The Cruise of the Alabama and the Sumter Part 32

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 inst.i.tute 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 rest.i.tution 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 circ.u.mstances 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.

[Ill.u.s.tration: THE MESURADO LAGOON]

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 Lords.h.i.+ps' 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 s.h.i.+p 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 pa.s.sage 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 s.h.i.+p-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 s.h.i.+p-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 circ.u.mstances 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 circ.u.mstances 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 ent.i.tled to a.s.sume 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 a.s.sumed that of an armed tender to the Alabama, and whether that new character, if properly established and admitted, would have ent.i.tled 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 circ.u.mstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the Captain of the Alabama, that the s.h.i.+ps 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 a.s.sure 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 s.h.i.+p. 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 circ.u.mstances 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 s.h.i.+p 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 circ.u.mstances. 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 s.h.i.+p lawfully in my possession, as a tender to my princ.i.p.al s.h.i.+p. 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 ent.i.tled to the immunities and privileges of a s.h.i.+p 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 s.h.i.+p 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 s.h.i.+p and that of a s.h.i.+p 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 s.h.i.+p 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 t.i.tle by which another nation holds her s.h.i.+ps of war. And there can be no difference in this respect between tenders and s.h.i.+ps 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 s.h.i.+p of war, he was estopped from looking into her antecedents. One ill.u.s.tration 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 s.h.i.+p of war as the Narcissus, your flag-s.h.i.+p. 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 t.i.tle to the s.h.i.+p before she was commissioned, or that she was a contract s.h.i.+p 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 s.h.i.+p 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 s.h.i.+p 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 s.h.i.+p 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 lords.h.i.+p 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 s.h.i.+p. When the sovereign of the captor puts his own commission on board such a s.h.i.+p, this is a condemnation in its most solemn form, and is notice to all the world. On principle, if a s.h.i.+p thus commissioned were recaptured, the belligerent prize court could not restore her to her original owner, but must condemn her as a prize s.h.i.+p 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, a.s.sumes 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 t.i.tles 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 s.h.i.+p is not seized and condemned for the violation of any munic.i.p.al 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 s.h.i.+ps, are liable to seizure and condemnation for a palpable violation of the munic.i.p.al 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 t.i.tle 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 pa.s.sage: "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 s.h.i.+ps 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 t.i.tle, 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 ent.i.tled to be considered with gentleness and not with hards.h.i.+p. 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 s.h.i.+p, 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 a.s.sumes 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 t.i.tle 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 p.r.o.nounced 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 a.n.a.logy between that case and the one we are considering. My capture cannot be declared a nullity. My t.i.tle is as good against the enemy as though condemnation had pa.s.sed. 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 cla.s.s in Her Majesty's navy.

The vessel and machinery throughout were built by Messrs.

Laird Brothers at their works at Birkenhead.