A difference, however, arose between the Chinese government on the one side, and Mr. Lay and Captain Osborn on the other, as to the conditions on which Captain Osborn was to hold his command; and, this difference not having been adjusted, Captain Osborn informed Sir F. Bruce, Her Majesty's minister at Pekin, that the force would be disbanded. He asked at the same time whether Sir F. Bruce saw any objection to his surrendering to the Chinese government the eight ships which he had brought out.1 Sir F. Bruce thereupon informed the Chinese government and Cap. tain Osborn of his conviction that Her Majesty's government would not have consented to the organization of this powerful squadron, unless on the understanding that it was to be placed under the orders of an officer in whose prudence and high character they had full confidence, and that he could not consent to the ships and stores being handed over to the Chinese government without instructions to that effect from Her Majesty's government.1 Among other reasons for this course Sir F. Bruce reported to Her Majesty's government that the ships were not such as the Chinese could manage, and that it would not be safe to sell them on the coast, as they might fall into the hands of hostile daimios in Japan, or be bought for employment as confederate cruisers in those seas. The following letter from the United States minister at Pekin to Sir F. Bruce shows that he was equally alive to the latter danger: [48] Mr. Burlingame to Sir F. Bruce.3 PEKIN, November 7, 1863. SIR: When the Chinese government refused the doings of its agent, Mr. Lay, and there was nothing left for Captain Osborn but to dissolve the force of the flotilla, the question was how it could be done with safety. I feared that the ships might fall into the hands of the confederates, who are supposed to have agents in China; and then there was the common apprehension from lawless men on the coast in the interest of the Taepings as well as from pirates, and the desire of the daimios in Japan to procure steamers at any price. It was clear that the Chinese could do nothing of themselves with the steamers, and that, unless something were done by you, they would certainly fall a prey to one of these several dangers. In my solicitude on account of the rebels in my own country, I made an earnest protest against the delivery of the ships to the Chinese. You responded, in that spirit of comity which has ever distinguished our relations, that the ships should be taken back to England, and that no effort on your part should be spared to prevent them from taking a direction against the interests of my country. Though subsequent events made it necessary for the ships to take the direction indicated by the desire of the Chinese themselves, still I should be wanting in appreciation of your conduct did I not mark it with my most heartfelt thanks, and at as early a period as possible bring it to the attention of my Government. I have, &c., A. BURLINGAME. It was eventually arranged that Captain Osborn should send part of the flotilla to England, take the other portion to Bombay, and sell them all on account of the Chinese government. Captain Osborn accordingly took three vessels, the Keang-soo, (6) guns,) Kwangtung, (4 guns,) and Amoy, (2 guns,) and the dispatchboat Thule, to Bombay, where he arrived in January, 1864. At his request the government of India took charge of the vessels and the military stores on board of them, and he then proceeded to England, where he arrived in February. The rest of the flotilla, consisting of the 1 Appendix, vol. ii, p. 682. 2 Ibid., p. 686. 3 Ibid, p. 689. Pekin and China, (6 guns,) the Tien-tsin, (4 guns,) and the Ballarat store-ship, were sent to England, where they arrived in April.' On the first intelligence of the arrangement made with the Chinese government for disposing of these vessels in India and England, a letter was addressed by the foreign office to the admiralty, India office, and colonial office, stating that the "vessels are understood to be fully equipped for belligerent purposes, and Her Majesty's government are of opinion that it is incumbent upon them to take any precaution that may legally be within their power to prevent them from passing in their present state into the hands of any power or state engaged in hostility with another power or state in amity with Her Majesty." It was therefore desired "that the attention of the naval, colonial, or Indian authorities, both at home and on any station abroad within Her Majesty's dominions, where the vessels may be expected to be met with, should be called to the necessity of taking such measures as may be legally within their power in furtherance of the views of Her Majesty's government in this matter; and specifically as regards Captain Osborn, who is an officer in Her Majesty's naval service, that he should be pointedly cautioned against disposing of any of the vessels to be used in the naval service of a belligerent power." Sir F. Bruce, at Pekin, and Sir H. Parkes, at Shanghai, were instructed to make a similar communication to Captain Osborn, in case that officer was still in China when the dispatch reached them. In anticipation of these instructions Commodore Montresor had warned Captain Osborn on his arrival at Bombay against selling the vessels, and had joined with the governor in remonstrating against any attempt to sell the Thule, which, as being an unarmed dispatch-boat, did not, in Captain Osborn's opinion, come within the same category as the armed vessels, but which the two former officers considered open to objection, as having been equipped for naval service, and capable of being adapted in some degree to belligerent purposes.3 The Thule was, notwithstanding, advertised for sale in Bombay on the 16th of February, after Captain Osborn's departure; but the government of Bombay forbade the sale. Orders were sent from home in April to permit the sale of the Thule, but to retain the other vessels. Care was also to be taken that the Thule was not equipped as a vessel of war for either of the belligerent parties in America.1 [49] The sale, however, did not take place. *The three armed vessels sent to England arrived in April, and were moored in Woolwich dock-yard. The Ballarat, being merely a store-ship, did not come under the custody of the government, and was sold. The admiralty refused to purchase the vessels for the government; and it was settled that they should be placed at moorings in the Medway, and there retained until the objections to their sale might be removed, and that any expenses incurred by this course should be defrayed by Her Majesty's government." In the meanwhile Captain Osborn, learning that it was not the intention of the government to purchase the vessels left in charge of the Bombay authorities, wrote to ask permission to relieve himself of all responsibility, by substituting a mercantile firm at Bombay as the agents to carry out Sir Frederick Bruce's instructions for the sale of the vessels on account of the Chinese government.5 The matter was referred to the law-officers, who reported that the sale Appendix, vol. ii, p. 700. Ibid., p. 684. * Ibid., p. 695. 4 Ibid., pp. 700, 703. 5 Ibid., p. 701. 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 government. 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 the In June, 1865, the civil war in America having come to an end, 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.* 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. PART IV.-Intro In considering the facts about to be presented to the tribunal relative 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 dominious of the Crown; (b.) That the act had been done with intent, or in order, that the ves sel 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 |