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Russell as early as the 15th of August, 1861, was "well known to consist in part of Americans in sympathy with the insurgents of the United States." In point of fact, only one of the partners resided in Liverpool, and he was a native of South Carolina, who, on the 13th of June, 1863, applied to Her Majesty's government for a certificate of naturalization. The other members of the firm were at the time actual residents of the State of South Carolina. One of them, afterward the Secretary of the Treasury of the insurgents, was, on the 5th of August, 1861, (as appears by the public records in the office of the Registrar of Shipping at Liverpool,) authorized by a "certificate of sale," from her owner in Liverpool, to sell the ship Bermuda at any place out of the United Kingdom. This certificate of sale also described him as "of Charleston, in the State of South Carolina," one of the ports at the time closed by the blockade of the United States.3 It was upon the occasion of a complaint by Mr. Adams as to this very vessel that he communicated to Earl Russell the relations of this firm with the insurgents.

The builders stated that Fawcett, Preston & Co. contracted with them for the building, and the records showed that they were the "managing owners," directing the preparations for her departure after Mr. Adams's complaints had been made known. No inquiry had been made of them. Mr. Adams stated she had been paid for by Frazer, Trenholm & Co. Her builders stated they had been paid, but omitted to say by whom.

In fact no inquiry suggested by Mr. Adams had been made, and, although he had been assured that the movements of the vessel "should be watched," no single thing appears to have been done by any officer of the Government at the port of Liverpool after the reports of the 21st of February, or at London after the telegram of Earl Russell to the Minister at Turin on the 26th, until the vessel had been permitted to sail under a clearance granted in the face of so many attending circumstances of suspicion.

On page 55 of the British Case, after a recapitulation of the facts which had been developed up to the 1st of March, it is said, "No further information could be obtained by Mr. Adams or was received by Her Majesty's Government up to the time of the sailing of the ship." Mr. Adams had not been called upon to act further, and he had been assured that "special directions had been given to the officers at Liverpool to watch the movements of the vessel."

Negligence of Brit

It may be literally true that no other information had been received by Her Majesty's Government. The officers at Liverpool seem to have taken their "special directions" literally, and ish officials. watched only the "movements of the vessel," but the United States submits that if Her Majesty's Government did not receive further information, it was because it failed to use the means within its power to become better informed. It had been put upon inquiry, and was negli gent if it did not act.

What might it have done? On the 3d of March the vessel became a "registered British vessel," and subject to the laws in force in the kingdom for the government and control of such vessels. Her ostensible owner was a British subject residing at Liverpool. Her "managing owners" were "a firm carrying on an extensive trade at Liverpool." Frazer, Trenholm & Co. had a business office at Liverpool, and at least one of the partners (Prioleau) resided there.5

1 Brit. App., vol. ii, p. 133.
Brit. App., vol. v, p. 202.

3 Brit. App., vol. ii, p. 136.
4 Brit. Case, p. 75.
"Brit. App., vol. v, p. 202.

*

been done under the merchant's shipping

act.

The Merchant Shipping Act, 1854, under which the vessel was regisWhat might have tered, provided' that "if any unqualified person * acquires, as owner, any interest, either legal or beneficial, in a ship using a British flag and assuming the British character, such interest shall be forfeited to Her Majesty," and "if any person on behalf of himself or any other person or body of persons, wilfully makes a false declaration touching the qualification of himself or such other person or body of persons to own British ships, or any shares therein, the declarant shall be guilty of a misdemeanor, and the ship or share in respect of which such declaration is made, if the same has not been forfeited under the foregoing provision, shall, to the extent of the interest therein of the person making the declaration, * *be forfeited to Her Majesty."

The same Act provides that "the Board of Trade" (one of the departments of Her Majesty's Government) 3 may, from time to time, whenever it seems expedient to them so to do, appoint any person as an inspector, to report to them upon the following matter, that is to say: *

"2. Whether the provisions of this Act or any regulations made under or by virtue of this Act have been complied with." And by section 15, "every such inspector as aforesaid shall have the following powers, that is to say:

**

*

"3. He may, by summons under his hand, require the attendance of all such persons as he thinks fit to call before him and examine for such purpose, and may require answers or returns to any inquiries he thinks fit to make.

"4. He may require and enforce the production of all books, papers, or documents which he considers important for such purpose.

"5. He may administer oaths, or may, in lieu of requiring or administering an oath, require every person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination." 4

*

This was machinery in the hands and under the control of the officers of Her Majesty's Government. It could not be managed or controlled by any of the officers of the Government of the United States. Here certainly were circumstances brought to the knowledge of the officers of Her Majesty sufficient to create at least a strong suspicion that some of the provisions of the Merchant Shipping Act had been violated, and an inspector might with propriety have been appointed and an inquiry instituted by him.

The builders, Fawcett, Preston & Co., Frazer, Trenholm & Co., and Thomas, if necessary, might have been called to give information; and, if called, Prioleau (one of the firm of Frazer, Trenholm & Co.) would have been compelled to state, as he did subsequently state under oath,5 that the contract for the building was made with Fawcett, Preston & Co. by James D. Bullock, who acted in England as the "agent of the Navy Department" of the insurgents; and that she was paid for through Frazer, Trenholm & Co., who were at the time the "financial agents" of the insurgents in Liverpool. He would also undoubtedly have been compelled to state (as did Mr. George D. Harris, of the firm of H. Adderly & Co., afterward on the trial before the Vice-Admiralty Court at Nassau) that his firm at Liverpool consigned her, on her departure

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from that port, to the firm of H. Adderly & Co. at Nassau; and in accordance with facts which have been subsequently developed, he must have been compelled to testify that, at the time of her registry she was in fact owned by the insurgent government, and was about to sail from Liverpool for its use.

Fawcett, Preston & Co. would have been compelled to testify thatthey contracted with Bullock for the construction of the vessel; that they did not, in their contract with Miller & Sons, act as the agents of Thomas Brothers; and that she was not intended for the Italian Government, but for the insurgents. They would also have been compelled to testify that at the very time they had themselves completed her armament, and were shipping it upon the Bahama (a vessel placed at the disposal of the agents of the insurgents for that purpose by Frazer, Trenholm & Co.) for transfer at Nassau, or some other port that might be agreed upon.2

Upon this information being thus obtained, Mr. Edwards, the Collector, would readily call to his mind the fact that, as early as the 4th of July, 1861, the Acting Consul of the United States at Liverpool had addressed him by letter as follows: "From information I have received, I have reason to believe that a person named Bullock has come to Eng. land for the purpose of procuring vessels to be fitted as privateers to cruise against the commerce of the United States, and that he will make Liverpool the scene of his operations."3

It is true, as is said in the British Counter-Case, that in a court of justice in Great Britain, and, probably, before this tribunal instituted under the Merchant Shipping Act, a witness cannot be compelled to answer any question which would expose him to a penalty or to a prosecution for an offense against the law; but it is just as true that this is a privilege personal to the witness himself, and that the Government need not refrain from calling upon one of its subjects to testify, because he might elect to avail himself of such a privilege.

In view of these facts the United States ask the attention of the Arbitrators to the following statement in the Counter-Case of Her Majesty's Government: "In truth, these open and notorious facts do not appear to have been discovered till long afterward, even by the industrious researches of the Government and subordinate officers of the United States." The arbitrators will look in vain for any evidence of “industrious researches" by the Government or subordinate officers of Great Britain. A builder who knew nothing was inquired of and he gave his "understanding." A Collector expressed his "belief," and there the "researches" ended.

Again, on page 75 of the British Counter Case is this statement:

*

What the Government did on receiving Mr. Adams's representations is stated in the British Case. Inquiry was instantly directed, but no information whatever could be obtained tending to connect the vessel in any way with the Confederate States. She was declared by the builder to be ordered for a firm in Palermo, a member of which was registered on his own declaration as her sole owner, and had frequently visited her when building. * Her first destination, as stated in her clearance, was Palermo, and her crew were nominally (aud, as they evidently believed, really) hired for a mercantile voyage. On the one hand were the positive statements of the builder, the registered owner, and the Collector of Customs; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass sooner or later into the hands of the Confederate Government.

1 British App., vol. i, p. 178.

2 Letter from Major Huse to Gorgas, March 15, 1862, Am. App., vol. vi, p. 69.
3 Am. App., vol. vii, p. 72.

Brit. C. Case, p. 74.

Inquiry was indeed instituted on the 19th of February, but it stopped on the 26th, and was never directed to the sources of suspicion indicated by Mr. Dudley. In fact, on the 26th of February every officer of Her Majesty's Government, that the United States were assured would be on the "watch," appears to have closed his eyes and to have left the vessel and her owners entirely to themselves.

On the 28th of April the Oreto arrived at Nassau. She was still a British ship, with a British registry, under the British flag, Arrival at Nassan. and in a British port.

On the 30th of April Commander

Conduct of British

McKillop, in his report to the Admiralty, says she is "under the English flag." Goverofficials there. nor Bayley, in his letter to Commander McKillop, on the 3d of June, says: She is a registered British vessel and carries the British flag," ," and Commander Hickley, on the 15th of June, in his letter to the Governor, refers to her as "a vessel under British colors.” 3

As has been already seen, she was then evidently a vessel of war, and specially adapted to warlike purposes.

Her Majesty's Government, at this time, certainly had reasonable grounds to believe she was intended to cruise and carry on war against the United States.

On the 9th of May Governor Bayley indorsed on a letter to him of that date from Mr. Whiting, the Consul of the United States, the following statement: "For coupling that fact with the description given me by the Captain of H. M. ship Bull-dog, of the build of the Oreto, I cannot fail to infer that she is a vessel of war intended to act against the United States." On the same day he caused a letter to the same effect to be addressed to H. Adderly & Co.

And again on the 21st of June, in his report to the Duke of Newcas tle, he says: "Throughout these occurrences I was averse from proceeding to extremities. Not that I considered the conduct of the Oreto to be entirely free from suspicion, or indeed from discourtesy to a neutral government." How was Great Britain neutral to the Oreto, a British ship, under British colors? And in the same letter, he says Commander Hickley informed him "her real destination was openly talked of.”3 Again, "Her Majesty's Government is informed and believes that during the blockade of the insurgent States it was a common practice for ships leaving the port of Nassau, with the intention of endeavoring to run their cargoes into the blockaded ports, to clear for St. John's, New Brunswick." "Early in the month of June, 1862," (about the 4th,)" the consignees of the vessel, who were a mere mercantile firm at Nassau, applied to the Receiver-General (the proper officer for that purpose) for permission to load her for an outward voyage to St. John's, New Brunswick." 10 At this time she was, according to the opinion of Commander McKillop, "not capable of taking in any cargo, having no sfowage." On the 9th she commenced taking in a cargo of "arms and ammunition, including some boxes of shells," (not likely to be of much use at St. John's,) but, being visited by Commander Hickley, discharged her cargo and cleared for Havana in ballast."1

At Nassau, then, the Government certainly not only had reasonable Want of due dili- grounds to believe, but actually did believe, that she was intended to cruise against the United States.

gence.

1 Brit. App., vol. i, p. 11.

2 Ibid., p. 18.

3 Ibid., p. 24.

4 Brit. Case, p. 61.

Brit. App. Counter Case, vol. v, p. 35.

6 Brit. App., vol. i, p. 15.

7 Brit. App., vol. 1, p. 13.

8 Ibid.

9 Brit. Case, p. 63.

10 Ibid.

11 Ibid., p. 63.

Under the Rules of the Treaty, Her Majesty's Government was bound to use "due diligence" to detain the vessel at Nassau, as well as at Liverpool. This was not done, but she was permitted to clear for St. John's,' when that was equivalent, according to the practice which prevailed at that port, to a clearance for the insurgent States.

But it is claimed by Her Majesty's Government "that the Florida was seized while at Nassau, on charge of a violation of the Foreign-Enlistment Act; that proceedings were, by the Governor's direction, instituted in the proper court, with a view to her condemnation, and that after a regular trial she was ultimately released by a judicial sentence." 2

It is also said, on p. 78 of the British Counter Case, that the ViceAdmiralty Court" was a Court of competent jurisdiction; the Judical proceedauthorities of the Colony were bound to pay obedience to its ings at Nassut. decree; and, as soon as it was pronounced the persons claiming the possession of the vessel were entitled to have her immediately released."

As between the claimants of the vessel and Her Majesty's Government seeking to enforce a forfeiture under the provisions of the ForeignEnlistment Act, this decree may have been conclusive; but as between the United States and Her Majesty's Government, it has not that effect. The duty of Her Majesty's Government was to use due diligence to prevent the departure of the vessel, because she had been specially adapted to warlike use within its jurisdiction, and was intended to cruise and carry on war against the United States.

She was proceeded against on the sole ground that an attempt had been made to equip, furnish, and fit her out within the jurisdiction of the Bahamas.3 This is in terms admitted by Attorney-General Anderson in his defense as published in the Counter Case. The judge, in announcing his opinion, says: "Now, to support the libel it is necessary that proof should be given, first, that the aforesaid parties, having charge of the Oreto, while the vessel was within the jurisdiction of the Vice-Admiralty Court of the Bahamas, attempted to equip, furnish, and fit her out as a vessel of war." 5 And again, on page 43 he says: "With respect to acts which were done, or circumstances which occurred on board the Oreto before she came within the jurisdiction of the Bahamas Vice Admiralty Court, it is admitted, and is clear, that the Court has no authority to adjudicate." And again, on the same page: "Captain Hickley's evidence as to the construction and fittings of the vessel I should consider conclusive, even had there been no other; but that construction and those fittings were not made here, but in England, and of whatever nature they may be, do not subject the vessel to forfeiture here."

The pleadings and the proof showed conclusively that the vessel had been specially adapted to warlike use at Liverpool, and that she was still with a British Registry under the British flag; but in the opinion of the judge, the proof did not show that any act had been done within the jurisdiction of his Court for which he was authorized to decree a forfeiture to Her Majesty.

This decree, therefore, does not operate as a defense to the claim now made against Her Majesty's Government by the United States.

But the United States, on page 343 of their Case, have gone further than this, and said: "If it had been predetermined that the Oreto should be released by going through the form of a trial under the Foreign-Enlistment Act, the steps could not have been better directed for

Brit. App., vol. i, p. 58. - British Counter Case, p. 76. Brit. App., vol. 1, p. 68.

British Counter Case, p. 77.

5 Brit. App., vol. i, p. 39.

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