reprint of the more important parts of the Times, in an immaterial addition, because the Times is and had some circulation in London, though its published in the morning. Here the defendant's principal circulation was in the provinces and colo- paper is published at an early hour in the morning, nies. The defendant commenced the publication but the plaintiff's paper, although published before in London of a daily morning newspaper under the noon, and therefore in the morning in that sense, is name of the Morning Mail, at the price of one half- in no sense what is called a morning paper, such penny. Held, that an interlocutory injunction papers being sent by early trains into the country. should not issue. Cotton, L. J., said: "What we The Mail is published at eleven o'clock, and is a have to consider is, what is the principle upon very useful paper, but not one that should be deswhich the court has to decide cases like this. As I ignated as a morning paper; I certainly should not understand it, it is this: It is not a question of so refer to it. One must judge on the evidence and property, but a question whether what has been from the two papers, whether we can say that we done by the defendant is in reason calculated to in- ought now to stop the defendant on the ground duce persons to take his goods as the goods of the that this is calculated to mislead and to get people plaintiff, or in other words, to pass off his goods, to take his goods when they desire the plaintiff's, of whatever class they may be, as the goods of the or to pass off his goods as the goods of the plaintplaintiff. One must judge therefore whether in iff.” Lindley, J., said: "We cannot shut our eyes reason the use of this heading is so calculated. to this, that an injunction against a newspaper Now, I do not intend in any way to express an means absolute ruin. One does not need to know opinion that the plaintiff may not, at the hearing, much about newspaper property to know that very make out his case; and if such an event happened well. On the other hand, it is a serious thing to as this, that the defendant, relying on his success, the proprietor of the Mail to have his property unif it be a success, here and in the court below, were duly interfered with. Now is there any thing more to alter the title of his paper to the Mail, I should, which is really material? The only danger in a as at present advised, consider that he ought to be case like this, where the line of deviation is not restrained from publishing his paper under that very broad, is in applying the true principle. But name. It is said that what the defendant has done upon this evidence I think we should be overstepis just the same as if he had published his paper | ping the line if we granted the injunction. It is under the title of the Mail. In my opinion there said in the evidence that the Morning Mail will be is a difference. When a similar newspaper is pub-contracted into Mail. I dare say it will. The little lished with the exact name of a rival newspaper, that is calculated to represent, and does represent, unless there is some marked distinction between the two, that what the man who is starting the new paper is starting is, by the exact similarity of the name, that which belonged to somebody else be- | fore. Although that may be rebutted when one comes to look at the two rival articles, yet prima facie, that is a representation made by the man who starts the new paper, or whatever it may be, that it is that of his rival, who has established a reputation for his article under that very name. When you speak of one man by the exact name of another, that is rather a representation that he is that other man, if that other man is a well-known character, unless you mark the distinction between the two by something put in to designate or show which is which. Of course, if people have the same Christian name and the same surname we must use the same name for both, but if one takes the exact name of the other, that under ordinary circumstances is something like representing that one is the other. That is not quite the case we have to consider here. The name not being exactly the same, is the use of the title, the Morning Mail, calculated to mislead and pass off the goods of the defendant as the goods of the plaintiff? The ques-principle- to deceive people with that substantial tion has been asked, supposing anybody dared to publish the Morning Times, would he not be stopped? As at present advised, I think he would, because it would be evident to me, as at present advised, that 'Morning' was put in in order to get the reputation of the Times newspaper by putting boys who call it out, and whose breath is valuable to them, naturally get into the habit of using contractions, and I dare say the Morning Mail may be called the Mail, and I think very likely it will, just as the Advertiser is called the 'Tiser. I do not say it is a thing to be altogether lost sight of. I do not go the whole length of saying that a man who adopts a name is not, to a certain degree, responsible for those contractions which are inevitable in the course of nature, but it is not enough, to my mind, to justify us in stopping this publication, that the little boys may contract the name of it, and leave out the word 'Morning.' It is also said that if we do not grant this injunction the proprietor of the Mail will be unable to alter his publication. Of course he may alter it as much as he likes. He may publish it daily, and reduce his price, and do any thing with it he likes, but what is meant is, that the competition will be keener if he does, and that he will not be able to do it with the same advantage as he could if he excluded his rival. That is true enough, but is that a right of property in respect of which he is entitled to protection? I doubt that very much indeed." Bowen, L. J., said: | "Has the defendant been guilty of conduct, the natural result of which would be if that is the and material effect? That is a question of fact in each case, and for that reason it seems to me that all other cases, although they are valuable for instruction, and as teaching us the way in which we should apply our minds, are not valuable as authorities, but are to be read rather as the church reads THE ALBANY LAW JOURNAL. the Apocrypha, than as matters binding the conscience and the mind. The use of a similar name, for instance (I take exactly the same view as Cotton, L. J., does), is not, as matter of law, conclusive that there is an intention to deceive, or as a matter of law, that there should be such a deception as will cause an interference with or damage to the business of another, because one can conceive cases where the use of a similar name might be so hedged round by other circumstances as to destroy the natural effect of such an act. But I do think that in nine cases out of ten the use of a name would be evidence from which few minds could draw any inference except that damage would be done, and would be done by deceiving the customer or the public in respect of the two businesses. So similar type, similar appearance in the papers, every kind of circumstance which tends to confuse, is evidence from which the inference may be drawn that the acts will confuse. But you must take them all into consideration. I agree that proof of actual mistake is not necessary, and actual mistake is not necessary. When you get it, it is very valuable of course, but its absence is not conclusive. You must come back in every case to the definition, and ask yourself the question, which to my mind seems the right question to be asked, and make up your mind whether, in the particular instance, that definition is fulfilled." "HIGH SEAS- CHESAPEAKE BAY NO PART OF "CONFEDERATE CRUISER." COURT OF COMMISSIONERS OF ALABAMA CLAIMS. STETSON V. UNITED STATES. Congress, by section 4 of the act of June 5, 1882, directed the Court of Commissioners of Alabama Claims, "to receive and examine the claims mentioned in section 5 of this act, and to enter judgment for the amount allowed therefor in two classes." Section 5 is as follows: "That the first class shall be for claims directly resulting from damage done on the high seas by Confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although the loss or damage occurred within four miles of the shore, excluding claims which have been proved pursuant to section eleven of said chapter four hundred and fifty-nine." The ship Alleganean cleared from Baltimore, Md., for London, Eng., October 22, 1862. She continued her voyage the next day, and on the 28th of that month anchored in the lower part of Chesapeake bay, and more than four miles from any shore. While anchored there she was captured by some officers and men of the Confederate navy. The officers were acting under special orders of the secretary of the navy, and the men had been specially detailed from the James river squadron for the purpose of preying upon United States merchant vessels in the Chesapeake. They came overland from an armed and commissioned Confederate vessel, and procuring two or three small vessels, and which carried no armament, captured and destroyed the Alleganean. Claimants contending that upon the facts they were entitled to a judgment of the first class, held, that Chesapeake bay being wholly within the territorial jurisdiction and authority of the Federal government, was no part of the "high seas" within the meaning of said section 5, and that claimants were not entitled to recover. Held, further, the vessels engaged in the capture, although LAIM to recover damages for destruction of a ves- John H. A. Creswell, for United States. DRAPER, J. The facts upon which a judgment to the amount of $69,334.80 is prayed for in this case are substantially as follows: New York, and being recently repaired and well The ship Alleganean duly registered at the port of equipped and entitled to the protection of the United London. Six days later, at about 10.30 o'clock in the States, cleared with a cargo from the port of Baltievening, being at anchor, through rough water, in more on the 22d of October, 1862, upon a voyage to Chesapeake bay, south of the mouth of the Rappahannock river and opposite Guinn's Island, she Taylor Wood and S. Smith Lee. These leaders were boarded by some eighteen officers and men of the Confederate navy, commanded by Lieutenants John was commissioned officers in the Confederate navy, and in the special orders of the secretary of the navy of the the attack upon the Alleganean they were acting under Confederate States, and the men accompanying them squadron for the purpose of preying upon United had been specially detailed from the James river States merchant vessels in Chesapeake bay. They came overland to Chesapeake bay from the Patrick Henry, an armed and commissioned Confederate vessel, and securing two or three small vessels-the largest being of fifteen or twenty tons burden-had been cruising about two or three nights before the attack. The precise relationship which these vessels bore to the Confederate navy is left by the evidence in some doubt. Lieutenant Wood says of the vessel in which he operated: "She was a boat fitted out for this purpose, and attached to the squadron as a tender. about fifteen or twenty tons, armed as customary She was with this class of boats. * * commanded was one belonging to a regular commis*The tender which I sioned ship of the Confederate States navy." Lieutenant Lee says: "We had two small boats that we obtained on the bay shore, with sails, and a sailing skiff, we captured from two Union men. No boats were brought from Richmond or from any Confederate cruiser." There is no proof, and it was not contended upon the argument, that they were either "in commission " of, or that they bore letters of marque from, the Confederate government, but there seems to be ample evidence that the crews were a part of the naval forces of that government, attached to duly commissioned, armed war vessels, and now only temporarily detached therefrom, and coming directly from such a vessel for this special service, under orders of their secretary of the navy. These small boats seem to have carried no armament. Lieutenant Wood says "the vessels were armed as customary with this class of boats," and that "the men were armed and equipped as man-of-war's men.' Lieutenant Lee says sels carried no guns, but the men were armed with "the vescutlasses and pistols." This force boarded the Alleganean, as stated, speedily reduced the crew of that vessel to subjection and the state of prisoners of war, and then burned the ship, totally destroying her, except that some few remnants were afterward picked up and disposed of, the pro ceeds of which the owners account for in making up their claim. The value of the Alleganean at the time of loss is placed by the marine experts on behalf of the Government at $52,591.03, aud by the witnesses for the claimants at amounts varying from $60,000 to $75,000. The evidence seems to establish beyond question the fact that the vessel was more than four miles from any shore at the time of capture and destruction. The claimant's counsel, with his case as exhaustively prepared and as fully and ably argued as any which has been before this court, contends that these facts establish a right to a judgment, as of the first class, under the provisions of section 5 of the act of June 5, 1882, being a claim "directly resulting from damage done on the high seas by Confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although the loss or damage occurred within four miles of the shore." The learned counsel on behalf of the United States insists that the claimants ought not to recover First. Because all the waters of the Chesapeake bay, even such as are more than a marine league from shore, are territorial waters of the United States, and subject to the exclusive control and jurisdiction thereof, and that in consequence the Alleganean was not attacked nor the damage done on the "high seas within the meaning of the term as used in the act under which judgment is claimed. Second. Because the persons who destroyed the ship and the vessels employed by them did not constitute a "Confederate cruiser" within the meaning of that term as used in the statute. The term "high seas," as used by legislative bodies, the courts and text-writers, has been construed to ex. press a widely different meaning. As used to define the jurisdiction of admiralty courts it is held to mean the waters of the ocean exterior to low-water mark. As used in international law, to fix the limits of the open ocean, upon which all peoples possess common rights, the "great highway of nations," it has been heid to mean only so much of the ocean as is exterior to a line running parallel with the shore and some distance therefrom, commonly such distance as can be defended by artillery upon the shore, and therefore a cannon-shot or a marine league (three nautical or four statute miles). This court, after very able argument by learned counsel, and after much deliberation has held that the term was used in the act of June 5, 1882, in the same sense in which it is employed by the international law writers. Rich v. United States. From this it necessarily follows that such portions of the waters of Chesapeake bay as are within four miles of either shore form no part of the high seas. But much of the bay is more than four miles from shore, and is accessible from the ocean without coming within that distance of the land. The distance between Cape Henry and Cape Charles, at the entrance of the bay, is said to be twelve miles, and it is stated that lines starting from points between the capes, four miles from each, and running up the bay that distance from either shore, would not intercept each other within 125 miles from the starting points. The evidence shows that the Alleganean was anchored between such lines at the time of destruction. Was she upon the high seas as the court defines the statutory term? By common agreement all the authorities assert that there are arms or inlets of the ocean which are within territorial jurisdiction, and are not high seas. Sir R. Phillimore (1 Int. Law, § 200, says: "Besides the rights of property and jurisdiction within the limit of cannon-shot from the shore, there are certain portions of the sea which, though they ex * ceed this verge, may under special circumstances be prescribed for. Maritime territorial rights extend, as a general rule, over arms of the sea, bays, gulfs, estuaries which are inclosed, but not entirely surrounded, by lands belonging to one and the same State. * *Thus Great Britain has immemorially claimed and exercised exclusive property and jurisdiction over the bays or portions of the sea cut off by lines drawn from one promontory to another, and called the King's Chambers." Grotius (bk. 11, ch. 3, §§ 7, 8) and Vattel (vol. 1, bk. 1, ch. 23, § 291) assert substantially the same doctrine, and the later writers follow them. Wheat. Int. Law (Dana's 8th ed., p. 255) says: "The maritime territory of every State extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea, inclosed by headlands, belonging to the same State. The usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore, along the coasts of the State. Within these limits its right of property and territorial jurisdiction are absolute, and exclude those of every other nation." Chancellor Kent avows the general doctrine and makes very much broader claims in reference to the jurisdiction of the United States over adjacent waters, aud says (Com., vol. 1, pp. 29, 30): "Considering the great line of the American coasts we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes counected with our safety and welfare the control of waters on our coasts, though included within lands stretching from quite distant headlands, as for instance from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the South Cape of Florida to the Mississippi." Dr. Wolsey (Int. Law, § 60) upholds the general doctrine, but thinks the claims of Chancellor Kent are too broad, aud rather "out of character for a nation that has ever asserted the freedom of doubtful waters, as well as contrary to the spirit of more recent times." *** Dr. Wharton (Int. Law, § 192) finishes the subject with the conclusion: "That it would seem more proper to adopt the test of cannon-shot, which would, in case of waters whose headlands belong to the same sovereign, exclude all bays more than eighteen miles in diameter, assuming the range of cannon-shot to be nine miles. But this should be made to yield to usage. If a particular nation has exercised dominion over a bay, and this has been acquiesced in by other nations, then the bay is to be regarded as belonging to such nation." We are quite certain that none of the American courts have passed upon this subject, although decisions holding that specified waters are within or without the jurisdiction of the admiralty courts are numerous. The question has however been before the English courts upon two occasions at least. Reg. v. Cunningham, Bell Crown Cas. 72, was the case of a crime committed upon an American vessel lying in the British channel, about three-quarters of a mile off the shores of the county of Glamorgan, in Wales, but below or exterior to low-water mark, and perhaps ten miles from the shores of the county of Somerset, in England. The prisoners were indicted and tried in Glamorgan. The question was whether the crime was committed within the county of Glamorgan or upon the high seas. It was held that it was within the county. This crime was committed, it is true, within the marine league from shore, but the court did not rest its conclusion upon that ground. Lord Chief Justice Cockburn, delivering the opinion of the court, said: "Looking at the local situation of this sea, it must be taken to belong to the counties, respectively, by the shores of which it is bounded. * * * The whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded." But perhaps the most thoroughly considered and important case is that of Direct U. S. Cable Co. v. Anglo-American Tel. Co. in the House of Lords. 2 App. Cas. 349. It came up on an appeal from the Supreme Court of Newfoundland against an order confirming an injunction preventing the Direct Cable Company from landing thoir wire upon the soil of Newfoundland, on the ground that it would be an infringement of the rights of the Anglo-American Company. The cable, as a matter of fact, was buoyed in Conception bay, more that a marine league from shore, and it nowhere came within that distance from the shore, purposely to avoid coming within territorial jurisdiction. But it was asserted that the whole of Conception bay was within the territory and jurisdiction of Newfoundland. The Supreme Court of the Province so held, and the determination was upheld by the House of Lords in a somewhat elaborate opinion. This opinion states that Conception bay is a body of water having an average width of fifteen miles, a distance of forty miles from the head to one of the capes at the entrance and fifty miles to the other, and a distance of twenty miles between the headlands. Coming to the question, the lords say (p. 419): "We find a universal agreement that harbors, estuaries and bays, land-locked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is bay' for this purpose. It seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is a part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of cannon-shot from shore to shore; some a cannon-shot from each shore; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the British channel which in Reg. v. Cunningham was held to be in the county of Glamorgan. "It does not appear to their lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the State possessing the adjoining coasts, and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule, the difficulty of the task would not deter their lordships from attempting to fulfill it. But in their opinion it is not necessary. It seems to them that in point of fact the British government has for a long time exercised dominion over this bay, and that their claim has been acquiesced in by other nations. * * *This would be very strong in the tribunals of any country to show that by prescription this bay is a part of the exclusive territory of Great Britain. In a British tribunal it is decisive." We must now examine the local circumstance touching the status of Chesapeake bay, and then determine whether those waters should be held to be the open ocean or jurisdictional waters of the United States in the light of these authorities. The headlands are about twelve miles apart, and the bay is probably nowhere more than twenty miles in width. The length may be 200 miles. To call it a bay is almost a misnomer. It is more a mighty river than an arm or inlet of the ocean. It is entirely eucompassed about by our own territory, and all of its numerous branches and feeders have their rise and their progress wholly in and through our own soil. It cannot become an international commercial highway; it is not and cannot be made a roadway from one nation to another. The second charter of King James I to the Virginia Company in the year 1609 granted: "All those lands, countries and territories situate, lying and being in that part of America called Virginia, from the point of land called Cape or Point Comfort, all along the sea-coast to the northward two hundred miles, and all along the sea coast to the southward 200 miles, and all that space and circuit of land lying from the sea-coast of the precinct aforesaid up into the land throughout from sea to sea, west and north-west, together with all the soils, grounds, havens, ports, *** rivers, waters, fishings," etc. This language would seem to place Chesapeake bay within the boundary lines of Virginia. A line running north (as near as may be) from Point Comfort along the sea-coast crosses the mouth of the bay from Cape Henry to Cape Charles. By the King James charter to Lord Baltimore in 1632, erecting the territory of Maryland, the southern boundary line is made to cross Chesapeake bay from Smith's Point, at the mouth of the Potomac river, to Watkins' Point, on the eastern shore, which apparently places a portion of this bay within the territory of Maryland. Had this not been intended, the boundary would presumably have followed the shore line around the bay. It is a part of the common history of the country that the States of Virginia and Maryland have from their earliest territorial existence claimed jurisdiction over these waters, and it is of general knowledge that they still continue so to do. The legislation of Congress has assumed Chesapeake bay to be within the territorial limits of the United States. The acts of July 31, 1789, ch. 5; August 4, 1790, ch. 35; and March 2, 1799, ch. 128, § 11, establishing revenue districts, provided that "the authority of the officers of the district (Norfolk to Portsmouth) shall extend over all the waters, shores, bays, harbors, and inlets comprehended within a line drawn from Cape Henry to the mouth of James river." By section 549, Rev. Stat. U. S., the eastern judicial district for Virginia embraces the "residue of the State" not included in the western district. The boundaries of the State include all of Chesapeake bay south of a line running from Smith's Point to Watkins' Point, and hence the eastern district must embrace so much of the bay. The position taken by this government and by England and France in the matter of the British brig Grange, captured in Delaware bay in 1793 by the French steamier l'Embuscade (1 Am. State Papers, 147, 149), has, it seems to us, an important bearing upon the question under discussion. The brig was seized and the crew made prisoners, the two foreign governments being at war. The British government must have demanded that the United States compel France to release the captured vessel on the ground that the seizure was unlawful as having been made in our territorial and neutral waters. The State papers do not show this demand, but it is not material. The opinion of the attorney-general was asked, and was given somewhat elaborately by Mr. Randolph. 1 Op. THE ALBANY LAW JOURNAL. Att'ys-Gen'l, 32. It quotes the text-writers, and concludes that the whole of Delaware bay is within the territorial jurisdiction of the United States, regardless of the marine league or cannon-shot limit from the shore. The learned attorney-general says: "In like manner is excluded every consideration of how far the spot of seizure was capable of being defended by the United States; for although it will not be conceded that this could not be done, yet will it rather appear that the mutual rights of the States of New Jersey and Delaware up to the middle of the river supersede the necessity of such an investigation. No. The cornerstone of our claim is that the United States are proprietors of the lands on both sides of the Delaware from its head to its entrance into the sea." Acting upon the opinion of the attorney-general, the secretary of State, Mr. Jefferson, demanded that France should make restitution of the Grange, and set the prisoners taken upon her at liberty, which demand was promptly and cheerfully complied with by the French government. If it be said that the mere claims of a nation to jurisdiction over adjacent waters are to be accepted with some degree of hesitation, then the action in reference to the Grange is of much weight, for there the claim made by the United States was promptly acquiesced in by two great foreign powers, when passions were excited, and when such acquiescence was greatly against the immediate interest of one of the combatants, as well as against the general interest of both. It will hardly be said that Delaware bay is any the less an inland sea than Chesapeake bay. Its configuration is not such as to make it so, and the distance from Cape May to Cape Henlopen is apparently as great as that between Cape Henry and Cape Charles. "be Reflection upon the subject has caused the court to consider this question of very considerable national importance. Contingencies might arise which would make it of very grave import. The "high sea longs to all alike. It is the great highway of nations. One cannot lawfully do anything upon it which any other has not the right to do. One cannot exercise Sovereignty over it. Can an American court concede Other nations, by so much as to Chesapeake bay? common consent of all, have well-recognized peaceable rights even in our territorial waters. Ought we to admit that they have any rights hostile to the United States, or can we permit belligerent operations between foreign nations within the shores of this bay? What injustice can be done to any other nation by the United States exercising sovereign control over these waters? What annoyance and what injury may not come to the United States through a failure to do so? Considering therefore the importance of the question, the configuration of Chesapeake bay, the fact that its headlands are well marked, and but twelve miles apart, that it and its tributaries are wholly within our own territory, that the boundary lines of adjacent States encompass it; that from the earliest history of the country it has been claimed to be territorial waters, and that the claim has never been questioned; that it cannot become the pathway from one nation to another, and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the British channel and Conception bay, and bearing in mind the matter of the brig Grange and the position taken by the government as to Delaware bay, we are forced to the conclusion that Chesapeake bay must be held to be wholly within the territorial jurisdiction and authority of the government of the United States, and no part of the "high seas" within the meaning of the term as used in section 5 of the act of June 5, 1872. Having arrived at the foregoing conclusion, it is perhaps unnecessary to consider the second objection to a recovery raised by government counsel, viz., that the The meaning of the term "Confederate cruiser" was defined by this court in the case of the Roanoke (Warren v. United States), French, J., delivering the opinion in these words: "We can reach no other conclusion than that the phrase 'Confederate cruiser,' as found in the act of 1882, was intended by Congress to include only armed vessels, public or private, fitted for hostile operations upon the high seas, and acting under the authority of the Confederate government." In the case of the Lenox (Lindsey v. United States), Harlan, J., delivering the opinion of the conrt, said: "In the opinion of the court the mere presence of armed men on board and in control of a vessel on the high seas is not sufficient to establish the character of the craft as a Confederate cruiser within the meaning of the statute. And if the vessel used in effecting this and equipped as to be itself an implement of warfare, capture had been of such construction, or so armed on the high seas, being under the control of an effective force of armed men, it would still have been neccssary to prove by competent evidence that the expedition was at the time acting under the authority of the Confederate government to bring it within the requirements of the statute." Proceeding, the court said: "But if it had been conclusively proved that said Duke (the commander of the Confederate force) was at the time of the capture of the Lenox an officer in the Confederate navy, that fact, and his presence in command of a ship on the high seas, would not, in the opinion of the court, considered in the light of all the decisions cited on the trial, raise the legal presumption that he was acting under the authority of the Confederate government, unless it were also shown that the ship was a public vessel in commission or its tender, belonging to the Confederate government. Even if found in command of a private vessel sailing under authority of a letter of marque, his authority would depend on the letter rather than his commission as a naval officer." ConFrom these decisions, in order to constitute a there must have been, first, au federate cruiser armed vessel, and second, the vessel must have been a commissioned vessel of the Confederate navy, or she must have carried letters of marque from the Confederate government. Further than this, the fact that the crew were a part of the Confederate naval forces, and were acting under authority of the Confederate government, would not supply the absence of letters of marque. 46 The vessels employed in the destruction of the Alleganean were not armed, they were not in commission, and they had no letters of marque. The official and authorized character of the men could not do away with the necessity of authority running to the vessels themselves, nor could the fact that the men were armed supply the lack of armament upon the vessels in order to bring them up to the character of "cruisers." The learned counsel for the claimants, with much earnestness and ingenuity, undertakes to meet the difficulty upon the theory that the vessels employed were tenders to the Patrick Henry, a duly commissioned and armed vessel of the Confederate navy, and argues that a cruiser can send her boats and men off to a distance and commit depredations at arm's |