On the 28th of June the customs surveyor at the port of Liverpool reported to the Collector "that the vessel to which these Proceedings of cuspapers refer has not escaped the notice of the customs toms authorities. officers, but, as yet, nothing has transpired concerning her which appeared to demand a special report. The officers have at all times free access to the building-yards of the Messrs. Laird, at Birkenhead, where the said vessel is now lying, and there has been no attempt on the part of her builders to disguise, what is most apparent to all, that she is intended for a ship of war. Agreeably with your directions, I have person. ally inspected her and find that she is rightly described in the communication of the United States Consul, except that her engines are not on the oscillating principle. The current report of that vessel is that she has been built for a foreign government, and that is not denied by the Messrs. Laird, with whom I have communicated on the subject; but they do not appear disposed to reply to any question with reference to the destination of the vessel after she leaves this port, and we have no other reliable source of information. It will be in your recollection that the current report of the gun-boat Oreto was, that she had been built for a foreign government, which vessel recently left this port under a British flag, without any guns or ammunition on board, as previously reported." This report was transmitted by the collector to the commissioners of customs on the same day (the 28th) and by them referred to the solicitor of customs, who, on the 30th, (the same day that the Law-Officers made their communication to Earl Russell, as just stated,) gave his opinion that "the officers at Liverpool have acted discreetly in keeping watch upon her, and should continue to do so, immediately reporting to the board any circumstances that they may consider to call for directions, or advisable to bring under the board's notice; but the officers ought not to move in the matter without the clearest evidence of a distinct violation of the foreign-enlistment act, nor unless at a moment of great emergency, the terms of the act being extremely technical and the requirements as to intent being very rigid. It may be that the ship, having regard to her cargo as contraband of war, might be unquestionably liable to capture and condemnation, yet not liable to detention under the foreign-enlistment act, and the seizers might entail upon themselves very serious consequences." On the 1st of July the commissioners of customs transmitted their own report to the Lords Commissioners of the Treasury, in which they embodied the substance of the report of the surveyor to the collector, including his statement that the builders did not appear disposed to reply to any questions respecting the destination of the vessel after she left Liverpool, and added that "having referred the matter to our solicitor, he has reported his opinion that, at present, there is not sufficient ground to warrant the detention of the vessel, or any interference on the part of this department, in which report we beg leave to express our concurrence. And, with reference to the statement of the United States Consul, that the evidence he has in regard to this vessel being intended for the so-called Confederate Government in the Southern States, is entirely conclusive to his mind, we would observe that, inasmuch as the officers of customs of Liverpool would not be justified in taking any steps against the vessel, unless sufficient evidence to warrant her detention should be laid before them, the proper course would be for the consul to submit such evidence as he possesses to the collector at that port, 'Brit. App., vol. i, p. 183. 2 Ibid. who would thereupon take such measures as the provisions of the foreign-enlistment act would require. Without the production of full and sufficient evidence to justify their proceedings, the seizing officers might entail on themselves and on the Government very serious consequences. We beg to add that the officers at Liverpool will keep a strict watch on the vessel, and that any further information that may be obtained concerning her will be forthwith reported."1 This report of the commissioners of customs was transmitted by the Lords Commissioners of the Treasury to the Foreign Office, and received there on the 2d of July.2 Thus it will be seen that twenty-seven days before the departure of the vessel, Her Majesty's Government was informed by its own officers that the "character of the vessel and of her equipment" was such as the report of the consul described them to be, and that, therefore, in the opinion of the Law-Officers of the Crown, "she must be intended for some warlike purpose." And the Government was also, at the same time and in the same manner, informed that in the face of what had been acknowledged by the Law-Officers of the Crown to be “grounds of reasonable suspicion" of the Consul, the builders of the vessel, (a firm, one of the ostensible members of which, at the time of the original contract for her building, was a member of the House of Commons,) on being inquired of by one of the officers of the Government, did not appear to be disposed to reply to any question with reference to the destination of the vessel after she left Liverpool. At the same time, too, one at least of the departments of the Government was reminded by one of its officers that the Oreto, referred to in the letter of Mr. Adams, had recently left the port, built for a foreign government, but "under a British flag, without any guns or ammunition on board." But the Arbitrators will look in vain for any evidence whatever tending to prove that any officer of the Government, of any grade, ever propounded to the builders, or any other person, a direct question as to the destination of the vessel, insisting upon an answer or a refusal to answer. This, too, when, under the opinion of the LawOfficers, the only material fact remaining to be ascertained was, by whom the vessel was to be employed. Mr. Adams inform consul may subit A copy of the report of the commissioners of customs was sent by Earl Russell to Mr. Adams, accompanied by a note which ed that the American bears date the 4th of July, but which does not appear to evidence to collector have been received until the 7th, when it was acknowledged. at Liverpool. In this note Earl Russell says: "I would beg leave to sug gest that you should instruct the United States Consul at Liverpool to submit to the collector of customs at that port such evidence as he may possess tending to show that his suspicions as to the destination of the vessel in question are well founded."4 This was the first request ever made of Mr. Adams or any other officer of the Government of the United States, to assist the Government of Her Majesty in procuring testimony against any vessel as to which complaint had been made. As has been seen, Mr. Adams offered the assistance of the United States in respect to the Florida, but his offer was not accepted. Down to this time, therefore, no complaint should be made against the United States because they failed to accompany their representations with proof. But the United States believe 1 Brit. Case, p. 83. 2 Brit. App., vol. i, p. 181. 3 Brit. App., Counter Case, vol. v, p. 204. 4 Brit. Case, p. 84. that, in view of facts already stated, the Arbitrators will feel as did the Consul when he received notice from Mr. Adams of what was required, and addressed the Secretary of State of his Government in the following language: I do not think the British Government are treating us properly in this matter. They are not dealing with us as one friendly nation ought to deal with another. When I, as the agent of my Government, tell them from evidence submitted to me that I have no doubt about her character, they ought to accept this until the parties who are building her, and who have it in their power to show if her destination and purpose are legitimate and honest, do so. It is a very easy matter for the Messrs. Laird & Co. to show for whom they are building her, and to give such information as to her purpose as to be satisfactory to all parties. The burden of proof ought not to be thrown upon us. In a hostile community like this it is very difficult to get information at any time upon these matters. And if names are to be given it would render it almost impossible. The Government ought to investigate it and not call upon us for proof.1 And they will not be surprised that two days after, the Consul wrote Mr. Adams as follows: When the United States Government, through its acknowledged representatives, say to the British Government that it is satisfied that a particular vessel, which is being built at a certain place in the kingdom by certain parties who are their own subjects, is intended as a privateer for the rebel government, it is the duty of that government to call up the parties who are fitting out the vessel, tell them what the charge is, and require them to state for whom and what purpose she is being built, and if the charge is admitted or shown to be true, to stop her sailing. Our Government has a right, it seems to me, not only to expect but to require this much of another friendly government. And if there was any disposition to do right and act honestly, this much at least would be accorded.2 The consul direct On the 7th of July, and at once upon the receipt of the letter of Earl Russell, Mr. Adams wrote the vice-consul at Liverpool, in the absence of the Consul, transmitting a copy of the letter ed to furnish inforof his lordship, and in accordance with the suggestion lector. therein, said: mation to the col "I pray you to furnish to the collector of customs, so soon as may be, any evidence which you can readily command in aid of the object designated." He does so. On the 9th of July the consul, having returned to Liverpool, addressed a letter to the collector at that port, in which he detailed with great particularity the circumstances which had come to his knowledge tending to show that the vessel was intended for the use of the insurgents. This letter is printed in full in the Britsh Case,4 and is explicit in its statements. It certainly made a case which was worthy the attention of the Government. The Consul does indeed say that he cannot, in all cases, state the names of his informants, "as the information in most cases is given to me by persons out of friendly feeling to the United States, and in strict confidence;" but he adds: "What I have stated is of such a character that little inquiry will confirm its truth;" and the names of many persons, all of whom were within reach of the officers, were given to whom inquiries might have been addressed. He then says, the Messrs. Laird "say she is for the Spanish Government. This they stated on the 3d of April last, when General Burgoyne visited their yard, and was shown over it and the various vessels being built there, by Messrs. John Laird, jr., and Henry H. Laird, as was fully reported in the papers at the time." On this point the Consul says he caused inquiries to be made of the Spanish minister as to the truth of the statement, and the reply was a positive 66 assurance that Am. App., vol. vi, p. 382. 3 Brit. App., vol. i, p. 242. 4 Page 84. she was not for the Spanish Government." If the statements in the letter of the Consul to Mr. Adams on the 21st of June contained, as the Law-Officers of the Crown said, "grounds of reasonable suspicion," this letter certainly ought to have put the officers of the Government upon inquiry as to the truth of the statements made; but the arbitrators will fail to discover in all the evidence submitted by Her Majesty's Government any proof tending to show any attempt at that, or any other time before the departure of the vessel, by any officer of Her Majesty's Government, to inquire as to the truth of any fact stated by the Consul. The only statements made by him which have not been fully substan tiated by subsequent developments are that Captain Bullock was to command the vessel and that the Florida was then arming at Nassau. In point of fact, it was true, however, that Captain Bullock had been, originally, assigned to the command of the Florida, and it was only about the 15th of June that a change was made. As to the arming of the Florida at Nassau, it has already been seen why that had not then been accomplished as it afterward was. This last named error in the statement of the Consul has, however, been considered of sufficient importance by Her Majesty's Government to be made the subject of special mention on page 85 of its Case. collector. 2 On the 10th of July the collector acknowledged the receipt of the Conduct of the letter from the Consul, but accompanied his acknowledg ment with the remark, "I am respectfully of the opinion, the statement made by you is not such as could be acted upon by the offi cers of this revenue, unless legally substantiated by evidence." The collector, however, on the same day, (the 10th) ordered the vessel again to be "inspected" by the the surveyor, who immediately reported that it had been done, and that she was in the same state as regards her armament as on the date of his former report.3 And the same day (the 10th also) the collector transmitted to the commissioners of customs the letter of the Consul and the report of the surveyor, accompanying them with a copy of his letter to the consul and the statement that "if she is for the confederate service the builders and parties interested are not likely to commit themselves by any act which would subject them to the penal provision of the foreign-enlistment act."4 On the 11th of July the solicitor of the customs, having considered the letter of the consul, reported: There is only one proper way of looking at this question. If the collector of customs were to detain the vessel in question, he would no doubt have to maintain the seizure by legal evidence in a court of law, and to pay damages and costs in case of failure. Upon carefully reading the statement, I find the greater part, if not all, is hearsay and inadmissible, and as to a part the witnesses are not forthcoming or even to be named. It is perfectly clear to my mind that there is nothing in it amounting to prima facie proof sufficient to justify a seizure, much less to support it in a court of law, and the consul could not expect the collector to take upon himself such a risk in opposition to rules and principles by which the Crown is governed in matters of this nature. 5 On the 15th of July, four days after the opinion of the solicitor was given, and six days after the letter of the Consul, the commissioners of customs advised the collector that "there does not appear to be prima facie proof sufficient in the statement of the Consul to justify the seizure of the vessel, and you are to apprise the Consul accordingly." 1 Am. App., vol. vi, p. 488. 2 Brit. Case, p. 85. 3 Ibid., p. 86. 4 Brit. App., vol. i, p. 184. 5 Brit. Case, p. 86. 6 Ibid. It is almost incredible that it never occurred to any one of these several officers of the Government that there was anything in the letter of the Consul calling upon them for investigation of the facts submitted by him. And this, too, when, according to the opinion of the distinguished Law-Officers of the Crown given on the 30th of June, "the grounds of reasonable suspicion" suggested in the letter of the consul of the 21st were sufficient to make it proper that steps should be taken to ascertain the truth of the statements then made, and when Mr. Adams, in his first communication upon this subject, had asked an inquiry by the officers of the Government as to the actual destination of the vessel. On the 16th of July the collector informed the consul that the solicitor of customs had advised the commissioners of customs that "the details given by you in regard to the said vessel are not sufficient, in a legal point of view, to justify me in taking upon myself the responsibility of the detention of this ship." He declines to act. On the same day (the 16th) a copy of the letter of the Consul of the 9th was submitted to Mr. Collier, afterward attorney-general and now one of the members of the judiciary committee of Her Majesty's Privy Council, for his opinion, and he promptly replied: "I think the evidence almost conclusive. As the matter is repre sented to me to be urgent, I advise that the principal officer of the customs at Liverpool be immediately applied to, under 59 Geo. III, cap. 69, to exercise the powers conferred upon him by that section to seize the vessel, with a view to her condemnation, an indemnity being given to him, if he requires it. It would be proper at the same time to lay a statement of the fact before the Secretary of State for Foreign Affairs, coupled with a request that Her Majesty's Government would direct the vessel to be seized, or ratify her seizure if it has been made."3 the next day (the 17th) the commissioners of customs advised the commissioners of the Treasury that the collector at Liverpool had been informed by them "that they do not consider there is prima-facie proof sufficient in the Consul's statement to justify the seizure of that vessel, and have instructed him to apprise the Consul accordingly."* On Mr. Adams instructs the consul to continue to collect On the same day (the 17th) Mr. Adams wrote the Consul directing him "to employ a solicitor and get up affidavits to lay before the collector." That letter was received by the consul on the morning of the 18th and he immediately retained proof Mr. Squarey. The great difficulty for the solicitor and the Consul with their means of information was "to get direct proof. There were men enough who knew about her, and who understood her character, but they were not willing to testify, and in a preliminary proceeding like this it was impossible to obtain process to compel them. Indeed, no one in a hostile community like Liverpool, where the feeling and sentiment are against us, would be a willing witness, especially if he resided there, and was in any way dependent upon the people of that place for a livelihood."% But as early as the 21st, the Consul and his solicitor appeared before the collector and presented to him as witnesses William Passmore, John De Costa, Allen S. Clare, Henry Wilding, and Mathew Maguire, and their affidavits, with that of the Consul, were then taken by the collector, who administered The consul does so, and presents it to the collector with a request to seize the vessel. 4 Ibid., 5 Ibid., p. 244. 6 Ibid., p. 245. |