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entry at the Custom-House or any Custom-House Officers on board.1 On the 26th the Receiver General advised the Colonial Secretary that he had 66 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."5 The Attor
ney 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 4 Brit. App., Counter Case, vol. v, p. 36. 5 Ibid.
1 Ibid., p. 326.
2 Brit. App., Counter Case, vol. v, p. 35. 3 Am. App., vol. vi, p. 325.
6 Ibid., p. 37.
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.2
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,
3 Brit. App., vol. i, p. 18.
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 merchant 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
1 See proceedings of the meeting, which are stated in full on page 62 of the British Case.
2 Brit. App., vol. i, p. 20. 3 Ibid.
4 Brit. App., vol. i, p. 23.
5 Ibid., p. 24.
more powerful; and therefore, on either view of the case, I advise His Excellency to withhold his sanction from the course of action suggested."1
On the receipt of a copy of this opinion, Commander Hickley abandoned his seizure of the vessel, since it was not sanctioned by the Law Officers of the Crown at Nassau, and as he was told by His Excellency that he did not "think it consistent with law or public policy that she should now be seized on the hypothesis that she is clearing out for the purpose of arming herself as a vessel of war beyond the limits of the harbor. We have done our duty in seeing that she does not leave the harbor equipped and prepared to act offensively against one of two belligerent nations, with each of whom Great Britain is at peace." 2
On the 17th, however, notwithstanding the strong opinion of the Law Officer of the Crown who discharged the duties of Queen's Advocate and Attorney General of the Colony, the Governor yielded to the conviction of Commander Hickley and his officers that she was a vessel of war that could be equipped in "twenty-four hours for battle," and consented to her seizure, as the "equipment of the Oreto, the object of her voyage hither, the intent of her voyage hence, the nature of her crew, and the purpose of their enlistment, are all the fair subjects of judicial investigation." 3 In accordance with this view of the case she was seized and the Governor gave "the necessary instructions to proceed." 4
Under these instructions the Attorney General proceeded against her on the theory of his opinions, so often reiterated, that she could only be held for acts of equipment and fitting out actually occurring within the jurisdiction of the port of Nassau.
Seizure of the
The vessel had arrived at Nassau on the 28th of April, six weeks before her final seizure. From the first she was an object of suspicion and comment. Commander McKillop reported Florida. her arrival and his suspicions to the Admiralty in London, under date of the 30th of April. His report was received in London, so that it was communicated to the Foreign Office, on the 10th of June.5 Not a word went from any other officer at the Colony to the Home Government until the 21st of June, when Governor Bayley reported the seizure and all that preceded it, including the opinions of the Attorney General. This was communicated to the Foreign Office at London, on the 31st of July. 6
It was submitted to the Law Officers of the Crown, and they on the 12th of August reported: "We think that the facts warranted the seizure, but we must add that it is very important that, on the trial, evidence should be adduced of what occurred at Liverpool, as regards the building and fitting out and the alleged ownership and destination of the Oreto." 997
The Law Officers of the Colony had no communication whatever with the Law Officers of the Home Government. But on the 28th of June, Heyliger, the Confederate agent at Nassau, advised the insurgent Secretary of War that "the proceedings instituted for her release are now complete, and will be pushed forward vigorously. Our complaint was filed in Court this morning, and the libel may be put in to-day or on the 30th. On the 1st July our Counsel will argue on the law points." And so it was in fact. The seizure was made on the 17th, supported
6 Layard to Rogers, Brit. App., vol. i, p. 29.
7 Brit. App., vol. 1, p. 31.
8 Am. App., vol. vi, p. 88.
by the affidavit of Commander Hickley on the 20th; an affidavit of claim was filed by Captain Duguid on the 27th; the libel was filed by the Attorney General on the 1st of July; the responsive plea of the claimant on the 21st; the trial commenced on the 10th-at least the first witness was examined then; the last witness was examined on the 26th; the argument was made on the 30th, and the decree rendered on the 2d of August.2
It will be interesting to see what was being done by the agents of the insurgents while these proceedings were going on. Maffitt, who had been assigned by Commander Bullock to the command of the Florida, (then called the Manassas,) arrived in Nassau on the 6th of May, and on the 22d he reported to the insurgent Secretary of the Navy that he had arrived at Nassau, and had personally assumed command "of the Manassas, which vessel I hope to have ready for service soon." 4
On the 26th of May the insurgent Secretary of the Navy made a requisition upon the Treasury for $50,000, to be sent "to fit out and equip the Confederate States steamer Manassas, now at Nassau," and on the next day (the 27th) a bill was ordered drawn for that amount, "in favor of Lieutenant John N. Maffitt, Confederate States Navy.""
Heyliger was superintending the affairs of the insurgents at Nassau, and shipping regularly his cargoes of articles contraband of war.
Nassau was visited by numerous parties, almost all of whom were more or less interested in what was then considered the rising fortunes of a new nation. Many of them were persons of education and acquirements, which gave them ready access to the best society of the place, while unfortunately, on the other hand, we had but few Northern visitors.8
The island of New Providence, of which Nassau is the only town, is a barren limestone rock, producing only some coarse grass, a few stunted trees, a few pineapples and oranges, and a great many sand-crabs and fiddlers. Before the war it was the rendezvous of a few wreckers and fishermen. Commerce it had none, except such as might grow out of the sponge trade and the shipment of green turtle and conch shells. The American war, which has brought woe and wretchedness to so many of our States, was the wind which blew prosperity to Nassau. It had already put on the air of a commercial city, its fine harbor being thronged with shipping, and its warehouses, wharves, and quays filled to repletion with merchandise. All was life, bustle, and activity. Ships were constantly arriving and depositing their cargoes, and light-draught steamers, Confederate and English, were as constantly reloading these cargoes and running them into the ports of the Confederate States."
The notorious sympathies of the Colony and the supposed sympathies of England with the Southern Confederacy have, I doubt not, led the Consul, and may lead the Government of the United States, to imagine that the Oreto has all along received a collusive and dishonest support from the authorities of the place. Nothing could be further removed from the truth than this belief; still it would be exceedingly awkward were the reasonableness of these suspicions to be tested by the experience of any vessel which arrived equipped, to act on the Federal side, and expecting to find her arms and ammunition here.10
They are all southern sympathizers. Indeed, this seems to be our principal port of entry, and the amount of money we throw into the hands of the Nassauites probably influences their sentiments in our favor.11
On the 8th of June Captain Semmes arrived at the island and took rooms at the hotel. Heyliger and Lafitte, agents of the Insurgent States at Nassau, gave him a dinner, at which about forty persons were pres
6 Ibid., p. 237.
7 Letters Heyliger to Randolph, ibid., pp. 76–87. Attorney-General Anderson's vindication of himself, February 10, 1872. Brit. App., Counter Case, vol. v, p. 25.
9 Captain Semmes's description of Nassau in his "Adventures Afloat," Am. App., vol. vi, p. 487.
10 Governor Bailey to the Duke of Newcastle, June 21, 1862, Brit. App., vol. i, p. 14. 11 Journal found on board the Florida, Am. App., vol. vi, p. 335.