Rear-Admiral Sir B. Walker to Governor Sir P. Wodehouse. August8, 1863.
I have the honour to acknowledge the receipt of your Excellency's letter of this day's date, covering the written opinion of the Acting Attorney-General of this Colony as to the legality of the so-called tender to the Confederate States armed ship Alabama, and for which I beg to express my thanks.
The vessel in question, now called the Tuscaloosa, arrived here this evening, and the boarding officer from my flag-ship obtained the following information:
That she is a barque of 500 tons, with two small rifled 12 pounder guns and ten men, and was captured by the Alabama on the 21st June last, off the coast of Brazil: cargo of wool still on board.
The admission of this vessel into port will, I fear, open the door for numbers of vessels captured under similar circumstances being denominated tenders, with a view to avoid the prohibition contained in the Queen's instructions; and I would observe that the vessel Sea Bride captured by the Alabama off Table Bay a few days since, or all other prizes, might be in like manner styled tenders, making the prohibition entirely null and void.
I apprehend that to bring a captured vessel under the denomination of a vessel of war, she must be fitted for warlike purposes, and not merely have a few men and two small guns put on board of her (in fact nothing but a prize crew) in order to disguise her real character as a prize.
Now this vessel has her original cargo of wool still on board, which cannot be required for warlike purposes, and her armament and the number of her crew are quite insufficient for any services other than those of a slight defence.
Viewing all the circumstances of the case, they afford room for the supposition, that the vessel is styled a "tender" with the object of avoiding the prohibition against her entrance as a prize into our ports, where, if the captors wished, arrangements could be made for the disposal of her valuable cargo, the transhipment of which, your Excellency will not fail to see, might be readily effected on any part of the coast beyond the limits of this Colony.
My sole object in calling your Excellency's attention to the case is to avoid any breach of strict neutrality.
Governor Sir P. Wodehonse to Rear-Admiral Sir B. Walker. August10, 1863.
I have the honour to acknowledge the receipt of your Excellency's letter of the 8th instant, on which I have consulted the Acting Attorney-General.
The information given respecting the actual condition of the Tuscaloosa is somewhat defective, but referring to the extract from Wheaton transmitted in my last letter, the Attorney-General is of opinion that if the vessel received the two guns from the Alabama or other Confederate vessel of war, or if the person in command of her has a commission of war, or if she be commanded by an officer of the Confederate navy, in any of these cases there will be a sufficient setting forth as a vessel of war to justify her being held to be a ship of war; if all of these points be decided in the negative, she must be held to be only a prize, and ordered to leave forthwith.
Rear-Admiral Sir B. Walker to Governor Sir P. Wodehouse. August11, 1863.
I have the honour to acknowledge the receipt of your Excellency's letter, dated yesterday, respecting the Confederate barque Tuscaloosa now in this bay.
As there are two guns on board, and an officer of the Alabama in charge of her, the vessel appears to come within the meaning of the cases cited in your above-mentioned communication.
Governor Sir P. Wodehouse to the Duke of Newcastle. August19, 1863.
(Extract.)
I beg to take this opportunity of making your Grace acquainted with what has occurred here in connection with the visit of the Confederate States steamer Alabama.
On Tuesday, the 4th instant, I received a letter from the Commander of that vessel, dated the 1st August at Saldanha Bay, announcing his having entered that bay with a view to effecting certain repairs, and stating that he would put to sea as soon as they were completed, and would strictly respect our neutrality.
When this intelligence was received, the United States Consul called on me to seize her, or at any rate to send her away instantly; but as the vessel which brought the news reported that the Alabama was coming immediately to Table Bay, I replied that I could not seize her, but would take care to enforce the observance of the neutral regulations.
On the next day, about noon, it was reported from the signal station that the Alabama was steering for Table Bay from the north, and that a Federal barque was coming in from the westward; and soon after, that the latter had been captured and put about. A little after 2 P.M. the United States Consul called to state that he had seen the capture effected within British waters; when I told him he must make his statement in writing, and an investigation should be made. I also, by telegram, immediately requested the Naval Commander-in-Chief to send a ship of war from Simon's Bay. The Alabama, leaving her prize outside, anchored in the bay 3.30 P.M., when Captain Semmes wrote to me that he wanted supplies and repairs, as well as permission to land thirty-three prisoners. After communicating with the United States Consul, I authorized the latter, and called upon him to state the nature and extent of his wants, that I might be enabled to judge of the time he ought to remain in the port. The same afternoon he promised to send the next morning a list of the stores needed, and announced his intention of proceeding with all despatch to Simon's Bay to effect his repairs there. The next morning (August 6th) the Paymaster called on me with the merchant who was to furnish the supplies, and I granted him leave to stay till noon of the 7th.
On the night of the 5th, Her Majesty's ship Valorous had come round from Simon's Bay. During the night of the 6th the weather became unfavourable; a vessel was wrecked in the bay, and a heavy sea prevented the Alabama from receiving her supplies by the time arranged. On the morning of the 8th, Captain Forsyth, of the Valorous, and the Port Captain, by my desire, pressed on Captain Semmes the necessity for his leaving the port without any unnecessary delay; when he pleaded the continued heavy sea and the absence of his cooking apparatus, which had been sent on shore for repairs, and had not been returned by the tradesman at the time appointed, and intimated his own anxiety to get away. Between 6 and 7 A.M., on Sunday, the 9th, he sailed, and on his way round to Simon's Bay captured another vessel; but on finding that she was in neutral waters he immediately released her.
In the meantime, the United States Consul had, on the 5th August, addressed to me a written statement that the Federal barque Sea Bride had been taken "about four miles from the nearest land," and "already in British waters;" on which I promised immediate inquiry. The next day the Consul repeated his protest, supporting it by an affidavit of the master of the prize, which he held to show that she had been taken about two miles and a half from the land; and the agent for the United States underwriters, on the same day, made a similar protest. On the 7th, the Consul represented that the prize had, on the previous day, been brought within one mile and a half of the lighthouse, which he considered as much a violation of the neutrality as if she had been there captured, and asked me to have the prize crew taken out and replaced by one from the Valorous, which I declined.
I had, during this period, been seeking for authentic information as to the real circumstances of the capture, more particularly with reference to the actual distance from the shore, and obtained through the Acting Attorney-General statements from the keeper of the Green Point Lighthouse (this was supported by the Collector of Customs), from the signal-man at the station at the Lion's Rump, and from an experienced boatman who was passing between the shore and the vessels at the time. Captain Forsyth, of the Valorous, also made inquiries of the captain of the Alabama and of the Port Captain, and made known the result to me. And upon all these statements I came to the conclusion that the vessels were not less than four miles distant from land; and on the 8th I communicated to the United States Consul that the capture could not, in my opinion, be held to be illegal by reason of the place at which it was effected.
In his reply of the 10th, the Consul endeavoured to show how indefensible my decision must be, if, in these days of improved artillery, I rested it on the fact of the vessels having been only three miles from land. This passage is, I think, of considerable importance, as involving an indirect admission that they were not within three miles at the time of capture. And I hope your Grace will concur in my view that it was not my duty to go beyond what I found to be the distance clearly established by past decisions under international law.
An important question has arisen in connection with the Alabama, on which it is very desirable that I should, as soon as practicable, be made acquainted with the views of Her Majesty's Government. Captain Semmes had mentioned after his arrival in port, that he had left outside one of his prizes previously taken, the Tuscaloosa, which he had equipped and fitted as a tender, and had ordered to meet him in Simon's Bay, as she also stood in need of supplies. When this became known to the naval commander-in-chief, he requested me to furnish him with a legal opinion; and whether this vessel could he held to be a ship of war before she had been formally condemned in a prize court; or whether she must not be held to be still a prize, and, as such, prohibited from entering our ports. The Acting Attorney-General, founding his opinion on Earl Russell's despatch to your Grace, of the 31st January, 1862, and on "Wheaton's International Law," states in substance that it was open to Captain Semmes to convert this vessel into a ship of war, and that she ought to be admitted into our ports on that footing.
On the 8th August the vessel entered Simon's Bay, and the Admiral wrote that she had two small rifled guns, with a crew of ten men, and that her cargo of wool was still on board. He was still doubtful of the propriety of admitting her.
On the 10th August, after further consultation with the Acting Attorney-General, I informed Sir Baldwin Walker that, if the guns had been put on board by the Alabama, or if she had a commission of war, or if she were commanded by an officer of the Confederate Navy, there must be held to be a sufficient setting forth as a vessel of war to justify her admission into port in that character.
The Admiral replied in the affirmative on the first and last points, and she was admitted.
The Tuscaloosa sailed from Simon's Bay on the morning of the 14th instant, but was becalmed in the vicinity until the following day, when she sailed about noon. The Alabama left before noon on the 15th instant. Neither of these vessels was allowed to remain in port longer than was really necessary for the completion of their repairs.
On the 16th, at noon, the Georgia, another Confederate war steamer, arrived at Simon's Bay in need of repairs, and is still there.
Before closing this despatch I wish particularly to request instructions on a point touched on in the letter from the United States Consul of the 17th instant, viz.: the steps which should be taken here in the event of the cargo of any vessel captured by one of the belligerents being taken out of the prize at sea, and brought into one of our ports in a British or other neutral vessel.
Both belligerents are strictly interdicted from bringing their prizes into British ports by Earl Russell's letter to the Lords of the Admiralty of the 1st June, 1861, and I conceive that a colonial government would be justified in enforcing compliance with that order by any means at its command, and by the exercise of force if it should be required.
But that letter refers only to "prizes;" that is, I conceive, to ships themselves, and makes no mention of the cargoes they may contain. Practically the prohibition has been taken to extend to the cargoes; and I gathered, from a conversation with Captain Semmes on the subject of our neutrality regulations, that he considered himself debarred from disposing of them, and was thus driven to the destruction of all that he took. But I confess that I am unable to discover by what legal means I could prevent the introduction into our ports of captured property purchased at sea, and tendered for entry at the custom-house in the usual form from a neutral ship. I have consulted the Acting Attorney-General on the subject, and he is not prepared to state that the customs authorities would be justified in making a seizure under such circumstances; and therefore, as there is great probability of clandestine attempts being made to introduce cargoes of this description, I shall be glad to be favoured with the earliest practicable intimation of the views of Her Majesty's Government on the subject.
Captain Semmes, C.S.N., to Sir P. Wodehouse. August5, 1863.
I have the honour to inform your Excellency of my arrival in this bay, in the Confederate States steamer Alabama under my command. I have come in for supplies and repairs, and in the meantime I respectfully ask leave to land in Cape Town thirty-three prisoners, lately captured by me on board two of the enemy's ships destroyed at sea. The United States Consul will doubtless be glad to extend such hospitality and assistance to his distressed countrymen, as required of him by law.
Sir P. Wodehouse to Captain Semmes, C.S.N. August5, 1863.
I have the honour to acknowledge the receipt of your letter announcing your arrival in this port, and to state that I have no objection to offer to your landing the prisoners now detained in your ship.
I have further to beg that you will be good enough to state the nature and extent of the supplies and repairs you require, that I may be enabled to form some estimate of the time for which it will be necessary for you to remain in this port.
Captain Semmes, C.S.N., to Sir P. Wodehouse. August5, 1863.
I have had the honour to receive your letter of this day's date, giving me permission to land my prisoners, and requesting me to state the nature of the supplies and repairs which I may require. In the way of supplies I shall need some provisions for my crew, a list of which will be handed you to-morrow by the paymaster, and as for repairs my boilers need some iron work to be done, and my bends require caulking, being quite open. I propose to take on board the necessary materials here, and to proceed with all despatch to Simon's Bay for the purpose of making these repairs.
Mr. Adamson to Captain Semmes C.S.N. August6, 1863.
I am directed by the Governor of this colony to acquaint you that he has received from the Consul for the United States at this port a representation, in which he sets forth that an American barque was yesterday captured by the ship which you command, in British waters, in violation of the neutrality of the British Government, and claims from him redress for the alleged outrage.
His Excellency will be glad, therefore, to receive from you any explanation you may wish to give as to the circumstances in which the capture was effected.
Captain Semmes, C.S.N., to Mr. Adamson. Cape Town, August6, 1863.
I have had the honour to receive your communication of this day's date, informing me that the United States Consul at this port had presented to his Excellency the Governor a representation in which he sets forth that an American barque was yesterday captured by this ship under my command in British waters, in violation of the neutrality of the British Government, and requesting me to make to his Excellency such representation as I may have to offer on the subject.
In reply, I have the honour to state that it is not true that the barque referred to was captured in British waters, and in violation of British neutrality; she having been captured outside all headlands, and a distance from the nearest land of between five and six miles. As I approached this vessel I called the particular attention of my officers to the question of distance, and they all agreed that the capture was made from two to three miles outside the marine league.
U.S. Consul to Sir P. Wodehouse. August4, 1863.
From reliable information received by me, and which you are also doubtless in possession of, a war steamer called the Alabama is now in Saldanha Bay, being painted, discharging prisoners of war, &c.
The vessel in question was built in England to prey upon the commerce of the United States of America, and escaped therefrom while on her trial trip, forfeiting bonds of £20,000, which the British Government exacted under the Foreign Enlistment Act.
Now, as your Government has a treaty of amity and commerce with the United States, and has not recognised the persons in revolt against the United States as a Government at all, the vessel alluded to should be at once seized and sent to England, from whence she clandestinely escaped. Assuming that the British Government was sincere in exacting the bonds, you have doubtless been instructed to send her home to England, where she belongs. But if, from some oversight, you have not received such instructions, and you decline the responsibility of making the seizure, I would most respectfully protest against the vessel remaining in any port of the colony another day. She has been at Saldanha Bay four [six] days already, and a week previously on the coast, and has forfeited all right to remain an hour longer by this breach of neutrality. Painting a ship does not come under the head of "necessary repairs," and is no proof that she is unseaworthy; and to allow her to visit other ports after she has set the Queen's proclamation of neutrality at defiance would not be regarded as in accordance with the spirit and purpose of that document.
Mr. Adamson to U.S. Consul. August 5,1863.
I am directed by the Governor to acknowledge the receipt of your letter of yesterday's date relative to the Alabama.
His Excellency has no instructions, neither has he any authority, to seize or detain that vessel; and he desires me to acquaint you that he has received a letter from the Commander, dated the 1st instant, stating that repairs were in progress, and as soon as they were completed he intended to go to sea. He further announces his intention of respecting strictly the neutrality of the British Government.
The course which Captain Semmes here proposes to take is, in theGovernor's opinion, in conformity with the instructions he has himselfreceived relative to ships of war and privateers belonging to the UnitedStates and the States calling themselves the Confederate States ofAmerica visiting British ports.
The reports received from Saldanha Bay induce the Governor to believe that the vessel will leave that harbour as soon as her repairs are completed; but he will immediately, on receiving intelligence to the contrary, take the necessary steps for enforcing the observance of the rules laid down by Her Majesty's Government.
Mr. Graham (U.S. Consul) to Sir P. Wodehouse. August5, 1863.
The Confederate steamer Alabama has just captured an American barque off Green Point, or about four miles from the nearest land (Robben Island). I witnessed the capture with my own eyes, as did hundreds of others at the same time. This occurrence at the entrance of Table Bay, and clearly in British waters, is an insult to England and a grievous injury to a friendly Power, the United States.
Towards the Government of my country and her domestic enemies the Government of England assumes a position of neutrality; and if the neutrality can be infringed with impunity, in this bold and daring manner, the Government of the United States will no doubt consider the matter as one requiring immediate explanation.
Believing that the occurrence was without your knowledge or expectation, and hoping you will take such steps to redress the outrage as the exigency requires, I am, &c.
Mr. Rawson to Mr. Graham. August6, 1863.
I am directed by the Governor to acknowledge the receipt of your letter of yesterday's date respecting the capture of the Sea Bride by the Alabama, and to acquaint you that he will lose no time in obtaining accurate information as to the circumstances of the capture. I have, &c.,
(Signed) RAWSON W. RAWSON,
Colonial Secretary.
Mr. Graham to Sir P. Wodehouse. August6, 1863.
I have the honour to acknowledge the receipt of your despatch of this date.
I beg now to enclose for your Excellency's perusal, the affidavit of Captain Charles F. White, of the Sea Bride, protesting against the capture of the said barque in British waters. The bearings taken by him at the time of capture conclusively show that she was in neutral waters, being about two and a half miles from Robben Island. This statement is doubtless more satisfactory than the testimony of persons who measured the distance by the eye.
I believe that there is no law defining the word "coast" other than international law. That law has always limited neutral waters to the fighting distance from land, which, upon the invention of gunpowder, was extended to a distance of three nautical miles from land on a straight coast, and by the same rule, since the invention of Armstrong rifled cannon, to at least six miles.
But all waters inclosed by a line drawn between two promontories or headlands are recognised by all nations as neutral, and England was the first that adopted the rule, calling such waters the "King's chambers." By referring to "Wheaton's Digest," page 234, or any other good work on international law, you will find the above rules laid down and elucidated.
The fact that the prize has not already been burned, and that her fate is still in suspense, is clear proof that Captain Semmes had misgivings as to the legality of the capture, and awaits your Excellency's assent. If you decide that the prize was legally taken, you will assume a responsibility which Captain Semmes himself declined to take.
Affidavit of C.F. White.
On this 6th day of August, A.D. 1863, personally appeared before me, Walter Graham, Consul of the United States at Cape Town, Charles F. White, master of the barque Sea Bride, of Boston, from New York, and declared on affidavit that on the 3d day of August instant, he sighted Table Mountain and made for Table Bay, but that on the 4th instant, night coming on, he was compelled to stand out. On the 5th instant, he again made for the anchorage, and about two P.M. saw a steamer standing toward the barque, which he supposed was the English mail steamer, but on nearing her, found her to be the Confederate steamer Alabama. He, Captain White, was peremptorily ordered to heave his vessel to as a prize to the Alabama. One gun was fired, and immediately after the demand was made another gun was fired. Two boats were lowered from the Alabama and sent on board the barque. The officer in charge of these boats demanded the ship's papers, which the said master was compelled to take on board the said steamer. This happened about a quarter before three o'clock. He and his crew were immediately taken from his vessel and placed as prisoners on board the Alabama, the officers and crew being put in irons. The position of the barque at the time of capture was as follows:—Green Point Lighthouse bearing south by east; Robben Island Lighthouse north-east.
The said appearer did further protest against the illegal capture of said vessel, as she was in British waters at the time of capture, according to bearings.
Mr. Graham to Sir P. Wodehouse. August 7, 1863.
Understanding from your letter of this date, received this morning,[17] that the case of the Sea Bride is still pending, I enclose the affidavits of the first officer of that vessel and the cook and steward, which I hope will throw additional light on the subject.
[Footnote 17: A formal acknowledgment omitted here as superfluous.]
From the affidavit of the first officer, it appears that the alleged prize was brought within one and a half miles of Green Point Lighthouse yesterday at one o'clock P.M. Now, as the vessel was at that time in charge of a prize crew, it was a violation of neutrality as much as if the capture had been made at the same distance from land.
Pending your decision of the case I would most respectfully suggest that the prize crew on board the Sea Bride be removed, and that the vessel be put in charge of a crew from Her Majesty's ship Valorous.
Affidavit of James Robertson.
On the day and date hereof before me, Walter Graham, Consul for the United States of America at Cape Town, personally came and appeared James Robertson, cook and steward of the barque Sea Bride, an American vessel, and made affidavit that he was on board said barque on the night of the 5th day of August instant, after the said barque had been captured as a prize by the Confederate steamer Alabama, and a prize crew put on board. That at about five minutes before two o'clock A.M. of the 6th instant, the prize crew on board the said barque received a signal from the Alabama aforesaid to burn the said barque, and immediately all hands were called to execute that order. That the sails were clewed, a tar barrel taken from underneath the topgallant forecastle and placed in the forecastle, and a bucketful of tar, with other combustibles and ammunition, ordered on the cabin table, but that when these arrangements were completed, another signal was received from the said Alabama, countermanding the order to burn the said prize, and to stand off and on the land until daylight, which orders were obeyed.
Affidavit of John Schofield.
On the day and date hereof before me, Walter Graham, Consul for the United States of America at Cape Town, personally came and appeared John Schofield, first officer of the barque Sea Bride, of Boston, who made affidavit that he was on board of said vessel at one o'clock P.M. yesterday, the 6th day of August instant, while she was in possession of a prize crew of the steamer Alabama; that he took the bearings of said barque at that time, which were as follows: Robben Island Lighthouse bore north-east by north one-half north, Green Point Lighthouse bore south-west one-half west.
He also deposed that 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 am directed by the Governor to acknowledge the receipt of your letter of this date, inclosing two affidavits relative to the Sea Bride, and to state that his Excellency is not prepared to admit that the fact of that vessel having been brought by the prize crew within one and a half miles of the Green Point Lighthouse "was a violation of the neutrality as much as if the capture had taken place at the same distance from land," although both the belligerents are prohibited from bringing their prizes into British ports.
The Governor does not feel warranted in taking steps for the removal of the prize crew from the Sea Bride.
Mr. Bawson to Mr. Graham. August8, 1863.
With reference to the correspondence that has passed relative to the capture by the Confederate States steamer Alabama, of the barque Sea Bride, I am directed by the Governor to acquaint you that, on the best information he has been enabled to procure, he has come to the conclusion that the capture cannot be held to be illegal, or in violation of the neutrality of the British Government, by reason of the distance from land at which it took place.
His Excellency will, by next mail, make a full report of the case to HerMajesty's Government.
Mr. Graham to Sir P. Wodehouse. August10, 1863.
Your decision in the case of the Sea Bride was duly received at four o'clock p. M. on Saturday. In communicating that decision you simply announce that the vessel was, in your opinion, and according to evidence before you, a legal prize to the Alabama; but you omit to state the principle of international law that governed your decision, and neglect to furnish me with the evidence relied upon by you.
Under these circumstances I can neither have the evidence verified or rebutted here, nor am I enabled to transmit it as it stands to the American Minister at London, nor to the United States Government at Washington. An invitation to be present when theex partetestimony was taken was not extended to me, and I am therefore ignorant of the tenor of it, and cannot distinguish the portion thrown out from that which was accepted. If your decision is that the neutral waters of this colony only extend a distance of three miles from land, the character of that decision would have been aptly illustrated to the people of Cape Town had an American war-vessel appeared on the scene, and engaged the Alabama in battle. In such a contest with cannon carrying a distance of six miles (three overland), the crashing buildings in Cape Town would have been an excellent commentary on your decision.
But the decision has been made, and cannot be revoked here, so that further comment at present is, therefore, unnecessary. It can only be reversed by the Government you represent, which it probably will be when the United States Government shall claim indemnity for the owners of the Sea Bride.
An armed vessel named the Tuscaloosa, claiming to act under the authority of the so-called Confederate States, entered Simon's Bay on Saturday the 8th instant. That vessel was formerly owned by citizens of the United States, and while engaged in lawful commerce was captured as a prize by the Alabama. She was subsequently fitted out with arms by the Alabama to prey upon the commerce of the United States, and now, without having been condemned as a prize by any Admiralty Court of any recognized Government, she is permitted to enter a neutral port in violation of the Queen's Proclamation, with her original cargo on board. Against this proceeding I hereby most emphatically protest, and I claim that the vessel ought to be given up to her lawful owners. The capture of the Sea Bride in neutral waters, together with the case of the Tuscaloosa, also a prize, constitute the latest and best illustration of British neutrality that has yet been given.
Mr. Rawson to Mr. Graham. August10, 1863.
I am directed by the Governor to acknowledge the receipt of your letter of this date, and to state with reference to that part of it which relates to the Tuscaloosa, that his Excellency is still in correspondence with the Commander-in-chief respecting the character of that vessel, and the privileges to which she is entitled.
Mr. Graham to Sir P. Wodehouse. August12, 1863.
Upon receiving your last communication to me dated the 10th instant, I deemed it simply a report of progress on one subject treated of in my last letter to your Excellency, and I have therefore waited anxiously for the receipt of another letter from the Colonial Secretary communicating the final result in the case. Failing to receive it, and hearing yesterday P.M. that the Tuscaloosa would proceed to Sea from Simon's Bay to-day, I applied for an injunction from the Supreme Court to prevent the vessel sailing before I had an opportunity of showing by witnesses that she is owned in Philadelphia in the United States, and her true name is Conrad; that she has never been condemned as a prize by any legally constituted Admiralty Court; and that I amex officiothe legal agent of the owners, underwriters, and all others concerned. I have not yet learned the result of that application, and fearing that delay may allow her to escape, I would respectfully urge you to detain her in port until the proper legal steps can be taken.
I am well aware that your Government has conceded to the so-called Confederate States the rights of belligerents, and is thereby bound to respect Captain Semmes' commission; but having refused to recognize the "Confederacy" as a nation, and having excluded his captures from all the ports of the British Empire, the captures necessarily revert to their real owners, and are forfeited by Captain Semmes as soon as they enter a British port.
Hoping to receive an answer to this and the preceding letter as early as possible, and that you will not construe my persistent course throughout this correspondence on neutral rights as importunate, or my remarks as inopportune, I have, &c.
Mr. Rawson to Mr. Graham. August 12, 1863.
I am directed by the Governor to acknowledge the receipt of your letter of this date, and to acquaint you that it was not until late last evening that his Excellency received from the naval Commander-in-chief information that the condition of the Tuscaloosa was such as, as his Excellency is advised, to entitle her to be regarded as a vessel of war.
The Governor is not aware, nor do you refer him to the provisions of international law by which captured vessels, as soon as they enter our neutral ports, revert to their real owners, and are forfeited by their captors. But his Excellency believes that the claims of contending parties to vessels captured can only be determined in the first instance by the Courts of the captor's country.
The Governor desires me to add that he cannot offer any objection to the tenor of the correspondence which you have addressed to him on this subject, and that he is very sensible of the courtesy you have exhibited under such very peculiar circumstances!!! He gives you credit for acting on a strict sense of duty to your country.
Mr. Graham to Sir P. Wodehouse. August17, 1863.
I have delayed acknowledging the receipt of your last letter, dated the 12th August, on account of events transpiring, but which have not yet culminated so as to form the subject of correspondence.
Your decision that the Tuscaloosa is a vessel of war, and by inference a prize, astonishes me, because I do not see the necessary incompatibility. Four guns were taken from on board the Talisman (also a prize), and put on board the Conrad (Tuscaloosa), but that transfer did not change the character of either vessel as a prize, for neither of them could cease to be a prize till it had been condemned in an Admiralty Court of the captor's country, which it is not pretended has been done. The Tuscaloosa, therefore, being a prize, was forbidden to enter Simon's Bay by the Queen's Proclamation, and should have been ordered off at once; but she was not so ordered. Granting that Her Majesty's Proclamation affirmed the right of Captain Semmes as a belligerent to take and to hold prizes on the high seas, it just as emphatically denied his right to hold them in British ports. Now, if he could not hold them in Simon's Bay, who else could hold them except those whose right to hold them was antecedent to his—that is, the, owners?
The Tuscaloosa remained in Simon's Bay seven days with her original cargo of skins and wool on board. This cargo, I am informed by those who claim to know, has been purchased by merchants in Cape Town; and if it should be landed here directly from the prize, or be transferred to other vessels at some secluded harbour on the coast beyond this Colony, and brought from thence here, the infringement of neutrality will be so palpable and flagrant that Her Majesty's Government will probably satisfy the claims of the owners gracefully and at once, and thus remove all cause of complaint. In so doing it will have to disavow and repudiate the acts of its executive agents here—a result I have done all in my power to prevent.
Greater cause of complaint will exist if the cargo of the Sea Bride is disposed of in the same manner, as I have reason to apprehend it will be when negotiations are concluded; for being originally captured in neutral waters, the thin guise of neutrality would be utterly torn into shreds by the sale of her cargo here.
The Georgia, a Confederate war-steamer, arrived at Simon's Bay yesterday, and the Florida, another vessel of the same class, has arrived, or is expected hourly at Saldanha Bay, where she may remain a week without your knowledge, as the place is very secluded. The Alabama remained here in Table Bay nearly four days, and at Simon's Bay six days; and as the Tuscaloosa was allowed to remain at Simon's Bay seven days, I apprehend that the Georgia and Florida will meet with the same or even greater favours. Under such circumstances further protests from me would seem to be unavailing, and I only put the facts upon record for the benefit of my Government and officials possessed of diplomatic functions.
Mr. Rawson to Mr. Graham. August19, 1863.
I am directed by the Governor to acknowledge the receipt of your letter of the 17th instant, and to state that he has, during the recent transactions, endeavoured to act in strict conformity with the wishes of Her Majesty's Government; he will in like manner pursue the same course in any future cases which may arise.
I am to add that His Excellency has no reason to believe that either the Alabama or the Tuscaloosa have been allowed to remain in the ports of the Colony for a greater length of time than the state of the weather, and the execution of the repairs of which they actually stood in need, rendered indispensable.
Statement of Joseph Hopson.
Joseph Hopson, keeper of the Green Point Lighthouse, states:
I was on the look-out on Wednesday afternoon when the Alabama and Sea Bride were coming in. When I first saw them the steamer was coming round the north-west of Robben Island, and the barque bore from or about five miles west-northwest. The barque was coming in under all sail with a good breeze, and she took nothing in when the gun was fired. I believe two guns were fired, but the gun I mean was the last, and the steamer then crossed the stern side of the barque, and hauled up to her on the starboard side. He steamed ahead gently, and shortly afterwards I saw the barque put round with her head to the westward, and a boat put off from the steamer and boarded her. Both vessels were then good five miles off the mainland, and quite five, if not six, from the north-west point of Robben Island.
Statement of W.S. Field, Collector of Customs.
I was present at the old Lighthouse, Green Point, on Wednesday afternoon, at 2 P.M., and saw the Alabama capture the American barque Sea Bride, and I agree with the above statement as far as the position of the vessels and their distance from shore.
I may also remark that I called the attention of Colonel Bisset and the lighthouse keeper Hopson to the distance of the vessels at the time of the capture, as it was probable we should be called upon to give our evidence respecting the affair, and we took a note of the time it occurred.
Statement of John Roe.
I was yesterday, the 5th day of August, 1863, returning from a whale chase in Hunt's Bay, when I first saw the barque Sea Bride standing from the westward on to the land. I came on to Table Bay, and when off Camps Bay I saw the smoke of the Alabama some distance from the westward of Robben Island. When I reached the Green Point Lighthouse the steamer was standing up towards the barque, which was about five miles and a half to the westward of Green Point, and about four and half from the western point of Robben Island. This was their position (being near each other at the time) when the gun was fired.
Statement of Signalman at the Lion's Rump Telegraph Station.
On Wednesday last, the 5th day of August, 1863, I sighted the barque Sea Bride about seven o'clock in the morning, about fifteen or twenty miles off the land, standing into Table Bay from the south-west. There was a light breeze blowing from the north-west, which continued until after midday. About midday I sighted the Alabama screw steamer standing from due north towards Table Bay, intending, as it appeared to me, to take the passage between Robben Island and the Blueberg Beach. She was then between fifteen and eighteen miles off the land.
After sighting the steamer, I hoisted the demand for the barque, when she hoisted the American flag, which I reported to the Port Office, the barque then being about eight miles off the land from Irville Point. No sooner had the barque hoisted the American flag than the steamer turned sharp round in the direction of and towards the barque. The steamer appeared at that time to have been about twelve miles off the land from Irville Point, and about four or five miles outside of Robben Island, and about seven miles from the barque.
The steamer then came up to and alongside of the barque, when the latter was good four miles off the land at or near the old Lighthouse, and five miles off the Island. The steamer, after firing a gun, stopped the further progress of the barque, several boats were sent to her, and after that the barque stood out to sea again, and the Alabama steamed into Table Bay.
Captain Forsyth to Sir P. Wodehouse. August6, 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, PortCaptain of Table Bay, who has assured me that at the time of the SeaBride being captured, he was off Green Point in the port boat, and thatonly 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. September17, 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'sGovernment 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 broughtinfra 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. December19, 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 broughtinfra 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. January5, 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?—FederalStates of America.
Has she been taken before any legally constituted Admiralty Court of theConfederate 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 theAlabama 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. December27, 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. December28, 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 atCape 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. December28, 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. December29, 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. December29, 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. January11, 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. December28, 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. December28, 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 ConradaliasTuscaloosa are citizens, I possess the right to act for them when both they and their special agents are absent, I can institute a proceedingin remwhere 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 theresin controversy, without a special authority. (See United States Statutes at Large, vol. i., p. 254, notes 2 and 3.)