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Confederate States on board the British post-office packet, the Trent," by an United States cruiser would seem to come within the prohibition laid down by Grotius. Their seizure was justly resented by Great Britain as a direct breach of the law of nations, and the envoys, at the demand of the British Government, were set at liberty by the government of the United States, and allowed to proceed to Europe in a British vessel." This, however, was not done until a strong remonstrance had been made by Great Britain, and a determination had been evinced by her to resort to hostilities rather than yield in her demand; it must be added that the Emperor of the French and some of the European powers strongly expressed their disapproval of this violation of international law. America had to defend and justify her act. Mr. Lawrence gives in his appendix (p. 939) a full account of the correspondence between Earl Russell and the American Secretary of State, Mr. Seward. The former complains that two individuals had been taken from on board a British vessel whilst she was pursuing a lawful and innocent voyage. The latter replies "that the act of Captain Wilkes (the commander of the San Jacinto ') was undertaken as a simple legal customary and belligerent proceeding to arrest and capture a neutral vessel carrying contraband of war for the use and benefit of the insurgents;" he then cites Vattel and the opinions of Lord Stowell; and concludes by saying, "I trust that I have shown that the four persons who were taken from the Trent' by Captain Wilkes, and their despatches, were contraband of war." Much stress was also laid upon the fact that we ourselves, in our war with France in 1812, had taken from American vessels British seamen who had deserted from our ships. What tended to complicate the question was the peculiar position of the Confederate States; they were not admitted to be belligerents, although their ports were blockaded; but they were styled rebels in hostility to their Government. As to the question whether the envoys and their despatches were contraband of war or not, that should


have been by the law of nations decided by a prize court. The lawful mode of procedure would have been for the "San Jacinto" to have made prize of the "Trent" with a view to her condemnation, instead of forcibly taking the envoys out of her. The matter was however brought to an amicable conclusion by the surrender of Messrs. Slidell and Mason; but the points in dispute were not yielded by the United States.

The peculiar position in which the Northern and Southern States of America have placed themselves by their internecine war, not only as regards each other, but also in relation to other States, was recently exemplified in the case of the "Tuscaloosa;" she was originally a Federal merchant vessel, named the "Conrad;" when she was off the coast of Brazil with a cargo of wool on board, she was captured by the Confederate cruiser the "Alabama," whose captain put some guns on board of her and ten men, changed her name to the "Tuscaloosa," and employed her as a tender to the "Alabama." The two vessels were together off the Cape of Good Hope, when the "Tuscaloosa" was ordered to Simon's Bay, for the purpose of obtaining provisions and undergoing some slight repairs. Her Britannic Majesty, at the commencement of the war in America, for the purpose of acting with strict neutrality towards each of the combatants, had issued a proclamation, prohibiting the ships of both parties. from bringing their prizes into the ports, harbours, or roadsteads of the United Kingdom, or of any of the British colonies or possessions. This, it was conceived, was in conformity with a recognised rule of international law. The English Admiral on the station being aware of what had taken place, and having regard to the Queen of England's proclamation, doubted whether the "Tuscaloosa," being an uncondemned prize, could be admitted within the roadstead of Simon's Bay, and sent to the Governor of the Cape for instructions how to act. He having consulted his law officer there returned for answer that the

"Tuscaloosa" having been converted into a vessel of war, and armed by her captors, and having had an officer and crew put on board, had become a vessel of war, and was, therefore, privileged to enter the Bay; she accordingly entered Simon's Bay. The American Consul whilst she was lying there demanded her detention on the part of her original owners. Here arose an important question, on which not only did the English and American authorities differ, but even some of our own statesmen and most eminent jurists in open discussion in the legislature pronounced different views and opinions. It was said on behalf of the English Government, that this was not a bona fide conversion of a merchant prize into a war tender; that it was merely a subterfuge, and that if Confederate ships of war were allowed to send in prizes with their cargo on board (it appeared that the wool remained on board the "Tuscaloosa" after the guns and men were put into her), and by putting a few guns and a Confederate officer on board to call them ships of war, Her Majesty's Proclamation would become null and void. But it was said that there were exceptional circumstances in the case. The Confederates having no ports but what were blockaded it was not possible for them to take their prizes to their own country to be adjudicated upon; they were, therefore, obliged to burn, to sink, and destroy them, or act towards them as they had done to the quondam "Conrad." The general right of an enemy to destroy the captured vessel of his enemy without her condemnation, and as a corollary thereto his right to turn a captured vessel into a vessel of war of his own authority without first taking her into one of their own ports, was warmly discussed both in the Houses of Lords and Commons, and it is to be lamented that the debate was tinged with so much party feeling. The fact that the "Tuscaloosa" was not interfered with on her first resort to Simon's Bay, but was allowed to remain and depart without inquiry, and that it was only on a second visit that any objection was raised to her character or conduct, tended to throw doubt on the sincerity of the pro


ceeding. The conduct of Government was, however, approved by a majority in the House of Commons; in the House of Lords there was no division. The view of our Government on the whole question was summed up in the despatch of the Duke of Newcastle to the Governor of the Cape: "The mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territory, 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.” * This, however, does not settle the general questions involved in the case. It having occurred since the publication of either Dr. Twiss or Mr. Lawrence's work, we lose the benefit of any comments they might devote to it, as directly bearing upon it. But in the volume of the former, at the head of this article, at page 344, under the subject of re-capture, we read: "It is within the province of every country to regulate by its municipal law all questions of re-capture between its own citizens, but an exception has been maintained in our prize courts in the case in which the enemy has fitted out his prize as a man-of-war." He also states (page 340), as bearing on the power of restoration by the authorities at the Cape of the "Tuscaloosa" to her original owners:-"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 the jus postliminii, if the vessel should be re-captured, or as between the captor of the vessel and a third party, Mr. Wheaton states as a general proposition that where

* Subsequently, however, a despatch was sent to the Governor of the Cape, in these words: "Her Majesty's Government have therefore come to the opinion 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."

the capture of enemy's property is made within the territorial limits of a neutral State, or by armed vessels fitted out within the neutral territory, in either of these cases, the judicial tribunals of the neutral State have jurisdiction to determine the validity of the captures thus made by restoring the property of its own subjects or of other States in amity with it to the original owners." It was urged on the part of the Government that the principle here evolved applied to the present case; that our neutrality had been violated by the "Tuscaloosa" being brought into one of our colonial roadsteads in defiance of Her Majesty's Proclamation. But it was justly observed by those in opposition to the Government that the capture had not taken place in neutral territory, or by an armed vessel fitted out there, nor had there been any judicial inquiry for the purpose of condemning the "Tuscaloosa" as legal prize, and therefore the authority of Wheaton was inapplicable. But we would refer those anxious to learn all that was said on the subject to the Parliamentary debate, which is full of learning and interest.* The fact is, the case was one of a very peculiar nature, which had not before arisen, and to which therefore no definite rule of international law could be applied-analogy was substituted for precedent.

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We cannot but express our satisfaction and thankfulness at the advance which humanity and civilisation have made towards mitigating the evils of war, the more especially as regards neutrals; still much remains to be accomplished. It has been said that owing to the greater vigour and energy with which hostilities would be carried on in these our days, war would sooner be brought to an end, and instead of being extended over years, as heretofore, would quickly end by the defeat of the less powerful or skilful combatant. The battle of Solferino may perhaps have justified this speculation, but our own Crimean war, and the prolonged

And to the correspondence presented to the House of Lords in pursuance of their address of Feb. 16, 1864 (North America, No. 6, 1864).

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