CONSIDERATIONS PROPER TO BE KEPT IN VIEW BY THE ARBITRATORS IN REFERENCE TO THE CASES OF THE FLORIDA, ALABAMA, GEORGIA, AND SHENANDOAH.

PART IV. Intro

In considering the facts about to be presented to the tribunal relative to the four vessels which, after having been originally productory statement. cured from British ports, were employed as confederate cruisers in the war, it is right that the arbitrators should bear in mind the following propositions, to some of which their attention has already been directed in an earlier part of this case:

1. The powers possessed by Her Majesty's government to prohibit or prevent the fitting out, arming, or equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure with that intent of vessels specially adapted within its jurisdiction to warlike use, were powers defined and regulated by the statute or act of Parliament of July 3, 1819, (the foreign enlistment act.)

2. The modes of prevention provided by the statute were two, of which both or either might be adopted as might be deemed most expedient, namely, (1,) the prosecution of the offender by information or indictment; (2,) the seizure of the ship, which, after seizure, might be prosecuted and condemned in the same manner as for a breach of the customs or excise laws or of the laws of trade and navigation.

3. The persons empowered to seize under the provisions of the statute were any officers of customs or excise or of Her Majesty's navy, who by law were empowered to make seizures for forfeitures incurred under the laws of customs or excise, or of trade or navigation; and the seizure was to be made in the same manner as seizures are made under those laws.

4. The customs officers were not empowered by law to make a seizure until an information on oath should have been laid before them. Nor, without such an information on oath, had any magistrate jurisdiction under the provisions of the statute.

5. After a seizure made, it was by law necessary that proceedings for the condemnation of the vessel seized should be instituted in the court of exchequer and brought to trial before a jury. In order to obtain a condemnation it was necessary to prove two things:

(a.) That there had been in fact an equipping, furnishing, fitting-out, or arming of the vessel, or an attempt or endeavor so to do, or an issuing or delivery of a commission for the vessel, within the dominions of the Crown;

(b.) That the act had been done with intent, or in order, that the ves sel should be employed in belligerent operations as described in the seventh section of the statute.

6. By proof, in a British court of law, is understood the production

of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief, such as a reasonable person would be satisfied to act upon in any important concerns of his own, of the truth of the fact to be proved. And by evidence is understood the testimony, on oath, of a witness or witnesses produced in open court, and subject to cross-examination, as to facts within his or their personal knowledge. Testimony which is mere hearsay, or as to the existence of common reports, however prevalent and however generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court.

7. In the judgment of Her Britannic Majesty's government, and in that of its official advisers, the special adaptation of a vessel to warlike use was among the acts prohibited by the statute, provided there were sufficient proof of an unlawful intent, although the vessel might not be actually armed so as to be capable of immediate employment for war. But no court of law had pronounced a decision on this point, and the question was never raised before any such court until the trial of the case of the Alexandra in 1863.

Her Britannic Majesty's government now proceeds to state for the information of the tribunal the facts relative to the cases of the [52] Florida and Alabama. It may be here *remarked that when

these cases were brought to the notice of Her Majesty's government and up to the time of the departure of the Alabama from Liverpool, there had been no instance from the commencement of the war of a vessel ascertained to have been fitted out in, or dispatched from, any British port for the purpose of engaging in hostilities against the United States. The only vessel to which the attention of Her Majesty's government had been directed before the Florida had proved to be a blockade-runner.

It may be added that the claims for the interference of Her Majesty's government in the case of these and other vessels were based, according to the statement of Mr. Adams in his letter to Earl Russell, dated October 9, 1862, on evidence considered by him to "apply directly to infringements of the municipal law, and not to anything beyond it." 1

'Appendix, vol. i, p. 216.

[53]

*ᏢᎪᎡᎢ Ꮩ.

STATEMENT OF FACTS RELATIVE TO THE FLORIDA.

PART V.-The Florida.

On the 19th of February, 1862, Earl Russell received from Mr. Adams the following note and inclosure:

Mr. Adams to Earl Russell.1

LEGATION OF THE UNITED STATES,

London, February 18, 1862.

MY LORD: I have the honor to submit to your consideration the copy of an extract of a letter addressed to me by the consul of the United States at Liverpool, going to show the preparation at that port of an armed steamer evidently intended for hostile operations on the ocean. From the evidence furnished in the names of the persons stated to be concerned in her construction and outfit, I entertain little doubt that the intention is precisely that indicated in the letter of the consul, the carrying on war against the United States. The parties are the same which dispatched the Bermuda, laden with contraband of war at the time, in August last, when I had the honor of calling your lordship's attention to her position, which vessel then succeeded in running the blockade, and which now appears to be about again to depart on a like errand.

Should further evidence to sustain the allegations respecting the Oreto be held necessary to effect the object of securing the interposition of Her Majesty's government, I will make an effort to procure it in a more formal manner.

I have, &c.,
(Signed)

[Inclosure.]

CHARLES FRANCIS ADAMS.

Mr. Dudley to Mr. Adams.

UNITED STATES CONSULATE,

Liverpool, February 17, 1862. SIR: The gun-boat Oreto is still at this port. She is making a trial trip in the river to-day. No armament as yet on board. She has put up a second smoke-stack since I wrote you. She therefore has two funnels, three masts, and is bark-rigged. I am now informed that she is to carry eight rifled cannon, and two long swivel-guns on pivots so arranged to rake both fore and aft. No pains or expense has been spared in her construction, and when fully armed she will be a formidable and dangerous craft. In strength and armament quite equal to the Tuscarora; so I should judge from what I learn.

Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co., and that they own the vessel. I have obtained information from many different sources, all of which goes to show that she is intended for the southern confederacy. I am satisfied that this is the case. She is ready to take her arms on board. I cannot learn whether they are to be shipped here or at some other port. Of course she is intended as a privateer. When she sails, it will be to burn and destroy whatever she meets with bearing the American flag.

The Herald sailed for Charleston on Saturday last; Captain Coxeter went out in her. The Bermuda will sail this week.

I have, &c.,
(Signed)

H. DUDLEY, United States Consul.

1 Appendix, vol. i, p. 1.

P. S.-The gun-carriages for the Oreto, I have just learned, were taken on board on Friday night last, in a rough state, and taken down into the hold. Fraser, Trenholm & Co. have made advances to Fawcett, Preston & Co., and Miller, the builder.

H. D.

A fortnight before the date of Mr. Adams's letter, Mr. Dudley, in writing to Mr. Seward, had mentioned the Oreto. He then said, "In my last two dispatches I called attention to the iron-screw steam gunboat Oreto or Oretis, being built at Liverpool, and fitted out by Fawcett, Preston & Co. She is now taking in her coal, and appearances indicate that she will leave here the latter part of this week with her armament. The probabilities are she will run into some small port and take it and ammunition on board. This of itself is somewhat suspicious. They pretend she is built for the Italian government, but the Italian consul here informs me that he knows nothing about it, and has no knowledge whatever of any vessel being built for his government. There is much secrecy observed about her, and I have been unable to get anything definite, but my impressions are strong that she is intended for the southern confederacy. I have communicated my impressions and all the facts to Mr. Adams, our minister in London. She has [54] one funnel, three masts, bark-rigged, eight port-holes for guns on each side, and is to carry sixteen guns."

Mr. Adams had not, previously to his note of the 18th, made any communication respecting this vessel to Her Majesty's government. Immediately on the receipt of Mr. Adams's note and inclosure, copies of both were sent to the secretary to the treasury, accompanied by the following letter signed by Mr. Hammond, one of the under secretaries of state for foreign affairs:

FOREIGN OFFICE, February 19, 1862.

SIR: I am directed by Earl Russell to transmit to you a copy of a letter from Mr. Adams, inclosing an extract of a letter from the United States consul at Liverpool, in which he calls attention to a steam-vessel called the Oreto, reported to be fitting out at Liverpool as a southern privateer; and I am to request that you will move the lords commissioners of Her Majesty's treasury to cause immediate inquiries to be made respecting this vessel, and to take such steps in the matter as may be right and proper.

I am, &c.,
(Signed)

E. HAMMOND.

Earl Russell on the same day acknowledged the receipt of Mr. Adams's note and inclosure, and stated (as the fact was) that he had lost no time in communicating with the proper department of government on the subject.

The commissioners of customs were instructed to inquire and report upon the matter; and on the 24th of February, 1871, the secretary to the treasury transmitted to Mr. Hammond their report, which was as follows:1

CUSTOM-HOUSE, February 22, 1862.

Your lordships having referred to us the annexed letter from Mr. Hammond, transmitting, by desire of Earl Russell, copy of a letter from Mr. Adams, inclosing an extract of a communication from the United States consul at Liverpool, in which he calls attention to a steam-vessel called the Oreto, reported to be fitting out at Liverpool as a southern privateer, and requesting that immediate inquiries may be made respecting this vessel,

We report

That, on the receipt of your lordships' reference, we forthwith instructed our collector at Liverpool to make inquiries in regard to the vessel Oreto, and it appears from his report that she has been built by Messrs. Miller & Sons for Messrs. Fawcett, Preston & Co., engineers, of Liverpool, and is intended for the use of Messrs. Thomas Brothers, of Palermo, one of that firm having frequently visited the vessel during the process of building.

The Oreto is pierced for four guns; but she has as yet taken nothing on board but coals and ballast. She is not, at present, fitted for the reception of guns, nor are the builders aware that she is to be supplied with guns while she remains in this country. The expense of her construction has been paid, and she has been handed over to Messrs. Fawcett & Preston. Messrs. Miller & Sons state their belief that her destination is Palermo, as they have been requested to recommend a master to take her to that port, and our collector at Liverpool states that he has every reason to believe that the vessel is for the Italian government.

We beg further to add that special directions have been given to the officers at Liverpool to watch the movements of the vessel, and that we will not fail to report forthwith any circumstance which may occur worthy of your lordships' cognizance. (Signed) THO. F. FREMANTLE. GRENVILLE C. L. BERKELEY.

The reports which the commissioners of customs had received from their officers at Liverpool were as follows:1

Mr. Edwards to the commissioners of customs.

LIVERPOOL, February 21, 1862. HONORABLE SIRS: The builders of the vessel Oreto are Messrs. Miller & Sons. Mr. Miller is the chief surveyor for tonnage. By their note inclosed, the vessel is correctly described, and I have every reason to believe that she is for the Italian government, and not for the confederates.

It will be seen by the note of the surveyor, Mr. Morgan, which I annex, that as yet she has nothing in her, so that the information furnished to the government is, so far, incorrect.

Special directions have been given to the officers to observe the movements of the vessel, so that whatever takes place can be made known to the board at any time. Respectfully, &c., (Signed)

S. PRICE EDWARDS.

Mr. Miller to Mr. Edwards.

LIVERPOOL, February 21, 1862.

SIR: We have built the dispatch-vessel Oreto for Messrs. Fawcett, Preston & Co., engineers, of this town, who are the agents of Messrs. Thomas Brothers, of Palermo, for whose use the vessel, we understand, has been built. She is pierced for four guns; she has taken nothing whatever on board except coals and ballast; she is in no [55] way fitted for the reception of guns, as yet; nor do we know that she is to have guns while in England. Mr. Thomas, of the firm at Palermo, frequently visited the ship while she was being built.

We have handed her over to the engineers, and have been paid for her.

According

to the best of my information the present destination of the vessel is Palermo; and we have been asked to recommend a master to take her out to Palermo.

I remain, &c.,
(Signed)

Mr. Morgan to Mr. Edwards.

T. MILLER.

February 21, 1862.

SIR: I beg to state that I have inspected the Oreto, now lying in Toxteth Dock, agreeably with your directions issued to-day.

She is a splendid steamer, suitable for a dispatch-boat; pierced for guns, but has not any on board, nor are there any gun-carriages. Coals and ballast are all that the holds contain.

Respectfully, &c.,
(Signed)

C. MORGAN, Collector.

A copy of the report of the commissioners of customs was sent on the 26th February by Earl Russell to Mr. Adams.

Her Britannic Majesty's minister at Turin was directed to inquire whether the vessel was intended for the use of the Italian government; and, on the 1st March, 1862, he telegraphed as follows: "Ricasoli tells me that he has no knowledge whatever of the ship Oreto, but will cause inquiry to be made.”

'Appendix, vol. i, p. 159.

2 Ibid., p. 3.