prosecuted under the foreign-enlistment act for participating in an unlawful equipment of the ship, on proof merely that he was the registered owner, and without any evidence to show that he had been actually concerned in so equipping her within Her Majesty's dominions. Of this again there was no evidence. No proceedings, therefore, were or could have been taken against Bold. From a dispatch addressed by the United States consul at Liverpool to Mr. Seward, dated 7th August, 1863, it appears that the consul had in the preceding July consulted the legal adviser who had been employed by him in the matter of the Alabama (Mr. Squarey) on this subject, and Mr. Squarey advised as follows:1

Mr. Squarey to Mr. Dudley.
[Extract.]

10 WATER STREET, 1863.

It does not appear to me the engagement of the crew can be treated as an offense against the act, because the only legal contract binding upon the crew was that appearing upon the articles. The men were not liable to do anything except what they had agreed to do by the articles; and from the statements of the men whom I saw, it did not appear that they knew when they shipped that it was expected or intended that they should serve on board a man-of-war or privateer. As regards the liability of the British registered owner to make good to the owners of the American vessel destroyed the loss sustained by them, I conceive it must depend upon the question whether those in command of the vessel at the time can be considered to have been the agents of the British owner. If they were such agents, and there was any evidence to show that the destruction of the American ship could be considered as an act within the scope of their authority, I have no doubt that the owners would be liable; but it appears to me that the circumstances to which I have previously referred go very far to rebut the presumption that such agency existed, and to prove that in destroying the American vessel the officers and crew were acting not for the British owner, but for the government of the so-called Confederate States. In such case I do not think that any liability could be established against the British owner, for it is now well established that the mere fact of being on the register of the ship does not involve liability for the acts or engagements of the master and crew, and that such liability is in fact a question depending upon express or implied agency in every case.

Although, therefore, I do not see how a British owner is to be made liable, there is, in my opinion, a case which justifies the American Government in bringing the matter before the notice of the British government, and requiring explanations from that government of the circumstances under which a British vessel is found to be engaged in the destruction of vessels belonging to American citizens.

With reference to this part of the subject, it may be here stated that, in the month of January, 1864, a prosecution was commenced by the direction of Her Majesty's government against two persons, named Jones and Highatt, (who were admitted to be partners with Bold in the business of ship-store dealers and ship-chandlers, though not in that of ship-owners,) for having, within the Queen's dominions, hired and procured men to engage in the service of the Confederate States, by enlisting on board the Georgia. The case came on for trial at the Liverpool assizes in August, 1864, and the defendants were found guilty and sentenced to pay a fine. No evidence could be produced on the part of the prosecution to show that the men who shipped on board the vessel at Greenock had at that time, or when they were originally hired, any intention to enter the confederate service, although there was evidence that the defendants hired them with the intention of afterward inducing them to enlist in that service.

The Japan, after having been armed, was commissioned as a public ship of war of the Confederate States, under the command of a Lieutenant Maury, formerly an officer in the Navy of the United States, and under the name of the Georgia, by which name she was afterward

known.

[131] *In May, 1863, she was admitted into the harbor of Bahia, and coaled there; on the 16th August she arrived at Simon's Bay, in the colony of the Cape of Good Hope, and was allowed to repair and coal; and in October, 1863, she is believed to have touched at Teneriffe and coaled at that place. On or about the 28th October, 1863, she arrived in the roadstead of Cherbourg, and was shortly afterward admitted into the dock-yard for repairs. She was admitted as a man-ofwar, on the order of the minister of marine, and her repairs (which were not extensive) were made by the dock-yard workmen, and are stated to have been paid for at the usual rate of work done on ships of war, which is less than the rate charged for the work done on merchant ships. She remained at Cherbourg during nearly four months. On the 25th March, 1864, she arrived at Pauillac, the boarding station of Bordeaux, and was reported as in want of repairs for her steam-machinery and of provisions. She was allowed to keep her gunpowder on board, on condition of mooring at Lormont, an anchorage a little distance below Bordeaux. Her machinery having been surveyed and certified to require a fortnight for its repair, she was given that time to remain at Lormont. She remained at anchor, however, until the 28th of April.1 While the Georgia was at Cherbourg, the Florida being at the same time in the harbor of Brest, it was ascertained that some seamen had been induced to go from Liverpool to France in order to join those vessels. Four of these men were identified, upon inquiry made by order of Her Majesty's government, as belonging to the royal naval reserve, and they were forthwith discharged from the force. One Campbell, a keeper of a sailors' boarding-house at Liverpool, was found to have been concerned in inducing them to go, and was prosecuted and brought to trial and pleaded guilty. It was deemed sufficient by the judge to exact security against a repetition of the offense, by requiring him to enter into recognizances in the sum of £150 to appear for judgment when called upon.

On the 2d May, 1864, the Georgia came into the port of Liverpool. Very soon after her arrival there, her crew were discharged, her warlike stores were lodged in warehouses, (where they remained until after she left Liverpool, as hereinafter mentioned,) and the vessel herself was removed to a dock at Birkenhead, dismantled, and offered for sale by public advertisement in the following terms:

For sale, the splendid screw-steamer Georgia, about 750 tons, builder's measurement; built by Messrs. Denny, of Dumbarton, 1863; has engines of 200 horse-power; speed, 12 knots; carries a large cargo; is abundantly found in stores, and ready for immediate employment. For specification and further particulars, apply to Curry, Kellock & Co.

The reason given for selling her was that she was deficient in strength and speed, and was, by her construction, unsuitable for a cruiser.

Directions had been given, shortly after her arrival, that, if not bona fide sold, she should be ordered to leave the port as soon as she had received necessary repairs.

With respect to the manner in which these directions should be enforced, and the power to enfore them, the law-officers of the Crown were consulted, and advised as follows:2

Opinion of the attorney and solicitor general.

If the Georgia is still (as has been hitherto assumed) a public ship of war of a belligerent power, she is, while within Her Majesty's dominions, exempt from all civil and municipal jurisdiction, and it is not, therefore, upon any civil or municipal law of this realm that Her Majesty's government can act, if they should find it necessary to take

1 Appendix, vol. i, p. 442.

* Ibid., p. 456.

any compulsory measures with respect to her; nor will the execution of those measures belong to the commissioners of the customs, or to any other civil authority.

By the universal law of nations, and by the prerogative right of regulating the intercourse between this country and the public ships of war of a foreign government, which belongs to Her Majesty in right of her Crown, it is competent for Her Majesty to prohibit the entrance of any foreign public ship of war into Her Majesty's territory, except under such conditions as she may think proper from time to time to impose; and if any such prohibition is not duly obeyed, it is, in our opinion, perfectly within the competency of Her Majesty to enforce its observance by her military or naval officers, and by the use of force, if necessary.

If the Georgia has ceased to be a public ship of war of the Confederate States, and has been sold to and become the private property of any of Her Majesty's sub[132] jects, the case is different. Under these circumstances, Her Majesty's orders

would no longer be applicable to this ship; and of course, no forcible or other means could be used for the purpose of compelling their observance in a case to which they would not apply. The Georgia, after such a sale, would be exactly in the same situation as the Gibraltar (formerly called the Sumter) was last year; she would be governed by the ordinary municipal law of this country, like any other private ship, the property of British subjects.

(Signed)

LINCOLN'S INN, May 23, 1864.

ROUNDELL PALMER.
R. P. COLLIER.

The vessel was sold to Mr. Edward Bates, a ship-owner carrying on a very extensive business at Liverpool.

Mr. Adams, on being informed of the sale, wrote to Earl Russell, stating that, on behalf of his Government, he must decline to recognize the validity of it, and must claim the right to capture the vessel wherever she might be found on the high seas.

On the 27th July he again wrote to Earl Russell, suggesting that there was reason to suspect that the sale was fictitious, and the vessel intended to be again employed in the confederate service. To this letter Earl Russell replied as follows:1

Earl Russell to Mr. Adams.

FOREIGN OFFICE, August 8, 1864. SIR: With reference to my letter of the 28th ultimo, I have the honor to state to you that Her Majesty's government do not see sufficient grounds for coming to the conclusion upon the statements contained in your letter of the 27th ultimo, that the steamer Georgia is about to be again used for belligerent purposes. With a view, however, to prevent the recurrence of any question such as that which has arisen in the case of the Georgia, Her Majesty's government have given directions that, in future, no ship of war of either belligerent shall be allowed to be brought to any of Her Majesty's ports for the purpose of being dismantled or sold.

I am, &c.,

(Signed)

RUSSELL.

The directions mentioned in the above letter were issued accordingly, and were notified in the London Gazette as follows:

Extract from the London Gazette of September 8, 1864.

FOREIGN OFFICE, September 8, 1864.

It is hereby notified that Her Majesty has been pleased to order, that for the future no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter, or to remain, or be, in any of Her Majesty's ports for the purpose of being dismantled or sold; and Her Majesty has been pleased to give directions to the commissioners of Her Majesty's customis and to the governors of Her Majesty's colonies and foreign possessions to see that this order is properly carried into effect.

On the 8th August, 1863, the Georgia, being then registered in the name of the said Edward Bates, sailed from Liverpool for Lisbon. Off Lisbon, and while on the high seas, she was captured by the United States war-steamer Niagara, and was sent to Boston for adjudication. Appendix, vol. i, p. 459.

1

Mr. Bates, her owner, thereupon wrote to Earl Russell as follows, complaining of the seizure of his ship:

Mr. Bates to Earl Russell.1

LIVERPOOL, August 27, 1864.

MY LORD: I beg to call your lordship's attention to a very serious outrage which has been committed upon me by the United States man-of-war Niagara, in having forcibly seized and sent to the United States my screw-steamer Georgia.

This vessel was, in the month of May last, lying in the Birkenhead dock, and was offered for sale by public advertisement by the well-known ship-brokers, Messrs. Curry, Kellock & Co., of this town.

I had her examined, and, thinking her a suitable vessel, I entertained an intention to purchase her. I knew she was the property of the confederate government, and thereupon, before completing a purchase, I communicated with the custom-house authorities at Liverpool, in order to ascertain whether the authorities would grant me a British register, without which I should not have bought her.

The customs authorities took some time to consider, and during all this period [133] the advertisement *continued in the public papers, and I have no doubt that this public announcement was seen and well known to the American consul at this port.

Eventually I was informed that a British register would be granted to me if I bought her. I concluded a purchase of her, and paid for her on the 13th June last. The purchase-money I paid to Messrs. Curry, Kellock & Co., and received a bill of sale signed by James D. Bullock. This document I presented at the custom-house, where I made the usual declaration of ownership, and the ship was thereupon duly registered in my

name.

During the whole of this period she was in a public dock open to the inspection of the public, and where I dismantled her and proceeded to alter and repair her. All this time I did not receive any intimation from either my government or from the American cousul or other authorities that my purchase was invalid.

In July I received overtures from Messrs. Bennett, of London, through Messrs. Meacock, of Liverpool, as brokers for the Portuguese consul in London, for a charter of the Georgia on time to the Portuguese government. I eventually accepted this charter, and then proceeded to fit her up in accordance therewith as a mail and passenger

boat.

While she was thus being fitted up the Niagara visited the Mersey. The vessel was still open to inspection, and I have reason to believe that the officers of that vessel did inspect her, but no intimation was made to me of the intention to seize my property as soon as she should get into open waters.

So secure did I feel in the possession of my property, that, although the consul general for Portugal conveyed to me his feeling of apprehension of the Niagara, I scouted the idea as something unworthy of credence, and on the 8th August she sailed from the Queen's dock in Liverpool for Lisbon, there to run in the service of the Portuguese government, from that place to the coast of Africa and back, with mails, goods, and passengers. On the completion of this service the Portuguese government covenanted and agreed to deliver my ship to me in the port of Liverpool.

Your lordship may therefore conceive the astonishment and indignation with which I received the intelligence on my return to Liverpool of the vessel having been seized off Lisbon by the United States steamer Niagara and sent to Boston.

I am well known in Liverpool as an extensive ship-owner.

I have no connection with the confederate government or their agents, and never have had, directly or indirectly. ·

I bought the vessel for the purposes of my own business, on an arrangement with the custom-house authorities that I should receive for her a British register, and in the belief that a British register would protect my property from the outrage which has been practiced upon me.

I respectfully submit these facts to your lordship's consideration, and trust that Her Majesty's government will forthwith take such steps as they may deem necessary in order to procure for me a restitution of my ship and compensation for the injury I have I have, &c., (Signed)

sustained.

EDWARD BATES.

Mr. Bates was informed in reply that the question must go before a prize-court in the United States, and that he must be prepared to defend his interest therein. The view entertained of the case by Her

Appendix, vol. i, p. 464.

Majesty's government was afterward more fully explained to him in the following letter:1

Mr. Hammond to Mr. Bates.

FOREIGN OFFICE, September 19, 1864.

SIR: I acquainted you shortly, by Lord Russell's direction, in my letter of the 9th instant, that the case of the Georgia must go before the prize-court in the United States, and that you must be prepared to defend your interest therein.

I am now further to acquaint you, in reply to your letter of the 27th ultimo, that, having consulted the law-officers of the Crown, Lord Russell desires me to state to you that the Niagara, in capturing the Georgia and sending her into a prize-court for adjudication, which it is to be assumed will be the course she will pursue, has not exceeded the limits of her belligerent rights.

If the Georgia had formerly belonged to the mercantile marine of the Confederate States, and been the property of a private subject of the Confederate States, the United States cruiser would have been justified in seizing her upon the high seas, and in taking her into a prize-court for the purpose of submitting to proper judicial investigation the question whether the transfer of an enemy's vessel to a neutral flagrante bello had been bona fide, and executed in the manner and in the circumstances which international law requires. But it is a fact beyond the reach of controversy or denial that the Georgia had formed, till a very recent period, part of the confederate navy. The belligerent, therefore, had, a fortiori, the right to seize her and endeavor to obtain her condemnation in a prize-court. That court will have to determine, not only the question whether the transfer of the Georgia to a neutral owner was real, and accompanied by an entire extinction of all the interests and rights of the former hostile owner, but the much graver preliminary question whether (as against the right of capture of the other belligerent) a ship of war can be lawfully transferred by a belligerent flagrante bello in a neutral port to a neutral, with whatever publicity and however completely the transfer may have been actually made, and whatever alterations the structure, equipment, or employment of the vessel so de facto transferred may have undergone while in the possession of the neutral.

[134] *Lord Russell is further advised that the officers of the custom-house at Liver

pool, in granting to this vessel, upon the production of proper documents, a British register, merely acted in conformity with the municipal laws of this country, which neither undertakes to assist and facilitate, nor pretends upon the high seas to overrule or supersede the right of maritime capture belonging to a belligerent under the law of nations as administered in prize-courts; and that it was certainly no part of the duty of Her Majesty's government to inform a private individual who might entertain the idea of purchasing this vessel of any risk which he might incur by so doing. Nor is Lord Russell aware of any obligation imposed by international law and comity upon the representatives or agents of the United States in this country, or upon the officers of the Niagara when at Liverpool, to give any notice or intimation whatever that the Niagara or any other cruiser of the United States might still consider the vessel a proper subject of capture, whether transferred or not to a neutral, and under whatever register or flag she might sail.

I am to add that the application contained in your letter of the 10th instant for documents in the case is now under consideration, and that an answer will be returned to you as soon as possible.

I am, &c., (Signed)

SUMMARY.

E. HAMMOND.

The Georgia was a vessel built at Dumbarton, in Scotland, and sent to sea from the port of Greenock. For whom she was built and by whom and under what circumstances she was sent to sea are matters as to which Her Majesty's government has no information beyond what has appeared in the foregoing statement.

The Georgia neither appeared to be nor was, up to the time when she sailed from the port of Greenock, fitted out, armed, or equipped for war, nor especially adapted to warlike use. She appeared to be constructed and intended for a ship of commerce. She proved, in fact, to be not fitted for employment as a cruiser, and for this reason she was dismantled and sold after having been at sea for about nine months altogether, ex

1Appendix, vol. i, r. 468.