It is affirmed in the case of the United States that the Florida, after quitting Nassau, was armed for war, by means of a vessel which accompanied her from that port, at one of the Bahama Islands, and, therefore, within British waters; and, in proof of this, several depositions are produced, purporting to have been made by common seamen and others who were hired to assist in the work. From these it would appear that, before the Florida sailed, a schooner, called the Prince Alfred, carrying as cargo some guns and ammunition, together with other supplies, put to sea from Nassau, as though with the design of running the blockade; that she was overtaken by the Florida about three hours after the latter had left the harbor, and that both vessels proceeded to a place called Green Cay, where the cargo of the Prince Alfred was transferred to the Florida, an operation which lasted several days. The latter (which up to that time had been known as the Oreto) then hoisted the confederate flag, and assumed the name under which she has since been known. The Prince Alfred did not for some time return to Nassau, her captain being apprehensive that she might be seized for a violation of the law in assisting to arm and fit out the Florida in British waters.

Her Majesty's government has not the means of either verifying or disproving the truth of this statement. Assuming it to be true, there can be no doubt that a violation of the sovereignty and neutral rights of Great Britain was committed by the commander of the Florida. But the fact that such a violation occurred does not argue negligence on the part of Her Majesty's government. It took place, indeed, in British waters, since the whole group or chain of islands known by the name of the Bahamas are held to be under the dominion of Great Britain. But of these islands, which number several hundred, and are scattered over a wide surface, all but a very few are desolate and uninhabited, and many are mere rocks or islets. Green Cay (which, if we may trust the testimony of the deponents, was the spot selected for this transaction) is a small uninhabited island lying sixty miles or more south of Nassau, on the edge of what is called the Great Bahama Bank, and

visited, as Her Majesty's government believes, only by fishermen. [79] *Neutral powers have never been held responsible for violations

of their territory committed in remote and unfrequented places, where no effective control could be exercised; and it is certain that, over such a dominion as the Bahamas, no government could reasonably be expected to exert such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shores or

waters.

The Prince Alfred sailed from Nassau as any vessel intended to run the blockade might have done, while the Florida was still lying in the harbor; and there appears to have been no circumstance within the

if he anchored outside he had not sufficient crew to weigh his anchor, and begged I would assist him by lending him men. I declined lending him any men; but told him he might hold on astern of the Peterel, and I would give him a line for that purpose. "About 6.30 or 7 p. m., having seen the Oreto fast, holding on by one of our hawsers, I went down to dinner; and when I came on deck again she was gone.

"I had told the master that she must go out of our way before the tide started. "This small act of courtesy I considered a duty that I should have extended to any ship, British or foreign, and, until the receipt of your communication, never gave it a second thought; in fact, I must have thought it too trivial to mention in my letter of proceedings which at that time were full of matter of the greatest interest.

"In conclusion I may remark that the only reason I had for refusing to send men on board was in consequence of the prevalence of yellow fever in the merchant shipping at Nassau, and I had prohibited all communication, so far as practicable, with. them."

knowledge of the authorities of the colony to direct special attention to the nature of her cargo, to disclose her errand, or furnish a reason for detaining her. No complaint on the subject was made before she sailed by the consul of the United States, though it is now alleged that the purpose for which she went was "notorious" in Nassau. Subsequently, on the 8th September, 1862, when the Prince Alfred was again at the port, the consul informed the Governor that he had good authority for stating that this vessel had placed the Florida's armament on board her at Green Cay, and that the Prince Alfred's captain was again shipping men to be sent to the Florida. The governor replied that if sufficient evidence could be placed in the hands of the attorney-general to substantiate this allegation, he would direct a prosecution to be instituted against the captain of the Prince Alfred or others who might have been guilty of violating the foreign-enlistment act. Upon this communication the consul seems to have taken no steps whatever; and, although it has since appeared that he had previously procured a notarial declaration from some of the men employed on the Prince Alfred, the evidence thus obtained was never communicated or disclosed to the colonial authorities or to Her Majesty's government, until February 1865. Captain Maffit had at that time arrived at Nassau in command of the merchant-vessel Owl, which had run the blockade, and the then United States consul made an application to the governor for proceedings against him on the ground that he had enlisted men in the colony for the Florida in 1862. This application was not received until after captain Maffit had left Nassau, but the governor directed the attorneygeneral to communicate with the consul, and the declaration of 4th September, 1862, above referred to, (which contained no evidence of enlistment,) was then produced for the first time.1

The arbitrators are already aware that the Florida went from the Bahamas to Cuba, where she endeavoured to ship a crew, and from thence (before making any prize or inflicting any loss on the United States) was carried by her commander into the confederate port of Mobile, escaping capture through the remissness or incapacity of the officer commanding the blockading squadron; that at Mobile she remained more than four months; that she was there fitted out and put in a condition for cruising; and that from thence she commenced her cruise. The crew which manned her during that cruise were enlisted at Mobile, and the greater number of them appear to have been transferred to her from a receiving-ship in that port. The history of this cruise has been briefly told in the British case. It has been seen that she was admitted, during the course of it, into ports of the British colonies, of Brazil, and France; that at Brest she was suffered to remain during nearly six months repairing and refitting; and that she was ultimately seized and carried away from a Brazilian port by a gross violation of the neutrality and sovereign rights of Brazil.2

On the fact that she was permitted to enter ports within Her Majesty's colonial possessions, the United States have endeavoured to support further complaints and further claims against Great Britain, for which there is no foundation whatever. It was not the duty of the British government to seize or capture the Florida when cruising under a commission from the government of the Confederate States; and the charges of partiality made in respect of this vessel are as groundless as those advanced in the cases of the Sumter and Nashville. It will, how

H. Ex. 324

Appendix to British Case, vol. i, pp. 82-90.

2 Case of Great Britain, pp. 67-78.

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ever, be for the convenience of the arbitrators that they should be furnished with a summary account of the hospitalities accorded in British ports during the course of the war to the armed vessels of both belligerents. This will be done in a subsequent section.

With respect to the case of the Florida, Her Majesty's government submit with confidence, to the arbitrators, not only that negligence cannot justly be imputed to Great Britain, but that (even if this were otherwise) Great Britain could not be held liable for losses sustained by the United States in consequence of the operations of that vessel after she had entered the port of Mobile, had there completed her equipments and enlisted for the first time a sufficient crew, and had afterward sailed from that port to cruise against the shipping of the United States.

[80]

The Alabama.

*THE ALABAMA.

The facts relative to the building, departure, and subsequent arming of the Alabama have been set forth in the British case with a fullness of detail which renders any additional statements unnecessary; and Her Majesty's government will here refer to them so far only as may be required for the purpose of correcting erroneous assertions or mistaken inferences in the case of the United States.

In respect to this ship, Her Majesty's government does not dispute that, at the time when she sailed from England in July, 1862, she was, as regards the general character of her construction, specially adapted for warlike use, nor that the adaptation had been effected within British jurisdiction. The question for the arbitrators is, whether the British government had, according to the fair and just sense of those words, reasonable grounds to believe that she was intended to carry on war against the United States, and, having it, failed to use such diligence as any international obligation required to prevent her departure from Great Britain, or to prevent her equipment within its jurisdiction.

In respect of this ship also, as in respect of the Florida, it is insisted by the United States that the material facts proving her true character and the employment for which she was intended were notorious, and therefore either were or ought to have been known to Her Majesty's government, and that no proof ought to have been required from Mr. Adams. It is insisted, further, that not only proof was required, but "strict technical proof," such as would support a criminal prosecution under the foreign-enlistment act. The arbitrators are also told that, in this case and throughout the war the British government and its officers "would originate nothing themselves for the maintenance and performance of their international duties," and "would listen to no representations from the officials of the United States which did not furnish technical evidence" sufficient for the purpose mentioned above.

These assertions are made use of to explain the fact that, although "before the vessel was launched, she became an object of suspicion with the consul of the United States at that port, and she was the subject of constant correspondence on his part with his government and with Mr. Adams," no representation was made respecting her either to the British government or to its officers at Liverpool until the 23d June, 1862. Neither the fact which has to be explained, nor the explanation offered for it, appears to be supported by the evidence.

Among the circumstances alleged as proofs of an intention that the vessel should be employed in the confederate service are the contract between Bullock and the ship-builder, supposed to have been signed in

October, 1861, and the asserted facts that Bullock "went almost daily" on board of her, and "seemed to be recognized in authority," and that her officers were in England awaiting her completion, and were paid their salaries monthly at the office of Fraser, Trenholm & Co., in Liverpool,

For evidence that the Alabama was the subject of constant correspondence between the United States consul at Liverpool and his Government and its minister in London, the arbitrators are referred to the appendix to the case of the United States, vol. iii, passim." They will discover that, before the date of Mr. Adams's first representation to Earl Russell, (23d June, 1862,) she is only thrice mentioned by Mr. Dudley in dispatches to Mr. Seward-namely, on the 4th of April, 16th May, and 18th June, 1862. On the 27th June he says that he has mentioned her "in two or three notes to the Department." They will not (Her Majesty's government believes) find any letters addressed to Mr. Adams prior to that on which he founded his representation to Earl Russell, though there probably was such a letter, since she is there said to have been mentioned in "a previous dispatch." The constant correspondence, therefore, which is mentioned in the case did not commence until after the vessel had made her first trial-trip, and was nearly ready to go to sea, and a very few weeks before she sailed, though Mr. Dudley's attention had been directed to her in November, 1861. The fact that Bullock "goes almost constantly on board the gun-boat, and seems to be recognized as in authority," first appears in a letter dated 9th July, 1862, addressed to the collector of customs at Liverpool; and the collector is, in the same letter, told that Bullock "is in Liverpool," and what is supposed to be his business there. The facts that the contract for the ship was made with Bullock, and that confederate officers who were intended to serve on board of her were in Liverpool and receiving pay before she sailed, first appear in a deposition of one Yonge, sworn and communicated to Earl Russell, in April, 1863.5

It has not been shown by the United States that, prior to the time when Mr. Adams *laid a representation before Earl Russell, any [81] circumstances proving or tending to prove that the ship was intended for the Confederate States were notorious or generally known at Liverpoool, or were or ought to have been known to the British government or any of its officers. Indeed, beyond a report that one of the workmen in Laird's yard had said so, no fact of this kind is found in any of Mr. Dudley's previous letters. Such a statement by a mere workman would not be evidence in any British court, nor is it consistent with probability that ordinary workmen in the yard would have any means of knowing or proving the real destination of the ship.

That the vessel was designed for a ship of war was doubtless not dif ficult to discover, but there was nothing in this to attract special observation. The building of vessels of war for the British government and for foreign governments or their agents had for many years formed a large part of the regular business of the great ship-building firm in whose yard she was constructed. It has been publicly stated by Messrs. Laird, and Her Majesty's government are now in a condition to prove it to be the fact, that shortly before the contract with Bullock was said to have been made, they were asked to send in plans and estimates for

gun-boats and a floating battery to the Navy Department of the United States by a person who represented himself, and was believed by them, to be authorized by the head of that Department; and being (as they were) commercial men, having only commercial objects in view, they were perfectly ready to have supplied these articles to the United States, if it had been proposed to them to do so on terms which they considered sufficiently profitable.1

The assertion that a particular fact is "notorious" is one the truth of which there is no possibility of testing. It commonly means no more than that the fact is generally or by many persons believed to be true, which does not prove the truth of it (since a general belief may be, and often is, mistaken,) and does not always make it even probable that proof can be obtained. If a general belief prevailed in Liverpool, while the vessel afterward known as the Alabama was in the builder's yard, that she was intended for the Confederate States, (and there is no proof whatever that any such general belief did, in fact, exist,) this would not have been a reasonable ground for calling on the government to seize or interfere with a ship which, for aught that was known to the contrary, was the property of private individuals, guilty of no violation of the law.

The phrase "technical evidence" is calculated to mislead. If it means such evidence as might be expected to satisfy an impartial tribunal that a violation of the law had been committed, it is true that the government held itself entitled, before seizing the Alabama or any other vessel, to have such evidence in its possession, or to have reasonable grounds for believing that it would be forthcoming before the trial of the case should begin. Open investigation before a court is the means appointed by law for sifting all accusations and distinguishing ascer tainable facts from mere rumor; it is an ordeal that a British government which, in the exercise of the powers intrusted to it, seizes or interferes with the person or property of any one within its jurisdiction, must always be prepared to encounter, and it is clear that the sufficiency of evidence in an English forum can only be tried by principles recognized in England, as in an Italian, Swiss, Brazilian, or American forum, it must of necessity be determined by principles recognized in those countries respectively. But the assertions that the British government, throughout the war, "would originate nothing themselves for the maintenance and performance of their international duties, and that they would listen to no representations from the officials of the United States which did not furnish technical evidence for a criminal prosecution," are not only unfounded; they are opposed to facts stated in the case and evidence of Great Britain and even in the case and evidence of the United States. The arbitrators have already seen, from the statements laid before them, that every reasonable suspicion, whether communicated through the minister of the United States or derived from other sources, was immediately made the subject of inquiry; that this was in some instances done where no representation had been received from Mr. Adams; and that on every representation of his, though unaccompanied by evidence, it was done as a matter of course.

It is true, nevertheless, that in cases of this nature neutral governments ordinarily expect to receive information from the ministers or consuls of belligerent powers resident within their territories. These officials have the keenest incitements to vigilance in their national interest and official duty, and are more likely to be the first recipients of intelligence than the government or its officers.

Appendix to British Case, vol. v, pp. 204-219.