Southern Historical Society Papers, Volume 7.
Reverend J. William Jones, Ed.

Sir — You will receive herewith the sum of eight thousand dollars, of which five hundred dollars are in gold coin and the remainder in a bill of exchange for 1,546£. 7s. 10d., equivalent to seven thousand five hundred dollars, counting the pound sterling at $4.85. This amount is placed in your hands to enable you to accomplish the objects set forth in my letter of the 19th instant.

You will appropriate five thousand dollars of the amount now paid to you, or so much thereof as may be necessary, to defraying the expenses incurred in carrying out the instructions of the Department. The remaining three thousand dollars are paid in compensation of your personal services and to provide for your personal expenses.

If the time occupied in the mission confided to you shall exceed six months, counting from the date of your commission, a further compensation will be allowed you at the rate of five hundred dollars per month.

You will be expected to furnish vouchers to this Department for the disbursement of the five thousand dollars. As this sum is furnished by the President from the secret service fund, your accounts will not pass through the Treasury, but will be settled in this Department. For any sum you may pay out of these five thousand dollars under circumstances or for purposes that do not permit your taking receipts, you will furnish a certificate on honor, which will be received as sufficient voucher. Your traveling expenses will be at your own charge, except in cases where the Government may be able to furnish transportaion. You will be provided [100] with transportation to Halifax, but on your return you will provide for yourself unless fortunate enough to meet with a Government vessel coming home, in which case no charge for passage will be made against you.

In addition to the duties confided to you by the instructions of the 19th instant, I have now, at the instance of the President, to add another.

We are informed that several hundred of the officers and men enlisted in our service who were captured by the enemy, are now in Canada, having escaped from prison; that they are without means of returning home, although anxious to resume service. The Government fully recognizes the duty of aiding these unfortunate public servants to reach their posts of duty, and can only regret that it was not sooner informed of their condition. You are requested to make in Canada and Nova Scotia the requisite arrangements for having passage furnished them via Halifax to Bermuda, where they will receive from Major Walker, the agent of the Department of War, the necessary aid to secure their passage home. Colonel Kane, from whom we have just learned the facts, suggests that a proper agent be employed at Montreal, who shall give public notice that he is authorized to furnish passage to the Confederacy of all officers and men heretofore enlisted in its service who desire to return to their homes; that the applicants be sent down the Saint Lawrence and round to Halifax by water, as the cheapest conveyance, and from Halifax to Bermuda. In Halifax you will find the mercantile house of B. Weir, to which you can apply with confidence for any advice or assistance in making these arrangements.

The whole number of escaped prisoners is supposed not to exceed four hundred, and it is not probable that all will make application.

You will receive herewith a letter of credit on Liverpool for twenty-five thousand dollars, which we presume to be enough for the present, and which you will use as may be needed for this purpose; and you are requested to send as early news as convenient, of the prospect of restoring our fellow-citizens to their country, the number likely to come, and whether a further sum of money is necessary for the purpose.

It would be advisable, before acting in this matter, to inform the British colonial authorities of your design, in order to obviate any misrepresentations of our enemies, who will assuredly endeavor to [101] create the false impression that we are recruiting for our armies in British territory. You will explain that you are instructed scrupulously to avoid any breach of public or municipal law, and that your sole purpose is, as above explained, to aid our own people to return to their homes.

Very respectfully, your obedient servant,

My Dear Sir — The Caledonia will not get out before to-morrow night, and I avail myself of the delay to write you unofficially a few lines. On inquiry of Mr. Power, I learn that it will be easy to prove Locke's residence (and probably citizenship) for many years in South Carolina, and he gives the name of a witness, which I enclose. It may be well to have his testimony taken and forwarded to me at Halifax.

In a Nassau paper received by the Lucy, just in, I observe a paragraph to the effect that Judge Stewart, of the Admiralty Court, had finally disposed of the Chesapeake by ordering a restoration of the ship and cargo to the original owners on payment of the costs in court. I think it probable that the colonial authorities will disclaim all authority to entertain any application for indemnity and refer me to the home Government. In the event of its being deemed unadvisable to institute any proceedings, appellate or otherwise, in the Court of Admiralty, this will present a contingency not embraced in my present instructions. I will, of course, make the earliest practicable report of the facts after my arrival at Halifax.

I find the Caledonia will be crowded with passengers sailing by order of the Government. Parr has agreed to wait and take his chance in the next vessel that goes out.

I hope Captain Lalor may be able to get out, but there seems no principle upon which a right to precedence is ascertained beyond priority, and I am fearful of the result.

I have been so fortunate as to secure a copy of Saturday's Sentinel, but have not yet read the interesting article it contains.

With great esteem, I am, &c., &c.,

Sir — I avail myself of the earliest opportunity to inform you of the circumstances which have delayed my departure from this port. The Caledonia crossed the bar at Wilmington about ten o'clock on Tuesday night, the first of March. With the exception of that night and the succeeding day, we had fine weather, but the speed of the vessel was so much less than had been anticipated that we did not reach this island until Sunday night. The Caledonia, in a rough sea, with no more cargo than a few days' coal, would not average more than four knots and a half an hour. I ascertained, after her arrival here, that the unloading of her cargo, taking on coal for Halifax, and some repairs, would detain her until about the 15th of March, and that the British mail steamer for Halifax would leave here on Friday, the 18th. I thought that as under the most favorable circumstances I could only save a day or two of time, and in all probability would lose it during the voyage by taking the Caledonia, it would be best to save the Government the heavy expense and hazard of my trip in that vessel, and to take my passage for next Friday in the Alpha.

Captain Lalor being very solicitous to arrive in England at the earliest day, and finding that he would save nearly a week's time by going to Saint Thomas and thence to Southampton, I furnished. him with oral instructions, with the money to pay his passage.

A slip which I inclose indicates the position taken by Judge Stewart in the Chesapeake, and upon which I should be gratified to have your opinion.

I remain, with great respect,

Sir — In the communication which I had the honor to transmit from Bermuda, I explained the reasons which induced me to turn the Caledonia over to her owners, and to engage my passage to Halifax in the British mail steamer Alpha. From what has since [103] transpired, it is certain that if I had escaped capture upon the Caledonia, there would have been no saving of time at all commensurate with the heavy expense to the Government which the employment of that vessel would have involved. The Alpha did not reach this port until the 23d of March, having been delayed for two days by a severe storm which it encountered soon after leaving the Gulf Stream. Upon my arrival I learned that the prisoners, whose delivery had been demanded by the United States under the extradition treaty, had been released by the judicial authorities of New Brunswick upon habeas corpus; and although new warrants are out for their arrest, it is not probable they can be executed. The most embarrassing phase which this case could assume would be presented for solution by the surrender of these men. Whatever may be the light in which the captors of the Chesapeake should be regarded according to the strict rules of law, the Government and people of the Confederate States cannot be indifferent to their fate. They imperilled life and liberty in an enterprise of great hazard, which they honestly believed was invested with the sanction of law, and to which, as a body, I have reason to think, they were mainly impelled by a generous sympathy with our cause. Whilst, therefore, in exercising the discretion confided to me, I have determined at least for the present to interpose no claim to the Chesapeake as prize of war on behalf of the Confederate States, I have endeavored to observe a diplomatic reticence as to the view which our Government may ultimately take of that transaction. I can imagine the existence of circumstances under which the Government, to save these brave and innocent men from a cruel and unrighteous doom, might claim the benefit of principles which it would not think it judicious to assert if the only interest at stake was one of property.

As to the Chesapeake, I find that she had been surrendered to her original owners without the almost invariable requisition of bail to answer prospective demands.

The reasons which induced the judge to depart from the established course of admiralty practice are contained in the opinion (of which I send you a copy). Taking the opinion and the conduct of the magistrate himself during the progress of the cause (of which I also transmit a history) together, I do not believe any judicial proceeding has taken place in a British court for a century and a half so discreditable to its dignity, its intelligence or its justice. [104]

But notwithstanding my indignation at the offensive and unworthy bearing of Judge Stewart, I am not willing, after a full examination of the facts of this case, to commit the Government to interference with it in any form.

The moral weight which should attach to its interposition would be impaired by advancing a claim, which it is almost certain would be allowed neither by the British courts nor the British Government, and which we could sustain only by affirming principles doubtful in law and equivocal in morals. The facts upon which my opinion rests are these: Of the party actually engaged in the capture--fourteen or fifteen in number — only one has any claim to the character of a Confederate citizen or belonging in any way to service; this was the Second Officer, H. A. Parr, who, although born in Canada, had lived for the last seven years in Tennessee. The Lieutenant-Commanding, John C. Braine, I have ascertained beyond doubt, had been released from Fort Warren on the application of the British Minister, on the allegation of being a British subject. This, indeed, is the substance of his own admission; nor has he since been within the Confederacy.

Although he states that he had been in our military service at an earlier period, the declaration is probably untrue, and would not be received to contradict the deliberate and solemn allegation by which he obtained his liberty. He is, I think, estopped from claiming — what, in truth, I do not believe he ever possessed — the Confederate nationality. Passing over for the present the consideration of what effect Parker's connection with this enterprise may have upon its character, it appears to have been a capture made for the benefit of the Confederacy by a body of men, without any public authority, and who, with the single exception of a subordidinate officer, were British subjects.

I do not think such a case can be brought within the application of the principle, perfectly well settled, and which in a war like the present our Government ought never to yield, that the citizen of a belligerent State, with or without a commission, may capture enemies' property at sea. That doctrine (as may be seen in the elaborate discussion of the opinions of British and foreign jurists by Judge Story, in the case of the Ship Emulous, 1 Gall. Rep., 563, 55; 8 Cranch, 110--a discussion which Mr. Phillimore pronounces perfectly exhaustive) is founded upon the hostile relations which the mere declaration of war creates between citizens of the contending States. A commission would appear to me indispensable [105] to enable a belligerent to claim for itself the benefit of captures made in its behalf by citizens of a neutral State. Parr's position may be, and in all probability is, very different from that of his associates; but it does not seem to me to have been sufficiently commanding to impress on the enterprise his own nationality. The question then recurs, whether the legal complection of this capture can be altered by Parker's connection with it, assuming that his Confederate character can be established by proof. In the absence of all facilities for investigation (the law library of the Province, to which I have access, being very meagre), I am not free from all doubt as to the correctness of my conclusions upon this point. The letters of marque, I am disposed to think, attach only to the vessel, and confer authority upon the master, whoever he may be, for the time being. They do not confer upon the commander a personal authority, which will survive the destruction of his ship (unless in reference to a prize which she may have captured) and enable him to act as a commissioned officer wherever he may be found. If I am correct in this, Parker can only be regarded as a private citizen of the Confederacy, with no right, such as he assumed, to enlist men or appoint officers in its service; and as he was not present when the Chesapeake was taken, the character of the capture must be determined by that of persons on board at the time.

If, however, I am mistaken in my view of the law upon this point (which I would be very glad to find), there is another principle which, whilst it would not affect the captors with any crime in the eye of public law, would no doubt be appealed to in order to deprive us of the fruits of the capture — I mean that enunciated by the Supreme Court of the United States, in the case of L'Aneistad De Rues, 5 Wheat, 385; the Belle Corunes, 6 Wheat, 152; La Conception, ibid, 235; La Santissima Trinidad, 7 Wheat, 283 and 9, to wit: that where a prize has been taken by any agency created in violation of neutral sovereignty, it will, if brought voluntarily within the neutral jurisdiction, be restored to the original owners. I do not know that the case of the Chesapeake can be brought within the range of any exception to this principle. The evidence contained in the report of the trial at Saint Johns (of which I send a copy) discloses a clear violation by Parker of the British foreign enlistment act; and upon this ground alone I apprehend that any claim we might advance to the Chesapeake would be defeated. [106]

The conduct of the captors after the capture, in peddling the cargo in violation of the revenue laws of the Province, and the appropriation of a portion of the proceeds by some of them to their own use, and all the developments which have been made as to the motives and character of Braine, are calculated to throw so much suspicion and discredit around the whole transaction, that I should deem it unwise, even were the law supposed to be in our favor, without weightier reasons than now exist, to compromise the Confederacy by assuming its responsibility.

I cannot close this communication without bringing to the attention and notice of the Government the generous sympathy and liberal contribution in every matter in which the interests of the company were supposed to be involved, of some prominent gentlemen in this city, and especially of Dr. Almon, Mr. Keith, Mr. Weir and Mr. Ritchie. They have given money, time and influence without reserve, as if our cause had been that of their own country. I feel that I shall not transcend the spirit of my instructions in tendering Mr. Ritchie, of this city, and Mr. Gray, of Saint Johns, on behalf of the Confederacy, some compensation for professional services which were rendered most faithfully and laboriously and with no other object than to advance our cause. I feel that the gentlemen whose names I have given are entitled to some special acknowledgment from our Government of their handsome conduct, and I am certain it would be most highly appreciated by them, and would exercise a happy influence in this community.

It was so late before I could procure all the documents upon which to rest my action, that I am unable to embrace in this letter several matters I desire to bring to your attention.

With the highest consideration,

P. S.--It may not be improper to add that the conclusions which I have reached are in accordance with the judgment of our most discreet and intelligent friends in this place.