of the vessel, and who met his subsequent complaints by extracting from the custom house records the false clearance which Bullock, and Frazer, Trenholm & Co., had caused to be entered there. Such an examination and such a report can scarcely be regarded as the exercise of the "due diligence" called for by the rules of the Treaty of Washington. The Florida arrived at Nassau on the 28th of April, and was taken in charge by Heyliger, who was then a well-known and recognized insurgent agent. The Bahama arrived a few days later at the same port by preconcerted arrangement. The two branches of the hostile expedition, which had left Great Britain in detachments, were thus *united in British waters. They were united in their conception [338] in the contracts with Fawcett, Preston & Co. They were temporarily separated by the shipment of a portion of the ammunition and stores by rail to Hartlepool, and thence by the Bahama. They were now again united, and the vessels went together to Cochrane's Anchorage, a place about nine miles from the harbor of Nassau, not included in the port limits. While there Captain Hickley, of Her Majesty's ship Greyhound, thought it his duty to make a careful examination of the vessel, and he reported her condition to the Governor. In a remarkable certificate, signed by himself, and by the officers of the Greyhound, dated June 13, 1862, it is stated that he "asked the Captain of the Oreto whether the Oreto had left Liverpool in all respects as she was then; his answer was yes; in all respects." As, therefore, no changes had been made in her after leaving Liverpool, Captain Hickley's report may be taken to be the official evidence of a British expert as to her character, at the time of Mr. Adams's complaints, and of the customs examinations. He says, "I then proceeded to examine the vessel, and found her in every respect fitted as a war vessel, precisely the same as vessels of a similar class in Her Majesty's Navy. She has a magazine and light- [339] rooms forward, handing-rooms and handing-scuttles for powder as in war vessels; shell-rooms aft, fitted as in men-of-war; a regular lower deck with hammock-hooks, mess-shelves, &c., &c., as in our own war vessels, her cabin accommodations and fittings generally being those as fitted in vessels of her own class in the Navy. * She is a vessel capable of carrying guns; she could carry four broadside-guns forward, four broadside-guns aft, and two pivot-guns amidships. Her ports are fitted to ship and unship; port-bars cut through on the upper part to unship also. The construction of her ports, I consider, are peculiar to vessels of war. I saw shot-boxes all round her upper deck, calculated to receive Armstrong shot, or shot similar. She had breeching bolts and shackles, and side-tackle bolts. Magazine, shell-rooms, and lightrooms are entirely at variance with the fittings of a merchant-ship. She had no accommodation whatever for the stowage of cargo; only stowage for provisions and stores. She was in all respects fitted as a vessel of war of her class in Her Majesty's Navy. * The Oreto, as she now stands, could, in my professional opinion, with her crew, guns, arms, and ammunition, going out with another vessel alongside of her, be equipped in twenty four hours for battle."2 * *The judge before whom the case was tried, commenting on this [340] evidence, said: "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 made, not here, but in England."3 1 Vol. VI, page 246. * Vol. VI, pages 264 and 266. 3 Vol. V, page 513. 1 This was, therefore, the condition of the Florida when she left Liverpool. That she was then "intended to cruise and carry on war" against the United States there can be no reasonable doubt; that she was "fitted out" and "equipped" within the jurisdiction of Great Britain, with all the fittings and equipments necessary to enable her to carry on such war, is equally clear from Captain Hickley's professional statement. "Arming" alone was necessary to make her ready for battle. By the rules of the Treaty of Washington either the "fitting out" or the "equipping" constitute an offense without the "arming." That Great Britain had reasonable ground to believe that the fitting out and the equipping had been done within its jurisdiction, with intent that she should carry on such a war, the United States claim to have substantiated. That she had been specially adapted within British jurisdiction, to wit, at Liverpool, to warlike use, will scarcely be questioned [311] after the positive testimony of Captain Hickley. That her *de parture from the jurisdiction of Great Britain might have been prevented after the information furnished by Mr. Adams would seem to be beyond doubt. And that a neglect to prevent such departure was a failure to use the "due diligence" called for by the second clause of the first rule of the Treaty obviously follows the last conclusion. If these several statements are well founded, Great Britain, by permitting the construction of the Florida, at Liverpool, under the circumstances, and by consenting to her departure from that port, violated its duty as a nentral Government toward the United States. The United States Consul, soon after the arrival of the Oreto at Nassu, called the attention of the Governor to her well-known character.1 The Governor declined to interfere, and with an easy credulity accepted the statements of the insurgent agents that the vessel was not and would not be armed, and he made no further inquiries. She was then permitted to remain at Cochrane's Anchorage. A second request to inquire into her character was made on the 4th of June, and refused.3 On the 7th of June both the Oreto and the Bahama were arrested [342] and brought up from *Cochrane's Anchorage into the harbor of Nassau. On the 8th the mail steamer Melita arrived from England, with Captain Raphael Semmes and his officers from the Sumter as passengers. They became lions at once."4 The Oreto was immediately released. The Consul reported this fact to his Government, and said that "the character of the vessel had become the theme of general conversation and remark among all classes of the citizens of Nassau for weeks." On the same day Captain Hickley, whose professional eye had detected the purpose of the vessel from the beginning, signed with his officers the certificate quoted above. The Consul, finding that reenwed representations to the Governor were met by an answer that the agents of the Oreto assured him of their intention to clear in ballast for Havana, and that he had given his assent to it, applied to Captain Hickley, of the Greyhound, and laid before him the evidence which had already been laid before the civil authorities. He answered by sending a file of marines on board the Oreto and taking her into custody. Consul Whiting to Governor Bayley, May 9, 1862, Vol. VI, page 235. * Nesbitt to Whiting, May 13, 1852, Vol. VI, page 236. 3 Vol. VI, pages 238, 239. 4 Whiting to Seward, June 19, 1862, Vol. VI, page 241. The civil authorities at Nassau were all actively *friendly to [343] the insurgents. With the Cousul of the United States they had only the formal relations made necessary by his official position. With the insurgents it was quite different. We have already seen how Hey. liger thought they regarded him. Maffitt, Semmes, and many other insurgent officers were there, and were often thrown in contact with the Government officials. Adderley, the correspondent of Fraser, Trenholm & Co., and the mercantile agent of the insurgents, was one of the leading merchants of the colony. Harris, his partner, was a member of the Council, and was in intimate social relations with all the authori ties. The principal law oflicer of the colony, who would have charge of any prosecution that might be instituted against the Oreto and the cross-examination of the witnesses summoned in her favor, was the coun sel of Adderley. All these circumstances, combined with the open partiality of the colonial authorities for the cause of the South, threw the insurgent agents and officers at that critical moment into intimate relations with those local authorities.1 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 pur*pose. The trial commenced on the 4th of July, 1862.3 The [344] prosecution was conducted by a gentleman who was at once Crown Counsel, Advocate General, and confidential counsel of Adderley & Co. and who, in a speech made in a trial in another court, which took place after the Oreto was libeled and before the decree was rendered, said that the Union of the United States was "a myth, a Yankee fiction of the past, now fully exploded." The temper with which he would manage the prosecution of the Oreto may be imagined from this speech. He hurried on the trial before evidence could be obtained from Liverpool. He conducted his cross-examinations so as to suppress evidence unfavorable to the Oreto, when it could be done. He neglected to summon witnesses who must have been within his control, who could have shown conclusively that the Oreto was built for the insurgents, and was to be converted into a man-of-war.5 Maffitt knew it, but was not called. Heyliger knew it, but was not called. Adderley *knew it, but he was not called. Evans and Chapman were both [345] there-officers in the insurgents' navy, under the direction of Maffitt, drawing pay from him as an officer in that navy, and giving receipts as such. They knew all about it, but were not called. Harris, a member of the firm of Adderley & Co., was called, but his cross-examination was so conducted as to bring out nothing damaging to the vessel. He said, for instance, that the Oreto was consigned to him by 1 Kirkpatrick to Seward, Vol. VI, page 327. This seemingly harsh statement is fully borne out by the report of the trial. See Vol. V, page 509. 3 Governor Bayley to Captain Hickley, June, 1862. 4 Whiting to Seward, August 1, 1862, Vol. VI, page 261. If the Tribunal will read the summary of this case in the opinion of the court, which may be found at page 509 of Vol. V, it will be found that this statement is not too strong. 6 The Oreto had in fact been ordered by Bullock, as agent of the Confederate Government, from one ship-building firm, as the Alabama had been ordered by him from an other; and Captain Mafitt, the officer appointed to command her, was all this while at Nassau, waiting the result of the trial.-Bernard's Neutrality of Great Britain, page 351. 7 See Evans and Chapman's vouchers, Nassau, July 28, Vol. VI, page 330. Seo Consul Kirkpatrick's dispatch to Mr. Seward, July 7, 1865, as to the standing of these men, Vol. VI, page 327. "Vol. V, page 517. Fraser, Trenholm & Co., and was to clear for St. John's, New Brunswick. It might have been supposed that counsel desirous of ascertaining the truth would have followed up these clews, and would have shown from this witness the origin and the real purposes of the vessel; but that was not done. The direct examination of Captain Hickley, of the Greyhound, disclosed that officer's opinion of the character and destination of the Oreto. His cross-examination was conducted by a gentleman who was represented to be the Solicitor General of the Colony, but who, in this case, appeared against the Crown. The testimony of sailors was also [346] received to show that the vessel carried Con*federate flags, and that Semmes and the other insurgent officers were in the habit of visiting her. The judge, in deciding the case, disregarded the positive proof of the character, intent, and ownership of the vessel. He said that he did not believe the evidence as to the insurgent flags, coming from common sailors, and he added, "Had there been a Confederate flag on board the Oreto, I should not consider it as very powerful evidence." The overwhelming testimony of Captain Hickley and his officers was summarily disposed of. To this he said, "I have no right whatever to take it into consideration; the case depends upon what has been done since the vessel came within this jurisdiction." While thus ruling out either as false or as irrelevant evidence against the vessel which events proved to be true and relevant, he gave the willing ear of credence to the misstatements of the persons connected with the Oreto. He could see no evidence of illegal intent in the acts of those who had charge of the Oreto. It is no wonder that the trial ended on the 2d of August with a judgment that, "Under all these circumstances I do not feel that I should be justified in condemning the Oreto. She will therefore be restored." The United States call the attention of the Arbitrators to the [347] important fact that the principal ground on which this vessel was released, namely, the irrelevancy of the evidence of Captain Hickley and his associates, was believed by Her Majesty's Government not to be in accordance with British law. When the news of the seizure of the Oreto arrived at London, Earl Russell directed inquiries to be made, in order that a competent officer should be sent to Nassau in order to give evidence as to what occurred at Liverpool in the case of that vessel." Her Majesty's Government evidently considered that it would be relevant and proper to show the condition of the vessel when she left Liverpool; and should it appear, as it did appear in Captain Hickley's testimony, that at the time of her leaving she was fitted out as a man-of-war, with intent to cruise against the United States, then it would be entirely within the scope of the powers of the court in Nassau to condemn her for a violation of the Foreign Enlistment Act of 1819. Had the trial not been hurried on, such probably would have been the instructions from London. Both before and after the release of the Oreto, Maffitt was shipping a crew at Nassau. One witness deposes to shipping forty men. [348] On the 8th of August she cleared for St. John's, New Bruns wick. This was on its face a palpable fraud. On the 9th the schooner Prince Alfred went to the wharf of Adderley & Co., the Nassau correspondents of Fraser, Trenholm & Co., and there took on board. eight cannon and a cargo of shot, shells, and provisions, and then went 1 Vol. V, page 521; Vol. VI, page 285. 2 Vol. II, pages 610, 611. over the bar and laid her course for Green Cay, one of the British Bahama Islands, about sixty miles distant from Nassau. The Oreto, having been thoroughly supplied with coal while at the island of New Providence, lay outside with a hawser attached to one of Her Majesty's ships of war. When the Prince Alfred appeared she cast off the haw ser and followed and overtook the Prince Alfred, and gave her a tow. It was a bright moonlight night, with a smooth sea, and the voyage was soon made. The arms and ammunition, and so much of the supplies as she had room for, were then transferred to the Oreto; the rest were taken back to Nassau, where the Prince Alfred went unmolested for her violation of the law. The two vessels parted company, and the Oreto, now called the Florida, made for the coast of Cuba. The United States ask the Tribunal of Arbitration to find that in these proceedings which took place at Nassau and in the Bahamas, Great Britain was once more guilty of a violation of its duty, as a neutral, toward the United States, in regard to this vessel. *The Oreto had been, within the jurisdiction of Great Britain [349] at Liverpool, specially adapted to warlike use, with intent that she should cruise or carry on war against the United States. She had come again at Nassau within the jurisdiction of Her Majesty, and no steps were taken to prevent her departure from that jurisdiction. This alone was a violation of the duties prescribed by the second clause of the first rule of the Treaty; but it was not the only failure of Her Majesty's officials to perform their duties at that time as the represent ative of a neutral Government. The Oreto was armed within British jurisdiction; namely, at Green Cay. The arrangements for arming, however, were made in the harbor of Nassau; and the two vessels left that port almost simultaneously, and proceeded to Green Cay together. The purpose for which they went was notorious in Nassau. This was so palpable an evasion that the act should be assumed as having taken place in the harbor of Nassau. In either event, however, the act was committed within British jurisdiction, and was therefore a violation of the first clause of the first rule of the Treaty. In like manner, the same acts, and the enlistment of men at New Providence, were violations of the second rule of the Treaty. There was no diligence used to prevent any of these illegal acts. *From Green Cay the Florida went to Cardenas, in the island of [350] Cuba, and attempted to ship a crew there. "The matter was brought to the notice of the Government, who sent an official to Lieutenant Stribling, commanding during Lieutenant Commanding J. N. Maffitt's illness, with a copy of the [Spanish] Queen's Proclamation, and notification to him that the Florida had become liable to seizure.” This efficient conduct of the Spanish authorities made the officers of the Florida feel at once that they were no longer in British waters. She left Cuba, and on the 4th of September she ran through the blockading squadron of Mobile, pretending to be a British man-of-war, and flying British colors. During the night of the 16th of January, 1863, the Florida left Mobile. On the morning of the 26th of the same month she re-entered the harbor of Nassau. Between Mobile and Nassau she had destroyed three small vessels, the Corris Ann, the Estelle, and the Windward. At Nassau she was received with more than honor. She "entered the port without any restrictions," and "the officers landed in the garrison boat, escorted 1 Copy of voucher of Manuel Corany, Vol. VI, page 331. 2 Whiting to Seward, January 26, 1863, Vol. VI, page 333. |