Chap. XV

Out of the capture of the Conrad, and the use afterwards made of that vessel by her captor, arose another question, of some interest in itself, though circumstances rendered it practically unimportant. The Conrad, a sailing barque of 500 tons, had fallen into Captain Semmes's hands in the latitude of the Canaries, soon after he left Brazil. Judging her fit for employment in the predatory warfare in which he was himself engaged, he had removed her crew, put aboard of her a lieutenant, three inferior officers, and ten men, armed her with two brass rifled 12-pounders which he had taken out of a former prize, christened her the Tuscaloosa, commissioned her "as a tender," and sent her cruising, with orders to meet him at the Cape of Good Hope. This occurred in June. The two vessels rejoined one another at the end of six weeks, in Saldanha Bay, the Tuscaloosa having in the meanwhile taken a prize; and the latter proceeded to Simon's Bay, the naval station of the Cape Colony, followed by the Alabama herself three days afterwards.

make any compensation to the widow, under these circumstances, for the act of its officer.

It may here be mentioned that the capture of the Sea Bride was alleged by the United States' Consul to have been made within British waters, and he urged that, having regard to the increased range of modern artillery, the old limit of three miles from shore ought to be held obsolete. This limit, however, though it has become little better than arbitrary, has not yet been abandoned; and the evidence clearly proved that the Sea Bride was in fact captured more than four miles from land, and outside of Table Bay.

It was further alleged that she had been brought within the limit after capture, and ought on this ground to be restored. She had, as it appeared, been suffered to drift within two miles of the shore by the inadvertence of the officer in charge of her, who carried her out again as soon as he discovered his mistake. The Governor regarded this -rightly, as I think, though his decision was questioned by the authorities at home-as an act which might be atoned for by an explanation, and did not warrant the seizure of the ship; and it is probable that the United States' Consul would have been of the same opinion had the capturing vessel been the Vanderbilt and the captured vessel the Alabama.

The appearance of a barque laden with wool and Chap. XV. hides, with a crew only sufficient to navigate her and a couple of small guns for her whole armament, and calling herself a ship-of-war, seems to have caused lively dissatisfaction to Sir Baldwin Walker, the English Admiral on the station; and he stated his opinion with some earnestness to Governor Wodehouse :

"The admission of this vessel into port will, I fear, open the door for numbers of vessels, captured under similar circumstances, being denominated tenders, with a view to avoid the prohibition contained in the Queen's instructions; and I would observe that the vessel Sea Bride, captured by the Alabama off Table Bay a few days since, or all other prizes, might be in like manner styled tenders, making the prohibition entirely null and void.

"I apprehend that to bring a captured vessel under the denomination of a vessel-of-war, she must be fitted for warlike purposes, and not merely have a few men and two small guns put on board her (in fact, . nothing but a prize crew) in order to disguise her real character as a prize.

"Now this vessel has her original cargo of wool still on board, which cannot be required for warlike purposes, and her armament and the number of her crew are quite insufficient for any service other than those of slight defence.

"Viewing all the circumstances of the case, they afford room for the supposition that the vessel is styled a 'tender' with the object of avoiding the prohibition against her entrance as a prize into our ports, where, if the captors wished, arrangements could be made for the disposal of her valuable cargo, the transhipment of which, your Excellency will not fail to see, might be readily effected on any part of the coast beyond the limits of this Colony.

"My sole object in calling your Excellency's attention to the case is to avoid any breach of strict neutrality."

The Governor, acting on the opinion of his responsible legal adviser, resolved on admitting the Tuscaloosa.

In reporting this decision to the Secretary of State for the Colonies, he asked to be instructed on another question, which appeared likely to arise, if indeed it had not already arisen :

"Before closing this despatch I wish particularly to request instructions on a point touched on in the letter from the United States' Consul of the 17th instant, viz., the steps which should be taken here

Chap. XV. in the event of the cargo of any vessel captured by one of the belligerents being taken out of the prize at sea, and brought into one of our ports in a British or other neutral vessel.

"Both belligerents are strictly interdicted from bringing their prizes into British ports by Earl Russell's letter to the Lords of the Admiralty of the 1st June, 1861, and I conceive that a Colonial Government would be justified in enforcing compliance with that order by any means at its command, and by the exercise of force if it should be required.

"But that letter refers only to 'prizes,' that is, I conceive, to the ships themselves, and makes no mention of the cargoes they may contain. Practically the prohibition has been taken to extend to the cargoes; and I gathered from a conversation with Captain Semmes on the subject of our neutrality regulations, that he considered himself debarred from disposing of them, and was thus driven to the destruction of all that he took. But I confess that I am unable to discover by what legal means I could prevent the introduction into our ports of captured property purchased at sea, and tendered for entry at the Custom-house in the usual form from a neutral ship. I have consulted the Acting Attorney-General on the subject, and he is not prepared to state that the Customs authorities would be justified in making a seizure under such circumstances; and therefore, as there is great probability of clandestine attempts being made to introduce cargoes of this description, I shall be glad to be favoured with the earliest practicable intimation of the views of Her Majesty's Government on the subject."

Sir Philip Wodehouse's decision was not approved by the Home Government. The Duke of Newcastle was advised that the Tuscaloosa "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, 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." As to the cargoes of captured vessels, the Governor was instructed that the Queen's Orders "apply as much to prize cargoes of any kind, which may be brought by any armed ships of either belligerent into British waters, as to the captured vessels themselves, They do not, however, apply to articles which may have formed part of any such cargoes, if brought within British

jurisdiction, not by armed ships or privateers of either Chap. XV. belligerent, but by other persons who may have acquired

or may claim property in them by reason of any dealings with the captors.

The departure of the Tuscaloosa, early in August, for a cruise on the coast of Brazil, had relieved the Governor from further trouble on her account. But with her return, five months afterwards, the question revived. She was then seized by Rear-Admiral Walker, with the concurrence of the Governor, who believed-and was perhaps warranted in believing-that his instructions left him no choice. She had at that time on board six small guns, four officers (all commissioned in writing to the ship by Captain Semmes), and twenty men, and continued to style herself "tender to the Alabama." The lieutenant commanding her protested warmly against this treatment. His vessel had been received, he said, when she was previously in Simon's Bay, as a commissioned ship-of-war; and when she left, as was well known, for a cruise on active servic; no intimation had been conveyed to him that she would on her return be regarded as a "prize" and liable to seizure. Nothing had occurred in the meantime to deprive her of the character in which she had been originally recognized; and having received no notice or warning of any kind, he had a right to expect to be permitted to enter without molestation. This remonstrance had so much reason in it that Governor Wodehouse was directed, "on the special circumstances of the case, to restore the vessel." The order, however, came too late. The Tuscaloosa's officers had left the Colony, and she remained in the hands of the local authorities until the end of the war, when she passed into the possession of the Government of the United States.

This train of circumstances appears to have given occasion to the Circular Instructions of 2nd June, 1864,1 which provided, more or less effectually, for the various See above, p. 140.

Chap. XV. questions which had arisen. These instructions excepted from the operation of the Order excluding prizes, any vessel "which shall have been actually and bona fide converted into and used as a public vessel-of-war." In all doubtful cases of this kind the substantial question is, whether the vessel is armed for war and is commissioned as a public ship by a competent public authority. If she be not commissioned as well as armed, her previous character remains unchanged, and she has no claim to any of the immunities of a public ship; if she be, satisfaction for any irregularities committed in fitting her out, or of which she may have been made the instrument, ought to be sought from the Government which has become responsible for her, by incorporating her into its navy. It is not, I conceive, to be assumed that, by virtue of any universal custom, captains of men-of-war may commission vessels as "tenders," and thus invest them with the character of public ships: such an authority, where it exists, is a delegated authority derived from the Sovereign, and granted either expressly or by the established rules of a particular naval service; and there are good reasons why it should not be general and unlimited.1 The Confederate officers appear to have used this power, or assumed power, very freely. The Florida, in the course of a few weeks, converted two of her prizes into "tenders," each of which did considerable mischief. That

1 See the observations of Sir C. Robinson in he Donna Barbara (Haggard's Admiralty Reports, iii, 366). Authority for the employment of tenders, it was there laid down, is given by the Admiralty, by means of official letters sanctioning the purchase or use of such vessels, and it is granted only for a limited number, with reference to the service on which the ship is employed, the number of her crew, and other considerations of a public nature, on which the fitness and expediency of such a measure must depend.

"It should be left to the State," said Lord Stowell, in reference to the same subject, "to judge of the extent and the mode of hostility that is to be exercised."-The Melomanie, Rob. v, 40.

2 See the account of her cruise in Moore's Rebellion Record, vol. vii, p. 458 (Documents).