E 469 P K K S Y li \ THE NEW- YORK CHAMBER OF COMMERCE. :^aUSH JN JiL>TKAJ.iTY. IS THE ALABAMA A BRITISH PIRATE? A N S N D NecD fork: A \ I> <> LP II Class F. -^ 'o^ Book 'L^l\ ENGLISH NEUTRALITY. IS THE ALABAMA A BlUTISH PIKATE? Ncu) |3ork: ANSON D. F. RANDOLPH, PUBLISHER, 683 BROADWAY. 1863. I NOTE. In the publication of the second edition of this pamphlet, slight alter- ations have been made, consisting chiefly in ^he addition of some matter and the omission of some which was not a necessary part of the argu- ment. TO ABIEL A, LOW, ESQ. When Great Britain was last in the position of requiring from other nations the observance of a strict neutrality, the unjust asper- sion was cast upon your house of fitting out a vessel in the interest of her enemy. The searching investigation — demanded by you — which followed, led to your complete vindication, and an indignant declara- tion by the merchants of New York of their abhorrence of the crime against honest neutrality, which had been so falsely laid upon Ameri- can mercliants. Now, when England is called upon to perform the duties of neu- trality, you become, by the loss of your ship, the Jacob Bell, a prin- cipal sufferer from her flagrant disregard of international justice and honor. . These special circumstances alone, show an evident propriety in inscribing to you this reading of law and histoiy upon the cases of those public marauders, the Alabama and Florida. But other con- siderations unite to prove the fitness of such a dedication : and among them may be enumerated that eminent enterpi'ise which has made your name the synonym of honor in the four quarters of the globe ; your unflinching and self-sacrificing patriotism in these days of trial ; your public and intelligent advocacy of right principles and right practice toward other nations under the irritating and embarrassing circumstances of the time ; and, above all, that universal judgment of the community in which you live, by which is conceded to you a union of public and private virtues fully entitling you to the high place you hold in men's esteem. The public voice will cordially endorse the truth of these observa- tions, and admit their force as a justification for joining your name to this effort to direct popular attention to those serious complications, now arising from the course of conduct towards this nation which Great Britain has chosen to adopt. With great respect, I am Your obedient servant, GROSVENOR P. LOWREY. Neav York, March 14, 1863. ENGLISH NEUTRALITY During the past twelve months, numerous and notorious acts, in breach of those ohligations of neutrahty which are due from a friendly nation to another engaged in war, have been perjjetrated against us by the British government and certain of the British people. The action of our government toucliing these grave matters has been forbearing, although firm, and in all respects admirable, in contrast with the action and language of England herself in former times, under circumstances differ- ing from the present only in the respect that, from the char- acter of this war, our claim to the observance of strict neutrality is stronger than hers has, or could ever have been. The j^ublic journals of England announce that, far from any cessation of this evil industry, the arming and equipping of vessels to cruise against our commerce is going on with increased energy, and with such lack of disguise that we are forced to consider the councils of that country as want- ing in caj)acity or good faith. The sequel will enable us to decide upon which horn of the dilemma to locate the proba- bility. Under such a state of facts, it is time that the people at large were led to consider, in the light of history and law, the exact character and limitation of their rights in such cases. That code which, under the general name of the Laws of Nations, is admitted to control the conduct of states toward each other, ought to be, and, as defined by the publicists, is, founded upon the most elevated considerations of morals, jus- tice, equity, and convenience. In this dignified system, un- der which nations act in view of all the world, it is the sub- stance, rather than the form of things, which is regarded ; and those small technicalities which, in municipal systems, often impede the course of justice, are rightly disregarded. The relation of neutrality which arises under the law of nations is declared by Phillimore, the latest and best English writer upon international law, to consist in two principal cir- cumstances : b ENGLISH NEUTRALITY. 1. Entire abstinence from any participation in the war, 2. Impartiality of conduct toward both belligerents. These obligations are frequently strengthened, and made obligatory upon all persons resident within the territorial ju- risdiction of a nation, by, first, treaties ; and, second, enact- ments of the local legislature, or whatever, in each case, cor- responds to such a body. As between this nation and Great Britain, the right and duty of neutrality rest upon interna- tional law and the statutes of the respective countries. We have, on our part, endeavored to provide for the prevention or punishment of unneutral acts, by either citizens or stran- gers, while among us, through acts of Congress of 1794, 1818, and 1838. Great Britain has undertaken to accomplish the same end by act of Parliament, 59 Geo. III., c. 69.''-' A re- view of the action and demands of each government, in cases * The following are extracts from the act of 59 Geo. III., coinmonl}' called the Foreign Enlistment Act : " Sec. 7. And be it further enacted, that if any person within any part of the United Kingdom, or in any part of his majesty's dominions bej'ond the seas, shall, without the leave and license of his majesty, for that purpose first had and obtained, as aforesaid, equip, furnish, tit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowiu-ly aid, assist, or be concerned in the iNiuippiiig, furnishing, fitting out, or arming of any Vhip or vessel, with intent, or in order 1 hat such ship or vessel shall_ be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province, or people, or of any person or persons, exercis- ing or assuming to exercise any powers of government in or over any foreign state, colon}', province, or part of anj-^ province, or people, as a transport, or storeship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exer- cising or assuming to exercise the powers of government in an}' colony, province, or part of any province, or country, or against the inhabitants of any foreign colony, prov- ince, or part of anj' province or country with whom his majesty shall not then be at war ; or shall within the United Kingdom or any of his majesty's dominions, or in any settlement, colonj', temtoiy, island, or place belonging or subject to his majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be emploj'ed as aforesaid, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon an}' information or indict- ment, be punished by tine and imprisonment, or cither of them, at the discretion of the court in which such offender shall be convicted ; and every such ship oi' vessel, with the tackle, apparel, and furniture, together witli all the materials, arms, ammunition, and stores, which may belong to or be on board of any such ship or vessel, shall jie forfeit- ed ; and it shall' be lawful for any officer of his majesty's customs or excise, or any officer of his majest}''s navy, who is liy law empowered to make seizures for any forfeiture incurred under any of the laws of customs or excise, or the laws of trade or navigation, to seize such ships and vessels as aforesaid, and in snch places and in such nianner in which the officers of his majesty's customs or excise and the officers of his majesty's navy are empowered respectively to make seizures under the laws of customs and excise, or under the laws of trade and navigation ; and that every such ship and vessel with the tackle, apparel, and furniture, together with all the ma- terials, arms, ammunition and stores, wliich may belong to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner, and in such courts as ships or vessels may be prosecuted and condemned frivateer'sguns and stores on board. The barque discharged her cargo into the ' 290,' which was still tlying the Britisli ensign, and when the Portuguese authorities interposed, the per- son Butcher, it is alleged, represented his vessel to be English, aiding the English barque, which he said was sinking. Another vessel shorth' airivcd from Liverpool, the steamer 'Bahama' (which was at first believed to be the U.S. steamer, 'Tuscarora, ' causing some commotion on board), conveying the confederate officer Captain Semmes, with JBullock, and lifty additional men, and stores for the privateer. The Portuguese authorities then ordered all tiiree vessels off, but they merely went to a secluded part of the coast, and completed the transhipment of the stores. The ' Bahama ' cleared from Liverpool on the twelfth of August, having on board nineteen cases containing guns, gun-carriages, shot, rammers, &c., shi])ped by a firm of engineers and ironfound- ers of Liverpool. These cases were professedly' shipped for Nassau. After the transfer of the cargo had Ijeeii concluded Semmes took command, ran up the Confederate flag to the mast-head, and christened the new steamer the 'Alabama.' He read to the crew his commission from Jefferson Davis, as captain, and then made a speech, in which he explained the kind of warfare he proposed to wage, and called for volunteers. One hundred and ten of those on board consented, and forty refused, returning in the 'Bahama' to Liverpool. Of those who remained, it is stated, in a recently published letter from a Mr. Underbill, dated St. Tiiomas, West Indies, and which professes to give a narrative taken down from the lips of the boatswain of the 'Alabama,' during her passage from Liverpool to the Azores, that the most part belonged to the English Naval Reserve, all trained gunners, and tiiat the crew receive from the Con- federate government half the value of every American ship and cargo destiwed. The ' Bahama ' took out gold to pay the crew, and after transferring her cargo returned with the barque to England, while the privateer set out on its mission of destruction." The general bad faith, or, at the veiy least, criminal apathy of the Britisli govern- ment in this matter, was so great as to draw from Mr. Adams this indignant declara- tion (Letter to Mr. Seward, Dip. Cor. 219) : " It is very manifest that no disposition exists here to apply the powers of the government to the investigation of the acts com- plained of, flagrant as they are, or to the prosecution of offenders." Upon the part of Lord Russell, the correspondence is exceedingly ingenious in devising reasons for post- poning the consideration of, or refusing to grant the demands of tlie American Minister. On the 4th of Sept. (Dip. Cor. 200), Mr. Adams, in writing to Lord Russell on the subject of the escape of the Alal)ama, July 29, was compelled to complain thus : "I have not yet received any reply in writing to my several notes and representations I have had the honor to submit to her majesty's government touching this flagrant case." The answer to this was at last received on the 22d, and consisted of excuses, among which Sir John D. Harding's "malady' does not appear. One may benevolently hope that Sir John D. Harding was able to forget it as easily as Lord John Russell. Let the reader contrast the churlish temper of the following letter, which is a fair specimen of Lord Russell's stjde, with the earnest, open, and liberal language of this government, as it will be hereinafter shown. "PoEEiGN Office, Oct. 16, 1802. " SiH : — I hive the honor to acknowledge the receipt of your letter of the 9th inst., enclo.sing a copy of an intercepted letter iviiich you had received from the United States government, being the further evidence with regard to th* gun-boat " 290 ;" .... and with reference to your observationa with regard to the infringement of the Foreign Enlistment Act, I have to remark, that 12 ENGLISH NEUTRALITY. to each other in mutual obligations of neutrality, arising from the same general law of nations, and from legislative enactments almost entirely similar, it is fair to show, first, how we conducted ourselves toward her at a time when our present positions were reversed. America had scarcely taken upon herself the habitudes of a nation before she was called to perform her international obligations of neutrality. The circumstances involved great embarrassment. One belligerent was our friend, benefactor, and sister republic, France : the other was our enemy and late tyrant, England. We were weak and but poorly pre- pared to resist the importunities of our friend, to whom we owed so large a debt of gratitude. We were also entangled by treaty stipulations with her, under which she enjoyed certain privileges in our waters to the exclusion of Eng- land ; and this again, together with a strong public sympa- thy for her, caused President Washington and his ad- visers great difficulty in securing for England an impartial observance of neutrality in the matters not touched by the treaty. Yet, notwithstanding all this. President Washington, in the inaugural speech of his second term, proceeded to de- clare a strict rule of neutrality, under the law of nations, which has been faithfully observed to this day. (Speech to Congress, American State Papers. Foreign Eelations, vol. 1, p. 21.) On the 22d of April, 1793, he issued his procla- mation containing these words : " / have given instructions to those officers to whom it belongs, to cause prosecutions to he instituted against all persons who shall, within the cognizance of the courts of the United States, violate the laiv of tiations [we had no statute at that time] with respect to the powers at wai', or any of them." (Ibid., 140.) This was followed by written instructions from Alexander Hamilton, Secretary of the Treasury, to the collectors of the customs, requiring " the greatest vigilance, care, activity, and impartiality," in searching for and discovering any at- it is true that the Foreign Enlistment Act, or any other act for the same purpose, can be evaded by very subtle contrivances; but her majesty's government cannot on that account go beyond the letter of the existing law." (Dip. Coi\ 223.) Perhaps Lord Kussell means that to decide in time is to go I)eyoiicI the Zey the merchants, privateers, naj', even liy the royal officers, were not excusable by the protestations of friendship, with which the court of Versailles accompanied those infractions of peace, until the very moment that the treaty of alliance, which it had signed with the agents of the revolted American colonies, was announced by the French ambassador in London." 28 ENGLISH NEUTKALITY. regent of the kingdom. Donna Maria was recognized by Great Britain and all the great powers as the lawful sover- eign of Portugal. In 1828, however, Don Miguel induced a revolt, procured himself to he j^roclaimed king, and suc- ceeded in exj)elling the queen and her friends from most of her dominions. Terceira, one of the Azore Islands, re- mained faithful to her and in her possession. The Brazilian envoy at London applied to the British government for as- sistance, on the ground that the queen was the legitimate sovereign and Don Miguel a usurper. These facts were ad- mitted by Lord Aberdeen, who refused assistance, however, assigning as the reason that, as England could not take notice of the merits of the domestic quarrels of another country, she must therefore conduct herself between the two according to the strict rule of duty governing neutral nations. About this time a number of Portuguese refugees arrived in England and took up their residence in Portsmouth. It was suspected (I quote the language of Phillimore) that they were meditating to fit out some expedition from these ports against Don Miguel, and the government, holding that to permit this would be a breach of neutrality, informed the Brazilian minister that it would allow no such design to be carried on in British harbors, and that, for security's sake, the refugees must remove farther from the coast. The en- voy stated that those troops were about to be conveyed to Brazil, and accordingly four vessels, having on board six hundred and twenty-five unarmed men, sailed from Ply- mouth. The government stispected that the true design was to land these troops on Terceira, and, having given them notice before they sailed that any such attempt would be re- sisted, dispatched a fleet of armed vessels to ivatch and pre- vent a landing. The expedition appeared off Terceira, and, being jierceived by the English captain, was fired into and stopped, one man being killed. The Portuguese commander insisted upon his right to disembark upon the loyal territory of his sovereign, but being unarmed was unable to enforce his right, and his whole expedition was conducted several hundred miles to sea and there left, the English fleet return- ing to stand guard at the island. This act caused great ex- citement in England, and in Parliament the questions of in- ternational law involved were discussed with much ability. The government defended itself on the ground " that the refugees had fitted out a warlike armament in a British j)ort ; IS THE ALABAMA A BRITISH PIRATE? 29 tliat the armament, having been equipped under the dis- guise of going to Brazil, had not been stopped before sail- ing ; and that they loere therefore hound, by the duty of neu- trality, to jjrevent hy force an armament so equi^^ped from disembarking, even in the Queen of Portugal's dominions." The government was supported by a majority in both houses of Parliament. (Br. Annual Register for 1829 ; 3 Philli., 229.) Thus we have, by a fair examination of the customary law of nations, and the general conduct thereunder of England and America respectively, arrived at a point from which we may look about us and obtain a tolerably clear view of the legal conclusions and consequences which follow and belong to the unneutral acts of permitting the initial departure, the con- tinued depredations, subsequent return, refitting, and de- parture of the Alabama and Florida from British ports. From this general view we jjerceive, as a matter of law, that neutrals are bound at all hazards to prevent, among other things, the fitting out in their domiDions of warlike expedi- tions and armaments against either belligerent ; we see also, from the law, and practice of Great Britain in other cases, that all facilities for this purpose exist in that kingdom, and that they may be and have been employed by the authorities of their own motion ; and we gather, from the spirit and language of the Memoire Justificatif, that, in 1779, Great Britain considered that the practice of casting upon the representatives of the offended belligerent — strangers in the land — all the burden of proving the guilty character of such enterprises before any intervention of the neutral government can be obtained, was but little better than a fraudulent eva- sion of international duties. We gather also that America, in 1793, and at all times since, has acted in good faith upon the same opinion, always interposing at the request of foreign powers and requiring its own officers to be vigilant and posi- tive in the eifort to detect and suppress unneutral prepara- tions ; and that as between this nation and Great Britain the latter has demanded and we have always rendered the fullest and freest performance of neutral obligations. It is also seen that by reason and usage the failure of a neutral nation to perform in good faith, and to the best of its ability, its obli- gations in this respect, is deemed to sustain a claim for com- 30 ENGLISH NEUTRALITY. pensation for airpecuniary damage growing out of its derelic- tions ; and even to justify reprisals and absolute war.* Yet, notwithstanding all this, we find that Great Britain has permitted, within her harbors and domain, the fitting out of armaments notoriously intended to cruise against our commerce ; and that the hostile armament has been permitted to sail unopposed from English shores upon its criminal business of lighting up the seas with burning merchant- men, days after the government had been in possession of what itself admitted to be sufficient proof of its clan- destine character. Indeed, on the contrary from the Ala- bama being opposed, it is stated by the press, that the subordinate officials at Liverpool decided upon the value o a breach of the law of nations, by receiving a bond of twenty thousand pounds as the consideration, and indemnification for permitting the Alabama to proceed to sea, thus making the British nation a partner in her crimes and surety for all her acts of jDccuniary damage. And the only excuse for this unprecedented fraud is drawn from the state of Sir John D. Harding's digestion, or what not ; national honor, interna- tional justice, and the peace of great nations, bound up with the bandages of a queen's advocate's gouty toe ! Moreover, although the culprit defies English revenue laws by sailing without a clearance ; and although the true nature of her voyage is soon made known in England by her burnings and destroyings ; and although she was known to be destined for the neighborhood of certain British ports, and does in fact made her appearance and cruise there for months, she is at the end of that time permitted to enter and lie in safety in a British port, without any effort to seize or detain her ; but, on the contrary, the local authorities of Kingston are seen coming actively to her assistance, and returning her escaped crew by force, the same as if she were a lawfully commis- * Great Britain took the right ground with spirit in the caBe'of the Maury, acting, as she did, under the supjiosition that a real attempt was being made to fit out an expedition for her enemy. She sent a fleet of five hundred guns to lie at the Derraadas ; and when interrogated by Mr. Marcy as to the meaning of this menace, the Earl of Clarendon replied that those vessels were sent to that station because of •'■the unj^rovoked attitude of the United States, and that it was resorted to for the protection of Biitish interests against any attack which might be ninde against them.''' [Levi's Annals of British Legislation, vol. 1, p. 132. Mr. Buchanan to Mr. Marcy, Nov. 9th, 1855.] This action was just and wise as it was spirited ; and had our govern- ment neglected or refused to seize the Maury, and had that vessel escaiied and entered upon acts of hostility to English commerce, who can doubt that the next appeal which England would have made to us in favor of neutral conduct would have been conveyed in the roar of her cannon? What she then demanded is precisely what she is now bound to concede ; and since she refuses that concession, there seems good ground to fear that the golden rule is not set down among the maxims of British foreign policy. IS THE ALABAMA A BKITISII PIEATE ? 31 sioned vessel, with whose master or owners the seamen might have a lawful contract of service.'-* The legal liabilities which, under these circumstances, at- tach to the oifending nation, are easily understood. Every nation, while it maintains the semblance of domestic govern- ment, is responsible for the execution of its own laws, espe- cially such as are, in their nature, promises or compacts with other nations.f If the Confederate States were an independent and recognized nation, so that these vessels could have a hona- Jide national character, England would still, under the cir- cumstances of their outfit, be responsible for them as if they were her own. And this would be so even if all tlie persons engaged in the matter were foreigners in England ; for a stranger owes the same allegiance to the laws of a coun- try, while he remains in it, as a citizen ; and the law has equal power over him to compel his obedience ; and, consequently, the government of the state has no ground here for a distinc- tion as to the liability it shall bear. It was upon this prin- ciple that, by the treaty of 1794, this nation agreed to make compensation for damages inflicted by French privateers fit- ted out in our jjorts. The philosophic statement of the principle is given by Burlemaqui, who cites Grotius and Heineccius, and is in turn cited by Phillimore (vol. ii., p. 230), with approval, in these words : "In civil societies, when a particnlar member has done an injury to a stranger, the governor of the conmionwealth is sometimes responsi- ble for it, so that war may be declared against him on that account. But to ground this kind of imputation, we must necessarily suppose one of these two things, sufferance or reception, viz. : either that the • The following pungent hint U extracted from the English pamphlet before referred to : " It may assist some to realize more clearly the serious nature of the case, to imagine that the ' Alabama' hail been fitted out to cruise as a Mexican privateer for the purpose of committing hostilities against France, and that slie had begun forthwith to bum French Tiierchantmen iu the Ray of Biscay. Every one must feel that no paltry excuses, like those put forward to the United States government, would have prevented the Emperor of the French from insisting on prompt redress : and that the British government loould very speedily have fonnd means for putting an end to her career.-' t Indeed, a state may not take refuge behind defects of its municipal laws ; for it is bound at its own peril to provide effective domestic machinery to execute its international duties. It was upon this principle that England .-tood in the matter of Alexander McLeod in 183S. McLeod had done an act for tlie British government, for which he was ax'rested as an offender against the laws of Neiu York. His government avowed the responsibility of his act, and demanded from the United States his release. The Secretary of State, Mr. Webster, admitted, that since the act had been done under orders, it was no longer an individual offence, but a matter between the two na- tions, and recommended his release, but explained that the Federal Government had no power to take him from the custody of the state officers. England refused — very properly — to entirtiiin as an excuse any defect in our system ; saying, that every nation, pretending to hold relations with other nations, is bound to provide itself with the power to meet all just demands ; and had not the New York jury disagreed at the trial, we should have had war upon that question. 32 ENGLISH NEUTRALITY. sovereign has permitted this harm to be clone to tlie stranger, or that he afforded a retreat to the criminal. In the former case, it must be laid down as a maxim, that a sovereign who, knowing the crimes of his subjects — as, for example, that they practise piracy on strangers— and, being able and obliged to hinder it, does not hinder it, renders himself criminal, because he has consented to the bad action Now it is presumed that a sovereign knows what his subjects openly and fre- quently commit ; and as to his power of preventing the evil, this is al- ways presumed, unless the want of it be clearly proved." This principle extends, it will be perceived, so far as to make the neutral sovereign prima facie responsible for the unneutral acts of the belligerents when done or initiated with- in his jurisdiction. All the more is he bound to prevent, or if he does not prevent, to compensate for such acts done by his own subjects ; and the question remains, although no longer of the first importance. What is the national char- acter of the Oreto and Alabama ? Each of those vessels was entirely built, equipped, and fitted, in British waters by En- glishmen. They are permitted to enter and lie in British ports as safely as if they were commissioned in her majesty's service, at the same time that our cruisers are warned off, and forbidden, even when in distress, to enter for coal — as in the cases of the Tuscarora, Flambeau, and Saginaw. The Oreto went to sea with a crew consisting of fifty- two Englishmen and one American. She sailed under En- glish papers for a legitimate port. Both were, at or about their departure, ascertained to be the private property of Englishmen. Unless some change of title has taken place these vessels are yet owned in England by Englishmen. If any such change has taken place, to whom has the title passed ? Not to the Confederate States, or any rebellious citi- zen of that portion of this nation ; for, as between England and the rest of the world, these rebels are to be considered belligerents, and no contract between a citizen of a neutral state and a belligerent, to aid in any way the prosecution of war, is lawful ; on the contrary every such agy'eement is a, initio void, and these vessels still remain the property of th(. British citizens who built them. The principle of law here stated has been decided solemnly in both England and Amer- ica. The English case is Demetrius De Wiitz v. Hendricks (9 Moore, C. P. Bep., 586-7 ; tried in 1824). The facts of that case involved a contract to raise money to aid the Greeks in their revolt against the Porte, the plaintiff claiming to act IS THE ALABAMA A BEITISH PIRATE ? 33 for tlie Exarch of Kavenna, under power of attorney, and the defendant being an English broker. The contract was de- clared by Lord Chief Justice Best to be void by the law of nations. The principal American case is Kennett v. Chambers (14 How, U. S. Rep., 38, 44). The^ facts were that Cham- bers, a Texan general, had agreed to convey a large tract of Texan lands in consideration of advances made, and to be made, at Cincinnati, for the purpose of aiding the Texans to carry on the revolution against Mexico, with which power we were at peace. The contract was mad- at Cincinnati, in 1836, and the independence of Texas was not recognized by the President of the United States until 1837. A bill hav- ing been filed to obtain a specific performance of the contract to convey, the Court refused to enforce it, saying " the con- tract is not only void, hut the parties who advanced the money were liable to be punished in a criminal prosecution for a violation of the neutrality laws of the United States." Thus, it is seen that the Oreto and Alabama, originally sailing from English ports, manned by English law-breakers, are still the property of English owners ; because all attempts on their jnirt, if any such have been made, to convey their interests to our rebellious citizens, or any one of them, are absolutely void and of no efiect. And it is a fair question for judicial and professional consideration, whether, in addi- tion to the criminal proceedings given by the Foreign Enlist- ment Act, the oioners of the Jacob Bell may not have their action for damages against Fawcett, Preston (ft Co., of Liverpool, the owners of the Florida ; and the owners of the Brilliant, and other vessels destroyed by the Alabama, their respective actions against Messrs. Laird, of Birken- head, the reputed owners of that vessel. One more, interesting, but still less important question, practically, relates to the specific character of these vessels and their crews. Are they pirates ? Piracy is defined to be the offence of depredating upon the high seas, ivithotit being authorized by any sovereign state. (Wheat. Int. L., P. 2, c. 2, § 15.) These English sea-rovers claim, doubtless, to cruise under some kind of commission from the self-styled and unrecognized " Confederate States." I do not propose to discuss, with much seriousness, here, a question, which being in this place of little import, may hereafter, in a different discussion, become of the first magnitude ; still, I am com- 3 34 ENCxLISH NEUTRALITY. pelled to say tliat, by the law and practice of nations, it ap- pears that no commission from an unknown, unrecognized authority can relieve the persons upon those vessels from the character of pirates, liable to punishment as such by any nation who may have the power and the will to enforce the penalties for that crime. Hautefeuille says (i3es Nations Neutres, tit. 3, ch. 2) : " It is admitted by all nations, that in maritime wars every indi- vidual who commits acts of hostility without having received a regu- lar commission from his sovereiyn^ however rcgularhj he may make war, is regarded and treated as guilty of piracy." From what sovereign have the commanders of the Florida and Alabama received commissions ? Although they sail from English ports in an English bottom, they have no Eng- lish commission. Although cruising in the interest of certain Americans, they have no commission from this government. There is no government, such as they claim to represent, in existence — at least, having any such existence as would af- ford a legal protection to them, in case some nation which has not conceded to them belligerent rights, should choose to seize and try them as pirates : " For it is a firmly-established rule of British, American, and, in- deed, all jurisprudence, that it belongs exclusively to governments to recognize new slates ; and that until such recognition, either by the government of the country in whose tribunal the suit is brought, or by the government to ivhich the neiv state belongs, courts of justice are bound to consider the ancient state of things as existing.'" (2 Phillimore 25 ; Kose V. Himnely 4 Cranch^ 272 ; ?Ioyt v. Gelston 3 Wheat. 324. The City of Berne vs. The ]3ank of England, 9 Vesey, 348.) Nor would it avail these men to plead that they are not — according to the general description of pirates— enemies to all mankind ; for in the case of the Magellan pirates, in 1851 (see The Jurist), the learned Dr. Lushington, of the High Court of Admiralty, declared, concerning the law of nations relating to pirates : "If it was clearly proved that the accused committed robbery and murder on the high seas, they were adjudged to be pirates, and suf- fered accordingly It does not follow that, because rebels and insurgents may commit against the ruling powers of their own country, acts of violence, they may not commit piratical acts against the subjects of other states." The same question arose shortly after the abdication of IS THE ALABAMA A BRITISH PIRATE ? 35 .James II., in a manner to make it, in all essentials, precisely parallel to the one on hand. " That case involved a discussion of the general principle, whether, a deposed sovereign, claiming to be sovereign de jure, might lawfully commission privateers against the subjects and adherents of the sover- eign de facto on the throne ; or whether they were to be regarded as pirates, inasmuch as they were sailing animo far audi et deprcedendi without any national character." And, after stating at length the argument on both sides, Mr. Phillimore gives as his judgment : " That after allowinr^ '^f^^r^ )0t