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Chapter 52:

  • 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 Pequeña, 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, [739] 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 Balwin 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 [740] 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 [741] 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 [742] 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. [743]

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.

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