that purpose." To this the Attorney General of the Colony has been permitted, through the British Counter Case, to make his response that, "this charge is wholly unfounded. Under the circular dispatch of the 15th November, already referred to, the responsibility of initiating proceedings under the Foreign Enlistment Act was placed, and properly so, on the Attorney General of the Colony, and that officer had necessa rily to be cautious in advising the institution of proceedings, which, if ultimately unsuccessful, might eventuate in rendering the seizors liable to heavy damages.1 It will be observed the Attorney General does not deny, but on the contrary admits, that he was, during all the time the Oreto was at Nas sau, the "confidential counsel of Adderly & Co.," and that in a speech made in a trial in another court, which took place after the Oreto was libelled and before the decree was rendered, he said that "the Union of the United States was a myth now fully exploded." 19 2 He thinks he did not use the words "Yankee fiction," as "the use of words of the sort is not the style of language I am accustomed to adopt," but he admits that he "may have used language embodying the expression of an opinion, which I certainly then entertained, that the Union which the flag was intended to represent had, as far as related to the Southern portion of North America, passed away."3 Neither is it denied that Harris, one of the firm of Adderly & Co., consignees of the vessel, was one of the Executive Council of the Government of the Colony,* or that A. J. Adderly, another partner in the firm, was a member of the Assem bly.5 Her Majesty's Government admits in its Case, and repeats in its Counter Case, that "in a proceeding in rem against a ship, to enforce a forfeiture for an alleged infringement of a Statute, a Court, wherever locally situate within the dominions of the Crown, might lawfully receive and adjudicate upon evidence of such infringement wherever the act or acts constituting it might have been committed." The theory, then, on which the Attorney General founded and conducted his case before the Vice Admiralty Court was erroneous. A vessel specially adapted to warlike use in Liverpool might have been condemned on that cause of forfeiture in the Bahamas, but the Oreto was released. The Attorney General, who conducted the proceedings, was also confidential counsel of Adderly & Co., when the vessel arrived at Nassau on the 28th of April, consigned to their care. One Heyliger, an agent specially detailed by the insurgents to look after their interests at Nassau, directed her to proceed to Cochrane's anchorage, "there being no Confederate naval officer to take charge of her for the present." 10 She was, however, on that day entered at the Custom House at Nassau in ballast. On the 19th of May the Consul of the United States wrote to the Governor of the Colony that it was "believed, and so reported by many residents here, that she is being prepared and fitted out as a confederate privateer." 12 11 The Governor directed an immediate report from the Receiver General 1 British Counter Case, p. 77; Brit. App. Counter Case, vol. v, pp. 19, 25. 2 American Case, page 344. 3 British App., Counter Case, vol. v, p. 25. 4 American App., vol. vi, p. 237. 8 Testimony of Harris, British App., Counter Case, vol. 9 Benjamin to Maffitt, American App., vol. vi, p. 57. 10 Heyliger to Randolph, American App., vol. vi, p. 77. British Case, p. 61. 5 Ibid. 1 the colonial authoris as to the truth of these allegations, and he, on the same Partial and unday, reported: "She did not enter the harbor, and now lies friendly conduct of at Cochrane's anchorage, and I have no information as to her future proceedings." On the same day the Attorney General was called upon for his opinion, and he reported as follows: "With respect to the Oreto, the Consul's allegation is to the effect that it is believed and reported by many residents here that she is being prepared and fitted out where she now lies at Cochrane's anchorage, which is within the limits of the port of Nassau, as a Confederate privateer. Now if such is the fact, an offense against the Foreign Enlistment Act has been committed, all parties implicated in which are liable to be criminally proceeded against for misdemeanor, and the vessel may be seized by any naval or revenue officer; but to justify proceedings either against the parties or the vessel, the matter must not rest on repute or belief alone, but the authorities must have positive facts to ground their proceedings on, and unless the Consul can adduce such, or they can be obtained through other channels, no steps can be taken either for the arrest of the vessel or those on board of her." 2 On the same day the Governor caused a note to be sent by the Colonial Secretary to Adderly & Co., as follows: "I am directed by the Governor to notify to you, that if you are arming or putting arms on board the steamer Oreto, His Excellency will enforce the rules laid down in theQueen's Proclamation, for, coupling that fact with the description given to his excellency by the captain of Her Majesty's ship Bulldog of the build of the Oreto, His Excellency cannot fail to infer that she is a vessel of war intended to act against the United States; and as Her Majesty's Government have expressed their deliberate intention of observing and preserving neutrality in the Queen's possessions, His Excellency will use his strongest efforts to prevent either of the belligerent powers from arming or equipping vessels of war in this port."3 To this, upon the next day, Adderly & Co. wrote in reply: "We beg to acknowledge receipt of your communication of yesterday's date informing us that, if we were arming or putting arms on board of the steamer Oreto, His Excellency would enfore the rules laid down in the Queen's Proclamation. In reply, we beg to state, for the information of His Excellency, the Governor, that we have neither attempted to arm or put arms on board of the British steamer Oreto, consigned to our firm, nor are we aware of there being any intention on the part of the owners to arm that vessel."4 On the trial before the Judge of the Vice Admiralty Court, Harris, one of the firm, and, as has been seen, a member of the Executive Council, testified: "I to'd Captain Duguid, very shortly after he arrived here, that they were talking a good deal about the hull of his vessel; mind, do nothing that will have the appearance of equipping." 5 Here it may not be improper to call the attention of the Arbitrators to a letter from Heyliger, the agent of the insurgents, to their Secretary of War, under the 2d of May, in what he says; "You are aware that she is a gunboat. * * * The Bahama is expected every moment with her armament, and I shall have it speedily transferred, though the matter will have to be delicately managed." The Bahama did afterwards arrive. The United States are unable to give the date of her arrival, but she first appeared at Cochrane's Anchorage, near the Oreto, without any 6 4 Brit. App., vol. vi, p. 16. Brit. App., Counter Case, vol. v, p. 42. 6 Am.App., vol. vi, p. 234. entry at the Custom-House or any Custom-House Officers on board.' On the 26th the Receiver General advised the Colonial Secretary that he had "every reason to believe the consignees of the British steamer Oreto (which vessel arrived from Liverpool in ballast) intend shipping large quantities of arms, and munition of war as cargo. Probably application may be made to allow cargo from other vessels to be transferred to the Oreto where she now lies." 2 On the 27th the Bahama entered inwards with Adderly & Co. as consignees.3 On the 28th Commander McKillip advised the governor that "several steamers having anchored at Cochrane's Anchorage, I sent an officer yesterday to visit them and muster their crews, and ascertain what they were, and how employed. The officer reports that one steamer, the Oreto, is apparently fitting and preparing for a vessel of war. Under those circumstances I would suggest that she should come into the harbor of Nassau to prevent any misunderstanding as to her equipping in this port contrary to the Foreign Enlistment Act, as a privateer or warvessel."4 On the same day the Governor addressed the Attorney General and desired to know whether it is contrary to law to order the Oreto to come down to the harbor, as the Commander of the Bulldog has reported her to have the appearance of a privateer arming herself." The Attorney General immediately replied that he was "of opinion that an order for the removal of the Oreto from Cochrane's Anchorage, where she now lies, to the harbor of Nassau should not be made, as such order could not be legally enforced unless it was distinctly shown that such a violation of law had taken place in respect of her as would justify her seizure." 6 On the next day the Governor, having called for a further and more detailed report upon the same subject, the Attorney General in reply said. My reply of yesterday was necessarily short, as your note was received at a late hour and I was anxious to send an immediate answer in order that any action in the matter referred to might be prevented. ** Any British or foreign trading vessel has a right, in carrying on her lawful commercial pursuits, to use as anchorage-places any of the harbors, roadsteads, and anchorages in the Colony. Beyond exercising the powers conferred on him by the trade laws, His Excellency has no power to compel the removal of the Oreto from her present anchorage, unless some act has been done in respect of her which would constitute a violation of law and subject her to seizure. * * This brings me to the question whether there is anything disclosed in your communication which would, in a court of law, justify the forcible removal of the vessel from her present position. The information amounts to this: that the senior naval officer on the station has officially reported to the Governor that this vessel is apparently fitting and preparing for a vessel of war, or, as stated in your note of yesterday, has the appearance of a privateer arming herself. Now, unless Captain McKillop grounds the opinion formed and reported by him on some overt act, such as the placing of arms or other munitions of war on board of the vessel without the sanction of the Revenue Department, or some such similar act, evidencing an intention on the part of the persons in charge of the vessel to fit her out as a vessel of war to be employed in the service of a foreign belligerent Power, the forcible removal of the vessel from her present position, merely to guard against a possible infraction of the law, could not be justified. Such removal would in fact constitute a "seizure," which the parties making would be responsible for in damages, unless they could show a legal justification which must be based upon something beyond mere suspicion. He then says, while mere suspicion might not be sufficient to authorize a removal, it would justify the placing of "a revenue officer on board of her to watch the proceedings of the parties on board, in order Brit. App., Counter Case, vol. v, p. 36. 5 Ibid. 6 Ibid., p. 37. 1 Ibid., p. 326. 2 Brit. App., Counter Case, vol. v, p. 35. 3 Am. App., vol. vi, p. 325. that, if any actual contravention of the law took place, it might be at once reported and prompt measures taken by seizure of the vessel and otherwise to punish all parties implicated therein." Then he says: I will only now add that I feel that a great measure of the responsibility rests upon me in questions of this nature, and that it behooves me to be particularly cautious in giving any advice which may lead to a course of action on the part of the authorities here which may be considered as contravening the principles enumerated in the circular dispatch of His Grace the Duke of Newcastle, on the 15th of November last, in a part of which it is stated: “If it should be necessary for the Colonial authorities to act in any such case, [i. e., violation of the Foreign Enlistment Act,] it should only be done when the law is regularly put in force, and under the advice of the law-officers of the Crown."! On the next day he wrote to the Colonial Secretary: I have the honor to acknowledge the receipt of your letter of this day's date, and have to express my regret that His Excellency should have misapprehended the meaning of my letter of yesterday's date, which I certainly never intended should bear the construction which His Excellency appears to have placed on it, and which I respectfully submit a careful perusal will show cannot be placed on it. Any act of arming, or any attempt to arm a vessel in contravention of the Imperial Statute, commonly known as the Foreign-Enlistment Act, will subject the vessel to seizure, and it is quite immaterial in what manner the violation of law is ascertained, or by whose testimony it is established, the only necessary requirement being that the facts testified to should be such as would be received in court of law as legal proof of the violation of the statute sought to be established. With reference to the concluding part of your letter, I can only say that it is far from my wish to dictate to His Excellency the course to be pursued by him, my simple duty being to place before His Excellency my opinion on the state of the law bearing on such points as he may submit for my consideration, and that it is entirely for His Excellency to decide whether he will be guided by my views or not. The letter of the Colonial Secretary, to which this is a reply, is not given among the documents produced in evidence by Great Britain. After the receipt of these several letters from the Attorney-General, the Governor addressed a communication to Commander McKillop, under date of June 2, in which he says that the Oreto should not be allowed to arm herself for belligerent purposes within the jurisdiction of the harbor. "But, inasmuch as it is not yet proved beyond doubt that the Oreto is a vessel of war, and as it is just possible that she may be only a merchant ship taking arms and implements of war solely for exportation, it is desirable that a more special and minute examination of her conditions and equipment should be made before she can be treated as a pirate, a privateer, or foreign man-of-war arming within our waters." He therefore requested that such steps should be taken "as in your professional opinion seem best for the purpose of ascertaining the true character of the Oreto and the nature of her equipment; and if, after inspecting her guns, her crew, and the general disposition of the vessel, you are convinced that she is in reality a man-of-war or privateer arming herself here, then it will become your duty, either to concert measures for bringing the Oreto down into this part of the harbor, or, what will be a safer course, to remove your own ship to Cochrane's Anchorage and there watch her proceedings from day to day."3 On the day of the date of this letter (June 2) the cargo of the Bahama, consigned to Adderly & Co., was "warehoused" and stored at Nassau in the public warehouses. About this time, Adderly & Co. made application to the Receiver General for leave to ship a load of arms and other merchandise by the steamer Oreto.5 'Brit. App., vol. i, p. 17, 2 Ibid. 3 Brit. App., vol. i, p. 18. 4 Am. App., vol. vi, pp. 325, 326. 5 Testimony of Harris, Brit. App., Counter Case, vol. v, p. 40. On the 4th of June this application was considered by the Executive Council, (Mr. Harris being a member,) and with their advice it was ordered by the Governor that if practicable the Oreto should take in her cargo within the port of Nassau.1 In accordance with the advice of the Council, the Governor appears to have communicated this order to Commander McKillop, and he, under date of the 6th, reports: "I have visited the screw steamer Oreto and examined her. She is fitted in every way for war purposes, magazines, shell-rooms, and other fittings totally at variance with the character of a merchant-vessel. She has no guns or ammunition on board. The Captain does not deny that she is intended for a war-vessel." This report was referred to the Attorney General, and he on the 7th gave his opinion as follows: "There are no facts set forth in the within letter which would in my opinion authorize the seizure of the Oreto. They constitute only circumstances of suspicion, which if coupled with some actual overt act would doubtless materially strengthen the case against the vessel, but which do not in themselves form a ground of seizure.” On the 13th of June the letter of Commander Hickley and the report of himself and his officers, a statement of the contents of which has been already given, was submitted to the Attorney General, and in regard to them he says: "I am of the opinion that there is nothing contained in those documents which would justify the detention of the vessel." On the 15th of June, Commander Hickley, as has been seen, addressed another letter to the Governor, in which, in addition to what has been before stated, occurs this passage: On my former communication to your Excellency of the 13th of June, I have the Crown Lawyers' opinion, and I again bring the facts of the broadly suspicious character of the Oreto before you, with the addition of those of her old crew having left her, and for why, as likewise her entering or attempting to enter a new crew, for your consideration and the Law Officers of the Crown; and failing their sanction to take charge of the Oreto, (and it is improbable, if not impossible, that they can know a war vessel's equipment as well as myself and officers,) I have to suggest that I should forthwith send her to the Commodore or Commander in Chief on my own professional responsibility; as allowing such a vessel as the Oreto to pass to sea as a British merchaut vessel and a peaceful trader would compromise my convictions so entirely as to be a neglect of duty as Senior Naval officer here present, and certainly not doing my duty in co-operating with your Excellency for the protection of the harbor of Nas This being submitted to the Attorney General, he replied, that it did not appear to him "to carry the case against the Oreto further than shown in the previous reports of himself and Commander McKillop, and I contend that no case has as yet been made out for the seizure of that vessel under the Foreign Enlistment Act. With respect to the suggestion in the concluding part of Commander Hickley's letter, I have to remark that, if the vessel is liable to seizure at all, it must be under the provisions of the Foreign Enlistment Act, and if so seized the question of her liability may as readily and efficiently be decided in the Court of Vice Admiralty of this Colony as before any Tribunal in Her Majesty's Colonial Possessions, and consequently that no necessity exists, nor do I think that any excuse can be made, for sending her, as suggested by Commander Hickley, to the Commodore or Commander inChief, who I presume are either at Bermuda or Halifax; while, on the other hand, if I am correct in the view I have taken of her non-liability to seizure, the reasons against sending her hence will of course be far 1See proceedings of the meeting, which are stated in full on page 62 of the British Case. 2 Brit. App., vol. i, p. 20. Ibid. 4 Brit. App., vol. i, p. 23. B 5 Ibid., p. 24. |