recaptured by the English cruisers, the Georgiana having at the time a cargo of spermaceti oil on board. That was the case of an armed vessel loaded with property which had confessedly belonged to the former owners of the ship; but the prize court held that she was a national ship, and that being the prize of the captors the property found on board no longer belonged to the former owners. That case appeared to him to be precisely on all-fours with that under discussion. [Hear, hear.] Who could now estimate the damage that had been done to the confederates by the Tuscaloosa having been detained, and the objects of her crew having been frustrated by the detention? Would her Majesty’s govornment satisfy the claims of the Confederate States in this case? It appeared to him that in the whole of the dealings of our government with the confederates we had been acting more in a spirit of hostility than in a spirit of neutrality. We had acknowledged them as belligerents, but we had not acknowledged that they had a government to direct their movements; and the consequence was, we had not been able to communicate with them on matters of international law. He thought that this case was deserving of the serious attention of the house. [Hear, hear.]

Mr. Shaw Lefevre regarded this question as one of very great difficulty, and one better fitted, in a great many respects, for a court of law than for that house. At all events, it ought to be treated by honorable members in a spirit of neutrality. There were two branches of the subject: first, what course ought to have been adopted with the Tuscaloosa when she came into Simon’s bay for the first time; secondly, what course ought to be adopted with regard to prizes generally when they came into our ports. Having read the various despatches, including that of Sir Baldwin Walker, he could come to no other conclusion than that when the Tuscaloosa first entered Simon’s bay she ought to have been seized. The earliest case of the kind was that which occurred in America in the year 1794. In reference to that case, which was one of prizes taken by vessels unlawfully equipped in America, Washington was in a dilemma. Considerable doubt was entertained by his cabinet, and the question was referred to the judges. They refused to enter upon the question; and Washington was obliged to take the case in his own hands, and afterwards to introduce an act by which powers were given to the law courts to enter upon these questions. He had, however, in the mean time handed over the prizes to their original owners. There was a very important question in this case—one not raised by the government, or alluded to in the Duke of Newcastle’s despatch—namely, that the Tuscaloosa was the prize of a vessel which had been unlawfully equipped in this country. [Hear.] It was also the case that the instructions given to officers in command of vessels-of-war or privateers laid down, that when they captured a vessel they should bring it into port for adjudication; and they had no instructions to warrant them in burning the vessel. It could not be considered a usage sanctioned by international law to burn and destroy private property on the sea; and consequently, in the consideration of this question, the Alabama’s practice of constantly burning the ships she captured ought to be borne in mind. He was glad to observe that a great authority (the lord chancellor) had expressed the opinion that such a practice could not be deemed to be according to the usage of modern warfare.

[An honorable member moved that the house be counted. There were scarcely twenty members present at the time, but before the speaker completed the “count” the number was raised to considerably beyond the requisite forty by a rush of members from the lobbies and dining-room]

Mr. Shaw Lefevre accordingly resumed his observations. It was hardly safe to say that all prizes which came into ports belonging to her Majesty should be handed over to their original owners, for ships with prizes intended to be submitted to the adjudication of a prize court might be obliged by stress of weather to enter those ports. In such cases the prizes should not be handed over to the owners, unless the vessels which captured them had been equipped in British ports, in violation of the Queen’s proclamation of neutrality. [Hear, hear.] He sympathized very much with the gallantry of the confederates, but not with their cause, and he could not sympathize with the gallantry displayed by the Alabama, which seemed to have been built, not for fighting at sea, but for lighting up bonfires by burning private property. [Cries of “Divide!”]

Sir J. Hay thought that her Majesty’s government did not deserve any great credit for their attempt to count out the house so soon after the discreditable manœuvre of Friday last on the China question. [Hear, hear.] It certainly was a very convenient way of getting rid of a disagreeable question, when they found public opinion and the opinion of that house running strongly against them, to put up some member on their own side to desire the speaker to ascertain whether the requisite number of members were present. [Hear, hear.] Some quieter mode, however, of getting out of the discussion would have been more consonant with their dignity than this flagrant abuse of privilege. [Hear.] The honorable member for Reading had laid down some doctrines which, as a naval officer, he must pronounce altogether heretical. A privateer, he could assure the honorable gentlemen, was by no means the same as a tender. A tender carried with it all the virtues and powers of the ship to which she was commissioned. The character of the Tuscaloosa was not in any respect that of a privateer; she drew her powers entirely from the commission which was borne by the captain of the Alabama. The honorable gentleman, perhaps, might contend that the captain of the Alabama was not a captain of a man-of-war; but the government had some time ago, through their officers, acknowledged him for all purposes as captain of a man-of-war. The captain, therefore, of the tender acting under his orders had the same full powers to navigate the ocean as the captain of the Alabama possessed as captain in the confederate navy. [Hear, hear.] Consequently the honorable gentleman’s argument fell entirely to the ground. It was a new doctrine to him that captains of belligerent ships-of-war were no longer empowered to sink, burn, and destroy the ships which it might be their duty to capture. It might not be politic or for their own advantage to do it, but if war was ever to be carried on to a successful issue no naval officer would consent to be bound to encumber himself with a number of prizes, thereby seriously diminishing the number of men which he might require for fighting his ship. It was the duty of every naval officer not to pay implicit respect to the feelings of those whom he captured, or to the advantages which would accrue to himself and his crew from carrying his prizes into port and having them condemned; but, on occasions when the public service demanded it, to sink, burn, and destroy all that fell into his hands. Speaking for Sir B. Walker and those officers on foreign stations who had been victims to the ambiguous despatches of the government, he hoped that for the future they would be more explicit in their instructions, and that they would not again attempt to shift the blame from themselves and throw it on their officers. [Hear.]

Mr. Neate said that although the proposal to count out the house had proceeded from that side of the house, there was no reason to impute it to the government. [Hear, hear.] Of those who rushed in to make the house a large majority belonged to the government side, and all through there had been two members on the government side to one on the other. [Hear, hear.] He thought there would not be much difference of opinion that the Tuscaloosa ought to have been detained at the outset if the Duke of Newcastle’s despatch had arrived earlier. When the Tuscaloosa was first brought into Simon’s bay she was brought in in fraudulent violation of our neutrality. [Hear.] She was a ship of five hundred tons, and she was brought into the bay commissioned as a vessel-of-war, with ten men on board. He would ask the honorable and gallant gentleman, (Sir J. Hay,) if he had the honor and responsibility of commanding her Majesty’s fleet, whether he would send such a ship to sea with less than one hundred men? [Hear.] But it had been said that upon her return she was, to all intents and purposes, a vessel-of-war. But what was her state then? Why, she had twenty men and three guns on board, one hundred cartridges, and twelve revolver pistols. [A laugh.] Sir B. Walker said he had learnt since the departure of the Alabama and her so-called tender that overtures were made to some parties in Cape Town to purchase the Tuscaloosa’s cargo of wool. Would the honorable and gallant gentleman opposite think a transaction of that kind the business of a vessel-of-war? [Hear, hear.] He was not entirely satisfied with the vague and general language at the end of the Duke of Newcastle’s despatch. It would have been desirable that there should have been a little more precision. But they had been told that that defect had been remedied, and therefore he submitted that no injustice had been done.

Mr. M. Smith said he agreed with his honorable friend the solicitor general, that in dealing with a question of this kind the house should approach it in a judicial spirit. He also agreed with him that there was some inconvenience in the House of Commons taking up questions of international law, but it had been the practice both of that and the other house of Parliament to express an opinion upon such questions. When the solicitor general expressed a hope that the votes of honorable members would be given that evening without any party spirit, he entirely sympathized with him, but he ventured to say that in that case his honorable and learned friend himself must vote in favor of the resolution. [Hear, hear.] His honorable and gallant friend made a most gallant defence of the instructions sent out, probably by his own advice, to the colony. He (Mr. M. Smith) was quite willing to admit the difficulty, which none but a lawyer knew, in which the law officers of the crown would feel themselves placed in such a case. They would have to apply principles not to be found in the ordinary current of authorities, but in books of international jurisprudence which required some research. But when he was asked to express an opinion upon the despatch of the Duke of Newcastle, and when his honorable and learned friend in such bold and defiant language laid it down that nothing in that despatch could be said to be wrong in point of law, in that case a duty was cast on honorable members to state what opinion they had formed on the subject. [Hear, hear.] There were three questions involved, in all of which he held that the government had gone wrong. The first was whether the Tuscaloosa, when she came into Simon’s bay, was to be treated as a prize, or as a ship-of-war commissioned by confederate authority. The government had decided that she was to be treated as a prize. The second question was whether, supposing she were a prize, the admiral on the station was entitled to detain her for the purpose of having her handed over to the original owners. The home government had thought that she should have been kept until claimed by the original owners. The third question was whether, when the Tuscaloosa came in the second time and was seized, and when the home government felt it necessary that she should be restored to those from whom they had taken her, they acted rightly or not. He held that even in this last case the government had not the courage and right feeling to order her to be restored upon the proper grounds, but they put the restoration upon the narrow, mistaken ground that because she had been once in the bay, and had been allowed to sail, she ought to be restored. [Hear, hear.] The two former were mistakes in point of law; the latter was a mistake in point of policy, and was the most serious of all, because the government were responsible for it. [Hear, hear.] With reference to the first question, whether the Tuscaloosa ought to be treated as a prize or a ship-of-war, he agreed with his honorable and learned friend to a certain extent that that was a question of fact, and that to some extent the bona fides might have been inquired into. It was clear if a ship were brought in without any of the insignia of a vessel-of-war, those who had to exercise the Queen’s authority might take it upon themselves to say, “This is in clear contravention of the Queen’s proclamation—it is a mere deception intended to be practiced upon us.” The colonial authorities appeared to have formed a correct opinion both on the facts and the law. The question was whether she was a ship-of-war or her tender, and, as such, entitled to the privileges of a ship-of-war; or whether she went in to deliver her cargo and make a profit to the captors. Leaving party spirit on one side, he thought that the Tuscaloosa had been made a bona fide tender to the Alabama, and, therefore, was as much a ship-of-war as the Alabama herself. One great test of a ship-of-war was, had she a commission? The Duke of Newcastle, in his despatch, omitted altogether the circumstance that she had been commissioned by the Alabama. This fact was known to Sir B. Walker, however, for he wrote to the governor on the 7th of August to say:

“Captain Forsyth has informed me that the Alabama has a tender outside captured by Captain Semmes on the coast of America, and commissioned by one of the Alabama’s lieutenants.” [Hear, hear.]

From beginning to end the fallacy that ran through the correspondence was that because the Tuscaloosa was not condemned as a prize she was not to be treated as a ship-of-war. [Hear.] The solicitor general was not justified in saying that it was a sham to take her in as a tender. On what ground did the American consul desire that she should be detained? On the 10th of August he wrote:

“An armed vessel, named the Tuscaloosa, claiming to act under the authority of the so-called Confederate States, entered Simon’s bay on Saturday, the 8th instant. That vessel was formerly owned by citizens of the United States, and while engaged in lawful commerce was captured as a prize by the Alabama. She was subsequently fitted out with arms by the Alabama to prey upon the commerce of the United States, and now, without having been condemned as a prize by any admiralty court of any recognized government, she is permitted to enter a neutral port, in violation of the Queen’s proclamation, with her original cargo on board. Against this proceeding I hereby most emphatically protest, and I claim that the vessel ought to be given up to her lawful owners.”

What stronger evidence could there be that she was a vessel-of-war than this statement of the American consul? [Hear.] No doubt, as between belligerents, property was not changed by the capture for certain purposes, but, as regarded belligerents themselves, the capture was complete, and the sole dominion over the prize was gone. The case of the Georgma, decided by Lord Stowell, was almost exactly similar to that of the Tuscaloosa, and both the American and English lawyers bowed to the authority of that learned judge. Lord Stowell said:

“It has been usual for the court to look, in the first place, for the commission of war, because where that is found nothing more is wanted.”

In answer to the argument that this was the case of commissions from an officer of a single ship, Lord Stowell said:

“Take it to be as stated, that it is the act of an officer commanding one ship only, the distinction does not appear to me to be very material. When it has been held that the commander of two or three ships may sufficiently ‘set forth to war,’ it is not going much further to say that the commander of a single ship may possess the same authority.”

He had not heard it asserted that the commission given to the Tuscaloosa was not a real commission, nor was it disputed that the captain was competent to give such a commission. What was the remedy? It was not to treat her as a prize, but to regard her as a ship-of-war, and to deal with the Confederate States as if she were a ship-of-war. [Hear, hear.] The government of this country had given to the Confederate States belligerent rights. There could be no degrees in belligerent rights, for once given to a state they were possessed by it fully and entirely. [Hear, hear.] The opinion of Sir P. Wodehouse was entitled to more respect than it had received from the law officers. No doubt the governor had acted on the opinion of his attorney general, and his law of ficer had been right in his view of the law. [Hear, hear.] The solicitor general had taken higher ground, and assumed an air of dignity to which he was not entitled when he said, with great condescension, that the law officers at home did not throw any blame on the law officers of the colony. [Hear, hear, and a laugh.] The fact was that the law officers of the colony had been right through out, and that the despatch of the Duke of Newcastle was wrong throughout. [Hear, hear.] His learned friend, being determined to support the despatch throughout, would not admit that it contained anything wrong, but simply that it was not sufficiently explicit; a convenient mode of getting rid of the effect of a despatch which was wrong in point of law. So explicit was it, however, that the governor was obliged to act upon it, contrary to his own opinion, [hear, hear,] and the admiral felt the instructions to be so explicit that he turned out the crew of the Tuscaloosa and replaced them with sailors from his own vessel. [Hear, hear.] His honorable and learned friend held this to be right in point of international law, but it was certainly novel, and fraught, too, with the gravest consequences; because if governors were to act on this interpretation of inter national law we were in danger of war every hour of our lives. [Hear, hear.] His honorable and learned friend adverted to what had occurred in another place. In the debate so referred to, a noble lord high in office, and particularly interested in this transaction observed that the despatch written by the Duke of Newcastle went beyond what the law officers said, and that the law officers entertained serious doubts——

The Attorney General. Lord Russell stated that the law officers said it was matter for serious consideration.

Mr. M. Smith. Yes; but according to the solicitor general everything now was perfectly right. He wished to know at what time the law officers thought it matter for serious consideration, and how they had satisfied themselves that it was perfectly right. [Hear, hear.] Surrounded as they were by eminent politicians, he could not help thinking that the law of his honorable and learned friend was somewhat warped by the politics and exigencies of the moment. Away from their present associations, it was impossible to have two better opinions; but, unconsciously to themselves, no doubt, their views had been warped by the company which they kept. [Hear, and laughter.] His honorable and learned friend had referred to instances in which a neutral power was entitled to seize a ship in the hands of a belligerent when brought into its own ports; but in the authorities from which those instances were drawn, including the excellent treatise of the Queen’s advocate on “international law,” he must have seen that they were all exceptions, founded on the fact that the original capture was bad in law. There was no authority justifying the neutral power in manning the prize from one of its own ships-of-war, [hear,] and had the confederates been a strong power, no doubt they would have resented that proceeding as an act of war. If the same step had been taken with a nation able to enforce its own views on international usage, he believed the “serious doubts” of the law officers would still have remained. What was such an act, in effect, but making the Queen a recaptor for the federal government? [Hear, hear.] In explanation of the instructions sent out to the Cape, altering the decision of the colonial authorities, both as to the law and the facts, and giving explicit and arbitrary instructions for the future, his honorable and learned friend urged that it was not then foreseen that the Tuscaloosa would return. If not, then these instructions were a mere waste of harmless powder. But the Tuscaloosa did come again, and was seized. His honorable and learned friend could not have been as confident then as he was now, because no one could read the despatches without seeing that the government were in a great fright and endeavored to recall what they had done. The colonial authorities were told to restore the ship, and when they inquired the grounds for so doing were supplied with very scanty information. The vessel was let go because it was not expedient to keep her. But she was detained for her original owner; how, then, could the government let her go without his consent? It would have been more generous to the colonial authorities to have said that they were right, and therefore the ship must be released; and it would have been more gracious to the Confederate States if her liberation had been accompanied by some expression of regret for what had occurred. He admitted that there were difficulties in maintaining a strict and impartial neutrality; but the house and the country had a right to expect that neutrality, more especially as between a weak country and a strong one, should, if rigid, be at the same time impartial. [Hear.]

Mr. Denman said that if the discussion of questions of this sort in that house was attended with inconveniences, still greater were those which would arise from coming to rash votes upon questions of great international importance. [Hear, hear.] He hoped that in the present instance no vote would be come to upon the resolution before the house, because either its adoption or rejection could not fail to be productive of mischief. If it was carried, there would be danger, not only that it might be quoted against us at some future time, but that a wrangle should take place between our own and some foreign government as to what it was that the house had affirmed. If it was rejected, it was certain that on some future occasion either our own or a foreign government would appeal to it as affirming positively as good and legal every word which was contained in the despatch of the Duke of Newcastle. He, therefore, trusted that the resolution would be withdrawn. Passing to the subject of this correspondence, he apprehended that nothing could be clearer than that the question as to whether the Tuscaloosa was a prize or a ship-of-war was not a pure, unadulterated question of law, but a question of law so, entirely depending upon facts that you could not have any better judge in such a matter than a naval officer like Sir B. Walker, who had seen the vessel on the spot, and who understood her character, her equipment, and all about her. [Hear, hear,] The evidence of experts was constantly admitted in our courts of law, and in this instance there was no better authority than—there was, in fact, no competent authority except Sir B. Walker And was there any authority to the contrary? Not a bit. All those who had in this debate opposed the view taken by Sir B. Walker had relied upon passages culled from text-books and upon decisions by Lord Stowell and others; but those decisions, as presented by the honorable gentlemen themselves, did not make out the proposition that the mere existence of the commission was enough to make the vessel a ship-of-war, and that you were not to look behind that commission, go into other facts, and examine whether the vessel really was a ship-of-war or an uncondemned prize. On the contrary, in the case of the Georgina, his honorable and learned friend quoted words which showed clearly that the judgment of the court was not founded upon the mere fact that there had been a commission, but upon other facts which were of great importance. [“No, no.”] The honorable member for Truro cited the strongest passage which had been quoted in the course of the debate as to the power of a captain to commission another ship as a tender; but even there the words were that the officer who received the commission might set the vessel forth as a ship-of-war; and there was nothing in the decisions which established that where there was nothing but a commission and an officer put on board the vessel, you were, in the presence of facts and in spite of arguments to the contrary, to consider the vessel a ship-of-war. [Hear, hear.] In the case of the Greorgina there had, as stated by the honorable member for Malden, been put on board ten additional guns and a fighting crew of sixty men, and Lord Stowell decided that the officer had sufficiently “set her forth for war.”

Now, in the case of the. Tuscaloosa, Admiral Walker, in effect, said, “I, who am a naval officer, and who know what a ship-of-war and also what a tender is, am perfectly certain that this vessel was not a ship-of-war, but a merchant vessel, with her cargo on board.” That, he contended, was a statement worth a hundred made by legal gentlemen in that house who took a contrary view, and who could not have the same knowledge of the character of a ship. But the truth was, the case was an exceptional one, and could only be decided by analogy; nor was it possible, he thought, to deny that the analogy drawn by his honorable and learned friend the solicitor general was a good one. The real principle involved in the question was, that the neutrality of this country had been violated, and that the parties by whom it had been violated had no right to turn round and demand restitution for their own wrong. It was said, indeed, that Captain Semmes had pledged himself to the truth of the statement that the ship was a tender, and that his assertion ought to be taken as correct; but it should be borne in mind that he was a commissioned officer of the Confederate States, and, as such, would naturally deem it his duty to run the gauntlet and do what he could for the benefit of his own government; nor in having recourse to a ruse or a trick by which he endeavored to deceive the British authorities, must he be regarded as having acted in any dishonorable sense. Captain Semmes, indeed, might have honestly thought that by calling the vessel a tender and by putting an officer on board her he actually made her what he described; but then he had done an act which was no less an evasion of our neutrality. The attorney general at the Cape, he might add, in giving his opinion on the matter, had cited a passage from Wheaton, which was not applicable to the case; but the governor had, nevertheless, done quite right in acting on that opinion; while with respect to that portion of the despatch of the Duke of Newcastle which had been complained of, it was quite clear that it was not the result of the deliberation of the law officers of the crown, but had been added in the urgency of the moment by the duke himself. If that were so, the house would, he thought, hardly deem it desirable that when the subject was said to be under the consideration of the law officers of the crown, they should bind themselves and the country in all future wars to the statement that the particular part of the despatch to which he referred was at variance with the principles of international law.

He came now to another point. He maintained that, as gentlemen and as Englishmen, the heads of the colonial office could not have acted otherwise than they did after receiving intimation that the Tuscaloosa had been detained. The letter of Mr. Lowe, the officer in command of the vessel when Captain Semmes was absent, had been quoted to the house. The writer spoke of having been entrapped. When the ship went away the first time she had the wool and the skins on board, and the two small guns which Admiral Walker said it was ridiculous to call an armament. She went away as a regular uncondemned prize. When she returned again she certainly had more the appearance of the tender of a man-of-war; and, therefore, if they were not entitled to stop her on the first occasion, she had a right to consider that she would not be stopped on the second. Whatever, therefore, their opinion might have been as to the right of detaining her on the first occasion, it would have been a wrong thing, and, he would add, a shabby thing, for the colonial office to detain her on the second occasion. However, she was then seized, owing to a misconception of his instructions on the part of Sir P. Wodehouse. The despatch of the 4th of November never told him that he was to shut his eyes to altered circumstances and act in a blindfold manner. There was to him something like the exhibition of a little pique in the letter of Sir P. Wodehouse, stating that the commander of the Tuscaloosa not unnaturally complained of her having been seized after being recognized on the previous occasion as a ship-of-war, but that that was manifestly nothing more than the inevitable result of the overruling by the home government of the decision before come to by a subordinate officer. He thought it was rather the natural result of Sir. P. Wodehouse’s not having—as he did on the first occasion;—consulted his attorney general, who would most probably have told him that he was estopped from detaining the vessel. The home government then sent out another despatch cancelling the detention, and assigning special reasons for that proceeding. It was therein explained that the decision taken was not founded on any general principle, but on the peculiar circumstances of the case, among which was that she had been called the tender of a ship-of-war, although she was merely an uncondemned prize; but that nevertheless she had been allowed to enter and to depart from the Cape, by which her commander might naturally have thought that he could go there again. The government, therefore, came to the conclusion that she ought to be released with a fair warning to her commander and to the captain of the Alabama that ships-of-war could not be permited to bring their prizes into British ports, and that it rested with her Majesty’s government to decide to what vessels that character belonged. The despatch concluded by expressly disclaiming, in kind and courteous terms, the intention to censure, in any degree, the course pursued by Sir P. Wodehouse on a question of difficulty and doubt. Now that the Duke of Newcastle had retired from office, he thought it was unnecessary and improper, and even mischievous, for the house to put upon record a resolution which would be quoted against them as meaning something which it did not mean; and, for the sake of the country, for the sake of that which they would all allow her Majesty’s government desired in spirit to preserve—namely, an honorable neutrality in our relations with America—he trusted that his honorable friend would not force the house to a vote on that occasion.

Mr. Bovill thought, while the instructions of the 4th of November remained uncancelled and unaltered, other cases might occur which would be equally mischievous; and although he agreed that the House of Commons was not a convenient tribunal for the determination of questions of international law, it was necessary that the attention of Parliament should be called to the subject. The great difficulty of questions of this kind was in ascertaining the precise facts to which the law was to be applied. A contest had arisen as to the true character of the Tuscaloosa. It was originally a merchant vessel, and captured by the Alabama. On her capture an officer in the confederate navy was placed on board with a complement of the crew of the Alabama, and from that time to the present she had been continuously in the service of the Confederate States. With respect to the character of the vessel, the fact was placed beyond all dispute that she was a vessel-of-war by the very demand that was made by the consul. She was fitted out with arms by the Alabama “to prey on the commerce of the United States.” That was the conclusion to which Mr. Graham arrived. The admiral on the station saw the vessel, communicated with her commander, saw the nature of her equipment, and came to the conclusion that she was a vessel-of-war. The governor and the acting attorney general came to the same conclusion. How could she be treated after that as a merchant vessel? It would be a most serious thing if the house were called on, upon the authority of the law officers of the crown, to affirm the correctness of the instructions sent out by the Duke of Newcastle, and within a few days afterwards to find on the table the amended instructions on which all colonial officers were in future to act. But the misfortune was that those instructions being sent out on the 4th of November, a despatch of the 10th of March of the present year placed the release of the vessel on entirely different grounds; to this hour no alteration had been made in the papers, and if another merchant vessel which had been taken as a prize, fitted out by the Confederate States, and placed in charge of an officer of their navy, found its way to Simon’s bay, what course woutd Sir Baldwin Walker take with regard to it? The instructions of the 4th of November remained uncancelled, and he would only have one course to pursue. He had no alternative but to act on those instructions. He acted on them, and seized a vessel-of-war. Could anything be more humiliating? Instructions went out; contrary to the opinion of the officers of the colony they were acted on; and when the government could not retain their position they were glad to put forward some excuse for giving up the vessel by saying that the captain had been misled and entrapped. [Hear, hear.] Hence the necessity for the House taking notice of the subject. If the vessel was not of the character which had been supposed, then she was a vessel-of-war. It was not necessary to be a vessel-of-war that she should be equipped as a large vessel would be. Even a launch under the command of a midshipman, detailed for a cutting-out expedition, was a vessel-of-war. [Hear, hear.] But even supposing that she could be treated in any other character, then she must be a prize. Then she was a prize taken lawfully, and the property in her had passed to the captors, and no adjudication was necessary. The solicitor general said that the vessel, passing through neutral waters, became liable to seizure, and to be handed over to the original owners. He (Mr. Bovill) maintained there could be no more false proposition, [hear, hear,] and he would be surprised, indeed, if it were put forth by the attorney general. The country had a right to expect a clear statement of the law, because they were told that the subject had been under the serious consideration of the government. The solicitor general had referred to captures in neutral waters. Everybody knew that such captures were illegal if the neutral state interposed; but in the case of a captured vessel passing within neutral territory, there was no power to restore the property to persons who had ceased to be the owners by the law of nations. He would not enter further into the argument, but he thought it would have been better if more candor had been shown, and it had been admitted that the instructions issued had gone beyond what had been sanctioned by the law officers of the crown, and that in future instructions of a different character would be issued. [Hear, hear.]

The Attorney General. There are two principal questions as to which, if I rightly understand the motion of the honorable gentleman opposite, it is intended by this vote to ask the house to pronounce that this despatch contains doctrines that are contrary to international law. At all events, in the course of the debate two questions have been raised and discussed on one side or the other. The first proposition laid down in the despatch is, that the vessel called the Tuscaloosa did not lose the character of a prize captured by the Alabama merely because she was at the time of being brought into British waters armed with two small rifled guns, was 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, having nothing to give her a warlike character except those circumstances. The first question is, whether that proposition is contrary to international law. The second question is, whether the final proposition in the despatch is of that character. I must express my unfeigned surprise at the extraordinary manner in which the honorable and learned member for Guilford (Mr. Bovill) has dealt with the facts bearing upon the first of these two propositions. [Hear, hear.] I had hoped that all who took part in this debate would confine themselves to the real facts, and there was no member from whom I would less have expected a miscarriage in that respect than from my honorable friend. But when my honorable and learned friend gravely rises and gravely tells the house that every authority at the Cape, Sir B. Walker as well as others, had agreed in pronouncing the vessel to be a ship-of-war, and entitled to be recognized in that character, I am placed in the dilemma of supposing either that he has not read the papers, or that—which, of course, I do not admit—having read them, he meant to misrepresent them. [“Oh!”] The house shall judge whether I have reason for saying so, and I must also correct an error into which, I am sure by accident and involuntarily, my honorable and learned friend the member for Truro (Mr. M. Smith) has fallen. He said, in the course of his able speech, that Sir B. Walker had expressed an opinion that the ship was duly commissioned as a ship-of-war. I will show the house that a more complete mistake could not be made. What are the facts? In the first place, the letter to which the honorable member for Truro referred does, indeed, use the word “commission,” which is the source of his mistake; but how do the subsequent papers correct the erroneous ideas suggested by its use? Under the date of the 7th of August, Sir B. Walker, writing to the governor of the Cape, says: “Captain Forsyth having informed me that the Alabama has a tender outside captured by Captain Semmes on the coast of America, and commissioned by one of the Alabama’s lieutenants.” [Hear, hear.] The honorable and gallant gentleman opposite may have a better idea of these words than myself, but it seems to be that of one of the lieutenants of the Alabama granting a commission. [“Oh!”] I can only say that it appeared ultimately that there was no commission in the proper sense of the word. I read the words as set down by Sir B. Walker, “commissioned by one of the Alabama’s lieutenants,” and I defy anybody to define from them what sort of a commission this represents. [Hear, and “Oh!”]

Sir J. D. Hay said that, having been personally alluded to by the honorable and learned gentleman, he wished to remark that when it was said that a captain at Portsmouth had commissioned one of her Majesty’s ships, it did not mean that he had conferred that commission upon himself. [Hear, hear.]

The Attorney General. The honorable and gallant gentleman interprets those words as equivalent to “under the command of one of the Alabama’s lieutenants.” I believe that is so, and the sequence shows that when the matter came to be carefully considered, the element of the commission was eliminated. In the first place, Sir B. Walker having requested the opinions of the law officers, obtained that opinion, and the house will observe the important consequences which followed that opinion, expressed in Sir P. Wodehouse’s letter of the 8th of August to Sir B. Walker, enclosing the opinion of the acting attorney general: “I shall take care to submit this question to her Majesty’s government by the next mail, but in the mean time I conclude that your excellency will be prepared to act upon the opinions of the attorney general in respect to any vessels which may enter these ports in the character of prizes converted into ships-of-war by the officers of the navy of the Confederate States.” I confess that was a somewhat alarming proposition, as it would suggest to the officers of the Confederate States navy a very simple and easy mode of escaping the provisions of her Majesty respecting the bringing prizes into her ports by putting them into the positions of the Tuscaloosa, and calling them ships-of-war, and introducing them into our ports as acknowledged in that character. But the honorable and learned member for Guilford did not seem to see that Sir P. Wodehouse treated that as a conclusion which naturally followed the opinion of the attorney general when he said that he had taken care to submit it to his government But what was the effect of that opinion upon the mind of Sir B. Walker, who has been treated by my honorable and learned friend as among those who have pronounced this vessel to be a ship-of-war? Sir B. Walker having for the first time, from his own officer, obtained true information of the real facts, wrote on the 16th of August to this effect:

“The vessel in question, now called the Tuscaloosa, arrived here this evening and the boarding officer from my flag-ship obtained the following information: That she is a bark of 500 tons, with two small rifled 12-pounder guns and 10 men, and was captured by the Alabama on the 21st of June last off the coast of Brazil; cargo of wool still on board. The admission of this vessel into port will, I fear, open the door for numbers of vessels captured under similar circum, stances being denominated tenders, with a view to avoid the prohibition contained in the Queen’s instructions; and I would observe that the vessel 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 put on board her (in fact, nothing but a prize crew) in order to disguise her real character as a prize.”

My honorable and learned friend must have overlooked that despatch. Then what does Sir Baldwin add?

“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 defence. 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 transhipment 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.”

It is not upon the papers, but we know as a matter of fact that what Sir Baldwin Walker apprehended about the cargo actually happened. We know that when the Tuscaloosa left the Cape she went to Angra Pequena, and deposited her cargo of wool and skins on the rocks of that island, having previously, while in the waters of the Cape, made such an arrangement that she was followed by the colonial ship Saxon, which took in the cargo for the purpose of disposing of it for Captain Semmes in the Cape colony, an enterprise which unhappily resulted in loss of life. The real question is, whether that is not a mischief of the most serious character which, if permitted, would place it within the power of any captain of the federal or confederate navy, by any easy ruse, to violate and trample under the foot of contempt the order made by the British crown for the preservation of British neutrality. [Hear.] If any opinion can be more strongly expressed than another, it is that of Sir Baldwin Walker, and I agree with my honorable and learned friend the member from Tiverton that this matter of fact is one of which Sir Baldwin Walker was a far better judge than all the lawyers in the world. It was his opinion that the ascertained facts concerning the Tuscaloosa were such that the true conclusion was that the character assumed of a ship-of-war was not real, but feigned, and that to recognize it would have the effect of enabling anybody to laugh at her Majesty and set her prohibitions within her own territory at defiance. [Hear, hear.] What was the result? So much impressed was Sir P. Wodehouse with the force of these observations, and with the authority from which they proceeded, that he thought it necessary to refer the question once again to the acting attorney general of the colony. I wish to speak with the utmost respect of the colonial attorney general. I have had more opportunity than the house would have from the simple perusal of these papers of knowing that lie is a most able, upright, and excellent public servant. [Hear, hear.] He exercised his judgment to the best of his ability upon the question put before him. If he was in error—and it is not for me to do more than submit my view upon that point to the house—he is not to be blamed for it, for it was one into which he fell because he was called upon to determine a most difficult question under circumstances which precluded him from having full and accurate information. The house will understand, therefore, that not a word I say is intended otherwise than most respectfully towards that learned person. I believe his first opinion was based upon an assumption of facts which, if correct, would probably have justified it; but I must take the liberty respectfully of saying that the propositions contained in his second opinion, which was given on the 10th of August, 1863, are propositions which I think are most dangerous and erroneous. He was evidently misled by the error of supposing that the passage he had referred to in Wheaton was applicable to this case. Of course you may reason by analogy from one thing to another, but I shall show that the passage in Wheaton cited by the colonial attorney general and the authorities referred to in this debate are quite beside the mark, relating to a subject of an entirely dieffrent character. What were the conclusions drawn by the colonial attorney general from those authorities? They are stated in a despatch of the governor, dated August 10:

“The information given respecting the actual condition of the Tuscaloosa is somewhat defective; but, referring to the extract from Wheaton transmitted in my last letter, the attorney general is of opinion 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, in 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.”

So that the colonial attorney general was of opinion that though the Tuscaloosa should have no commission, though she should not even have an officer of the confederate navy on board, yet if her two guns had been received from the Aldbama, that was a good reason for calling her a ship-of-war. He was also of opinion that though she should have no commission or no guns, yet if she was commanded by a confederate officer that was enough. [Hear.] I am bound to say that his opinion is founded upon a complete misconception of the law. [Hear, hear.] The authorities to which he referred—although I admit he discharged his duty to the best of his ability and judgment—misled him, because he read them in a text-book, was not able to make himself acquainted with the cases on which the passages he cited were founded, and did not observe how special and limited was their bearing upon the question before him. Let the house mark what was the result. The governor, who of course thought it his duty to act upon the opinion of the attorney general, communicated that opinion to Sir Baldwin Walker; Sir Baldwin did not change his own original opinion, but of course he had to apply the law of the attorney general to the facts of the case. Accordingly on the 11th of August he writes:

“I have the honor to acknowledge the receipt of your excellency’s letter, dated yesterday, respecting the confederate bark Tuscaloosa, now in this bay. As there are two guns on board, and an officer of the Alabama in charge of her, the vessel appears to come within the meaning of the cases cited in your above-mentioned communication.” [Hear, hear.

There were three cases put: first, guns put on board by a confederate vessel; second, a commission; third, an officer of the confederate navy in command; and Sir Baldwin Walker finds that the first condition is fulfilled, and the third, but not the second. [Hear, hear.] To make it more clear, it is distinctly so stated in the despatch of Sir P. Wodehouse, dated August 19. I ask the attention of those who wish to see how serious a question the government had to consider and determine to the whole of that despatch, because it shows that with all the courtesy, address, and gallantry which would no doubt distinguish officers in command of ships of the confederate, or, I should hope, any other navy, if you give them an inch they will take an ell, and that the effect of any relaxation of your laws and rules of neutrality is such that you will soon be entangled in questions of a character which, if you permit them to arise, will embarrass in a manner that it is the interest as well as the duty of this country to avoid. [Hear, hear.] No one can accuse Sir P. Wodehouse of any prejudice against Captain Semmes, or any partiality against the Alabama. I believe him to be impartial, fair, and just; but what are the doings of the Alabama in the Cape waters recited by Sir P. Wodehouse himself? He says:

“The Alabama, leaving her prize outside, anchored in the bay at 3.30 p. m. when Captain Semmes wrote to me that he wanted supplies and repairs, as well as permission to land thirty-three prisoners. After communicating with the United States consul, I authorized the latter, and called upon him to state the nature and extent of his wants, that I might be enabled to judge of the time he ought to remain in the port. The same afternoon he promised to send the next morning a list of the stores needed, and announced his intention of proceeding with all despatch to Simon’s bay to effect his repairs there. The next morning (August 6) the paymaster called on me with the merchant who was to furnish the supplies, and I granted him leave to stay till noon of the 7th. On the morning of the 8th Captain Forsyth, of the Valorons, and the port captain, by my desire, pressed on Captain Semmes the necessity for his leaving the port without any unnecessary delay, when he pleaded the continued heavy sea, and the absence of his cooking apparatus, which had been sent on shore for repairs, and had not been returned by the tradesman at the time appointed, and intimated his own anxiety to get away. Between 6 and 7 a. m. on Sunday, the 9th, he sailed, and on his way round to Simon’s bay captured another vessel, but on finding that she was in neutral waters immediately released her.” [Hear, hear.]

It was quite right to release her, and it was also necessary. But see the state of things you have got here. Captain Semmes gets an enlargement of time, and when he leaves he captures a vessel in neutral waters. These are circumstances which ought to warn every one of the importance and necessity of observing strictly the rules made for the preservation of neutrality. [Hear, hear.] Further on in the same despatch Sir P. Wodehouse says:

“An important question has arisen in connexion 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. On the 8th of August the vessel entered Simon’s bay, and the admiral wrote that she had two small rifled guns, with a crew of ten men, and that her cargo of wool was still on board. He was still doubtful of the propriety of admitting her. On the 10th of August, after further consultation with the acting attorney general, I informed Sir Baldwin Walker that if the guns had been put on board by the Alabama, or if she had a commission of war, or if she were commanded by an officer of the confederate navy, there must be held to be a sufficient setting forth as a vessel-of-war to justify her admission into port in that character. The admiral replied in the affirmative on the first and last points, and she was admitted.”

Sir Baldwin Walker replied as to the guns and as to the officer, but not—and let the house and the honorable and learned member for Guilford lake notice— as to the commission. [Hear, hear.] My honorable and learned friend the member for Truro will see that his inference from the use of the word “commission” in the first letter of Sir Baldwin Walker, written before the facts were ascertained, falls to the ground when we know that the facts, when they were ascertained, were found to meet the first and last points laid down by the attorney general, but not the second. One thing is quite clear, that no commission belonging to the Tuscaloosa was ever exhibited. [Hear, hear.] And now I wish the house to do me the favor to turn for a moment to the error into which the acting attorney general, not at all unnaturally, fell—an error in which he has been followed by several speakers in the debate this evening, when he took this setting forth the vessel for war as being a criterion for deciding a question which arose under the Queen’s neutrality orders. The statute declares that if in a war in which we are belligerents one of our ships shall be taken by the enemy, on being retaken at a later time it shall be restored to the original owner, except in the particular case provided for by the statute, and in cases where the vessel has been employed for purposes of war. We have all the dangers and perils of war to encounter in capturing a ship once employed in fighting against us, and it is therefore but fair that the reward of that danger and peril should also fall to our lot, and that the title of the original owner should not be recognized. The title of the original owner is, however, recognized in many cases where it would have been entirely forfeited by international law. The case of a recapture by a belligerent power has nothing to do with the question whether a neutral power not at war should in one way or another vindicate its neutrality when that neutrality has been subject to violation. The statute has no force in reference to the subject with which you are dealing. This view has been taken by Mr. Justice Story, no mean authority, [hear, hear,] in a similar case which has been decided by him. It is perfectly clear that, as far as the character of this vessel was concerned, our estimate was the correct one. I must here guard myself against admitting what I believe to be a very dangerous doctrine, namely, that we should allow any concealment of the character of the prize to be the means of enabling the captor to take the vessel beyond the reach of her Majesty’s neutrality orders. Such a principle would find no authority in international law. No sovereign would be mindful of his dignity if he allowed his authority to be set at naught by the captor of a ship merely going through certain forms. It is as competent for a sovereign to prohibit or limit the entry of public ships-of-war within his territory as for him to prohibit the entry of prizes. The principles of international law would fully vindicate a sovereign in the exertion of such authority. At the same time, although the methods for effecting this object are at his discretion, he would be bound not to use harsher means than the exigencies of the case demand. It appears to me, therefore, that this portion of the despatch is not only well justified, but that this country would.have been most unmindful of its dignity, and its neutrality orders have been absolutely set at defiance, if it had arrived at a different conclusion, taking the facts as they were reported. When the Tuscaloosa came back the second time there was something resembling an equipment, and something resembling a commission, and therefore questions of a totally different character arose as compared with those which her first visit gave rise to. The question, however, before the house is not the determination of her character upon the occasion of her second visit. We must take the facts as they stand upon the 4th of November, and as they were then reported to the government. And now I come to the second branch of the case, and that is the suggestion of what should be done if the result of the inquiries proved 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. The words employed by the Duke of Newcastle are:

“I consider that 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 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.”

Now, I have not the least wish to avoid any portion of the responsibility for that passage. It is true, as was stated in another place, that the law officers of the crown had suggested that which is expressed in the words I have read as matter for serious consideration. Undoubtedly if the despatch had been submitted to them, it is probable that they might have proposed some supplement to it, and it would not have been entirely in accordance with their intentions that it should go out in a form so short and little developed as that in which it now appears. [Ironical cheers.] Of course the house will understand that I would not have said so much, if it had not been for the statement made in another place. We are bound to accept the full responsibility for the passage as it stands. With the exception that the matter was mentioned by us as worthy of serious consideration and not to be laid down without further reflection, the very words are those in which it was suggested for consideration by the law officers. The Duke of Newcastle might naturally suppose that the law officers intended thereby to intimate the opinion which he adopted, and they would not have intimated it had they not thought the principle involved sound. [Hear, hear.] If blame be due anywhere, it is to us, and I am ready to take upon myself a particular share of it. At the same time, although the question is an open one, and there may be differences of opinion as to whether or not, under such circumstances as those of the Tuscaloosa, it would not be an extreme exercise of her Majesty’s powers to retain a prize for the purpose of restoring her to the original owner, I am prepared to maintain with confidence that no principle inconsistent with international law is expressed in any part of this passage. [Hear, hear.] The case is that either of a wilful violation or fraudulent evasion of the orders issued by the British crown for the maintenance of our neutrality, that violation or evasion taking place wtihin the territory of Great Britain. That is the principle involved. The rest is merely a question of discretion and moderation in carrying out that principle. Can it be said that a neutral sovereign has not a right to make orders for the preservation of his own neutrality, or that any foreign power whatever violating these orders, provided it be wilfully or fraudulently, is protected to any extent by international law within the neutral territory, or has any right to complain on the grounds of international law of any means which the neutral sovereign may see fit to adopt for the assertion of his territorial rights? By the mere fact of coming into neutral territory in spite of the prohibition, a foreign power places itself in the position of an outlaw from the law of nations; and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral sovereign. [Hear, hear.] We have had no answer to what was stated by the solicitor general as to the principle upon which neutral governments have hitherto acted when their neutrality had been violated under circumstances at all of a parallel character to those of the present case. Reference had been made to the case of prizes taken within neutral jurisdiction; but there is some confusion on this point. If there is one proposition more clear than another in international law, it is that in such a case the wrong is against the neutral alone. At the engagement of Lagos, in the time of Lord Chatham’s ministry, our navy captured a number of ships in Portuguese waters. Lord Chatham said to our minister: “Make any apology you please, say anything you like to satisfy the dignity of the King of Portugal, but give back not one of the ships.” Thus we see the principle laid down that between belligerent and belligerent a prize is a good prize, provided the neutral does not interfere to vindicate his own neutrality. It is usual for the neutral who has interfered under such circumstances to restore the prize to the original owner, but the latter has no right to claim it from the neutral as a man can claim his property in a court of law. The object of the proceeding being to vindicate the territorial rights and guard the neutrality of the sovereign, he does not, of course, want to make money out of the transaction, and therefore restores the prize to the original owner. I quite admit that the United States consul was all at sea about the matter. [A laugh, and “hear, hear.”] He seems to have thought that until there was a condemnation in a prize court, or something else done, the original owner would, as a mere matter of course, be entitled to the restoration of his property. There is no foundation for that idea. If her Majesty had not been pleased to issue orders that prizes should not be brought into British ports, it would have been competent to bring them in, and no demand for the restoration of any prize by the original owner could have been listened to. [Hear, hear.] I must now remind the house of the more recent doctrine as to the restoration of prizes, the origin of which may be said to be due in a great measure to ourselves, and which has been laid down and recognized in the United States. I refer to the case where, although the prize itself has been captured at sea far from the jurisdiction of the neutral sovereign, yet it has been taken by a ship which has violated, by equipment or fitting out, the territorial rights of the neutral power, and is consequently supposed to come in with the taint of a violation of neutrality attaching to it. Under these circumstances it had been held that the neutral sovereign has a right to retain the prize, with a view to restore it to the original owner. In 1793, when certain privateers were fitted out by the French in the ports of the United States, if not with the connivance of, at least without being prevented by, the government of the States, Mr. Hammond urged them not only to repress these privateers for the future, but to restore every capture they might bring into ports of the United States. The American government determined at once to accede to that part of the demand which was directed against the future preparing of privateers in their ports, and communicated that decision on the 5th of June to M. Genet, the French minister. At the same time they refused peremptorily to restore the prizes brought in by privateers, because they had been fitted out, they said, without the knowledge of the government. The French, however, continued to send out more privateers, and the American government, after again considering the matter, on the 25th of June, 1793, determined that all privateers fitted out after a certain date should be detained in the custody of the consuls of the ports “until the government of the United States should be able to inquire, into and decide on the facts.” Subsequently the President, on the 12th of July, announced his resolution to refer the questions concerning prizes “to persons learned in the laws,” and requested that certain vessels enumerated in the letter should not depart “until his ultimate determination should be made known.” Again, on the 7th of August, the President, through his secretary, informed M. Genet that he had determined to restore all prizes brought into American ports by privateers fitted out of their ports. When the treaty was made in 1794–5 there was an article by which the United States bound themselves to make compensation to this country for all prizes which might be brought into their ports by privateers fitted out after the 5th of June, and the restitution of which had not been effected. That is the origin of the doctrine, and it shows that all these cases proceed upon the principle that where there has been a violation of neutrality, the neutral government has, within its own territory, the right to determine how that violation shall be redressed as regards all prizes brought within its jurisdiction. The principle upon which the American government acted in establishing this doctrine—the principle upon which all governments act with respect to the restitution of prizes taken within their territorial limits—is applicable here, subject only to the question whether in particular circumstances it is necessary to resort to that mode of vindicating the honor and dignity of the sovereign. I can refer to a precedent more directly in point than those that have been given. In 1658 the States General of Holland had occasion to issue ordinances for the purpose of preventing the entrance into their ports of ships-of-war bringing prizes. It had been usual to allow the free access of such ships with their prizes; but these ordinances were issued, and in some parts they go far beyond anything which is suggested by the Duke of Newcastle in his despatch. The first ordinance, issued on the 9th of August, 1658, prohibited the captors of prizes brought into the ports of Holland, even under stress of weather, from disposing of anything on board, and they were put under strict watch and ward. In the ordinance of November 7, 1658, there was a further prohibition of the vessel from being brought into the harbor; it could only be brought into the Zee gaten, where it was safe from danger; and if any one acted otherwise, the prize, as if it had not been captured, was to be restored to him from whom it had been taken, the captor was to be detained, and, after due inquiry, his ship was to be forfeited and sold. That was going much further than I have advised the government to go. [“Hear,” and a laugh.] It is quite plain that the States General had no doubt about their right to make these prohibitions, by the threatened restitution of prizes, and even by stronger measures. Then, I say that the principle cannot possibly be shown to be against international law. Whether or no persons may come to the conclusion that, under certain circumstances, a less strong course would be sufficient, is another question. But the question before the house is, whether the principle is against international law, and I say that it is justified by every precedent which can be cited on the subject. It does not follow either that all uncondemned prizes are to be restored, or that the original owner has a right to claim their restitution. The neutral sovereign restores them in vindication of his own dignity and authority, and the violation of neutrality is the indispensable condition of calling this principle into play at all. It is not that every uncondemned prize should be restored where there is no violation of neutrality, and where there has been a violation of neutrality the fact of a condemnation in a prize court may be a reason for not restoring the prize, because such a condemnation may be held to obliterate the title of the original owner. In the case before Mr. Justice Story it was attempted to be proved that a condemnation had taken place, and he seems, undoubtedly, to have entertained the opinion that if it had been shown that the ship had been regularly condemned, there would have been an end of the question. I think I have now said all that is necessary to meet the motion of the honorable gentleman and to prove that no principle is here laid down at variance with international law, and that within her own territory her Majesty is absolutely sovereign and supreme—that she has a right to prohibit the entrance of prizes or no prizes; and that, if her prohibition be disregarded, she is the competent and the only judge of the measures which ought to be taken for the vindication of her authority. That is the principle of the despatch, and it cannot be shown that such an offender against international law as a belligerent who disregards such orders is entitled to complain of the measures taken to vindicate the rights of the territorial sovereign. [Hear, hear.] Whether milder measures would have been sufficient in any particular case is fair matter for consideration and controversy. The government is not bound by what has passed, and is as much at liberty now as before the despatch was written to reconsider the question, and either to recede from or adhere to the course indicated, as they may think proper. Although I have no doubt that Sir Philip Wodehouse acted in the most loyal manner, with the most sincere and upright intention to follow his instructions, I think if he had construed his instructions differently he would have been well borne out. For what do his instructions say?

“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 circumstances, 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 the captors, and to retain that vessel under her Majesty’s control and jurisdiction until properly reclaimed by her original owners.”

But when the ship had been recognized as a public ship-of-war on a former occasion, of course her commander had a right to assume that on a subsequent occasion she would have been received in the same character. As soon as the news that the Tuscaloosa had been detained arrived here, I entertained not only deep regret, but a stronger feeling, and had no doubt that she ought to be released. She was released, and for doing this, on the ground that good faith and honor required us to do so, we have been taunted. Why, when good faith and honor are in question, will any one say that you ought not to put these grounds first and foremost? Even if this ship had come into the port with fewer men and with fewer guns on board, and with the character of a vessel-of-war less strongly impressed upon her, still these grounds of honor and good faith would have made it absolutely necessary, under the circumstances, not to take advantage of that state of things, but at once to release her. [Hear.] The only becoming course for the government to take, therefore, was to recognize immediately the justice of Lieutenant Low’s reclamations, founded upon the fact that the ship had been at first received without question—to treat her as coming in under a virtual safe-conduct, and to say that the instructions sent to the Cape had been misconstrued. I regret that this should have occurred, but no other course could properly have been taken by the government. Well, then, is the house to affirm the resolution of the honorable member, that the principles laid down in the despatch are contrary to international law? I say that if the house affirms any such thing it will be affirming that which will be derogatory to the supremacy and the sovereignty of the Queen; it will be affirming that there are powers in time of war which have a right to set at naught, either by device and fraud or otherwise, the orders of the territorial sovereign, not only upon the high seas, but within the territory of that sovereign; it will be affirming that belligerents may violate that territory, and at the same time claim the benefit of international law against any measures taken in vindication of the authority of the territorial sovereign. I hope the house by its vote will protest against such a doctrine. [Hear, hear.] The question is not whether this was the wisest, the most moderate, the most proper course, a point on which opinions may differ, though some credit should be given to the sincere desire of the minister who wrote this despatch to be strictly impartial and fair in carrying out this principle. If the house thinks that the orders given went upon too extreme an application of the principle, still it must appreciate the purpose and intention of the minister—namely, to enforce the authority of his sovereign, and to maintain the neutrality to which this country stood pledged towards the world. [Hear, hear.]

Sir H. Cairns. I am glad the attorney general told us that our business was not to affirm the wisdom of the conduct of the government in the course of these transactions. I believe if that had been the proposition before the house, not even the attorney general, who has been as bold as most men to-night—not even the solicitor general, who was not quite so bold as the attorney general— not a single member would have ventured to say that the transactions which are detailed in these papers have been characterized by the attribute of wisdom. [“Hear,” and laughter.] But before we go to a division, I want the house to understand what is the question on which we are going to divide, for I think the attorney general has mistaken the question. I venture to think that the discussion has ranged over two questions which are of a very different nature. The first is: What was done to the Tuscaloosa, and was she a ship-of-war or not? The other, the one raised by the motion of my honorable friend, the member for Maldon, is: What are the instructions given to our agents as to what is to be done in future? [Hear, hear.] Now, on the Tuscaloosa and her character I shall say a very few words. It has been stated by the attorney general, and by the solicitor general also, that the circumstances connected with this vessel when she first came to the Cape were of a very suspicious character. Now, I will make an admission to the government. I think those circumstances were very suspicious. [Hear, hear.] I think that was eminently a case in which the colonial government was bound to consider what was really the character of the Tuscaloosa, and whether she was in reality a prize when she was passed off as a vessel-of-war. But I think no better opinion could have been had on that point than the opinion of the American consul [Hear, hear.] He of all men was interested in making the best case he could against the vessel, and I will take his statement concerning her when she came into the harbor and before the attorney general was consulted. I find, on the 10th of August, the United States consul writing to Governor Wodehouse in these terms:

“An armed vessel named the Tuscaloosa, claiming to act under the authority of the so-called Confederate States, entered Simon’s bay on Saturday, the 8th instant. That vessel was formerly owned by citizens of the United States, and while engaged in lawful commerce was captured as a prize by the Alabama. She was subsequently fitted out with arms by the Alabama to prey upon the commerce of the United States.” [Hear, hear.]

The United States consul says she came in as a man-of-war, to do the business of a man-of-war, and prey on the commerce of the United States. [Hear, hear.] Now, what is the use of splitting hairs on the number of guns she had on board or the number of men, when the only person put in motion at all was the United States consul, and that was his judgment as to the character of the vessel? I must also set the attorney general right with respect to a grave mistake. He says the commission of the ship was moonshine—there was no commission at all—nobody supposed there was any commission. I should like to know whether Sir Baldwin Walker, or any other person on the part of the government, asked for her commission. That was the natural course to take. We must remember that, of course, the officer in command could not volunteer that information, because there never was a word said to him on the subject, though this controversy was going on between Sir B. Walker and Sir P. Wodehouse, and the only person not acquainted with the subject of the controversy was the person who could have given the necessary information. [Hear, hear.] But what took place when she came back? Why, that a number of very proper questions were framed by Sir Baldwin Walker to be put to the commander, and among them was this: “What papers are on board to constitute her as the confederate bark Tuscaloosa?” To which the commander’s reply was: “The commission of the lieutenant commanding the Tuscaloosa, from Captain Semmes. The officers also have commissions to their ship from him.” [Hear.] It thus appears that as to her papers the vessel was regular, and that the necessary ingredient which the attorney general said was wanting was not wanting at all, and the moment it was asked for it was produced. [Cheers.] When they did not know whether she had a commission they let her alone, but the moment she produced her commission they seized her. [A laugh and cheers.] I shall now state the objection I have to what the Duke of Newcastle did when information was sought from the home government by our agents at the Cape. When I say the Duke of Newcastle, I don’t mean to throw the responsibility on him, because the reports and despatches sent out by him were the embodiment of the deliberate opinion of the government. The government knew that the difficulty experienced by our colonial agents arose from the fact that she had been a prize, but had come into the harbor under the appearance of being a man-of-war, and that what they wanted to know was whether her character as a man-of-war merged the character she had as a prize. That was a very plain question. [Hear, hear.] What was the reply given to it by the Duke of Newcastle, writing for the government?

“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 prœsidia 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.”

The colonial ministers having pressed her Majesty’s government to give them their views on that and other very important questions, the despatch in reply commences: “I will now proceed to convey to you the views of her Majesty’s government on these questions,” and then proceeds, in the passage which I have just quoted, to state that on the first of these questions the government did not consider themselves bound to give any information at all. [A laugh.] Well, on the second visit of the Tuscaloosa she was seized by the authorities in the Cape, and when the home government heard of her seizure they gave orders for her release. I agree with the attorney general in thinking that that was the best thing that could be done under the circumstances. But observe the ungracious way in which that was done. In a letter of the 10th of March the Duke of Newcastle says:

“Her Majesty’s government have, therefore, come to the opinion, founded on the special circumstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the captain of the Alabama, that the ships-of-war of the belligerents are not to be allowed to bring prizes into British ports, and that it rests with her Majesty’s government to decide to what vessels that character belongs.”

Her Majesty’s government had decided that the Tuscaloosa was a ship-of-war. [“No, no,” from the ministerial benches, with cries of “Hear, hear,” from the opposition.] Her Majesty’s government had not blamed or reprimanded Sir Baldwin Walker for the view he had taken, and the attorney general has told us that as she had been allowed to depart after her first visit, it would have been a gross violation of faith to keep her when she came the second time. [Hear, hear.] Accordingly she was ordered to be released, but as she had been detained for some time the duty of the government was to have made an apology, to have said, “We are sorry for what has occurred; it occurred under a misapprehension; you shall have your ship back, and for any loss you may have sustained you shall be indemnified.” [Hear, hear.] The government say that they wish to maintain strict neutrality; but I want to know whether they do so. [Hear, hear.] Will any member of the government stand up and say that if a ship of ours had been seized by another power, as they seized the Tuscaloosa, would they have been content with a despatch stating that it was a mistake, and with the restoration of the ship without apology? [Hear, hear.] You act so with a people with whom you think you can deal in that way with safety; but would you have acted so with the United States? [Hear, hear.] Was that the course you took with the United States when you found that they had been guilty of a gross violation of our neutrality with respect to enlistment on the coast of Ireland? [Cheers.] This may be the vaunted neutrality of the government, hut it in no wise deserves the name, because it consists in doing all the mischief you can to one belligerent so long as you think it is safe to do it, and, when you find you can no longer do it with safety, in ungraciously, churlishly, and without apology, restoring the property you are afraid any longer to keep. [Cheers.] I now pass from the matter connected with the Tuscaloosa, and come to the more important point to which the motion refers—namely, that the instructions contained in the Duke of Newcastle’s despatch of the 4th of November, 1863, which still remain unrevoked, are at variance with the principles of international law. This has nothing to do with the case of the Tuscaloosa, for that is past and gone, and the question is whether those instructions, issued for the future, may not land you any morning in a war not only with one of the belligerent powers, but with the neutral powers of Europe. I thought, from what had passed a few evenings ago in another place, that we might have been relieved from discussing this question. I did not understand the foreign secretary to have justified for one moment, in point of international law, the correctness of the Duke of Newcastle’s instructions with respect to the future. On the contrary, I understand him to have said that he agreed in thinking that the despatch went somewhat too far; and he said that the question whether prizes should be seized and detained was one deserving serious consideration. If the despatch had contained those words it would have been the climax of the despatch, for in the first part it would refuse to give the information asked for on one point; and on the other point it would have stated that the question was one deserving serious consideration. [Cheers and laughter.] However, to-night we have had a view presented to the house, which makes it incumbent for the house to deal with the question. If the law officers of the crown had followed the course taken by the foreign secretary, “We do not justify the instructions in that despatch, and are proceeding to take measures to revoke them,” we might have been relieved from the present discussion; but to-night, in the boldest and strongest language, the attorney general and the solicitor general have been heard to affirm every word of the instructions, and to contend that they are consistent with international law. What is the order of her Majesty which is said to have been violated? It is this: Lord Russell, writing to the lords of the admiralty, says that her Majesty is desirous of preserving strict neutrality, and with a view to carry that intention into effect it is proposed to interdict the armed ships and privateers of both parties from bringing prizes into the ports, harbors, and roadsteads of the United Kingdom and colonies. Therefore, the government issue instructions to naval and other authorities accordingly. That is the only intimation given, and if the matter rests there, I contend with perfect confidence that it would have been a gross violation of good faith and international law for the government to give instructions to their officers without notice to the officers of either of the belligerents—that, if a prize came into a harbor belonging to the Queen, they were to seize it, divest it from the persons who brought it in, and restore it to the original owner. There is no good faith in that; but the matter does not rest there. I will ask the house to get rid of the question altogether as relating to the confederates, because some gentlemen have strong views with regard to them; but suppose a vessel belonging to the United States captured a prize at sea, and found it. convenient to bring it into one of our colonial harbors, I want to know what course would be taken. I can understand that our officials in the colonies might desire the prize to be taken away, might prevent the prize having communication with the shore, and might use force, if necessary, to make the prize leave the harbor and go out to open sea; but do you suppose that if our naval forces at one of our colonies were to attempt to capture the prize and give it to the confederates, the United States would for one moment tolerate such conduct? [Hear, hear.] Suppose the northern States of America captured a French ship, thinking her a proper prize, and carried it into one of our harbors; the governor, acting on your instructions, seizes the prize and hands it over to the French owner. But he will not come to you at all; he will go to the court of the capturing power—the prize court of the United States—and say, “Where is my ship? Restore it to me with costs and damages.” The French owner goes to the American court and says, “Bring in my ship, in order that I may have it restored and get my costs and damages.” “No,” says the captor, “we haven’t got it; the English government took it from us; very likely they are keeping it for you at the Cape of Good Hope.” To the Cape of Good Hope then goes the French owner and makes his demand. “Oh yes!” says the colonial governor, “We’ve got it all right; here it is—you are quite welcome to it.” “Well, but,” says the French owner, “what about my costs and damages [hear]? my ship has been rotting; she has lost a voyage, and the damages I want are a great deal more than the value of the ship.” I want to know whether the government are going to undertake to pay costs and damages in such cases. This is not the case of a belligerent; it is the case of the French government; and will you tell the French government that you will not pay costs and damages; that they may be thankful to get back the ship, although you have deprived them of the advantage which international law gave them of going to the court of the captor and getting costs and damages there? [Hear, near.] Does the attorney general mean to say that is international law—that there is any precedent for such doctrine? If we are to have any more argument to-night [“no, no,” from the ministerial, and ironical cheers from the opposition,] I shall be— I shall be glad to hear whether the government can controvert that clear proposition. What is the sole fragment of authority for the doctrine which the attorney and solicitor generals have propounded in the House of Commons to-night? I was very much surprised to hear this authority first put forward by the solicitor general in a very solemn manner, and repeated afterwards by the attorney general. Says the solicitor general, it is not a new doctrine—it is quite old and common; it depends upon the simplest and clearest principles, because it is a plain doctrine of international law that if a prize is taken in neutral waters the neutral steps in, takes the prize, and restores it to the owner. Moreover, the same thing happens when a prize is taken on the high seas by a ship fitted out in the neutral jurisdiction; whenever the prize comes within the jurisdiction of the neutral the neutral may seize and hold it for the owner. And, say the attorney and solicitor-general, the ground of this is that your neutrality has been violated; and whenever your neutrality has been violated you may go at once and seize any prize which comes into your possession. I was very much amused at an observation of the attorney general in reference to the colonial attorney general, which he might perhaps have rather more justly applied to the solicitor general. My honorable friend said that the colonial attorney general when he quoted Wheaton—which was a text book— did not perceive the special and limited application of what he was quoting. I venture to recommend that observation to the solicitor general. [A laugh.] It is a dangerous thing to quote elementary writers unless you cite the whole of what they say on a particular subject. If the solicitor general had looked a little closer at this part of Wheaton he would have seen there a most material statement, which would have relieved him from much of the obscurity into which he has fallen. Wheaton says: “The jurisdiction of the national courts of the captors to determine the validity of captures made under the authority of their government is exclusive of the judicial authority of every other country, with two exceptions only,” which two exceptions are the cases mentioned by the solicitor general, and which, being two exceptions only, negative the idea of there being any other exceptions. The first is where a capture has been made within the territorial limits of the neutral, and the second where it has been made by all armed vessel fitted out within the neutral jurisdiction. Wheaton then goes on to say that Louis XIV did make an ordonnance in 1681, by which he attempted to extend the rule; but it was always considered unsound international law, and had never been acted on. This is not a mere question of words. No power has got the right to take a prize by the strong hand and restore it by the strong hand. What your right is, is to set up an admiralty jurisdiction to determine the question of rightful capture. These questions are not to be determined by a colonial secretary, but by a court duly founded for the purpose; and no international law has said that you may have a prize court unless in those two excepted cases; and if you go beyond those cases you go beyond the limits and violate international law. [Hear.] The attorney general was driven by despair to rely on an ordinance of Holland 200 years old, [a laugh,] which, so far as we know, has never been acted on, and which, if it were acted on, would prove immensely too much—in fact, so much that I don’t suppose the attorney general would rely on it for a moment. It was a municipal ordinance passed to this effect—that if a ship-of-war and a prize came into a certain part of their canals, not only the prize should be seized, but the ship-of-war also, and everybody on board put in prison. [A laugh.] Is that the view of international law taken by the government? [“Hear, hear,” and laughter.] These are the only authorities which the government can produce. Mr. Wheaton, into whom the solicitor general has only cursorily looked, when he is properly understood, limits interference expressly to two exceptional cases; and as for the Dutch ordinance, I make the attorney general a present of that with all my heart. [Hear, hear.] If the government had told us here as was declared in another place, that they were not prepared to contend for such propositions of international law, then we should have no more to say; but here they contend that these propositions are right, and I say it is the duty of this house to take the matter up. The government, we are told, are considering the matter, but they are considering it with the idea that they have got a right to seize these prizes. It is an affair which demands the attention of the House of Commons, for some morning we may wake up and find a conflict arisen in some one of our colonies, in which we shall have the mortification of having to admit that we are altogether in the wrong. [Hear, hear.] I appeal, therefore, to the House of Commons to affirm the proposition contained in the motion of my honorable friend, that the instructions given by the Duke of Newcastle to Governor Wodehouse, which remain still unrevoked, are at variance with the principles of international law. [Loud cheers.]

The house then divided and the numbers were:

For the amendment	185
Against	219
Majority against the amendment	34

The result was received with cheers.