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the necessary oaths. Upon this testimony, under oath, the collector was requested to seize the vessel, and the portions of the foreign-enlistment 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.2

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

Law advisers of the customs.

The affidavits were received by the commissioners of customs on the 22d of July, 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." 195 On the same day (the 22d) the board informed the collector that, as they were advised by their solic itor, 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."

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."

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.

2 British Case, p. 87.

Ibid.

4 British Case, p. 90.

5 British Appendix, vol. i, p. 188. 6 Ibid.

7 British Appendix, vol. i, p. 248. 8 British Appendix, vol. i, p. 246.

submitted

Proof to the treasury, July 22.

dividuals they sought. They asked the detention of the vessel and bythat 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." On the same day (the 22d) Mr. Adams transmitted to Earl Russell copies of the same affidavits "tending," as he said, "to Also, to Earl Rusestablish the character and destination of the vessel."3 sell 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." +

172

Additional proof.

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 affidavits which had then been obtained, in which he used Collier. this significant language:

Opinion of Mr.

I have perused the above affidavits, and I am of opinion that the collector of customs would be justified in detaining 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 not 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 of the customs, with a letter in which he said :

Presented with affidavits to the customs, July 23.

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 Action views of Mr. Collier, but "adverting to the high character board.

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of the

3 Ibid.

4 Ibid.

Dudley to Seward, British Appendix, vol. i, p. 245; Squarey to Gardner, Ibid., p. 194. British Appendix, vol. i, p. 196; British Case, p. 93. 'British Appendix, vol. i, p. 194.

which he bears in his profession, I submit that the Board might act ju. diciously in recommending the Lords of the Treasury to take the opinion of the Law-Officers of the Crown." On the same day (the 23d) the papers were sent from the Foreign Office to the Law-Officers, with a request for an opinion at their earliest convenience.2 On that day also Mr. Squarey called at the Foreign Office and, ascertaining that the papers had been sent to the Law-Officers, but that an opinion had not up to that time been received, obtained from the Under Secretary, upon his "representation of the extreme urgency of the case," a promise that the opinion should be sent for at once.3

Further evidence

Adams.

6

On the 24th Mr. Adams also transmitted to Earl Russell copies of the same additional affidavits and the opinion of Mr. Collier. * submitted by Mr. Mr. Collier was also retained by the Consul to institute proceedings for condemnation in case the seizure was made." On the 25th another affidavit was presented by Mr. Squarey to the customs authorities, from whom it found its way on the 26th through the Foreign Office to the Law-Officers, the opinion of the solicitor of the customs being still adverse to the detention. On the 26th also, Mr. Squarey again called the attention of the secretary of the customs to the matter, and said he "had hoped that, ere this, the decision of the Lords Commissioners of Her Majesty's Treasury might have been made known particularly, as every day affords opportunities for the vessel in question to take her departure." To this the secretary replied that, "in the absence of instructions from their lordships, the board are unable to give any directions in regard to the gun-boat in question.” 7

Thus, on the 26th, ended the labors performed by the representatives of the United States. The Consul, in making his report to the secretary of state of his Government, after detailing what had been done by him and those with whom he had been associated, said, "I have done about all that I can do to stop this vessel; much more, I think, than this Government ought to require any friendly government to do. My counsel say I can do no more."8 The United States confidently believe the Arbi trators will concur in this opinion of the Consul.

The entire proof was in the possession of the Law-Officers of the Crown on the 26th. Substantially it was all there on the 23d. The affidavit of Redden, presented after that date, simply confirmed the already existing proof. That it was sufficient is shown by the opinion of the Law-Officers of the Crown, given as soon as it was examined. Even the first letter of the Consul, written on the 21st of June, and considered by the LawOfficers on the 30th, was sufficient to show that " grounds of reasonable suspicion" existed at that time and called for an inquiry into the truth. After that followed the letter of the 9th of July, with its more particu lar statement of details; then the affidavits of the 21st; then the affidavits of the 23d, and the pointed opinion of the most eminent counsel; then the affidavit of the 24th; and at all times cautions by the officers of the United States against delay and representations of the extreme urgency of the case. The vessel was in the dock. From the commencement, the builders were not disposed to reply to any question with reference to her destination after she left Liverpool. As early as the 21st of

1 Brit. Case, p. 94.

2 Ibid.

3 Brit. App., vol. i, p. 248.

Brit. App., vol. i, p. 246.

Brit. Case, p. 94.

6 Brit. Case, 95.

7 Am. App., vol. vi, p. 405. Brit. App., vol. i, p. 246.

July it was known to the collector she had her coal on board, and might leave any hour she pleased.1

On the 23d the commissioners of customs were advised " that she was ready for sea in all respects, with a crew of fifty men on board; she may sail at any time." On the 28th she was moved from the dock into the river; the men had taken their clothes and beds on board, and received orders to hold themselves in readiness at any moment. She had no register or clearance, but the collector said that was not necessary and that she could go anywhere without.3 She remained at anchor in the river until 11 or 12 o'clock of the 29th and "was seen from the shore by thousands of persons." The customs officers were on board when she started, and only left her when the tug left.5

4

Her Majesty's government agree to

During all this time Her Majesty's Government was under its promise to Mr. Adams, made as early as the 4th of July, that "the officers at Liverpool will keep a strict watch on the vessel, and that any further information that may be obtained concerning her will be forthwith reported."6

8

vessel.

a watch on the

the vessel

should be detained.

Illness of Sir John

After the vessel had sailed, but not before, the Law-Officers announced their opinion that, upon the evidence furnished by the The law-officers United States, she should be detained. At what hour in think the day this opinion was actually given does not appear, but it was agreed upon on the evening of the 28th, the same day that the papers were considered. It was said by Earl Russell to Mr. Adams at a conference on the 31st of July that a "delay in determining upon it [the decision] had most unexpectedly been caused by the sudden development of a malady of the Queen's advocate, Harding. Sir John D. Harding, totally incapacitating him for the transaction of business. This had made it necessary to call in other parties, whose opinion had been at last given for the detention of the gunboat." And in the British Case it is said: "One of Her Majesty's ordinary legal advisers, the Queen's Advocate, now deceased, was at that time seriously ill of a malady from which he never recovered, and this was mentioned at the time (on the 31st July, 1862) by Lord Russell to Mr. Adams, as a circumstance which had occasioned some delay." 10

The United States find among the documents and evidence furnished by Her Majesty's Government for the information of the Arbitrators eight opinions, given by the Law Officers of the Crown previous to the 29th of July. Of these, all before that which was given on the 30th June, upon the representation of Mr. Adams under date of the 23d, were signed by Sir John D. Harding, the Queen's advocate, Sir William Atherton, the Attorney-General, and Sir Roundell Palmer, the Solicitor-General, or by the Attorney-General alone. That of the 30th of June was signed by the Attorney-General and the Solicitor-General. From this circumstance the United States infer that the Queen's Advocate was unable to attend to his duties as early as that date, (the 30th June,) and that then the opinion of the other distinguished gentlemen who were the legal advisers of Her Majesty was considered sufficient; and they also infer that it

Edwards to Commrs. of Customs, Brit. App., vol. i, p. 188.

2 Squarey to Gardner, Brit. App., vol. i, p. 194.

3

Dudley to Adams, Am. App., vol. vii, p. 76.

Mr. Laird in the House of Commons, Am. App., vol. v, p. 694.

Ibid., Am. App., vol. iv, p. 528; Hansard, vol. clxx, p. 90.

Brit. Case, p. 84.

7 Ibid., p. 95.

Sir Roundell Palmer in the House of Commons, Aug. 4, 1871, Am. Case, p. 373.
Adams to Seward, Brit. App., vol. i, 249.

10 Page 118.

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was not necessary on the 23d of July to call in new parties, but only to call upon the old. The opinions previous to June 30th will be found in British Appendix, vol. ii, pages 2, 16, 32, 98, 100, 138; that of the 30th June, in vol. i, page 181.

On the 28th of July the solicitor of the Consul wrote the secretary of the commissioners of customs that he had every reason to believe the vessel would sail on the 29th; and on the morning of the 29th telegraphed him she had gone. The letter reached the secretary before the telegram.1

Escape of the Alabama.

When this information was received, therefore, by the commissioners of customs, the vessel could not have been far from Liverpool, perhaps not yet out of sight of some of "the thousands of persons" who "from the shore" had seen her "anchored in the river." Yet no order was given for her pursuit. In another case it might, but in the present the United States are inclined to think it will not, surprise the Arbitrators to learn that the opinion of the Law-Officers of the Crown advising the detention of the vessel, delivered at the Foreign Office on the 29th, was not made known to the commissioners of customs" until 4 p. m. on the 31st of July, or two days after the Alabama had left the Mersey, and twelve hours after she had finally sailed from Moelfra Roads." 99 3

She was accompanied as she left Liverpool by the tug Hercules, which "kept in sight of her until she lay to, about a mile off the Bell Buoy, and about fourteen miles from the Canning Dock." The tug returned to Liverpool about 7 p. m. of the 29th, bringing back from the " new gun-boat" "some of Mr. Laird's workmen and riggers." 3

Inefficiency of the

On the morning of the 30th, the Consul called in person upon the col lector and informed him that the tug was then in port, havsubsequent proceed- ing returned from the Alabama the evening previous; that she reported the Alabama cruising off Port Lynas, and that she (the tug) was then taking on board men and equipments to "convey down to the gun-boat." 4

4ngs.

The collector sent the surveyor to the tug and he reported that he found a considerable number of persons on deck, "some of whom admitted to me that they were a portion of the crew and were going to join the gun-boat." He also informed the collector that it was said she had cruised off Port Lynas the night before.

5

After this the Hercules left Liverpool and went to the Alabama, finding her at Beaumaris Bay about 3 o'clock in the afternoon of the 30th, She remained with her until about midnight and then returned to Liverpool."6

The tug was not followed. Her movements were not watched. No telegrams were sent to the customs officers or any other representative of Her Majesty's Government at Port Lynas, Beaumaris, or any other station or district in the vicinity of where the Alabama was known to have been. She arrived near Port Lynas, at Moelfra Roads, at 7.38 in the evening of the 29th, and remained there at anchor until 3 o'clock in the morning of the 31st."

This was ascertained by the collector at Beaumaris, and reported by him to the secretary of the customs on the 2d of August, in reply to a telegram addressed to him on the 1st. Had such telegram been sent

1 Brit. Case, p. 96.

2 Report Commrs. Customs, Brit. App., vol. i, p. 226.

3 Brit. Case, p. 97.

Brit. Case, p. 96; Am. App., vol. vi, p. 407.

Brit. Case, p. 97. 6 Ibid.

7 Ibid., p. 98.

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