that at about 5 p. m. they ran the brig on shore, and ten or twelve wreckers' boats went alongside of her; that at 6 p. m. Mr. Grey, the officer in charge of the brig, came on board the privateer, and the deponent was then told he could have his boat to go on board the brig and take what personal property Mr. Price might see fit to give him; that he found two wrecking-schooners alongside and about one hundred men on board the brig; that having taken the personal effects into the boat he landed on Acklin's Island, made a tent, and passed the night; that the next day the wreckers were still alongside; that he went on board the brig, she being then afloat, and made a claim on the wreckers for the brig and cargo. He was told he could not have her, and that if the anchor was lifted the privateer would sink her; that he then protested against removing any more of the cargo, as the brig was afloat and was in British waters, but the protest was disregarded; that the next day the wreckers had an interview with the captain of the privateer, and at 1 p. m. sent him word that they were going to a port of entry and that the deponent and his crew could go with them; that at 2 p. m. the privateer, the brig, and all the wreckers started for Long Cay, and arrived there about 8 p. m. the same day; that the wrecker, on board which were deponent and his crews, was anchored under the guns of the privateer, which kept a guard all night, while Mr. Grey and Mr. Price, two officers, went over to town; that on Monday, 23d, the deponent went also to town, and after making inquiry, found that the captain of the privateer would not allow him to go on board the brig; and that the deponent was told by the authorities that though the law would not allow the privateer to touch the brig, if he wished to do so they had no means of preventing him; that the deponent was not able to obtain possession of the brig until after he had bargained with the wreckers to pay them 50 per cent. on the cargo, and 331 per cent. on the vessel, when, after making affidavit of his being the master, he was placed in possession by the collector and went on board; that he found the hull, spars, and rigging in good order, but everything movable, on and under deck, stolen; that on the next day, 24th, he commenced receiving sugar from the wreckers, and on the 25th found on board eighty-three hogsheads, five tierces, and four barrels, the balance of cargo having been taken ashore by the wreckers; that the wreckers stove hogsheads and barrels, and passed the sugar into their boats, and landed it on the beach; that the captain of the privateer told him, the deponent, that he had given the cargo to the wreckers, as he wanted the brig; that he was going to put his guns on board of her, and destroy his schooner; that he further told the deponent that the wreckers were to pay him something handsome, and that the deponent believes they did so; that deponent was obliged to accept the wreckers' ternis at the port of entry, because the brig lay under the guns of the privateer, and the authorities declared their inability to protect him. And the deponent further says, that the capture of his vessel and the destruction of her cargo were brought about by and with the connivance and assistance of the captains and crews of the British wrecking-schooners, and within the jurisdiction of the British government, where he was entitled to protection, but could not obtain it until he had submitted to the terms of the wreckers, all of whom were British subjects, through whose connivance the vessel had been stranded and the cargo destroyed.1 After this, (the 19th of February,) and before the 8th of March, the Retribution entered the port of Nassau as an insurgent vessel of war.2 The "special leave" called for by the regulations of the British Government, under date of January 31st, 1862,3 seems never to have been asked for or granted. Her commander was not even called upon for his commission. All that occurred upon her arrival is thus stated by the pilot: She had a small gun on deck. The captain told me he was from Long Cay. I asked the captain where he was from. He answered, "Long Cay." I saw from the look of the vessel and the appearance of the crew, their clothing, that she was likely to be an armed vessel. I then asked him if she was a vessel of war. I begged him to excuse my being so particular, as I was instructed to do so, to put such questions. He told me she was an armed vessel." 4 On the 3d of March, which was eight days before the complaint was made to the Governor on account of the capture of the Hanover, and two weeks after the transactions with the Emily Fisher, in which the "wrecking-schooner Emily Adderley" took so prominent a part, Henry Adderley & Co. sold, or pretended to sell, the Retribution, in the port of Nassau, at public sale, to C. R. Perpali & Co., for £250. On the 26th 1 Brit. App., Counter Case, vol. v, p. 190. 2 Brit. App., Counter Case, vol. v, p. 196. 3 Ante, p. 296. 4 Am. App.,vol. vi, p. 738. of the same month, Perpall & Co. sold her for the same amount to Thomas Stead, and he, on the 10th of April, obtained for her a register as a British ship.1 Previous to her sale she was condemned by a board of survey, Perpall, the ostensible purchaser, being one of the board.3 THE TALLAHASSEE. The Tallahassee. It will be remembered by the Arbitrators that, when presenting for their consideration the facts connected with the claim of the United States for acts committed by the Shenandoah, we had occasion to call their attention to a letter written by the insurgent Secretary of the Navy to a Mr. Charles Green, bearing date as early as the 1st of July, 1861, in which, referring to the purchase of vessels to be used as transports, and the shipment of arms, &c., from England for the use of the insurgents, it was said: "It is probable that, being a British subject, you might secure the shipment under British colors.' Less than fifty, days after the date of that letter, Mr. Adams, in addressing Earl Russell upon the subject of the "transport Bermuda, and the information he had obtained as the ground for an application for a prompt and effective investigation of the truth of the allegations whilst there is time," called his lordship's attention to the fact that "she is stated to carry English colors."5 From that time until the end of the rebellion, the fact that the blockade-running, and the transportation of articles contraband of war, for the use of the insurgents, was carried on, almost exclusively, under the protection of the English flag, became very frequently the subject of direct complaint by Mr. Adams to Earl Russell. The correspondence upon this subject will be found collected in volume I of the American Appendix, pages 719 to 785, and it shows conclusively that the insurgent Government was in the constant practice of procuring a British registry, and of using the British flag, for all or nearly all transports. We also claim that it shows that this practice was tolerated by Great Britain. As late as the 20th of January, 1865, the Lieutenant-Governor of Bermuda, in communicating with the home government, took occasion to say: "I would further state that the Chameleon's register is Confederate States. Hence there is another legal question to which I should be glad to have an answer, viz, is a merchant-ship, sailing under the flag of, and registered by, an unrecognized nation, to be received in our ports on the same terms as a trader under a recognized flag? I find that this is not the first instance of a ship trading hither with a confederate register, though most of the blockade-runners are British." On the 31st of March, 1864, the Consul of the United States at London informed Mr. Seward that "on the Thames their activity in forwarding all enterprises in aid of the Confederacy is kept up with nearly as much vigor as on the Clyde. Another double screw, called the Atlanta, similar in most respects to those which have preceded her, has her sails bent, coals and supplies in, appears quite ready to leave." Brit. App. Counter Case, vol. v, p. 190. 2 Ibid., p. 196. 3 Ibid., p. 191. 5 Ante, p. 238. 7 Brit. App., Counter Case, vol. v, p. 151. 7 Am. App., vol. vii, p. 727. 4 Ante, p. 236. Again, on the 1st of April, he says: "The double screw is called the Atlanta. Her sails are bent, and she appears quite ready for sea. I consider the Edith and her the finest ships of the whole batch of double screws." 1 On the 8th of April, it was reported to the Consul that "this double screw [the Atlanta] left the docks on Sunday last, adjusted compasses same day, and sailed on the 4th of April from Greenhithe, and arrived at Falmouth on the next day. She cleared for Bermuda in ballast, (coal.)"2 On the 20th she arrived in Bermuda, making the passage in eleven days. The Consul at Bermuda says, in his report to Mr. Seward: "This vessel is undoubtedly faster than any heretofore here. She is to be under the command of Captain Horner, formerly of the Flora, and recently in the Index. He is an Englishman by birth."3 Again, on the 30th of May, he says: "The following steamers [six in all have left here to run the blockade, probably for Wilmington. * * * May 24, Atlanta, Horner, master." On the 6th of August the Atlanta, with her name changed to the Tallahassee, left Wilmington, North Carolina, armed as a vessel of war, and ran the blockade of that port. On the 18th of the same month she arrived at Halifax, Nova Scotia, for coal, having, in the mean time, destroyed a large number of vessels. She remained in port about forty hours, and, having supplied herself with coal for her return, sailed on the 19th, and again reached Wilmington through the blockade on the 26th.5 4 The United States, having had reason to believe she had been armed at Bermuda, complained to the Government of Great Britain. The matter was referred to the authorities at Bermuda, and on the 14th of November, 1864, the Lieutenant-Governor reported: The Atlanta was reported here from Wilmington, with cargo, on the 6th of last July, and she was cleared on the 11th of July for Nassau, with a cargo of seven hundred cases of preserved meats, and fifty casks of bacon; she left under British certificate of registry, and carrying British merchandise. All the requisites to a regular clearance were fulfilled. If she went to Wilmington, as is probably the case, notwithstanding her having cleared for Nassau, she would have reached that port about the 15th or 16th of July, between which dates and the 1st of August she probably took in her armament. Everything, except direct testimony, is against the belief that the Tallahassee was armed at Bermuda." The Tallahassee remained in commission until the 15th of December, 1864,7 and cruised for a short time off the coast, in the early part of November, under the name of the Olustee. On this cruise she made a few captures, and returned to Wilmington.a After her armament was removed she was loaded with cotton, and, on the 27th of December, under the name of the Chameleon, left Wilmington, for Bermuda. At that port she was loaded with a return cargo for Wilmington, but, being unable to run the blockade, proceeded to Nassau. From there she attempted to get into Charleston, but, being prevented in this, returned to Bermuda; and from there went to Liverpool, consigned to Frazer, Trenholm & Co. 1 Am. App., vol. vii, p. 727. 2 Ibid. 3 Am. App., vol. vii, p. 728. 4 Brit. App. Counter Case, vol. v, p. 144. 5 Am. App., vol. vi, p. 726. 6 Brit. App. Counter Case, vol. v, p. 150. 7 Am. App., vol. vi, p. 726. 8 Ibid., p. 733. Brit. App. Counter Case, vol. v, p. 161. THE CHICKAMAUGA. This vessel was formerly the blockade-runner Edith. The consul of the United States at London, in writing Mr. Seward on the The Chickamauga. 11th of March, 1864, said: "The steamer Edith, the last double screw completed, left on Wednesday last for Bermuda. The Edith makes the ninth double-screw steamer which has been built for the rebel service in this port." She was employed as a blockade-runner, and as such was once or twice at Bermuda. Having been armed at Wilmington she ran through the blockade on the 28th of October, 1864, as a cruiser, and reached Bermuda in that capacity on the 6th of November. Here she was supplied with coal from the bark Pleiades, and, after remaining nine days, got under way, and returned to Wilmington, where she arrived on the 19th of November. Her armament was then taken out of her, and she was reduced to her original condition as a transport. 10 C 1 Am. App., vol. vi, p. 723. XI.-CONSIDERATION OF THE DUTIES OF GREAT BRITAIN, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING VESSELS, AND ITS FAILURE TO FULFILL THEM. AS TO EACH OF SAID VESSELS. We are now prepared for a definite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the duties of Great Britain, in the premises of the Arbitration, and its performance thereof or failure therein. The ample discussions of pertinent questions and principles of public and municipal law, to be found in the Cases and Counter Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. We shall better observe the requirements of the Argument at this stage of it, by a brief statement of the propositions which should assist and control the judgment of the Arbitrators in deciding the main issue of fact on which their award is to turn, that is to say, the inculpation or the exculpation of Great Britain in the matter of the offending vessels. Rules of the treaty mperative. PROPOSITIONS OF LAW. MEASURE OF INTERNATIONAL DUTY. I. The Three Rules of the Treaty furnish the imperative law as to the obligations of Great Britain in respect of each of the vessels which is brought under review. The moment that it appears that a vessel is, in itself, within the description of the first article of the Treaty, as being one of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims,"" it becomes a subject to which the three rules are applicable. first rule. II. This primary inquiry of fact, which simply determines that the Application of the jurisdiction of the Tribunal embraces the vessel, is followed, necessarily, by the further inquiry of fact, whether or no the vessel, in its circumstances, falls within the predicament of either the first clause or the second clause of the first rule. If it does, the Tribunal has further to consider whether Great Britain has used, in regard to said vessel, the "due diligence" which is insisted upon by that rule, and the failure in which inculpates Great Britain, and exposes it to the condemnation of responsibility and reparation therefor to the United States. III. Whatever may be the scope and efficacy of the second Rule, and of the third Rule, in future or in general, for the purposes of second and third the present Arbitration, the subjects to which either of them can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, must be embraced within the limitation of the first article of the Treaty, and so, connected with some or one of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims." But in regard to any such vessel, the Application of the Rules. |