Captain Forsyth to Sir P. Wodehouse. August 6, 1863.

In compliance with the request conveyed to me by your Excellency, I have the honor to report that I have obtained from Captain Semmes a statement of the positions of the Confederate States steamer Alabama and the American barque Sea Bride, when the latter was captured yesterday afternoon.

Captain Semmes asserts that at the time of his capturing the Sea Bride, Green Point Lighthouse bore from the Alabama south-east about six or six and a half miles.

This statement is borne out by the evidence of Captain Wilson, Port Captain of Table Bay, who has assured me that at the time of the Sea Bride being captured, he was off Green Point in the port boat, and that only the top of the Alabama's hull was visible.

I am of opinion, if Captain Wilson could only see that portion of the hull of the Alabama, she must have been about the distance from the shore which is stated by Captain Semmes, and I have therefore come to the conclusion that the barque Sea Bride was beyond the limits assigned when she was captured by the Alabama.

Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. September 17, 1863.

With reference to my letters dated respectively the 19th and 31st ultimo, relative to the Confederate States ship of war Alabama, and the prizes captured by her, I beg to inclose, for their Lordships' information, the copy of a statement forwarded to me by the Collector of Customs at Cape Town, wherein it is represented that the Tuscaloosa and Sea Bride had visited Ichaboe, which is a dependency of this Colony.

2. Since the receipt of the above-mentioned document, the Alabama arrived at this anchorage (the 16th instant), and when Captain Semmes waited on me, I acquainted him with the report, requesting he would inform me if it was true. I was glad to learn from him that it was not so. He frankly explained that the prize Sea Bride in the first place had put into Saldanha Bay through stress of weather, and on being joined there by the Tuscaloosa, both vessels proceeded to Angra Pequena, on the West Coast of Africa, where he subsequently joined them in the Alabama, and there sold the Sea Bride and her cargo to an English subject who resides at Cape Town. The Tuscaloosa had landed some wool at Angra Pequena and received ballast, but, he states, is still in commission as a tender. It will, therefore, be seen how erroneous is the accompanying report. I have no reason to doubt Captain Semmes' explanation; but he seems to be fully alive to the instructions of Her Majesty's Government, and appears to be most anxious not to commit any breach of neutrality.

3. The Alabama has returned to this port for coal, some provisions, and to repair her condensing apparatus.

4. From conversation with Captain Semmes, I find that he has been off this Cape for the last five days, and as the Vanderbilt left this on the night of the 11th instant, it is surprising they did not see each other.

The Duke of Newcastle to Sir P. Wodehouse. November 4, 1863.

I have received your despatch of the 19th August last, submitting for my consideration various questions arising out of the proceedings at the Cape of Good Hope of the Confederate vessels Georgia, Alabama, and her reputed tender, the Tuscaloosa.

I will now proceed to convey to you the views of Her Majesty's Government on these questions.

The capture of the Sea Bride, by the Alabama, is stated to have been effected beyond the distance of three miles from the shore—which distance must be accepted as the limit of territorial jurisdiction, according to the present rule of international law upon that subject. It appears, however, that the prize, very soon after her capture, was brought within the distance of two miles from the shore; and as this is contrary to Her Majesty's orders, it might have afforded just grounds (if the apology of Captain Semmes for this improper act, which he ascribed to inadvertence, had not been accepted by you) for the interference of the colonial authorities upon the principles which I am about to explain.

With respect to the Alabama herself, it is clear that neither you nor any other authority at the Cape could exercise any jurisdiction over her; and that, whatever may have been her previous history, you were bound to treat her as a ship of war belonging to a belligerent Power.

With regard to the vessel called the Tuscaloosa, I am advised that this vessel did not lose the character of a prize captured by the Alabama, merely because she was, at the time of her being brought within British waters, armed with two small rifled guns, in charge of an officer, and manned with a crew of ten men from the Alabama, and used as a tender to that vessel under the authority of Captain Semmes.

It would appear that the Tuscaloosa is a barque of 500 tons, captured by the Alabama, off the coast of Brazil, on the 21st of June last, and brought into Simon's Bay on or before the 7th of August, with her original cargo of wool (itself, as well as the vessel, prize) still on board, and with nothing to give her a warlike character (so far as is stated in the papers before me), except the circumstances already noticed.

Whether, in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government, without being first brought infra praesidia, or condemned by a court of prize, the character of prize, within the meaning of Her Majesty's orders, would or would not be merged in that of a national ship of war, I am not called upon to explain. It is enough to say that the citation from Mr. Wheaton's book by your attorney-general does not appear to me to have any direct bearing upon the question.

Connected with this subject is the question as to the cargoes of captured vessels, which is alluded to at the end of your despatch. On this point I have to instruct you that Her Majesty's orders apply as much to prize cargoes of every kind which may be brought by any armed ships or privateers of either belligerent into British waters as to the captured vessels themselves. They do not, however, apply to any articles which may have formed part of any such cargoes, if brought within British jurisdiction, not by armed ships or privateers of either belligerent, but by other persons who may have acquired or may claim property in them by reason of any dealings with the captors.

I think it right to observe that the third reason alleged by the attorney-general for his opinion assumes (though the fact had not been made the subject of any inquiry) that "no means existed for determining whether the ship had or had not been judicially condemned in a court of competent jurisdiction," and the proposition that, "admitting her to have been captured by a ship of war of the Confederate States, she was entitled to refer Her Majesty's Government, in case of any dispute, to the court of her States in order to satisfy it as to her real character." This assumption, however, is not consistent with Her Majesty's undoubted right to determine within her own territory whether her own orders, made in vindication of her own neutrality, have been violated or not.

The question remains what course ought to have been taken by the authorities of the Cape—

1st. In order to ascertain whether this vessel was, as alleged by the United States Consul, an uncondemned prize brought within British waters in violation of Her Majesty's neutrality; and

2dly. What ought to have been done if such had appeared to be really the fact.

I think that the allegations of the United States Consul ought to have been brought to the knowledge of Captain Semmes while the Tuscaloosa was still within British waters, and that he should have been requested to state whether he did or did not admit the facts to be as alleged. He should also have been called upon (unless the facts were admitted) to produce the Tuscaloosa's papers. If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances, most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction until properly reclaimed by her original owners.

Sir P. Wodehouse to the Duke of Newcastle. December 19, 1863.

I have had the honour to receive your Grace's despatch of the 4th ultimo, from which I regret to learn that the course taken here relative to the Confederate war steamer Alabama and her prizes has not in some respects given satisfaction to Her Majesty's Government.

I must only beg your Grace to believe that no pains were spared by the late Acting Attorney-General or by myself to shape our course in what we believed to be conformity with the orders of Her Majesty's Government and the rules of international law, as far as we could ascertain and interpret them.

Mr. Denyssen has been so constantly engaged with professional business since the arrival of the mail that I have been prevented from discussing with him the contents of your despatch; but I think it right, nevertheless, to take advantage of the first opportunity for representing to your Grace the state of uncertainty in which I am placed by the receipt of this communication, and for soliciting such further explanations as may prevent my again falling into error on these matters. In so doing I trust you will be prepared to make allowance for the difficulties which must arise out of this peculiar contest, in respect of which both parties stand on a footing of equality as belligerents, while only one of them is recognized as a nation.

In the first place, I infer that I have given cause for dissatisfaction in not having more actively resented the fact that the Sea Bride, on the day after her capture, was brought a short distance within British waters.

Your Grace demurs to my having accepted Captain Semmes' apology for this improper act, which he ascribed to inadvertence. You will pardon my noticing that the fact of the act having been done through inadvertence was established by the United States Consul himself, one of whose witnesses stated, "the officer in command of the barque came on deck about that time, and stamping his foot as if chagrined to find her so near the land, ordered her further off, which was done immediately."

I confess that on such evidence of such a fact I did not consider myself warranted in requiring the commander of Her Majesty's ship Valorous to take possession of the Alabama's prize.

The questions involved in the treatment of the Tuscaloosa are far more important and more embarrassing; and first let me state, with reference to the suggestion that Captain Semmes should have been required to admit or deny the allegations of the United States Consul, that no such proceeding was required. There was not the slightest mystery or concealment of the circumstances under which the Tuscaloosa had come into, and then was in possession of the Confederates. The facts were not disputed. We were required to declare what was her actual status under those facts. We had recourse to Wheaton, the best authority on International Law within our reach—an authority of the nation with whom the question had arisen—an authority which the British Secretary for Foreign Affairs had recently been quoting in debates on American questions in the House of Lords.

Your Grace intimates that the citation from this authority by the Acting Attorney-General does not appear to have any direct bearing upon the question.

You will assuredly believe that it is not from any want of respect for your opinion, but solely from a desire to avoid future error, that I confess my inability to understand this intimation, or, in the absence of instructions on that head, to see in what direction I am to look for the law bearing on the subject.

The paragraph cited made no distinction between a vessel with cargo and a vessel without cargo; and your Grace leaves me in ignorance whether her character would have been changed if Captain Semmes had got rid of the cargo before claiming for her admission as a ship of war. Certainly, acts had been done by him which, according to Wheaton, constituted a "setting forth as a vessel of war."

Your Grace likewise states, "Whether in the case of a vessel duly commissioned as a ship of war, after being made prize by a belligerent Government without being first brought infra praesidia, or condemned by a Court of Prize, the character of prize, within the meaning of Her Majesty's orders, would or would not be merged in a national ship of war, I am not called upon to explain."

I feel myself forced to ask for further advice on this point, on which it is quite possible I may be called upon to take an active part. I have already, in error apparently, admitted a Confederate prize as a ship of war. The chief authority on International Law, in which it is in my power to refer, is Wheaton, who apparently draws no distinction between ships of war and other ships when found in the position of prizes; and I wish your Grace to be aware that within the last few days the commander of a United States ship of war observed to me that if it were his good fortune to capture the Alabama, he should convert her into a Federal cruiser.

I trust your Grace will see how desirable it is that I should be fully informed of the views of Her Majesty's Government on these points, and that I shall be favoured with a reply to this despatch at your earliest convenience.

Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. January 5, 1864.

I request you will be pleased to acquaint my Lords Commissioners of the Admiralty that the barque called the Tuscaloosa, under the flag of the Confederate States of North America (referred to in my letter of the 19th of August last), termed a tender to the Alabama, returned to this anchorage on the 26th ultimo from cruising off the coast of Brazil.

2. In order to ascertain the real character of this vessel, I directed the boarding officer from my flag-ship to put the questions, as per inclosure No. 1, to the officer in command, Lieutenant Low, of the Alabama; and having satisfied myself from his answers that the vessel was still an uncondemned prize captured by the Alabama under the name of the Conrad, of Philadelphia, I communicated the circumstances to the Governor of this Colony, who, concurring in opinion with me that she ought to be retained under Her Majesty's control and jurisdiction until reclaimed by her proper owners, for violation of Pier Majesty's orders for the maintenance of her neutrality, I caused the so-called Tuscaloosa to be taken possession of; informing Lieutenant Low, at the same time, of the reason for doing so.

3. Lieutenant Low has entered a written protest against the seizure of the vessel, a copy of which, together with the reply of the Governor, I inclose for their Lordships' information, as well as a copy of all the correspondence which has passed on this subject.

4. Lieutenant Low having informed me that he expects the Alabama shortly to arrive at this place, I have allowed him and his crew to remain on board the Conrad for the present; but should the Alabama not make her appearance I have acquainted him that I will grant him and his officers (probably only one besides himself) a passage to England in one of the packets. The crew he wishes to discharge if there is no opportunity of their rejoining the Alabama.

5. The vessel in question is at present moored in this bay, in charge of an officer and a few men belonging to Her Majesty's ship Narcissus, where she will remain until she can be properly transferred to her lawful owners, as requested by the Governor.

Questions to be put to the Officer in Command or Charge of the barque Tuscaloosa, carrying the Flag of the so-called Confederate States of America.

Ship's name and nation?—Tuscaloosa. Confederate.

Name and rank of officer in command?—Lieutenant Low, late Alabama.

Tonnage of the ship?—500.

Number of officers and men on hoard?—4 officers and 20 men.

Number and description of guns on board?—3 small brass guns, 2 rifled 12 pounders, 1 smooth-bore-pounder.

Where is she from?—St. Katherine's, Brazils.

Where is she bound?—Cruising.

For what purpose has the ship put into this port?—For repairs and supplies.

Is it the same ship that was captured by the Alabama, and afterwards came to this port on the 9th of August last?—Yes.

What was her original name, on being captured by the Alabama?—Conrad, of Philadelphia.

When was she captured by Alabama?—21st June, 1863.

To what nation and to whom did she belong before her capture?—Federal States of America.

Has she been taken before any legally constituted Admiralty Court of the Confederate States?—No.

Has she been duly condemned as a lawful prize by such Court to the captors?—No.

What is she now designated?—Tender to the Alabama.

What papers are there on board to constitute her as the Confederate barque Tuscaloosa?—The commission of the Lieutenant commanding the Tuscaloosa from Captain Semmes. The officers also have commissions to their ship from him.

Are the papers which belonged to her before she was seized by the Alabama on board?—No.

Is there any cargo on board, and what does it consist of?—No cargo—only stores for ballast.

(Signed) JOHN LOW,

Lieut.-Commander, Confederate States barque Tuscaloosa.

(Signed) FRANCIS L. WOOD,

Lieutenant and Boarding Officer, Her Majesty's ship Narcissus.

Rear-Admiral Sir B. Walker to Lieutenant Low, C.S.N. December 27, 1863.

As it appears that the Tuscaloosa, under your charge and command, is a vessel belonging to the Federal States of America, having been captured by the Confederate States ship of war Alabama, and not having been adjudicated before any competent Prize Court, is still an uncondemned prize, which you have brought into this port in violation of Her Britannic Majesty's orders for the maintenance of her neutrality, I have the honour to inform you that, in consequence, I am compelled to detain the so-called Tuscaloosa (late Conrad) with a view of her being restored to her original owners, and I request you will be so good as to transfer the charge of the vessel to the officer bearing this letter to you.

Rear-Admiral Sir B. Walker to Sir P. Wodehouse. December 28, 1863.

I have the honour to inform your Excellency that, acting upon your 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 owners.

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 proceedings.

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[18] 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 fellow-citizens.

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.



Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. January 18, 1864.

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 objection.

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 disposed of.

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 next mail.

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 Majesty's Government.

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 Governments.

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 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."

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.



No. VII.

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.

THE END.