Report from the Bahamas.

No. 6.

Acting Governor Strahan to the Earl of Kimberley.

GOVERNMENT HOUSE, NASSAU,

February 17, 1872.

MY LORD: Referring to my dispatch of the 3d instant, I have now the honor to forward to your lordship the report and documents called for in your lordship's two dispatches of the 30th December, and two of the 11th January last, in connection with the case presented by the United States Government to the tribunal of arbitration on the "Alabama claims."

2. I have divided the various allegations made in the United States case against the British authorities at Nassau into the following heads: 1. Coaling and transshipment of cargoes at Nassau.

2. The case of the Oreto.

3. The case of the Oreto as Florida.

4. The case of the Dacotah.

5. The case of the Retribution. 6. The case of the Hanover.

7. The case of the Emily Fisher.

S. The accusations or insinuations made against the attorney-general. 9. The statement at page 342, that "the civil authorities at Nassau were all actively friendly to the insurgents."

10. The statement at page 343 that, with the consul of the United States, they (the civil authorities) "had only the formal relations made necessary by his official position."

3. The first seven points are dealt with in a conjoint report by the attorney-general and myself.

4. No. 8 is disposed of in a letter addressed to me by the attorneygeneral, in answer to the personal accusations made against him.

5. It is with no small pleasure that I take advantage of this opportu nity to bear my testimony to Mr. Anderson's integrity of conduct and to his gentlemanly bearing, and to state my conviction that he is a man incapable of being influenced by the considerations which are attributed to him, or of using language even in debate other than the most deco

rous.

6. With regard to No. 9, I would simply state that on whatever side may have been the sympathies of the people of Nassau during the strug gle which was being carried on between the Federal and the so-called Confederate States of America, I find nothing in the correspondence which took place on questions arising out of it which shows anything but an earnest desire on the part of the civil authorities here to act with impartiality as the representative of a neutral power. In support of this I would more particularly refer your lordship in the correspondence attached to the minutes of Governor Bayley, upon the documents named in the margin,' and to his dispatches, No. 43, of May 2, 1863, and No. 67, of July 2, 1863.

7. On No. 10 allegation I would remark that the intemperate habits of Mr. Whiting, United States consul at Nassau, precluded the possibility of his being received by any respectable person except on the "formal relations rendered necessary by his official position." I have not considered it necessary to furnish copies of the dispatches to your

1 See further papers relating to the Florida.

2 See papers relating to the Florida, Appendix, vol. i, p. 78.

lordship's department, in which Mr. Whiting's intemperate con[17] duct was reported from time to time; but a glance at the dispatches named in the margin will enable your lordship to form some idea of the character of the person upon whose statements and information is framed a considerable portion of the United States case, as regards the conduct and motives of the British authorities in the Bahamas.

Governor Bayley to

sepurate and con

1862; separate and confidential, 23d Oc

8. In conclusion, I beg to express my regret (1) that I have been unable to report more fully upon the case of the Emily Fisher, and (2) that I have failed to obtain copies of the inclosures Secretary of State. A to F, which were forwarded in Governor Bayley's dis- dential, 21st October patch, No. 43, of the 2d May, 1863,2 above quoted, in answer tober, 1862; No. 19 to a complaint made at that time by United States Consul of 10th March, 1863. Whiting, that the Nassau authorities had shown undue partiality toward the confederate steamer Oreto, or Florida, and which have reference to certain allegations made in the United States case now presented.

9. I trust, however, that these documents, which I presume must have been forwarded in original, may be found in your lordship's department.

10. With regard to the case of the Emily Fisher, the collector of revenue at Fortune Island, or Long Cay, at the time of her arrival there, is dead; but I think there can be little doubt, from the inquiries which I have made, taken in connection with the fact that I can find no correspondence on the subject, that that official neglected his duty in not reporting her arrival to the authorities at Nassau.

Report forwarded in administrator's dispatch with reference to the allegations against the British authorities in the Bahamas, contained in the United States case presented to the tribunal of arbitration under the treaty concluded at Washington on the 8th May, 1871.

Coaling.

Her Majesty's proclamation of the 13th of May, 1861, was promulgated in this colony on the 29th of June of that year, but with the exception of some applications to put American vessels under British colors, by registering them as British vessels on their transfer to British owners, nothing of importance occurred until the month of December, 1861, in the early part of which month the American schooner Caleb Stetson arrived from Philadelphia with a cargo of coal, and was on the 6th of December reported at the receiver-general's office by the United States consul, who signed the report and manifest as the "United States consul and consignee," the cargo being therein stated to consist of 300 tons of coal, "shipped by order of the United States Navy Department."

Upon receiving this report the receiver-general addressed a letter to the lieutenantgovernor asking for instructions, and the attorney-general being consulted, advised that the coal should be admitted to an entry and allowed to be landed, but at the same time pointed out that if the coal was allowed subsequently to be used in coaling United States vessels of war, resorting for the purpose to Nassau, such act would constitute a breach of the neutrality enjoined by Her Majesty's proclamation, and he advised that the consul should be officially notified to that effect, which was accordingly done.

These dispatches are not printed, as they refer only to the personal subject mentioned in the text.

* See Appendix, vol. i, p. 78, where this dispatch is given with its inclosures.

The position thus taken by the colonial government was based on those very rules of international law which are quoted at pages 210, 211, and 212 of the United States Case; and the necessity of the caution thus evinced was very speedily established, for in a day or two after the decision was arrived at the United States steam vessel of war Flambeau, Commander Temple, arrived, and was anchored in the harbor of Nassau, the evident intention of the United States Government being that this vessel should be stationed at Nassau for the purpose of intercepting and preventing trade between that port and the southern ports of the American continent, an intention which is incidentally admitted at page 227 of the Case, where it is stated, with reference to transshipment of cargoes, that "that privilege converted the port of Nassau into an insurgent port, which could not be blockaded by the naval forces of the United States. Further stay of the United States vessels of war was therefore useless." ]18] *The next step taken by the consul was to endeavor to get the coal on board of the Caleb Stetson transferred to the Flambeau, and on the 12th of December he made application for that purpose on the ground that the Caleb Stetson was leaking to such an extent as rendered it necessary that she should be lightened of her cargo. His application was in the alternative to land or to transship.

He was informed that the coal might be landed, but would not be allowed to be transferred to the Flambeau, a decision that was founded not on the ground of there being any illegality in the transference of cargo from one vessel to another, but on the broad principle that to supply the Flambeau in that way with coal would be to facilitate her operations as a belligerent vessel of war; and as another vessel consigned to the consul with coal, shipped by the United States Government, had by that time arrived in port, it became evident that the United States Government were desirous, in violation of international law, to make Nassau a coal depot for their vessels, and so use a British port as the base of their naval operations against the Confederate States, who had been recognized by Great Britain as a belligerent power.

It may be here remarked that a state of war in such close proximity to the Bahamas had been unknown since the close of the American war with Great Britain in 1812-'14, and that the law and practice bearing on the rights of belligerents, and the duties of neutrals, was, with the authorities of the colony, a new field of study; but it is confidently relied on, that they brought to that study an earnest desire to be strictly impartial, and that the manner in which this particular question of coal was dealt with, although originally adopted upon the responsibility of the colonial authorities, was subsequently completely sustained by the foreign-office order of 31st January, 1862, which limited the quantity of coal to be supplied to a vessel of war, and the period during which any such vessel should remain in port.

cargoes.

In the month of December, 1861, the British merchant-steamer Gladiator and other merchant-vessels with cargoes for the confederate ports arrived at NasTransshipment of sau, and complaint is made at page 226 of the Case that a modification of the existing laws of the colony was made in their favor, by extending to them "the privilege of breaking bulk and transshipment," a privilege which, it is alleged in the Case, (p. 227,) "converted the port of Nassau into an insurgent port, which could not be blockaded by the naval forces of the United States."

Much stress is also laid upon the exultant tone of Mr. Heyliger's dispatches to his Government on this subject. For this, however, the authorities of Nassau are not responsible; and as Mr. Heyliger could, from the dates stated with reference to his movements at pages 225-'6 of the Case, have been, at the time he wrote, only a very few days at Nassau, it is very probable that he was at the time personally unknown to the persons who are referred to as the “British authorities at Nassau," and that the "marked attentions" he mentions to have received were shown by those connected with him in trade. But whether this was the case or not, there was, in reality, no modification of existing law made in the matter.

The transshipment of cargo from one vessel to another was merely a matter of departmental regulation, which could in any case have been authorized by the receivergeneral alone, and which, previously to the period referred to, had been accorded as a matter of course in the case of goods in transit; but in this particular instance the receiver-general thought proper to refer the question not to the "governor in council," but to the governor and council, acting under the authority of a clause in the local revenue laws as commissioners of customs or revenue, by whom the procedure was sanctioned, as appears from the documents here with forwarded.

The course in this respect adopted by the governor and council was also in strict accordance with the principles laid down for the guidance of colonial officers in the circular dispatch of his grace the Duke of Newcastle of the 15th November, 1861, which was received here about the 15th of December, and by which the subsequent action of the revenue department with respect to vessels employed in the blockade trade was governed.

1 An act to amend and consolidate the laws regulating the trade of the Bahama Islands. (17 Vict. c. 3; 10th March, 1854.)

The correspondence between the colonial government and the United States consul relative to the Caleb Stetson, Flambeau, Gladiator, Oreto, and other vessels is forwarded herewith.1

ORETO.

The next subject of complaint relates to the proceedings in connection with the Oreto, afterward the Florida, and at page 343 the grave allega[19] tion is made "that *if it had been predetermined that the Oreto

Oreto.

should be released by going through the form of a trial under the foreign-enlistment act, the steps could not have been better directed for the purpose." This charge is wholly unfounded. Under the circular dispatch of the 15th November, already referred to, the responsibility of initiating proceedings under the foreign-enlistment act was placed, and properly so, on the attorney-general of the colony, and that officer had necessarily to be cautious in advising the institution of proceedings, which, if ultimately unsuccessful, might eventuate in rendering the seizers liable to heavy damages, as has recently been the case in one of the sister colonies.

The charges are ranged under the following heads, page 343: That the attorneygeneral hurried on the trial before evidence could be obtained from Liverpool; that he conducted the cross-examination so as to suppress evidence unfavorable to the Oreto; and that certain named witnesses who could have conclusively shown that the Oreto was built for the insurgents, and was to be converted into a man-of-war, were not called as they ought to have been; and there is a general charge pervading the foregoing, and otherwise specially stated, of misconduct on the part of the attorneygeneral.

Taking these seriatim, they are as follows:

First. That the trial was hurried on before evidence could be obtained from Liverpool. The answer to this is that the vessel was proceeded against only for acts of equipment alleged to have taken place within the limits of the Bahama Islands. It was considered, whether rightly or wrongly, that the point was settled by the decision in the case of the Fabius, 2d C. Rob., page 245, which was an appeal from the identical court, the vice-admiralty court of the Bahamas, and in which it had been decided that vice-admiralty courts had no jurisdiction to take cognizance of offenses committed out of the limits of their local jurisdiction, and that prosecutions under the foreign-enlistment act were not within the sixth section of 2 Will. 4, c. 51, which gave an extended jurisdiction to that court in certain specified cases, a position which may be considered as affirmed by the legislative action which has been taken on the point by the British legislature in the vice-admiralty courts acts, 26 Vict., c. 24, s. 13.

This being the conclusion arrived at, it was not considered necessary, in fact it was never suggested, that evidence should be obtained from England; but it was considered that the evidence of the mate and crew of the Oreto, combined with that of Captain Hickley and the other naval officers was sufficient to show the animus with which the vessel was dispatched from Liverpool, and her adaptation for warlike purposes; and this is admitted in the case, as at page 346 the following paragraphs are found: “The judge in deciding the case disregarded the positive proof of the character, intent, and ownership of the vessel." And again, "The overwhelming testimony of Captain Hickley and his crew was summarily disposed of." And again, "While thus ruling out, either as false or irrelevant, evidence against the vessel which events proved to be true and relevant, he gave a willing ear of credence to the misstatements of the persons connected with the Oreto;" allegations that completely relieve the prosecuting officer of the charges brought against him at page 344, and throw the onus of failure on the judge; thus producing in the short space of two pages contradictory accusations against two officers of the government, the one of which, if well founded, would afford complete refutation to the other.

Secondly. That the attorney-general conducted the cross-examination so as to suppress evidence unfavorable to the Oreto when it could be done.

This is a charge which can only be met with a positive and indignant denial; whether the cross-examination was conducted skillfully or not, is of course another question, which must be judged of from the examination forwarded.2

Thirdly. The neglect to summon witnesses who could have given material evidence, and especially the omission to examine Maffitt, Heyliger, and Adderley. Now, if the allegations in the United States case are well founded, each of these persons was particeps criminis in the equipment of the Oreto, and was liable to be proceeded against criminally for a misdemeanor, and on conviction to be punished by fine and imprisonment, and therefore they could not have been compelled to give evidence leading to the condemnation of the vessel for acts of equipment within the colony, which would

For this correspondence, see Appendix to the Case of the United States, vol. i, p. 769; vol. vi, pp. 45, 48-51, 235, 236, 238, 239, 242, 244.

2 See further papers relating to the Florida.

necessarily have tended to criminate themselves; and consequently it never entered into the minds of the attorney-general or of Captain Hickley, who was in daily [20] consultation with that officer, to attempt to examine those parties *nor any

other persons in the supposed service of the Confederate States. The existence of such persons as Evans and Chapman, who are named at page 345 of the Case, was entirely unknown to the attorney-general, as also, it is believed, to Commander Hickley, who never named them to that officer. One important witness and one only was lost to the prosecution, namely, Jones, the boatswain of the Oreto, who had originally given the information to Commander Hickley which mainly led to the arrest of the vessel. He disappeared before he could be examined, and was supposed to have been induced by persons in the interest of the vessel to go away.

Duguid, the master of the Oreto, was, as will be seen on reference to his examination, questioned on the point, but he particularly denied all knowledge of the movements of the man.

With the exception of Jones, every one was examined who could have been compelled to give evidence, and Jones was only not examined because he secretly removed himself from the jurisdiction of the court.

The correspondence between Governor Bayley, Captains McKillop and Hickley, on the subject of the Oreto, is annexed and marked, as per margin.1

Another very great misstatement with respect to the trial of the Oreto is made at page 345.

It is there stated that the cross-examination of Captain Hickley was conducted by a gentleman who was represented to be the solicitor-general of the colony, but who in that case appeared against the Crown.

From the foot-note (2) this statement would appear to have been made on the authority of Consul Kirkpatrick; and if so, it proves that little reliance is to be placed on that person's statements. Mr. B. L. Burnside, a barrister of Lincoln's Inn, was the counsel referred to, and at the time (1862) he held no office whatever under the Crown; and the United States Government have, through the errors of their informants, confounded the case of the Mary or Alexandra, tried in 1865, with that of the Oreto in 1862.

In May, 1864, Mr. Burnside, however, was appointed solicitor-general, and at the time of the seizure of the Mary he held that office, when, being employed in that case as counsel for the claimant, he cross-examined Captain Preston of the British navy, a witness produced for the prosecution; but on the fact becoming known to the governor that the solicitor-general was so employed, he was called on either to give up his brief, or resign his office, and he chose to do the latter.

In concluding the remarks on this part of the case of the United States, it is confidently submitted that the arrest and trial of the Oreto at Nassau was a bona-fide proceeding; that on being released by the decree of the vice-admiralty court, she obtained a clearance as a merchant-vessel bound to Havana, in which character she left the harbor of Nassau.

C. S. case.

The next charge in connection with the Oreto is, that she went after leaving Nassau to Green Cay, and there received her armament from a sailing-vessel Pages 348 849, of called the Prince Alfred. This may or may not be true, but it is not true that the purpose for which this vessel went was notorious, and it is believed it was unknown to the civil authorities at Nassau; nor does it appear that any complaint was made at the time by Consul Whiting, or any other person, on the subject.

It may be true, as was alleged some time afterward, that the Oreto proceeded to Green Cay, and there received her armament; but evidence on one side or the other cannot now be obtained here, for Green Cay, a small island about sixty miles to the southward of New Providence, was at the time uninhabited, so that evidence of what actually took place can only be obtained from the parties implicated in the transaction, none of whom are, as is believed, now within the Bahama Islands. The case then proceeds with a history, whether correct or otherwise, of the Oreto in her new character as the confederate vessel of war Florida, and at page 350 her arrival at Nassan on the 26th of January, 1862, is recorded; and at page 351 it is alleged on the authority of Consul Whiting (see foot-note 1) that she was at Nassau for thirty:six hours, and while there took in coal and provisions to last for three months; and in support of which, in foot-note 2, the deposition of one John Demeritt is quoted, to the effect "that her bunkers were filled with coal, that coal was placed on her deck, and in any place that would hold it, and that she took on board not less than one hundred and eighty tons of that commodity."

Florida,

It is not stated before whom this deposition was sworn, but it was most probably taken by a consul of the United States, and that consul Mr. Kirkpatrick. If so, it must have been framed after the expiration of at least three years from the occurrence of [21] *the circumstances to which it refers; but whatever the date of the information

For this correspondence, see Appendix, vol. i, pp. 16-28.