Chapter XXXIX: Appendix (3)

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 the _ex parte_ testimony 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. August_ 10, 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. August_ 12, 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 am _ex officio_ the 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. August_ 17, 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. August_ 19, 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. August_ 6, 1863.

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

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

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

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

_Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. September_ 17, 1863.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_Sir P. Wodehouse to the Duke of Newcastle. December_ 19, 1863.

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

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

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

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

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

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

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

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

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

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

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

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

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

_Rear-Admiral Sir B. Walker to the Secretary to the Admiralty. January_ 5, 1864.

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

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

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

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

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

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

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

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

Tonnage of the ship?--500.

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

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

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

Where is she bound?--Cruising.

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

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

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

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

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

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

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

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

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

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

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

(Signed) JOHN LOW,

_Lieut.-Commander, Confederate States barque Tuscaloosa._

(Signed) FRANCIS L. WOOD,

_Lieutenant and Boarding Officer, Her Majesty's ship Narcissus._

_Rear-Admiral Sir B. Walker to Lieutenant Low, C.S.N. December_ 27, 1863.

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

_Rear-Admiral Sir B. Walker to Sir P. Wodehouse. December_ 28, 1863.

I have the honour to inform your Excellency that, acting upon your concurrence in my opinion with reference to the instructions received from home by the last mail, I have detained the barque Tuscaloosa (late Conrad of Philadelphia), because she is an uncondemned prize, taken by the Confederate States ship of war Alabama, and brought into British waters in violation of Her Majesty's Orders for maintaining her neutrality, and with the view to her being restored to her original owners.

I shall be ready to hand her over to the Consul of the United States at Cape Town, or to any person you may appoint to take charge of her.

I should add that Lieutenant Low has given up the Tuscaloosa (late Conrad) under protest, which he is about to make in writing, a copy of which shall be transmitted to your Excellency as soon as received.

_Lieutenant Low, C.S.N., to Sir P. Wodehouse. December_ 28, 1863

As the officer in command of the Confederate States ship Tuscaloosa, tender to the Confederate States steamer Alabama, I have to record my protest against the recent extraordinary measures which have been adopted towards me and the vessel under my command by the British authorities of this Colony.

In August last the Tuscaloosa arrived in Simon's Bay. She was not only recognised in the character which she lawfully claimed and still claims to be, viz., a commissioned ship of war belonging to a belligerent Power, but was allowed to remain in the harbour for the period of seven days, taking in supplies and effecting repairs with the full knowledge and sanction of the authorities.

No intimation was given that she was regarded in the light of an ordinary prize, or that she was considered to be violating the laws of neutrality. Nor, when she notoriously left for a cruise on active service, was any intimation whatever conveyed that on her return to the port of a friendly Power, where she had been received as a man-of-war, she would be regarded as a "prize," as a violater of the Queen's proclamation of neutrality, and consequently liable to seizure. Misled by the conduct of Her Majesty's Government, I returned to Simon's Bay on the 26th instant, in very urgent want of repairs and supplies; to my surprise I find the Tuscaloosa is now no longer considered as a man-of-war, and she has by your orders, as I learn, been seized for the purpose of being handed over to the person who claims her on behalf of her late owners.

The character of the vessel, viz., that of a lawful commissioned man-of-war of the Confederate States of America, has not been altered since her first arrival in Simon's Bay, and she, having been once fully recognised by the British authorities in command in this Colony, and no notice or warning of change of opinion or of friendly feeling having been communicated by public notification or otherwise. I was entitled to expect to be again permitted to enter Simon's Bay without molestation.

In perfect good faith I returned to Simon's Bay for mere necessaries, and in all honour and good faith, in return, I should on change of opinion or of policy on the part of the British authorities, have been desired to leave the port again.

But by the course of proceedings taken, I have been (supposing the view now taken by your Excellency's Government to be correct) first misled and next entrapped.

My position and character of my ship will most certainly be vindicated by my Government. I am powerless to resist the affront offered to the Confederate States of America by your Excellency's conduct and proceedings.

I demand, however, the release of my ship; and if this demand be not promptly complied with, I hereby formally protest against her seizure, especially under the very peculiar circumstances of the case.

_Mr. Bawson to Lieutenant Low, C.S.N. December_ 29, 1863.

I am directed by the Governor to acknowledge the receipt of your letter of yesterday's date protesting against the seizure of the Tuscaloosa, whose character you represent to be the same as when, in August last, she was admitted into the port of Simon's Bay, and I am to acquaint you in reply that a full report was submitted to Her Majesty's Government of all that took place on the first visit of the Tuscaloosa, and that the seizure has now been made in conformity with the opinion expressed by them on that report.

Your protest will of course be transmitted for their consideration.

_Rear-Admiral Sir B. Walker to Sir P. Wodehouse. December_ 29, 1863.

Lieutenant Low, the officer belonging to the Confederate States ship of war Alabama, late in charge of the barque called the Tuscaloosa (properly the Conrad of Philadelphia), having sent me a copy of the protest which he has forwarded to your Excellency against the detention of that vessel, I think it right to inclose for your information the copy of my letter to Lieutenant Low[18] explaining the circumstances under which the so-called Tuscaloosa is detained.

[Footnote 18: This letter is not given in the Blue Book.]

_Sir P. Wodehouse to the Duke of Newcastle. January_ 11, 1864.

I very much regret having to acquaint your Grace that the Confederate prize vessel the Tuscaloosa has again entered Simon's Bay, and that the Naval Commander-in-chief and myself have come to the conclusion that, in obedience to the orders transmitted to his Excellency by the Admiralty, and to me by your Grace's despatch of the 4th November last, it was our duty to take possession of the vessel, and to hold her until properly claimed by her original owners. The Admiral, therefore, sent an officer with a party of men from the flag-ship to take charge of her, and to deliver to her commander a letter in explanation of the act. Copies of his protest, addressed to me, and of my reply, are inclosed. He not unnaturally complains of having been now seized, after he had on the previous occasion been recognised as a ship of war. But this is manifestly nothing more than the inevitable result of the overruling by Her Majesty's Government of the conclusion arrived at on the previous occasion by its subordinate officer.

The Consul for the United States, on being informed of what had taken place, intimated his inability to take charge of the ship on account of the owners, and expressed a desire that it should remain in our charge until he was put in possession of the requisite authority. Accordingly, after taking the opinion of the Attorney-General, it was arranged that the vessel should remain in the charge of Sir Baldwin Walker.

I ought to explain that the seizure was made without previous reference to the Attorney-General. I did not consider such a reference necessary. The law had been determined by Her Majesty's Government on the previous case. The Admiral was of opinion that we had only to obey the orders we had received, and on his intimating that opinion I assented.

Your Grace will observe that at the request of the officers of the Tuscaloosa the Admiral has permitted them to remain on board, in expectation of the immediate arrival of the Alabama, to which ship they wish to return. I should otherwise have thought it my duty to provide them with passages to England at the cost of Her Majesty's Government, by whom, I conclude, they would be sent to their own country; and it is probable that if the Alabama should not soon make her appearance, such an arrangement will become necessary.

I have only to add that I have thought it advisable, after what has now occurred, to intimate to the United States Consul that we should probably be under the necessity of adopting similar measures in the event of an uncondemned prize being fitted for cruising, and brought into one of our ports by a Federal ship of war. I did not speak positively, because I have been left in doubt by your Grace's instructions whether some distinction should not be drawn in the case of a ship of war of one belligerent captured and applied to the same use by the other belligerent, but the Consul was evidently prepared for such a step. Copies of all the correspondence are inclosed.

_Mr. Rawson to Mr. Graham. December_ 28, 1863.

I am directed by the Governor to acquaint you that the Tuscaloosa having again arrived in Simon's Bay, will, under instructions lately received from Her Majesty's Government, be retained under Her Majesty's control and jurisdiction until properly reclaimed by her original holders.

_Mr. Graham to Sir P. Wodehouse. December_ 28, 1863.

I have to acknowledge the receipt of your letter of yesterday's date in reference to the Tuscaloosa.

By virtue of my office as Consul for the United States of America in the British possessions of South Africa, of which nation the original owners of the Conrad _alias_ Tuscaloosa are citizens, I possess the right to act for them when both they and their special agents are absent, I can institute a proceeding _in rem_ where the rights of property of fellow-citizens are concerned, without a special procuration from those for whose benefit I act, but cannot receive actual restitution of the _res_ in controversy, without a special authority. (See United States Statutes at Large, vol. i., p. 254, notes 2 and 3.)

Under these circumstances I am content that the vessel in question should for the present, or until the properly authenticated papers and power of attorney shall be received from the owners in America, remain in possession and charge of Her Majesty's naval officers. But should it hereafter be determined to give the vessel up to any party other than the real owners, I desire to have sufficient notice of the fact, so that I may take the proper steps to protect the interests of my absent fellow-citizens.

With regard to the property of American citizens seized here at the Custom-house, and which was formerly part of the Sea Bride's cargo, I would suggest that it also be held by the Colonial Government, subject to the order of the original owners. An announcement to that effect from you would be received with great satisfaction by me.

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

With reference to my letter of the 5th instant, I have the honour to submit, for their Lordships' information, a further correspondence between the Governor of this Colony and myself relative to the American vessel Conrad, of Philadelphia, lately called the Tuscaloosa.

2. Lieutenant Low, belonging to the Confederate States ship of war Alabama, lately in charge of the Tuscaloosa, having paid off and discharged his crew, finally quitted the vessel on the 9th instant; and I have ordered him a passage to England by the mail-packet Saxon, together with his first officer, Mr. Sinclair.

3. The Conrad now remains in charge of a warrant officer and two ship-keepers, awaiting to be properly claimed or disposed of as the Government may direct.

_Rear-Admiral Sir B. Walker to Sir P. Wodehouse. January 6, 1864_.

With reference to your Excellency's communication of yesterday's date, I have the honour to inform you that I will make arrangements for the safe custody of the Conrad, of Philadelphia (late Tuscaloosa), by mooring her in this bay, and putting ship-keepers in charge of her, until she can be properly transferred to her lawful owners.

Lieutenant Low has requested to be allowed to remain on board the vessel, together with his crew, for the present, as he expected the Alabama to arrive here shortly, to which arrangement I have made no objection.

There are some guns and other articles on board the Conrad said to belong to the Alabama, a list of which I have already forwarded to your Excellency. It is a matter for consideration how these things should be disposed of.

I think, as a precautionary measure, it may be desirable that some person on the part of the United States Consul should visit the Conrad, to observe the state she is in, on being taken into British custody, to prevent any question thereon hereafter.

_The Duke of Newcastle to Sir P. Wodehouse. March 4, 1864_.

I have received your despatches of the 11th and 19th January, reporting the circumstances connected with the seizure of the Confederate prize-vessel Tuscaloosa, under the joint authority of the Naval Commander-in-chief and yourself. I have to instruct you to restore the Tuscaloosa to the Lieutenant of the Confederate States who lately commanded her, or, if he should have left the Cape, then to retain her until she can be handed over to some person who may have authority from Captain Semmes, of the Alabama, or from the Government of the Confederate States, to receive her.

You will receive a further communication from me on this subject by the next mail.

_The Duke of Newcastle to Sir P. Wodehouse. March 10, 1864_.

In my despatch of the 4th instant, I instructed you to restore the Tuscaloosa to the Lieutenant of the Confederate States who lately commanded her, or, if he should have left the Cape, then to retain her until she could be handed over to some person having authority from Captain Semmes, of the Alabama, or from the Government of the Confederate States, to receive her.

I have now to explain that this decision was not founded on any general principle respecting the treatment of prizes captured by the cruisers of either belligerent, but on the peculiar circumstances of the case. The Tuscaloosa was allowed to enter the port of Cape Town and to depart, the instructions of the 4th of November not having arrived at the Cape before her departure. The Captain of the Alabama was thus entitled to assume that he might equally bring her a second time into the same harbor, and it becomes unnecessary to discuss whether, on her return to the Cape, the Tuscaloosa still retained the character of a prize, or whether she had lost that character, and had assumed that of an armed tender to the Alabama, and whether that new character, if properly established and admitted, would have entitled her to the same privilege of admission which might be accorded to her captor, the Alabama.

Her Majesty's Government have, therefore, come to the opinion, founded on the special circumstances of this particular case, that the Tuscaloosa ought to be released, with a warning, however, to the Captain of the Alabama, that the ships of war of the belligerents are not to be allowed to bring prizes into British ports, and that it rests with Her Majesty's Government to decide to what vessels that character belongs.

In conclusion, I desire to assure you that neither in this despatch, nor in that of the 4th November, I have desired in any degree to censure you for the course you have pursued. The questions on which you have been called upon to decide, are questions of difficulty, on which doubts might properly have been entertained, and I am by no means surprised that the conclusions to which you were led have not, in all instances, been those which have been adopted on fuller consideration by Her Majesty's Government.

_Captain Semmes, C.S.N., to Rear-Admiral Sir B. Walker, dated C.S.S. Alabama; Table Bay, March 22, 1864_.

Sir:--I was surprised to learn upon my arrival at this port of the detention by your order of the Confederate States barque Tuscaloosa, a tender to this ship. I take it for granted that you detained her by order of the Home Government, as no other supposition is consistent with my knowledge of the candour of your character--the Tuscaloosa having been formerly received by you as a regularly commissioned tender, and no new facts appearing in the case to change your decision. Under these circumstances I shall not demand of you the restoration of that vessel, with which demand you would not have the power to comply, but will content myself with putting this my protest against this detention on the record of the case for the future consideration of our respective Governments.

Earl Russell, in reaching the decision which he has communicated to you, must surely have misapprehended the facts, otherwise I cannot conceive him capable of so misapplying the law. The facts are briefly these:--1st. The Tuscaloosa was formerly the enemy's ship Conrad, lawfully captured by me on the high seas, as a recognized belligerent; 2dly. She was duly commissioned by me as a tender to the Confederate States steamer Alabama, then, as now, under my command; and 3dly. She entered English waters not only without intention of violating Her Britannic Majesty's orders of neutrality, but was received with hospitality, and no question was raised as to her right to enter under the circumstances. These were the facts up to the time of Earl Russell's issuing to you his order in the premises. Let us consider, then, a moment, and see if we can derive from them, or any of them, just ground for the extraordinary decision to which Earl Russell has come.

My right to capture and the legality of the capture will not be denied. Nor will you deny, in your experience as a naval officer, my right to commission this, or any other ship lawfully in my possession, as a tender to my principal ship. Your admirals do this every day, on distant stations; and the tender, from the time of her being put in commission, wears a pennant, and is entitled to the immunities and privileges of a ship of war, the right of capture inclusive.