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 III

VI.—The Florida.

June 10, 1872.

We now proceed to refer the Arbitrators to the evidence upon which the Government of the United States relies as applicable to the case of each vessel separately. We begin with the Florida.The Florida at Liverpool.

This vessel, under the name of the Oreto, was built at Liverpool, England, and sailed from that place on the 22d of March, 1862, without any attempt at her detention by Great Britain. She was in construction and outfit evidently adapted to warlike use.

On the 18th of February Mr. Adams, in behalf of the United States, submitted to Earl Russell, for his consideration, “the copy of an extract of a letter,” addressed to him by the consul of his Government at Liverpool, “going to show,” as he said, “the preparation at that port of an armed steamer, evidently intended for hostile operations on the ocean.”¹ Information by Mr. Adams.

This communication from Mr. Adams was, on the next day, referred by Earl Russell to the Lords Commissioners of the Treasury that being the appropriate department of Her Majesty’s Government for such reference.² This department at once called upon the Collector of Customs at Liverpool for information, and by his direction the vessel was inspected by a government inspector, who, on the 21st of February, reported that she was “a splendid steamer, suitable for a dispatch-boat, pierced for guns, but has not any on board, nor are there any gun-carriages.”³ The builders were W. C. Miller & Sons, one of the firm being a government officer, “the Chief Surveyor of Tonnage” at that port.⁴ Action of Her Majesty’s government.

This firm, on being applied to by the collector for information, said, “We have built the dispatch-vessel Oreto. * * * She is pierced for four guns. * * * She is in no way fitted for the reception of guns as yet; nor do we know that she is to have guns whilst in England.”⁵

On the same day these reports of the Surveyor and builders were transmitted by the Collector to the Commissioners of Customs, with the statement that “the vessel is correctly described” in the note of the builders.⁶

On the 22d of February, the Commissioners of Customs reported to the Lords Commissioners of the Treasury that “the Oreto is pierced for four guns; but she has as yet taken nothing on board but coals and ballast. She is not, at present, fitted for the reception of guns, nor are the builders aware that she is to be supplied with guns while she remains in this country.”⁷

A copy of this report was furnished by the Lords Commissioners of the Treasury on the 24th of February to Earl Russell, and he transmitted a copy to Mr. Adams on the 26th.⁸

On the 22d of March, the vessel sailed from Liverpool, and on the 28th of April arrived at Nassau, in the island of New Providence, one of the Bahamas, and within the jurisdiction of Her Majesty’s Government.¹ She was then evidently a man-of-war.

On the 13th of June, while still at Nassau, she was visited by Commander Hickley of Her Majesty’s ship Greyhound, with several of his officers. The captain of the Oreto, on being inquired of by Commander Hickley, in the presence of the officers of the Greyhound and three of her own “whether she [the Oreto] had left Liverpool fitted in all respects as she was at present,” replied “Yes, in all respects;” and “that no addition or alteration had been made whatever.”² Captain Duguid, the master of the Oreto himself, on his examination as a witness before the Vice-Admiralty Court at Nassau on the 26th of July, three months after her arrival, testified: “The fittings of the Oreto from the time of her quitting Liverpool up to the present time are the same, with the exception of a little alteration in the boats’ davits. Four of them were lengthened two feet. That is the only alteration since she left Liverpool.”³ Duggan, the chief officer, testified to the same effect.⁴

On the 30th of April, only two days after her arrival at Nassau, she was examined by Commander McKillop, of Her Majesty’s ship Bulldog, then the senior naval officer in command at that station, and he, on the same day, reported to the Secretary of the Admiralty that “a very suspicious steamer, the Oreto, evidently intended for a gun-boat, is now at the upper anchorage under the English flag; but as there are no less than three cargoes of arms and ammunition, &c., united to run the blockade, some of these guns, &c., would turn her into a privateer in a few hours.”⁵

On the 28th of May Commander McKillop, in a communication to the Governor of the Bahamas, reported her as “apparently fitting and preparing for a vessel of war.”⁶ And again, on the 6th of June, in another communication to the same officer, he says, “I have visited the screw-steamer Oreto, and examined her. She is fitted in every way for war purposes, magazines, shell-rooms, and other fittings, totally at variance with the character of a merchant vessel * * * The captain does not deny that she is intended for a war-vessel.”⁷ And on the 8th of the same month, in a letter to the Colonial Secretary, he says, “In my letter of the 17th instant [ultimo?] I made His Excellency aware of the warlike character of that vessel, and I am of opinion that she is not capable of taking in any cargo, having no stowage.”⁸

The letter of the 17th referred to is not produced, but on the 13th of June Commander Hickley (who had succeeded Commander McKillop in command at the station) and the principal officers of his ship, after having visited and examined the vessel, certified to the Governor that “the Oreto is in every respect fitted as a man of war, on the principle of the dispatch gun-vessels in Her Majesty’s naval service. That she has a crew of fifty men, and is capable of carrying two pivot guns amidships and four broadside both forward and aft, the ports being made to ‘ship and unship,’ port bars, breeching, side-tackle, bolts, &c.; that she has shell-rooms, a magazine and light rooms, and handing-scuttles for handing powder out of the magazine, as fitted in the naval service, and shot-boxes for Armstrong shot, or shot similar to them. Round the upper deck she has five boats, (I should say,) a ten-oared cutter, an eight-oared cutter, two gigs and a jolly-boat, and davits for hoisting them up; her accommodation being in no respect different from her similar class of vessels in the Royal Naval service.”¹

Again on the 15th of June, in a further communication to the Governor, the Commander says:

These circumstances, her long detention in this port, her character, her fittings, convinced as I am also that during her stay in the port arrangements have been made for arming her outside, * * her evident equipment for war purposes, * * and my conviction, as also that of my officers and men that have been on board of her, that she is built intently for a war-vessel and not for a merchant ship, make it incumbent on me to seize the Oreto as a vessel that can be no more considered as a free-trader, but that she is, on the contrary, calculated to be turned into a formidable vessel of war in twenty-four hours; and that this I am convinced will be the case if she is permitted to leave Nassau. And, therefore, in her present state, a vessel under British colors, sailing from hence in such an equipped state to a professional eye, that I consider it would be a downright neglect of duty on my part to permit her proceeding to sea, without again urging most strongly on your Excellency the expediency of taking charge of her, as an illegally equipped British vessel, as in my professional capacity, as also in the opinion of my officers, it is impossible to consider her as any other, she being a bona fide vessel of war on our royal naval principle.²

And still again on the 16th, in another communication to the Governor, he says:

On the Oreto I have repeated my professional opinion, as also that of my officers, and I still have to express my conviction that she is a vessel of war that can be equipped in twenty-four hours for battle, and that she is now going out of the harbor as nearly equipped as a vessel of war can be without guns, arms, and ammunition.³

This evidence is taken, as the arbitrators will notice, exclusively from that furnished by Her Majesty’s Government in its Case, Counter Case, and accompanying documents; and the United States submit, it shows, beyond any controversy, that on the 18th of February, the date of Mr. Adams’s communication to Earl Russell, the Oreto was a vessel specially adapted to warlike use; that this fact was apparent upon an inspection of the vessel herself; that she had been constructed and so “specially adapted” within the jurisdiction of Her Majesty’s Government, and that she still remained in that jurisdiction.

She was intended to cruise or carry on war against the United States, and Her Majesty’s Government had reasonable grounds so to believe.

Mr. Adams, with his communication to Earl Russell on the 18th of February, submitted an extract from a letter of the Consul of the United States at Liverpool, in which it is said: “Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co., and that they own the vessel. * * Frazer, Trenholm & Co. have made advances to Fawcett, Preston & Co., and Miller, the builder.”⁴ And Mr. Adams in his note to Earl Russell says, “From the evidence furnished in the names of the persons stated to be concerned in her construction and outfit, I entertain little doubt that the intention is precisely that indicated in the letter of the Consul, the carrying on war against the United States. * * Should further evidence to sustain the allegations respecting the Oreto be held necessary to effect the object of securing the interposition of Her Majesty’s Government, I will make an effort to procure it in a more formal manner.”⁵ Character of Mr. Adams’s representation.

This communication was not accompanied by any evidence that could be made available in the courts of Great Britain. It was what it purported to be, a mere “statement of belief.” If Earl Russell desired further evidence to be furnished by the United States, he was invited so to say in reply. He did not, but in his reply on the 19th contented himself with acknowledging the receipt of the communication, and stating that he had “lost no time in communicating with the proper department of Her Majesty’s Government on this subject.”¹

On the 21st of February the builders reported to the Collector at Liverpool, “We have built the dispatch vessel for Messrs. Fawcett, Preston & Co., engineers of this town, who are the agents of Messrs. Thomas Brothers, of Palermo, for whose use the vessel, we understand, has been built. * * Mr. Thomas, of the firm at Palermo, frequently visited the ship while she was being built. * * We have handed her over to the engineers, and have been paid for her. According to the best of my information the present destination of the vessel is Palermo; and we have been asked to recommend a Master to take her out to Palermo.”² Action of the British government.

Thus one of the firms suspected by Mr. Adams is shown, by the statement of the builders, to have been concerned in her construction and outfit. On the same day, the collector transmitted this communication from the builders to the Commissioners of Customs, with a further statement of his own, viz: “I have every reason to believe that she is for the Italian Government, and not for the Confederates.”³

He gave no facts upon which he predicated his belief, and it will be noticed that there is nothing in the builders’ statement to justify such a belief. All the builders state is that they understood she was built for the “use of” a firm in Palermo, and that, according to the best of their information, her present destination was Palermo. Fawcett, Preston and Company were at the time “a firm of engineers and founders,” “carrying on an extensive trade” at Liverpool,⁴ but no inquiries appear to have been addressed to them. They were, as the builders said, the “agents” of the firm for whose “use” they “understood” the vessel was built, and were certainly likely to know for whose “use” she actually was built. It had already been urged against this firm “that they had been concerned in a shipment of arms for the Confederate States.”⁵ There does not seem to have been any good reason why Her Majesty’s Government might not have addressed an inquiry to them, yet for some reason it did not, or, if it did, the result has not been reported.What might have been done.

On the 22d of February, the Commissioners of Customs reported to the Lords Commissioners of the Treasury that they had instructed the “Collector at Liverpool to make inquiries in regard to the vessel Oreto, and it appears from his report that she has been built by Messrs. Miller & Sons for Messrs. Fawcett, Preston & Co., engineers of Liverpool, and is intended for the use of Messrs. Thomas Brothers, of Palermo, one of that firm having frequently visited the vessel during the process of building. The Oreto is pierced for four guns. * * The expense of her construction has been paid, and she has been handed over to Messrs. Fawcett and Preston. Messrs. Miller & Sons state their belief that her destination is Palermo, as they have been requested to recommend a master to take her to that port; and our Collector at Liverpool states that he has every reason to believe that the vessel is for the Italian Government. We beg further to add, that special directions have been given to the officers at Liverpool to watch the movements of the vessel, and that we will not fail to report forthwith any circumstance which may occur worthy of your Lordship’s cognizance.”¹ What actually was done.

It will be here observed, that the report does not state it was only understood by Miller & Sons that the vessel was intended for the use of Thomas Brothers, but it appeared from the report that she was so intended. Neither does it appear that inquiries had not been addressed to Fawcett, Preston & Co.; but it did appear that “special directions” had been given to the officers at Liverpool to watch the movements of the vessel, and that prompt report would be made whenever circumstances worthy of their Lordships’ cognizance might occur.

This report was transmitted by the Secretary of the Treasury to Earl Russell on the 24th;² and by Earl Russell to Mr. Adams on the 26th of February.³ The statements of the officers and builders on which the report was predicated were not sent with it. Earl Russell in transmitting the report did not intimate any desire that Mr. Adams should make an effort to procure further evidence.⁴ But on the same day of its date he (Earl Russell) telegraphed to Her Majesty’s Minister at Turin as follows: “Ascertain and report to me whether a vessel called the Oreto, now fitting out at Liverpool, is intended for the use of the Italian Government.”⁵ On the 1st of March the Minister at Turin replied: “Bicasoli tells me that he has no knowledge whatever of the ship Oreto, but will cause inquiry to be made.”⁶ No inquiries appear to have been addressed to the representative of His Majesty, the King of Italy, in London, or to his consul at Liverpool, and no further information was received from the Minister at Turin until after the vessel had sailed.

On the 1st of March, the same day with the receipt of the reply from the Minister at Turin, John H. Thomas, of Liverpool, “a natural-born British subject, born at Palermo, in the island of Sicily, of British parents,” declared in writing in the presence of the Registrar of Shipping at the port of Liverpool (one of the officers of the Government specially charged with the registry of vessels⁷) that he was “entitled to be registered as owner of sixty-four shares (the whole) of said ship. To the best of my knowledge and belief, no person or body of persons other than such persons or bodies of persons as are by the Merchant Shipping Act, 1854, qualified to be owners of British ships, is entitled as owner to any interest whatever, either legal or beneficial, in the said ship.”⁸

This declaration was made in accordance with the provisions of section 38 of the Merchant Shipping Act, 1854, of Great Britain,⁹ to obtain the registry of the ship as a British vessel. Without it the Registry could not have been granted, for none but naturalborn British subjects and persons made denizens by letters of denization, or naturalized, could be owners of a British ship.¹⁰ Registry of the Florida.

Upon this declaration the vessel was, on the 3d of March, registered as a British vessel, at the port of Liverpool, under the name of the Oreto.¹ This Registry was made in one of the public records, by an officer of the Government specially charged with that duty.²

On the 4th of March the Oreto was cleared at Liverpool in ballast, with a crew of fifty-two men, for Palermo and Jamaica.³ This clearance must have been obtained from the office of the Collector of Customs at Liverpool.⁴ To be regular it should have been signed by the Collector or Comptroller,⁵ but that formality seems, in this particular instance, to have been omitted.⁶ Clearance.

On the 3d and 4th of March, shipping articles, in accordance with the form sanctioned by the Board of Trade, August, 1860, in pursuance of 17 and 18 Victoria, c. 104,⁷ were signed by the master and all the crew who sailed in the vessel, except two who signed as substitutes on the 14th and 15th, in presence of J. W. Hughes, shipping master at the port of Liverpool.⁸ These shipping articles specified a voyage from Liverpool to Palermo, thence (if required) to any port or places in the Mediterranean Sea and the West Indies, and back to a final port of discharge in the United Kingdom, the term not to exceed six months. In the same articles, in accordance with the prescribed form, the vessel is described as having been registered at the port of Liverpool, March 3, 1861; and Fawcett, Preston & Co. are named as “managing owners”⁹ Shipping articles, by the terms of the “Merchant Shipping Act, 1854,” are required to be signed in duplicate in the presence of the shipping master, whose duty it is to “cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each, seaman understands the same before he signs it, and to attest each signature”¹⁰ One part of the articles, thus in duplicate, must be retained by the shipping master, who is an officer of the Government, and who has a public office, known as the “shipping office.”¹¹

All this formality was gone through with in this case, as will be seen by a copy of the articles actually signed in the “shipping office” and before a “shipping master,” found in the Appendix to the British Case, vol. i, p. 161.

Thus then stood the facts known to Her Majesty’s Government on the 4th of March, eighteen days before the Oreto sailed. She was designed for war purposes. That was evident. She was for the use of some government, though registered in the name of a British subject. She did not belong to Her Majesty’s Government, and it was not “believed” or “suspected” that she belonged to or was intended for any other Government than that of Italy or the insurgents.Resume.

There were certainly circumstances of strong suspicion against her Italian ownership or destination. Mr. Adams based his opinion of her destination to the confederates directly upon the fact that he understood Fawcett, Preston & Co. and Frazer, Trenholm & Co. had been concerned in her construction and outfit. This last firm, he informed Earl Russell as early as the 15th of August, 1861, was “well known to consist in part of Americans in sympathy with the insurgents of the United States.”¹ In point of fact, only one of the partners resided in Liverpool, and he was a native of South Carolina, who, on the 13th of June, 1863, applied to Her Majesty’s government for a certificate of naturalization.² The other members of the firm were at the time actual residents of the State of South Carolina. One of them, afterward the Secretary of the Treasury of the insurgents, was, on the 5th of August, 1861, (as appears by the public records in the office of the Registrar of Shipping at Liverpool,) authorized by a “certificate of sale,” from her owner in Liverpool, to sell the ship Bermuda at any place out of the United Kingdom. This certificate of sale also described him as “of Charleston, in the State of South Carolina,” one of the ports at the time closed by the blockade of the United States.³ It was upon the occasion of a complaint by Mr. Adams as to this very vessel that he communicated to Earl Russell the relations of this firm with the insurgents.

The builders stated that Fawcett, Preston & Co. contracted with them for the building, and the records showed that they were the “managing owners,” directing the preparations for her departure after Mr. Adams’s complaints had been made known. No inquiry had been made of them. Mr. Adams stated she had been paid for by Frazer, Trenholm & Co. Her builders stated they had been paid, but omitted to say by whom.

In fact no inquiry suggested by Mr. Adams had been made, and, although he had been assured that the movements of the vessel “should be watched,” no single thing appears to have been done by any officer of the Government at the port of Liverpool after the reports of the 21st of February, or at London after the telegram of Earl Russell to the Minister at Turin on the 26th, until the vessel had been permitted to sail under a clearance granted in the face of so many attending circumstances of suspicion.

On page 55 of the British Case, after a recapitulation of the facts which had been developed up to the 1st of March, it is said, “No further information could be obtained by Mr. Adams or was received by Her Majesty’s Government up to the time of the sailing of the ship.” Mr. Adams had not been called upon to act further, and he had been assured that “special directions had been given to the officers at Liverpool to watch the movements of the vessel.”

It may be literally true that no other information had been received by Her Majesty’s Government. The officers at Liverpool seem to have taken their “special directions” literally, and watched only the “movements of the vessel,” but the United States submits that if Her Majesty’s Government did not receive further information, it was because it failed to use the means within its power to become better informed. It had been put upon inquiry, and was negligent if it did not act.Negligence of British officials.

What might it have done? On the 3d of March the vessel became a “registered British vessel,” and subject to the laws in force in the kingdom for the government and control of such vessels. Her ostensible owner was a British subject residing at Liverpool. Her “managing owners” were “a firm carrying on an extensive trade at Liverpool.”⁴ Frazer, Trenholm & Co. had a business office at Liverpool, and at least one of the partners (Prioleau) resided there.⁵

The Merchant Shipping Act, 1854, under which the vessel was registered, provided¹ that “if any unqualified person * * acquires, as owner, any interest, either legal or beneficial, in a ship using a British flag and assuming the British character, such interest shall be forfeited to Her Majesty,” and “it any person on behalf of himself or any other person or body of persons, wilfully makes a false declaration touching the qualification of himself or such other person or body of persons to own British ships, or any shares therein, the declarant shall be guilty of a misdemeanor, and the ship or share in respect of which such declaration is made, if the same has not been forfeited under the foregoing provision, shall, to the extent of the interest therein of the person making the declaration, * * be forfeited to Her Majesty.”What might have been done under the merchant’s shipping act.

The same Act² provides that “the Board of Trade” (one of the departments of Her Majesty’s Government)³ may, from time to time, whenever it seems expedient to them so to do, appoint any person as an inspector, to report to them upon the following matter, that is to say: * * *

“2. Whether the provisions of this Act or any regulations made under or by virtue of this Act have been complied with.” And by section 15, “every such inspector as aforesaid shall have the following powers, that is to say: * * * * * *

“3. He may, by summons under his hand, require the attendance of all such persons as he thinks fit to call before him and examine for such purpose, and may require answers or returns to any inquiries he thinks fit to make.

“4. He may require and enforce the production of all books, papers, or documents which he considers important for such purpose.

“5. He may administer oaths, or may, in lieu of requiring or administering an oath, require every person examined by him to make and subscribe a declaration of the truth of the statements made by him in his examination.”⁴

This was machinery in the hands and under the control of the officers of Her Majesty’s Government. It could not be managed or controlled by any of the officers of the Government of the United States. Here certainly were circumstances brought to the knowledge of the officers of Her Majesty sufficient to create at least a strong suspicion that some of the provisions of the Merchant Shipping Act had been violated, and an inspector might with propriety have been appointed and an inquiry instituted by him.

The builders, Fawcett, Preston & Co., Frazer, Trenholm & Co., and Thomas, if necessary, might have been called to give information; and, if called, Prioleau (one of the firm of Frazer, Trenholm & Co.) would have been compelled to state, as he did subsequently state under oath,⁵ that the contract for the building was made with Fawcett, Preston & Co. by James D. Bullock, who acted in England as the “agent of the Navy Department” of the insurgents; and that she was paid for through Frazer, Trenholm & Co., who were at the time the “financial agents” of the insurgents in Liverpool. He would also undoubtedly have been compelled to state (as did Mr. George D. Harris, of the firm of H. Adderly & Co., afterward on the trial before the Vice-Admiralty Court at Nassau) that his firm at Liverpool consigned her, on her departure from that port, to the firm of H. Adderly & Co. at Nassau; and in accordance with facts which have been subsequently developed, he must have been compelled to testify that, at the time of her registry she was in fact owned by the insurgent government, and was about to sail from Liverpool for its use.

Fawcett, Preston & Co. would have been compelled to testifythat-they contracted with Bullock for the construction of the vessel; that they did not, in their contract with Miller & Sons, act as the agents of Thomas Brothers; and that she was not intended for the Italian Government, but for the insurgents. They would also have been compelled to testify that at the very time they had themselves completed her armament, and were shipping it upon the Bahama (a vessel placed at the disposal of the agents of the insurgents for that purpose by Frazer, Trenholm & Co.¹) for transfer at Nassau, or some other port that might be agreed upon.²

Upon this information being thus obtained, Mr. Edwards, the Collector, would readily call to his mind the fact that, as early as the 4th of July, 1861, the Acting Consul of the United States at Liverpool had addressed him by letter as follows: “From information I have received, I have reason to believe that a person named Bullock has come to England for the purpose of procuring vessels to be fitted as privateers to cruise against the commerce of the United States, and that he will make Liverpool the scene of his operations.”³

It is true, as is said in the British Counter-Case, that in a court of justice in Great Britain, and, probably, before this tribunal instituted under the Merchant Shipping Act, a witness cannot be compelled to answer any question which would expose him to a penalty or to a prosecution for an offense against the law; but it is just as true that this is a privilege personal to the witness himself, and that the Government need not refrain from calling upon one of its subjects to testify, because he might elect to avail himself of such a privilege.

In view of these facts the United States ask the attention of the Arbitrators to the following statement in the Counter-Case of Her Majesty’s Government: “In truth, these open and notorious facts do not appear to have been discovered till long afterward, even by the industrious researches of the Government and subordinate officers of the United States.”⁴ The arbitrators will look in vain for any evidence of “industrious researches” by the Government or subordinate officers of Great Britain. A builder who knew nothing was inquired of and he gave his “understanding.” A Collector expressed his “belief,” and there the “researches” ended.

Again, on page 75 of the British Counter Case is this statement:

What the Government did on receiving Mr. Adams’s representations is stated in the British Case. Inquiry was instantly directed, but no information whatever could he obtained tending to connect the vessel in any way with the Confederate States. She was declared by the builder to be ordered for a firm in Palermo, a member of which was registered on his own declaration as her sole owner, and had frequently visited her when building. * * * Her first destination, as stated in her clearance, was Palermo, and her crew were nominally (and, as they evidently believed, really) hired for a mercantile voyage. On the one hand were the positive statements of the builder, the registered owner, and the Collector of Customs; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass sooner or later into the hands of the Confederate Government.

Inquiry was indeed instituted on the 19th of February, but it stopped on the 26th, and was never directed to the sources of suspicion indicated by Mr. Dudley. In fact, on the 26th of February every officer of Her Majesty’s Government, that the United States were assured would be on the “watch,” appears to have closed his eyes and to have left the vessel and her owners entirely to themselves.

On the 28th of April the Oreto arrived at Nassau. She was still a British ship, with a British registry, under the British flag, and in a British port.Arrival at Nassau.

On the 30th of April Commander McKillop, in his report to the Admiralty, says she is “under the English flag.”¹ Governor Bavley, in his letter to Commander McKillop, on the 3d of June, says: She “is a registered British vessel and carries the British flag,”² and Commander Hickley, on the 15th of June, in his letter, to the Governor, refers to her as “a vessel under British colors.”³ Conduct of British officials there.

As has been already seen, she was then evidently a vessel of war, and specially adapted to warlike purposes.

Her Majesty’s Government, at this time, certainly had reasonable grounds to believe she was intended to cruise and carry on war against the United States.

On the 9th of May Governor Bayley indorsed on a letter to him of that date from Mr. Whiting, the Consul of the United States,⁴ the following statement: “For coupling that fact with the description given me by the Captain of H. M. ship Bull dog, of the build of the Oreto, I cannot fail to infer that she is a vessel of war intended to act against the United States.”⁵ On the same day he caused a letter to the same effect to be addressed to H. Adderly & Co.⁶

And again on the 21st of June, in his report to the Duke of Newcastle, he says: “Throughout these occurrences I was averse from proceeding to extremities. Not that I considered the conduct of the Oreto to be entirely free from suspicion, or indeed from discourtesy to a neutral government.”⁷ How was Great Britain neutral to the Oreto, a British ship, under British colors? And in the same letter, he says Commander Hickley informed him “her real destination was openly talked of.”⁸ Again, “Her Majesty’s Government is informed and believes that during the blockade of the insurgent States it was a common practice for ships leaving the port of Nassau, with the intention of endeavoring to run their cargoes into the blockaded ports, to clear for St. John’s, New Brunswick.”⁹ “Early in the month of June, 1862,” (about the 4th,) “the consignees of the vessel, who were a mere mercantile firm at Nassau, applied to the Receiver-General (the proper officer for that purpose) for permission to load her for an outward voyage to St. John’s, New Brunswick.”¹⁰ At this time she was, according to the opinion of Commander McKillop, “not capable of taking in any cargo, having no stowage.” On the 9th she commenced taking in a cargo of “arms and ammunition, including some boxes of shells,” (not likely to be of much use at St. John’s,) but, being visited by Commander Hickley, discharged her cargo and cleared for Havana in ballast.¹¹

At Nassau, then, the Government certainly not only had reasonable grounds to believe, but actually did believe, that she was intended to cruise against the United States.Want of due diligence.

Under the Rules of the Treaty, Her Majesty’s Government was bound to use “due diligence” to detain the vessel at Nassau, as well as at Liverpool. This was not done, but she was permitted to clear for St. John’s,¹ when that was equivalent, according to the practice which prevailed at that port, to a clearance for the insurgent States.

But it is claimed by Her Majesty’s Government “that the Florida was seized while at Nassau, on charge of a violation of the Foreign-Enlistment Act; that proceedings were, by the Governor’s direction, instituted in the proper court, with a view to her condemnation, and that after a regular trial she was ultimately released by a judicial sentence.”²

It is also said, on p. 78 of the British Counter Case, that the Vice-Admiralty Court “was a Court of competent jurisdiction; the authorities of the Colony were bound to pay obedience to its decree; and, as soon as it was pronounced the persons claiming the possession of the vessel were entitled to have her immediately released.” As between the claimants of the vessel and Her Majesty’s Government seeking to enforce a forfeiture under the provisions of the Foreign-Enlistment Act, this decree may have been conclusive; but as between the United States and Her Majesty’s Government, it has not that effect, The duty of Her Majesty’s Government was to use due diligence to prevent the departure of the vessel, because she had been specially adapted to warlike use within its jurisdiction, and was intended to cruise and carry on war against the United States.Judicial proceedings at Nassau.

She was proceeded against on the sole ground that an attempt had been made to equip, furnish, and fit her out within the jurisdiction of the Bahamas.³ This is in terms admitted by Attorney-General Anderson in his defense as published in the Counter Case.⁴ The judge in announcing his opinion, says: “Now, to support the libel it is necessary that proof should be given, first, that the aforesaid parties, having charge of the Oreto, while the vessel was within the jurisdiction of the Vice-Admiralty Court of the Bahamas, attempted to equip, furnish, and fit her out as a vessel of war.”⁵ And again, on page 43 he says: “With respect to acts which were done, or circumstances which occurred on board the Oreto before she came within the jurisdiction of the Bahamas Vice-Admiralty Court, it is admitted, and is clear, that the Court has no authority to adjudicate.” And again, on the same page: “Captain Hickley’s evidence as to the construction and fittings of the vessel I should consider conclusive, even had there been no other; but that construction and those fittings were not made here, but in England, and of whatever nature they may be, do not subject the vessel to forfeiture here.”

The pleadings and the proof showed conclusively that the vessel had been specially adapted to warlike use at Liverpool, and that she was still with a British Registry under the British flag; but in the opinion of the judge, the proof did not show that any act had been done within the jurisdiction of his Court for which he was authorized to decree a forfeiture to Her Majesty.

This decree, therefore, does not operate as a defense to the claim now made against Her Majesty’s Government by the United States.

But the United States, on page 343 of their Case, have gone further than this, and said: “If it had been predetermined that the Oreto should be released by going through the form of a trial under the Foreign-Enlistment Act, the steps could not have been better directed for that purpose.” To this the Attorney General of the Colony has been permitted, through the British Counter Case, to make his response that, “this charge is wholly unfounded. Under the circular dispatch of the 15th November, already referred to, the responsibility of initiating Proceedings under the Foreign Enlistment Act was placed, and properly so, on the Attorney General of the Colony, and that officer had necessarily to be cautious in advising the institution of proceedings, which, if ultimately unsuccessful, might eventuate in rendering the seizors liable to heavy damages.¹

It will be observed the Attorney General does not deny, but on the contrary admits, that he was, during all the time the Oreto was at Nassau, the “confidential counsel of Adderly & Co.,” and that in a speech made in a trial in another court, which took place after the Oreto was libelled and before the decree was rendered, he said that “the Union of the United States was a myth now fully exploded.”² He thinks he did not use the words “Yankee fiction,” as “the use of words of the sort is not the style of language I am accustomed to adopt,” but he admits that he “may have used language embodying the expression of an opinion, which I certainly then entertained, that the Union which the flag was intended to represent had, as far as related to the Southern portion of North America, passed away.”³ Neither is it denied that Harris, one of the firm of Adderly & Co., consignees of the vessel, was one of the Executive Council of the Government of the Colony,⁴ or that A. J. Adderly, another partner in the firm, was a member of the Assembly.⁵

Her Majesty’s Government admits in its Case,⁶ and repeats in its Counter Case,⁷ that “in a proceeding in rem against a ship, to enforce a forfeiture for an alleged infringement of a Statute, a Court, wherever locally situate within the dominions of the Crown, might lawfully receive and adjudicate upon evidence of such infringement wherever the act or acts constituting it might have been committed.” The theory, then, on which the Attorney General founded and conducted his case before the Vice Admiralty Court was erroneous. A vessel specially adapted to warlike use in Liverpool might have been condemned on that cause of forfeiture in the Bahamas, but the Oreto was released.

The Attorney General, who conducted the proceedings, was also confidential counsel of Adderly & Co., when the vessel arrived at Nassau on the 28th of April, consigned to their care.⁸ One Heyliger, an agent specially detailed by the insurgents to look after their interests at Nassau,⁹ directed her to proceed to Cochrane’s anchorage, “there being no Confederate naval officer to take charge of her for the present.”¹⁰ She was, however, on that day entered at the Custom House at Nassau in ballast.¹¹ On the 19th of May the Consul of the United States wrote to the Governor of the Colony that it was “believed, and so reported by many residents here, that she is being prepared and fitted out as a confederate privateer.”¹²

The Governor directed an immediate report from the Receiver General as to the truth of these allegations, and he, on the same day, reported: “She did not enter the harbor, and now lies at Cochrane’s anchorage, and I have no information as to her future proceedings.”¹ On the same day the Attorney General was called upon for his opinion, and he reported as follows: “With respect to the Oreto, the Consults allegation is to the effect that it is believed and reported by many residents here that she is being prepared and fitted out where she now lies at Cochrane’s anchorage, which is within the limits of the port of Nassau, as a Confederate privateer. Now if such is the fact, an offense against the Foreign Enlistment Act has been committed, all parties implicated in which are liable to be criminally proceeded against for misdemeanor, and the vessel may be seized by any naval or revenue officer; but to justify proceedings either against the parties or the vessel, the matter must not rest on repute or belief alone, but the authorities must have positive facts to ground their proceedings on, and unless the Consul can adduce such, or they can be obtained through other channels, no steps can be taken either for the arrest of the vessel or those on board of her.”² Partial and unfriendly conduct of the colonial authorities.

On the same day the Governor caused a note to be sent by the Colonial Secretary to Adderly & Co., as follows: “I am directed by the Governor to notify to you, that if you are arming or putting arms on board the steamer Oreto, His Excellency will enforce the rules laid down in the Queen’s Proclamation, for, coupling that fact with the description given to his excellency by the captain of Her Majesty’s ship Bulldog of the build of the Oreto, His Excellency cannot fail to infer that she is a vessel of war intended to act against the United States; and as Her Majesty’s Government have expressed their deliberate intention of observing and preserving neutrality in the Queen’s possessions, His Excellency will use his strongest efforts to prevent either of the belligerent powers from arming or equipping vessels of war in this port.”³

To this, upon the next day, Adderly & Co. wrote in reply: “We beg to acknowledge receipt of your communication of yesterday’s date informing us that, if we were arming or putting arms on board of the steamer Oreto, His Excellency would enfore the rules laid down in the Queen’s Proclamation. In reply, we beg to state, for the information of His Excellency, the Governor, that we have neither attempted to arm or put arms on board of the British steamer Oreto, consigned to our firm, nor are we aware of there being any intention on the part of the owners to arm that vessel.”⁴

On the trial before the Judge of the Vice Admiralty Court, Harris, one of the firm, and, as has been seen, a member of the Executive Council, testified: “I to d Captain Duguid, very shortly after he arrived here, that they were talking a good deal about the hull of his vessel; mind, do nothing that will have the appearance of equipping.”⁵

Here it may not be improper to call the attention of the Arbitrators to a letter from Heyliger, the agent of the insurgents, to their Secretary of War, under the 2d of May, in what he says; “You are aware that she is a gunboat. * * * The Bahama is expected every moment with her armament, and I shall have it speedily transferred, though the matter will have to be delicately managed.”⁶ The Bahama did afterwards arrive. The United States are unable to give the date of her arrival, but she first appeared at Cochrane’s Anchorage, near the Oreto, without any entry at the Custom-House or any Custom-House Officers on board.¹ On the 26th the Receiver General advised the Colonial Secretary that he had “every reason to believe the consignees of the British steamer Oreto (which vessel arrived from Liverpool in ballast) intend shipping large quantities of arms, and munition of war as cargo. * * * Probably application may be made to allow cargo from other vessels to be transferred to the Oreto where she now lies.”²

On the 27th the Bahama entered inwards with Adderly & Co. as consignees.³

On the 28th Commander McKillip advised the governor that “several steamers having anchored at Cochrane’s Anchorage, I sent an officer yesterday to visit them and muster their crews, and ascertain what they were, and how employed. The officer reports that one steamer, the Oreto, is apparently fitting and preparing for a vessel of war. Under those circumstances I would suggest that she should come into the harbor of Nassau to prevent any misunderstanding as to her equipping in this port contrary to the Foreign Enlistment Act, as a privateer or warvessel.”⁴

On the same day the Governor addressed the Attorney General and desired “to know whether it is contrary to law to order the Oreto to come down to the harbor, as the Commander of the Bulldog has reported her to have the appearance of a privateer arming herself.”⁵ The Attorney General immediately replied that he was “of opinion that an order for the removal of the Oreto from Cochrane’s Anchorage, where she now lies, to the harbor of Nassau should not be made, as such order could not be legally enforced unless it was distinctly shown that such a violation of law had taken place in respect of her as would justify her seizure.”⁶

On the next day the Governor, having called for a further and more detailed report upon the same subject, the Attorney General in reply said.

My reply of yesterday was necessarily short, as your note was received at a late hour and I was anxious to send an immediate answer in order that any action in the matter referred to might be prevented. * * Any British or foreign trading vessel has a right, in carrying on her lawful commercial pursuits, to use as anchorage-places any of the harbors, roadsteads, and anchorages in the Colony. * * Beyond exercising the powers conferred on him by the trade laws, His Excellency has no power to compel the removal of the Oreto from her present anchorage, unless some act has been done in respect of her which would constitute a violation of law and subject her to seizure.

This brings me to the question whether there is anything disclosed in your communication which would, in a court of law, justify the forcible removal of the vessel from her present position. The information amounts to this: that the senior naval officer on the station has officially reported to the Governor that this vessel is apparently fitting and preparing for a vessel of war, or, as stated in your note of yesterday, has the appearance of a privateer arming herself. Now, unless Captain McKillop grounds the opinion formed and reported by him on some overt act, such as the placing of arms or other munitions of war on board of the vessel without the sanction of the Revenue Department, or some such similar act, evidencing an intention on the part of the persons in charge of the vessel to fit her out as a vessel of war to be employed in the service of a foreign belligerent Power, the forcible removal of the vessel from her present position, merely to guard against a possible infraction of the law, could not be justified. Such removal would in fact constitute a “seizure,” which the parties making would be responsible for in damages, unless they could show a legal justification which must be based upon something beyond mere suspicion.

He then says, while mere suspicion might not be sufficient to authorize a removal, it would justify the placing of “a revenue officer on hoard of her to watch the proceedings of the parties on board, in order that, if any actual contravention of the law took place, it might be at once reported, and prompt measures taken by seizure of the vessel and otherwise to punish all parties implicated therein.”

Then he says:

I will only now add that I feel that a great measure of the responsibility rests upon me in questions of this nature, and that it behooves me to be particularly cautious in giving any advice which may lead to a course of action on the part of the authorities here which may be considered as contravening the principles enumerated in the circular dispatch of His Grace the Duke of Newcastle, on the 15th of November last, in a part of which it is stated: “If it should be necessary for the Colonial authorities to act in any such case, [i. e., violation of the Foreign Enlistment Act,] it should only be done when the law is regularly put in force, and under the advice of the law-officers of the Crown.”¹

On the next day he wrote to the Colonial Secretary:

I have the honor to acknowledge the receipt of your letter of this day’s date, and have to express my regret that His Excellency should have misapprehended the meaning of my letter of yesterday’s date, which I certainly never intended should bear the construction which His Excellency appears to have placed on it, and which I respectfully submit a careful perusal will show cannot be placed on it. Any act of arming, or any attempt to arm a vessel in contravention of the Imperial Statute, commonly known as the Foreign-Enlistment Act, will subject the vessel to seizure, and it is quite immaterial in what manner the violation of law is ascertained, or by whose testimony it is established, the only necessary requirement being that the facts testified to should be such as would be received in court of law as legal proof of the violation of the statute sought to be established. With reference to the concluding part of your letter, I can only say that it is far from my wish to dictate to His Excellency the course to be pursued by him, my simple duty being to place before His Excellency my opinion on the state of the law bearing on such points as he may submit for my consideration, and that it is entirely for His Excellency to decide whether he will be guided by my views or not.²

The letter of the Colonial Secretary, to which this is a reply, is not given among the documents produced in evidence by Great Britain.

After the receipt of these several letters from the Attorney-General, the Governor addressed a communication to Commander McKillop, under date of June 2, in which he says that the Oreto should not be allowed to arm herself for belligerent purposes within the jurisdiction of the harbor. “But, inasmuch as it is not yet proved beyond doubt that the Oreto is a vessel of war, and as it is just possible that she may be only a merchant ship taking arms and implements of war solely for exportation, it is desirable that a more special and minute examination of her conditions and equipment should be made before she can be treated as a pirate, a privateer, or foreign man-of-war arming within our waters.” He therefore requested that such steps should be taken “as in your professional opinion seem best for the purpose of ascertaining the true character of the Oreto and the nature of her equipment; and if, after inspecting her guns, her crew, and the general disposition of the vessel, you are convinced that she is in reality a man-of-war or privateer arming herself here, then it will become your duty, either to concert measures for bringing the Oreto down into this part of the harbor, or, what will be a safer course, to remove your own ship to Cochrane’s Anchorage and there watch her proceedings from day to day.”³

On the day of the date of this letter (June 2) the cargo of the Bahama, consigned to Adderly & Co., was “warehoused” and stored at Nassau in the public warehouses.⁴ About this time, Adderly & Co. made application to the Receiver General for leave to ship a load of arms and other merchandise by the steamer Oreto.⁵

On the 4th of June this application was considered by the Executive Council, (Mr. Harris being a member,) and with their advice it was ordered by the Governor that if practicable the Oreto should take in her cargo within the port of Nassau.¹

In accordance with the advice of the Council, the Governor appears to have communicated this order to Commander McKillop, and he, under date of the 6th, reports: “I have visited the screw steamer Oreto and examined her. She is fitted in every way for war purposes, magazines, shell-rooms, and other fittings totally at variance with the character of a merchant-vessel. She has no guns or ammunition on board. The Captain does not deny that she is intended for a war-vessel.”² This report was referred to the Attorney General, and he on the 7th gave his opinion as follows: “There are no facts set forth in the within letter which would in my opinion authorize the seizure of the Oreto. They constitute only circumstances of suspicion, which if coupled with some actual overt act would doubtless materially strengthen the case against the vessel, but which do not in themselves form a ground of seizure.”

On the 13th of June the letter of Commander Hickley and the report of himself and his officers, a statement of the contents of which has been already given, was submitted to the Attorney General, and in regard to them he says: “I am of the opinion that there is nothing contained in those documents which would justify the detention of the vessel.”⁴

On the 15th of June, Commander Hickley, as has been seen, addressed another letter to the Governor, in which, in addition to what has been before stated, occurs this passage:

On my former communication to your Excellency of the 13th of June, I have the Crown Lawyers’ opinion, and I again bring the facts of the broadly suspicious character of the Oreto before you, with the addition of those of her old crew having left her, and for why, as likewise her entering or attempting to enter a new crew, for your consideration and the Law Officers of the Crown; and failing their sanction to take charge of the Oreto, (and it is improbable, if not impossible, that they can know a war vessel’s equipment as well as myself and officers,) I have to suggest that I should forthwith send her to the Commodore or Commander in Chief on my own professional responsibility; as allowing such a vessel as the Oreto to pass to sea as a British merchant vessel and a peaceful trader would compromise my convictions so entirely as to be a neglect of duty as Senior Naval officer here present, and certainly not doing my duty in co-operating with your Excellency for the protection of the harbor of Nassau.⁵

This being submitted to the Attorney General, he replied, that it did not appear to him “to carry the case against the Oreto further than shown in the previous reports of himself and Commander McKillop, and I contend that no case has as yet been made out for the seizure of that vessel under the Foreign Enlistment Act. With respect to the suggestion in the concluding part of Commander Hickley’s letter, I have to remark that, if the vessel is liable to seizure at all, it must be under the provisions of the Foreign Enlistment Act, and if so seized the question of her liability may as readily and efficiently be decided in the Court of Vice Admiralty of this Colony as before any Tribunal in Her Majesty’s Colonial Possessions, and consequently that no necessity exists, nor do I think that any excuse can be made, for sending her, as suggested by Commander Hickley, to the Commodore or Commander in Chief, who I presume are either at Bermuda or Halifax; while, on the other hand, if I am correct in the view I have taken of her non-liability to seizure, the reasons against sending her hence will of course be far more powerful; and therefore, on either view of the case, I advise His Excellency to withhold his sanction from the course of action suggested.”¹

On the receipt of a copy of this opinion, Commander Hickley abandoned his seizure of the vessel, since it was not sanctioned by the Law Officers of the Crown at Nassau, and as he was told by His Excellency that he did not “think it consistent with law or public policy that she should now be seized on the hypothesis that she is clearing out for the purpose of arming herself as a vessel of war beyond the limits of the harbor. We have done our duty in seeing that she does not leave the harbor equipped and prepared to act offensively against one of two belligerent nations, with each of whom Great Britain is at peace.”²

On the 17th, however, notwithstanding the strong opinion of the Law Officer of the Crown who discharged the duties of Queen’s Advocate and Attorney General of the Colony, the Governor yielded to the conviction of Commander Hickley and his officers that she was a vessel of war that could be equipped in “twenty-four hours for battle,” and consented to her seizure, as the “equipment of the Oreto, the object of her voyage hither, the intent of her voyage hence, the nature of her crew, and the purpose of their enlistment, are all the fair subjects of judicial investigation.”³ In accordance with this view of the case she was seized and the Governor gave “the necessary instructions to proceed.”⁴

Under these instructions the Attorney General proceeded against her on the theory of his opinions, so often reiterated, that she could only be held for acts of equipment and fitting out actually occurring within the jurisdiction of the port of Nassau.

The vessel had arrived at Nassau on the 28th of April, six weeks before her final seizure. From the first she was an object of suspicion and comment. Commander McKillop reported her arrival and his suspicions to the Admiralty in London, under date of the 30th of April. His report was received in London, so that it was communicated to the Foreign Office, on the 10th of June.⁵ Not a word went from any other officer at the Colony to the Home Government until the 21st of June, when Governor Bayley reported the seizure and all that preceded it, including the opinions of the Attorney General. This was communicated to the Foreign Office at London, on the 31st of July.⁶ Seizure of the Florida.

It was submitted to the Law Officers of the Crown, and they on the 12th of August reported: “We think that the facts warranted the seizure, but we must add that it is very important that, on the trial, evidence should be adduced of what occurred at Liverpool, as regards the building and fitting out and the alleged ownership and destination of the Oreto.”⁷

The Law Officers of the Colony had no communication whatever with the Law Officers of the Home Government. But on the 28th of June, Heyliger, the Confederate agent at Nassau, advised the insurgent Secretary of War that “the proceedings instituted for her release are now complete, and will be pushed forward vigorously. Our complaint was filed in Court this morning, and the libel may be put in to-day or on the 30th. On the 1st July our Counsel will argue on the law points.”⁸

And so it was in fact. The seizure was made on the 17th, supported by the affidavit of Commander Hickley on the 20th; an affidavit of claim was filed by Captain Duguid on the 27th; the libel was filed by the Attorney General on the 1st of July; the responsive plea of the claimant on the 21st;¹ the trial commenced on the 10th—at least the first witness was examined then; the last witness was examined on the 26th; the argument was made on the 30th, and the decree rendered on the 2d of August.²

It will be interesting to see what was being done by the agents of the insurgents while these proceedings were going on. Maffitt, who had been assigned by Commander Bullock to the command of the Florida, (then called the Manassas,) arrived in Nassau on the 6th of May,³ and on the 22d he reported to the insurgent Secretary of the Navy that he had arrived at Nassau, and had personally assumed command “of the Manassas, which vessel I hope to have ready for service soon.”⁴

On the 26th of May the insurgent Secretary of the Navy made a requisition upon the Treasury for $50,000, to be sent “to fit out and equip the Confederate States steamer Manassas, now at Nassau,”⁵ and on the next day (the 27th) a bill was ordered drawn for that amount, “in favor of Lieutenant John N. Maffitt, Confederate States Navy.”⁶

Heyliger was superintending the affairs of the insurgents at Nassau, and shipping regularly his cargoes of articles contraband of war.⁷

Nassau was visited by numerous parties, almost all of whom were more or less interested in what was then considered the rising fortunes of a new nation. Many of them were persons of education and acquirements, which gave them ready access to the best society of the place, while unfortunately, on the other hand, we had but few Northern visitors.⁸

The island of New Providence, of which Nassau is the only town, is a barren limestone rock, producing only some coarse grass, a few stunted trees, a few pineapples and oranges, and a great many sand-crabs and fiddlers. Before the war it was the rendezvous of a few wreckers and fishermen. Commerce it had none, except such as might grow out of the sponge trade and the shipment of green turtle and conch shells. The American war, which has brought woe and wretchedness to so many of our States, was the wind which blew prosperity to Nassau. It had already put on the air of a commercial city, its fine harbor being thronged with shipping, and its warehouses, wharves, and quays filled to repletion with merchandise. All was life, bustle, and activity. Ships were constantly arriving and depositing their cargoes, and light-draught steamers, Confederate and English, were as constantly reloading these cargoes and running them into the ports of the Confederate States.⁹

The notorious sympathies of the Colony and the supposed sympathies of England with the Southern Confederacy have, I doubt not, led the Consul, and may lead the Government of the United States, to imagine that the Oreto has all along received a collusive and dishonest support from the authorities of the place. Nothing could be further removed from the truth than this belief; still it would be exceedingly awkward were the reasonableness of these suspicions to be tested by the experience of any vessel which arrived equipped, to act on the Federal side, and expecting to find her arms and ammunition here.¹⁰

They are all southern sympathizers. * * * Indeed, this seems to be our principal port of entry, and the amount of money we throw into the hands of the Nassauites probably influences their sentiments in our favor.¹¹

On the 8th of Jane Captain Semmes arrived at the island and took rooms at the hotel. Heyliger and Lafitte, agents of the Insurgent States at Nassau, gave him a dinner, at which about forty persons were present. The same gentlemen also gave a dinner to Captain Maffitt while he was there, which was attended by the same number of persons.¹

During the existence of the blockade of the Southern ports of America, vessels leaving the port of Nassau, with the intention of endeavoring to run their cargoes into the blockaded ports, almost invariably cleared for St. John’s, New Brunswick, and many of them took in their outward cargoes at the anchorages adjacent to the harbor of Nassau.² Adderly & Co., the most influential mercantile establishment in Nassau,³ were receiving their two and one-half per cent. commission for transshipment; a most exorbitant demand, but one in unison with the usages of the place, and submitted to in consideration of retaining their interest.⁴

It is known that this trade of blockade-running has been a most profitable trade; that great fortunes have been made by many persons in carrying it on, and that Nassau and some other places have swarmed with vessels which have never previously been seen in those ports.⁵

In the midst of such surroundings, and with such a prosecutor, the case of the Oreto was tried, and resulted in a decree against Her Majesty; and the United States now repeat what they said in their Case: “If it had been predetermined that the Oreto should be released, the steps could not have been better directed for that purpose.” Adderly & Co. were at the outset informed what they must refrain from doing to avoid a conviction under the law as the Attorney General construed it, and they followed this advice, as it would seem, faithfully. The Attorney General commenced and prosecuted the case upon his construction of the law, which Her Majesty’s Government admits was erroneous. He made no claim before the judge for a different construction, and the judge proceeded with that point admitted against the Government. The United States believe, as did His Excellency, Governor Bayley, that it would have been found to be exceedingly awkward to Her Majesty’s Government if the reasonableness of their suspicions had been tested at that time by the experience of a United States vessel arriving at that port expecting to find its arms and ammunition there.Trial and release. The criticisms on these proceedings in the American Case are sustained.

As soon as the release was ordered, that “energetic officer,” Captain Maffitt, and his lieutenant, Stribling, “threw themselves” on board of the vessel.⁶ On the evening of her release, solomon, a shipping-master at that port, at the request of Maffitt, commenced engaging men for her at his shipping-office. By Friday morning he had sent on board sixty-five men, but in the mean time the vessel had gone outside,⁷ under a clearance in ballast for St. John’s, New Brunswick, obtained at the Custom House.⁸

On the 6th of August Lafitte, an insurgent agent, purchased the schooner Prince Alfred in the name of A. J. Adderly, one of the firm of Adderly & Co.⁹ On the 7th, Adderly & Co. loaded her from the public warehouse, with the cargo warehoused for them from the Bahama on the 2d of June, and with shot, shells, and stores warehoused at different times from other vessels. She was cleared outward on the same day for St. John’s.¹⁰

The Oreto went outside and steamed up and down the coast trying her machinery. Her Majesty’s ship of war, the Peterel, was at anchor outside the bar, and while there a boat from the Oreto, with “a man who stated he was the master in command of the Oreto,” came alongside; “said he was very short-handed, and wanted to anchor for about two hours to adjust his machinery, but if he anchored outside he had not sufficient crew to weigh his anchor, and begged I [the captain of the Peterel] would assist him by lending him men.” The men were refused, but he was told “he might hold on astern of the Peterel,” and a line was given him for that purpose.¹ The same night about one o’clock the Prince Alfred came out from Nassau while the Oreto was fastened astern of the Peterel. When she got outside of the bar, a light was struck on board; the Oreto let go the hawser of the Peterel, stood to the northward for a while, and then rounded to and took the Prince Alfred in tow.² The two vessels then proceeded, the Prince Alfred being in tow, to Green Cay, about sixty miles from Nassau, and there the guns, ammunition, and stores were transferred from the Prince Alfred to the Oreto, about a week being occupied in so doing.³ Armament of the Florida.

It is said on page 78 of the British Counter Case that Her Majesty’s Government has no means either of verifying or disproving the truth of the statement in the Case of the United States as to the arming of the Florida. On page 67 of the British Case, however, it is said that Her Majesty’s Government “has been informed and believes that she was subsequently armed for war by a Captain Maffitt; * * that she was then commissioned; * * and that after keeping the sea for a few days, she put in at the port of Cardenas, in Cuba, where (or at Havana) she remained for nearly a month. On the 4th September the vessel arrived at and entered the port of Mobile.” The precise point at which she took on her armament is not important. It is sufficient for all the purposes of the United States that she was armed within a short time after she left Nassau. It appears from the admissions in the British Case, that she entered the port of Mobile within a month after leaving Nassau; that she remained at Cardenas or Havana about a month before she went to Mobile, and that she was armed and commissioned before she reached Cardenas. These admissions establish, therefore, the important fact of arming shortly after leaving Nassau. But the United States submit that the proof presented by them establishes the further fact that she was armed at Green Cay, in the manner and under the circumstances they have alleged. This proof will be found in vol. vi of the American Appendix, pages 306 to 321.

The Oreto, with her guns all mounted, at 8 a. m. of the 17th, parted from the Prince Alfred, hoisted the flag of the insurgents, and started upon her cruise under the name of the Florida.⁴ She proceeded to Cardenas, a port under the jurisdiction of Her Majesty the Queen of Spain, and there attempted to ship a crew, but “the matter was brought to the notice of the Government,” and an officer sent to the commander of the Florida “with a copy of the proclamation of the Queen of Spain and a notification to him that the Florida had become liable to seizure” The commander then “repudiated the transaction, and to avoid difficulty with the Government,” paid the passage of twenty men to and from Havana, and returned the men to Havana. This was upon the 31st of August.⁵ At Cardenas.

She then sailed for Mobile and ran into the port through the blockade on the 4th of September “wearing the English red ensign and pennant,”⁶ and painted like a British vessel of war. A commander in Her Majesty’s Navy soon after the occurrence said, “had 1 met the Oreto at sea, armed and having a pennant, I should have taken her for one of our ships.”¹

She remained at Mobile until the 15th of January, and then ran the blockade outwards. Stopping at Havana on the way for forty-eight hours, she arrived again at Nassau early in the morning, about day-break, of the 25th.² She steamed in over the bar without a pilot and cast anchor without permission of the governor. On his attention being called to the proclamation which required permission before coming to anchor, Captain Maffitt “expressed his regret for having unwittingly violated the regulations of the port,” and was taken on shore by the adjutant of the fort in the Government boat to make his explanations to the Governor.³ At Nassau, January 25, 1863; receives coals, supplies, and recruitments.

He called at the Government House between eight and nine o’clock, and not seeing the Governor, addressed him a note as follows: “As this vessel is in distress for want of coal, I very respectfully request permission to anchor in the harbor for the purpose of obtaining the same.”⁴ Permission was given and she “took on board coal and provisions to last us for several months.”⁵ Her bunkers were filled with coal, and some placed on deck and in every place that could hold it. The coal was taken from wharves and vessels lying in the harbor. The money for coaling her was paid from Mr. Henry Adderly’s store.⁶ She remained in the harbor until afternoon of the 27th, and at sunset was outside of the bar, opposite the entrance of the harbor, “within a mile of the lighthouse, running up and down under slow steam, with just steerage-way on her, apparently waiting for something.”⁷ Eleven men were obtained there and shipped. Adderly & Co. paid the account for shipping the men, which was signed by Captain Maffitt.⁸

She arrived at Barbados, also within the jurisdiction of Her Majesty’s Government, on the 24th of February, and applied, in consequence of her having met with severe weather, to be allowed to ship some coal and some lumber for repairs.” Her commander assured the Governor “he was bound for distant waters.”⁹ At Barbados February 24, 1863: received coals and repairs.

Under these circumstances she was permitted to take in ninety tons of coal. On going into Barbados the bark Sarah A. Nickels ran in before to avoid capture. The Consul of the United States, after the arrival of the Florida, requested that she might be detained until 5 p. m. of the 25th, in order to give the bark her start of twenty-four hours. This was granted.¹⁰

On the 8th of May she arrived at Pernambuco. A representation was made that her machinery was out of order, and that it would not be possible to proceed with safety in less than three or four days. Permission to remain and repair was granted, and she sailed at 2 p. m. of the 12th.¹¹ At Pernambuco.

From there she went to Bermuda, where she arrived on the 15th of July, and where salutes were exchanged with the fort. “This is the first salute which the flag of the Confederate States has ever received in a foreign port, and consequently we dwellers in the little island of Bermuda think very proudly of it.’¹² At Bermuda, June 15, 1863: repairs and coals.

Captain Maffitt “stated that he had been at sea seventy days, with the exception of two visits to Havana and Barbados, each of which occupied less than twenty-four hours, and a visit of shorter duration to a port in the Brazils; that he was last from the immediate neighborhood of New York, within sixty miles of which he had been harassing the United States commerce; that he was in want of repairs to the hull and machinery of his ship, and a small supply of coal.”¹

Applications were made for leave to purchase coal from and repair at the Government dock-yard, which were refused. She was permitted, however, to remain in port until the 25th, when her repairs were completed,² and she took in “a full supply of best Cardiff coal brought here from Halifax by steamer Harriet Pinkney.”³ This vessel was one of the insurgent “transports.”⁴ The conduct of the Governor was approved by the Government September 16.⁵

The Florida arrived at Brest, France, on the 23d of August, “in order that her engines and copper sheathing might be repaired.”⁶ She remained until the 9th of February, 1864.⁷ Captain Maffitt, on the 3d of September, sent to Captain Bullock, “Confederate States Navy, Liverpool,” a list of men discharged from her with their accounts and discharges. Many of them asked for “transportation, and others for reference to you [Bullock] or to a Confederate agent.”⁸ These men went to Liverpool, and were paid off in October, 1863.⁹ At Brest; receives recruits and new machinery from Liverpool.

At Brest, Captain Maffitt left the ship and Captain Barney took command. On the 22d of September, Frazer, Trenholm & Co. and J. R. Armstrong wrote from Liverpool to the new Captain as follows:

We beg to acknowledge the receipt of your favor of the 18th instant; the contents of which we have noted, and will have our best attention. We are informed by Messrs. Fawcett, Preston & Co., the builders of the engines of the Florida, that the spare machinery to which you refer was sent to Havre some time ago, and is now lying there subject to an order for delivery, which they have given to Captain Bullock. We are also informed by the same parties that they sent a blower, but they believe it is not the sort required, and they are now endeavoring to procure a more suitable one. As regards the engineers, we must await Captain Bullock’s return to know who the men are. We have requested Messrs. Fawcett, Preston & Co. to engage two or three good, steady firemen; and as soon as Captain Bullock arrives (on the 24th) we will endeavor to have engineers, firemen, and machinery sent to you, and by the route you suggest.”¹⁰

The same parties were in frequent correspondence with the paymaster of the vessel at Brest in respect to her finances.¹¹ A full crew was sent to her from London and Liverpool in January, and “two steel Blakely rifled-guns with steel-pointed elongated shot to fit them.”¹² She sailed from Brest under the command of Captain Morris.

On the 26th of April she was at Martinique for coal and provisions. On the 13th of May she stopped at Bermuda to land a sick officer and to obtain news.¹³ On the 18th of June she appeared at that port again, when she asked permission to take in coal and effect some repairs.¹⁴ Permission was given her to remain five days after the 21st. She quitted the harbor on the 27th, but remained cruising about the island until the 5th of July, when she was seen from the land.¹⁵ While there, on the 27th of June, 135 tons of coal were paid for by G. P. Black, who was temporarily acting as the agent for the “Confederate States.”¹

A draft for £8,500 sterling on Captain Bullock was discounted by this same agent, and money to the amount of more than £600 expended for repairs and supplies.²

From Bermuda she went to Bahia where she ended her cruise in the month of October.At Bahia.

It will thus be seen, that the first port which was visited by the Florida after her escape from Nassau was under the jurisdiction of the government of Spain. At this port she escaped seizure for a violation of the sovereignty by “repudiating” the act.

After leaving Mobile she touched at Havana, but does not appear to have taken in coal or supplies. Then she went to Nassau, then to Barbados, then to Pernambuco, then to Bermuda, then to Brest, within reach of her base of supplies at Liverpool; then to Martinique, then to Bermuda, and then to Bahia. After leaving Mobile, she visited once the ports of Spain, twice those of France, twice those of Brazil, and four times those of Great Britain.

During her cruise she commissioned at different times three tenders, the Clarence, the Tacony, and the Archer. For their acts she is liable as for her own. She was the principal, and their acts were her acts.Her tenders.

1. British Case, p. 53.
2. Brit. Case, p. 54.
3. Ibid., p. 55.
4. Ibid., p. 54.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid, p. 55.
1. Brit. Case, pp. 58 et 61.
2. Ibid., p. 63.
3. Brit. App., vol. i, p. 49.
4. Brit, App., Counter Case, vol. v., p. 37.
5. Brit. App., vol. i, p. 11.
6. Brit. App., vol. i, p. 16.
7. Ibid., p. 20.
8. Ibid.
1. Brit. App., vol. i, p. 23.
2. Brit. App., vol. i, p. 24.
3. Ibid., p. 26.
4. Brit. Case, p. 53.
5. Ibid.
1. Brit. App., vol. i, p. 2.
2. Brit. Case, p. 54.
3. Ibid.
4. Brit. Case, p. 55; Brit. Counter Case, p. 75.
5. Brit. Counter Case, p. 75.
1. Brit. Case, p. 54.
2. Ibid.
3. Ibid., p. 55.
4. Brit. App., vol. i, p. 3.
5. Brit. App., vol. i, p. 3.
6. Brit. Case, p. 55.
7. Merchant Shipping Act, 1854.
8. Brit. Case, p. 56.
9. Am. App. Counter Case, p. 1138.
10. Mer. Ship. Act, 1854, sec. 18; App. Am. Counter Case, p. 1132.
1. Brit. App., vol. i, p. 10.
2. Mer. Ship. Act, 1854, sec. 42; Am. App. Counter Case, p. 1141.
3. Brit. Case, p. 56.
4. Brit. Case, p. 57; Customs Consolidation Act, 1853, sec. 142; App. Am. Counter Case, p. 1163.
5. See sec. 142 above.
6. Brit. Case, p. 56.
7. Mer. Ship. Act, 1854, sec. 8.
8. Brit. App., vol. i, p. 161.
9. Brit. App., vol. i, p. 161.
10. Mer. Ship. Act, sec. 150; App. Am. Counter Case, p. 1155.
11. Ibid., sec. 122; App. Am. Counter Case, p. 1151.
1. Brit. App., vol. ii, p. 133.
2. Brit. App., vol. v, p. 202.
3. Brit. App., vol. ii, p. 136.
4. Brit. Case, p. 75.
5. Brit. App., vol. v, p. 202.
1. Sec. 103, sub. 3, 4; App. Am. C. Case, p. 1148.
2. Sec. 6; Am. C. Case. App., 1127.
3. Sec. 14; Am. C. Case, App., 1129.
4. Sec. 14; Am. C. Case, App., p. 1129.
5. Am. App., vol. vi, p. 187.
1. British App., vol. i, p. 178.
2. Letter from Major Huse to Gorgas, March 15, 1862, Am. App., vol. vi, p. 69.
3. Am. App., vol. vii, p. 72.
4. Brit. C. Case, p. 74.
1. Brit. App., vol. i, p. 11.
2. Ibid., p. 18.
3. Ibid., p. 24.
4. Brit. Case, p. 61.
5. Brit. App. Counter Case, vol. v, p. 35.
6. Brit. App., vol. i, p. 15.
7. Brit. App., vol. 1, p. 13.
8. Ibid.
9. Brit. Case, p. 63.
10. Ibid.
11. Ibid., p. 63.
1. Brit. App., vol. i, p. 58.
2. British counter Case, p. 76.
3. Brit. App., vol. 1, p. 68.
4. British Counter Case, p. 77.
5. Brit. App., vol. i, p. 39.
1. British Counter Case, p. 77; Brit. App. Counter Case, vol. v, pp. 19, 25.
2. American Case, page 344.
3. British App., Counter Case, vol. v, p. 25.
4. American App., vol. vi, p. 237.
5. Ibid.
6. Page 66.
7. Page 76.
8. Testimony of Harris, British App., Counter Case, vol. v, p. 40.
9. Benjamin to Maffitt, American App., vol. vi, p. 57.
10. Heyliger to Randolph, American App., vol. vi, p. 77.
11. British App., Counter Case, vol. v, p. 35.
12. British Case, p. 61.
1. British App., Counter Case, vol. v, p. 35.
2. British App., vol. i, page 15.
3. Ibid.
4. Brit. App., vol. vi, p. 16.
5. Brit. App., Counter Case, vol. v, p. 42.
6. Am. App., vol. vi, p. 234.
1. Ibid., p. 326.
2. Brit. App., Counter Case, vol. v, p. 35.
3. Am. App., vol. vi, p. 325.
4. Brit. App., Counter Case, vol. v, p. 36.
5. Ibid.
6. Ibid., p. 37.
1. Brit. App., vol. i, p. 17.
2. Ibid.
3. Brit. App., vol. i, p. 18.
4. Am. App., vol. vi, pp. 325, 326.
5. Testimony of Harris, Brit. App., Counter Case, vol. v. p. 40.
1. See proceedings of the meeting, which are stated in full on page 62 of the British Case.
2. Brit. App., vol. i, p. 20.
4. Brit. App., vol. i, p. 23.
5. Ibid., p. 24.
1. Brit. App., vol. i, p. 25.
2. Ibid.
3. Brit. App., vol. i, p. 27.
4. Ibid.
5. Ibid., p. 11.
6. Layard to Rogers, Brit. App., vol. i, p. 29.
7. Brit. App., vol. i, p. 31.
8. Am. App., vol. vi, p. 88.
1. Brit. App., vol. i, pp. 61, 63, 67, and 68.
2. Brit. App., vol. i, p. 38; vol. v, p. 37.
3. Am. App., vol. vi, p. 317.
4. Ibid., p. 236.
5. Ibid.
6. Ibid., p. 237.
7. Letters Heyliger to Randolph, ibid., pp. 76–87.
8. Attorney-General Anderson’s vindication of himself, February 10, 1872. Brit. App., Counter Case, vol. v, p. 25.
9. Captain Semmes’s description of Nassau in his “Adventures Afloat,” Am. App., vol. vi, p. 487.
10. Governor Bailey to the Duke of Newcastle, June 21, 1862, Brit. App., vol. i, p. 14.
11. Journal found on board the Florida, Am. App., vol. vi, p. 335.
1. Am. App., vol. vi, pp. 317, 487.
2. Att.-Gen. Anderson, Sept. 1, 1871, Brit. App., vol. i, p. 53.
3. Heyliger to Benjamin, Am. App., vol. vi, p. 66.
4. Ibid.
5. Lord Russell in the House of Commons, February 16, 1864, Am. App., vol. v, p. 526.
6. Am. App., vol. vi, p. 489.
7. Am. App., vol. vi, p. 311.
8. Brit. App., vol. i, p. 58.
9. Kirkpatrick to Seward, Am. App., vol. vi, p. 327.
10. Am. App., vol. vi, pp. 325, 328.
1. Letter of Watson to Admiralty, Brit. App., Counter Case, vol. v, p. 51.
2. Affidavits of Solomon and Lee, Am. App., vol. vi, pp. 312, 321.
3. Brit. Counter Case, p. 78; Am. App., vol. vi, p. 328.
4. Am. App., vol. vi, pp. 308, 328.
5. Ibid, voucher No. 6, p. 331.
6. Brit. App., vol. i, p. 74.
1. Am. App., vol. vi, p. 332.
2. Brit. App., vol. i, p. 79.
3. Ibid., p. 80.
4. Brit. App., vol. i, p. 77.
5. Private Journal, Am. App., vol. vi, p. 335.
6. Affidavit of Demerith, ibid., p. 336.
7. Affidavit of Jackson, ibid.
8. Affidavit of Solomon, ibid., p. 312.
9. Brit. App., vol. i, p. 91.
10. Ibid., p. 95.
11. Brit. Case, p. 69; App., vol i, p. 106.
12. Walker to Huse, Am. App., vol. vii, p. 57.
1. Gov. Ord. to Duke of Newcastle, Brit. App., vol. i, p. 108.
2. Brit. Case, p. 69; App., vol. i, p. 111.
3. Am. App., vol. vi, p. 347; Brit. Case, p. 70; App., vol. i, p. 108.
4. Am. App., vol. i, p. 732.
5. Brit. App., vol. i, p. 111.
6. Brit. Case, p. 70.
7. Ibid., p. 72.
8. Am. App., vol. vi, p. 349.
9. Brit. App., vol. i, pp. 118, 122.
10. Am. App., vol. vi, p. 352.
11. Ibid., p. 354.
12. Ibid., p. 353.
13. Brit. App., vol. i, p. 132.
14. Ibid.
15. Ibid., p. 133; Am. App., vol. vi, p. 356.
1. Am. App., vol. vi, p. 359; Acting Governor Monroe to Mr. Cardwell, British App., vol. i, p. 133.
2. Am. App., vol. vi, p. 358, et seq.