PUBLIC RECORD OFFICE
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10 PUBLIC RECORD OFFICE, LONDON
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Report
That before adverting to the facts of the various cases as to which our opinion is sought, we deem it right to observe in general that, with reference to British vessels which become the subject either of capture or condemnation, or both, by the ships or prize courts of the United States, the presumption should always be in favour of the legality and justice of the belligerent proceedings. This appears to us to flow from the facts that the United States possesses, as regards neutrals, the ordinary belligerent rights at sea; that the maritime war is carried on by regular cruisers under the national and acknowledged flag; and that prize courts are, so far as we know, regularly consti- tuted and properly presided over. Under these circumstances it manifestly belongs to such prize courts to determine on the questions of legality of capture and of condem- nation, and it is only in cases of manifest wrong and injury, showing an abuse of the belligerent powers and rights, that the Government of a neutral State can properly be called upon to interfere with the Government of the United States in favour of their own subjects whose ships or cargoes have been the subject of capture or condem- nation.
With reference to the "Circassian," we observe that in his letter to your Lordship of the 11th June, Mr. Pearson, the owner of the "Circassian," apparently on further in- formation, gives up the allegation contained in his earlier communication of the 6th that his vessel when captured was in "neutral waters," and now describes her as having been "about seven miles from the shore" of the Island of Havannah at the time of the capture.
With regard, therefore, to the place of capture, no ground of international complaint can arise, three miles being the well understood extent to which the jurisdiction of any country extends from its shores out to sea. In other respects Mr. Pearson corrects the statements of his former letter as to the whereabouts of the "Circassian" when cap- tured, and adopts the description which is to be found in the log, a description which Havannah would also appear to have been the may be accepted as probably accurate. immediate destination of the ship, and the voyage would of course have been perfectly innocent if such or any other neutral port had been the bona fide final destination. If, however, faith is to be given to the document which has been delivered to Mr. Consul Edwards (see Enclosures Nos. 2, 3, and 6 in Lord Lyons', No. 385) as being a true copy of the charter party under which the "Circassian" was actually sailing, it is plain that her intent was to run the blockade; in other words, she was destined for a blockaded port. Reasonable evidence of such being the case would justify her capture, and legal proof before a prize court her condemnation. For, by the laws of war, a belligerent having notified and established an effective blockade is not bound to delay capture until a neutral vessel is on the spot, and actually attempting to break the blockade at any particular point of the blockaded coast, but on any part of the high seas may capture and carry in a neutral vessel, which is in fact and intention on hier way to the blockaded port, and to violate the blockade if need be. A vessel sailing under such circumstances can have no claim on the good offices or interference of Her Majesty's Government, even should the capture have been made and a condemnation ensue without the real facts coming to light. For it can only be on the ground of sub- stantial merit that the subjects of neutral States can claim the protection of their own Government against the consequences of belligerent capture or adjudication. We may further remark that Mr. Pearson's statement in his letter to your Lordship of the 6th of June, as to the draught of the "Circassian" and the capacity of the harbours in possession of the Confederates, is hardly reconcilable with the true destination of the ship as shown by the charter party. For the present therefore, and unless the matter of the charter party be satisfactorily cleared up, we think that the owner of the Circassian" might be left to the ordinary course of the prize court, and certainly ought not to receive any assistance at the hands of Her Majesty's Government. The legal proceedings and the result may, however, be watched.
We entirely concur with Lord Lyons' opinion (see page 5 of No. 352) in the matter of the "Parole" (see Enclosure 8 in No. 352) improperly exacted from the two British We subjects (Messrs. Burrowes and Coleman) captured on board the "Circassian." now find that the American Government takes the same view, and that the "Parole" is to be cancelled.
With reference to your Lordship's question, as to Admiral Milne's suggestion that the name of the vessel of war, by which the right of search is exercised, should on all such occasions be noted in the log book of the ship boarded, we have to observe that although it is obviously the duty of the officer of a vessel of war, searching or visiting a neutral vessel in time of war, not to conceal or refuse the name of the ship to which
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he belongs if asked for it, yet we are not aware that there is any general order or regulation in force in Her Majesty's Navy directing Her Majesty's naval officers to enter in the log of every merchant vessel, which they may visit or search, the name of Her Majesty's ship to which such officers may belong, nor does Admiral Milne state that such is the regular practice or usage of the Royal Navy when Her Majesty's Government is a belligerent. Under these circumstances we cannot advise Her Majesty's Government to apply to that of the United States to issue any general order to this effect. The visit, or search of vessels suspected of slave trading, whether it takes place under treaty or otherwise, is subject to different considerations, not being done by virtue of any belligerent right. The particular mode of visiting and searching such vessels is generally the subject of special international agreement (see for instance the confidential instructions agreed on by Great Britain and France on this subject), or is provided for by Slave Trade Suppression Treaties, and the instructions appended thereto, or issued in conformity therewith. The attention of the United States Government has, however, properly been called to the particular case of the "Amazon," wherein the boarding officer when asked by the master for the name of his ship refused to give it, with a view to prevent the repetition of such an irregularity.
We are further of opinion that, assuming the facts stated by Acting Volunteer Courthory, in his letter to the United States Secretary of the Navy of March 4th (Enclosure 3 in Lord Lyons' 297) to be correct, the capture of the "Lion" by the United States' cruiser "Kingfisher" was perfectly justifiable under the circumstances. To the subsequent condemnation of that vessel we will hereafter advert.
No further information is as yet forthcoming as to the "Southport," a vessel boarded but allowed to pursue her voyage, and reported on in our Report of May 14, 1862.
In the cases of the "Dart" and of the " Amazon" (vessels boarded but allowed to pursue their voyages), Mr. Seward has promised Lord Lyons that a complete investiga- tion shall be made without delay. As regards the cases of the " Florida" and "Henry Travers." In the former case we reported on the 14th May that no case for interference had then appeared, and no further information has been received until the account of the condemnation in Lord Lyons' Despatch, No. 384, and its enclosures. In the latter ("Henry Travers "), adverting to Consul Crawford's Despatch to Lord Lyons of May 2nd (the only enclosure in Lord Lyons' No. 306), the capture did not at the out- Bot seem to have been entirely without justification, or to afford any sufficient ground for interference by Her Majesty's Government.
As regards these two last-named vessels, the "Florida" and "Henry Travers," and a third, the "Lion," it now appears that proceedings have reached a further stage, and each has been condemned by a regularly constituted prize court of the belligerent, by whose ships the captures were effected. We have read and considered Lord Lyons' Despatch, No. 384, and its enclosures, including copies of the sentences of condemnation of the respective vessels, and we fail to discover any sufficient grounds for the inter- ference of Her Majesty's Government as regards any of the sentences in question. The "Florida was condemned, with her cargo, as being enemy's property, and also on the ground that the vessel was on the way to violate the blockade with actual knowledge of its existence. The facts were for the court to find; there was evidence on which to found a conclusion, and it is impossible to say that the conclusion arrived at The law laid down in this case, with refer- is wholly without, or contrary to, reason. ence to the effect of the President's proclamation as to "warning," cc., was also a matter for the court, and the decision is not unreasonable or absurd. The "Heury Travers was condemned as enemy's property, and appears to have been claimed by the "Lion," the captain for a person resident in the enemy's country. In the case of the double ground of enemy's property and intention to break the blockade was taken by the prize court as warranting the condemnation, the receipt for the purchase money would not necessarily have affected the judgment, as a question of its bona fides might have been raised; whether an opportunity of producing this instrument as "further proof
was unjustly refused we have not sufficient information to enable us to judge. If it was the refusal may be brought before the Court of Appeal, and unless it be so could not, in our opinion, afford any sufficient ground for a remonstrance with the United States Government, much less for any claim 'for compensation or damage.
We have, &c.
Earl Russell, &c. &c.
(Signed)
WM. ATHERTON,
ROUNDELL PALMER.