Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Mr. Adams to Mr. Seward.
Sir: A representation made by Mr. Morse in regard to a supposed outfit of a war vessel recently sold by the government has led to an exchange of notes with the Foreign Office, copies of which are herewith transmitted.
[Page 394]I likewise send such information as I have been able to get respecting the proceedings in the case of the Pampero at Glasgow. It would seem that the Scotch jurists feel themselves less embarrassed by technical difficulties than their brethren in this kingdom.
I learn from a good source that there will be a difference of opinion among the law lords in the appealed case respecting the Alexandra. But I know not how this will affect the decision.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
[Enclosures.]
1. Mr. Adams to Lord Russell, March 18, 1864.
2. Mr. Morse to Mr. Adams, March 17, 1864.
3. Lord Russell to Mr. Adams, March 18, 1864.
4. Morning Star, March 23, 1864.
Mr. Adams to Lord Russell.
My Lord: I have the honor to submit to your consideration the copy of a letter addressed to me by Mr. Morse, the consul of the United States at this port, relative to another war vessel, lately belonging to her Majesty’s government, which is fitting out under suspicious circumstances.
I pray your lordship to accept the assurances of the highest consideration with which I have the honor to be, my lord, your most obedient servant,
Right Hon. Earl Russell, &c., &c., &c.
[Enclosure.]
1. Mr. Morse to Mr. Adams, March 17, 1864.
Mr. Morse to Mr. Adams.
Sir: Some time since the screw steamer Amphion, a fifty-gun ship of war, was sold out of her Majesty’s service, as was supposed, for breaking up. She has recently had some partial repairs made on her, and temporary or jury masts put in, as though preparing for a short voyage. She has had steam up once or twice this week, as if preparing to move out of dock. Her fittings as a ship of war are still complete; and I am informed that the real owners or their agents here intend to move her to some more quiet locality, where a thorough refitting will attract less attention.
She is not registered, nor has there been any notice given at either customhouse or registry office of an intention to register.
[Page 395]She is now in the Victoria dock, London, and may leave at any time when the tide serves for leaving the docks. Permit me to suggest the propriety of asking the attention of the government here to this ship, that there may not be another escape, and a repetition of the Rappahannock case, which I have reason to fear is the intention of those controlling her.
I am, sir, very respectfully, your obedient servant,
Hon. C. F. Adams, United States Minister.
Lord Russell to Mr. Adams.
Sir: I have the honor to acknowledge the receipt of your letter of this date calling the attention of her Majesty’s government to the circumstances under which the Amphion, a vessel lately sold out of her Majesty’s navy, is being fitted out for sea, and I have the honor to inform you that I have lost no time in forwarding a copy of your note to the secretary of state for the home department.
The attention of her Majesty’s government was directed to this vessel in January last, but it turned out, upon inquiry, that she was lying in the Victoria docks completely dismantled and dismasted, with no signs of any fitting out for sea having commenced; and the impression among the dock officials was that it was intended to employ her as an emigrant vessel.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Charles Francis Adams, Esq., &c., &c.,&c.
[Untitled]
While the Alexandra case has got into a position of such hopeless muddle that even the judgment of the supreme court, before which it was last pleaded, can do nothing more than settle a point of form as to the powers of the exchequer judges to make certain rules, it is somewhat satisfactory to find that in a similar cause now before the Scotch courts a judgment has already been given which goes to the marrow of the vexed question under the foreign enlistment act. The Pampero was seized in the Clyde under very much the same circumstances as the Alexandra was detained in the Mersey, upon the allegation that she was being fitted out as a confederate privateer. Unfortunately for the reputation of Glasgow, the Japan—now the Georgia—had formerly managed to escape, and commence her detestable work of burning the merchant ships of the United States of America. In seizing the Pampero the government were thus not acting without having good and sufficient reasons, although the parties implicated, like their Liverpool associates, have not been without abettors in Parliament. The case came before the exchequer judge of the court of session, upon an elaborate information at the instance of the crown, framed apparently upon the model of that which has been so well torn to pieces in the Alexandra [Page 396] discussions. The defendants took exceptions to the relevancy in point of law of certain of the counts in the indictment, upon the same grounds as were urged by Sir Hugh Cairns and his brethren in the exchequer court. They contended that these objections should be disposed of before trial, but the exchequer judge decided that it would be better to get at the facts in the first instance before dealing with the objections to the relevancy, and appointed a day for trial. The defendants appealed to the “Inner House,” which fulfils in Scotland the functions of the exchequer chamber in such cases as the present, and on Friday last their lordships united in a very sound judgment, which we may well commend to the attention of the lord chief baron, and those who have spun so many flimsy theories in favor of privateer builders out of the seventh section of the statute.
Two leading objections were taken by the defendants: first, that with which we are now tolerably familiar, that as the information did not contain any allegation of arming, the statutory words “equip, fit out, and furnish” were not applicable in regard to a cruiser or vessel intended to commit hostilities; and the second, that the statute is not directed against those who merely equip a vessel even when it is intended to commit hostilities, if the hostilities are not meditated by the actual equippers, but by purchasers, or parties into whose hands the vessel may ultimately come. Upon the first objection we had the opportunity of making some comments when the Alexandra case was tried, and when the lord chief baron was reported to have ruled upon the authority of a dictionary that all the three expressions above quoted meant, and in the case of a cruiser could mean something else than, actual arming. Unfortunately the points of law in the English trial have never come up purely upon their merits, but the whole proceedings have been from first to last a confused wrangle, little creditable to English jurisprudence. It is all the more important, therefore, to have the decisive ruling of the Scotch judges upon the meaning of this imperial statute. In the court of review the finding of the exchequer judge, that all the questions of law should be postponed until after the trial of the facts, was not entirely assented to, the judges concurring that it would be better to dispose at once of those objections to the information which related solely to the construction of the statute. That which related to the “arming” theory was very summarily set aside by the lord president (McNeill) in a manner antagonistic to the ruling of the chief baron. After recapitulating the version contended for, that the words “equip, fit out, and furnish” applied to a transport or store-ship, and the subsequent phrase “or arm” was the sole expression intended to be applicable to a cruiser, the first judicial authority in Scotland sharply adds, “I think that is a very strained interpretation, and I cannot adopt it.” Then upon the further proposition that the word “arm” being applicable to a cruiser, and no such act being alleged in the information, while the words “equip, fit out, and furnish” alone were used, the information was defective, his lordship added, “I am of opinion that the words ‘equip, furnish, and fit out’ are sufficient, and that those words will cover a greater or less extent of arming.” Lord Curriehill held that the words “equip, furnish, fit out, or arm “were used in the British statute as synonymous with or as exegetical of each other, and that, moreover, their meaning was to be such as would harmonize with the intents set forth in the context. He was therefore of opinion that the objection that arming was not expressly added to equipping in describing the offence in the first ninety-six counts of the indictment was not Well founded. Lord Deas, after splitting some hairs, came substantially to the same conclusion; and Lord Ardmillan, who entered more fully into the general question, gave his opinion no less decisively that it was not necessary to allege arming in the information, because the word “equip” might, in his view, cover arming to a greater or less extent; and further, that the statutory offence might be committed without the ship being actually armed. The judgment unanimously pronounced was in accordance with these views. Upon the more subtle objection, that the statute is [Page 397] not directed against equipping a vessel as a cruiser unless the actual equippers intend to commit the hostilities, the judges were equally unanimous. They repelled both pleas, and ordered the case for trial on the 5th of April.
These four judges, all of them men of distinguished ability, and the lord president of the court, especially conspicuous for the clearness and vigor of his mind, must now be added to the two judges of the court of exchequer who differed from the ruling of the lord chief baron upon the construction of this imperial statute. It is somewhat novel to find Scotch judges brushing aside legal cobwebs and subtle theories, and arriving at the sound common sense construction of an act which has puzzled the experienced minds of the English bench, but none the less satisfactory that the views adopted by the law officers of the crown have thus received the imprimatur of the highest court in the sister kingdom. We cannot doubt, if the lord chief baron had allowed the bill of exceptions originally tendered by the counsel for the crown, that the same sound views would before this have been announced by the highest judicial authority in the empire. The House of Lords is now occupied, not with the main question at issue, but with the subsidiary, and compared to the importance of the action the very paltry, point whether the novel remedy granted by the barons of the exchequer in lieu of the ordinary procedure in cases of misdirection was within the competency of the barons to grant or not. That may be a most interesting question for the lawyers, and it has apparently puzzled the House of Lords; but the public do not care one jot whether the rules be sustained or repealed. They have some anxiety to ascertain if the foreign enlistment act be sufficient to preserve our ports from being made the starting points of armed expeditions against friendly nations. In consequence of repeated miscarriages we cannot have that satisfaction at present from the decision to be given in the case of the Alexandra, although we cannot believe that even an adverse judgment against the crown on the subsidiary question will have the effect of throwing the case out of court, and we are therefore all the more thankful that light has been shed upon the construction of the statute by the Scotch judges. It would be well for those who meditate embarking in the nefarious traffic to consider the tendency of the decision in the case of the Pampero, and the strong probability, all but amounting to a certainty, that the same views will ultimately be propounded by the highest judicial authority in England.