[50]

*On cross-examination, he says: I received my instructions from Messrs. Fosset, Preston & Co. as to the voyage. They were written. (The instructions were produced.) In the conversation referred to in the letter dated 22d March, 1862, I proposed going to Nassau instead of Havana. No instructions were given to me as to the ultimate destination of the vessel after she reached Nassau. (Captain Duguid then gives some evidence as to the fittings of the vessel, but as it does not affect the evidence already given on that point, there is no necessity to repeat it.)

I saw the men employed at Cochrane's Anchorage stropping blocks; I never at Cochrane's Anchorage heard those blocks called "gun-tackle blocks." The first time that I heard the term "gun-tackle blocks" used was in this court. I have not, that I am aware of, any blocks on board the Oreto called gun-tackle blocks. I saw in the logbook of the ship that they had been called gun-tackle blocks; I saw that entry since the ship arrived here. I am not aware whether the entry was made after the vessel arrived here. On the 16th of May there is an entry in the log-book, "Hands employed in scraping the mainmast and stropping the gun-tackle blocks." There is a word struck out in the entry in the log-book of the 9th of June; I am not aware of my having struck it out. I had no knowledge whatever, when the vessel cleared for Havana, that she was ultimately bound to the Confederated States of America. I have no knowledge whether the vessel was to return to Europe or not. I have no knowledge one way or the other. I have no knowledge whatever that she had been sold or agreed to be sold to any persons in the Confederated States. I struck out some parts of the log-book, but I will not undertake to swear that I struck out the word in the entry of the 9th of June, referred to as follows: "Received on board 440 cases of shell, and stowed them in the rooms." After "the" there is a word scratched out between the word "the" and "rooms." I have never stated that the Oreto was intended for a vessel of war.

The galley was moved; the caboose was in the galley-it was in its proper place. That galley was on the mess-deck. It will have to be placed there again before the vessel can go to sea, as it was only shifted for the convenience of the men. When I was preparing to go to sea on the 15th of June, I had not attempted to remove the galley. There was not time-we could have done it after the anchor was up. Where it was originally placed, it was not near the magazine; the mess-deck is over what is called the magazine, and the galley removed as far as possible. If the magazine was filled with powder, I think it would be quite safe if the galley were in its proper place. The ship while at Cochrane's Anchorage was frequently visited by Mr. Lowe. I do not know when Mr. Lowe left this. I think he left in a vessel called the Gordon or Nassau. I have not seen him since.

The question now to be decided is, whether, upon a careful consideration of the evi dence, there appears proof or circumstantial evidence amounting to reasonable proof, that a violation of the provisions of the foreign enlistment act has been committed by the parties having charge of the Oreto. First, by attempting, by any act done since she came into this colony, to fit or equip the Oreto as a vessel of war. Secondly, by making such attempt for the purpose of fitting and equipping her as a vessel of war for the service of the Confederated States of America, to cruise and commit hostilities against the citizens of the United States of America. I have already said that what took place before the vessel came here can only be received as elucidatory or explana tory of what has occurred since that time. Two facts have been proved, both of which, it has been contended, are violations of the act. One is that, while the vessel lay at Cochrane's Anchorage, some blocks were stropped in such a manner that they might be used as gun-tackle blocks, and that they were so called in an entry in the ship's log-book, and by some of the crew. The other, that a number of boxes containing shells were put in the ship after she came into this harbor, and were taken out again. I first notice the evidence relating to the shells.

A permission from the governor, in council, to ship cargo in the Oreto has been given in evidence; this does not prohibit any particular kind of cargo. Shells might, there fore, be shipped under it, as well as any other kind of cargo. It appears by the evidence of Mr. Harris, one of the consignees of the vessel, that everything relating to the shipment of the shells was done openly and bona fide. It was observed by the advo cate general that penal statutes need not now be construed so strictly as they formerly were. Supposing that to be the case, there is no doubt that it is necessary to act on them with great caution. Now, what is the proof that these shells were intended for the arming of the vessel? Why is it not as probable that they were intended to be carried, as many similar cargoes have been, and landed at some other port? Mr. Harris, who shipped them, swears they were intended as cargo. Captain Duguid does the

same, and so does Mr. Duggan, the chief mate. What proof is there, either direct [51] or circumstantial, that these gentlemen have sworn to what is false? It will be remembered that these shells were taken out of the Oreto and landed before the vessel was seized. The original intention, therefore, with regard to the shells, whatever it may have been, had been abandoned before the seizure was made. Is, then, the mere probability that such original intention was to arm and equip the ves

sel for war purposes, sufficient for imputing the crime of perjury to Mr. Harris, to Captain Duguid, and to Mr. Duggan, and for the condemnation of the vessel for a violation of the foreign enlisment act? I certainly think not.

The stropping of the blocks now alone remains to be considered.

While the vessel lay at Cochrane's Anchorage, strops were put on some blocks, which had been brought in her from England. The blocks so stropped might be used as guntackle block, but blocks so stropped may also be used for the ordinary purposes of a merchant-ship. What proof is there, then, that they were to be used as gun-tackle? 1st. It is contended, because they were named gun-tackle blocks in an entry in the ship's log-book, and were so called by some of the crew. 2d. Because there were more of them than could be required for the ordinary use of the ship as luff-tackle or watchtackle; and then it is argued, if the blocks were intended as gun-tackle blocks, the Oreto having been constructed as a war-vessel, it is to be inferred that they were intended for her equipment.

The other side, in reply, contend, 1st, that as the tackle might be used for either of the purposes before mentioned, the mere circumstance of the mate, in his entry in the log-book, or some of the crew, not knowing for what they were really intended, choosing to call them gun-tackle blocks, is no proof whatever that the owners of the vessel intended to use them as such. 2d. That the evidence of Captains Parke, Raisbeck, Waters, and Eustice, all master mariners, and men of much experience, has proved that the number of blocks on board the Oreto is not at all greater than would be required for the ordinary purposes of the ship, especially as she is a new vessel, on board of which a greater number of spare blocks is usually provided than is to be found in vessels that have been in use. That Captain Duguid unequivocally states in his evidence that the blocks were solely for the ordinary use of the vessel, and were never intended to be used as gun-tackle blocks. That he never ordered them to be stropped as such, or heard them called so until he heard the evidence given in this court.

Comparing, then, the evidence on the one side with that on the other, I agree in the opinion that the mere fact of blocks which might be used for other purposes being called gun-tackle blocks by persons who did not know for what purpose they were intended, is not proof that they were intended to be used as gun-tackle blocks. I think that as the fact of there being more blocks on board the Oreto than were required for her use is a matter of professional opinion, and as the opinion of several master mariners, quite competent to form a correct one, has been given in evidence, that there were not more blocks on board the vessel than might be required for ordinary use, I ought not, in the absence of any valid and producible reason for so doing, to adopt the opinion of one party in preference to that of the other. The consequence of which is, that the fact of there being more blocks than could be required for the ordinary use of the vessel is not sufficiently proved.

Lastly, I see no evidence to invalidate the direct and positive testimony of Captain Duguid, that the blocks were not intended to be used as gun-tackle blocks.

If there is not enough proof that the blocks in question were intended to be used as gun-tackle blocks, any observation as to the probability arising from the construction of the ship, that they were for her equipment, becomes unnecessary.

If the evidence given to prove that any act has been done here subjecting the vessel to the penalties of the foreign enlistment act is not sufficient for that purpose, it is, perhaps, superfluous to say anything about the capacity of the vessel to take cargo, or her connection with the Southern States of America. I will, however, observe, that although the ship may not be calculated to carry the ordinary bulky cargo of merchantships, yet there are certain kinds of cargo of which she might carry a considerable quantity. For example, there were some hundreds of boxes of shells put on board of her, and these were stowed in a compartment called the shell-room. There yet remained what is called the magazine, the light-rooms, and other places, besides the cabin. Into these a very large number of muskets, sabers, pistols, and other warlike instruments and ammunition might be stowed. And it is not improbable that a fast Vessel of this description might be used for what is called "running the blockade," an employment which, however improper in itself, would not subject the vessel to forfeiture here.

I think, too, that the evidence connecting the Oreto with the Confederated States of America as a vessel to be used in their service, to cruise against the United [52] States of America, is but slight. It rests entirely on her connection with a

gentleman named Lowe, who came out passenger in her, and some evidence has been given from which it may be inferred that this Mr. Lowe is connected in some way with the Southern States. He is said by some of the crew to have exercised some control over the Oreto. This is denied on oath by Mr. Harris and Captain Duguid. But assuming it to be true, and assuming also that Mr. Lowe is connected with the Confederated States, no one can state that Mr. Lowe, or his employers, if he have any, may not have engaged the Oreto for the purpose of carrying munitions of war, which we have seen she is well capable of doing, and this would not have been an infringement of the act under which she is libeled.' But the evidence connecting the Oreto with the

Confederated States rests almost entirely on the evidence of the steward, Ward, whose testimony I have already explained my reasons for receiving with much doubt.

Under all the circumstances of the case I do not feel that I should be justified in condemning the Oreto. She will, therefore, be restored.

With respect to costs, although I am of opinion that there is not sufficient evidence of illegal conduct to condemn the vessel, yet I think all the circumstances of the case taken together seem sufficient to justify strong suspicion that an attempt was being made to infringe that neutrality so wisely determined upon by Her Majesty's government. It is the duty of the officers of Her Majesty's navy to prevent, as far as may be in ther power, any such infringement of the neutrality. I think that Captain Hickley had prima facie grounds for seizing the Oreto; and I therefore decree that each party pay his own costs.

General report of

No. 37.

Acting Governor Strahan to the Earl of Kimberley.

GOVERNMENT HOUSE,

Nassau, September 5, 1871.

MY LORD: In compliance with the instructions contained in your lordship's circular dispatch of the 24th of July last, I have proceedings at Nas the honor to forward a report by the attorney general of the colony of the proceedings of the steamship Oreto, afterward known as the Florida, on her arrival here, first toward the end of April, 1862, and again on the 26th of January, 1863.

sau.

This report is accompanied by a list of witnesses examined in the vice-admiralty court of the colony in the case of the Oreto; by an affi davit of the present acting receiver general, in reference to the original report of the arrival of the Oreto at Nassau, and of her final clearance and departure therefrom; by an authenticated copy of the permission which the commander of the Florida received from the local government to anchor his vessel in the harbor, for the purpose of obtaining coal; byan affidavit of Mr. Yorick Webb, an officer of the customs department, in relation to the arrival of the Florida; by a certified copy of decree by the judge of the vice-admiralty court of the Bahamas in the case of the Oreto; by certified copies of the proceedings in the case; by two local newspapers, one of March 15, 1862, containing the proclamation of Governor Bayley, of the 11th of March, 1862, the other of the 28th of Janu uary, 1863, in which are reported the arrival and sailing of the Florida.

To the document marked C is attached a certificate under the great seal of the colony that Mr. Dumaresq, by whom the document is certified, is now acting colonial secretary, and to the affidavits is attached a similar certificate that Mr. Doyle, before whom they were made, is chief justice of the colony.

After the very clear report of the attorney general I do not feel my self called upon to make any remarks on the case.

I have, &c.,
(Signed)

GEO. C. STRAHAN, Administrator.

Inclosure 1 in No. 37.]

Report of the attorney general.

The Oreto arrived off the port of Nassau toward the end of April, 1862, and was conducted into Cochrane's Anchorage, some miles to the eastward of the port of Nassau where she remained at anchor until the early part of June following,

She was reported as having arrived from Liverpool in ballast, and was alleged, and she so appeared from her papers, to be a British merchant-vessel.

It was

[53] rumored, however, that her build and fittings were such as to render her easily capable of being converted into a vessel of war; but as there was no evidence of any overt act of equipment having taken place since her arrival in Bahama waters, no action was taken by the governor or the naval authorities at Nassau in respect of her; but she was kept under surveillance by Commander McKillop, of the Bull Dog, the then senior naval officer on this station. This state of circumstances existed until the early part of June, when application was made to the receiver general and treasurer by Messrs. H. Adderley & Co., the consignees of the vessel, to be allowed to load her for an outward voyage to Saint John's, New Brunswick.

It may be here remarked that 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 Saint John's, New Brunswick; and many of them took in their outward cargoes at the anchorages adjacent to the harbor of Nassau. There was, therefore, nothing peculiar in the application to load in this case; but from the suspicious circumstances connected with the build and fittings of the Oreto, the receiver-general, before granting the usual permission to load, referred the question to the governor, and the subject was considered in council on the 4th of June, 1862, when the following order was adopted:

"JUNE 4, 1862. "At an executive council his excellency the governor, with the advice of the board, was pleased to make the following order:

"1. That the Oreto, if practicable, should take in her cargo within the port of Nassau.

"2. That if, however, it be found impracticable, from the depth of water in port or otherwise, that she cannot conveniently take in her cargo within the port, then that she be permitted to do so at Cochrane's Anchorage, under the direct supervision of officers of the revenue department, to be specially appointed for the purpose.

"3. That in consequence of the suspicions which have arisen respecting the character of the Oreto, it is advisable that a British vessel of war should remain at Cochrane's Anchorage, in the immediate vicinity of the Oreto while she is taking in cargo, and to prevent such vessel being detained at the anchorage an inconveniently long time there be imposed as a condition, for the permission for the Oreto to load without the port, that she complete her lading at Cochrane's Anchorage within a period to be designated by the chief officer of the revenue department.

"His excellency was further pleased to direct that a copy of the foregoing order be furnished to the receiver general and treasurer, and the commander of Her Majesty's ship Bull Dog, respectively, for their information and guidance."

A copy of this order was forwarded to the naval commander in the following letter:

"COLONIAL SECRETARY'S OFFICE,
"Nassau, June 5, 1862.

"SIR: I have the honor to inclose, for your information and guidance, a copy of an order made by his excellency the governor yesterday, with the advice of the executive council, in the case of the steamer Oreto, now at Cochrane's Anchorage.

"Commander MCKILLOP,

"C. R. NESBITT, Colonial Secretary.

Her Majesty's ship Bull Dog, New Providence."

The order was also communicated to the consignees of the vessel, who thereupon determined to bring her into the port of Nassau, and she was accordingly removed from Cochrane's Anchorage and brought to the harbor of Nassau, which she entered on the 7th June, and on the 9th the lading of the vessel commenced with cargo, a part of which consisted of arms and ammunition, among which were a number of boxes of shells. For some unexplained reason, however, the consignees changed their purpose, and obtained leave to land the cargo they had put on board, and to clear the vessel ont in ballast for Havana.

By this time Commander McKillop, of the Bull Dog, had left the station, and Commander Hickley, of the Greyhound, had succeeded him.

This latter officer visited the Oreto on the 10th, with several of his officers, for the purpose of examining her; and on the 13th he addressed a letter to the governor, forwarding a report from his officers, of which papers the following are copies: [54]

*GREYHOUND, Nassau, June 13, 1862.

"SIR: After my conversation with yourself and the attorney general on the 9th instaut, relative to the Oreto taking in warlike stores for the purpose of becoming an armed vessel, and perceiving lighters alongside her both that afternoon and the day following, and taking into consideration her character, as also Commander McKillop's letters on her account, and the previous steps taken, I proceeded on board the Oreto with competent surveying officers to make the following report to you, for

to inform your excellency that I have seized the Oreto as a vessel evidently preparing and fitted for war purposes, in opposition to the spirit and intention of the foreign enlistment act, and to submit the object of her voyage hither, the intent of her voyage hence, the nature of her crew, and the purpose of their enlistment, to the judicial investigation of the vice-admiralty court of Nassau.

"I have, &c.,
(Signed)

"H. D. HICKLEY, "Commander and Senior Naval Officer at Nassau.

His Excellency C. J. BAYLEY, Esq.,
"Governor Nassau."

This correspondence was forwarded to the attorney general with the following indorsations:

"I leave this matter in the hands of the Queen's advocate.

"JUNE 18."

"C. J. B.

"Forwarded to Queen's advocate with reference to above minute of his excellency the governor.

(Signed) "JUNE 18, 1862."

"C. R. NESBITT, Colonial Secretary.

The vessel being so seized on the 20th of June, an affidavit of seizure, as also a supplemental affidavit of the commander and officers of Her Majesty's steamship Rinaldo, were filed, and a recognition was granted on motion of the attorney general citing all parties having interest to appear, and on the 28th a claim was exhibited for the vessel by the master on behalf of Henry Thomas, of Liverpool, the alleged owner, certified copies of which documents, with the exception of the monition, are forwarded here

with.

Subsequently, on the 1st of July, a libel was filed on behalf of the seizer, to which a responsive plea was pleaded on the 21st of that month, and after the examination of a number of witnesses in support as well of the libel as of the responsive plea, the cause came on for hearing before the judge of the vice-admiralty court, Mr. Anderson, the attorney general of this colony and Queen's advocate, arguing the case for the prosecu tion and Mr. Burnside that for the claimant ; and on the 2d of August the judge of the vice-admiralty court, Sir John Lees, delivered his definitive sentence, dismissing the libel and restoring the vessel to the claimant. Certified copies of the libel, responsive plea, and decree are forwarded herewith.

The decree not being appealed against, the vessel was released; and a new master and crew having been shipped, she was, on the 7th of August, cleared out at the Nassan custom-house as a merchant-vessel with cargo, ostensibly bound on a voyage to Saint John's, New Brunswick, and sailed on that or the next day from the port of Nassau. The goods shipped as cargo consisted of articles which might as well have been intended as stores for the vessel as merchandise for trading, and doubtless were [57] used for the former purpose, as the vessel very shortly afterward appeared as a war vessel in the service of the so-called Confederate States of America under the name of the Florida.

She left Nassau, however, as before stated, without any munitions of war being on board of her under any designation, whether of cargo or otherwise, and must have received her armament as a cruiser afterward, but where particularly is not known. The foregoing statement, as far as relates to the proceedings of the Oreto and those taken in relation to her, up to the period of her release from seizure, is sustained by the proof taken in the cause in the vice-admiralty court, in which all the papers hereinbefore embodied were given in evidence.

Those proofs consist of the depositions of twelve witnesses in support of the libel and of six in support of the responsive plea, copies of which can be obtained if required; but as the decree is the judicial decision upon the entire case as made out by such evidence, it is apprehended that the depositions themselves will not be necessary, and are not now forwarded.

None of the witnesses so examined are now in the colony; a list of their names is appended hereto, marked A.

An affidavit of the present acting receiver general and treasurer, marked B, is also appended in reference to the original report of the arrival and final clearance and departure of the Oreto from Nassau,

This concludes the history of the vessel in her connection with the Bahamas as the Oreto. Her next appearance at Nassau was as the Confederate States vessel of war Florida, in which character she entered the harbor of Nassau on the morning of Monday, the 26th of January, 1863, under the command of one Mafit, who had at one time been an officer in the United States Navy, but who then was in the position of a com missioned officer in the Confederated States service.