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This has been the general practice of neutral governments, and [82] the arbitrators have already seen that it has been followed by the

United States. The Government of the United States has expected information to be thus furnished to it, and has expected also the information to be supported by proofs; and where the proof offered was not satisfactory, foreign ministers and consuls have been told that they were at liberty to institute proceedings themselves.1

Let us now briefly recall the facts, of which the arbitrators are already in possession, and which show what the conduct of the British government and its officers in relation to the Alabama really was.

On the 24th June, 1862, Earl Russell received the first representation made to him respecting the vessel afterward called the Alabama, then known only by her number in the building-yard, (290.) In the case of the United States, the arbitrators are told that Mr. Adams had at this

The answer of Mr. Fish to the Spanish envoy, in December, 1870, has been already referred to above, (p. 46.)

"The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law."

There are several examples of this in the correspondence of the Government of the United States with Spain and Portugal. (Appendix, vol. iii, p. 95.)

The following letters exchanged between the Spanish consul at New York and the United States district attorney in 1817 affords a convenient instance. (Ibid., p, 119.) Mr. Stoughton to Mr. Fisk.

"CONSULATE OF SPAIN,

"New York, September 16, 1817.

Sin: Some days ago there arrived in the port of New York an armed brig, proceeding from Norfolk, which I have been very credibly informed is a vessel pretending to have a commission from Venezuela, but whose object in coming into this port was to procure an additional supply of men wherewith to commit hostilities against the subjects and possessions of the King of Spain. A few days ago I presented to the collector of the port of New York an affidavit of a man named John Reilley, stating that he had been requested to enlist on board of a vessel, which was represented to him to be the privateer schooner Lively, bound to Amelia Island, to join General McGregor to invade the territories of His Catholic Majesty.

"I am now informed that the brig above mentioned is the vessel alluded to, Reilly having either been mistaken in the name or designedly deceived by the agents of the privateer. I now inclose the affidavit of John Finegan, by which you will perceive that the officers of the above brig (whose name is the American Libre, commanded by Captain Barnard) are enlisting, and have enlisted, men in this port to proceed against the Spanish possessions. I have caused application to be made to the collector, who doubts the extent of his authority in interfering with this vessel. Now, as there must be provisions in the laws and treaties of the United States vesting an authority in some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, to proceed against a foreign nation, at peace with the United States, I make this application to you, most urgently requesting you to take whatever measures may be necessary immediately in order to prevent the departure of the above vessel, at least until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning.

"Indeed, if an inquiry were instituted, I am induced to believe the above brig will be found to be a pirate.

"I have, &c.,

(Signed)

"STATE OF NEW YORK, 88:

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"John Finegan, at present in the city of New York, being duly sworn, saith, that he was requested by a man, who is represented to be the commissary of the vessel next mentioned, to go out in the Patriot, brig, now lying at the quarantine ground; that the destination of the said vessel is to fight against the Spaniards; that the deponent was told that on his arrival in Spanish possessions he was to join the land service of the

time good reason "to think that it would be necessary to obtain strictly technical proof of a violation of the municipal law of England before he could hope to obtain the detention" of the ship, and that "he thought he had such proof." Mr. Adams did not, however, in his letter furnish or offer any proof at all, and the inclosed letter from Mr. Dudley contained nothing showing or tending to show the purpose for which [83] the vessel was intended, beyond some hearsay statements, reported to come from persons who could not be compelled to give evidence, and an expression of his own opinion that "there was not the least room for doubt about it."

On the 25th June Her Majesty's government ordered inquiry to be made on the spot. At the same time the two letters were laid before the law-officers of the Crown. The latter reported—

That if the representation made to Her Majesty's government by Mr. Adams is in accordance with the facts, the building and equipment of the steamer in question is a patriots; that deponent knows of five persons who have been engaged in like manner, who are about to proceed on board the said brig; that deponent was told that as soon as he gets on board he will receive his advance; that officers are at present employed in the city of New York in looking out for men, and endeavoring to enlist them to proceed in the said vessel.

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"SIR: I inclose the deposition of John Reilley, relating to the privateer brig, about which I yesterday had the honor to address you. You will perceive by the affidavit that officers belonging to that brig are openly employed in this city in recruiting and enlisting men to join with General McGregor, and invade the possessions of the King of Spain.

"I need not remind you that, by the existing laws of the United States, these enlistments are unlawful, and that not only the vessel on board of which they are to embark is liable to seizure and forfeiture, but that the captain and the officers thereof, who are engaged in this business, are liable to a heavy fine and imprisonment. As these are flagrant violations of the laws of the United States, and calculated to produce serious injury to the possessions of His Majesty, and to the property of his subjects, I flatter myself that you will take, without delay, such steps as may be necessary to put a stop to these proceedings.

"I have, &c.,
(Signed)

Deposition of John Reilley.

"STATE OF NEW YORK, 88., CITY OF NEW YORK, 88:

"THOMAS STOUGHTON."

"SEPTEMBER 9, 1:17.

"John Reilley, at present in the city of New York, mariner, being duly sworn, saith, that some days ago deponent was requested to embark on board of a vessel which was said to be lying at the Narrows, in the Bay of New York, for the purpose of going to join General McGregor, and to fight against the Spaniards; that after he arrived at Amelia Island he might either join the land service or the naval service; that deponent would be paid as soon as he got on board; that several persons were engaged in looking out for recruits to proceed upon the same service, and many men were spoken to for the purpose. Deponent was then informed that the vessel was the privateer schooner Lively, but has since learned that it was a mistake, and that the vessel in question is the patriot brig Americano Libre, Captain Barnard, which is lying at the quarantine ground, and is armed with several large guns and many men; that several persons who are officers, captains, lieutenants, and so forth, are at present employed in recruiting men to join that service, and proceed in the said brig to Amelia; that many hands have already been bespoken, and are now waiting for money which has been promised to them; that the offers made to them are to give them $8 a month and clothing, together with $10 or $12 in advance. Deponent supposes that the officers above mentioned were in treaty with about twenty persons, who were to go on board as soon as their advance was paid to them, and which the said officers told them would be

manifest violation of the foreign-enlistment act, and steps ought to be taken to put that act in force and to prevent the vessel from going to sea.

The report of the United States consul at Liverpool, inclosed by Mr. Adams, besides suggesting other grounds of reasonable suspicion, contains a direct assertion that the foreman of Messrs. Laird, the builders, has stated that this vessel is intended as a privateer for the service of the government of the Southern States; and, if the character of the vessel and of her equipment be such as the same report describes them to be, it seems evident that she must be intended for some warlike purpose.

Under these circumstances, we think that proper steps ought to be taken, under the direction of Her Majesty's government, by the authorities of the customs at [84] Liverpool, to ascertain the truth, and *that, if sufficient evidence can be obtained

to justify proceedings under the foreign-enlistment act, such proceedings should be taken as early as possible. In the mean time Mr. Adams ought, we think, to be informed that Her Majesty's government are proceeding to investigate the case; but that the course which they may eventually take must necessarily depend upon the nature and sufficiency of any evidence of a breach of the law which they may be enabled to obtain; and that it will be desirable that any evidence in the possession of the United States consul at Liverpool should be at once communicated to the officers of Her Majesty's customs at that port.1

On the 4th July the results of the inquiry instituted at Liverpool by the customs department were communicated to Mr. Adams, with a sugduring the course of the day; among the officers there is one who is called a general. That the above men were told, in deponent's presence, by the officers who were enlisting them, that they were principally wanted to join the land service against the royalists. And further the deponent saith not.

(Signed)

"Sworn this 10th day of September, before me.

"JOHN REILLEY.

"FRANCIS R. TILLON,

"Notary Public."

Mr. Fisk to Mr. Stoughton.

"NEW YORK, September 17, 1817.

SIR: I have duly received your notes of yesterday evening and of this day, and have referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the collector in detaining the vessel; the aggression is to be punished in the ordinary mode of prosecuting those who are guilty of misdemeanors. Oath is to be made of the facts by the complainant, who enters into a recognizance to appear and prosecute the offenders before any process can issue. This oath being made, and recognizance taken, the judge of the circuit court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the attorney of the United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have I the power to issue any process to arrest and detain the vessel in question, unless by the direction of an executive officer of the United States. By the reference you have furnished, the parties complained of are to be prosecuted either under the 4th section of the act of Congress passed on the 3d of March, 1817, or under the 2d section of the act passed 5th June, 1794. By adverting to these statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on board, or for hiring or retaining another person to enlist; the punishment is personal to the offenders; and those who disclose the fact, on oath, within thirty days after enlisting, are protected from prosecution. The offenders are to be arrested and prosecuted in the manner I have stated. I beg you to be assured, sir, that it is not from a disposition either to shrink from the performance of my duty, or to decline interfering to defeat any illegal enterprise against the subjects or possessions of a power with whom the United States are at peace, that I have stated to you the embarrassments I must encounter in attempting a compliance with your request upon any information with which I am furnished. If it is in your power to procure the names of the parties, and the evidence upon which a prosecution for a misdemeanor can be founded, I will readily co-operate with the proper authorities in having every offender arrested and brought to justice. It is impractieable for me, or any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an illegal transaction. Since the receipt of your notes, I have had an interview with the collector, and we are unable to discover any other legal course of proceeding in this case than that adopted in the ordinary cases of misdemeanors.

"I have, &c.,
(Signed)

"JONATHAN FISK."

The Spanish consul rejoined by a warm remonstrance. The expedition appears to have been permitted to sail unmolested.

British Case, p. 83; Appendix, vol. i, p. 181.

gestion that he should instruct "the United States consul at Liverpool to submit to the collector of customs at that port such evidence as he may possess tending to show that his suspicious as to the destination of the vessel in question are well founded."

If Mr. Adams, or the consul from whom he derived his information, was at this time possessed of evidence as to the intended employment and real character of the ship, the time had now arrived when it ought to have been produced without delay.

Five days afterward, on the 9th July, the consul wrote a letter, received on the 10th, which purported to convey "all the information and circumstances which had come to his knowledge" to the collector of customs. The contents of this letter, when examined, will be found to consist partly of one or two alleged facts, (not proved,) tending to connect Bullock with the vessel; partly of statements or admissions said to have been made by various persons to third parties, and to have been by them reported to the consul. The persons to whom these statements or admissions were ascribed were two officers of the Sumter, who had passed through Liverpool two months before; a foreman then or previously employed in the ship-builders' yard, and not designated by name; and "a youth named Robinson," who was understood to be at " a school in London." Mr. Dudley had not himself seen any of these persons; he had only heard from others (whose names he said he could not disclose,) that they had made the statements or admissions attributed to them. His information, therefore, consisted in reality of reports, received from anonymous persons, of statements alleged to have been made by others who could not be found, or who, if found, could not have been compelled to give evidence, since the evidence would have tended to criminate themselves. Of Bullock nothing was at this time known to Her Majesty's government, and the consul, although he asserted that Bullock was a confederate officer sent over to England for a particular purpose, furnished no evidence of this, nor offered to furnish any.

Mr. Dudley was therefore informed by the collector that the officers of the revenue would not be justified in acting on the statements contained in his letter, unless they could be substantiated by evidence..

On the 21st July, eleven days after the collector's reply, and a month after the time when (as is alleged) Mr. Adams thought he had in his possession "strictly technical proof" of a violation of the law, some evidence was produced for the first time, and laid before the collector by the consul. This evidence consisted of six depositions, of which only one, purporting to be sworn by a man named Passmore, was material to the question, and legally admissible. It has already been observed that, to rely on evidence of this kind, proceeding from a single witness, without corroboration, and without inquiry into his character and general credibility, would, according to judicial experience in England, (and, it may be added, in the United States likewise, and probably in other countries,) have been very unsafe in a case of this nature.*

The consul was, however, informed that it was competent for him, if he should think fit, to institute at his own risk a prosecution against the persons supposed to be concerned in the alleged violation of the law.5

1 British Case, page 84; Appendix, vol. i, page 184.

Appendix to Case of the United States, vol. iii, page 17; vol. vi, page 383.

3 Ibid., vol. iii, p. 21; vol. vi, p. 391.

4 British Case, p. 91.

Appendix to case of the United States, vol. iii, p. 21; vol. vi, p. 396. Reference has already been made above (p. 82), to the answers given in a like sense by Mr. Fish, to the Spanish minister in December, 1870, and by Mr. Fisk to the Spanish consul in

817.

[85] *In the case of the United States the arbitrators are told that the depositions submitted on the 21st were "conclusively passed upon" by Her Majesty's government. This is a misapprehension, if it is meant that they were accepted by the government as conclusive. What the government accepted as sufficient was not the incomplete and scanty evidence of the 21st, but the same evidence, strengthened and completed by the additional depositions of the 23d and 25th.

On the 23d July two further depositions were furnished by the board of customs.2 An additional deposition was received on the 25th July. On Tuesday, the 29th July, the law-officers reported their opinion that the evidence was sufficient, and that the vessel ought to be seized. This opinion was unfortunately given too late, the vessel having put to sea on the same morning, under the circumstances stated in the British case.

We see, then, that although, according to the statements made in the case of the United States, this vessel had been an object of suspicion and scrutiny to the consul ever since November, 1861, although he had for months believed that she was intended for the confederate government; although she had been, as is alleged, the subject of constant correspondence with his official superior and with Mr. Adams; although she had, within his knowledge, been gradually advancing to completion, had made her trialt-rip, and was beginning to get ready for sea; and although Mr. Adams knew that evidence such as could be produced in a court of law, not only of her adaptation for war, but of her being intended to be employed in hostilities against the United States, was required to justify a seizure; notwithstanding all this, no evidence whatever proving or tending to prove such an intention was produced to the British government or its subordinate officials till the 21st of July, eight days before the vessel sailed, and at a time when it was reported that she might leave at any hour; and what was then furnished required to be strengthened by additional evidence, part of which was delivered on the sixth and the remainder on the fourth day before her departure. It is clear beyond controversy that this long and hazardous delay on the part of the officials of the United States in this country must have been due to one of two causes-either to a want of due diligence in procuring the evidence necessary to verify the suspicions which they entertained, or to their inability to procure it. The second of these explanations, which is confirmed by Mr. Dudley's complaints of the difficulty experienced in inducing any witness to come forward, is probably the correct one. But, in either case, what becomes of the charge of gross and culpable negligence against the British government? If Mr. Dudley, whose business it was to find out the truth of a suspected enterprise so dangerous to his country, could get no evidence of it until too late, why is it imputed as gross negligence to the officers of the government that they, without his means of information, were not 'Page 371.

-Appendix to British Case, vol. i, p. 194.

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Some stress is laid in the case of the United States, (pp. 368, 374,) on a statement in a report by the commissioners of customs to the treasury that the revenue officers at Liverpool should "watch" the ship. This is construed into a promise to Mr. Adams himself that she should be watched to prevent her departure; and he is said to have relied upon it, and to have been indignant when the authorities "failed to redeem their voluntary promise." Mr. Adams, however, knew well that, although the ship might be watched" by the officers to ascertain whether she took arms on board, (the context shows that this was meant,) nothing but an actual seizure could legally prevent her from sailing.

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