it would be exposing those vessels to almost certain recapture to attempt to bring them into our ports; for the captured vessels are almost invariably sailing vessels, and the enemy's cruisers off our ports are steamers."

Now, there is nothing more certain than that neutral property not contraband on board an enemy's ship is not liable to belligerent capture. Wheaton expresses himself on this point with his usual precision:

"The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent communicates no hostile character to neutral property.” It being, then, the undoubted and unquestionable rule of law that neutral property on board an enemy's vessel is a thing with which a belligerent has no right to meddle or dispose of, let us see how Mr. Benjamin proposes to deal with it. The “i tions" thus proceed:

"If, for instance, Great Britain will not permit a captured enemy's vessel to be carred into one of her ports for the purpose of their delivering to a British subject his goods found on board, she would certainly have no just ground of complaint that the goods were not restored to their owner. If, therefore, on the renewed representations we are about to make, we find neutral nations persist in refusing to receive the property of their subjects in their own ports when captured by us on enemy's vessels, it will become necessary to instruct our cruisers to destroy such property whenever they are unable to bring the prize into our ports."

That is to say, in case Great Britain should not, at the orders of the confederate government, reverse the policy which, in common with all the nations of Europe, it has adopted, and allow her ports to be made a market for prizes, then the confederate cruisers will seize, burn, and destroy British property, over which they have no more right than they have over the coffers of the Bank of England, without process of law or color of justice. This is what Mr. Benjamin means to do to us unless we mend our ways; but he intends, it seems, to give us a short space for repentance, and "in the mean time" he will be content with an installment of injustice, for he proceeds:

"The commanders of our national cruisers should be instructed to continue their former practice of allowing the enemy to ransom his vessel in cases where the neutral property on board is of large value or bears any considerable proportion to that of the enemy; but if a ransom bond is refused, or if the proportion of neutral property• on board is small compared with the value of the vessel and hostile cargo, the whole should be destroyed whenever the prize cannot be brought into a port of our own or of a neutral country."

That is to say, the question whether neutrals should or should not be wholly dispossessed of their own property, over which the captor has no right, is to depend upon whether the belligerent captain in whose vessel it is freighted chooses or not to ransom the ship, and on the proportions which the neutral bears to the belligerent cargo. Was so outrageous a scheme ever so coolly propounded? The logic of Mr. Benjamin comes simply to this: "Because you don't choose to ask me to dinner, I will rob your orchard."

A man who deals in this fashion with property over which he can have no possible. right is not likely to be much more scrupulous in cases where, if he pursued the proper course, he might be entitled to capture. Accordingly, we find that Mr. Benjamin treats the second head of neutral rights in an equally summary and lawless manner. The instructions under class C are as follows:

"C. A vessel really neutral, with cargo wholly or in part belonging to the enemy." After an empty flourish about the right of the confederacy to seize enemy's goods on board neutral vessels, in spite of the declaration of Paris, which right, however, the confederate secretary discreetly announces his intention to waive, he thus proceeds: "The cruisers of the confederacy will therefore allow vessels of neutrals to pass free, unless laden with contraband of war destined for the enemy's ports. When such vessels are found to be laden with goods contraband of war, the contraband goods, if not the property of the owner of the vessel, are to be taken out, if practicable, and transshipped or destroyed, and she is to be allowed to continue her voyage. But if the owner of the Vessel has put on board contraband goods belonging to himself, destined for the enemy's country, he thereby forfeits the neutral character, and the ship is to be considered an enemy's vessel and to be dealt with as such. No conflict with neutral powers on this subject is to be apprehended, as they have, with entire unanimity, issned proclaIations forbidding their subjects during the present war from engaging in contraband trade under penalty of forfeiture of national protection."

Ihat is to say, the question of the contraband character of the goods, and the consecnent confiscation of the goods, and even, under certain circumstances, of the vessel it-elf, is to withdraw from the cognizance of the court to whom the law of nations

4 A C-VOL. IV

has remitted it, and is to be adjudicated upon the spot, at the discretion and on the responsibility of the captain.

This is what Captain Wilkes pretended to do in the case of the Trent, and we all know how the English government dealt with his decision, though reinforced by personal study of Kent and Wheaton. Mr. Benjamin was never more mistaken in his life than when he supposes that "no conflict with the neutral powers on this subject need be apprehended." It is perfectly true that the neutral powers have notified to their subjects that they will not be protected in a contraband trade; but in order that trade should lose its rights to the protection of the sovereign it is necessary that its contraband character should be established in the only legitimate manner-i. e., by the sentence of a prize court.

The confederate government may rest well assured that England will no more trust the decision of such questions to the learning of Captain Semmes than to that of Captain Wilkes. The forcible destruction of neutral property without adjudication is a national insult, which will meet with the most prompt and exemplary chastisement. The next head of the confederate secretary's instructions is, if possible, more preposterous and outrageous:

"D. A vessel ostensibly neutral, but really hostile, fraudulently placed under neutral flag and furnished with fraudulent papers to protect her from capture:

The embarrassment in actual practice may be considered as occurring almost exclnsively in cases where an enemy's vessel has been, since the commencement of the present war, transferred to neutrals. The law of nations on the subject of the right of a belligerent to make legal sale to neutrals flagrante bello is not settled by universal concur

rence.

"Our cruisers ought, therefore, to be instructed that where a vessel of the United States has been sold in good faith to a neutral since the commencement of the war, and where the title is so absolutely transferred as to divest the enemy of any future interest in the vessel, she is free from capture. If, however, any enemy's interest in the vessel remain, if she be mortgaged or hypothecated to the enemy, she is as much liable to be dealt with as a hostile vessel as though no transfer to the neutral had been made.

"It frequently occurs, however, that a belligerent makes simulated sales of vessels to neutrals with the view of protecting them from capture, and, under ordinary eircumstances, when the other belligerent has reason to suspect the good faith of the transfer, the suspected vessel is brought into court for adjudication by the admiralty. "This course is not open to our cruisers for the reasons above explained, and the only instructions, therefore, practicably applicable, under the circumstances, are the following:

"The captor should in every case make rigid examination of the papers and documents of every vessel sailing under a neutral flag known to have belonged to the enemy at the commencement of the war.

"He should take into consideration the nature of the trade in which the vessel is engaged, the national character of the master, the papers found on board, the place at which the alleged sale to the neutral took effect by delivery of the vessel, and every other circumstance tending to establish the true nature of the transfer, and to satisfy his mind whether the vessel be really neutral or merely disguised as such.

"If the captured vessel has double sets of papers, or if papers have been destroyed or subducted by her master during the chase, or if she has continued in the same course of trade and under the same master since the alleged sale to the neutral, it may be safely concluded that the property is still hostile and covered by fraudulent use of neutral flag.

"In these and all other cases, when there is great and decided preponderance of evidence to show that the vessel is really enemy's property, the cruiser must act on his conviction and treat her as such, leaving to his government the responsibility of satisfying any neutral claim for her value.

"But whenever the evidence leaves serious doubt as to the true character of the transfer, it will be proper rather to dismiss the vessel if she cannot be brought into port, than to exercise a harsh and doubtful belligerent right."

Every one in the slightest degree conversant with the literature of prize courts must be aware that the questions here referred to lie inter apices juris. The extent of interest which a belligerent may retain in a vessel ostensibly transferred, the facts which justly lead to the conclusion that an apparent sale is not bona fide-these and all the cognate questions are matters of the nicest and most complicated kind, which require for their just solution the patient and impartial application of judicial analysis of the highest order. And these are the questions which Mr. Benjamin proposes to leave to the instant decision of the confederate captain, who is to "act on his conviction," and to release or burn the ship, according as he may "satisfy his mind" on the subject. Just conceive a captain of a cruiser like the Alabama or the Florida with a rich prize just captured after an exciting chase, descending into his cabin to consider whether any enemy's interest in the vessel remains," whether she is really mortgaged or

66

hypothecated," or whether the title is so "absolutely transferred as to divest the enemy of any future interest;" and then, having "satisfied his mind" that there is "great and decided preponderance of evidence" against the ship, proceeding "to act on his conviction," and to burn the vessel and destroy at once the property and the means of proving its innoconce. Does the confederate government really believe that any neutral government in the world would tolerate such conduct for an instant? The confederate secretary seems to imagine that in case of any unfortunate error on the part of the cruiser acting under these instructions, it will be easy enough for his government to "satisfy any neutral claims for the value." In the first place, as Sheridan said, "I don't like the security." But, besides, I will venture to tell the confederate secretary of state that he is very much mistaken if he supposes his instructions can be so easily atoned for. When an unauthorized officer like Captain Wilkes committed an outrage which his government is in a position to disavow, the affair may be readily accommodated by an apology and by restitution. But when the act is one by anticipation, deliberately authorized by the government itself, there is no room for apology or compensation. A man cannot be permitted to enter on a system of lawless plunder simply on the footing of paying the cost. Against such conduct there are more stringent and effective remedies. It is lucky for the confederate government that these insane "instructions" have been issued at a moment when they have no vessel afloat which could inflict upon its government the disaster of obeying them. But if ever the confederate government could get a fleet upon the high seas, I think I could promise Mr. Benjamin that they would not sail many weeks under such instructions. The confederate secretary complains of the English vice-admiral for having written that "He had issued the following instructions to the officers under his command: To capture and send to England for adjudication in the admiralty court every vessel by which a British vessel (i. e., with legal British papers) is burnt at sea." Admiral Hope made a mistake, it is true, (as sea captains who quote Lord Stowell are not unlikely to do,) in supposing that this was a case for "adjudication in the admiralty court." But substantially he was right in instructing the officers under his command to seize all Vessels acting upon such principles as those laid down in Mr. Benjamin's instructions, for such conduct is a just cause of reprisal, and, if necessary, of war. The only proper answer to such a code of instructions is to confiscate, or, if need be, to send to the bottom, every vessel that should attempt to execute them.

I cannot leave this "minute of instructions" without quoting as a bonne bouche its closing passage:

"If the British government has, in the interest of its own subjects, become sensible of the impropriety and impolicy of shutting its ports to the introduction of prizes made by our vessels, in all cases in which British claimants assert title to vessel or cargo, the instructions will be given to our cruisers to take into British ports all such vessels, there to remain until our admiralty courts have exercised their rightful exclusive jurisdiction over the prize questions involving such captures.”

The calm and self-complacent impertinence of this paragraph I think it would be difficult to surpass. If England "sees the impropriety" of doing that which all the rest of the world has likewise thought it proper to do, and recognizes the "impolicy" of not allowing its ports to be made an officina in which the acts of war may be finally consummated by the condemnation and sale of prizes, then, but not till then, the great and magnanimous Confederate States of America will consent to give to the unfortunate Great Britain that protection in the jurisdiction of a prize court which the law of nations has ordained.

It is difficult to comprehend what can be the intention of the confederate government in promulgating such a document at such a moment. On the part of a great maritime power such conduct would be odious; in that of a belligerent which has not a cruiser afloat it hardly, perhaps, passes the point of being ridiculous. I do not desire to be hard upon the confederate government. Even those who least approve the objects for which they are fighting willingly accord to them the sympathy which belongs to gallantry and to misfortune. But this last proceeding of theirs would make one suppose that, reeling under the blows of repeated disaster, they had at last taken leave at once of reason and hope and given themselves up to the desperation of folly. I know not whether these instructions have come under the notice of her Majesty's. government. It is impossible that such a document can be passed over in silence. The principal desire of every reasonable man in the country is, that under no circumstances should England be involved on either side in this dreadful contest. Nevertheless, as was sufficiently apparent in the affair of the Trent, there are limits which may not be passed. The confederate government must know perfectly well what would have been the result if the federal government had thought fit to adhere to the act of Captain Wilkes. And yet, what is the meaning of these instructions but to order every captain in their fleet, if they had a fleet, to imitate the acts of Captain Wilkes. To suppose that such things could pass with impunity would be to abuse the privileges of weakness. This document is either an idle menace, or, if intended to be put in practice, it is the authority for conduct which can have no result but war; and I

would venture most sincerely to recommend them at the earliest moment to recall a paper which, as long as it remains on record, will be a standing disgrace to them in the eyes of the civilized world.

There is another point of view in which this matter deserves to be regarded. Some persons in this country seem to occupy themselves in defeating the salutary law of the land which forbids the equipment of vessels of war for the belligerents within the realm. The confederate cruisers, so far as they have had any cruisers, have all, or nearly all, issued from English ports. Perhaps the consideration that any vessels which shall in future reach a similar destination will cruise against English commerce under orders nothing short of piratical, may act as a stronger motive to induce English merchants and ship-builders to abstain from attempts to violate and elude the law. It certainly would be a strange example of an "engineer hoist by his own petard," if Liverpool merchantmen were to be seen burning on the high seas by the act of cruisers sent out from Liverpool to execute the "instructions" of Mr. Benjamin. Whatever else these "instructions" may accomplish, I hope at least they will secure that no confederate cruiser shall ever again hail from an English port.

TEMPLE, January 5.

HISTORICUS.

APPENDIX NO. IV.

THE CASE OF THE BARK MAURY, AT NEW YORK.*

Mr. Crampton to Mr. Marcy.

BRITISH LEGATION,

Washington, October 11, 1855.

SIR: I have the honor to call your attention to the inclosed depositions which have to-day been forwarded to me by Mr. Barclay, her Majesty's consul at New York, in regard to a vessel called the Maury, which is now fitting out at that port, and which, it appears, is evidently intended for warlike purposes.

Mr. Barclay further informs me that he has good reason to believe that this vessel is intended for the service of Russia in the present war, and also that a plan exists for fitting vessels of a similar description in other ports of the United States, with the express design of committing hostilities against her Majesty's government, and more particularly of intercepting and capturing the British mail steamers plying between Liverpool and Boston.

However this may be, the circumstances stated in the inclosed affidavits are of so positive a nature, and bear so suspicious an appearance, that I feel it to be my duty to call the attention of the United States government to the matter, with a view to an inquiry into the facts, and, if these shall be confirmed, to the adoption of such measures on the part of the United States authorities as may defeat the hostile intentions which appear to be entertained by the persons engaged in fitting out the vessel or vessels in question.

I avail myself of this opportunity to renew to you, sir, the assurance of my high consideration. JOHN F. CRAMPTON.

Hon. WILLIAM L. MARCY.

Deposition of Anthony Barclay.

CITY, COUNTY, AND STATE OF NEW YORK:

Anthony Barclay, her Britannic Majesty's consul for the State of New York, being duly sworn, doth depose and say: That from information given to him he verily believes, and expects to be able to prove, that a certain new vessel, now in the port of New York, called the Maury, has been built, fitted out, and armed with intent that such vessel should be employed by the Russian government to cruise and commit hostilities against the subjects and property of the Queen of Great Britain, with whom the United States are at peace, and this deponent stands ready to bring forward his proof thereof; and he respectfully claims that proceedings be had and taken whereby the said vessel, with her tackle, apparel, and furniture, together with all material and ammunition and stores, which may have been procured for this building and equipment thereof, shall and may be forfeited.

John A. Cornell, of New York City, police officer and dockmaster of the eleventh ward, being duly sworn, maketh oath and saith: That his suspicions have been excited

*See dispatch No. 427 from Mr. Seward to Mr. Adams, December 15, 1862, Vol. I, p. 545, and also note from Mr. Adams to the Earl of Clarendon, November 18, 1865, Vol. III, p. 622.