against us, would be a willing witness, especially if he resided there, and was in any way dependent on the people of that place for a livelihood." All this no doubt was true, but then it should not be forgotten that exactly the same difficulty, arising both from the unwillingness of the witnesses to come forward and the absence of process to compel them, stood in the way of the local authorities just as much as it did in that of Mr. Dudley and Mr. Squarey.

On the 21st of July, however, Mr. Dudley with his solicitor waited on Mr. Edwards with six depositions, one of which, that of a man named Passmore, went directly to the point to show that the vessel was intended for the Confederate service. It was shown by the affidavit of an articled clerk of Mr. Squarey that he had examined the Birkenhead dock-master's book, and found an entry relating to a screw steamer, No. 290, the number of the vessel in question, of the registered tonnage of 500 tons, from which entry it appeared that the name of her master was Matthew J. Butcher.

Then Passmore deposed as follows:

I, William Passmore, of Birkenhead, in the county of Chester, mariner, make oath and say as follows:

1. I am a seaman, and have served as such on board Her Majesty's ship Terrible during the Crimean war.

2. Having been informed that hands were wanted for a fighting-vessel built by Messrs. Laird & Co., of Birkenhead, I applied on Saturday, which was, I believe, the 21st day of June last, to Captain Butcher, who, I was informed, was engaging men for the said vessel, for a berth on board her.

3. Captain Butcher asked me if I knew where the vessel was going, in reply to which I told him I did not rightly understand about it. He then told me the vessel was going out to the Government of the Confederate States of America. I asked him if there would be any fighting, to which he replied, yes, they were going to fight for the Southern Government. I told him I had been used to fighting-vessels, and showed him my papers. I asked him to make me signalman on board the vessel, and, in reply, he said that no articles would be signed until the vessel got outside, but he would make me signalman, if they required one, when they got outside.

4. The said Captain Butcher then engaged me as an able seaman on board the same vessel, at the wages of £4 108. per month; and it was arranged that I should join the ship in Messrs. Laird & Co.'s yard on the following Monday. To enable me to get on board, Captain Butcher gave me a password, the number "290."

5. On the following Monday, which was, I believe, the 23d of June last, I joined the said vessel in Messrs. Laird & Co.'s yard at Birkenhead, and I remained by her till Saturday last.

6. The said vessel is a screw-steamer of about 1,100 tons burthen, as far as I can judge, and is built and fitted up as a fighting-ship in all respects; she has a magazine and ghot and canister racks on deck, and is pierced for guns, the sockets for the bolts of which are laid down. The said vessel has a large quantity of stores and provisions on board, and she is now lying at the Victoria Wharf in the great float at Birkenhead, where she has taken in about 300 tons of coal.

7. There are now about thirty hands on board her, who have been engaged to go out in her. Most of them are men who have previously served on board fighting-ships; and one of them is a man who served on board the Confederate steamer Sumter. It is well known by the hands on board that the vessel is going out as a privateer for the Confederate Government to act against the United States under a commission from Mr. Jefferson Davis. Three of the crew are, I believe, engineers; and there are also some firemen on board.

8. Captain Butcher and another gentleman have been on board the ship almost every day. It is reported on board the ship that Captain Butcher is to be the sailing-master, and that the other gentleman, whose name, I believe, is Bullock, is to be the fighting Ι captain.

9. To the best of my information and belief, the above-mentioned vessel, which I have heard is to be called the Florida, is being equipped and fitted out, in order that she may be employed in the service of the Confederate Government in America, to cruise

1 United States Documents, vol. vi, p. 390.

and to commit hostilities against the Government and people of the United States of
America.
WILLIAM PASSMORE.

Sworn before me at the custom-house, Liverpool, this 21st day of July, 1862.
S. PRICE EDWARDS,

Collector.

Thus it appeared that the registered captain of the vessel, and who was in charge of her, had actually engaged a seaman expressly for the service of the Confederate States. The other depositions went strongly to show that Captain Bullock was the agent of the Confederate Government; that he had superintended the building of the vessel; selecting the timber to be used for her, and directing and giving orders to the workmen; and, this being so, that he had proposed to one Brogan, an apprentice in the ship-building yard of Messrs. Laird & Co., to enter as carpenter's mate on board the vessel.

Now, if this evidence could be relied on, it established a strong case against the vessel, and afforded sufficient reason for seizing her. I by no means go the length of saying that a public prosecutor is bound to accept as trustworthy evidence the statements of witnesses furnished to him by a party interested, till he has had an opportunity of satisfying himself that the evidence is deserving of credit. But here the officer whose business it was neither acted nor inquired. He made no inquiry in the first instance of the workman in Messrs. Laird's yard, who appears to have been willing to speak. The important statement that it had been represented to General Burgoyne, when visiting the yard, that the vessel was being built for the Spanish government, while the Spanish minister in London denied the fact, was not followed up. When the evidence of Passmore and Brogan was brought before him, he took no trouble to communicate with these witnesses with the view of satisfying himself of the truth of their statements.

The blame of this inaction, however, attaches rather to those under whose direction Mr. Edwards proceeded than to himself. He cannot, I think, be justly blamed for having sought for and acted under the directions of his superiors in London in an affair of so much impor

tance.

The legal advisers of the Customs Department of the Government did. not see in the evidence submitted to them sufficient to justify the seizure of the ship. The assistant solicitor reports as follows:

In my opinion there is not sufficient evidence in this case to justify the detention of the vessel under the 59 George III, c. 69. The only affidavit that professes to give anything like positive evidence is that of the seaman Passmore; but, assuming all he states to be true, what occurred between the reputed master (Butcher) and himself would not warrant a detention under section 6, nor support an information for the penalty under that section. Nor do I think, however probable it may seem that the vessel is fitted out for the military operations mentioned, that sufficient evidence has been adduced to entitle the applicants to the interference of the Collector of Customs at Liverpool. The only justifiable grounds of seizure under section 7 of the act would be the production of such evidence of the fact as would support an indictment for the misdemeanor under that section.

CUSTOMS, July 22, 1862.

J. O'DOWD.2

This report of the assistant solicitor was upheld by his principal :

I entirely concur with Mr. O'Dowd in opinion that there is not sufficient evidence to warrant the seizure or detention of the ship by the officers of customs. There appears

1Appendix to British Case, vol. i, p. 189.

Appendix to United States Case, vol. i, p. 192.

to be some evidence of enlistment of individuals, and if that were sufficient to satisfy a court, they would be liable to pecuniary penalties, for security of which, if recovered. the customs might detain the ship until those penalties were satisfied or good bail given; but there is not evidence enough of enlistment to call upon the customs to prosecute. The United States Consul or any other person may do so at their own risk, if they see fit.

JULY 22, 1862.

F. J. HAMEL.'

The commissioners adopted the views of their advisers, and on the 22d of July reported to the Lords of the Treasury accordingly, but accompanied their report with the very proper suggestion that should their lordships entertain any doubt upon the subject, the opinion of the Law-Officers should be taken. The papers were forwarded by the Treasury to the foreign office without a moment's delay, in order that the opinion of Lord Russell might be taken, as appears from a note from the secretary of the treasury to the under secretary of state for foreign affairs:

TREASURY, July 22, 1862.

MY DEAR MR. LAYARD: As the communication may be considered pressing, I send it to you unofficially to save time. Perhaps you will ascertain from Lord Russell whether it is his wish that we should take the opinion of the law-officers as to the case of this vessel. It is stated that she is nearly ready for sea.

Sincerely yours,

GEO. A. HAMILTON

The depositions of Passmore and the others were transmitted also by Mr. Adams, to Earl Russell, with the accompanying note:

LEGATION OF THE UNITED STATES,
London, July 22, 1862.

MY LORD: I have the honor to transmit copies of six depositions taken at Liverpool, tending to establish the character and destination of the vessel to which I called your lordship's attention in my note of the 23d of June last.

The originals of these papers have already been submitted to the collector of the customs at that port, in accordance with the suggestions made in your lordship's note to me of the 4th of July, as the basis of an application to him to act under the powers conferred by the enlistment act. But I feel it to be my duty further to communicate the facts as there alleged to Her Majesty's government, and to request that such further proceedings may be had as may carry into full effect the determination which I doubt not it ever entertains to prevent, by all lawful means, the fitting out of hostile expeditions against the government of a country with which it is at peace.

I avail, &c.,

CHARLES FRANCIS ADAMS.

The papers were submitted to the law-officers on the 23d, with a request for their answer at their earliest convenience.

In the mean time Mr. Squarey had procured two other important depositions: the one that of a ship's carpenter, named Roberts, who stated that he had been engaged as carpenter's mate on board this vessel, and had seen Captain Butcher by appointment, and that Captain Butcher had spoken to the boatswain about him; and that it was generally understood on board of the vessel that she was going to Nassau for the southern government; the other an affidavit of Robert John Taylor, which was still more to the purpose. This man, an Englishman by birth, but living at Mobile, had been captured in attempting to run the blockade, and was now desirous of taking service, whereby to get back to Mobile. The material part of his statement was as follows: Mr. Rickarby, of Liverpool, a brother of the owner, at Mobile, of the vessel in which I was captured when attempting to run the blockade, gave me instructions to go to

Captain Butcher, at Laird's yard, Birkenhead. I had previously called on Mr. Rickarby, and told him that I wanted to go South, as the Northerners had robbed me of my clothes when I was captured, and I wanted to have satisfaction.

I first saw Captain Butcher at one of Mr. Laird's offices last Thursday fortnight, (namely, the 3d of July last.) I told him that I had been sent by Mr. Rickarby, and asked him if he were the captain of the vessel which was lying in the dock. I told him that I was one of the men that had been captured in one of Mr. Rickarby's vessels, and that I wanted to get South in order to have retaliation of the Northerners for robbing me of my clothes. He said that if I went with him in his vessel I should very shortly have that opportunity.

Captain Butcher asked me at the interview if I was well acquainted with the Gulf ports, and I told him I was. I asked him what port he was going to, and he replied that he could not tell me then, but that there would be an agreement made before we left for sea. I inquired as to the rate of wages, and I was to get £4 108. per mouth, payable weekly. I then inquired if I might consider myself engaged, and he replied, yes, and that I might go on board the next day, which I accordingly did; and I have been working on board up to last Saturday night.

These depositions were properly forwarded by Mr. Squarey to Mr. Gardner, the secretary to the board of customs, together with an opinion which had been given by Mr., now Sir Robert, Collier, on the whole case, and which was in these terms:

I have perused the above affidavits, and I am of opinion that the collector of customs would be justified in detaining the vessel. Indeed, I should think it his duty to detain her; and that if, after the application which has been made to him, supported by the evidence which has been laid before me, he allows the vessel to leave Liverpool, he will incur a heavy responsibility-a responsibility of which the board of customs, under whose directions he appears to be acting, must take their share.

It appears difficult to make out a stronger case of infringement of the foreign-enlistment act, which, if not enforced on this occasion, is little better than a dead letter. It well deserves consideration whether, if the vessel be allowed to escape, the Federal Government would not have serious grounds of remonstrance.

TEMPLE, July 23, 1862.

R. P. COLLIER.

Notwithstanding this additional evidence, and the decided opinion of Mr. Collier, strange to say, the assistant solicitor to the customs remained unshaken in his opinion. He reports on the 23d:

I have read the additional evidence, and I do not think that it materially strengthens the case of the applicants. As regards the opinion of Mr. Collier, I cannot concur in his views; but, adverting to the high character which he bears in his profession, I submit that the board might act judiciously in recommending the lords of the treasury to take the opinion of the law-officers of the Crown.

JULY 23, 1862.

J. O'DOWD.3

These papers were immediately submitted to the law-officers. On the 25th of July came a further affidavit from Mr. Squarey, that of a man named Redden, who deposed as follows:

I am a seaman, and have followed the sea for fifteen years. I have been boatswain on board both steamers and sailing-vessels, and belong to the naval reserve.

About six weeks ago I was engaged by Captain Butcher, (with whom I had previously sailed,) as boatswain on board a vessel then in Messrs. Laird & Co.'s ship-building yard, but now lying in the Birkenhead float, and known by the name of No. 290. The said Captain Butcher offered me £10 per month, and said an agreement should be signed when we got outside. He told me that we should have plenty of money when we got home, as we were going to the Southern States on a speculation to try and get

some.

The crew now on board the said vessel consists of about forty men, but I believe that she will take to sea about one hundred men, all told. It is generally understood on board that she will clear for Nassau, but not make that port. The said vessel has all her stores and coals on board ready for sea. She is fitted in all respects as a man-of-war, to carry six broadside-guns and four pivots, but has no guns or ammunition on board

as yet. The rules on board are similar to those in use on a man-of-war, and the men are not allowed to sing as they do on a merchantman. The call is used on board. The said vessel is of about 1,100 tons burthen.

I know Captain Bullock. He has been superintending the building of the said vessel in Messrs. Laird & Co.'s yard, and is, I believe, to take charge of the vessel when we get outside.

It is generally understood on board the said vessel that she belongs to the confederate government.

HENRY REDDEN.'

Nevertheless, Mr. O'Dowd still clings to his opinion with the pertinacity with which men sometimes persist in adhering to an opinion once formed. He says:

I submit a reference to my former reports, to the opinions expressed in which I feel still bound to adhere. So far from giving additional force to the application, the affidavit of Henry Redden appears to me to weaken it, as, after the lapse of several days since the date of the former affidavits, the applicants are confessedly unable to make out a better justification for detaining the vessel. It is, no doubt, difficult to procure satisfactory evidence in such a case; but, in the absence of at least a clear prima-facie case, there cannot exist those grounds for detaining the vessel which the foreign-enlistment act contemplates.

CUSTOMS, July 25, 1862.

J. O'DOWD.

There was, however, abundant evidence to make out a prima-facie case, and of that opinion were the law-officers of the Crown, who, on the 29th of July, reported as follows:

In our opinion, the evidence of the witnesses who have made depositions, (we allude particularly to William Passmore, Edward Roberts, Robert John Taylor, and Henry Redden,) coupled with the character and structure of the vessel, makes it reasonably clear that such vessel is intended for warlike use against citizens of the United States and in the interest of the (so-called) Confederate States. It is not, and cannot, be denied that the vessel is constructed and adapted as a vessel of war, being pierced for guns, the sockets for the bolts of which, Passmore states, are already laid down, and having a magazine, and shot and canister racks on the deck, and a certain number of canisters being actually on board. It is also stated in the report of the commissioners of customs of July 1st that Messrs. Laird, the builders, do not deny that the vessel has been built for some "foreign government," although they maintain, apparently, a strict reserve as to her actual destination, and as to the "foreign government" in particular for whose service she is intended. We do not overlook the facts that neither guns nor ammunition have as yet been shipped; that the cargo, (though of the nature of naval stores in connection with war-steamers,) may yet be classed as a mercantile cargo; and that the crew do not appear to have been, in terms and form at least, recruited or enrolled as a military crew. It is to be expected that great stress will be laid upon these circumstances by the owners and others who may oppose the condemnation of the vessel if seized by the officers of the customs; and an argument may be raised as to the proper construction of the words which occur in the seventh section of the foreignenlistment act, "equip, furnish, fit out, or arm," which words, it may be suggested, point only to the rendering a vessel, whatever may be the character of its structure. presently fit to engage in hostilities. We think, however, that such a narrow construction ought not to be adopted; and, if allowed, would fritter away the act, and give impunity to open and flagrant violations of its provisions. We, therefore, recommend that without loss of time the vessel be seized by the proper authorities, after which an opportunity will be afforded to those interested previous to condemnation to alter the facts, if it may be, and to show an innocent destination of the ship. In the absence of any such countervailing case it appears to us that the vessel, cargo, and stores may be properly condemned. 3

Unfortunately, the report of the law-officers came too late. Before the necessary orders to seize the vessel could be issued, a telegraphic message from Liverpool announced that she had gone out of dock the night before, (the 28th,) and had left the port that morning, (the 29th.) She left under the pretense of making a trial trip, but stood out to sea, and never returned.