act was one of piracy, it was piracy jure gentium, and therefore does not fall within the treaty; for the treaty applies only if the offence be one which could not be tried in this country, and must be tried in the foreign country. But if this were piracy jure gentium, then it was an offence triable in our courts in this country, and was not within the scope of the treaty of extradition, which did not contemplate piracy jure gentium, but piracy by the municipal law of the foreign country. In the last edition of Wheaton's International Law, page 253, the law was thus stated as laid down in the American courts on this very subject: "The courts of New York have had before them a case like this, and have dealt with it not as piracy jure gentium, holding that it could not be piracy, jure gentium, but piracy against their own municipal law." And in a note the learned writer stated:

"Privateers acting under commissions from the president of the Confederate States were brought into New York and indicted for piracy, and they were tried under a statute which was intended to apply to piracy in substitution for another statute which defined it with reference to the law of nations. The statute embraces also cases of robbery committed on board an American vessel, though they might not come within the definition of piracy by the law of nations. It was admitted that if it were necessary on the part of the government to bring the charge within the definition of robbery and piracy, as known to the common law of nations, there would be great difficulty in so doing; for the evidence showed, if anything, an intent to depredate on the vessels of one nation onlythe vessels of the United States-which falls far short of the spirit and intent said to constitute the essential elements of that crime. The statute, however, declares that a person shall be deemed a pirate who commits the crime of robbery on the high seas against any ship or vessel. And the interpretation clause applies it to the case of depredations on American vessels on the high seas under circumstances which would constitute the crime of robbery if committed on land. Upon this the men were convicted, but they were never sentenced, for the conviction led to threats of retaliatory action on the part of the Confederates, and the proceedings were stopped.

Thus, therefore, it appeared, on the judgment of the federal courts, that a case like this was not piracy jure gentium, but had to be judged by the municipal laws of the State, which in this case did not apply, for the act would not be robbery on land. But if the act were piracy jure gentium, then it could be tried in this country, and was not within the extradition treaty. It made no difference, so far as the neutral power was concerned, that the prisoners had no regular commission, even if that were the case; for it was lawful for the subjects of one belligerent to commit depredations on the property and ships of another.

Mr. Justice BLACKBURN.-Have you authority for that?

Mr. JAMES cited Wheaton, page 627, to show that it was so, and that, though a subject of a belligerent might be punishable by that belligerent for committing acts of hostility on the ships or territory of the other without authority, yet that the act was not on that account piracy.

Mr. Justice MELLOR.-You define piracy to be a crime committed against men in general, without any regard to their being belligerents?

Mr. JAMES.-Just so. The pirate is hostis humani generis. But this was an act on behalf of one belligerent against the other. The ship sailed from a Mexican port, and was on the high seas; and the prisoners acted in seizing her for the confederates.

The LORD CHIEF JUSTICE observed that the act was on board an American ship, and asked if the ship did not carry with it the law, as the soil did?

Mr. JAMES said he denied the application of that doctrine in the present case. The act was not piracy unless it amounted to piracy jure gentium, in which case it was triable here, and the extradition act did not apply, for that act applied

only to an offence against the municipal law of the foreign state, which could not be tried here.

Mr. Justice BLACKBURN hinted a doubt if habeas corpus was the proper remedy.

Mr. JAMES asked what other remedy could there be?

The men were in custody for the purpose of being delivered over, and if allowed to be detained for that purpose would be delivered over, and it would be too late to issue the writ when they were on board an American vessel.

Mr. Justice SHEE.-You say the habeas corpus is the only course to question the right to detain the men for the purpose of delivery.

Mr. Justice BLACKBURN said his doubt was whether it would not be lawful to detain them for trial in this country.

Mr. JAMES pointed out that, according to the warrants, they were not detained for that purpose, but for the express purpose of being delivered over to the American authorities, and if their detention was declared lawful, they would at once be delivered up, as the learned judge had observed, "to their doom." In the result, the court granted a rule nisi for the writ of habeas corpus.

Mr. Adams to Mr. Seward.

No. 675.]

LEGATION Of the UnitED STATES,
London, April 29, 1864.

SIR: I transmit a copy of the London Times of the 27th, containing a report of a debate in the House of Lords on the subject of the Tuscaloosa. Some of the animus displayed in it is of a purely party nature. Underneath it, however, is the temper prevalent in men of that class, hostile to the United States, and anxious to seize every opportunity to injure them in the public estimation. Lord Russell, in his reply, has for the first time ventured to expose that a little.

The same subject was brought up in the House of Commons last evening. A report of that debate is printed in this morning's Times, a copy of which I likewise transmit. The same phenomena were elicited as in the Lords, with only the customary difference of earnestness in the demonstration. Considering how untenable the proposition at issue was, the majority is not over-large. I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. WILLIAM H. SEWARD, &c., &c., &c.

[From the London Times of April 27, 1864.]

THE LAW OF PRIZES.

Lord CHELMSFORD, in rising to call the attention of the house to the statement of the views of her Majesty's government as to the mode of dealing with prizes brought by the belligerent powers of America within the dominions of her Majesty, contained in the correspondence respecting the Tuscaloosa, said that the subject was of such great importance that he needed not to apologize for now submitting it to the attention of their lordships. In the deplorable war which had lasted so long on the other side of the Atlantic, both belligerents had shown themselves so extremely sensitive as to the conduct of this country, that it was necessary for the government to be extremely careful not to exceed the strict limit of neutral obligations. In the papers laid on the table of the house under the title of "Correspondence respecting the Tuscaloosa," he found

some instructions issued by the government, with respect to the mode of dealing with prizes brought by the belligerents into ports belonging to this country, which appeared to him so much at variance with principle and polity, and so likely to lead to unpleasant consequences, that he felt bound to present to their lordships his views on the matter. At the commencement of the present unhappy war in America her Majesty was advised to issue a proclamation inter.dicting the armed ships of both contending parties from coming with their prizes into the ports, harbors, and roadsteads of the United Kingdom, or any of the British colonies and possessions. The writers on international law laid it down, that although it was not a violation of neutrality for a belligerent to bring her prizes into a neutral port, and even to dispose of them there, yet they all added that the neutral might refuse that privilege, provided the refusal extended to both parties. The Tuscaloosa was originally a federal vessel named the Conrad, and on the 21st of June last she was off the coast of Brazil with a cargo of wool, and was there captured by the well-known confederate cruiser the Alabama. The captors put some guns on board, a lieutenant of the confederate navy, and ten men, and changed her name to the Tuscaloosa, and employed her as a tender of the Alabama. The two vessels were in company at the Cape of Good Hope in the beginning to August, and Captain Semmes ordered the Tuscaloosa to Simon's Bay, for the purpose of obtaining provisions and undergoing some slight repairs. She arrived off Simon's Bay on the 7th of August. The admiral upon the station, Sir Baldwin Walker, who had heard something of the previous history of the Tuscaloosa, doubted whether she could properly be considered as the tender of the Alabama, whether she did not retain her previous character of an uncondemned prize, and therefore whether she could be admitted under the terms of her Majesty's proclamation. He wrote to Governor Wodehouse, and requested that he would take the opinion of the law officers of the crown on the subject. The governor accordingly consulted the attorney general at the Cape, who founded his opinion upon passages of international law which were to be found in Wheaton, and which were printed in the papers, and also upon a despatch from Earl Russell of the 31st of January, 1862. The attorney general gave it as his opinion that, by reason of the vessel having been armed by the captors, and having had a lieutenant and crew put on board, the Tuscaloosa was a vessel-of-war, and might enter the bay. Sir B. Walker was not quite satisfied with the opinion of the attorney general; but, of course, he yielded, and the Tuscaloosa anchored in Simon's Bay on the 8th of August and remained there till the 15th. While she was lying at anchor there the American consul claimed that she should be retained on behalf of the original owners, and that claim had such an important bearing on the instructions which he should bring under the consideration of their lordships that he begged their special attention to it. Having mentioned that the Tuscaloosa's true name was the Conrad, and that she had never been condemned as prize by any lawfully constituted admiralty court, he proceeded to say:

"I am well aware that your government has conceded to the so-called Confederate States the rights of belligerents, and is thereby bound to respect Captain Semmes's commission; but having refused to recognize the confederacy' as a nation, and having excluded his captures from all the ports of the British empire, the captures necessarily revert to their real owners, and are forfeited by Captain Semmes, as soon as they enter a British port."

Now the governor seemed to have taken a more correct view of international law than her Majesty's government, for, in reply to Mr. Graham, the American consul, he says:

"The governor is not aware, nor do you refer him to the provisions of international law by which captured vessels, as soon as they enter our neutral ports. revert to their real owners, and are forfeited by their captors. But his excel-

lency believes that the claims of contending parties to vessels captured can only be determined in the first instance by the courts of the captor's country."

The American consul was not satisfied with that reply, but wrote another letter repeating his claim, and repeating it in the most extraordinary manner. He said:

The Tuscaloosa, being a prize, was forbidden to enter Simon's bay by the Queen's proclamation, and should have been ordered off at once, but she was not so ordered. Granting that her Majesty's proclamation affirmed the right of Captain Semmes as a 'belligerent' to take and to hold prizes on the high seas, it just as emphatically denied his right to hold them in British ports. Now, if he could not hold them in Simon's bay, who else could hold them except those whose right to hold them was antecedent to his, that is, the owners? The Tuscaloosa remained in Simon's bay seven days with her original cargo of skins and wool on board. This cargo, I am informed by those who claim to know, has ben purchased by merchants in Cape Town; and if it should be landed here directly from the prize, or be transferred to other vessels at some secluded harbor on the coast beyond this colony, and brought from thence here, the infringement of neutrality will be so palpable and flagrant that her Majesty's government will probably satisfy the claims of the owners gracefully and at once, and thus remove all cause of complaint. In so doing it will have to disavow and repudiate the acts of its executive agents here; a result I have done all in my power to prevent."

He would have said that that claim was as extravagant as the reasoning was illogical, if he had not been checked by finding that it had been sanctioned by her Majesty's government, apparently on the advice of the law officers of the crown. The governor sent a despatch upon the subject to the secretary for the colonies, and he could not refer to the noble duke who lately held the seals of the colonial office without expressing his deep and sincere regret that the country would be deprived, he feared, for a long time of his tried and valued services. [Hear, hear.] In that despatch Governor Wodehouse says:

"An important question has arisen in connexion with the Alabama, on which it is very desirable that I should, as soon as practicable, be made acquainted with the views of her Majesty's government. Captain Semmes had mentioned, after his arrival in port, that he had left outside one of his prizes previously taken, the Tuscaloosa, which he had equipped and fitted as a tender, and had ordered to meet him in Simon's bay, as she also stood in need of supplies. When this became known to the naval commander-in-chief, he requested me to furnish him with a legal opinion; and whether this vessel could be held to be a ship-of-war before she had been formally condemned in a prize court, or whether she must not be held to be still a prize, and, as such, prohibited from entering our ports. The acting attorney general, founding his opinion on Earl Russell's despatch to your grace of the 31st of January, 1862, and on Wheaton's International Law, stated in substance that it was open to Captain Semmes to convert this vessel into a ship-of-war, and that she ought to be admitted into our ports on that footing."

It was in reply to that despatch that an answer was sent by her Majesty's government, to which he was about to direct their lordships' attention, and he could not help thinking that the instructions conveyed in it were the result of federal pressure. He ought not to make that assertion without proof, [hear, hear;] but he thought he was in a position to prove it, and it would be for their lordships to say how far he should be successful. During the time in which the proceedings to which he had referred were going on, a very active correspondence was being prosecuted between the noble earl (the foreign secretary) and the American minister, upon the subject of what Mr. Adams called the depredations of the Alabama, and the claims of American citizens to be indemnified

for the losses which they had sustained by the capture of their vessels by the Alabama. Those claims the noble earl of course repudiated, but Mr. Adams mentioned many causes of complaint, and among others he sent to the noble lord the extraordinary claim of the American consul at the Cape, to which he (Lord Chelmsford) had directed their lordships' attention. In the papers No. 1, North America, the correspondence respecting the Alabama, their lordships would find a despatch of the noble earl of the 29th of October, just six days before the despatch of the 4th of November, in which the instructions to the governor were contained. The noble earl mentioned various matters of complaint under three different heads, and among others the case of the Tuscaloosa, and how it had been dealt with by the authorities at the Cape. He said:

"As regards the Tuscaloosa, although her Majesty's government would have approved the British authorities at the Cape if they had adopted towards that vessel a course different from that which was adopted, yet the question as to the manner in which a vessel under such circumstances should, according to the tenor of her Majesty's orders, be dealt with, was one not altogether free from uncertainty. Nevertheless, instructions will be sent to the British authorities at the Cape for their guidance in the event of a similar case occurring hereafter, and her Majesty's government hope that under those instructions nothing will for the future happen to admit of a question being raised as to her Majesty's orders having been strictly carried out."

There, then, on the 29th of October, after a rather menacing correspondence on the part of the American minister, her Majesty's government promised that instructions should be issued, and they were issued six days afterwards, which sanctioned and adopted the extraordinary claims made by the American minister. The noble duke gave the following instructions:

"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 into 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. It would appear that the Tuscaloosa is a bark of 500 tons, captured by the Alabama off the coast of Brazil on the 21st of June last, and brought into Simon's bay on or before the 7th of August, with her original cargo of wool (itself, as well as the vessel, prize) still on board, and with nothing to give her a warlike character (so far as is stated in the papers before me) except the circumstances already noticed. Whether, in the case of a vessel duly commissioned as a ship-of-war, after being made prize by a belligerent government, without being first brought infra præsidia or condemned by a court of prize, the character of prize, within the meaning of her Majesty's orders, would or would not be merged in that of a national ship-of-war, I am not called upon to explain. It is enough to say that the citation from Mr. Wheaton's book by your attorney general does not appear to me to have any direct bearing upon the question."

And then the noble duke concluded as follows:

"The question remains, what course ought to have been taken by the authorities. of the Cape-1st, in order to ascertain whether this vessel was, as alleged by the United States consul, an uncondemned prize, brought within British waters in violation of her Majesty's neutrality; and 2d, what ought to have been done if such had appeared to be really the fact. I think that the allegations of the United States consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation