swear allegiance to the Government of the United States; and that I did not believe that it would be in conformity with strict neutrality to force these men on board of the Sumter. Since my interview with the governor I hear that orders have been given to the police authorities not to permit these men to be forcibly taken on board of the Sumter by her officers, and up this hour (7 p. m.) they remain on shore, mostly in a state of intoxication. All these circumstances may probably retard the departure of the Sumter from this port; still I sincerely hope that a Federal cruiser may soon appear to do away with any further trouble about this craft. I have every reason to believe that her boilers are defective, and that she is very badly provided with powder and other munitions of war. 1 On the 10th of February Captain Semmes, having it seems in the mean time procured funds, finding the market shut against him, addressed a pressing letter to Captain Warden, the officer of the dock-yard, to be allowed to purchase coal from the government stores. He writes: CONFEDERATE STATES STEAMER SUMTER, Bay of Gibraltar, February 10, 1862. SIR: I have the honor to inform you that I have made every effort to procure a sup ply of coal without success. The British and other merchants of Gibraltar, instigated, I learn, by the United States consul, have entered into the unneutral combination of declining to furnish the Sumter with coal on any terms. Under these circumstances I trust that the government of Her Majesty will find no difficulty in supplying me. By the recent letter of Earl Russell (January 31, 1861) it is not inconsistent with neutrality for a belligerent to supply himself with coal in a British port. In other words, the article has been pronounced, like provisions, unnoxious; and this being the case, it can make no difference whether it be supplied by the government or an individual, (the government being re-imbursed the expense,) and this even though the market was open to me; much more, then, may the government supply me with an innocent article, the market not being open to me. Suppose I had come into port des titute of provisions, and the same illegal combination had shut me out from the mar ket, would the British government permit my crew to starve? Or suppose I had been a sail-ship and had come in dismantled, and the dock-yard was the only place where I could be refitted, would you have denied me a mast; and if you would not deny me a mast, on what principle would you deny me coal, both articles being declared by your government to be innocent? The true criterion is not whether the government or an individual may supply the article, but whether the article itself is noxious or unnoxious. The government may not supply me with powder, why? Not because I may have recourse to the market, but because the article is noxious. A case in point occurred when I was in Cadiz recently. My ship was admitted into a government dock, and there repaired, and why? First, because the repairs were innocent, and secondly be cause there were no private docks in Cadiz. So here the article is innocent, and there is none in the market, (accessible to me:) why may not the government supply me? In conclusion, I respectfully request that you will supply me with 150 tons of coal, for which I will pay the cash, or, if you prefer it, I will deposit the money with an agent, who can have no difficulty, I suppose, in purchasing the same amount of the material from some one of the hulks and returning it to Her Majesty's dock-yard. Here was an occasion where an "habitually insincere neutrality" might have found grounds for making an exception to rules however strict. The only answer, however, which Captain Semmes received was, that "Captain Warden's instructions prohibit him from supplying the foreign men-of-war of any nation with coal, either by purchase or other wise, from the government depot, so long as there is any in the market."? On the 12th of February the United States war-ship the Tuscarora arrived off Algeciras, and was soon followed by the Kearsarge, and later by the Ino, and these vessels thenceforth lay in wait to intercept the Sumter if she attempted to leave the bay. In the mean time her condition remained as helpless as before. On the 18th Mr. Sprague writes to Mr. Adams: "The Sumter still remains in port. The coal companies in this market still persist in refusing to sell her coal, notwithstanding that $12 per ton is offered for it, which is 50 per cent. over the market price."1 Whether by reason of not being able to procure coal, or from fear of being captured by the United States ships which were waiting to intercept her, or both, the Sumter remained at Gibraltar till December, when it was proposed to sell her. Having heard of the intended sale, the United States minister at Madrid desired Mr. Sprague to protest against it. Captain Pickering, the commander of the Kearsarge, though considering the vessel "as of little value," yet thinking that she was offered for sale probably only in order to establish a precedent, and because, in his opinion, "the sale of the so-called confederate war-vessels in British ports was an act as unfriendly and hostile to the United States Government as the purchase of war-vessels in their ports by the same party," advised a similar course.2 Mr. Adams took a wiser and more liberal view. On the 24th of December he writes thus to Mr. Seward: I have the honor to transmit copies of a series of communications received from Mr. H. J. Sprague, the consul at Gibraltar, respecting the movements made at that port to sell the steamer Sumter. As he desired my advice, I gave it to him in the letter, a copy of which goes with the papers. The question of the right to sell the property of a belligerent to a neutral in a neutral port is not without its difficulties, and I find the authorities differ materially about it. My own leaning is rather to a liberal construction, especially as in this case it relieves us from a burdensome process of vigilance. Besides which, I find that the Government bought a war-vessel of the Greeks while engaged, in 1826, in their war with the Turks.3 The protest of Mr. Sprague was founded on two grounds: First, that the Sumter was a United States vessel which had been made prize by the confederates; secondly, that the sale was made in order to avoid capture by the vessels of the United States Navy. The local government refused to interfere to prevent the sale, but gave official publicity to the protest of the American consul. The sale took place, and the vessel was sold for $19,500. The purchaser was a Mr. Klingender, said to have been connected with the house of Fraser, Trenholm & Co. of Liverpool. It is probable that the purchase was in reality made on behalf of the latter. It was no doubt believed at the time that the sale was fictitious, and that the vessel was intended still to remain the property of the confederates, and to be employed in her former service, (whence the objection to the sale,) more especially when the vessel, tak ing advantage of a very high wind, slipped away at night and escaped the vigilance of the hostile cruisers, who had instructions from Mr. Adams to seize her, notwithstanding the sale, if she quitted the port and was caught on the high seas. Had the sale been to an unobjectionable purchaser, Mr. Adams was prepared to acquiesce in it. On the 17th of December, three days before the sale, he writes to Mr. Sprague : You will, first of all, confine yourself to the simple duty of watching all the proceedings. In case of any attempt at a merely fraudulent transfer for the sake of escaping harmless from our cruisers and resuming her former career, you will call their attention to the fact, deny the validity of any such proceeding, and invoke their interference. Should it appear to you, on the other hand, that the purchasing parties are foreigners acting in good faith for the conversion of the vessel to some legitimate and peaceful trade, I see no better way of getting rid of a burdensome labor of vigilauce upon a property of little value than to acquiesce in it. On the other hand, should you have reason to suspect a spurious transaction for the sole purpose of extri cating the vessel from its present position in order to replace it in a more effective attitude of hostility to the United States, you will do well to remonstrate with the local authorities, and to send a copy of your remonstrance, together with the evidence on which you rest it, to this legation.1 The vessel arrived at Liverpool on the 13th of February, 1863. There she underwent repairs; all fittings for warlike purposes were removed, and she was reduced to the condition of a freight carrying merchantvessel. But Mr. Dudley maintained to the last the belief that she was again intended to be employed on her former service. The consequence was, that vigorous remonstrances were addressed by Mr. Adams to Her Majesty's government for having permitted the sale of the vessel, on the double ground that the transfer was fictitious, and that the sale of a belligerent ship in a neutral port, effected to avoid capture, is, by the law of nations, unlawful.3 Three complaints are put forward with reference to the foregoing facts: (1.) That the vessel ought to have been compelled to leave the port in conformity with the regulations of January, 1862, as soon as those regulations came into operation, namely, on the 17th of February. (2.) That the authorities ought not to have permitted the sale to take place, more especially as it was fictitious. (3.) That when, after the sale, the vessel entered the port of Liverpool she ought to have been treated as a confederate ship of war, and as such compelled to leave the port under the regulations of January, 1862.4 The first of these heads of complaint is brought forward for the first time in the case of the United States. It never occurred to the zeal either of Mr. Sprague or Mr. Adams to insist on the Sumter being driven out of the harbor into the very jaws of her enemies. It is now insisted on as a flagrant violation of neutrality. As regards this head of complaint it is plain that the only way in which the United States could be prejudiced by the Sumter remaining in the port is that, if compelled to leave, she would inevitably have been captured by the Federal ships which were waiting to seize her. But for this, the longer she remained idle at Gibraltar, incapacitated by want of coal and want of funds, the better; while there, she could do no damage to the commerce of the United States. From the hour she entered the harbor of Gibraltar all complaint of prizes taken or destroyed necessarily ceases. All that the United States could have gained by the Sumter being forced to leave Gibraltar, and being taken by their war-vessels, would have been the few thousand pounds which this old steamer would have sold for; to which, however, should perhaps be added, that the employment of ships to watch her would have ceased to be necessary. But was the government under any obligation to compel the ship to leave on the expiration of the twenty-four hours? The answer is that the regulations of January 31, 1862, did not apply to, but on the contrary excluded, the Sumter, which entered the harbor on the 18th of January, 1862, the regulations applying in terms only to such vessels as should enter ports of Her Majesty, "after the time when the order should be first notified and put in force," in the particular place; which, in this instance, was not till the 1st of February. Even had this been etherwise it would have been impossible with any pretense of justice to apply, ex post facto, to a vessel which had entered the port, when no 1 United States Documents, vol. ii, p. 514. 3 British Appendix, vol. ii, p. 58. such regulations existed, a rule which must inevitably have had the effect of delivering her into the hands of her enemies. Again, even if the third article of the regulations had been applicable to the Sumter, the fact that the necessary effect of forcing her to leave the harbor would have been to give her up to hostile vessels, waiting just outside to seize her, would have afforded, I think, a sufficient ground for suspending the regulation, and extending the time beyond the twenty-four hours, under the discretionary power which admits of such extension in cases of necessity. No governor, as it seems to me, is bound to force a vessel to quit a port in which she is in safety, when the necessary effect of doing so must be to throw her into the hands of a more powerful enemy who is waiting for her outside. It is admitted that by the law of nations a vessel taking refuge, when pursued by an enemy, in a neutral port, cannot be pursued. She is protected by reason of the inviolability of the neutral territory and its waters, and by the right of asylum which the neutral concedes to her. But of what avail would this be, if the neutral were bound, at the expiration of twenty-four hours, to say, "You must quit my port. I am aware that your enemy is waiting outside to seize you, but your time is up and you must go. If, indeed, your enemy were inside the port, I could give you twenty-four hours start of him, which would probably enable you to escape; but he is just outside the port instead of within it, and I must therefore leave you to your fate." I cannot think that any governor would be bound to drive a vessel out of a port where she is in safety, when the necessary consequence must be her capture or destruction, any more than he would be bound to do so if the consequence would be her exposure to a hurricane. The regulation never was intended to apply to such a case. Furthermore, I cannot help thinking that giving an equitable construction to the third article of the Queen's regulations, the inability to procure a supply of coal, also brought the vessel within the exceptions contained in it, although coals are not specifically mentioned. The Sumter, indeed, had her sails and could have put to sea; but it is obvious that a steamer without coal, in the face of powerful steamships, would have but a poor chance. Thus crippled, her power of navigation on the ocean or of escape from enemies being seriously impaired, she would be the crippled duck in the comparison of M. Drouyn de Lhuys. Supposing a sailing-vessel dismasted, in a port at which no mast suitable to her size could be procured, the local authority would certainly not be bound to compel her to leave; the case would be within the exception; but what masts and sails are to the sailing-vessel, coal, in addition to her machinery, is to the steamer. If, as I have shown, the Queen's regulations did not apply to the Sumter, à fortiori in the exercise of his discretion the governor ought not to have compelled her to leave under the circumstances stated. In answer to the remonstrances of Mr. Adams as to the sale of the vessel having been allowed to take place, Her Majesty's government, under the advice of its law-officers, took this position. The sale of a belligerent ship in a neutral port to avoid capture has in it nothing unlawful. It may possibly be invalid against the other belligerent, into whose hands, but for such sale, the vessel would have fallen; but it is. good against the rest of the world. The vessel may be subject to capture, when again at sea, by a ship of the belligerent, and the new owner must abide by the decision of a prize court of the belligerent as to the validity of his purchase; he cannot claim protection from his own gov ernment in respect of the seizure. But the government of the neutral port cannot interfere to prevent the sale, nor can it prevent the purchaser from dealing with the vessel as he pleases. It is under no obli gation to do so; and, what is still more to the purpose, it has no power to do so. It was, therefore, impossible that the British authorities could, consistently with the law, interfere with the sale or movements of this vessel. They had no power to try the question whether the sale was real or fictitious; even if the transfer had been plainly fictitious, they had no power to prevent the vessel leaving the port as freely as she had entered it. This position appears to me impregnable. I will only add that I do. not find anywhere pointed out by what power, whether derived from statute or common law, the British authorities could have seized or interfered with this vessel after her sale. Even if the British government could be held to have incurred any liability in respect of the Sumter having been suffered to leave Gibraltar, as she never again appeared on the seas as a vessel of war, or did injury to an American ship, no claim to damages can arise in respect of her being permitted to leave, beyond, possibly, the inconsider able sum which may have been her value. The position at first taken by M. Staempfli that, by analogy to the case of a military force taking refuge in a neutral country, in which case an established rule of international law requires that such force should submit to being disarmed and disbanded, a ship of war taking refuge in a neutral port must in like manner be disarmed and dismantled is, as I have shown elsewhere, wholly untenable, the distinction between military and naval forces in this respect being universally admitted. I am glad to find the honorable gentleman no longer insists on it. After the arrival of the ship at Liverpool, Mr. Adams addressing Earl Russell insisted on her being still considered as a confederate vessel of war, and therefore within the Queen's regulations relating to the stay of ships of war in British ports.' Earl Russell gave the proper answer: At Liverpool. I have the honor to inform you that Her Majesty's government have had under their consideration, in communication with the proper law-advisers of the Crown, your letter of the 18th ultimo, stating that you had received information of the arrival of the steamer Sumter at Liverpool, and calling my attention to the bearing on this case of Her Majesty's proclamation, limiting the stay within British ports of vessels of war belonging to either of the belligerent parties. I have now to inform you that Her Majesty's government, in the present state of their information on the subject, are unable to assume, as you appear to do, that the ship lately called the Sumter has not been legally and bona fide sold to a British owner for commercial and peaceful purposes; and unless it were established that the sale was merely fictitious, Her Majesty's proclamation, to which you refer, cannot be deemed applicable to that vessel in the port of Liverpool. To this might have been added that she was no longer a vessel of war. Even if this view were erroneous, the Sumter, never having done further mischief to United States vessels, no claim to damages can possibly arise in respect of her having been allowed to remain at Liverpool. This being so, it may be scarcely worth while to say more about her. But as this pitiful claim is made the occasion of studied insult to Great Britain, on the score of her "habitually insincere neutrality," it is right to observe that as soon as this vessel was known to be at Liverpool, she 1 British Appendix, vol. ii, p. 56. |