The fact did not, however, become actually known at Nassau till the 6th of September, when certain men, who had been engaged at Nassau to go out in the Oreto for the purpose of assisting in transferring the guns and arms from the Prince Alfred, having returned to Nassau, gave to the American consul an account of what had happened at Green Cay.

1

That, till a week after the vessels had left, no one in the colony had any idea of an intention to transfer the armament in any place in the Bahamas, is plain. So far from expecting anything of the kind, Mr. Whiting expressly states, in his letter of the 9th, that he "advised Captain Winslow to stand out for the northwest Providence Channel, as the most likely method of trapping the Oreto, as she was reported to be bound for Charleston." Upon the faith of this belief, Mr. Whiting, as he tells us, "gave full details of these movements to the commanders of the two American ships of war, the Adirondack and Cuyler."2

What, then, is the negligence complained of in respect of the arming of the Oreto within the waters of the colony? In the American case the argument is put thus:

The arrangements for arming 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.3 This is a very adroit way of putting the case, but is it a just one? In the first place, it is a great deal too much to assume that it was "notorious" that the Prince Alfred had on board the armament of the other vessel. The consul puts it no higher than that it was so reported, and the government could not act on mere report. The fact was never said. to have been notorious till 1865, three years later, when Mr. Kirkpatrick, the then consul, who knew nothing of the facts when they happened, thought proper so to state.4

But the argument further puts it as though the purpose of going to Green Cay was notorious; whereas we now know that neither the consul nor any one else had the remotest idea that the transfer of the armament was intended to be effected within the limits of the colony. The consul believed that both vessels were going to Charleston. Can it be said that the governor ought to have sent a British ship of war to accompany the two ships some sixty miles or more, till clear of the waters. of the Bahamas, to prevent the possibility of a violation of neutrality in this respect?

But then it is said, "The act was cominitted within British jurisdiction, and was therefore a violation of the first clause of the first rule of the treaty."

But, with submission, the act is not necessarily within the first rule of the treaty because it was committed in British jurisdiction. To bring it within the first rule of the treaty it must be shown that there was a want of due diligence in not preventing the act so done, and of this I find no proof in the American documents.

To be sure, our honorable colleague, Mr. Staempfli, in the grounds of his judgment, says:

Que Green Cay était éloigné et peu fréquenté; cette objection est d'autant moins importante que tout ce qui se fit à Green Cay partit de Nassau, et pouvait fort bien s'apercevoir depuis ce dernier endroit.

1 United States Documents, vol. vi, p. 306..

2 Ibid., pp. 304, 305.

3 United States Case, p. 439.

4 United States Documents, vol. vi, p. 327..

I confess I do not quite understand what is meant by this. I do not suppose M. Staempfli can mean that what was done at Green Cay could be seen at Nassau, sixty miles off. I must, therefore, take it that what he means is, that the loading of the Prince Alfred and the nearly simultaneous departure of the two ships from Nassau could have been seen at Nassau—which, as it strikes me, is a self-evident proposition. But if he means that, because the cargo of the Prince Alfred consisted of guns and arms that might be transferred to the Oreto, therefore the authorities ought to have stopped the Prince Alfred, the answer is that, until such transfer had actually taken place, or was about to take place, in British waters, the authorities had no power to seize or detain the vessels.

The Prince Alfred had a perfect right, subject to the chance of capture, to take arms to a belligerent port. There was nothing to show that she was not about to do so. The American consul believed she was. What authority had the government to assume the contrary?

Lastly, M. Staempfli makes it a matter of reproach to the local government that no prosecution was instituted against the master of the Prince Alfred.

I must observe that this tribunal has nothing whatever to do with the question of whether Her Majesty's government should or should not have directed a prosecution in this or that particular instance. Though this is a point which has more than once been dwelt upon, it is wholly irrelevant to our inquiry.

However, let us see how the facts stand in this respect. On the 8th of September Mr. Whiting, having seen the men who had returned from the Oreto, and having obtained a deposition from them, writes to the governor:

I have the honor to inform your excellency that I have good authority for stating that the schooner Prince Alfred, of Nassau, took the Oreto's armament from this port and discharged the same on board that steamer at Green Cay, one of the Bahamas. That the Oreto afterward left Green Cay with the secession flag flying at her peak. That the Prince Alfred has returned to this port, and now lies at Cochrane's Anchorage, and I am credibly informed that her captain is again shipping men to be sent to the Oreto, in direct contravention of the foreign-enlistment act.

I earnestly urge upon your excellency the propriety of instituting some inquiry into these matters, and of preventing acts so prejudicial to the interests of the friendly Government which I have the honor to represent.1

To which the colonial secretary answers:

COLONIAL OFFICE, Nassau, September 9, 1862. SIR: In reply to your letter of the 8th instant, directed to the governor, I am instructed by his excellency to inform you that, if you feel assured that you have sufficient credible evidence to substantiate your allegation, and will put your evidence in the hands of the attorney-general, his excellency will direct a prosecution against the captain of the Prince Alfred, or others who may have been guilty of violating the foreign-enlistment act.

But his excellency has no authority to take any steps against the Oreto, which is out of his excellency's jurisdiction.

I have, &c.,

C. R. NESBITT,
Colonial Secretary.1

Instead of putting his evidence into the hands of the attorney-general, who, of course, was not himself in the possession of any, Mr. Whiting allowed the matter to drop. He probably thought, and thought rightly, that it would profit the United States Government very little to punish this man.

Another charge in respect of this vessel is that Maffitt, her commander,

1 British Appendix, vol. i, p. 87.

when at Nassau, induced about forty men to enlist on board Alleged recruitment the Oreto. The United States case, without more, sets this of crew. down as a violation of the second rule of the treaty, but is wholly silent as to any negligence of the local government in this behalf.

M. Staempfli, nevertheless, but without any reference to facts showing negligence, states, as a ground of his judgment, that the manning of the Oreto at Nassau is to be imputed to the negligence of the British authorities. In the first place, it does not appear that the authorities knew anything whatsoever about the matter. In the second place, the Oreto, at the time these men were engaged, had not adopted the character of a ship of war; it was not known that she would do so; it was not known to the local government, or even to Mr. Whiting, that she had been made over to the confederate government; it was not known that Maffitt had taken possession of her as their officer; Duguid, who had brought her out, still remained apparently the master of her; her former crew had all left her; the crew she had engaged were wholly insufficient as a fighting crew, and there was not, and could not be, any present purpose of using her as a fighting ship; it was believed she was going to run the blockade. If that fact had turned out to be true, the allowing her to hire a crew would have been perfectly legitimate, and could not have been prevented.

Was the vessel to be kept at Nassau permanently for want of a crew ? It is quite true that, by the second rule of the treaty, a neutral government is not to permit its ports or waters to be used by a belligerent for the recruitment of men. But at this time, as I have already remarked, though it was known that the vessel was intended for the confederate government, it was not known that she had been transferred to them, still less that she was about to be used for belligerent purposes, which, indeed, she could not be till a different crew could be obtained. Till then she might be liable to capture as contraband of war, but she would not be liable to seizure as for a breach of the municipal law.

I confess I do not see the negligence which M. Staempfli's keener sight is enabled to discover.

When the Florida had taken in her armament at Green Cay, the crew shipped at Nassau being altogether inadequate for the ves- Florida after leavsel as a ship of war, she proceeded to the port of Cardenas, ing Green Cay. in Cuba, where she remained till the 31st of August. She there attempted to ship a crew, but the matter having come to the knowledge of the authorities, the officer in command repudiated the transaction, and left the port without any increase of his numbers.1 Unable to keep the sea for purposes of war with so insufficient a crew, the Florida ran past the hostile cruisers, though challenged and fired at, and succeeded in getting into the confederate port of Mobile, where she arrived on the 4th of September.2

She remained in the port of Mobile upwards of four months, at the end of which time, having shipped a crew, she was sent out, on the 15th of January, 1863, under the command of Maffitt, as a confederate ship of war.3

A grave question here presents itself, whether Great Britain, even if open to the imputation of want of due diligence in respect of the original equipment of the Oreto, or of her arming at fect of going into and Green Cay, can properly be held responsible for the acts of this ship subsequently to her entry into Mobile.

Question as to ef remaining at Mobile.

It is all-important to bear in mind that the original equipment of this

vessel, though an offense against the municipal law of Great Britain, was not, there being, up to the time she arrived at the Bahamas, no present intention of war, an offense against international law. All the power which the government could exercise against her, in respect of any offense against the municipal law, was such as was derived from that law; that is to say, from the foreign-enlistment act. Now, all that the latter empowered the government to do was to seize the vessel and to bring her before a competent court for condemnation. If, when such a proceeding has been adopted, it results in the acquittal and release of the vessel, the matter becomes res judicata, the original vice becomes purged, and no further proceeding in rem can be had. A ship cannot be seized and brought into court again and again when once it has been decided by a competent court that she was not liable to seizure and condemnation at all. After the Oreto had been thus acquitted, all power of further seizure, as for an infraction of the foreign-enlistment act in her original equipment, was at an end. I grant that the right of a belligerent to redress for a breach of neutrality against international law would not be affected by a judicial proceeding under the municipal law; but, there having been here, according to my view, no more than a breach of the municipal law, all that the belligerent could possibly exact was that the municipal law should be put in force by a proceeding against the vessel. When under such a proceeding the vessel had been acquitted, the matter was at an end.

It will be said that a second offense was committed in British jurisdiction by the arming of this vessel at Green Cay; and this may be so; but here again we have, in like manner, no breach of neutrality according to international law, if, owing to the deficiency of the crew, there was no present intention of applying the ship to the purpose of war.

There is a decision of the Supreme Court of the United States which Case of the United is in point to the present question, in the case of the United States vs. De Quincy. States vs. De Quincy, reported in the 6th volume of Peters's Reports, page 445.1

In that case the defendant was indicted, under the third section of the American act of 1818, for having been concerned in fitting out a vessel called the Bolivar, afterward Las Damas Argentinas, with intent that such vessel should be employed in the service of the United Provinces of Rio de la Plata against the subjects of the Emperor of Brazil, with whom the United States were then at peace. The vessel in question, originally a pilot-boat, had been fitted out at Baltimore for the defendant and one Armstrong, and adapted for carrying a gun. She sailed from Baltimore to the island of St. Thomas, Armstrong being on board as part owner and agent for the other owners. On the way to St. Thomas, Armstrong told a witness that it was his intention and wish to employ the vessel as a privateer, but that he had no funds. He spoke of the difficulty of getting any, and said he could not tell, until he got to the West Indies, whether he should be able to procure any. After negotiating for two or three days at St. Thomas, Armstrong succeeded in obtaining funds; the Bolivar was fitted out as a privateer; and, Armstrong having provided himself with a commission from the Buenos Ayres government, the vessel, under the name of Las Damas Argentinas, cruised under the flag of that government, and took several prizes. Two questions presented themselves for the decision of the court as to the direction which should be given to the jury. The first was whether, to constitute an offense within the act, it was necessary that the vessel should have been armed when she left Baltimore, the decision on which

1 See also British Appendix, vol. iii, p. 92.

is immaterial to the present purpose. The second question is the one which touches the present case. On the part of the defendant, it was submitted that the jury should be directed—

That if the jury believe that, when the Bolivar was fitted out and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds, with which to arm and equip the said vessel, and had no present intention of using or employing the said vessel as a privateer, but intended, when he equipped her, to go to the West Indies to endeavor to raise funds to prepare her for a cruise, then the defendant is not guilty.

Or, if the jury believe that when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfillment of which wish depended on his ability to obtain funds in the West Indies for the purpose of arming and preparing her for war, then the defendant is not guilty.

The court said:

We think these instructions ought to be given. The offense consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States; and it is equally necessary that the intention with respect to the employment of the vessel should be formed before she leaves the United States; and this must be a fixed intention, not conditional or contingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn, and it decides whether the adventure is of a commercial or warlike character.1

At the same time the court, at the instance of the prosecution, held that if there was an intention of employing the vessel as a privateer when she left Baltimore, the offense would be complete, though subsequent events might have prevented that intention from being carried into effect.

The distinction is a sound one. A present intention does not the less exist, because unexpected events may afterward change it; but an intention which is to depend on uncertain contingencies cannot be said to be a present one. It is the present intention of the immediate employ ment of the vessel for hostile purposes which makes the sending out an armed ship an offense against the law of nations, as a violation of neutrality, as distinguished from merely making it contraband of war. Assuredly there must be a distinction between the two things, and I am at a loss to see where the line can otherwise be drawn.

A similar purpose, in like manner, makes the equipping of a vessel an offense against the municipal law, when without it-as if, for instance, the vessel had been already built and equipped-the transaction would be simply one of trade. Now, in the case before us, it may, perhaps, be questioned whether there was any present intention of using the Florida as a ship of war, or whether such employment was not contingent on her obtaining a war crew. If no crew could be got, the cruise was, as the sequel shows, to be given up, and an attempt made to run her into one of her own ports. Be this as it may, the belligerent purpose, if any such existed, was frustrated by the ship not obtaining a crew, and the voyage was lost. This being so, why, as Sir Roundell Palmer puts it to us, should not a vessel equipped in a neutral port, contrary to the municipal law of the neutral, be considered, like any other contraband of war-such being, in point of international law, the true character of such a vessel till she actually enters on her employment as a ship of war-as no longer in delicto when she has once reached the port of the belligerent?

Having shown, as I think, abundant grounds for saying that as to what passed at Green Cay, no possible imputation of want of due diligence can attach, it seems to me that it would be carrying the doctrine

1 British Append, vol. iii, p. 93.