Part 8 out of 8
concurrence in my opinion with reference to the instructions received
from home by the last mail, I have detained the barque Tuscaloosa (late
Conrad of Philadelphia), because she is an uncondemned prize, taken by
the Confederate States ship of war Alabama, and brought into British
waters in violation of Her Majesty's Orders for maintaining her
neutrality, and with the view to her being restored to her original
I shall be ready to hand her over to the Consul of the United States at
Cape Town, or to any person you may appoint to take charge of her.
I should add that Lieutenant Low has given up the Tuscaloosa (late
Conrad) under protest, which he is about to make in writing, a copy of
which shall be transmitted to your Excellency as soon as received.
_Lieutenant Low, C.S.N., to Sir P. Wodehouse. December_ 28, 1863
As the officer in command of the Confederate States ship Tuscaloosa,
tender to the Confederate States steamer Alabama, I have to record my
protest against the recent extraordinary measures which have been
adopted towards me and the vessel under my command by the British
authorities of this Colony.
In August last the Tuscaloosa arrived in Simon's Bay. She was not only
recognised in the character which she lawfully claimed and still claims
to be, viz., a commissioned ship of war belonging to a belligerent
Power, but was allowed to remain in the harbour for the period of seven
days, taking in supplies and effecting repairs with the full knowledge
and sanction of the authorities.
No intimation was given that she was regarded in the light of an
ordinary prize, or that she was considered to be violating the laws of
neutrality. Nor, when she notoriously left for a cruise on active
service, was any intimation whatever conveyed that on her return to the
port of a friendly Power, where she had been received as a man-of-war,
she would be regarded as a "prize," as a violater of the Queen's
proclamation of neutrality, and consequently liable to seizure. Misled
by the conduct of Her Majesty's Government, I returned to Simon's Bay on
the 26th instant, in very urgent want of repairs and supplies; to my
surprise I find the Tuscaloosa is now no longer considered as a
man-of-war, and she has by your orders, as I learn, been seized for the
purpose of being handed over to the person who claims her on behalf of
her late owners.
The character of the vessel, viz., that of a lawful commissioned
man-of-war of the Confederate States of America, has not been altered
since her first arrival in Simon's Bay, and she, having been once fully
recognised by the British authorities in command in this Colony, and no
notice or warning of change of opinion or of friendly feeling having
been communicated by public notification or otherwise. I was entitled to
expect to be again permitted to enter Simon's Bay without molestation.
In perfect good faith I returned to Simon's Bay for mere necessaries,
and in all honour and good faith, in return, I should on change of
opinion or of policy on the part of the British authorities, have been
desired to leave the port again.
But by the course of proceedings taken, I have been (supposing the view
now taken by your Excellency's Government to be correct) first misled
and next entrapped.
My position and character of my ship will most certainly be vindicated
by my Government. I am powerless to resist the affront offered to the
Confederate States of America by your Excellency's conduct and
I demand, however, the release of my ship; and if this demand be not
promptly complied with, I hereby formally protest against her seizure,
especially under the very peculiar circumstances of the case.
_Mr. Bawson to Lieutenant Low, C.S.N. December_ 29, 1863.
I am directed by the Governor to acknowledge the receipt of your letter
of yesterday's date protesting against the seizure of the Tuscaloosa,
whose character you represent to be the same as when, in August last,
she was admitted into the port of Simon's Bay, and I am to acquaint you
in reply that a full report was submitted to Her Majesty's Government of
all that took place on the first visit of the Tuscaloosa, and that the
seizure has now been made in conformity with the opinion expressed by
them on that report.
Your protest will of course be transmitted for their consideration.
_Rear-Admiral Sir B. Walker to Sir P. Wodehouse. December_ 29, 1863.
Lieutenant Low, the officer belonging to the Confederate States ship of
war Alabama, late in charge of the barque called the Tuscaloosa
(properly the Conrad of Philadelphia), having sent me a copy of the
protest which he has forwarded to your Excellency against the detention
of that vessel, I think it right to inclose for your information the
copy of my letter to Lieutenant Low explaining the circumstances
under which the so-called Tuscaloosa is detained.
[Footnote 18: This letter is not given in the Blue Book.]
_Sir P. Wodehouse to the Duke of Newcastle. January_ 11, 1864.
I very much regret having to acquaint your Grace that the Confederate
prize vessel the Tuscaloosa has again entered Simon's Bay, and that the
Naval Commander-in-chief and myself have come to the conclusion that, in
obedience to the orders transmitted to his Excellency by the Admiralty,
and to me by your Grace's despatch of the 4th November last, it was our
duty to take possession of the vessel, and to hold her until properly
claimed by her original owners. The Admiral, therefore, sent an officer
with a party of men from the flag-ship to take charge of her, and to
deliver to her commander a letter in explanation of the act. Copies of
his protest, addressed to me, and of my reply, are inclosed. He not
unnaturally complains of having been now seized, after he had on the
previous occasion been recognised as a ship of war. But this is
manifestly nothing more than the inevitable result of the overruling by
Her Majesty's Government of the conclusion arrived at on the previous
occasion by its subordinate officer.
The Consul for the United States, on being informed of what had taken
place, intimated his inability to take charge of the ship on account of
the owners, and expressed a desire that it should remain in our charge
until he was put in possession of the requisite authority. Accordingly,
after taking the opinion of the Attorney-General, it was arranged that
the vessel should remain in the charge of Sir Baldwin Walker.
I ought to explain that the seizure was made without previous reference
to the Attorney-General. I did not consider such a reference necessary.
The law had been determined by Her Majesty's Government on the previous
case. The Admiral was of opinion that we had only to obey the orders we
had received, and on his intimating that opinion I assented.
Your Grace will observe that at the request of the officers of the
Tuscaloosa the Admiral has permitted them to remain on board, in
expectation of the immediate arrival of the Alabama, to which ship they
wish to return. I should otherwise have thought it my duty to provide
them with passages to England at the cost of Her Majesty's Government,
by whom, I conclude, they would be sent to their own country; and it is
probable that if the Alabama should not soon make her appearance, such
an arrangement will become necessary.
I have only to add that I have thought it advisable, after what has now
occurred, to intimate to the United States Consul that we should
probably be under the necessity of adopting similar measures in the
event of an uncondemned prize being fitted for cruising, and brought
into one of our ports by a Federal ship of war. I did not speak
positively, because I have been left in doubt by your Grace's
instructions whether some distinction should not be drawn in the case of
a ship of war of one belligerent captured and applied to the same use by
the other belligerent, but the Consul was evidently prepared for such a
step. Copies of all the correspondence are inclosed.
_Mr. Rawson to Mr. Graham. December_ 28, 1863.
I am directed by the Governor to acquaint you that the Tuscaloosa having
again arrived in Simon's Bay, will, under instructions lately received
from Her Majesty's Government, be retained under Her Majesty's control
and jurisdiction until properly reclaimed by her original holders.
_Mr. Graham to Sir P. Wodehouse. December_ 28, 1863.
I have to acknowledge the receipt of your letter of yesterday's date in
reference to the Tuscaloosa.
By virtue of my office as Consul for the United States of America in the
British possessions of South Africa, of which nation the original owners
of the Conrad _alias_ Tuscaloosa are citizens, I possess the right to
act for them when both they and their special agents are absent, I can
institute a proceeding _in rem_ where the rights of property of
fellow-citizens are concerned, without a special procuration from those
for whose benefit I act, but cannot receive actual restitution of the
_res_ in controversy, without a special authority. (See United States
Statutes at Large, vol. i., p. 254, notes 2 and 3.)
Under these circumstances I am content that the vessel in question
should for the present, or until the properly authenticated papers and
power of attorney shall be received from the owners in America, remain
in possession and charge of Her Majesty's naval officers. But should it
hereafter be determined to give the vessel up to any party other than
the real owners, I desire to have sufficient notice of the fact, so that
I may take the proper steps to protect the interests of my absent
With regard to the property of American citizens seized here at the
Custom-house, and which was formerly part of the Sea Bride's cargo, I
would suggest that it also be held by the Colonial Government, subject
to the order of the original owners. An announcement to that effect from
you would be received with great satisfaction by me.
[Illustration: THE MESURADO LAGOON]
_Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. January
With reference to my letter of the 5th instant, I have the honour to
submit, for their Lordships' information, a further correspondence
between the Governor of this Colony and myself relative to the American
vessel Conrad, of Philadelphia, lately called the Tuscaloosa.
2. Lieutenant Low, belonging to the Confederate States ship of war
Alabama, lately in charge of the Tuscaloosa, having paid off and
discharged his crew, finally quitted the vessel on the 9th instant; and
I have ordered him a passage to England by the mail-packet Saxon,
together with his first officer, Mr. Sinclair.
3. The Conrad now remains in charge of a warrant officer and two
ship-keepers, awaiting to be properly claimed or disposed of as the
Government may direct.
_Rear-Admiral Sir B. Walker to Sir P. Wodehouse. January 6, 1864_.
With reference to your Excellency's communication of yesterday's date, I
have the honour to inform you that I will make arrangements for the safe
custody of the Conrad, of Philadelphia (late Tuscaloosa), by mooring her
in this bay, and putting ship-keepers in charge of her, until she can be
properly transferred to her lawful owners.
Lieutenant Low has requested to be allowed to remain on board the
vessel, together with his crew, for the present, as he expected the
Alabama to arrive here shortly, to which arrangement I have made no
There are some guns and other articles on board the Conrad said to
belong to the Alabama, a list of which I have already forwarded to your
Excellency. It is a matter for consideration how these things should be
I think, as a precautionary measure, it may be desirable that some
person on the part of the United States Consul should visit the Conrad,
to observe the state she is in, on being taken into British custody, to
prevent any question thereon hereafter.
_The Duke of Newcastle to Sir P. Wodehouse. March 4, 1864_.
I have received your despatches of the 11th and 19th January, reporting
the circumstances connected with the seizure of the Confederate
prize-vessel Tuscaloosa, under the joint authority of the Naval
Commander-in-chief and yourself. I have to instruct you to restore the
Tuscaloosa to the Lieutenant of the Confederate States who lately
commanded her, or, if he should have left the Cape, then to retain her
until she can be handed over to some person who may have authority from
Captain Semmes, of the Alabama, or from the Government of the
Confederate States, to receive her.
You will receive a further communication from me on this subject by the
_The Duke of Newcastle to Sir P. Wodehouse. March 10, 1864_.
In my despatch of the 4th instant, I instructed you to restore the
Tuscaloosa to the Lieutenant of the Confederate States who lately
commanded her, or, if he should have left the Cape, then to retain her
until she could be handed over to some person having authority from
Captain Semmes, of the Alabama, or from the Government of the
Confederate States, to receive her.
I have now to explain that this decision was not founded on any general
principle respecting the treatment of prizes captured by the cruisers of
either belligerent, but on the peculiar circumstances of the case. The
Tuscaloosa was allowed to enter the port of Cape Town and to depart, the
instructions of the 4th of November not having arrived at the Cape
before her departure. The Captain of the Alabama was thus entitled to
assume that he might equally bring her a second time into the same
harbor, and it becomes unnecessary to discuss whether, on her return to
the Cape, the Tuscaloosa still retained the character of a prize, or
whether she had lost that character, and had assumed that of an armed
tender to the Alabama, and whether that new character, if properly
established and admitted, would have entitled her to the same privilege
of admission which might be accorded to her captor, the Alabama.
Her Majesty's Government have, therefore, come to the opinion, founded
on the special circumstances of this particular case, that the
Tuscaloosa ought to be released, with a warning, however, to the Captain
of the Alabama, that the ships of war of the belligerents are not to be
allowed to bring prizes into British ports, and that it rests with Her
Majesty's Government to decide to what vessels that character belongs.
In conclusion, I desire to assure you that neither in this despatch, nor
in that of the 4th November, I have desired in any degree to censure you
for the course you have pursued. The questions on which you have been
called upon to decide, are questions of difficulty, on which doubts
might properly have been entertained, and I am by no means surprised
that the conclusions to which you were led have not, in all instances,
been those which have been adopted on fuller consideration by Her
_Captain Semmes, C.S.N., to Rear-Admiral Sir B. Walker, dated C.S.S.
Alabama; Table Bay, March 22, 1864_.
Sir:--I was surprised to learn upon my arrival at this port of the
detention by your order of the Confederate States barque Tuscaloosa, a
tender to this ship. I take it for granted that you detained her by
order of the Home Government, as no other supposition is consistent with
my knowledge of the candour of your character--the Tuscaloosa having
been formerly received by you as a regularly commissioned tender, and no
new facts appearing in the case to change your decision. Under these
circumstances I shall not demand of you the restoration of that vessel,
with which demand you would not have the power to comply, but will
content myself with putting this my protest against this detention on
the record of the case for the future consideration of our respective
Earl Russell, in reaching the decision which he has communicated to you,
must surely have misapprehended the facts, otherwise I cannot conceive
him capable of so misapplying the law. The facts are briefly
these:--1st. The Tuscaloosa was formerly the enemy's ship Conrad,
lawfully captured by me on the high seas, as a recognized belligerent;
2dly. She was duly commissioned by me as a tender to the Confederate
States steamer Alabama, then, as now, under my command; and 3dly. She
entered English waters not only without intention of violating Her
Britannic Majesty's orders of neutrality, but was received with
hospitality, and no question was raised as to her right to enter under
the circumstances. These were the facts up to the time of Earl Russell's
issuing to you his order in the premises. Let us consider, then, a
moment, and see if we can derive from them, or any of them, just ground
for the extraordinary decision to which Earl Russell has come.
My right to capture and the legality of the capture will not be denied.
Nor will you deny, in your experience as a naval officer, my right to
commission this, or any other ship lawfully in my possession, as a
tender to my principal ship. Your admirals do this every day, on distant
stations; and the tender, from the time of her being put in commission,
wears a pennant, and is entitled to the immunities and privileges of a
ship of war, the right of capture inclusive.
Numerous decisions are to be found in your own prize law to this effect.
In other words, this is one of the recognised modes of commissioning a
ship of war, which has grown out of the convenience of the thing, and
become a sort of naval common law, as indisputable as the written law
itself. The only difference between the commission of such a ship and
that of a ship commissioned by the sovereign authority at home is that
the word "tender" appears in the former commission and not in the
latter. The Tuscaloosa having then been commissioned by me in accordance
with the recognised practice of all civilized nations that have a
marine, can any other Government than my own look into her antecedents?
Clearly not. The only thing which can be looked at upon her entering a
foreign port is her commission. If this be issued by competent
authority, you cannot proceed a step further. The ship then becomes a
part of the territory of the country to which she belongs, and you can
exercise no more jurisdiction over her than over that territory. The
self-respect and the independence of nations require this; for it would
be a monstrous doctrine to admit that one nation may inquire into the
title by which another nation holds her ships of war. And there can be
no difference in this respect between tenders and ships originally
commissioned. The flag and the pennant fly over them both, and they are
both withdrawn from the local jurisdiction by competent commissions. On
principle you might as well have enquired into the antecedents of the
Alabama, as of the Tuscaloosa. Indeed, you had a better reason for
inquiring into the antecedents of the former than of the latter, it
having been alleged that the former escaped from England in violation of
your Foreign Enlistment Act. Mr. Adams, the United States Minister, did
in fact demand that the Alabama should be seized, but Earl Russell, in
flat and most pointed contradiction of his late conduct in the case of
the Tuscaloosa, gave him the proper legal reply, to wit: that the
Alabama being now a ship of war, he was estopped from looking into her
antecedents. One illustration will suffice to show you how untenable
your position is in this matter. If the Tuscaloosa's commission be
admitted to have been issued by competent authority, and in due form
(and I do not understand this to be contested except on the ground of
her antecedents), she is as much a ship of war as the Narcissus, your
flag-ship. Suppose you should visit a French port, and the port admiral
should request you to haul down your flag on the ground that you had had
no sufficient title to the ship before she was commissioned, or that she
was a contract ship and you had not paid for her, and the builder had a
lien on her, or that you had captured her from the Russians, and had not
had her condemned by a prize court, what would you think of the
proceeding? And how does the case supposed differ from the one in hand?
In both it is a pretension on the part of a foreign power to look into
the antecedents of a ship of war--neither more nor less in the one case
than in the other. I will even put the case stronger. If it be admitted
that I had the right to commission a tender, and the fact had been that
I had seized a French ship and put her in commission, you could not
inquire into the fact. You would have no right to know but that I had
the orders of my Government for this seizure. In short, you would have
no right to inquire into the matter at all. My ship being regularly
commissioned, I am responsible to my Government for my acts, and my
Government, in the case supposed, would be responsible to France, and
not to you. If this reasoning be correct--and with all due submission to
his lordship I think it is sustained by the plainest principles of the
international code--it follows that the condemnation of a prize in a
prize court is not the only mode of changing the character of a captured
ship. When the sovereign of the captor puts his own commission on board
such a ship, this is a condemnation in its most solemn form, and is
notice to all the world. On principle, if a ship thus commissioned were
recaptured, the belligerent prize court could not restore her to her
original owner, but must condemn her as a prize ship of war of the enemy
to the captors; for prize courts are international courts, and cannot
go behind the pennant and commission of the cruiser.
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
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
"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."_
This being the nature of my title, the reasons should be very urgent
which should justify my being forcibly dispossessed of it. But there are
no such reasons apparent. It is not contended that there was any
misconduct on the part of the Tuscaloosa, unless her entry into a
British port as a Confederate cruiser be deemed misconduct. As stated in
the beginning of this letter, she had no intention of violating any
order of the Queen. Her error, therefore, if it were an error, is
entitled to be considered with gentleness and not with hardship. Her
error was the error of yourself and his Excellency the Governor, as well
as myself. We all agreed, I believe, that she was a lawfully
commissioned ship, and that her commission estopped all further enquiry.
In the meantime, she proceeds to sea thus endorsed, as it were, by the
Colonial authorities; your Home Government overrules your decision; the
Tuscaloosa returns in good faith to your port to seek renewed
hospitality under your orders of neutrality. And what happens? An
English officer, armed with your order, proceeds on board of her, turns
her commander and officers out of her, and assumes possession on the
ground that she has violated the Queen's orders; and this without any
warning to depart or any other notice whatever. In the name of all open
and fair dealing--in the name of frankness, candour, and good faith, I
most respectfully enter my protest against such an extreme,
uncalled-for, and apparently unfriendly course.
But the most extraordinary part of the proceeding has yet to be stated.
You not only divest me of my title to my prize, but you tell me that you
are about to hand her over to the enemy! On what principle this can be
done I am utterly at a loss to conceive. Although it may be competent to
a Government, in an extreme case, to _confiscate to the Exchequer_ a
prize, there is but one possible contingency in which the prize can be
restored to the opposite belligerent, and that is the one already
mentioned of a capture within neutral jurisdiction. And this is done on
the ground of the nullity of the original capture. The prize is
pronounced not to have been lawfully made, and this being the case, and
the vessel being within the jurisdiction of the neutral whose waters
have been violated, there is but one course to pursue. The vessel does
not belong to the captor, and as she does not belong to the neutral, as
a matter of course she belongs to the opposite belligerent, and must be
delivered up to him. But there is no analogy between that case and the
one we are considering. My capture cannot be declared a nullity. My
title is as good against the enemy as though condemnation had passed.
The vessel either belongs to me or to the British Government. If she
belongs to me, justice requires that she should be delivered up to me.
If she belongs (by way of confiscation) to the British Government, why
should that Government make a gratuitous present of her to one of the
belligerents rather than the other?
My Government cannot fail, I think, to view this matter in the light in
which I have placed it; and it is deeply to be regretted that a weaker
people struggling against a stronger for very existence should have so
much cause to complain of the unfriendly disposition of a Government
from which, if it represents truly the instincts of Englishmen, it had
the right to expect at least sympathy and kindness in the place of
rigour and harshness.
MEASUREMENTS OF THE ALABAMA.
We are indebted to Messrs. Laird Brothers, of Birkenhead, for the
following measurements of the Alabama:
Length About 230 feet.
Length between perpendiculars, " 213.8 "
Breadth of beam extreme, " 32.0 "
Depth moulded, " 19.9 "
Draft of water when complete, with about
300 tons coal in bunkers and stores on
board for a six months' cruise, " 15.0 "
Engines.--300 horse power collective.
Rig.--Three-masted schooner, with long lower masts and
yards on fore and mainmasts.
The hull of the vessel built of wood, the general arrangement
of scantling and materials being the same as in vessels of similar
class in Her Majesty's navy.
The vessel and machinery throughout were built by Messrs.
Laird Brothers at their works at Birkenhead.