The Georgia

by Samuel Nelson

United States Supreme Court

74 U.S. 32

The Georgia

APPEAL from the District Court for Massachusetts, condemning as prize the steamship Georgia, captured during the late rebellion. The case, as derived from the evidence of all kinds taken in the proceedings, was thus:

The vessel had been built, as it appeared, in the years 1862-3, at Greenock, on the Clyde, as a war vessel, for the Confederate government, and called the Japan; or if not thus built, certainly passed into the hands of that government early in the spring of 1863. On the 2d of April of that year, under the guise of a trial trip, she steamed to an obscure French port near Cherbourg, where she was joined by a small steamer with armaments and a crew from Liverpool. This armament and crew were immediately transferred to the Japan, upon which the Confederate Flag was hoisted, under the orders of Captain Maury, who had on board a full complement of officers. Her name was then changed to the Georgia, and she set out from port on a cruise against the commerce of the United States. After being thus employed for more than a year-having in the meantime captured and burnt many vessels belonging to citizens of the United States-she returned and entered the port of Liverpool on the 2d of May, 1864, a Confederate vessel of war, with all her armament and complement of officers and crew on board. At the time she thus entered the port of Liverpool, the United States vessels of war, Kearsarge, Nigara, and Sacramento, were cruising off the British and French coasts in search of her, the Alabama, and other vessels of the rebel confederation. It was resolved at Liverpool that she should be sold. It appeared that Captain Bulloch, an agent of the Confederacy at the port, at first thought of selling her at private sale, together with her full armament; but failing in that, she was advertised for public sale the latter part of May and the first of June. A certain Edward Bates, a British subject and a merchant of Liverpool, dealing not unfrequently in vessels, attracted by the advertisements, entered into treaty about her. The broker concerned in making a sale of her, testified that 'Bates was desirous of knowing what would buy the ship, but he wished the armament excluded, as he did not want that.' According to the statement of Bates himself, it had occurred to him that with her armament on board he might have difficulty in procuring a registry at the customs. All the guns, armament, and stores of that description, were taken out at Birkenhead, her dock when she first entered the port at Liverpool. The vesel had been originally strongly built, her deck especially; and this was strengthened by supports and stanchions. Though now dismantled, the deck remained as it was; the traces of pivot guns originally there still remaining. The adaptation of the vessel to her new service cost, it seemed, about 3000. How long she remained in port before she was dismantled was not distinctly in proof, though probably but a few weeks. The sale to Bates was perfected on the 11th June, 1864, by his payment of 15,000, and a bill of sale of the vessel from Bulloch, the agent of the Confederacy. He afterwards fitted her up for the merchant service, and chartered her to the government of Portugal for a voyage to Lisbon, and thence to the Portuguese settlements on the African coast. The testimony failed to show any complicity whatever of Bates with the Confederate purposes. But he had a general knowledge of the Georgia's career and history, testifying in his examination 'that he knew from common report that she had been employed as a Confederate cruiser, but thought that if the United States government had any objection to the sale, they or their officers would have given some public intimation of it, as the sale was advertised in the most public manner.'

The American minister at the court of London, Mr. Adams, who was cognizant of the vessel's history from the beginning, and had kept himself informed of all her movements and changes of ownership, having, on the 14th March, 1863, called the attention of Earl Russell, the British Secretary for Foreign Affairs, to the rule of public law, affirmed by the courts of Great Britain, which rendered invalid the sale of belligerent armed ships to neutrals in time of war, and insisting on its observance during the war of the rebellion, and having remonstrated, on the 9th of May, 1864, against the use made by the Georgia of her Majesty's port of Liverpool, informed him, on the 7th of June following, and just before the completion of the transfer to Bates, that the Federal government declined 'to recognize the validity of the sale of this armed vessel, heretofore engaged in carrying on war against the people of the United States, in a neutral port, and claimed the right of seizing it wherever it may be found on the high seas.' Simultaneously with this note Mr. Adams addressed a circular to the commanders of the different war vessels of the United States, cruising on seas over which the Georgia was likely to pass in going to Lisbon, informing them that in his opinion 'she might be made lawful prize whenever and under whatever colors she should be found.' ^[1] Leaving Liverpool on the 8th August, 1864, the vessel was accordingly captured by the United States ship of war Niagara, off the coast of Portugal, on the 15th following, and sent into New Bedford, Massachusetts, for condemnation. A claim was interposed by Bates, who afterwards, on the 31st January, 1865, filed a test affidavit averring that he was the sole owner of the vessel, was a merchant in Liverpool, and a large owner of vessels, that he had fitted out the Georgia at Liverpool for sea, and chartered her to the Portuguese government for a voyage to Lisbon, and thence to the Portuguese settlements on the coast of Africa, and that while on her voyage to Lisbon in a peaceable manner, she was captured, as already stated.

The proofs in the case were not confined to the documentary evidence found on board the prize, and to the answers to the standing interrogatories in preparatorio, but the case was heard before the court below without restriction, and without any objection in it upon additional depositions and testimony, although, so far as the printed transcript of the record before the court showed, no order for further proof had been made. The counsel of both government and claimant, however, had joined in taking the additional testimony, and among the witnesses was Bates himself, whose deposition with its exhibits occupied fifty-six pages out of the one hundred and forty-seven which made the transcript.

The court below condemned the vessel.

Mr. Marvin, for the claimant, appellant in this case:

It was the duty of the court below, and it is the duty of this court now, to hear the case upon the documents found on the vessel, and the depositions in preparatorio, ^[2] as there was no order for further proof, or no other evidence. This is not a mere matter of practice, but it is the very essence of prize law. ^[3] The case not having been so heard in the court below, and no order for further proof having been granted by the court, all the other depositions should be disregarded by this court. If they are so disregarded, the captors have, we assume it to be plain, no case.

But waiving this, and taking the case as presented on the whole testimony, this question arises: 'Does a neutral, who purchases from one of two belligerents, in good faith and for commercial purposes, in his own home port, a vessel lying there, which had been used by such belligerent as a vessel of war, but which had been disarmed, take a good title as against the right of capture of the other belligerent?'

We think that he does. No principle of international law prohibits a neutral, in his home port, from buying from or selling to any person, any and every species of property. In a home neutral port there is no room for the operation of international interdicts; nor does international law invalidate any sales made in such port. Indeed, sound policy requires that the enemy should be allowed and even encouraged to sell his naval vessels. They cannot be blockaded in a neutral port, and can escape out of such port when they will. The right to the chances of capturing them on the ocean is of much less value to a belligerent than their absence from the ocean would be.

The validity of the purchase of the enemy's merchant ships by a neutral, even where the purchase and transfer have been effected in the enemy's port, under blockade, has been fully recognized. ^[4] Can this case be distinguished in principle? We think that it cannot.

Mr. Evarts, Attorney-General, and Mr. Ashton, Assistant Attorney-General, contra:

1. This court is entitled to look into all the proofs found in the record. The depositions, by way of further proof, were obviously taken and introduced into the cause by the agreement and consent of the parties.

2. When a neutral deals with belligerent privates about private property, his dealings are generally lawful; but when he deals with a belligerent sovereign, when the subject of dealing are public vessels, public funds, public property of any kind, it is unlawful. While neutrals have rights, so too they have obligations; obligations founded on the rights of belligerents. Thus neutrals cannot give assistance to one belligerent when reduced by the other to distress. Hence it is that a neutral may be captured and condemned if attempting to run a blockade, or if carrying contraband; and hence, too, that articles not otherwise contraband of war become so when sent to aid an enemy reduced to distress. This is the principle which we seek to apply. Suppose an armed vessel driven into a neutral port by cruisers who lie outside, and who would capture her the moment she came out. In such a case any truly neutral government would refuse to have its ports used as places of refuge. The vessel would have to sail out, and would sail of course into the jaws of capture. But if the hard-pressed enemy can dismantle and sell, how is neutrality maintained? The purchase-money can be taken at once and applied to other warlike purposes; to the purchase or building of new ships in new places. The law of nations cannot be charged with the inconsistency of prohibiting a neutral from permitting the use of his territory by a belligerent as an asylum for his vessels of war, and on the other, of suffering the sale of such vessels within neutral protection, by which the same advantage may be gained by the belligerent as if he had an absolute right to employ the neutral territory as a place of safe resort from his successful enemy. A title may indeed pass in a case of sale like this, but it passes subject to the right of capture.

The Minerva, ^[5] decided by Sir W. Scott, covers our ground. There was, indeed, some evidence of collusion in that case, but Sir W. Scott undoubtedly intended to say, and did say in that case, that an enemy's vessel of war, lying in a neutral port, was not an object fairly within the range of commercial speculation, and he unquestionably intended to place his judgment of condemnation as well upon this principle, as upon the independent view that, upon the special facts of that case, the purchase was collusive, and had been made with the intent to convey the vessel into the possession of the former belligerent owner. The principle was lately acted upon by that able jurist, Field, J., of the District Court of New Jersey, in the unreported case of The Etta, under circumstances much the same as those of the Georgia.

Reply:

The Minerva was unlike the present case in many important particulars. It was the case of a pretended purchase of a ship of war, with eighteen guns and ammunition, captured while on her way ostensibly to the port of the purchaser, but really to a port of the enemy; fourteen guns and ammunition having been taken out for the mere convenience of conveyance. Though the vessel lay at a neutral port, the negotiations for the purchase were carried on at the enemy's port, and an enemy crew and captain were hired there and sent to bring home the ship. She was captured in possession of an enemy master and crew, and while sailing close into the enemy's coast. In fact the vessel was going, under color of purchase and sale, right back again into the enemy's navy. The vessel had not been dismantled, except in part for the convenience of transportation, the purchaser buying guns and ammunition with the vessel. There was no proof in the case that the purchaser had paid for the vessel, or that he had bought her for commercial purposes only. It was the case of a mere colorable purchase. It is true that Sir W. Scott assumes to place the decision of the case on the ground of the illegality of the purchase. But he does so unnecessarily.

Mr. Justice NELSON delivered the opinion of the court.

Notes

1. Correspondence between Mr. Adams and Earl Russell, and Mr. Adams and Mr. Seward, communicated with the President's messages to the first and second sessions of the Thirty-eighth Congress.
2. Paper of Sir William Scott and Sir John Nicholl, addressed to his Excellency John Jay, 1 Robinson, Appendix, 390; The Haabet 6 Id. 54.
3. 3 Phillimore 594, § 473.
4. The Sechs Geschwistern, 4 Robinson, 101; The Virilantia, 6 Id. 123; The Bernon, 1 Id. 102.
5. 6 Robinson, 397.