Further, as to this question of adjudication, your letter to Lieutenant Low, the late commander of the Tuscaloosa, assumes that, as the Tuscaloosa was not condemned, she was therefore the property of the enemy from whom she had been taken.  Condemnation is intended for the benefit of neutrals, and to quiet the titles of purchasers, but is never necessary as against the enemy.  His right is taken away by force, and not by any legal process, and the possession of his property manu forte is all that is required against him.

Earl Russell having decided to disregard these plain principles of the laws of nations, and to go behind my commission, let us see what he next decides.

His decision is this, that the Tuscaloosa being a prize, and having come into British waters in violation of the Queen’s orders of neutrality, she must be restored to her original owner.  The ship is not seized and condemned for the violation of any municipal law, such as fraud upon the revenue, &c.—­as, indeed, she could not be so seized and condemned without the intervention of a court of law—­but by the strong arm of executive power he wrests my prize from me, and very coolly hands her over to the enemy.  It is admitted that all prizes, like other merchant ships, are liable to seizure and condemnation for a palpable violation of the municipal law; but that is not this case.  The whole thing is done under the international law.  Now, there is no principle better established than that neutrals have no right to interfere in any manner between the captor and his prize, except in one particular instance, and that is where the prize has been captured in neutral waters and afterwards comes of her own accord within the neutral jurisdiction.  In that case, and in that case alone, the neutral prize court may adjudicate the case, and if they find the allegation of infra terminos proved, they may restore the property to the original owner.

If a lawful prize, contrary to prohibition, come within neutral waters, the most the neutral can do is to order her to depart without interfering in any manner with the captor’s possession.

It is admitted that if she obstinately refuses to depart, or conducts herself otherwise in an improper manner, she may be compelled to depart, or may, indeed, be seized and confiscated as a penalty for her offence.  But there is no plea of that kind set up here.  To show how sacred is the title of mere possession on the part of a captor, permit me to quote from one of your own authorities.  On page 42 of the first volume of Phillimore on International Law, you will find the following passage:  “In 1654 a treaty was entered into between England and Portugal, by which, among other things, both countries mutually bound themselves not to suffer the ships and goods of the other taken by enemies and carried into the ports of the other to be conveyed away from the original owners or proprietors.”

“Now, I have no scruple in saying (observes Lord Stowell in 1798) that this is an article incapable of being carried into literal execution according to the modern understanding of the law of nations; for no neutral country can intervene to wrest from a belligerent prizes lawfully taken.  This is perhaps the strongest instance that could be cited of what civilians call the consuetudo obrogatoria."