You will perceive by the enclosed copy of a despatch of the 23d instant,
from Mr. Archibald, that he has been at great pains to sift the whole
affair by examining Captain Smiley again, for the purpose of
ascertaining whether, by any chance, there was any exaggeration in the
first report submitted to you.
I regret to say that on an examination of the papers now submitted to
you, I cannot look upon your reply as conveying, by any means, a
satisfactory explanation of the occurrences, and must come to the
conclusion that there must have been some wilful concealment of facts on
the part of the boarding officer, thus obliging the Secretary of the
Navy, on his side, to take an erroneous view of those facts.
Ensign Seaman’s conduct was, as Mr. Burnley had the honor to state in his
note of the 20th ultimo, strongly condemned by the commanding officer of
the Santiago de Cuba; but of this no notice seems to have been taken by
the Secretary of the Navy Department; not a single examination of the
ship’s papers was made, but the boarding officer immediately set fire to
the ship, and grossly ill treated the engineer.
As to whether the seizure of the vessel, when within range and protection
of a rebel battery, rendered the vessel liable to destruction and the
men to be held as prisoners of war, it will be for her Majesty’s
government to decide when the
[Page 806]
case is laid before them; but until that decision reaches me, it is my
duty to resist such an assumption, for I consider that the actual facts
of the case furnish no foundation for it.
The vessel was, it is true, within range of the enemy’s battery, owing to
the accident of the grounding; but there was no concert between them, no
seeking of protection from the fort, no expectation of it, and, in fact,
but for the extraor dinary conduct of the boarding officer in firing the
ship, the fort might have known nothing at all about the prize. When she
was discovered and fire opened the capture of the vessel had been
completed; she had been set fire to and aban doned by her captors. I
must, therefore, resist the pretension that a neutral crew,
non-combatants and unresisting, are to be treated as prisoners of
war.
Until, therefore, I am proved to be wrong, and the whole narrative of
facts proved to be a romance, I must assume that the wounding of the
men, the firing of the ship, and the detention of the crew, are unlawful
acts committed on a British ship and British seamen.
I have the honor to be, with the highest consideration, sir, your most
obedient, humble servant,
Mr. Archibald to Lord Lyons.
New York,
November 23,
1864.
My Lord: I have the honor to acknowledge
the receipt of your lordship’s despatch of the 17th instant,
transmitting to me a copy of a note dated the 1st of November, but
received by your lordship only on the 16th instant, from the
Secretary of State of the United States, respecting the cause of the
detention of the master and crew of the Night Hawk.
This note contains the substance of an explanation in regard to the
capture of the Night Hawk and detention of the crew of that vessel,
furnished by the honorable the Secretary of the Navy. It is, I
presume, founded on a report made by the officer who was in charge
of the boarding party which captured the Night Hawk. The statements
contained in it are, in some important particulars, so much at
variance with those made by the master of the Night Hawk, and
communicated by me to your lordship in my despatch of the 17th
ultimo, that I deemed it right to take the earliest opportunity
which the great pressure of business admitted to visit and examine
the officers, as well as the master of the ship, in reference to the
whole of the circumstances connected with the capture of the vessel.
I have accordingly embodied their statements of facts in affidavits,
made before me by the master, chief officer, and chief engineer of
the ,Night Hawk, which affidavits I transmit, herewith enclosed, for
your lordship’s information. From these depositions it appears that
the Night Hawk ran aground before the commander and crew were aware
that they were being chased, the first intimation of their being
pursued being the discharge of small-arms from the Niphon’s boats;
that this firing was entirely unprovoked, no resistance being
offered, nor any attempt of the crew being made to escape until
after the first volley was fired. In the explanation forwarded by
the Navy Department it is stated truly.that Fort Fisher opened fire
“shortly” after the steamer was boarded, but it is left to be
inferred that the boarding party were impeded in their efforts to
get the ship off by reason of the fire from the fort. In regard to
this, Captain Smiley and his officers swear positively that not a
shot was fired from the shore until after two boats had left the
steamer, and were well on their way to the Niphon. It is manifest,
from the facts sworn to,
[Page 807]
that it was owing solely to the setting fire to the steamer that
she attracted the attention of the fort, and that from this
circumstance resulted the firing from the shore.
In the explanation it is stated that the boarding party abandoned
the. Night Hawk, “bringing with them such of the officers and crew
as had not succeeded in making their escape.” The master and
officers swear positively to the fact of fourteen men, including
three who were wounded, being left on the deck of the steamer; of
the master’s remonstrance with the officer for his inhumanity, and
of the report of the officer himself to his commander of the fact of
a “lot of others” being left on board. These fourteen did not
include the six men who had escaped from the steamer after the
firing of small-arms from the boarding party.
it is sworn in the affidavits that the engineer accompanying the
boarding officer asked permission to extinguish the fire and get the
ship off, which was refused. The master assures me that in twenty
minutes’ time, with the rising tide and the action of the engines,
the ship could have been got off. It is now known that the ship did
eventually float off, and that the fire, after burning for nearly a
day, was extinguished. It is evident, however, that but for the
erroneous conduct of the boarding officer, the ship would have been
got off and become a valuable prize, and the lives of the men left
on board would not have been so recklessly perilled as they
were.
The question, however, now for consideration is the legality of the
detention of the officers and crew of the Night Hawk, seemingly as
prisoners of war. This detention is attempted to be justified on the
ground that a part of her cargo consisted of contraband of war, and
that at the time of her capture and destruction she was within the
range and protection of the rebel batteries.
The proposition that because a neutral ship carries contraband of
war, even in the attempt to violate a blockade, she is liable to
destruction without adjudication, is a novel one. The fact that she
was within the range, of the rebel batteries until these batteries
actually opened fire, did not, under the circumstances, render it
necessary, and did not justify the officer in destroying the
ship.
The statement that the ship was laden at Liverpool by Henry La Force
is erroneous. The ship was laden at Bermuda. Mr. La Force merely
acted as broker at Liverpool, and was not interested as owner in the
ship or cargo. The statement that he is a well-known agent of the
insurgents may or may not be mere assertion; but surely this
statement, and other circumstances, (which are not stated,) are a
very insufficient foundation for the declaration that “little room
for doubt is left that both the vessel and her cargo were, in point
of fact, belligerent and not neutral property, liable to capture,
or, if attempting to escape, thereby showing a consciousness of
guilt to such destruction as might result from that attempt.” That a
neutral vessel violating a blockade should attempt to escape is
quite natural; but when boarded and captured, her destrue-tion would
certainly not be justified by any such previous attempt to escape.
That men, quiet and unresisting, should, when a volley of small-arms
was fired at them, escape for their lives, is not less natural; but
that, from this obvious and natural proceeding, such a consciousness
of guilt should be inferred as rendered the ship liable to
destruction, seems a strange deduction.
Had the Night Hawk been got off and brought into this port for
condemnation, it can hardly be doubted that the officers and crew,
being neutrals, would have been discharged, as usual in other cases,
after the taking of the testimony before the prize commissioners. If
through the proceedings adopted by the boarding officer, and
certainly without any resistance or interference on the part of the
master and crew of the Night Hawk, that vessel has not become the
subject of adjudication, it seems peculiarly hard on the latter that
they should be treated as belligerents and held as prisoners of war.
These men, twenty three
[Page 808]
in
number, have now been imprisoned for seven weeks. I trust that, on a
reconsideration of the circumstances, the government of the United
States may be disposed to discontinue their further detention.
I have, &c.,
Affidavit of Commander Smiley.
Uriah Francis Smiley, at present confined in the county jail, New
York, late commander of the British steamer Night Hawk, of
Liverpool, maketh oath and saith that he is a native of the
county of Down, Ireland, and a subject of her Britannic Majesty,
and has never taken the oath of allegiance to any foreign state;
that he has seen and read an enclosure, dated the 1st instant,
in a despatch from Lord Lyons to the British consul, containing
the substance of a report of the capture of the said steamer,
and this deponent saith that the facts in relation to the said
transaction are as follows :
The Night Hawk ran in towards New inlet on the night of the 29th
of September, without any hindrance from any vessel of
blockading squadron. That at about 11 o’clock p. m. the steamer
grounded for about ten minutes, but being backed off proceeded
on her way, and that about three-quarters of an hour afterwards,
owing to the mistake of the pilot, she again ran aground and
remained fast, but would have floated off in a short time, as
the tide was rising. That shortly before the steamer ran aground
some guns were fired, from a vessel, but at such a great
distance and in a direction so different from that of the Night
Hawk that deponent believed they were directed at some other
vessel. That he had no idea that his vessel was actually pursued
until a volley of small arms-was fired from the crew of a boat
approaching the Night Hawk, which was the first intimation they
had of her being pursued. That at this time the Night Hawk was
fast aground. - That the first discharge of small-arms wounded
the surgeon, Mr. Taylor, who was standing beside deponent on the
bridge, a ball having passed through his thigh. That two or
three more volleys were fired before the crew of the boat
boarded the steamer, wounding Patrick Hartigan, a seaman, and
John McKee, a fireman. And this deponent solemnly swears, that
no one on board the Night Hawk made any resistance or show of
resistance, nor did any one escape or attempt to escape before
the first volley of small-arms was fired, but that directly
after the first discharge, the pilot, signal man, and four
others, lowered a small boat, jumped into it and escaped to the
shore, and that none of these were wounded. And deponent further
saith, that the officer in charge of the boarding party, who the
deponent has since learned was Ensign Seaman, from the United
States ship Niphon, having inquired what ship it was, and being
told by deponent that it was the Night Hawk, from Bermuda,
without asking for the ship’s papers or making’ any further
inquiry, went into the cabin and set the ship on fire, at the
same time sending an officer into the fore part of the steamer
to fire her there, which was also done. That within three
minutes after the steamer was boarded she was set on fire. That
at the time this was done, deponent told the boarding officer
that there was a canister containing about forty pounds of
powder in the mate’s cabin. That a Mr. Churchill, an engineer of
the United States ship Niphon, who formed one of the boarding
party, asked permission of the ensign to put the fire out and
get the ship off, inasmuch as, he said, no one from the shore
could interfere with them for an hour to come, and that as the
tide was rising the steamer would float off soon. That the said
boarding officer refused to grant such permission, saying that
he did not care a damn—he would blow them all to hell. That the
boarding officer then ordered deponent and the crew of the Night
Hawk into the boat of the
[Page 809]
Niphon and the only available boat of the
Night Hawk. That at this time the chief engineer of the Night
Hawk civilly asked the boarding officer to allow him to go down
to his cabin for some of his things. That the only reply which
the officer made was calling the engineer a damned rebel, and a
violent blow with a pistol in the face of the engineer which
laid his cheek open, inflicting a very severe wound. That there
were taken in the two boats, including this deponent,
twenty-three in all of the officers and crew of the Night Hawk.
That there were at that time left on board fourteen men in all,
including the three wounded men who were lying on the deck. That
on pushing off from the steamer’s side, deponent remonstrated
with the boarding officer against leaving the rest of the crew
and the wounded men on board the ship. That at this time some of
the men on deck were seen going towards the stern, as if to put
the fire out, when the boarding officer pointed his pistol at
them, and with coarse oaths threatened to shoot them. Mr.
Churchill, his engineer, begged him not to do so. That the two
boats then moved off toward the Niphon; and that, on deponent
again referring to the inhumanity of leaving the men in the
ship, as they might be burnt or blown up, and that the ensign
ought to send a boat to their relief, that officer replied, that
if they could not bale out the boat that was lying astern and
get off in it, they might go to hell and be damned. That at this
time the flames were coming up through the cabin scuttle, and
deponent solemnly swears that not a single gun was fired from
Fort Fisher or any battery on shore until after the two boats
had left the Night Hawk and were well on their way to the
Niphon. That Fort Fisher then fired some shot and shell over the
Night Hawk, the after part of which was at this time in flames.
And deponent further saith, that when the boats came alongside
the Niphon, the boarding officer called out to the commander
that he had the captain and twenty-two other prisoners from the
Night Hawk, and that there was a lot left on board whom he could
not bring off, but that there was a boat alongside which they
could bale out and get off in. That on boarding the Niphon,
deponent reported to Captain Campbell, her commander, the
leaving of the wounded men and the rest of the crew on board the
steamer, and complained of the conduct of the boarding officer.
Captain Campbell said he regretted having sent him, adding, that
he was a man of ungovernable temper. That deponent was then
transferred to the United States ship Sandago de Cuba, and on
going on board reported to Captain Glisson, her commander, the
conduct of the boarding officer in firing on the crew of the
Night Hawk, and in his setting fire to the ship and leaving the
wounded men and rest of the crew on board. Captain Glisson said,
in reply, that Ensign Seaman was not a proper person to have
been sent to board the prize; that the setting fire to her was
unjustifiable, and that he would report him to the admiral, or
words to that effect. And deponent lastly saith, that the Night
Hawk is a British ship, registered at Liverpool, and is the sole
property of Edward Lawrence, of Liverpool, a British subject.
That the ship sailed from Liverpool in ballast and took in her
cargo at Bermuda, which consisted almost entirely of provisions,
but including twenty-six bags of saltpetre and sixty pigs of
lead. That Henry L. Force, referred to in the enclosure above
mentioned, was not owner of either vessel or cargo, or any part
of them, but is a ship-broker and shipping agent, and as broker
attended to the clearing of the ship at Liverpool for
Bermuda.
Sworn at the county jail,
New York, this 22d day of
November, A. D. 1864,
[l.s.]
E. M. ARCHIBALD, Her British Majesty’s
Consul, New York,
[Page 810]
Affidavit of Chief Officer
Brown.
James Brown, late chief officer of the steamer Night Hawk, at
present confined in the county jail, maketh oath and saith, that
he is of the age of thirty years; that he is a British-born
subject, a native of Scotland, and has never taken an oath of
allegiance to any foreign state; that he has read the foregoing
affidavit of Uriah Francis Smiley, and that the statements
therein made are just and true, saving that deponent was not
present at the time that Captain Smiley was taken on board the
Santiago de Cuba, and did not hear the converse tion which is
stated by Captain Smiley to have taken place between him and
Captain Glisson.
Sworn by the said James Brown at the county
jail, New York, this 22d day of November, A. D. 1864, before
me.
50
E. M. ARCHIBALD, H. B. M. Consul, New
York
Affidavit of Engineer McIntyre.
William McIntyre, late chief engineer of the steamer Night Hawk,
at present confined in the county jail, maketh oath and saith,
that he is of the age of forty years, a native of Glasgow, and a
British subject, and has never taken oath of allegiance to any
foreign state. That he has heard read the foregoing affidavit of
Uriah Francis Smiley; and deponent saith that he was taken from
the Night Hawk in the ship’s boat, and was not in the Niphon’s
boat in which Captain Smiley and his first officer were taken
from the Night Hawk, and did not, therefore, hear the
conversation between Captain Smiley and Ensign Seaman, or see
the latter present a pistol at the portion of the crew who
remained on board the Night Hawk. Neither was deponent present
at the conversation which is stated to have taken place between
Captain Smiley and Captain Glisson, but deponent saith that in
all other respects the statements in the said affidavit of Uriah
Francis Smiley are correct and true.
WILLIAM McINTYRE
Sworn by the said William McIntyre at the county jail, New York,
this 22d day of November, A. D. 1864, before me.
[l. s.]
E. M. ARCHIBALD, H. B. M. Consul New
York.
