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 officiall 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; but while mere suspicion is not sufficient to authorize the course of proceeding indicated in your letter, it is certainly sufficient to call for precautionary measures, such as I advised in respect of this very vessel in my minute on the receiver-general's letter referred to me by the governor two or three days since, namely, that the receiver-general should, under the powers of his office, place a revenue officer on board 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.1

So far, the opinion given by the attorney-general was perfectly sound.

The letter of the receiver-general here referred to was one dated the 26th of May, in which that officer stated that he had every reason to believe that the consignees of the vessel intended shipping large quantities of arms and munitions of war as cargo, and might probably apply for permission to transship cargo to her from other vessels where she lay.2

In a letter to the colonial secretary of the next day (May 30) the attorney-general writes:

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 the 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 a court of law as legal proof of the violation of the statute sought to be established.3

Having received the attorney-general's report, the governor, on the 2d of June, thus writes to Commander McKillop:

I may say that it is quite impossible that the Oreto, or any other vessel, should be allowed to arm herself for belligerent purposes within the jurisdiction of the harbor. The Oreto is registered as a British vessel, and carries the British flag. Therefore she would be guilty of piracy if, without changing her British nationality, she equipped herself as a vessel of war. And were she to change her nationality and to be equipped for the service of either of two belligerent states, with both of whom Great Britain is at peace, she would, under the directions of Her Majesty's government, be precluded from remaining more than twenty-four consecutive hours in our 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; for, while it would be in contravention of the foreign-enlistment act to arm an English vessel for the service of a foreign belligerent power, and contrary to the positive orders of the Queen's government to allow a vessel of war belonging either to the Federal or confederate government to arm herself in an English port, it would be equally illegal on our part to seize a merchant-vessel honestly and exclusively employed in the shipment of cargo for the purpose of commerce.

1 British Appendix, vol. i, p. 17.

2 Ibid., vol. v, pp. 35, 36.

3 Ibid., vol. i, p. 18.

Therefore I request that you will take such steps 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 would be a safer course, to remove your own ship to Cochrane's anchorage, and there watch her proceedings from day to day.

I should much regret to disarrange your plans in any way, or to impose on you any irksome duty, and I hope the necessity of either may be averted. But I am sure you will concur with me in thinking that all considerations (except that of affording due protection to the harbor) must give way to the obligation of observing the strictest neutrality in our dealings with the two contending American federations, and carrying out the Queen's orders with the most perfect good faith."

Can it be doubted that the governor in thus writing was acting ac cording to an honest sense of duty?

It appears that about this time a man of the name of Jones, who had come out as boatswain of the Oreto, together with two of the crew, having got on shore, had refused to return to the vessel; whereupon, he and his companions had been, at the instance of the captain, apprehended and sent to prison, as having deserted from a British vessel. This man, Jones, put himself in communication with Mr. Whiting, the United States consul. On the 4th of June Mr. Whiting forwarded to the governor the following letter from Jones to himself:

NASSAU PRISON, June 4, 1862.

SIR: The ship I am from is the Oreto, built by W. C. Miller, in Liverpool, after the model of the English navy gun-boats, with magazine, shot-lockers, ports and bolts for twenty guns. Everything is rigged, and ready for mounting; even all the articles necessary for seamen, such as hammocks, bedding, kettles and pans, with three years' provisions. In short, she is a perfect man-of-war. Captain, James Duguid; chief officer, William Duggiu; second officer, - Hudson; I, sir, was third officer and boatswain; the chief steward and purser, who refused duty, are in jail here.

This letter only confirmed what was already known, namely, the capacity of the vessel for the purpose of war. No evidence of her bellig erent destination was afforded in it, or in the report of Commander McKillop to the governor of the 6th of June, wherein he says that he "has visited the screw-steamer Oreto and examined her, and that she is fitted out in every way for war purposes-magazines, shell-rooms, and other fittings, totally at variance with the character of a merchantvessel. She has no guns or ammunition on board. The captain does not deny that she is intended for a war-vessel."3

On this, taking the same view as before, the attorney-general reports:

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.1

In a note of the 8th of June, Commander McKillop again adverts to the warlike character of this vessel, and states his opinion "that she was not capable of taking in any cargo, having no stowage; adding that, should she take in guns or ammunition, he should consider it his duty to seize her."5

On the 12th of June Mr. Whiting again calls the attention of the governor to the Oreto. "One of her officers," he says-I presume he refers to Jones, the boatswain-" testifies to her warlike character and equipment, with everything that marks a vessel of war-ports,

magazines, shot-lockers, &c. He avers that shells were transferred from the steamer Hero to the Oreto at Cochrane's anchorage, an act which, I suppose, would warrant her seizure and detention. The steamer Melita, from England, landed here last Sunday Captain Semmes and officers of the pirate Sumter, and I have no doubt they are here to join the Oreto and pursue their maritime depredations.” 1

The colonial secretary replies:

His excellency has been assured by the agents of the Oreto that it is their intention to clear her in ballast for Havana; and he has received from the treasurer (as collector of the colonial customs) an application to give her this clearance, an application to which he has accorded his assent.

His excellency has, therefore, no right to assume that she is now equipping herself, or will leave this port equipped, as a privateer.

While his excellency is bound by his instructions to observe the strictest neutrality between the United States and the Confederate States of North America, he has no power whatever to act on general suspicion or hearsay. He is bound to give the twenty-four hours' notice to any known privateer or man-of-war belonging to either of the belligerent States which may put into this port for indispensable supplies, but he is not bound to detain or obstruct any vessels professing to be engaged on a commercial voyage, unless he has evidence strong enough to satisfy the court of admiralty that she is in fact a belligerent vessel, proceeding on a belligerent mission.

Not having any proof which would warrant the condemnation of the Oreto by a competent court of jurisdiction, or which would connect her with any privateering enterprise, his excellency feels that it is as yet out of his power to interfere with this vessel, or prevent her presumably peaceful and innocent voyage to Havana.

It would appear that, in the first days of June, the consignees of the Oreto had applied to the receiver-general of the colony for permission to load the vessel with cargo for a voyage to Saint John's, New Brunswick, that port being the usual destination for which vessels intending to run the blockade ostensibly cleared. The receiver-general, before acceding to this request, referred the matter to the governor. The permission to ship the cargo was granted, but, in consequence of the suspicions. attaching to the vessel, the following order was at the same time adopted by the governor in council on the 4th of June: 3

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 Bulldog, respectively, for their information and guidance.

This order having been communicated to the consignees, the latter determined to remove the Oreto from Cochrane's Anchorage to the port of Nassau, which she entered on the 7th of June. On the 9th she commenced taking in empty shells as cargo, of which upward of 400 boxes were shipped. 4

British Appendix, vol. i, p. 21.

2 Ibid., pp. 21, 22.

3 Ibid, p. 53.

4 Ibid. and vol. v, pp. 38, 40, and 47.

In deference, however, as it seems, to the desire of the governor, the consignees changed their purpose, and determined to clear the vessel in ballast for Havana, and the shells were therefore discharged.1

In the mean time Mr. Whiting continued his communications with Jones, and on the 13th June drew up the statements of the latter in the form of an affidavit, in which all that had taken place since the vessel had left Liverpool was detailed, and the true character of the vessel placed beyond a doubt.

The following is the affidavit:

I, the undersigned, Edward Jones, late third officer of the steamer Oreto, do solemnly swear to the following facts, viz:

1. That, on the 3d day of March, 1862, I shipped on board the steamer Oreto at Liverpool, as boatswain; the articles specifying that the vessel was bound to the port of Palermo; thence, if required, to any port in the Mediterranean or the West Indies, and back to a final port of discharge in the United Kingdom; the term of service not to exceed six months.

2. That the Oreto was expressly built for a man-of-war, and was said to be destined for the King of Sardinia; that she has twenty ports, magazine of 50 tons capacity, shot-lockers, &c.; that on her passage to this port, breechings and gun-tackles were fitted and everything got in readiness for mounting guns.

3. That the Oreto was supplied with two suits of sails, spare wire rigging, a large quantity of provisions, said to be sufficient for three years' supply for seventy-five men, &c., &c.

4. That after leaving the channel the courses were frequently altered, and that my suspicions were then aroused as to her true destination as a rebel privateer, and I refused duty; that on the thirty-fifth day out, we anchored off the port of Nassau, New Providence, Bahamas, and the next day proceeded to Cochrane's Anchorage; that soon after I left the Oreto, and was imprisoned as a deserter at Nassau, for two weeks. when, after sending a petition to the governor, I was at last released.

5. I also testify to the fact that, for several nights prior to our arrival at Nassau, the lights on board the Oreto were ordered to be put out, and the smoke-stacks were reefed. while look-outs were kept at the mast-heads, and great anxiety was manifested and expressed by the officers lest they should fall in with American cruisers.

I do also solemnly swear that the Oreto is, to my certain knowledge, owned by the so-called Confederate States of North America, and that she is intended for one of their men-of-war, or armed privateers; which facts I stated in my petition to Governor Bayley while I was in prison at Nassau.”

Mr. Whiting committed the unpardonable mistake of sending off this affidavit to Mr. Seward, instead of making it known to the local gov ernment.

In the mean time, Captain McKillop having gone on other service. his place had been taken by Captain Hickley of Her Majesty's ship Greyhound. On the 10th of June Captain Hickley, having previously had a conversation with the governor and the Attorney-General, relative to the Oreto taking in warlike stores for the purpose of becoming an armed vessel, and perceiving lighters alongside of her, went with competent surveying officers to examine her, after which he and the other officers made the following report:

On going on board the Oreto this morning, the captain informed me that the crew had refused to get the anchor up until they could be certain as to where the ship was going, as they did not know what might become of them after leaving port, and that the Oreto was a suspicious vessel. I then proceeded round her decks to note her fittings, &c., and to ascertain whether she had any warlike stores on board for her own equipment, and I have the honor to make the following report:

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

1 British Appendix, vol. i, p. 24.

2 United States Documents, vol. vi, p. 251.

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.

And on my asking the captain of the Oreto, before my own officers and three of his own, whether she had left Liverpool fitted in all respects as she was at present, his answer was, "Yes, in all respects;" and that "no addition or alteration had been made whatever." i

In transmitting this report to the governor, Captain Hickley adds: When I boarded the Oreto she appeared to be discharging her cargo, and this cargo, to all appearance, shells; and I was proceeding to go on with the examination when the consignee (Mr. Harris) and a revenue officer told me that she (the Oreto) had cleared in ballast for the Havana, and was to sail shortly, (I understood the next day,) and that due notice had been given at the custom-house. On this I considered interference unnecessary on my part, and came immediately with the consignee to you, to report what had taken place, and the determined destination of the Oreto, but with the understanding that, owing to the suspicions already cast on the vessel, I was to again visit her before her leaving. This took place on the 10th, and the 11th and 12th passed, and the Oreto did not sail, which again aroused my suspicions that the vessel was not acting in good faith, and that she was still equipping, or making very definite arrangements for so doing.

This morning, at 6.30 a. m., I was informed by Mr. Harris that the Oreto was to sail immediately, at 8 a. m.; and feeling it a bounden duty to ascertain her character before her leaving, to make my report to your excellency, that by so doing I might have the law-officers' opinion as to the legality of her sailing before she quitted the port.

I have the honor to inclose my report for your excellency's information, for the opinion of the attorney-general and Queen's advocate, that my course may be clear as to my dealing with the Oreto, and whether, under the circumstances detailed therein, she is entitled to go her way on the high seas under British colors.

As the report of the officers and the letter of Commander Hickley, while conclusively establishing the warlike character of the vessel, failed to carry the case any further as to attempt to equip or arm her within the waters of the Bahamas, the attorney-general, to whom these documents were referred, still adhered to his former view, and advised that there was nothing contained in them which would justify the detention of the vessel.

From the foregoing letter of Captain Hickley, it appears that, ou finding that the Öreto was discharging shells out of the vessel, and on being told by Mr. Harris, one of the consignees, and by a revenue officer on board, that she had cleared out in ballast for the Havana, and was to sail, as he understood, the next day, and that due notice had been given at the custom-house, Captain Hickley, however, desirous of preventing with inflexible rigor any breach of neutrality in a port of Her Majesty, considered that all ground for further interference with the vessel-provided always that this undertaking should be carried outwas at an end.

Two more days, however, having elapsed since his last letter, and the vessel still remaining at her anchorage, the suspicions of Captain Hickley became aroused anew. He does not appear to have been at first aware that the cause of the delay was the continued refusal of the crew to remain in the ship, in consequence of which it had become necessary to collect another crew. On the 15th, the boatswain, Jones, and some of the crew of the Oreto, acting under the influence and at the instigation of Mr. Whiting, as appears from the letter of the latter to Mr. Seward of the 18th of June, came on board the Greyhound, and made, as Captain Hickley reports, publicly before him, a variety of statements to the prejudice of the vessel as a