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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 testifythatthey 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.1) 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 England 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: 66 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 (and, 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.
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 Nassau. and in a British port.
On the 30th of April Commander McKillop, in his report to the Admiralty, says she is "under the English flag."1
Conduct of British officials there.
Governor 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." 5 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."7 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.11
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.
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 Judicial proceedauthorities of the Colony were bound to pay obedience to its ings at Nassau. 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." 99 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
1 Brit. App., vol. i, p. 58.
2 British Counter Case, p. 76. Brit. App., vol. 1, p. 68.
4 British Counter Case, p. 77. 5 Brit. App., vol. i, p. 39.
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 necessarily 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 Nassau, 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." 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 be 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 Assembly.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
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.
+ American App., vol. vi, p. 237.
Testimony of Harris, British App., Counter Case, vol.
10 Heyliger to Randolph, American App., vol. vi, p. 77.
12 British Case, p. 61.
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 ties. 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 Öreto, 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 told 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
1 British App., Counter Case, vol. v, p. 35. 2 British App., vol. i, page 15.
4 Brit. App., vol. vi, p. 16.
5 Brit. App., Counter Case, vol. v, p. 42. 6 Am.App., vol. vi, p. 234.