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relates solely to this statutory exception from the statutory rule of restitution. For this purpose in several cases the actual use and employment of a captured vessel as a fighting ship in the capture of British vessels and in other actively hostile operations was held to constitute a "setting forth as a ship or vessel of war," although she had never been condemned nor regularly commissioned nor employed in such hostile service by the direct authority of the captors' Government. But these British Prize Acts (none of which are now in force), and the decisions upon them, cannot be regarded as establishing any general rule for the interpretation of the word “prizes" in Örders of Her Majesty issued for a quite different purpose during a war in which she desires to remain strictly neutral, and which Orders contain no exception of such prizes as may after their capture have been "set forth" by the captors as ships or vessels
of war."
The word "prize" continues to be in its natural sense applicable to a captured vessel remaining under the power and control of the captor, whether it be "set forth" by him "as a ship or vessel of war" or not, and but for the express exception in the 7th section of the 45 Geo. 3. c. 72. captured vessels which had been so employed We would have been equally liable with all others to restitution in case of recapture. repeat, therefore, that the passage cited from Wheaton has no direct bearing upon the present question, though some argument from analogy might perhaps be founded
thereon.
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(3.) We do not think it would have made any real difference in the case of the "Tuscaloosa" even if there had been no cargo on board. We are far, however, from being satisfied that any of the acts which are shown to have been done by Captain Semmes with respect to this vessel before she was brought within British waters would have constituted, according to the doctrine of Wheaton, a "setting forth" as a vessel of war within the meaning of the exception already referred to, if the question The had arisen under the English or the corresponding American Prize Acts. general statement made by Wheaton must be read in the light of the authorities to which he refers. There is no instance of which we are aware in which any ship has been treated by a prize court as "set forth for war," without either having a regular and independent commission as a ship of war from a belligerent Government, or having been actually employed as a fighting ship in offensive operations of war. In the case most like the present (the "Georgiana," 1 Dodson, page 397) the captured vessel was supplied by the captor with ten guns, in addition to eight which she already had when taken, and 60 men were put on board her "under a com- "missioned officer, who was directed to cruize against British vessels, which he did " and he succeeded in making three captures. The vessel, therefore," we quote the It was words of Sir W. Scott at page 401, "was engaged in actual hostilities."" attempted in the argument of that case, on the part of the owners claiming restitution, to compare this employment to that of a tender to a man of war, "which description "of vessel is not commissioned, and is incapable of taking prizes for its own benefit," and there is nothing in Sir W. Scott's judgment to lead to the conclusion that she would not have been restored to her original owners if the only proof of her employ- ment in hostile operations had consisted in the mere fact of her being used as a tender to the ship by which she was taken.
(4.) With respect to the general question whether a captured vessel regularly commissioned as a ship of war of the captors' Government before being brought intra presidia or condemned may not cease to have the character of a prize, within the meaning of Her Majesty's Orders against bringing prizes within her ports, we are by no means prepared to say that circumstances might not occur (e.g., if the captured vessel were cruising under such a commission as an independent ship of war apart from the captors and beyond their power and control) which would have that effect, but when the question is whether Her Majesty's Orders have been observed or violated (and this is really the only question in the present instance) we think that a vessel, which having been captured and not condemned nor brought infra præsidia, nor separately and independently commissioned, but remaining still under the control and power of the captors, is brought into a British port in a state of dependence upon the captors, with a crew placed on board by them, ought to be regarded and treated as a prize within the meaning of those orders, and that she cannot be withdrawn from their operation on the pretext that she has been converted into a tender to the capturing vessel. If Her Majesty's Orders are to have any force at all such an evasion of them cannot, we think, be permitted. Upon this point we adopt and entirely agree with the just and pointed remarke made by Sir B. Walker in his letter to Sir P. Wodehouse of the 8th of August 1863, nor can we fail to observe that if there is any
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case in which the rule against bringing captured United States vessels into British ports ought to be enforced with severity and strictness, it is that of a ship of war fitted out in and principally manned from this country in violation of the neutrality laws of Great Britain.
We think it necessary, however, to guard these concluding remarks by adding that as the captain of the " Alabama has been led to suppose that a rule different from that which we think the correct one will be applied within British waters to captured vessels in the peculiar circumstances of the "Tuscaloosa," it would not now be proper to enforce Her Majesty's orders against captured vessels so situated (if hereafter brought by him into any British port) in the way suggested at the end of the Duke of Newcastle's Despatch without some previous notice offering him the opportunity of promptly removing such vessels beyond British jurisdiction, which notice (of course) need not be repeated on any subsequent occasion.
We have, &c. (Signed) ROUNDELL PALMER.
R. P. COLLIER.
Earl Russell, K.G.,
&c.
&c.
ROBERT PHILLIMORE.
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