her real character, while no means existed in the colony for determining whether she had or had not been legally condemned.1

Having afterward found that the vessel had her cargo of wool still on board, and that her armament was only what has been stated, Sir B. Walker felt still more doubtful as to the real character of the vessel. Writing to the governor on the 9th of August he says:

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, the 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 on board her, (in fact nothing but 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 defense.

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 transshipment 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."

The attorney-general, however, on being again referred to, reported that "if the vessel received the two guns from the Alabama or other confed erate 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. If all of these points be decided in the negative, she must be held to be only a prize and ordered to leave forthwith." 3

The admiral on this gave way, and the Tuscaloosa was treated as a ship of war, and as such admitted into the harbor and allowed to obtain provisions. She left the bay on the 14th of August, and Captain Semmes having contrived to dispose of her cargo of wool at a place on the coast beyond the precincts of the colony, dispatched her on a cruise to Brazil.5

While thus occupied she is said to have done some mischief to United States vessels.

The Tuscaloosa again put into Simon's Bay on the 26th of December, 1863.6

In the mean time, the government having reported to the secretary of state for the colonies what had happened on the occasion of her former visit, the Duke of Newcastle had deemed it right to take the opinion of the law-officers of the Crown as to the law applicable to such a case. On the 19th of October the law-officers reported as follows: Upon the point raised with regard to the vessel called the Tuscaloosa, we are not able to agree with the opinion expressed by the attorney-general of the Cape Colony, that she had ceased to have the character of a prize captured by the Alabama, merely be cause she was, at the time of her being brought within British waters, armed with two small guns, in charge of an officer, and manned with a crew of ten men from the Alabama, and used as a tender to that vessel, under the authority of Captain Semmes. 1 British Appendix, vol. i, p. 309.

It would appear that the Tuscaloosa is a bark of 500 tons, captured by the Alabama off the coast of Brazil on the 21st of June last, and brought into Simon's Bay on or before the 7th of August, with her original cargo of wool (itself, as well as the vessel, prize) still on board, and with nothing to give her a warlike character, (so far as appears from the papers before us,) except the circumstances already noticed.

We therefore do not feel called upon, in the circumstances of this case, to enter into the question whether, in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent government, without being first brought infra præsidia or condemned by a court of prize, the character of prize, within the meaning of Her Majesty's orders, would or would not be merged in that of a national ship of war. It is enough to say that the citation from Mr. Wheaton's book, by the colonial attorneygeneral, does not appear to us to have any direct bearing upon this question.

Connected with this subject is the question as to the cargoes of captured vessels, which is noticed at the end of Sir Philip Wodehouse's dispatch of the 19th August last. We think that, according to the true interpretation of Her Majesty's orders, they apply as much to prize cargoes of every kind which may be brought by any armed ships or privateers of either belligerent into British waters as to the captured vessels themselves. They do not, however, apply to any articles which may have formed part of any such cargoes, if brought within British jurisdiction, not by armed ships or privateers of either belligerent, but by other persons who may have acquired or may claim property in them by reason of any dealings with the captors.

We think it right to observe that the third reason alleged by the colonial attorneygeneral 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 competent of jurisdiction;" and the proposition that, "admitting her to have been captured by a ship of war of the Confederate States, she was entitled to refer Her Majesty's government, in case of dispute, to the court of her States, in order to satisfy it as to her real character," appears to us to be at variance with Her Majesty's undoubted right to determine, within her own territory, whether her orders, made in vindication of her own neutrality, have been violated or not.

The question remains, what course ought to have been taken by the authorities at the Cape, first, in order to ascertain whether this vessel was, as alleged by the United States consul, an uncondemned prize, brought within British waters in violation of Her Majesty's neutrality; and secondly, what ought to have been done if such had appeared to be really the fact? We think that the allegations of the United States consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters; and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, it would, we think, deserve very serious consideration whether the mode of proceeding in such circumstances, most consistent with Her Majesty's diguity and most proper for the vindication of her territorial rights, would not have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners.1

It will be observed that in the foregoing opinion of the law-officers, the question whether the Tuscaloosa should, under the circumstances, have been detained for the purpose of being restored to her original owners, is suggested as one deserving, should the like case recur, of very serious consideration; it is by no means one on which a positive opinion was intended to be given. The governor and the admiral, however, considered it as establishing not only that they ought to have detained the Tuscaloosa, when formerly within their jurisdiction, but as imposing on them the duty of doing so now that, having returned to the Cape, she was again within their power. They accordingly took possession of her. Her commander, Lieutenant Low, thereupon addressed the following protest to the governor:

TUSCALOOSA, SIMON'S BAY, CAPE OF GOOD HOPE,
December 28, 1863.

SIR: As the officer in command of the Confederate States ship Tuscaloosa, tender to the Confederate States steamer Alabama, I have to record my protest against the recent extraordinary measures which have been adopted toward me and the vessel under my command by the British authorities of this colony.

1 British Appendix, vol. ii, p. 323.

In August last the Tuscaloosa arrived in Simon's Bay. She was not only recognized in the character which she lawfully 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 25th 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.

But, by the course of proceedings taken, I have been (supposing the view now taken by your excellency's government to be correct) first misled, and next entrapped.

My position and 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.

I demand, however, the release of my ship; and, if this demand be not promptly complied with, I hereby formally protest against her seizure, especially under the very peculiar circumstances of the case.

Upon this proceeding being reported to the government at home, the opinion of the law-officers was again taken. It was felt that what had been done could not be properly upheld. It was obviously one thing to have seized the Tuscaloosa on the former occasion, as a prize brought into a port of her Her Majesty; a very different thing, after she had been treated as a ship of war, and allowed to go free, to let her come again into port in the like character without notice of any hostile intention, and then to seize and practically condemn her. Assuming-of which, however, I must say I entertain very serious doubts-the right and power of the government to take such a course, it savors too much of perfidy to be a course which Her Majesty's government could pursue with a due regard to honor and good faith. Orders were therefore sent out by the secretary of state for the colonies "to restore the vessel to the lieutenant of the Confederate States who lately commanded her; or, if he should have left the Cape, then to retain her until she can be handed over to some person who may have authority from Captain Semmes, of the Alabama, or from the government of the Confederate States, to receive her."2

The order to restore this vessel has been reflected upon in the case of the United States; but I cannot but think that the decision come to by the government was, under the circumstances, perfectly right; not only for the reason assigned, but also because, whatever might have been the power of the British government to seize this vessel while still retaining the character of a prize, she had now been invested with that of a vessel of war belonging to a belligerent, and was therefore no longer amenable to the municipal jurisdiction.

The question is, however, of no practical importance whatsoever. The Tuscaloosa never was delivered up. Lieutenant Low having left the Cape when the order of the Duke of Newcastle came out, she remained in the custody of the local authorities till the end of the war, and was then delivered up to the United States. No claim of damages

can arise, therefore, with regard to her in this respect.1

A serious question of law, however, presents itself in respect of whatsoever damage may have been done by the Tuscaloosa, while cruising in the interval between her leaving the Cape and her return to it. This liability may be asserted on two grounds: first, it may be said that, the Alabama having been enabled to make war on the commerce of the United States through the want of due diligence on the part of the British government, and the Tuscaloosa having been taken by the Alabama and converted into a ship of war employed in the same warfare, the mischief done by her must be looked upon as the consequence of such original default of the government, and must be answered for accordingly; a proposition obviously involving very serious consequences, as leading to a liability of a most extensive and unlimited character. Secondly, it may be said that the Tuscaloosa ought to have been seized and delivered up to her original owners, when first found at the Cape, and that the British government must, as having allowed her to go free, be held liable for any damage afterward done by her. But this argument, of course, assumes, first, that the government had the power and right to seize this vessel; secondly, that it was under any obligation to do so; thirdly, that if such an obligation existed, it rendered the government liable to do more than compensate the original owners, and involved them in liability toward the United States Government.

The question, though of some legal interest, is otherwise but of small importance by reason of the very small amount of damage done by this vessel. On the whole I am disposed to think, though not without some doubt as to whether the damage may not be too remote to found a legal liability, that the mischief done by the Tuscaloosa being the direct consequence of the equipment of the Alabama, on the principle that "omne accessarium sequitur suum principale," those who are answerable for the one must be answerable also for the other. I acquiesce, therefore, in the decision of the rest of the tribunal in respect of this vessel.

CASE OF THE GEORGIA.

The case of the Georgia is one in which not even the desire to establish great principles of neutrality at the expense of Great Britain can, as it appears to me, find matter on which to found a charge of want of due diligence.

The Georgia.

This vessel was built at Dumbarton, on the Clyde, and was evidently originally intended as a blockade-runner, which may account for the interesting fact, thrice repeated in the American case and argument, that she was christened by a young lady, the daughter of Captain North, who was in some way connected with the insurgent service.

The Georgia was evidently not constructed as a vessel of war, though afterward applied to that purpose. The vigilance of the government having been aroused by the escape of the Florida and the Alabama, the building of ships of war for the confederate service had become a matter of extreme difficulty, and recourse was had to the contrivance of converting ships, originally built as blockade-runners, into vessels of

war.

1 British Appendix, vol. i, p. 363.

She was registered on the 20th of March, 1863, as the property of a Mr. Thomas Bold, a merchant of Liverpool, on his declaration that he was the sole owner. She was advertised at the Sailors' Home at Liverpool, as about to sail for Singapore; seamen were engaged for her as bound to that port, and her crew signed articles for a voyage to Singapore, or any intermediate port, for a period of two years."

On the 1st of April this vessel, the name of which had been changed to the Japan, cleared out in ballast for a voyage to Point de Galle and Hong Kong. Her crew, the number of which, as appears from the deposition of Thomas Mahon, one of them, was about 50, but which, according to the report of the chief officer of customs, was in fact 48,7 though magnified by Mr. Dudley into 70 or 80, having been hired at Liverpool by the firm of Jones & Co., of that place, were sent by steamer to the Clyde. They had shipped for a two years' voyage to Singapore, there and back, and beyond all question had shipped in the honest belief that the ship was bound for that place. The vessel sailed on the 2d of April from Greenock, but appears only to have dropped farther down the river, and not to have finally left till the 6th or 7th. Mr. Dudley, on the 3d of April, writing to Mr. Seward on the subject of this vessel, adds:

My belief is that she belongs to the confederates, and is to be converted into a privateer; quite likely to cruise in the East Indies, as Mr. Young, the paymaster from the Alabama, tells me it has always been a favorite idea of Mr. Mallory, the secretary of the confederate navy, to send a privateer in these waters. I sent a man from here to Glasgow to accompany these men, to endeavor to find out the destination of the vessel, &c. He has not been successful yet in his efforts. He has been on board, and writes that she has no armament, and he is still there watching her. I have directed him, before he returns, to visit the yards in the Clyde, and to go down to Stockton and Hartlepool.

From a letter from Mr. Adams to Mr. Seward, of the 9th, it appears that that gentleman "had long been in possession of information about the construction and outfit of this vessel in the Clyde; but," he adds, "nothing has ever been furnished me of a nature to base proceedings upon. Neither had there been, assuredly, up to this time, anything which would have justified Mr. Adams in applying to Her Majesty's government to seize this vessel, or the government in seizing her.

6

The measuring surveyor, who had surveyed her on the 17th of January, and had been on board on two subsequent occasions for the purpose of completing his survey, stated that she "appeared to him to be intended for commercial purposes, her frame-work and plating being of the ordinary size for vessels of her class." The collector of customs, upon an inquiry being afterward directed by the government, reported:

I have questioned the officer who performs tide-surveyor's duty afloat, and who visited her on the evening of the 1st instant, to see that the stores were correct. He informs me he saw nothing on board which could lead him to suspect that she was intended for war purposes. I can testify that she was not heavily sparred; indeed, she could not spread more canvas than an ordinary merchant-steamer. I beg to add, when the tide-surveyor was on board, the joiners were fitting doors to the cabins.

The vessel left ostensibly for the purpose of trying her engines, and an intention was professed of returning to land the joiners who were on board.