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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 Ì, 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.
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.
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 and then then she inforof his lordship, and in accordance with the suggestion lector. therein, said:
“I pray you to furnish to the collector of customs, so soon as may be, any evidence which yon can readily command in aid of the object designated."3
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 Govern. ment. 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 “ assurance that
The consul direct.
mation to col
He does so.
1 Am. App., vol. vi, p: 382. % Am. App., vol. vi, p. 386.
3 Brit. App., vol. i, p. 242. 4 Page 84.
Conduct of the collector.
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 substantiated 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. On the 10th of July the collector acknowledged the receipt 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 officers 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. 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 mature, 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 primafacie proof sufficient in the statement of the Consul to justify the seizure of the vessel, and you are to apprise the Consul accordingly.” 6
1 Am. App., vol. vi, p. 488.
4 Brit. App., vol. i, p. 184.
He declines to act.
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.792
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 represented 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.? On 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.94
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 structs the consulto on the mo ning of the 18th and he immediately retained proof. Mr. Squarey.5 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, so, and presents it and Mathew Maguire, and their affidavits, with that of the request to seize Consul, were then taken by the collector, who administered
Mr. Adams in
continue to collect
The , to the collector with
1 Brit. Case, p. 83.
* Ibid., p. 187.
Lw advisers of the customs.
the necessary oaths. Upon this testimony, under oath, the collector was requested to seize the vessel, and the portions of the foreign-enlistinent act applicable to the case were read to him.'
The witnesses were all present before the collector. He had full opportunity, if he desired, to examine them personally, and thus test the accuracy of their statements or their credibility. This he does not seem to have done, or, if he did, he has not put on record any suspicion as to the reliability of the testimony.?
On the same day (the 21st) the collector transmitted the affidavits to the commissioners of customs, stating that he had been requested to seize the vessel, and asked the board to instruct him “by telegraph how I am to act, as the ship appears to be ready for sea, and may leave any hour she pleases.” 6 The affidavits were received by the commissioners of customs on the
22d of July, 4 and at once referred to the solicitor of customs,
who, with his assistant, immediately advised the board that the evidence submitted was not sufficient to warrant the seizure or detention of the vessel. The assistant solicitor said “the only justifiable grounds of seizure under section seven of the act would be the production of such evidence of the fact as would support an indictment for the misdemeanor under that section.” On the same day (the 22d) the board informed the collector that, as they were advised by their solicitor, the evidence was not sufficient to justify a seizure, and he should govern himself accordingly, but they added: "The solicitor has, however, stated that if there should be sufficient evidence to satisfy a court of enlistment of individuals, they would be liable to pecuniary penalties, for the security of which, if recovered, the department might detain the ship until these penalties are satisfied or good bail given; but there is not sufficient evidence to require the customs to prosecute. It is, however, competent for the United States Consul, or any other person, to do so at their own risk if they see fit.96
No copy of the opinion of the solicitor or his assistant was sent to the Consul or Mr. Adams, but on the 23d of July the collector advised the Consul that the board, upon the advice of their solicitors, had concluded the evidence submitted was not sufficient to justify any steps being taken against the vessel, but he added: “It is, however, considered to be competent for the United States Consul to act at his own risk if he should think fit.997
This last clause attracted the attention of the Consul at once, and Mr. Squarey called upon the collector and asked its meaning. “His response was that this was copied from the letter addressed to him by the board.” Mr. Squarey, of course, advised the Consul he had no power to stop the vessel ; that the power to detain her was lodged with the collector. The collector did not intimate that the board referred in their instructions to the prosecution of the individuals and to a possibility of detention by them in case of such a prosecution. But if he had, it is not easy for the United States to discover why they should be called upon to prosecute individuals criminally in the courts of Great Britain for a violation of its municipal law. It was not the punishment of in.
1 American Appendix, vol. vi, p. 395.
5 British Appendix, vol. i, p. 188.
Proof submitted to the treasury, July 28.
Also, to Earl Rus973 sell
dividuals they sought. They asked the detention of the vessel and by that means the prevention of a crime against the law of nations.
On the same day (the 22d) the affidavits, and the action taken upon them by. the board of commissioners of customs, were, by the board, submitted to the lords commissioners of the Treasury, with the suggestion that, if they had any doubt, it might be advisable to take the opinion of the law-officers of the Crown, and at once the Lords Commissioners of the Treasury transmitted to the Foreign Office copies of the papers received from the commissioners of customs, with a statement that the vessel was “nearly ready for sea."2
On the same day (the 22d) Mr. Adams transmitted to Earl Russell copies of the same affidavits “tending," as he said, “to establish the character and destination of the vessel. Upon the 23d the papers from the commissioners of customs were sent from the Foreign Office to the Law Officers, with a request for consideration and an opinion at their earliest convenience." 4
On the 23d, also, the Consul and his solicitor, having heard from the assistant solicitor of the customs that the previous affidavits were not considered sufficient and that the collector had been directed not to detain the vessel, procured further affidavits from Edward Roberts and Robert John Taylor. They also procured a further opinion from Mr. Collier, predicated upon the eight opinion of. mr. affidavits which had then been obtained, in which he used Collier. this significant language:
I have perused the above affidavits, and I am of opinion that the collector of customs would be justified in detaiving the vessel. Indeed, I should think it his duty to detain her; and that if, after the application which has been 'made to him, supported by the evidence which has been laid before me, he allows the vessel to leave Liverpool, he will incur a heavy responsibility, a responsibility of which the board of customs, under whose directions he appears to be acting, must take their share. It appears difficult to make out a stronger case of infringement of the foreign-enlistment act, which, if pot enforced on this occasion, is little better than a dead-letter. It well deserves consideration whether, if the vessel be allowed to escape, the Federal Government would not have serious grounds of remonstrance." 6
The additional affidavits were on the same day presented by Mr. Squarey, with the opinion of Mr. Collier, to the commissioners presented with of the customs, with a letter in which he said:
I learned this morning from Mr. O'Dowd that instructions were forwarded yesterday to the collector at Liverpool not to exercise the powers of the act in this instance, it being considered that the facts disclosed in the affidavits made before him were not sufficient to justify the collector in seizing the vessel. On behalf of the Government of the United States, I now respectfully request that this matter, which I need not point out to you involves consequences of the gravest possible description, may be considered by the board of customs on the further evidence now adduced. The gunboat now lies in the Birkenhead Docks, ready for sea in all respects, with a crew of fifty men on board; she may sail at any time, and I trust that the urgency of the case will excuse the course I have adopted of sending these papers direct to the board, instead of transmitting them through the collector at Liverpool, and the request which I now venture to make, that the matter may receive immediate attention.
The Board on the same day referred all the papers to their solicitor whose assistant reported that he could not concur in the views of Mr. Collier, but “adverting to the high character board."
affidavits to the customs, July 23.
3 Ibid. 1 British Case, p. 91.
4 Ibid. 2 Ibid. 5 Dudley to Seward, British Appendix, vol. I, p. 245; Squarey to Gardner, Ibid., p. 194. 6 British Appendix, vol. I, p. 196; British Case, p. 93. ? British Appendix, vol. i, p. 194.