I shall take care to submit this question to Her Majesty's Government by the next mail, but in the meantime I conclude that your Excellency will be prepared to act on the opinion of the Attorney-General in respect to any vessels which may enter these ports in the character of prizes converted into ships of war by the officers of the navy of the Confederate States.
Extracts from "Wheaton's Elements of International Law."
What constitutes a setting forth as a vessel of war has been determined by the British Courts of Prize, in cases arising under the clause of the Act of Parliament, which may serve for the interpretation of our own law, as the provisions are the same in both. Thus it has been settled that where a ship was originally armed for the Slave Trade, and after capture an additional number of men were put on board, but there was no commission of war and no additional arming, it was not a setting forth as a vessel of war under the Act. But a commission of war is decisive if there be guns on board; and where the vessel after the capture has been fitted out as a privateer, it is conclusive against her, although, when recaptured, she is navigating as a mere merchant-ship; for where the former character of a captured vessel had been obliterated by her conversion into a ship of war, the Legislature meant to look no further, but considered the title of the former owner forever extinguished. Where it appeared that the vessel had been engaged in a military service of the enemy, under the direction of his Minister of the Marine, it was held as a sufficient proof of a setting forth as a vessel of war; so where the vessel is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ it, although it be not regularly commissioned. But the mere employment in the enemy's military service is not sufficient; but if there be a fair semblance of authority, in the person directing the vessel to be so employed, and nothing upon the face of the proceedings to invalidate it, the Court will presume that he is duly authorized; and the commander of a single ship may be presumed to be vested with this authority as commander of a squadron.
Rear-Admiral Sir B. Walker to Governor Sir P. Wodehouse. August 8, 1863.
I have the honour to acknowledge the receipt of your Excellency's letter of this day's date, covering the written opinion of the Acting Attorney-General of this Colony as to the legality of the so-called tender to the Confederate States armed ship Alabama, and for which I beg to express my thanks.
The vessel in question, now called the Tuscaloosa, arrived here this evening, and the boarding officer from my flag-ship obtained the following information:
That she is a barque of 500 tons, with two small rifled 12 pounder guns and ten men, and was captured by the Alabama on the 21st June last, off the coast of Brazil: cargo of wool still on board.
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 of 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 services other than those of a slight defence.