Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume II

[102] *Part VIII. The Clarence, Tacony, Archer, Tuscaloosa, Tallahassee, Chickamauga, and Retribution.

[undated.]

In respect of these vessels (with perhaps one exception, which will be noticed presently) no failure of duty on the part of Great Britain is expressly or distinctly alleged by the United States. As to the first four, it is only insisted that, as they were armed and employed as tenders by vessels in respect of which there is alleged to have been a failure of duty, Great Britain ought to be charged with the losses occasioned by them to the United States. Part VIII.—The Clarence, Tacony, Archer, and Tuscaloosa.

the tallahassee and chickamauga.

Her Majesty’s government has little information respecting the earlier history of these two vessels, beyond what may be gathered from documents presented to the arbitrators by the United States. From this source it may be collected that they were two out of a number of steamers built in England for blockade-running, and all alike, or nearly alike, in construction. They were built for speed, with double screws. There is no pretense for saying that either of them was, either wholly or in part, specially adapted within British territory for warlike use; nor has this been alleged by the United States. It is clear that they were without any such special adaptation. Both of them had been noticed, before they originally left England, by. the United States consular officers, who were always on the watch to detect any indications of such an object or purpose; but as to neither of them was the least suspicion expressed that she was fitted or intended for any employment other than blockade-running. The Tallahassee is, indeed, in the Case of the United States, alleged to have been “fitted out to play the part of a privateer;” and, for the evidence of this, the arbitrators are referred to a letter from Mr. Adams to Earl Russell. It might have been inferred from such a reference that Mr. Adams had asserted the fact, or at least expressed a suspicion of it, at the time. But the letter is dated 15th March, 1865, when it had become well known that the ship had for a short period been taken from her usual employment and used in making prizes. The Tallahassee and Chickamauga.

Although the assertion mentioned above has been made, unsupported by a particle of evidence, respecting the original outfit of the Tallahassee, the United States have not added to it another, without which it is not relevant to the questions at issue: namely, that the British government had reasonable ground to believe that the vessel was intended to be used for war. It would be of no avail to show (were it possible to do so) that the Tallahassee was fitted for war (which she was not) or intended to be used for war, (of which, again, there is no proof at all,) unless it could also be shown that the government of Great Britain was or ought to have been, in some way cognizant of that intention. But this is nowhere so much as alleged or suggested on the part of the United States.

As these vessels were not constructed or specially adapted for war, so neither were they armed, fitted out, or equipped for war within British territory. They were fitted out for a quite different purpose. There is, indeed, so far as Her Majesty’s government is aware, no evidence that they were built for the confederate government at all; although, like some other vessels which had originally been built for private trade, they were afterward found in the hands of that government.

[103] In the summer of 1864, when the greater part of the southern sea-coast had fallen into the hands of the United States, and access to the remaining ports of the confederacy (now more effectively blockaded) was becoming a matter of greater and greater difficulty, the confederate government appears to have tried the experiment of putting guns into one or two blockade-running ships and sending them out to cruise. The only vessels with which this experiment was tried, so far as Her Majesty’s government is aware, were *the Atlanta and Edith, which were armed and commissioned, one after the other, under the names of the Tallahassee and Chickamauga. That the resolution was formed, in the case of the Chickamauga at any rate, after the ship had come into the possession of the confederate government, and in consequence of her being found fast under steam as a blockade-runner, is admitted in the Case of the United States. The expedient of thus arming and commissioning merchant-ships thus bought or hired for the purpose had been resorted to by the Government of the United States on a very large scale at the commencement and during the earlier part of the war. Vessels of all sorts and sizes, which could be made suitable (to borrow an expression from the Case of the United States) for “the sort of war carried on” by that government, were procured by scores, and employed as fast as they could be found.

But neither the Tallahassee nor the Chickamauga was found well fitted for this new employment. The latter appears, from the statements of the United States, to have been only fifteen days at sea. The former, after a cruise of about three weeks, was “found to be ill-adapted for the purposes of war,” and sold to a private merchant, who gave her the name of the Chameleon.¹

It is represented in the Case of the United States that the Tallahassee, before her reconversion, cruised for a short time under the name of the Olustee. There is no evidence, however, of the identity of the Tallahassee with the Olustee, beyond a statement by one Boreham, whose ship was captured by the Olustee, that his ship’s carpenter, who had previously been captured by the Tallahassee, thought they were the same.²

The visit of the Chickamauga to Bermuda will be noticed in a subsequent section. Here it is enough to say that the United States are in error as to the accommodation obtained by her at that colony and the coal shipped there.

The United States notice the facility with which one of these vessels (the Tallahassee) was reconverted into a ship of commerce, in which character she was afterward suffered to enter and remain in British ports; and it appears to be suggested that this ought to have been in some way prevented by Her Majesty’s government. In the case of this vessel, the question whether the lieutenant-governor of Bermuda had acted rightly in treating her as no longer a ship of war was referred to the law-officers of the Crown, who reported as follows:

With respect to the first question contained in the dispatch from the lieutenant-governor of Bermuda, we are of opinion that he exercised a sound discretion in treating the Chameleon (after he had satisfied himself of the truth of the representations made by her master) as a merchant-vessel belonging; to the country of one of the belligerents. It is competent to the government of either belligerent to sell or transfer a ship of war to a private merchant, or to change the character of a vessel from that of a ship of war to that of a merchant-vessel, if the government chose to trade on its own account.

To the second question, we answer that the merchant-vessels belonging to the citizens of both belligerents, and registered in their ports, ought to be admitted to the harbors of Her Majesty on the same footing. The absence of a formal recognition by Her Majesty of the Confederate States does not affect the principle of strict neutrality upon which the vessels of both belligerents are so admitted.¹

A similar question was raised when she came to Liverpool, and was resolved in the same way.

It is undoubtedly true that vessels, not originally designed for war, which have been temporarily employed for that purpose, like the two vessels in question, may be very easily reconverted into ships of commerce; but neutral powers cannot be called upon to exclude such a vessel from their ports on account of her former employment nor to treat her otherwise than as a ship of commerce, if they have no reason to doubt the fact that she is no longer commissioned and armed for war. The vessels armed and commissioned in 1861 and 1862 by the Government of the United States were at liberty, when that employment was over, to return to their original trade; and for a neutral government to refuse to treat them either as ships of war when in commission, or as ships of commerce afterward, would have been wrong for exactly the same reasons which would have made such a refusal wrong in the case of the Sumter, (Gibraltar,) or of the Tallahassee, (Chameleon.)

[104] The arbitrators will look in vain, in the case of the United States, for any failure of duty charged against Great Britain in respect of either of these vessels. It is not alleged *that, in respect of either of them, this government failed to exercise due diligence to prevent a violation of any obligation specified in the three rules, or of any other neutral duty. The United States seem to have found themselves unable to make any definite charge; yet they nevertheless ask the arbitrators to hold Great Britain “responsible for the acts” of both these ships, and to award to the United States, on account of them, compensation calculated on the same basis as in the cases of the Alabama itself.

Her Majesty’s government has here no charge to meet, no argument to answer; and it has a right to call upon the tribunal to dismiss at once these utterly groundless claims.

the retribution.

The Retribution. We now arrive at the case of the Retribution. The account given of this vessel is, that she was built in the State of New York; was, in 1861, seized by the confederate government; was converted from a steamer into a sailing-ship in the waters of North Carolina, and then armed and employed by that government as a cruiser. It is not alleged that she ever received any outfit or equipment in or from British territory. What is alleged is merely this, that on one occasion she took a prize, (the Hanover,) captured by her near San Domingo, to Long Cay, an island of the Bahama group, “and there sold the cargo without previous judicial process;” and that, on another occasion, the Emily Eisner, a prize captured “off Castle Island,” (one of the Bahamas,) “was taken to Long Cay, and, notwithstanding the protest of the master, and in the presence of a British magistrate, was despoiled of her cargo, a portion of which was landed, and the balance willfully destroyed. Upon the strength of these allegations alone, the United States ask the arbitrators to hold Great Britain “responsible for the acts” of the Retribution.¹ Claims for the value of prizes captured by her are inserted in the general list of claims; and she is not distinguished from the other vessels, in the vain “pursuit” of which the Navy of the United States is represented as having been engaged. This is asked, “not only for the general reasons heretofore” (in the Case of the United States) “mentioned as to this class of vessels, but because, in the case of each of the captured vessels above named, the acts complained of were done within Her Majesty’s jurisdiction.” The British government is not exactly Informed what general reasons for demanding compensation from Great Britain are considered by the United States to be applicable to the class of vessels to which the Retribution belonged —that is to say, vessels built in the United States, wholly armed, fitted out, and commissioned within confederate territory, and never even furnished with coal in any British port; but it is right to call the attention of the tribunal to this admission, that the claims of the United States are founded on reasons which they suppose to extend to vessels of this latter class.

The British government might fairly decline to enter into any discussion, before the tribunal, of claims such as those made on account of this ship, since they are obviously of a different class from those “generically known as the Alabama claims,” and cannot properly be reckoned among them. Her Majesty’s government prefers, however, to state the facts, inaccurately referred to by the United States, so far as it is acquainted with them.

[105] The case of the Hanover appears to have been as follows: In December, 1862, a schooner arrived at the port of Fortune Island, or Long Cay, and was reported by her master (or the person who appeared to be and acted as such) to have run ashore—no uncommon accident in those seas—on a neighboring islet, and to be in distress. Long Cay is a small island or strip of land, belonging to the Archipelago of the Bahamas, and about two hundred and forty miles from the seat of government. From the ship’s papers, which were regular, it appeared that she was the schooner Hanover, bound from Boston to Havana, or to seek a market; the master further stating that his instructions were to dispose of the cargo, purchase with the proceeds a cargo of salt, and try to run the blockade. The master’s name was shown by the ship’s papers to be Washington Case; and it was in that name that the person who represented himself to be master signed the manifest, bills of lading, and other documents, entered his vessel at the revenue office, and finally cleared her, having loaded a cargo of salt at Long Cay. The magistrate of the district, who resides in the island of Inagua, but happened to be at Long Cay at the time, went to the place, and questioned the man, but had no reason to doubt his identity or the truth of his story; nor was there, indeed, any circumstance to suggest a doubt. Some words casually let fall by a drunken seaman after the supposed master had left the island, (which he did by another vessel, leaving the Hanover under the command of the mate,) first gave rise to a suspicion that he had been passing under a name which was not his own; but there was no reason to suspect that the vessel had been a prize. No intimation of the circumstances ever *reached the colonial government till the 11th March, 1863. A person residing at Nassau, as agent of American underwriters, then addressed a letter to the governor, stating that the Hanover had been captured by the Retribution; and that the person who had represented himself to be Case was, in reality, one Locke, otherwise Parker, the captain of the Retribution.¹

It is obvious that these facts, assuming them to be true, impose no liability on Her Majesty’s government. If the orders of 1st June, 1861, which forbade prizes to be brought into British ports, had not been issued, the Hanover might have been openly brought in and her cargo sold in the Bahamas, and the United States would have had no right to complain. The captain of a confederate ship contrived, by forgery and frandulent personation, to violate these orders, and by so doing rendered himself amenable to British law. Locke was afterward twice arrested at Nassau for this offense. On the first occasion he forfeited his bail and left the island; on the second he was brought to trial, but was acquitted for want of evidence. Proof of the facts which it was necessary to establish could only be given by some one who had been on board of the Hanover, or of the Retribution, at the time when the capture took place; and although the agent of the American underwriters, acting at the instance of the attorney-general, sent to the United States to endeavor to secure the attendance of the master or some of the crew of the Hanover, ho such testimony could be obtained.²

It may be added that, while Locke was in prison awaiting his trial, an application was made by the Government of the United States for his extradition, on a charge of his having been concerned in an alleged act of piracy, having no connection with the case of the Hanover. Earl Russell wrote in reply:

It appears to Her Majesty’s government that the United States Government are not entitled to obtain the extradition of Locke until he shall have been tried for the offenses alleged to have been committed by him against British law, and, if convicted, shall have undergone any sentence which may be passed upon him But Her Majesty’s government are unwilling that, in consequence of any delay on this account in the extradition of Vernon Locke, the means of supporting the graver charge against him should be weakened; and I have, therefore, to state to you that Her Majesty’s government will waive their right to prosecute Locke for the offenses of conspiracy and forgery, if the evidence upon the charges arising out of the seizure of the Chesapeake shall prove to be sufficient to justify extradition by the government of the Bahamas.³

It does not appear that the Government of the United States made any attempt to produce the evidence which is required by law to support a demand for extradition.

[106] Of the case of the Emily Fisher, Her Majesty’s government now hears for the first time, although it is said to have happened nearly nine years ago. No complaint appears to have been made to the colonial government about this vessel; and no intimation that anything illegal had occurred in relation to her seems to have been given to the attorney-general or any official connected with the administration of criminal law in the colony, although the agent for American underwriters, whose duty it would have been to bring forward the case, was, during the year 1863, in constant communication with the attorney-general in reference to that of the Hanover. The then collector at the port of Long Cay is now dead; and the time is past when authentic information of the facts could be obtained.¹ Evidence produced under such circumstances ought not (if received at all) to be accepted without very close scrutiny. The evidence offered by the United States is that of the owners of the ship, (who were not present, and could have no personal knowledge of the matter;) of one, Sampson, who represents himself as having been employed at that time as a “detective” in the Bahamas by the American Government; and of the master of the Emily Fisher. Sampson swears that all the facts alleged respecting the capture of the Emily Fisher and the subsequent transactions are true “within his personal knowledge,” and that he testified to them in 1866, in a case tried before a court in New Jersey.² On reference to the published proceedings of that case, it will appear that he gave no such evidence, although it would have been extremely material. He then swore only that he had seen the Retribution at Long Cay, lying outside of the Emily Fisher, and had been introduced “by an acting magistrate at Long Cay” to her officers, with whom he had had “a general talk about the difficulty with the North and South.”³ That he should have had personal knowledge of circumstances which are stated to have occurred at a great distance before the two vessels arrived at Long Cay, where he was, is obviously impossible; and *the American Government is well aware that such testimony would be at once rejected in an American court as it would be in a court of Great Britain. The evidence, therefore, reduces itself to that of Staples, the master. Staples alleges in effect that he was captured off an islet called Castle Island, nearly two days before he arrived at Long Cay; that his captor was in league with some wreckers, (persons whose trade it is to make profit by saving vessels abandoned or in distress,) and ran the ship aground, when the wreckers took possession of her; that she was afterward taken to Long Cay, in company with the Retribution; and that “he (the master) was not able, when there, to obtain possession of the brig until after he had bargained with the wreckers to pay them 50 per cent, on the cargo and 33⅓ per cent. on the vessel; when, after making affidavit of his being the master, he was placed in possession by the collector, and went on board.” He adds that “he was told by the captain of the Retribution that the wreckers were to pay him something handsome, and the deponent believes they did so;” and that he “was obliged to accept the wreckers’ terms at the port of entry, because the brig lay under the guns of the privateer, and the authorities declared their inability to protect him.” He was “told by the authorities that, though the law would not allow the privateer to touch the brig, if he wished to do so they had no means of preventing him.”⁴ What is here alleged, and may be true, is a conspiracy between the captain of the Retribution and the wreckers to represent the Emily Fisher not as a prize to the Retribution, but as having run aground and been got off by the latter, and thus to enable the wreckers to extort a large salvage, for which they were to pay a sum of money to Locke. Locke would thus be enabled to make profit by a prize which he would otherwise have been obliged to release or destroy; and the fact of his having recourse to this circuitous and frandulent transaction proves that he did not venture to attempt an actual sale of the ship or cargo even in this remote and unfrequented spot. Nothing is said about “the presence of a magistrate.” Nor is anything said (which might have been expected) about a “protest” by the master; probably he was afraid to make one while his vessel was under the guns of the Retribution, against which the “authorities,” apparently the local revenue officer, told him it would be impossible to protect him, the port being a very small place in a remote island. It is not even stated that he ever told the authorities what had occurred before his arrival at Long Cay. He paid the salvage demanded, regained his ship and part of his cargo, part having been stolen or wasted, and left the island.

It is possible that, on these facts, supposing them to be true, the owners of the ship and cargo may have been entitled to legal redress against the persons concerned in defrauding them of their property; and, if so, they might probably have obtained such redress if they had taken the necessary steps at that time. They took no steps, however; they did not even make complaint or give notice of what had occurred to the colonial government; and now, nearly nine years afterward, when authentic information cannot be obtained, the United States bring forward this case, not as a ground for making compensation to the owners of the Emily Fisher and her cargo, but in support of the grave charges against the British government which they allege before this tribunal, and of a claim to hold Great Britain liable for all the acts of the Retribution. Her Majesty’s government denies that the facts, if proved, argue any failure of international duty on the part of Great Britain, or furnish any evidence of such a failure.

1. Mr. Wilkinson to Mr. Gilbert, Appendix, vol. v, p. 151. The Atlanta brought cargo from Wilmington to Bermuda early in July, 1864, and cleared outward again with cargo, as a merchant-ship, immediately afterward. At the end of July or beginning of August she may have been armed at Wilmington, and dispatched thence as the Tallahassee; and she is said by the United States to have returned to Wilmington on the 25th of August.
2. Appendix to the Case of the United States, vol. vi, p. 732.
1. Appendix to British Case, vol. v, p. 153.
1. Case of the United States, pp. 390, 391.
1. Appendix to British Case, vol. v, pp. 22, 165.
2. Ibid., p. 187.
3. Ibid., p. 185.
1. Appendix to British Case, pp. 17, 23.
2. Appendix to Case of the United States, vol. vi, p. 736.
3. Appendix to British Case, vol. v, p. 196.
4. Appendix to Case of the United States, vol. vi, p. 738.