[51] *Part IV: Considerations proper to be kept in view by the Arbitrators in reference to the cases of the Florida, Alabama, Georgia, and Shenandoah.
Part IV..—Introductory statement. In considering the facts about to be presented to the tribunal relative the four vessels which, after having been originally procured from British ports, were employed as confederate cruisers in the war, it is right that the arbitrators should bear in mind the following propositions, to some of which their attention has already been directed in an earlier part of this case:
- 1.
- The powers possessed by Her Majesty’s government to prohibit or prevent the fitting out, arming, or equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure with that intent of vessels specially adapted within its jurisdiction to warlike use, were powers defined and regulated by the statute or act of Parliament of July 3, 1819, (the foreign-enlistment act.)
- 2.
- The modes of prevention provided by the statute were two, of which both or either might be adopted as might be deemed most expedient, namely, (1,) the prosecution of the offender by information or indictment; (2,) the seizure of the ship, which, after seizure, might be prosecuted and condemned in the same manner as for a breach of the customs or excise laws or of the laws of trade and navigation.
- 3.
- The persons empowered to seize under the provisions of the statute were any officers of customs or excise or of Her Majesty’s navy, who by law were empowered to make seizures for forfeitures incurred under the laws of customs or excise, or of trade or navigation; and the seizure was to be made in the same manner as seizures are made under those laws.
- 4.
- The customs officers were not empowered by law to make a seizure until an information on oath should have been laid before them. Nor, without such an information on oath, had any magistrate jurisdiction under the provisions of the statute.
- 5.
- After a seizure made, it was bylaw necessary that proceedings for
the condemnation of the vessel seized should be instituted in the
court of exchequer and brought to trial before a jury. In order to
obtain a condemnation it was necessary to prove two things:
- (a.)
- That there had been in fact an equipping, furnishing, fitting-out, or arming of the vessel, or an attempt or endeavor so to do, or an issuing or delivery of a commission for the vessel, within the dominions of the Crown;
- (b.)
- That the act had been done with intent, or in order, that the vessel should be employed in belligerent operations as described in the seventh section of the statute.
- 6.
- By proof, in a British court of law, is understood the production [Page 273] of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief, such as a reasonable person would be satisfied to act upon in any important concerns of his own, of the truth of the fact to be proved. And by evidence is understood the testimony, on oath, of a witness or witnesses produced in open court, and subject to cross-examination, as to facts within his or their personal knowledge. Testimony which is mere hearsay, or as to the existence of common reports, however prevalent and however generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court.
- 7.
- In the judgment of Her Britannic Majesty’s government, and in that of its official advisers, the special adaptation of a vessel to warlike use was among the acts prohibited by the statute, provided there were sufficient proof of an unlawful intent, although the vessel might not be actually armed so as to be capable of immediate employment for war. But no court of law had pronounced a decision on this point, and the question was never raised before any such court until the trial of the case of the Alexandra in 1863.
[52] Her Britannic Majesty’s government now proceeds to state for the information of the tribunal the facts relative to the cases of the Florida and Alabama. It may be here *remarked that when these cases were brought to the notice of Her Majesty’s government, and up to the time of the departure of the Alabama from Liverpool, there had been no instance from the commencement of the war of a vessel ascertained to have been fitted out in, or dispatched from, any British port for the purpose of engaging in hostilities against the United States. The only vessel to which the attention of Her Majesty’s government had been directed before the Florida had proved to be a blockade-runner.
It may be added that the claims for the interference of Her Majesty’s government in the case of these and other vessels were based, according to the statement of Mr. Adams in his letter to Earl Russell, dated October 9, 1862, on evidence considered by him to “apply directly to infringements of the municipal law, and not to anything beyond it.”1
- Appendix, vol. i, p. 216.↩