On that subject he would deal quite frankly with the House. He would admit, on the part of her Majesty's government, that, upon reconsideration, they thought these instructions were not as full and explicit as they ought to have been-that was to say, as they should and would have been if meant to be used as a guide for colonial governors throughout the empire. But he would be allowed to observe that that dispatch was not in the nature of a circular or order issued to the governors of colonies throughout the empire. It was merely a comment of the Duke of Newcastle on that particular transaction after it had passed, and when he had no reason to suppose that the Tuscaloosa would return. If it had occurred to his grace as probable that she would return, (and he would hardly be blamed for not foreseeing what, after all, was a remote possibilty,) the dispatch would have contained some further instructions, such instructions as were subsequently given, to the effect that inasmuch as the Tuscaloosa was, rightly or wrongly, treated as a vessel of war after she came into their ports, and after her real character was ascertained, she should have been warned off. If it had occurred to the Duke of Newcastle, provision might have been made in the dispatch for possible circumstances, and, undoubtedly, some fuller instructions would have been advisable to the effect that a vessel of war bringing with her a prize should be prohibited from entering our ports, or if she entered, be immediately warned to depart. He might inform the House that this sucject had received the serious consideration of the government, and instructions were about to be sent by way of circular to the colonial governors of this country. These instructions were, in fact, drawn up, though they had not yet been sent off. Ample and detailed instructions would be given, which would hereafter leave no difficulty to colonial governors and law officers. He was at liberty to say that those instructions would in a very short time be laid on the table. The House would, therefore, see that this was an isolated case, and not likely to be drawn into a precedent. But, having said thus much, he now proceeded to the question raised by the honorable gentleman, whether this dispatch asserted doctrines at variance with the principles of international law. He contended that it did not. He had frankly admitted that more full instructions were desirable, and would be sent, but that the dispatch enunciated any false principle of international law he entirely denied. What was the principle of international law on this subject? He apprehended that the governing principle of international law applicable to such cases as this was that the territory of a neutral was inviolate; that a neutral had the right to possess its territory entirely free from all hostile operations, direct or indirect, and, if it pleased, from the presence of either belligerent. A neutral had a right to say to both belligerents, procul este profani. Her Majesty had not gone the length she might have gone, of preventing the entrance into her ports of armed vessels of either belligerent; but she had strictly prohibited armed vessels bringing their prizes within her ports. He was now dealing with the questions of international law, and the hypothesis was this—a prize was brought in in violation of the Queen's orders and of her neutrality; and he said if a prize was brought in in defiance of the Queen's orders the captain was guilty at once of a violation of international law and of the Queen's neutrality. Under these circumstances, it was for the Queen to determine in what manner she should think fit to vindicate her neutrality; and if she chose to vindicate her neutrality by detaining the prize, in order that the claimant might have the opportunity which the United States consul desired, of instituting proceedings, or that other inquiry she thought fit might be inade, she had a right to do so; and further, if she did exercise that power, he maintained that the captain of the offending vessel who brought the prize in in contravention of the Queen's order, being himself an offender against international law and a wrong-doer, had no locus standi on the ground of international law, to complain of any measures her Majesty might think proper to take for the vindication of that neutrality which he had violated. That was the principle of international law applicable to this case. The Queen had perfect right to restore the vessel to her original owner. There was abundant authority for that doctrine. He repeated it: The principle was that neutrality had been violated, and it was for the neutral whose neutrality was violated to determine the manner in which that neutrality should be vindicated. Suppose a vessel captured within neutral waters, in our waters, and subsequently brought back as a prize; had the Queen, aye or no, the power of restoring her to her original owner? The right honorable gentleman who was about to follow him must deal with that question. All authority was in favor of the right. Wheaton, who has been so much referred to, had this passage: "Where the capture of enemy's property is made within neutral territory, or by armaments unlawfully fitted out within the same, it is the right as well as the duty of the neutral state, when the property thus taken comes into its possession, to restore it to the original owners." What was the principle on which a vessel taken in neutral waters was restored? Be it remembered that as between belligerents the capture of a vessel in neutral waters was perfectly good. The principle was that when a neutrality had been violated, it was for the neutral to determine in what manner he should vindicate his neutrality. The United States had acted on that principle for upwards of seventy years. The same principle applied to cases of the restoration of prizes made by armaments unlawfully fitted out within the territories of neutrals. That had been done again and again. Why? Because their neutrality had been violated. It was true that there had been no case decided in the United States in precisely the same circumstances; and why? Because the circumstances had never existed. The United States had not issued, like her Majesty, orders prohibiting prizes coming into their ports, and therefore a breach of neutrality of that species had not occurred; but there could be no doubt, if it had occurred, the United States would have acted accordingly. This principle and prac tice were entirely applicable to this case, which was, no doubt, novel in its circumstances; the principle, however, was identical. He therefore called on the House most emphatically not to approve the resolution of the honorable gentleman, which went the full length of declaring that Wheaton was wrong, and the whole course of the United States for seventy years, of which we had enjoyed the benefit, had also been wrong. If these authorities were to be upset, it should be not by one night's discussion in that House, but by the judicial decision of a competent court of law. He ventured to point out to the House the great danger of adopting such a resolution as that of the honorable gentleman. Such a course might be very inconvenient to this country, as he would show. We believed that our maritime strength was such that with whatever power we might happen to be at war, we should always be able to blockade his ports to prevent the issue of vessels of war and the entrance of prizes taken from us. But suppose that the enemy resorted to American ports, and fitted out Alabamas from them, and took their prizes into the American ports; what should we do? We should claim that those prizes be restored to us. But how could we do that if this resolution were passed? We should be met with the reply, "You have passed a resolution which, in fact, avers that, however much and in whatever manner the neutrality of a state has been violated, the state has no jurisdiction to restore the prizes." In that way we might find this resolution to the last degree inconvenient to ourselves. Upon those grounds, and thanking the House for the patience with which they had listened to him upon what was chiefly a technical subject, he trusted that the House would not affirm a resolution which was not necessary, which could not be useful, which could have no practical effect, and which might hereafter be attended with serious inconvenience to ourselves. Mr. WHITESIDE. Sir: the honorable and learned gentleman said, at the outset of his aple speech, that there was no question of policy involved in this discussion. I beg leave to deny that proposition. There is the policy which led to instructions so legal and so perfect that we are told by the honorable and learned gentlemau that they are about to be immediately modified or repealed. I say there are involved in this debate questions of policy and law of a very interesting character. I agree with the honorable and learned gentleman that these questions should be discussed in a manner commensurate with their importance. When I first read these papers I asked myself how it happened that such extraordinary dispatches should have emanated from any department of the government. I answered myself by saying, "The authorities ruling at the Foreign Office at that moment thought the war was going against the South, and that it was extremely likely the North would be successful.” I called to mind the speech at Blairgowrie; and, although I remembered the most statesmanlike speech of the chancellor of the exchequer at Newcastle-that Jefferson Davis, as he called him. had not only made an army and a navy, but had made a nation-yet I saw that one was later in date than the other. I accept the declaration of the solicitor general that we ought to preserve strict neutrality. But we complain that the law of neutrality has been improperly violated in this matter, that the transaction is indefensible, and I am satisfied that the honorable and learned gentleman, and his learned colleague the attorney general, have advised the Crown that it is indefensible, and that they have corrected the very instructions of this dispatch which the solicitor general employed a good portion of his speech to prove were so perfect as not to need correction. The facts of the case are very simple. I heard with surprise the honorable and learned gentleman several times in the course of his speech talk of "shams" as well as realities. There are no "shams" in the case of the Tuscaloosa-it was a painful reality, as my honorable and learned friend would admit. That vessel was originally called the Corad, under which name she had been a merchant vessel. It is important to bear in mind the real facts when we find astute lawyers raising questions which do not arisesupposing facts which do not exist, upon which they construct a visionary argument and call upon the House to decide, not upon the facts before us, but upon other matters imagined by the learned gentleman who addresses us. It seems to me that now it is the admirals who decide the law and the lawyers who decide upon naval tactics: because, as the case stands, Admiral Walker has overruled the attorney general, and I understand the law officers at home have sent out instructions to the naval captains telling them how they are to behave. It was not by acting upon such instructions that Nelson won the Nile and Trafalgar. I will not say anything about the Duke of Newcastle in relation to this dispatch, because I agree with my honorable friend that there are traces of another hand being engaged upon it—a hand with which we are painfully acquainted. Now, it is agreed that the Tuscaloosa, while called the Conrad, formerly belonged to the federal States. The vessel was captured by the confederates off the coast of Brazil on the 21st of June, with a cargo of wool on board. I ask my honorable and learned friend and the House what was on that day the law arising out of those facts. When the ship of one belligerent strikes its flag to a ship of the other belligerent, what is the result that arises, does not the ship which yields belong to the captor; or can it by any ingenious argument be made to belong to somebody else? The captor may burn or destroy the vessel, or not, according as the interests of his country might suggest. That has been done, and Lord Stowell says the captor has a right to do so when he is so instructed. It is really ridiculous to argue, then, as though there were any nation which had more frequently asserted that right than ourselves. Surely you are not going to apply a different law to the Confederate States from what our own admirals act upon, and then plume yourselves upon your strict neutrality and your strong sense of justice! I say that the ownership of the property was changed by the fact of the capture. I deny that any judgment or adjudication was necessary. If a man on board a captured ship disputed the right of the captor, his answer would be, "Do not make a noise, or I will shoot you." The object, the horrible object of war is to cripple the commerce and to damage the power of the country with which you are at war, and not to indulge in the interchange of polite compliments. We have acknowledged to be a belligerent, that power which the chancellor of the exchequer has described as a nation-a power which is commencing her fourth campaign in vindication of her independence; she is entitled to all the rights of a belligerent, and having by the exercise of such rights captured the Conrad on the 21st of June, the property in that vessel passed at once to Captain Semmes without any necessity for adjudication or condemnation. The captain of the Alabama then put on board two guns and ten men, under a lieutenant, and changed her name to the Tuscaloosa. The next question is whether the officer in command of the Alabama was lawfully commissioned by the Confederate States. That has been clearly admitted by the Duke of Newcastle, who says that his authority as commander of a vessel belonging to a belligerent power was not open to dispute. The next question is, had Captain Semmes power to grant a commission to the person he placed in command of the Tuscaloosa? Is that denied by the law officers of the Crown? The words of Lord Stowell in a similar case were that it was only necessary to see that the officer put in command had even the semblance of authority, and we ought not to inquire at length into the nature of the commission. We will see how that matter stands when we come to the statement of Sir Baldwin Walker, as we find that all he says is to be adopted, and everything said by everybody else at the Cape is to be rejected. Our practice is that a commission granted by the admiral or captain abroad is subject to the approval of the admiralty at home; but Lord Stowell decided that the commander of a single ship might grant a commission, and thus the commander of the Alabama would have full authority to do so. I say that you cannot go behind the commission according to the decisions of our own courts nor by the reason of the thing; nor can you inquire whether the ship is something different from what she appears to be. I say the effect of the commission in this case was to change the character of the captured ship and to make her a vessel of war, employed by a lawfully appointed commander in the confederate navy. She was a ship in the lawful employment of a belligerent power, having the right to burn, sink, destroy, or capture the ships and property of an enemy with whom that power was at war. We find that the Alabama and Tuscaloosa remained some time in company. The talk about the wool is a mere device of no value-of no more value than it would have been if the whaler captured by the Americans during the last war had had a cargo of whales on board. It was decided by Sir William Scott that the fact of the American officer having put some guns on board the whaler had changed it into a ship of war, and it became the prize of the officer who took it, The Alabama and the Tuscaloosa continued in company until the 6th of August; it is, as the solicitor general said, quite true that the Cape of Good Hope is a neutral port; but, then, this vessel must be regarded either as a prize or as a ship of war; and if it was a prize the conduct of the framers of these instructions is indefensible, while if it was a ship of war the course which they took is quite inexcusable. Now, I admit that there was a proclamation of the Queen that forbids the captor to bring a prize into the Cape, but there remains the question, what was to be done in the present instance? The course which was taken, notwithstanding what has fallen from the solicitor general, will, I would venture to say, never again be repeated by this or any other government. Be that, however, as it may, the procla mation was very important. It was perfectly well known to the commander of the Alabama, who is described by Sir Baldwin Walker (banished at a particular crisis from this country to appear in a superior position at the Cape) as a courteous and gentlemanly person. Captain Semmes, it seems, applied for leave to procure some fresh water and provisions and repairs, and announced that he had outside the harbor his tender called the Tuscaloosa. [A laugh.] His honorable and learned friend the attorney general appeared quite amused; but it appeared to him (Mr. Whiteside) a very proper course to pursue; and here I may observe that it is somewhat remarkable that if an official or a clerk at a distant station acts illegally, rashly, or unscrupulously, he is sure to be defended by the noble viscount at the head of the government, while if he acts with ability and discretion he is certain to be thrown overboard. We all remember the declaration of the noble viscount about the judgment and discretion displayed in the well-known case of the lorcha Arrow; but, passing by that point, it would seem that Admiral Walker undertook to decide the law in this matter. Now, although I have the greatest respect for seafaring men, yet I deny that their authority is in such cases so satisfactory as that of the attorney general. Now, there is an attorney general at the Cape-Mr. Porter-than whom, if he be the man I knew in former times, you could have no better educated person. [An honorable member-"Mr. Stevenson is the acting attorney."] Well, that did not matter; the attorney general gave his opinion, but the government set it aside. The solicitor general has used the term shain, and repeated the expression. He compared the case to mere cases of roguishness that occurred in Westminster Hall. The captain of the Alabama was asked how long he wished to remain, how many days, and what was the list of articles he required. All these particulars were furnished. During that time, was there a particle of evidence to show that he sought to sell the wool; and what was the use of the solicitor general saying that he meant to do that which he did not, and that the fact asserted was to be taken for granted? He remained there as he ought to remain; got his provisions; the Tuscaloosa got the repairs she wanted; Admiral Walker was overruled, and the two vessels left, I believe, in about seven days. I beg now to call the attention of the house to what was said by another able lawyer, the consul of the United States at the Cape. Before the ships left, he applied to the governor to seize the vessel. "I cannot," said the governor. "I tell you what we will do then," answered the consul; "the moment we take the Alabama we will do everything this captain has done with the Tuscaloosa; we will turn it into a ship to be used against the confederates." "Quite fair," added the governor, "I cannot prevent you from doing so any more than I can prevent this gentleman from turning the Tuscaloosa into a tender to the Alabama, and putting a lieutenant on board." "But," replied the consul, "if you do not seize the vessel, you ought at once to order her to depart from this port." Here the consul suggested the right course to adopt if there had been a violation of the law and the proclamation of neutrality. Now, I do not find a single thing to complain of in this correspondence, I do not at all complain of Sir Baldwin Walker for having laid his doubts before the governor; and it will, I think, be time enough for the solicitor general when every ship taken is converted into a tender to lay down his maxims with as much solemnity as he has done to-night. No candid man can, in my opinion, underrate the fact that the lieutenant on board the ship had a legal commission at the outset; and what happened next? The proceedings at the Cape were, together with the opinion of Sir Baldwin Walker, sent to the government in this country. The affair so far as the Cape of Good Hope was concerned was at an end, and the vessels departed unmolested. The subordinate officials at the Cape performed their duty faithfully, conducted the inquiry honorably, and acted with the strictest propriety, and without the least deviation from the law of neutrality. And here I may observe, that we had in the North American correspondence a dispatch which gives us a key to the course pursued by Earl Russell. Mr. Adams, having had the case laid before him by the American consul at the Cape, pressed the noble earl to do something in reference to this ship. The dispatch of the 29th of October shows pretty clearly what led to the issuing of the instructions of the 4th of November. As to those instructions, they were told that nothing occurred prior to the 4th of November of any consequence. But, with all deference to my honorable and learned friend, a very important matter occurred in the interval. The Alabama visited the Cape again. On the 17th of September there is a dispatch from Sir Baldwin Walker, who had misgivings about the ship. This document was in your possession early in October, and it proves that the commander had made explanations to the gallant admiral in reference to what had been done. On the 17th of September Sir Baldwin Walker writes: "Captain Semmes frankly explained that the prize Sea Bride, in the first place, had put into Saldanha Bay through stress of weather, and on being joined there by the · Tuscaloosa, both vessels proceeded to Angra Pequena, on the west coast of Africa, where he subsequently joined them in the Alabama, and there sold the Sea Bride and her cargo to an English subject who resides at Cape Town. The Tuscaloosa had landed some wool at Angra Pequena and received ballast, but he states, is still in commission as a tender. I have no reason to doubt Captain Semmes's explanation; he seems to be fully alive to the instruction of her Majesty's government, and appears to be most anxious not to commit any breach of neutrality."-Correspondence, No. 6, (1864,) p. 17. Thus the matter stands; the wool was not sold at the Cape, but was disposed of long afterwards in Africa. Captain Semmes returned to the Cape in September, and gave an explanation of everything connected with the Tuscaloosa to Sir Baldwin Walker, who wrote home that he was entirely satisfied with that explanation, part of which was that the Tuscaloosa was still in commission as a tender to a confederate ship of war. It was with these facts before him, and advised by the lawyers whom I see opposite, or rather, I suspect, not advised by them, that somebody at home sat down and contrived the dispatch to which I must now call attention. The solicitor general asks what complaints we have to make. I complain of almost everything in the conduct of the case, whether as matter of fact or of law. After Sir Baldwin Walker had written home, stating that he was satisfied with the explanation of Captain Semmes respecting the Tuscaloosa, the following dispatch was sent on from Downing street: "With regard to the vessel called the Tuscaloosa, I am advised that this vessel did not lose the character of a prize captured by the Alabama merely because she was, at the time of her being brought within British waters, armed with two small rifled 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." (P. 18.) Let me here remark that the question whether she was or was not that thing had "Whether, in the case of a vessel duly commissioned as a ship of war, after being Not called upon to explain? The Colonial Office might as well be shut up at once. "In August last the Tuscaloosa arrived in Simon's Bay. She was not only recognized in the character which she lawfully claimed and stills claims to be, namely, 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 violater 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 26th 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 |