Wynn Fely James Duggan, chief officer of the Oreto. Peter Hinson, seaman of Oreto. John Quinn, fireman of Oreto. Thomas Robinson, fireman of Oreto. Daniel Hamy, coal-trimmer of Oreto. Commander Hickley, of Her Majesty's ship Greyhound. Thomas Joseph Waters, a master mariner in the merchant service. Lieutenant Cardale, royal navy. Bay Beaufoy Stuart, master and pilot of Her Majesty's ship Greyhound, * # In One of the firm of merchants who were consignees of the vessel at Nassau, the master under whom she had made her outward voyage, and other witnesses, were examined for the defense. The consignee, in the course of his evidence, made the following statements on oath :' We (meaning this firm) had the sole direction and management of the Oreto. I know of no person but Captain Duguid having any control over the Oreto. placing the cargo on board the Oreto, it was distinctly understood as cargo. I stated to the receiver general that it was cargo only; that we intended to ship a full load by that vessel. We were fully aware that we could not ship such goods otherwise than as cargo, unless committing a breach of the foreign-enlistment act; and had we been ordered to do it, we should have handed the consignment over to some one else. No act was done by authority of Henry Adderly & Co. [the witness's firm] with the intent that the vessel should be employed as a cruiser. On cross-examination he stated as follows: The vessel was consigned to us by Messrs. Fraser, Trenholm & Co., of Liverpool, She was consigned to us as a merchant-vessel, and we considered her as such. No instruction, in the first instance, was given to us, except the general instructions of shipping cargoes by all their vessels to Messrs. W. and R. Wright, Saint John, New Brunswick, on account and risk of J. R. Armstrong, of Liverpool. Mr. John Lowe, I think, brought a letter of introduction from Mr. Trenholm to the firm. I do not know whether Mr. Lowe was in any way interested in the Oreto. I do not recollect Mr. Lowe being mentioned in any correspondence which we received from Fraser, Trenholm & Co. We never had any transactions with Mr. Lowe in regard to the Oreto. She remained here several weeks before any attempt was made to ship cargo in her. We thought we should receive some instructions from our friends about her, but we did not. The shipping of the cargo on board the Oreto was performed by us under our general instructions. I am not prepared to say whether the vessel was actually going to Saint John, New Brunswick. * # The master, James Alexander Duguid, gave evidence as follows:2 I am master of the Oreto. The owner of the Oreto, I believe, is named Mr Thomas. I took my instructions from Fawcett, Preston & Co., the agents. I arrived here at the latter end of April. I went to Cochrane's Anchorage, and communicated with H. Adderly & Co. as the agents of the vessel representing my owners in England. I had no instructions, when leaving England, who the agents of the vessel were; but, on my arrival here, I understood who they were. Mr. Lowe had a letter, and told me that Messrs. Adderly & Co. were the agents of the vessel, and they would enter the ship. I remained at Cochrane's Anchorage seven weeks; we were waiting orders from the agents, who were waiting orders from the owners at home. The shell was taken on board by the direction of the agents. I never thought that it was intended for the vessel, neither did I know that it was. I had not intent, nor would I do so, to use the Oreto to commit hostilities against any power or state. [65] * * On cross-examination he said: 3 I received my instructions from Messrs. Fawcett, Preston & Co. as to the voyage. They were written. [The instructions were produced in court.] 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. *I had no knowledge whatever, when the vessel cleared for Havana, that she was ultimately bound to the Confederated States of + 'Appendix, vol. i, p. 47. * 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 Confederate States. With respect to the crew of the vessel, the consignee gave evidence as follows: 1 We had some difficulty with the crew. They set up a plea that the vessel not having touched at Palermo, there had been a deviation of the voyage, and therefore they claimed their discharge. We demurred to this, but afterward agreed to pay them their wages up to date, and give them a bonus of £5 and pay their passage to England if they would not remain in the ship. This they refused to accept, stating that, from the several visits of the officers of the man-of-war on board the vessel, they considered she was of a suspicious character, and that they would not go in her unless the governor and Captain Hickley guaranteed their safety. Some accepted the terms that were offered. In consequence of this they were summoned before the police magistrate, and the case was brought under his adjudication. They elected to take their discharge. I was present at the time they then and there agreed to quit the ship. They then obtained leave to go on board for their clothes. The men were discharged by the magistrate. In consequence of this we got a shipping-master to ship another crew for the Oreto. I think there were fifteen or sixteen new hands then shipped. They received the usual advance. It was our intention to send her immediately to sea. I had arranged with the pilot to take her out the following morning, (Sunday ;) they, however, missed the tide, the crew not having come on board. The vessel was again seized that day. The crew we shipped then left the Oreto. I have not seen them since, and all the advance that we paid is lost. As to the same matter, the master stated as follows: 2 Two mornings following, previous to this seizure, (I mean on Friday and Saturday,) I ordered my crew to get the vessel under way, but they refused, stating that I had deceived them once, and that they would not believe what I told them again. I told them she was cleared for Havana, and bound there as far as I knew. They still continued to refuse to work, and said that they would not believe anything that I told them. In consequence of this I sent warrants on board for them. They all appeared before the magistrate. They said that they would not proceed in the vessel unless they were guaranteed that they would be safe from any American cruisers. They then said that they would take their discharge, and the whole of them took their discharge. On the 2d of August, 1862, the judge of the court pronounced judg ment in the case, reviewing at considerable length the evidence which had been produced on both sides, and stating what, in his opinion, was the effect and value of that evidence. At the beginning, he said: 3 To support the libel, it is necessary that proof should be given 1st. That the aforesaid parties, having charge of the Öreto, while the vessel was within the jurisdiction of the vice-admiralty court of the Bahamas, attempted to equip, furnish, and fit her out as a vessel of war; 2dly. That such attempt was made with the intent that she should be employed in the service of the Confederated States of America; and, 3dly. That such service was to cruise and commit hostilities against the citizens of the United States of America. Witnesses have accordingly been produced to prove that the Oreto is constructed for and fitted as a war-vessel; that acts have been done in her, since she came to Nassau, which constitute an attempt to equip, fit, and arm her as a vessel of war; that from certain conversations which were overheard between the master of the vessel and a person who came out passenger in her, and from certain acts done by this person, there is proof that she was intended for the service of the Confederated States of America, and to cruise against the citizens of the United States. After recapitulating the substance of the evidence, he said: + The question now to be decided is, whether, upon a careful consideration of the evideuce, there appears proof or circumstantial evidence amounting to reasonable [66] 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 com Appendix, vol. i, p. 46. 3 Ibid., p. 39. 2 Ibid., p. 49. 4 Ibid., p. 50. mit 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 explanatory 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. He arrived at the conclusion that there was no sufficient evidence of any act done, or attempt made, since the Oreto had come to the colony, to fit out or equip her as a vessel of war. He was further of opinion that, although the vessel might not be calculated to carry the ordinary bulky cargo of merchant-ships, she was capable of carrying a considerable quantity of some kinds of cargo, and that it was not improbable that a vessel of her description might be used for running the blockade. He was also of opinion that the evidence connecting her with the Confederate States, as a vessel to be used in their service to cruise against the United States, was "slight."1 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 Confederate States rests almost entirely on the evidence of the steward, Ward, whose testimony I have already explained my reasons for receiving with much doubt. The judge, therefore, made a decree for the restoration of the vessel to the master, claiming on behalf of the alleged owner, John Henry Thomas 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 their 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. The assumption, on which the judge appears to have proceeded, that evidence of acts done before the Oreto arrived at the Bahamas could not be received, unless for the purpose of explaining or elucidating acts done after her arrival, may have been erroneous, and Her Majesty's government believes that it was so. Her Majesty's government believes that in a proceeding in rem àgainst a ship, to enforce a forfeiture for an alleged infringement of the statute, a court, wherever locally situate within the dominions of the Crown, might lawfully receive and adjudicate upon evidence of such infringement, wherever the act or acts constituting it might have been committed. The decision, however, although founded in part on an assumption that Her Majesty's government considers open, at least, to grave doubt, was the judgment of a court of competent jurisdiction, and was, as such, binding on the executive authorities of the colony. And it is further to be observed, that proof of acts done out of the limits of the colony, Appendix, vol. i, p. 52. had it been tendered and admitted, could not have altered the decision of the court, unless it had supplied evidence also of an unlawful intention. Her Britannic Majesty's government, on the 31st July, 1862, received from the governor of the Bahamas intelligence of the measures taken in respect of the Oreto. The seizure of the vessel was approved by Her Majesty's government, and the governor was informed that she should be detained until instructions could be given as to what further process should be (67) instituted. The lords commissioners of the treasury *were at the same time requested to consider the propriety of sending an officer of customs from Liverpool who could give evidence of the facts which occurred in regard to the Oreto at that place, and inquiries with that view were forthwith made by the commissioners of customs. Intelligence of the decree of the vice-admiralty court of the Bahamas, ordering the restoration of the Oreto, was received by Her Majesty's government on the 16th September, 1862. The Oreto was released, in obedience to the decree of the court; and on the 7th August, 1862, she was cleared at the Nassau customhouse as a merchant-vessel with cargo, for Saint John's, New Brunswick, as appears from the subjoined copy of the manifest of cargo, extracted from the books of the revenue department of the Bahamas:2 Outwards. Manifest of cargo on board British steamer Oreto, A. L. Read, master, for St. John's, N. B. 178 tons; 12 feet water; 52 men. On or about the 7th August the Oreto sailed from Nassau. Of the subsequent history of this vessel, from the time of her leaving Nassau to that of her arrival in a port of the Confederate States, Her Britannic Majesty's government has no knowledge; but it has been informed and believes that she was subsequently armed for war by a Captain Maffit, who had formerly held a commission in the United States Navy, and was then a commissioned officer in the service of the Confederate States; that she was then commissioned as a ship-of-war of the Confederate States, under the command of the said Maffit, and her name changed from "the Oreto" to "the Florida" and that, after keeping the sea for a few days, she put in at the port of Cardenas, in Cuba, where (or at the Havana) she remained for nearly a month. On the 4th September the vessel arrived at and entered the port of Mobile in the Confederate States, which was then blockaded by three United States ships of war. She remained in port for upward of four months. She was repaired and refitted, and shipped a crew, and, in January, 1863, was sent to sea from Mobile, under the command of Maffit, as a Confederate States ship of war. The United States consul at Nassau, after the departure of the * Ibid., p. 58, Appendix, vol. 1, pp. 29, 31, et seq. vessel, and on the 8th September, 1862, wrote to the governor as follows:1 UNITED STATES CONSULATE, Nassau, New Providence, September 8, 1862. SIR: 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. I have, &c. The colonial secretary replied as follows: SAMUEL WHITING. 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 into 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. [68] I have, &c., C. R. NESBITT, *No evidence whatever in support of the allegations of the consul appears to have been furnished by him, and no facts were produced on which a prosecution could be founded." The subsequent history of the Florida, so far as it is known to Her Majesty's government from official reports and other sources, is as follows: On the 25th January, 1863, the Florida came into the harbor of Nassau, where she remained twenty-six hours; and on the 24th February she put in at Barbados, where she remained about two days, (being detained for twenty-four hours at the request of the United States consul, in order to allow time for the sailing of a United States merchantvessel then in the harbor.) Each of these colonies had been repeatedly visited by United States ships of war. It was alleged that in each of them some advantage or indulgence which United States vessels had not enjoyed had been granted to the Florida. But it was shown by the governors of those colonies that this assertion was entirely erroneous, and that no advantage was conceded to the Florida which had not before been granted to cruisers of the United States. It appeared, however, that both the United States ship San Jacinto and the confederate ship Florida had been permitted to obtain coal at Barbados within a less time than three months after they had respectively coaled at another British colony, the commander of each vessel having alleged that his supply of coal had been exhausted by stress of weather. In consequence of this the following dispatch was addressed by Her Majesty's secretary of state for the colonies to the governor of Barbados; and instructions, substantially to the same effect, were sent to the governors of the other British colonies in the West Indies: 2 1 Appendix, vol. i, p. 87. 2 Ibid., p. 102. |