She was then evi 28th of April arrived at Nassau, in the island of New dently a man-of-war. Providence, one of the Bahamas, and within the jurisdiction of Her Majesty's Government.1 On the 13th of June, while still at Nassau, she was visited by Commander Hickley of Her Majesty's ship Greyhound, with several of his officers. The captain of the Oreto, on being inquired of by Commander Hickley, in the presence of the officers of the Greyhound and three of her own "whether she [the Oreto] had left Liverpool fitted in all respects as she was at present," replied "Yes, in all respects;" and "that no addition or alteration had been made whatever." Captain Duguid, the master of the Oreto himself, on his examination as a witness before the Vice-Admiralty Court at Nassau on the 26th of July, three months after her arrival, testified: "The fittings of the Oreto from the time of her quitting Liverpool up to the present time are the same, with the exception of a little alteration in the boats' davits. Four of them were lengthened two feet. That is the only alteration since she left Liverpool." Duggan, the chief officer, testified to the same effect.* On the 30th of April, only two days after her arrival at Nassau, she was examined by Commander McKillop, of Her Majesty's ship Bulldog, then the senior naval officer in command at that station, and he, on the same day, reported to the Secretary of the Admiralty that a very suspicious steamer, the Oreto, evidently intended for a gun-boat, is now at the upper anchorage under the English flag; but as there are no less than three cargoes of arms and ammunition, &c., united to run the blockade, some of these guns, &c., would turn her into a privateer in a few hours."5 On the 28th of May Commander McKillop, in a communication to the Governor of the Bahamas, reported her as "apparently fitting and preparing for a vessel of war." And again, on the 6th of June, in another communication to the same officer, he says, "I have visited the screwsteamer Oreto, and examined her. She is fitted in every way for war purposes, magazines, shell-rooms, and other fittings, totally at variance with the character of a merchant vessel * * The captain does * not deny that she is intended for a war-vessel." And on the 8th of the same month, in a letter to the Colonial Secretary, he says, "In my letter of the 17th instant [ultimo ?] I made His Excellency aware of the warlike character of that vessel, and I am of opinion that she is not capable of taking in any cargo, having no stowage."3 The letter of the 17th referred to is not produced, but on the 13th of June Commander Hickley (who had succeeded Commander McKillop in command at the station) and the principal officers of his ship, after having visited and examined the vessel, certified to the Governor 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 handing powder out of the magazine, as fitted in the naval service, and Brit. Case, pp. 58 et 61. 2 Ibid., p. 63. 3 Brit. App., vol. i, p. 49. Brit, App., Counter Case, vol. v., p. 37. 5 Brit. App., vol. i, p. 11. 6 Brit. App., vol. i, p. 16. 7 Ibid., p. 20. 8 Ibid. 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 eightoared 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."1 Again on the 15th of June, in a further communication to the Governor, the Commander says: These circumstances, her long detention in this port, her character, her fittings, convinced as I am also that during her stay in the port arrangements have been made for arming her outside, * her evident equipment for war purposes, and my conviction, as also that of my officers and men that have been on board of her, that she is built intently for a war-vessel and not for a merchant ship, make it incumbent on me to seize the Oreto as a vessel that can be no more considered as a free-trader, but that she is, on the contrary, calculated to be turned into a formidable vessel of war in twentyfour hours; and that this I am convinced will be the case if she is permitted to leave Nassau. And, therefore, in her present state, a vessel under British colors, sailing from hence in such an equipped state to a professional eye, that I consider it would be a downright neglect of duty on my part to permit her proceeding to sea, without again urging most strongly on your Excellency the expediency of taking charge of her, as an illegally equipped British vessel, as in my professional capacity, as also in the opinion of my officers, it is impossible to consider her as any other, she being a bona fide vessel of war on our royal naval principle. 2 And still again on the 16th, in another communication to the Governor, he says: On the Oreto I have repeated my professional opinion, as also that of my officers, and I still have to express my conviction that she is a vessel of war that can be equipped in twenty-four hours for battle, and that she is now going out of the harbor as nearly equipped as a vessel of war can be without guns, arms, and ammunition.3 This evidence is taken, as the arbitrators will notice, exclusively from that furnished by Her Majesty's Government in its Case, Counter Case, and accompanying documents; and the United States submit, it shows, beyond any controversy, that on the 18th of February, the date of Mr. Adams's communication to Earl Russell, the Oreto was a vessel specially adapted to warlike use; that this fact was apparent upon an inspection of the vessel herself; that she had been constructed and so "specially adapted" within the jurisdiction of Her Majesty's Government, and that she still remained in that jurisdiction. Character of Mr. Adams's representa She was intended to cruise or carry on war against the United States, and Her Majesty's Government had reasonable grounds so to believe. Mr. Adams, with his communication to Earl Russell on the 18th of February, submitted an extract from a letter of the Consul of the United States at Liverpool, in which it is tion. said: "Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co., and that they own the vessel. * * Frazer, Trenholm & Co. have made advances to Fawcett, Preston & Co., and Miller, the builder."4 And Mr. Adams in his note to Earl Russell says, "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. ** 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."5 This communication was not accompanied by any evidence that could 4 Brit. Case, p. 53. 5 Ibid. Brit. App., vol. i, p. 23. 2 Brit. App., vol. i, p. 24. be made available in the courts of Great Britain. It was what it purported to be, a mere "statement of belief." If Earl Russell desired further evidence to be furnished by the United States, he was invited so to say in reply. He did not, but in his reply on the 19th contented himself with acknowledging the receipt of the communication, and stating that he had "lost no time in communicating with the proper department of Her Majesty's Government on this subject."1 On the 21st of February the builders reported to the Collector at LivAction of the Brit- erpool, "We have built the dispatch vessel for Messrs. Fawsh government. cett, Preston & Co., engineers of this town, who are the agents of Messrs. Thomas Brothers, of Palermo, for whose use the vessel, we understand, has been built. ** Mr. Thomas, of the firm at Palermo, frequently visited the ship while she was being built. ** We have handed her over to the engineers, and have been paid for her. According to the best of my information the present destination of the vessel is Palermo; and we have been asked to recommend a Master to take her out to Palermo."2 Thus one of the firms suspected by Mr. Adams is shown, by the statement of the builders, to have been concerned in her construction and outfit. On the same day, the collector transmitted this communication from the builders to the Commissioners of Customs, with a further statement of his own, viz: "I have every reason to believe that she is for the Italian Government, and not for the Confederates."3 He gave no facts upon which he predicated his belief, and it will be noticed that there is nothing in the builders' statement to justify such a belief. All the builders state is that they understood she was built for the "use of" a firm in Palermo, and that, according to the best of their information, her present destination was Palermo. Fawcett, Preston and Company were at the time "a firm of engineers and founders," "carrying on an extensive trade" at Liverpool, but no inquiries appear to have been addressed to them. They were, as the builders said, the "agents" of the firm for whose " use they "understood" the vessel was built, and were certainly likely to know for whose "use" she actually was built. It had already been urged against this firm that they had been concerned in a shipment of arms for the Confederate States." 195 There does not seem to have been any good reason why Her Majesty's Government might not have addressed an inquiry to them, yet for some reason it did not, or, if it did, the result has not been reported. What might have been done. What actually was done. On the 22d of February, the Commissioners of Customs reported to the Lords Commissioners of the Treasury that they had instructed the "Collector at Liverpool to make inquiries in regard to the vessel Oreto, and it appears from his report that she has been built by Messrs. Miller & Sons for Messrs. Fawcett, Preston & Co., engineers of Liverpool, and is intended for the use of Messrs. Thomas Brothers, of Palermo, one of that firm having frequently visited the vessel during the process of building. The Oreto is pierced for four guns. ** The expense of her construction has been paid, and she has been handed over to Messrs. Fawcett and Preston. Messrs. Miller & Sons state their belief that her destination is Palermo, as they have been requested to recommend a master to take her to that port; and our Collector at Liverpool states that he has every reason to believe that the vessel is for the Italian Government. We beg further to add, that special directions have been given to the officers at Liverpool to watch the movements of the vessel, and that we will not fail to report forthwith any circumstance which may occur worthy of your Lordship's cognizance."i It will be here observed, that the report does not state it was only understood by Miller & Sons that the vessel was intended for the use of Thomas Brothers, but it appeared from the report that she was so intended. Neither does it appear that inquiries had not been addressed to Fawcett, Preston & Co.; but it did appear that "special directions" had been given to the officers at Liverpool to watch the movements of the vessel, and that prompt report would be made whenever circumstances worthy of their Lordships' cognizance might occur. 3 2 This report was transmitted by the Secretary of the Treasury to Earl Russell on the 24th; and by Earl Russell to Mr. Adams on the 26th of February. The statements of the officers and builders on which the report was predicated were not sent with it. Earl Russell in transmitting the report did not intimate any desire that Mr. Adams should make an effort to procure further evidence. But on the same day of its date he (Earl Russell) telegraphed to Her Majesty's Minister at Turin as follows: "Ascertain and report to me whether a vessel called the Oreto, now fitting out at Liverpool, is intended for the use of the Italian Government." "25 On the 1st of March the Minister at Turin replied: "Ricasoli tells me that he has no knowledge whatever of the ship Oreto, but will cause inquiry to be made." No inquiries appear to have been addressed to the representative of His Majesty, the King of Italy, in London, or to his consul at Liverpool, and no further informa tion was received from the Minister at Turin until after the vessel had sailed. On the 1st of March, the same day with the receipt of the reply from the Minister at Turin, John H. Thomas, of Liverpool," a natural-born British subject, born at Palermo, in the island of Sicily, of British parents," declared in writing in the presence of the Registrar of Shipping at the port of Liverpool (one of the officers of the Government specially charged with the registry of vessels ) that he was "entitled to be registered as owner of sixty-four shares (the whole) of said ship. To the best of my knowledge and belief, no person or body of persons other than such persons or bodies of persons as are by the Merchant Shipping Act, 1854, qualified to be owners of British ships, is entitled as owner to any interest whatever, either legal or beneficial, in the said ship." This declaration was made in accordance with the provisions of sec tion 38 of the Merchant Shipping Act, 1854, of Great Britain,9 to obtain the registry of the ship as a British vessel. With- Florida. out it the Registry could not have been granted, for none but naturalborn British subjects and persons made denizens by letters of denization, or naturalized, could be owners of a British ship. 10 8 Registry of the 3 Ibid., p. 55. 4 Brit. App., vol. i, p. 3. 5 Brit. App., vol. i, p. 3. 6 Brit. Case, p. 55. 7 Merchant Shipping Act, 1854. 8 Brit. Case, p. 56. 9 Am. App. Connter Case, p. 1138. 10 Mer. Ship. Act, 1854, sec. 18; App. Am. Counter Case, p. 1132. Upon this declaration the vessel was, on the 3d of March, registered as a British vessel, at the port of Liverpool, under the name of the Oreto. This Registry was made in one of the public records, by an officer of the Government specially charged with that duty.2 Clearance. On the 4th of March the Oreto was cleared at Liverpool in ballast, with a crew of fifty-two men, for Palermo and Jamaica. This clearance must have been obtained from the office of the Collector of Customs at Liverpool. To be regular it should have been signed by the Collector or Comptroller, but that formality seems, in this particular instance, to have been omitted. On the 3d and 4th of March, shipping articles, in accordance with the form sanctioned by the Board of Trade, August, 1860, in pursuance of 17 and 18 Victoria, c. 104,7 were signed by the master and all the crew who sailed in the vessel, except two who signed as substitutes on the 14th and 15th, in presence of J. W. Hughes, shipping master at the port of Liverpool. These shipping articles specified a voyage from Liverpool to Palermo, thence (if required) to any port or places in the Mediterranean Sea and the West Indies, and back to a final port of discharge in the United Kingdom, the term not to exceed six months. In the same articles, in accordance with the prescribed form, the vessel is described as having been registered at the port of Liverpool, March 3, 1861; and Fawcett, Preston & Co. are named as "managing owners." Shipping articles, by the terms of the "Merchant Shipping Act, 1854," are required to be signed in duplicate in the presence of the shipping master, whose duty it is to "cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and to attest each signature." One part of the articles, thus in duplicate, must be retained by the shipping master, who is an officer of the Government, and who has a public office, known as the "shipping office." 719 All this formality was gone through with in this case, as will be seen by a copy of the articles actually signed in the "shipping office" and before a "shipping master," found in the Appendix to the British Case, vol. i, p. 161. Resume. Thus then stood the facts known to Her Majesty's Government on the 4th of March, eighteen days before the Oreto sailed. She was designed for war purposes. That was evident. She was for the use of some government, though registered in the name of a British subject. She did not belong to Her Majesty's Government, and it was not "believed" or "suspected" that she belonged to or was intended for any other Government than that of Italy or the insurgents. There were certainly circumstances of strong suspicion against her Italian ownership or destination. Mr. Adams based his opinion of her destination to the confederates directly upon the fact that he understood Fawcett, Preston & Co. and Frazer, Trenholm & Co. had been concerned in her construction and outfit. This last firm, he informed Earl 1 Brit. App., vol. i, p. 10. 2 Mer. Ship. Act, 1854, sec. 42; Am. App. Counter Case, p. 1141. 3 Brit. Case, p. 56. 4 Brit. Case, p. 57; Customs Consolidation Act, 1853, sec. 142; App. Am. Counter Case, p. 1163. 5 See sec. 142 above. 6 Brit. Case, p. 56. 7 Mer. Ship. Act, 1854, sec. 8. 8 Brit. App., vol. i, p. 161. Brit. App., vol. i, p. 161. 10 Mer. Ship. Act, sec. 150; App. Am. Counter Case, p. 1155. 11 Ibid., sec. 122; App. Am. Counter Case, p. 1151. |