But availing himself of the darkness of the night, and of other circumstances, the commander of the Wachusett succeeded in carrying his prize over the bar, and escaping the just punishment he deserved.

The consul, Wilson, preferred to abandon his post, withdrawing on board the Wachusett.

The government of His Majesty, as soon as it had official information of the event, addressed to the legation of the United States at Rio Janeiro a note, in which, giving a succinct exposition of the fact, it declared that it had no hesitation in believing it would hasten to give to it all proper assurances that the Government of the Union would attend to the just reclamation of the empire as promptly and fully as the gravity of the case demanded.

In correspondence with this expectative note, the worthy representative of the United States was prompt in sending his reply, in which he declares he is convinced that his Government will give to that of the empire the reparation which is due to it. Such are the facts to which the undersigned has received order to call all the attention of the honorable William H. Seward, Secretary of State of the United States. The principles of international law which regulate this matter, and in respect of which there is not the least divergence among the most distinguished publicists, are common and known to all. The undersigned would fail to recognize the high intelligence of the honorable Mr. Seward, if, perchance, he should enter in this respect into faller developments.

He limits himself then only to recall a memorable example, in which these [77] principles, invariably sustained by the United States, had entire application. In 1793, the great Washington then being President of the United States, and the illustrious Jefferson Secretary of State, the French frigate l'Embuscade captured the English ship Grange, in Delaware Bay, thus violating the neutrality and the territorial sovereignty of the United States. The American Government remonstrated energetically against this violation, and required from the government of the French republic not only the immediate delivery of the captured vessel, but also the complete liberation of all the persons found on board. This reclamation was promptly satisfied. Much more grave, certainly, is the occurrence in the port of the province of Bahia which makes the subject of the present note. By the special circumstances which preceded and attended it, this act has no parallel in the annals of modern maritime

war.

The commander of the Wachusett not only gravely offended the territorial immunities of the empire, passing beyond the laws of war by attacking treacherously, during the night, a defenseless ship, whose crew, much reduced because more than sixty men were on shore with the commander and several officers, reposed unwary beneath the shadow of the protection which the neutrality of the empire guaranteed to them; and so open was the violation, so manifest the offense, that the enlightened American press was almost unanimous in condemnation of the inexcusable proceeding of Commander Collins.

On this occasion, remembering the United States, whose antecedents are well known and noted in history by the energetic defense of and respect for neutral rights, of these nashaken principles, the undersigned cannot consider the event which occurred at Babia otherwise than as the individual act of the commander of the Wachusett, not authorized or approved by his Government, and that it will consequently give to the government of His Majesty the Emperor the explanations and reparation which, in conformity with international laws, are due to a power which maintains friendly and pacific relations with the United States.

The just reclamation of the imperial government being thus presented, the undersigned awaits the reply of the honorable Mr. Seward, and, fully confiding in his exalted wisdom and in the justice of the Government of the United States, he has not even for & moment doubted but that it will be as satisfactory as the incontestable right which aids the empire and the vast gravity of the offense which was done to it may require. The undersigned, &c., (Signed) IGNACIO DE AVELLAR BARBOZA DA SILVA. His Excellency the Hon. WILLIAM H. SEWARD.

Mr. Seward to Mr. Barboza.

DEPARTMENT OF STATE,

Washington, December 201, 1864.

SIR: I have the honor to acknowledge the receipt of your note, which sets forth the Sentiments of the imperial government of Brazil concerning the capture of the Florida by the United States war-steamer Wachusett in the port of Bahia.

You will, of course, explain to your government that, owing to an understanding between you and myself, your note, although it bears the date of the 12th December, was not submitted to me until the 21st instant.

Jealousy of foreign intervention in every form, and absolute non-intervention in the

I Should be dated December 26, 1864.

domestic affairs of foreign nations, are cardinal principles in the policy of the United States. You have therefore justly expected that the President would disavow and regret the proceedings at Bahia. He will suspend Captain Collins and direct him to appear before a court-martial. The consul at Bahia admits that he advised and incited the captain and was active in the proceedings. He will therefore be dismissed. The flag of Brazil will receive from the United States Navy the honor customary in the intercourse of friendly maritime powers.

It is, however, not to be understood that this Government admits or gives credit to the charges of falsehood, treachery, and deception which you have brought against the captain and the consul. These charges are denied on the authority of the officers accused.

You will also be pleased to understand that the answer now given to your representation rests exclusively upon the ground that the capture of the Florida was an unauthorized, unlawful, and indefensible exercise of the naval force of the United States within a foreign country in defiance of its established and duly recognized gov

ernment.

This Government disallows your assumption that the insurgents of this country are a lawful naval belligerent; and, on the contrary, it maintains that the ascription of that character by the government of Brazil to insurgent citizens of the United States, who have hitherto been and who still are destitute of naval forces, ports, and courts, is an act of intervention in derogation of the law of nations and unfriendly and wrong. ful, as it is manifestly injurious, to the United States.

So also this Government disallows your assumption that the Florida belonged to the aforementioned insurgents, and maintains, on the contrary, that that vessel, like the Alabama, was a pirate, belonging to no nation or lawful belligerent, and therefore that the harboring and supplying of these piratical ships and their crews in Brazilian ports were wrongs and injuries for which Brazil justly owes reparation to the United States as ample as the reparation which she now receives from them. They hope and confidently expect this reciprocity in good time, to restore the harmony and friendship which are so essential to the welfare and safety of the two countries.

In the positions which I have thus assumed the imperial government will recognize an adherence to rights which have been constantly asserted, and an enduring sense of injuries which have been the subject of earnest remonstrance by the United States during the last three years. The government of Brazil is again informed that these positions of this Government are no longer deemed open to argument.

It does not, however, belong to the captains of ships of war of the United [78] States, or to the 'commanders of their armies, or to their consuls residing in for

can ports, acting without the authority of Congress, and without even Executive directiei, aid choosing their own time, nanner, and occasion, to assert the rights and redress the wregs of the country. This power can be lawfully exercised only by the Government of the United States. As a member of the family of nations, the United States practice order, not anarchy, as they always prefer lawful proceedings to aggtessive vitree or retaliation. The United States are happy in being able to believe that Brand entertāns tãe same sentiments. The authorities at Bahia are understood to have nuspccessfully employed force to overcome the Wachusett and resene the Florda, and to have certinned the chase of the offender beyond the waters of Brazil, Teas in the affair at Balita, subordinate agents, without the of torr Tospective goversments, mively manguratei an unauthorized, Holawful war, In desisting trom that war on her part, and in appealing Lent for recress, Brazil na vat preciated the character of the United 87 an example wortây of em

consequence of some unforeseen accident, which cast no responsibility upon the United

States.

I avail, &c.,

(Signed)

Senhor IGNACIO DE AVELLAR BARBOZA DA SILVA, &C.

WILLIAM H. SEWARD.1

It has been stated above that the crew of the Florida were shipped principally at Mobile. Representations having been made to Her Majesty's government to the effect that some of the men who served in her were British subjects, the law-officers of the Crown were consulted on the question whether proceedings could be instituted against these persons for an infringement of the foreign-enlistment act. The lawofficers advised as follows:2

We do not think that sufficient evidence has yet been obtained to warrant the institution of proceedings against any of these seamen.

If it were shown that their enlistment on board the Florida had taken place in England, or within British jurisdiction, they might perhaps have been presumed to be natural-born British subjects, owing obedience at that time to British law; so far, at all events, as to make slight evidence in confirmation of that presumption sufficient. Next it appears, by the fourth column of the list annexed to Thompson's first affidavit, that, with two exceptions only, all these men took service on board the Florida beyond the limits of British jurisdiction, and by far the greater number of them at Mobile, within the territory of the Confederate States. With respect to the two, Dennis Sullivan and Charles Ballinger, who are alleged, the one to have enlisted at Nassau, and the other to have been shipped at the first, (which we suppose means when the ship first sailed from England,) no evidence whatever has yet been obtained in support of either of these allegations.

In the former report of the law-officers upon this subject it was noticed that the first section of the foreign-enlistment act, which prohibits the enlistment of British subjects in the belligerent service of any foreign power, is not limited (as the seventh section as to equipping vessels is) to acts done within British jurisdiction, but that it seems to be intended to apply, and is in its literal terms applicable, to all natural-born British subjects who may enter into the service of any foreign belligerent power without Her Majesty's license, wheresoever the prohibited act may be done. Assuming this to be the construction and effect of the statute, we apprehend that it would be impossible to procure a conviction under it in the case of persons who were not resident within British jurisdiction at the time of their taking foreign service, without strict proof that such persons were in fact, at the time of their doing so, natural-born British subjects, owing exclusive obedience, wherever they might be, to the statute law of Great Britain; and we think it is at least very doubtful whether those sections of the statute would be held to be applicable to any persons who were naturalized, or even domiciled, at the time of their taking such service, within the territory of the belligerent power in whose service they enlisted. [79]*Bearing these considerations in mind, we turn to the original depositions of Thompson and Müller, and we find in the former no evidence whatever bearing upon the essential question of the nationality and origin of any of these seamen; While the statements of the latter, as to seventeen of the thirty-three persons who are described as of British origin in the second column of the lists, depend upon admis⚫sions or inferences of so loose a character that we do not think any reliance ought to be placed upon them. So far as they rest only on the deponent's belief, they are inadmissible; so far as they prove that certain individuals associated on board the ship as Irishmen, and sung Irish songs, &c., they are insufficient; and we think it would be unsafe to trust to the statements of this witness as to the admissions said to have been made by some of the parties (as we count them, by seven only, viz, Considine, Conway, Doris, McNevin, McCabe, McGarroch, and Welch) to the effect that Ireland was their home, their country, or the place of residence of their parents. Every one of these seven persons, it is to be remembered, joined the Florida, according to the lists, at Mobile; and it may serve as some test of the value of this kind of evidence, that the same witness makes very similar statements as to four other seamen, (Taylor, Rivers, Grover, and King,) with a view to prove them to be either Englishmen or Irishmen, although they are described as native Americans in the second column of the list referred to in his own affidavit.

The opinion which we had formed, as above expressed, upon the perusal of the original depositions of Thompson and Müller is strongly confirmed by the subsequent

These two letters, as well as the preceding one, are extracted from the Daily Morning Chronicle, (American journal,) of 31st December, 1864.

Appendix, vol. i, p. 124.

affidavit of Thompson, who in that affidavit speaks of admissions made to him by eighteen of these seamen, to the effect that they were born in Ireland, Scotland, or England; and by six others, to the effect either that they were Irishmen, or that Ireland or Liverpool was their home.

But of these twenty-four persons there are only seven on whose history any further light is thrown by these depositions, and every one of these seven appears to have emigrated from Great Britain or Ireland to the United States previous to the existing civil war, under circumstances from which it is prima facie to be inferred that, at the time when he took service on board the Florida, he was either a naturalized or a domiciled American. Some of them appear to have resided for many years in the United States; and two (Good and Doris) are expressly stated to have acquired the rights of citizens there, and to have voted at presidential and other elections. With respect to the rest of the crew there is nothing whatever to show that they may not have enlisted under similar circumstances.

As to all persons so situated, we think that it would be a reasonable construction of the foreign-enlistment act to hold that, although they are natural-born subjects of Her Majesty, the word "foreign," which pervades the first section of the statute, is not, as regards them, applicable to the service into which they have entered. And even assuming that this construction might not be admitted, we think that it would not be a proper exercise of discretion on the part of the Crown to attempt to put the statute in force, so far as relates to acts done by persons so situated beyond the limits of British jurisdiction, and within the territory in which such persons may have been naturalized or domiciled.

(Signed)

LINCOLN'S INN, October 20, 1863.

ROUNDELL PALMER
R. P. COLLIER.

SUMMARY.

The Florida was a vessel built at Liverpool by a firm of ship-builders there, to the order of another Liverpool firm carrying on an extensive business as engineers and iron-founders. She was stated to be ordered for and on account of a person resident at Liverpool, who was a partner in a mercantile house at Palermo, and upon the completion of the vessel this person was duly registered as her owner, on his own declaration. Her builders stated that, according to the best of their information, they believed her to be really destined for Palermo.

She was a vessel built for speed, and her internal fittings and arrangements were not such as are usual in vessels constructed to carry cargo, but were suitable to a ship of war. She was unarmed, however, and had on board no guns, carriages, ammunition, or other warlike stores of any kind.

No facts whatever proving, or tending to prove, that she was intended to cruise or carry on war against the United States were ever, before the departure of the ship, communicated by Mr. Adams or Mr. Dadley to Her Majesty's government. Mr. Adams alleged, indeed, that advances of money had been made to the firm which ordered the vessel, and to that which constructed her, by the firm of Fraser, Trenholm & Co., who were believed to have been engaged in blockade-running, and to be employed as agents for the government of the Confederate States; but this assertion, whether material or not, was not substantiated in any way. These were all the facts respecting the vessel which had been communicated to or were in the possession of Her Majesty's government previously to and at the time of her departure from England.

It is certain that, had the vessel been seized by Her Majesty's govern ment, a court of law would have ordered, and would indeed have been bound to order, the immediate restoration of her, for want of evidence to support a forfeiture. It was not the duty of Her Majesty's govern ment to seize a vessel which it would have been the duty of a court of law to restore.

The means and opportunities possessed by Mr. Adams and [80] Mr. Dudley of ascertaining the truth were fully as great as those

possessed by Her Majesty's government. They were, indeed, greater; since Mr. Dudley was the United States consul on the spot, in constant communication with Americans of all classes, always on the watch for information, and provided with means of gaining it which could not have been employed by Her Majesty's government.

The vessel sailed from Liverpool with a clearance for Palermo and Jamaica, unarmed, and with no warlike stores of any kind, under the command of a master belonging to the British mercantile marine, and manned by a crew who were not enlisted for the confederate service and had no thought or intention of engaging in it, and who afterward left the ship as soon as they conceived a suspicion that she might be employed in that service.

Although no directions, nor any notice or warning, had or could have been sent to the authorities of Nassau before her arrival there, the vessel was, upon her arrival and while she remained there, strictly watched by order of the governor; a ship of war was placed near to her; she was finally seized by order of the governor; and proceedings were instituted against her in the proper court of the colony. On being released by the decree of the court, she sailed from Nassau unarmed, and with a clearance for New Brunswick.

Before committing any hostilities against vessels of citizens of the United States, she sailed for and entered a port of the Confederate States, where she remained during more than four months and was put in condition for war, and enlisted a crew, and from whence she was finally sent out to cruise.

She was commissioned as a ship of war of the Confederate States, and was commanded by an officer commissioned by the de facto government of those States. She was received on the footing of a public ship of war in the ports of neutral nations-Spain, France, and Brazil; and on the same footing, and in the same manner, without favor or partiality, she was received likewise in those ports of the British colonies which she had occasion to enter.

The United States ships of war blockading the port of Mobile failed to capture the Florida when she entered it, under circumstances which made the capture so easy of accomplishment that the officer to whose incapacity the failure was due was dismissed the service. They again failed to capture her when she left the port to commence her cruise. From that time, until her unlawful seizure in the port of Bahia, she was, for a year and nine months, engaged in cruising, sometimes near the coast of the United States. It does not appear, however, that dnring all that period she was ever encountered or chased by a United States ship of war. No serious endeavor, indeed, to intercept or capture her appears to have been made on the part of the Government of the United States.

Her Britannic Majesty's government cannot admit that, in respect of the Florida, it is justly chargeable with any failure of international duty for which Great Britain owes reparation to the United States.