within Her Majesty's dominions, even to a belligerent power, of armed ships of war, already legally equipped with a view to a different object, under Her Majesty's license, would not be illegal. The foreign enlistment act did not, in their opinion, prohibit such a sale. Her Majesty's government had therefore two alternatives. It might, on the one hand, inform Captain Osborn that it did not interpose any objection to his selling the vessels to any person or in any way that he might think fit; such sale (provided no addition were made to their equipments or furniture, before delivery to the purchaser, for the purposes of any belligerent power) being in no way contrary to law. If, on the other hand, the government were not prepared to take this course, it was morally bound to take upon itself the responsibility from which Captain Osborn desired to be freed.

Captain Osborn, the admiralty, and India office were thereupon apprised that Her Majesty's government could not at present sanction the sale of the vessels in India, but was prepared to take on itself the responsibility of detaining the vessels in question unsold until further orders. A similar communication was made to the Chinese government, through Sir F. Bruce, with the assurance that the Chinese government should not ultimately lose the value of the vessels.1

An offer was made in December, 1864, by Messrs. Ritherdon & Thompson, to purchase the three vessels in England on behalf of a foreign gov ernment. They were informed that a written guarantee would be required from the representative of the power for whom the vessels might be purchased, that they would not be used for warlike purposes against any power with whom the Queen was at peace, and that the government reserved to itself the right of refusing, without giving any reason, to sell the vessels when the name of the principal in the transaction should be disclosed. The negotiation was dropped. Overtures were also made in 1865 by Messrs. Bake & Co. to buy the vessels for the government of Mexico, but these also failed.

A committee appointed to assess the value of the vessels at the time they left China valued them, with the concurrence of Captain Osborn, at £152,500, and Mr. Wade was instructed to inform the Chinese gov ernment that the admiralty would be intrusted with the sale of them, that the amount realized would be transmitted to the Chinese government, and any loss upon the original value of the ships would be made good by Her Majesty's government. The admiralty was at the same time again cautioned against the sale of the vessels either directly or indirectly to any state or body of persons at war with a state in amity with Her Majesty.3

In June, 1865, the civil war in America having come to an end, the restrictions on the sale of the vessels were withdrawn; but, from the delay and consequent deterioration, the price realized fell far short of the original estimate.

The government of Egypt purchased the three vessels in England for £30,100. Of the four vessels left at Bombay, the government of India purchased two for £14,500, from which, however, a sum of £6,376 had to be deducted for dock yard expenses. A sum of £11,250 was realized by the sale of the two remaining vessels; and the balance of £103,026 was provided by a parliamentary grant, and paid over to the Chinese government.4

The guns and munitions of war on board the vessels had been procured from Her Majesty's government, and they were taken back by the

Appendix, vol. ii, p. 704.

2 Ibid., p. 710.

3 Ibid., pp. 712–714.

4

Ibid., p. 721.

military authorities in England and India, and the amount remitted to the Chinese government.

Sir Frederick Bruce, writing in December, 1865, from Washington, to urge a speedy settlement of the Chinese claim, said, "I may [50] mention that there is no doubt that agents *of the confederates were on the look-out to purchase the more powerful vessels of the squadron from the Chinese, had they been left in their hands, and it is equally certain that the Chinese would have sold these vessels as being unsuited to them. It is not difficult to conjecture what would have been the effect on our relations with this government had any of these vessels been turned into confederate cruisers. It would have been impossible to disabuse this government and people of the idea that the flotilla was a deep-laid scheme to supply the confederates with an efficient squadron in the Pacific.1

And Mr. Adams, in a note to Lord Clarendon of December 28, 1865, on the same subject, wrote as follows: "In a conversation which I had the honor to hold with your predecessor, the Right Honorable Earl Russell, on the 25th of February, 1864, I acquitted myself of what was to me a most agreeable duty, of signifying to Her Majesty's government the high sense entertained by that which I have the honor to represent of the friendly proceedings of Her Majesty's envoy in China, Sir Frederick Bruce, in regard to the disposition to be made of the vessels then known as the Osborn Flotilla."

1Appendix, vol. ii, p. 718.

2 Ibid., p. 719.

CONSIDERATIONS PROPER TO BE KEPT IN VIEW BY THE ARBITRATORS IN REFERENCE TO THE CASES OF THE FLORIDA, ALABAMA, GEORGIA, AND SHENANDOAH.

In considering the facts about to be presented to the tribunal relative PART IV.-Intro to the four vessels which, after having been originally productory statement. cured from British ports, were employed as confederate cruisers in the war, it is right that the arbitrators should bear in mind the following propositions, to some of which their attention has already been directed in an earlier part of this case:

1. The powers possessed by Her Majesty's government to prohibit or prevent the fitting out, arming, or equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure with that intent of vessels specially adapted within its jurisdiction to warlike use, were powers defined and regulated by the statute or act of Parliament of July 3, 1819, (the foreign-enlistment act.)

2. The modes of prevention provided by the statute were two, of which both or either might be adopted as might be deemed most expedient, namely, (1,) the prosecution of the offender by information or indictment; (2,) the seizure of the ship, which, after seizure, might be prosecuted and condemned in the same manner as for a breach of the customs or excise laws or of the laws of trade and navigation.

3. The persons empowered to seize under the provisions of the statute were any officers of customs or excise or of Her Majesty's navy, who by law were empowered to make seizures for forfeitures incurred under the laws of customs or excise, or of trade or navigation; and the seizure was to be made in the same manner as seizures are made under those laws.

4. The customs officers were not empowered by law to make a seizure until an information on oath should have been laid before them. Nor, without such an information on oath, had any magistrate jurisdiction under the provisions of the statute.

5. After a seizure made, it was by law necessary that proceedings for the condemnation of the vessel seized should be instituted in the court of exchequer and brought to trial before a jury. In order to obtain a condemnation it was necessary to prove two things:

(a.) That there had been in fact an equipping, furnishing, fitting-out, or arming of the vessel, or an attempt or endeavor so to do, or an issuing or delivery of a commission for the vessel, within the dominions of the Crown;

(b.) That the act had been done with intent, or in order, that the vessel should be employed in belligerent operations as described in the seventh section of the statute.

6. By proof, in a British court of law, is understood the production

of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief, such as a reasonable person would be satisfied to act upon in any important concerns of his own, of the truth of the fact to be proved. And by evidence is understood the testimony, on oath, of a witness or witnesses produced in open court, and subject to cross-examination, as to facts within his or their personal knowledge. Testimony which is mere hearsay, or as to the existence of common reports, however prevalent and however generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court.

7. In the judgment of Her Britannic Majesty's government, and in that of its official advisers, the special adaptation of a vessel to warlike use was among the acts prohibited by the statute, provided there were sufficient proof of an unlawful intent, although the vessel might not be actually armed so as to be capable of immediate employment for war, But no court of law had pronounced a decision on this point, and the question was never raised before any such court until the trial of the case of the Alexandra in 1863.

Her Britannic Majesty's government now proceeds to state for the information of the tribunal the facts relative to the cases of the [52] Florida and Alabama. It may be here *remarked that when these cases were brought to the notice of Her Majesty's government, and up to the time of the departure of the Alabama from Liverpool, there had been no instance from the commencement of the war of a vessel ascertained to have been fitted out in, or dispatched from, any British port for the purpose of engaging in hostilities against the United States. The only vessel to which the attention of Her Majesty's government had been directed before the Florida had proved to be a blockade-runner.

It may be added that the claims for the interference of Her Majesty's government in the case of these and other vessels were based, according to the statement of Mr. Adams in his letter to Earl Russell, dated October 9, 1862, on evidence considered by him to "apply directly to infringements of the municipal law, and not to anything beyond it.”1

Appendix, vol. i, p. 216.

18 A

[53]

*PART V.

STATEMENT OF FACTS RELATIVE TO THE FLORIDA.

PART V. The Florida.

On the 19th February, 1862, Earl Russell received from Mr. Adams the following note and inclosure:

Mr. Adams to Earl Russell.1

LEGATION OF THE UNITED STATES,

London, February 18, 1862.

MY LORD: I have the honor to submit to your consideration the copy of an extract of a letter addressed to me by the consul of the United States at Liverpool, going to show the preparation at that port of an armed steamer evidently intended for hostile operations on the ocean. From the evidence furnished in the names of the persons stated to be concerned in her construction and outfit, I entertain little doubt that the intention is precisely that indicated in the letter of the consul, the carrying on war against the United States. The parties are the same which dispatched the Bermuda, laden with contraband of war at the time, in August last, when I had the honor of calling your lordship's attention to her position, which vessel then succeeded in running the blockade, and which now appears to be about again to depart on a like errand.

Should further evidence to sustain the allegations respecting the Oreto be held necessary to effect the object of securing the interposition of Her Majesty's government, I will make an effort to procure it in a more formal manner.

I have, &c.,
(Signed)

CHARLES FRANCIS ADAMS.

[Inclosure.]

Mr. Dudley to Mr. Adams.

UNITED STATES CONSULATE,

Liverpool, February 17, 1862.

SIR: The gun-boat Oreto is still at this port. She is making a trial trip in the river to-day. No armament as yet on board. She has put up a second smoke stack since I wrote you. She therefore has two funnels, three masts, and is bark-rigged. I am now informed that she is to carry eight rifled cannon, and two long swivel-guns on pivots so arranged to rake both fore and aft. No pains or expense has been spared in her construction, and when fully armed she will be a formidable and dangerous craft. In strength and armament quité equal to the Tuscarora; so I should judge from what I learn.

Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co., and that they own the vessel. I have obtained information from many different sources, all of which goes to show that she is intended for the southern confederacy. I am satisfied that this is the case. She is ready to take her arms on board. I cannot learn whether they are to be shipped here or at some other port. Of course she is intended as a privateer. When she sails, it will be to burn and destroy whatever she meets with bearing the American flag.

The Herald sailed for Charleston on Saturday last; Captain Coxeter went out in her. The Bermuda will sail this week.

I have, &c.,
(Signed)

H. DUDLEY, United States Consul.

1 Appendix, vol. i, p. 1.