Chapter LII

ALABAMA AGAIN IN CAPE TOWN--THE SEIZURE OF THE TUSCALOOSA, AND THE DISCUSSION WHICH GREW OUT OF IT--CORRESPONDENCE BETWEEN THE AUTHOR AND ADMIRAL WALKER--FINAL ACTION OF THE HOME GOVERNMENT, AND RELEASE OF THE TUSCALOOSA.

After our long absence in the East Indies, we felt like returning home when we ran into Table Bay. Familiar faces greeted us, and the same welcome was extended to us as upon our first visit. An unpleasant surprise awaited me, however, in the course the British Government had recently pursued in regard to my tender, the _Tuscaloosa_. The reader will recollect, that I had dispatched this vessel from Angra Pequena, back to the coast of Brazil, to make a cruise on that coast. Having made her cruise, she returned to Simon's Town, in the latter part of December, in want of repairs and supplies. Much to the astonishment of her commander, she was seized, a few days afterward, by Admiral Sir Baldwin Walker, under orders from the Home Government. Since I had left the Cape, a correspondence had ensued between the Governor, Sir Philip Wodehouse, and the Secretary for the Colonies, the Duke of Newcastle; the latter disapproving of the conduct of the former, in the matter of the reception of the _Tuscaloosa_. It was insisted by the Duke, that inasmuch as the _Tuscaloosa_ was an uncondemned prize, she was not entitled to be regarded as a ship of war; but that, on the contrary, having been brought into British waters, in violation of the Queen's orders of neutrality, she should have been detained, and handed over to her original owners. Under these instructions, the _Tuscaloosa_ was seized upon her return to the Cape. This correspondence between the Governor and the Duke had not yet been made public, and it was supposed that the seizure had been made by order of Lord John Russell. Under this impression I sat down, and addressed the following letter to Sir Baldwin Walker, the Admiral, on the subject:--

CONFEDERATE STATES STEAMER 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 bark
_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 candor 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, on record, 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; for
if he had correctly understood them, he could not have been capable
of so grossly misapplying the law. The facts are briefly these:
_First_, The _Tuscaloosa_ was formerly the enemy's ship _Conrad_,
lawfully captured by me on the high seas, in my recognized character
of a belligerent. _2dly_, She was duly commissioned by me, as a
tender to the Confederate States steamer _Alabama_, then, as now,
under my command. _3dly_, In this character she entered British
waters, was received with the courtesy and hospitality due to a ship
of war of a friendly power, and was permitted to repair and refit,
and depart on a cruise.

These were the facts up to the time of Earl Russell's issuing to you
the order in the premises. Let us consider them for a moment, and see
if they afford his lordship any ground for the extraordinary
conclusion at which he has arrived. 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. British 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 all the immunities and privileges of a
ship of war, the right of capturing enemy's ships included. Numerous
decisions are to be found in your own prize law to this effect. In
other words, this is one of the recognized 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 of the sea, 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 recognized 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 undertaken to inquire 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 at
London, did, in fact, set up this pretension, and demand that the
_Alabama_ should be seized in the first British port into which she
should enter; but Earl Russell, in pointed contradiction of his
recent conduct in the case of the _Tuscaloosa_, gave him the proper
legal reply, viz.: that the _Alabama_ being now a ship of war, he was
estopped from looking into her antecedents.

A simple 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 denied--she is as much a
ship of war as the _Narcissus_, your flag-ship. Suppose you should
visit a French port, under circumstances similar to those under which
the _Tuscaloosa_ visited Simon's Town, and the French Government
should threaten you with seizure, unless you satisfied it as to the
antecedents of your ship, what would you think of the pretension?
Suppose your late war with Russia was still progressing--France being
neutral--and your ship had been captured from the Russians, and
commissioned by your Government, without having first been condemned
by a prize court, would this make any difference? You see that it
would not. The pretension would be an insult to your Government. And
in what does the supposed proceeding 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 I had seized a ship belonging
to a power with which my Government was at peace, and commissioned
her, you could not undertake to inquire into the fact. You would have
no right to know, but that I had the orders of my Government for the
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 that Government, in the case supposed,
would be responsible to the friendly power whose ship had been
seized, and not to you. Nay, the case may be put stronger still. The
Federal States have captured a number of British vessels, in the act
of attempting to run the blockade of the ports of the Confederate
States. Suppose the Federal States had commissioned one of these
ships, without her having been first condemned by a prize-court, and
she had afterward come into British waters, could you have seized
her, even though you might know her capture to have been wrongful?
Certainly not. It would be a matter which you could inquire into in
another form, but not in this. The ship would have become a ship of
war, exempt from your jurisdiction, and you could not touch her. 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 commission
on board such a ship, this is a condemnation in its most solemn form;
and is notice to all the world.

Further, as to this question of adjudication. Your letter to
Lieutenant Low, the late commander of the _Tuscaloosa_, assumes that
as that ship was not condemned, she was the property of the enemy
from whom she had been taken. On what ground can you undertake to
make this decision? Condemnation is intended for the benefit of
neutrals, and to quiet the titles of purchasers, but is never
necessary as against the enemy. He has, and can have no rights in a
prize-court at all. He cannot appear there, either in person or by
attorney. He is divested of his property by _force_, and not by any
legal process. The _possession_ of his property by his enemy, is all
that is required as against him. What right, then, has the British
Government to step in between me and my right of possession--waiving,
for the present, the question of the commission, and supposing the
_Tuscaloosa_ to be nothing more than a prize-ship? Does the fact of
my prize being in British waters, in violation of the Queen's
proclamation, give it this right? Clearly not; for we are speaking
now of rights under the laws of nations, and a mere municipal order
cannot abrogate these. The prize may be ordered out of the port, but
my possession is as firm in port, as out.

There is but a single class of cases that I am aware of, in which a
neutral power can undertake to adjudicate a prize-case, and that is,
where it is alleged that the capture has been made in neutral waters,
in violation of the neutral jurisdiction. In that case a neutral
Court of Admiralty may, in case the prize be afterward brought _infra
presidia_ of the neutral country, inquire into the facts, and may
even restore the prize to the enemy, if it should appear that the
neutral jurisdiction has been violated. But this restoration of the
property to the enemy depends upon an entirely different principle.
The right of capture does not exist within the marine league. There
was, therefore, no capture; and there having been no capture, as a
matter of course, the property belongs to the enemy, and must be
restored to him. To show the irrefragable nature of my possession,
permit me to quote to your Excellency, one of your own authorities.
On page forty-two 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." Here two powers bound themselves, by treaty, to do what
the British Government is now attempting to do; that is, to interpose
between the captor and his prize, undo his possession, and hand the
prize back to its original owners. Great Britain said to Portugal, "I
will not permit your enemies to bring any ships they may capture from
you, into my ports, and if they do, I will restore them to you." In
1798, in a case before Lord Stowell, that great admiralty judge had
occasion to comment on this treaty, and used the following language
in relation to it:--"Now I have no scruple in saying, that this is an
article incapable of being carried into literal execution, according
to the modern understanding of the laws 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_." The _custom_,
in the law of nations, _abrogated_ even a treaty, in that case. The
prize being once _lawfully made_, an English Court of Admiralty could
not intervene to wrest it from the captor, even though commanded so
to do by a treaty. Will Lord Russell undertake, in face of this
decision, and of his own mere motion, without even the formality of
process from an Admiralty Court, to wrest my prize from me, and hand
it over to the enemy? 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 generous instincts of Englishmen, we had the right to
expect, at least, a manly disposition to do us justice.

Governor Wodehouse was, from the first, very clearly of the opinion that the _Tuscaloosa_ was entitled to be considered and treated as a ship of war, and in his correspondence with the Duke of Newcastle, before referred to, he maintained this opinion with great force and clearness. He was, besides, fortified by the opinion of the Attorney-General of the Colony.

The seizure of the _Tuscaloosa_ made some stir among the politicians in England. The subject was brought to the notice of the House of Commons, and information asked for. The Cabinet took it up, and were obliged to reverse the decision of the Duke of Newcastle. On the 4th of March, 1864, the Duke wrote to Governor Wodehouse as follows: "I have received your despatches of the 11th and 19th of 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."

The London "Times," of the 8th of March, 1864, in reporting the proceedings of the House of Commons for the preceding day, contained the following paragraph:--

"_The Tuscaloosa._--Mr. Peacocke asked on what grounds the
_Tuscaloosa_ had been seized at the Cape of Good Hope. Lord
Palmerston said, that it was in conformity with the instructions
received, that the authorities at the Cape of Good Hope had seized
this vessel, but on representations that had been made to the
Government, and on full consideration of the case, it had been
determined that there had been no proper ground for the seizure of
the vessel, and its release had been ordered."

The order to restore the _Tuscaloosa_ did not reach the Cape until after both Lieutenant Low and myself had left, and the war drew so speedily to a close, that possession of her was never resumed. At the close of the war, she fell, along with other Confederate property, into the hands of the Federals. Besides embalming the beautiful name "_Tuscaloosa_" in history, this prize-ship settled the law point I had been so long contesting with Mr. Seward and Mr. Adams, to wit: that "one nation cannot inquire into the antecedents of the ships of war of another nation;" and consequently that when the _Alabama_ escaped from British waters and was commissioned, neither the United States nor Great Britain could object to her _status_ as a ship of war.