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be made available in the courts of Great Britain. It was what it purported to be, a mere "statement of belief." If Earl Russell desired further evidence to be furnished by the United States, he was invited so to say in reply. He did not, but in his reply on the 19th contented himself with acknowledging the receipt of the communication, and stating that he had "lost no time in communicating with the proper department of Her Majesty's Government on this subject."1 On the 21st of February the builders reported to the Collector at Liverpool, "We have built the dispatch vessel 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. ** 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."2
Action of the Britsh government.
Thus one of the firms suspected by Mr. Adams is shown, by the statement of the builders, to have been concerned in her construction and outfit. On the same day, the collector transmitted this communication from the builders to the Commissioners of Customs, with a further statement of his own, viz: แ "I have every reason to believe that she is for the Italian Government, and not for the Confederates."3
He gave no facts upon which he predicated his belief, and it will be noticed that there is nothing in the builders' statement to justify such a belief. All the builders state is that they understood she was built for the "use of" a firm in Palermo, and that, according to the best of their information, her present destination was Palermo. Fawcett, Preston and Company were at the time "a firm of engineers and founders," "carrying on an extensive trade" at Liverpool, but no inquiries appear to have been addressed to them. They were, as the builders said, the "agents" of the firm for whose "use" they understood" the vessel was built, and were certainly likely to know for whose use " she actually was built. It had already been urged against this firm that they had been concerned in a shipment of arms for the Confederate States." 995 There does not seem to have been any good reason why Her Majesty's Government might not have addressed an inquiry to them, yet for some reason it did not, or, if it did, the result has not been reported.
What might have been done.
What actually was done.
On the 22d of February, the Commissioners of Customs reported to the Lords Commissioners of the Treasury that they had instructed the "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. ** The expense of her construction has been paid, and she has been handed over to Messrs. Fawcett and 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;
1 Brit. App., vol. i, p. 2.
2 Brit. Case, p. 54.
4 Brit. Case, p. 55; Brit. Counter Case, p. 75.
5 Brit. Counter Case, p. 75.
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 Lordship's cognizance."i
It will be here observed, that the report does not state it was only understood by Miller & Sons that the vessel was intended for the use of Thomas Brothers, but it appeared from the report that she was so intended. Neither does it appear that inquiries had not been addressed to Fawcett, Preston & Co.; but it did appear that "special directions" had been given to the officers at Liverpool to watch the movements of the vessel, and that prompt report would be made whenever circumstances worthy of their Lordships' cognizance might occur.
This report was transmitted by the Secretary of the Treasury to Earl Russell on the 24th; 2 and by Earl Russell to Mr. Adams on the 26th of February. The statements of the officers and builders on which the report was predicated were not sent with it. Earl Russell in transmitting the report did not intimate any desire that Mr. Adams should make an effort to procure further evidence. But on the same day of its date he (Earl Russell) telegraphed to Her Majesty's Minister at Turin as follows: "Ascertain and report to me whether a vessel called the Oreto, now fitting out at Liverpool, is intended for the use of the Italian Government." 5 On the 1st of March the Minister at Turin replied: "Ricasoli tells me that he has no knowledge whatever of the ship Oreto, but will cause inquiry to be made." No inquiries appear to have been addressed to the representative of His Majesty, the King of Italy, in London, or to his consul at Liverpool, and no further information was received from the Minister at Turin until after the vessel had sailed.
On the 1st of March, the same day with the receipt of the reply from the Minister at Turin, John H. Thomas, of Liverpool, "a natural-born British subject, born at Palermo, in the island of Sicily, of British parents," declared in writing in the presence of the Registrar of Shipping at the port of Liverpool (one of the officers of the Government specially charged with the registry of vessels) that he was "entitled to be registered as owner of sixty-four shares (the whole) of said ship. To the best of my knowledge and belief, no person or body of persons other than such persons or bodies of persons as are by the Merchant Shipping Act, 1854, qualified to be owners of British ships, is entitled as owner to any interest whatever, either legal or beneficial, in the said ship." 8 This declaration was made in accordance with the provisions of sec tion 38 of the Merchant Shipping Act, 1854, of Great Britain,9
Registry of the
to obtain the registry of the ship as a British vessel. With- Florida. out it the Registry could not have been granted, for none but naturalborn British subjects and persons made denizens by letters of denization, or naturalized, could be owners of a British ship. 10
1 Brit. Case, p. 54.
Ibid., p. 55.
Brit. App., vol. i, p. 3.
Brit. App., vol. i, p. 3.
6. Brit. Case, p. 55.
7 Merchant Shipping Act, 1854.
8 Brit. Case, p. 56.
9 Am. App. Counter Case, p. 1138.
10 Mer. Ship. Act, 1854, sec. 18; App. Am. Counter Case, p. 1132.
Upon this declaration the vessel was, on the 3d of March, registered as a British vessel, at the port of Liverpool, under the name of the Oreto. This Registry was made in one of the public records, by an officer of the Government specially charged with that duty.2
On the 4th of March the Oreto was cleared at Liverpool in ballast, with a crew of fifty-two men, for Palermo and Jamaica.3 This clearance must have been obtained from the office of the Collector of Customs at Liverpool. To be regular it should have been signed by the Collector or Comptroller," but that formality seems, in this particular instance, to have been omitted.
On the 3d and 4th of March, shipping articles, in accordance with the form sanctioned by the Board of Trade, August, 1860, in pursuance of 17 and 18 Victoria, c. 104,7 were signed by the master and all the crew who sailed in the vessel, except two who signed as substitutes on the 14th and 15th, in presence of J. W. Hughes, shipping master at the port of Liverpool. These shipping articles specified a voyage from Liverpool to Palermo, thence (if required) to any port or places in the Mediterranean Sea and the West Indies, and back to a final port of discharge in the United Kingdom, the term not to exceed six months. In the same articles, in accordance with the prescribed form, the vessel is described as having been registered at the port of Liverpool, March 3, 1861; and Fawcett, Preston & Co. are named as "managing owners." Shipping articles, by the terms of the "Merchant Shipping Act, 1854," are required to be signed in duplicate in the presence of the shipping master, whose duty it is to "cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and to attest each signature."10 One part of the articles, thus in duplicate, must be retained by the shipping master, who is an officer of the Government, and who has a public office, known as the "shipping office."
All this formality was gone through with in this case, as will be seen by a copy of the articles actually signed in the "shipping office" and before a "shipping master," found in the Appendix to the British Case, vol. i, p. 161.
Thus then stood the facts known to Her Majesty's Government on the 4th of March, eighteen days, before the Oreto sailed. She was designed for war purposes. That was evident. She was for the use of some government, though registered in the name of a British subject. She did not belong to Her Majesty's Government, and it was not "believed" or "suspected" that she belonged to or was intended for any other Government than that of Italy or the insurgents. There were certainly circumstances of strong suspicion against her Italian ownership or destination. Mr. Adams based his opinion of her destination to the confederates directly upon the fact that he understood Fawcett, Preston & Co. and Frazer, Trenholm & Co. had been concerned in her construction and outfit. This last firm, he informed Earl
1 Brit. App., vol. i, p. 10.
2 Mer. Ship. Act, 1854, sec. 42; Am. App. Counter Case, p. 1141.
3 Brit. Case, p. 56.
4 Brit. Case, p. 57; Customs Consolidation Act, 1853, sec. 142; App. Am. Counter
Case, p. 1163.
5 See sec. 142 above.
6 Brit. Case, p. 56.
"Mer. Ship. Act, 1854, sec. 8.
8 Brit. App., vol. i, p. 161.
9 Brit. App., vol. i, p. 161.
10 Mer. Ship. Act, sec. 150; App. Am. Counter Case, p. 1155.
11 Ibid., sec. 122; App. Am. Counter Case, p. 1151.
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."1 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. 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."
It may be literally true that no other information had been received by Her Majesty's Government. The officers at Liverpool Negligence of Britseem 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 negligent 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.
been done under the
The Merchant Shipping Act, 1854, under which the vessel was regisWhat might have tered, provided1 that "if any unqualified person acmerchant's shipping quires, 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 depart- · ments 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
1 Sec. 103, sub. 3, 4; App. Am. C. Case, p. 1148.
2 Sec. 6; Am. C. Case. App., 1127.
Sec. 14; Am. C. Case, App., 1129.
4 Sec. 14; Am. C. Case, App., p. 1129.
5 Am. App., vol. vi, p. 187.