APPENDIX No. XVIII. REPORT OF THE CASE OF THE ORETO OR FLORIDA IN ALEXANDRA CASE.* THE CASE OF THE ORETO. In the Vice-Admiralty Court of the Bahamas. OUR SOVEREIGN LADY THE QUEEN 18. THE BRITISH STEAMSHIP ORETO, her tackle, &c., seized by Commander Henry Dennis Hickley, esq., commanding her Majesty's ship Greyhound, for an alleged breach of foreign enlistment act. Decree of his honor the judge, pronounced in the above case on the 2d day of August, A. D. 1862. The advocate general, the Hon. G. C. Anderson, on behalf of the Crown. The British steamship Oreto has been seized by the commander of her Majesty's ship Greyhound on the alleged ground, as appears by the libel, that James Alexander Duguid, now or lately master of the said ship, and others exercising authority over her, have, without leave of her Majesty the Queen, and within the jurisdiction of the Bahamas, attempted to equip, furnish, and fit out the said steamship Oreto, with intent that she should be employed in the service of certain persons exercising or assuming to exercise the powers of government in certain States claiming to be designated and known as the Confederate States of America, to cruise and commit hostilities against the citizens of the United States of America, her Majesty the Queen being at the time at peace with the said United States, and have thereby acted in violation of the act 59 Geo. 3, e. 69, commonly known as the foreign enlistment act. Now, to support the libel it is necessary that proof should be given-1st, that the aforesaid parties, having charge of the Oreto while the vessel was within the jurisdiction of the Vice-Admiralty Court of the Bahamas, attempted to equip, furnish, and fit her out as a vessel of war; 2d, that such attempt was made with the intent that she should be employed in the service of the Confederate States of America; and, 3d, that such service was to cruise and commit hostilities against the citizens of the United States of America. Witnesses have accordingly been produced to prove that the Oreto is constructed for and fitted as a war vessel; that acts have been done in her, since she came to Nassau, which constitutes an attempt to equip, fit, and arm her as a vessel of war. That from certain conversations which were overheard between the master of the vessel and a person who came out passenger in her, and from certain acts done by this person, there is proof that she was intended for the service of the Confederate States of America, and to cruise against the citizens of the United States. It has been contended by the proctor for the respondents that proof ought also to have been given that her Majesty the Queen was at peace with the United States of America, as the court cannot take judicial notice of that fact. That it ought to have been proved that there is such a place as the Confederate States of America, and that proof should have been given that no leave had been obtained to fit the Oreto as a vessel of war. Without entering further into the subject, I will dismiss these points by stating my opinion, that the court is bound to take judicial notice of her Majesty's proclamations, and that in the proclamation of the 13th of May, 1862, the Confederate States of America are named, and it is also alleged that her Majesty is at peace with the United States of America, and that as the allegation in the libel, that there was no license from her Majesty to fit the Oreto as a vessel of war, has not been traversed, the court as a right to assume that it is admitted. *Particularly referred to on pages 606 and 612 of vol. II, and in Parliamentary and Judicial Appendix, No. 15, page 290. A responsive plea has been put in by the defendants. 1st. Denying that there was any agent of the owners or persons interested in the Oreto of the name of John Lowe, on board of her, as affirmed in the libel; that the said Lowe was merely a passenger and never exercised any power or control over the vessel. 2d. Denying that James Alexander Duguid, the captain, or any person exercising authority over the said steamship, attempted to equip, furnish, or fit out the said ship with intent that she should be employed in the service of the Confederate States of America, to cruise and commit hostilities against the citizens of the United States. 3d. That while the Oreto lay in the river Mersey, immediately previous to her sailing for this port, British men-of-war frequently passed and repassed her, and that she was at all times in a conspicuous and public position without having been seized or arrested, or subjected to detention, and that she quitted Liverpool in the open day without any manner of haste or secrecy; that the master, while she was so lying in the Mersey waiting instructions from the owner, directed the mate to employ the crew during their leisure hours in doing ordinary ship's work, fitting gear, stropping blocks, &c., during which time, as well as after she sailed, certain spare blocks which were then on board, and which were intended solely for the use of the ship as part and parcel of her rigging, and not in any way whatever as blocks for gun tackles, or as part of the furniture of guns, were stropped by the said crew, and the said blocks were never known or called as gun-tackle blocks, until a certain Edward Jones, a man of infamous and abandoned character, who had been shipped on board in the capacity of boatswain, called them gun-tackle blocks. That neither the said Alexander Duguid, nor any person whatsoever, having authority over the said steamship during the time she was at the port of Nassau, ever gave any orders or directions to strop blocks as gun-tackle blocks, or to strop any blocks whatever. But any blocks which may have been stropped on board the said ship was done by the seamen of the Oreto in their ordinary avocations, and is always done on board merchant ships in order that they might have employment on board, and not for the purpose of fitting the Oreto as a vessel of war. 4th. That no faith or credit ought to be given to the depositions of Charles Ward, a witness for the party proponent, that he is a man of abandoned character, and is actuated by malicious and vindictive feelings against the said James Alexander Duguid, and has sworn falsely for the purpose of carrying out an avowed intention of doing an injury to the said J. A. Duguid. On the evidence given in support of this plea I shall remark as I proceed. The evidence which has been produced in support of the prosecution may be classed into two parts: 1st. That which relates to circumstances which occurred before the vessel arrived within the jurisdiction of the Admiralty Court of this colony. 2d. That which applies to facts done subsequently to such arrival. To the first division belong the construction and fitting of the vessel before she left England, the flags or other materials which she had on board when she sailed, and the conversations or remarks of the parties in charge of her while on her passage from England. To the second division belong the proceedings on board the vessel after her arrival within the jurisdiction of the Bahamas Vice-Admiralty Court. From the evidence appertaining to the first division I abstract the following, which is all that I think in any degree material: Mr. Wynne Fitzjames Duggan, the chief mate of the Oreto, says, "I am chief officer of the Oreto. The number of men, all told, on board was fifty-two or fifty-three. I believe that was an ordinary crew. We had not too many. We had no cargo. The Oreto was fitted (when she left England) as she is now. All vessels are not fitted alike. I have seen some ships fitted with regard to bolts in ports as she is. I have seen vessels intended to carry cargo fitted as she is. Some of Green's and Wigram's ships are so fitted. There was a passenger on board whose name was Lowe. He did not, to my knowledge, exercise any authority over the ship." In the cross-examination, Mr. Duggan says, "I had access to every part of the Oreto. I have gone right through the vessel. I have never seen any implements of war or any ammunition on board of her. The shot boxes were full of cabbages, turnips, and potatoes." William Porter, a seaman of the Oreto, deposes that the vessel had no stowage room for cargo. She was not fitted as merchant vessels usually are. She had a magazine. He says, "I believe there were shell rooms. I was in a room where shells were stowed. She had light rooms. They are not usual in merchant vessels. She had boxes for shot. She had two gigs, a life-boat, pinnace and dingey. I took her to be a gun-boat. "We had a passenger named Lowe on board. As far as I could see, Mr. Lowe had a little authority on board. On one of the mess kids being broken, I heard Mr. Howe say to Captain Duguid, he ought to take better care of the things. Mr. Lowe has given me different orders, and told me to steer different courses when I was at the helm." Cross-examined: I "cannot say whether Captain Duguid knew it; I might have been reprimanded if he had." Peter Hanson, a seaman of the Oreto, says: "The Oreto (meaning when she sailed from England) was fitted just as she is at the present time. I have not been in steamboats before. I have been in sailing vessels. I have never been on board one fitted like the Oreto. There is no place for cargo." Walter Irving, a fireman of the Oreto, states: "I have served on board steamships before; I have been so serving six or seven years. The Oreto was not fitted like steamships I have been serving in before, they were merchant ships and passenger vessels. I did not see any cargo on board the Oreto, there were shot and shell boxes, and a place which the crew called a magazine. I know a flag they call the confederate flag, I saw one on board the Oreto; I saw it on the quarter-deck before we came in here; I saw it among other flags. There was an American and a French flag. There was a passenger on board named Mr. Lowe, he seemed to have great interest in the ship." With respect to the flag mentioned by this man, I will observe that had there been a confederate flag on board the Oreto, I should not consider it as very powerful evidence, inasmuch as it was with American, French, and other flags, and might have been sent on board with a general assortment of flags which many merchant vessels have. But it will be seen that Captain Duguid in his examination swears that there was no confederate flag on board. He states, that when the flags were sent on board the ship at Liverpool, they were wrapped up in separate papers, and marked with their repective names. That seeing one marked “confederate flag,” he immediately sent it ashore, fearing that the possession of such a flag migh involve them in some trouble should they be boarded by an American vessel of war. Drawing my conclusions from the manner in which his evidence was given, and all the accompanying circumstances, I cannot but be of opinion that there was no confederate flag on board after the ship left Liverpool, and, consequently, that the witness, Walter Irving, and the man Ward, who gives evidence to the same effect, have stated as far as regards the confederate flag what is not true. Thomas Robinson, a fireman of the Oreto, states: "I have served on board of ocean steamers, in the Great Britain and Great Eastern steamships, and in the Cunard line of boats; there was a great difference in the fitting of the Oreto." John Quin, a fireman of the Oreto, says: "I have been to sea ten years; I have been employed in merchants' steamboats, in passenger vessels, and vessels carrying troops. I never served on board a steam vessel in the merchant service fitted out like the Oreto." Charles Ward, the steward of the Oreto, says: "The Oreto had not the appearance of such merchant vessels as I have been in before. There were shot lockers, and a magazine, gun-room, shell-room, &c. "Mr. Lowe was a passenger in her; four or five days after we sailed he came to me and told me to be careful and keep an account of everything, as it would be saving a good deal of trouble when the crew would be leaving, and her guns and ammunition put on board, and a new crew shipped, and very likely everything would be done in a hurry, and he said he would reward me handsomely. I have heard him repeatedly tell the captain to get things done as he wanted them done in the ship, and he was guided by Mr. Lowe on the voyage in the working of the ship and getting things done; this has happened several times. I heard the captain, Mr. Lowe, and the chief engineer speak with regard to the ship. I always understood them to say she was fitted for the southern government as a gunboat, whether for the government or a private gentleman I cannot say; they were conversing in the cabin. "There was a flag in the captain's cabin; it had one white stripe and two red ones on each side of the white, and in the corner there was blue, with stars in it. I don't know the secession flag. I heard Mr. Lowe tell the captain that he treated the slaves on his plantation better than he (the captain) treated the men. Mr. Lowe stated that he would make a different arrangement when he came to port, and he did. "I heard Mr. Lowe tell Captain Duguid to get those gun-tackle blocks shipped and put away, not to be used for any purpose at present. This was before we came here." With respect to this evidence, I will here observe that Charles Ward had been imprisoned by Captain Duguid for some alleged misconduct; that he gave his evidence evidently under feelings of resentment. Now, when the meaning of any conversation or remark he may have heard depends so much on the ipsissima verba which were spoken, the inferences which he may draw from them may be such as their import did not justify, and this evidence must, therefore, be received with great caution. The slightest difference in the words made use of in a conversation or observation, or the occasion which caused it, may give that converstion or remark an entirely different meaning from that which the speaker intended to convey; and it does appear to me rather unlikely that conversation or remark of this nature should have taken place in the presence of the steward, or in the immediate vicinity of a place, within hearing distance, where he would be very likely to be. Captain Duguid has sworn that no conversation as Ward describes took place. Cap tain Duguid's statement is worth, at least, as much as Ward's; I shall, therefore, not consider these conversations to have been proved. It is true, as was stated by the advocate general, that Captain Duguid may be an interested witness; to what extent he may be so I do not know, but if the evidence of an interested witness may be legally given, although it should be received with caution, it certainly is not invalidated on that account. Captain Duguid states in his evidence that Ward threatened when he came out of jail to fix him and the ship too. Ward denies having used this threat, but I am inclined to believe that he did. However, let one assertion be placed against the other; yet I must say that I did not feel at all satisfied with the manner in which Ward gave his evidence. He says: "Mr. Lowe told me to be careful and keep an account of everything, as it would be saving a good deal of trouble when the crew would be leaving and the guns and the ammunition put on board and a new crew shipped." Now, allowing that there could be any connection between the things which a steward would have charge of, and the leaving of the crew, which I do not see, what possible connexion could they have with the shipping of guns and ammunition? I cannot but think it highly improbable that Mr. Lowe would have made so uncalled-for, so irrelevant, and, to a stranger, as this steward was to him, so imprudent a speech. Again he says, Captain Duguid was guided by Mr. Lowe during the voyage in the working of the ship. Can anything be more improbable than this? He says in another part of his evidence, "I heard Mr. Lowe tell Captain Duguid to get those gun-tackle blocks stropped, and to put them away, not to be used for anything at present. This was before we came here." This Captain Duguid denies, and, as I said before, Duguid's oath is certainly as much to be relied on as Mr. Ward's. The observations which I made respecting the confederate flag when commenting on the evidence of Walter Irving, apply equally to the evidence of Ward. I will only ald that I think it very wonderful that he should have been so long both in Liverpool and here, and not know a confederate flag. Captain Hickley, after stating certain motives which induced him to go on board the Oreto, to examine her, gives the following evidence: "At noon on the 10th of June I went on board the Oreto with some officers and men, for the purpose of thoroughly examining her, and I found her discharging what I supposed to be shell, at the time of going on board. I should have followed ont my intention of thoroughly searching the vessel; but as she was clearing at the time and the consignee assured me that she had cleared in ballast for the Havana, and as I actually thought this was the case, this testimony being strengthened by that of the revenue officer, I thought further interference on my part unnecessary, and so I quitted the ship." After some few details, to which I do not think it necessary to advert, he goes on to say, "I quitted the ship with the understanding that I was to again visit her previous to her leaving; some days elapsed, and being convinced in my own mind that the vessel was not acting in good faith, I determined before leaving to make a thorough overhaul; accordingly on the 13th day of June I proceeded on board with the officers and men chosen, on its being reported to me that the vessel had cleare 1 in ballast by the consignee. On my first going over her side, the captain informed me that the crew had refused to get the anchor up unless they got a guarantee from myself or the governor, as to where she was going; and on the captain calling the crew aft, and requesting them to state their grievances to me, the men did so in what I consider an orderly and proper manner, and in no mutinous spirit whatever, as far as I am capable of judging. I then proceeded to examine the vessel, and found her in every respect fitted as a war vessel, precisely the same as vessels of a similar class in her Majesty's navy. She has a magazine and light-rooms forward, handing-room, and handing senttle for powder as in war vessels, shell-rooms all fitted as in men-of-war, a regular lower deck with hammock-hooks, mess shelves, &c. &c., as in our own war vessels: her cabin accommodations and fittings generally being those as fitted in vessels of her own class in the navy. After making this thorough investigation, I quitted the vessel to make my report to his excellency the governor and the law officer of the Crown On Sunday the 15th, the boatswain and a portion of the crew of the Oreto having made reports to me that I thought made it incumbent on me as a public officer to act promptly on. I forthwith seized the Oreto, concluding that his excellency was in church at the time, and made him acquainted with it as soon after church as possible. I received a protest that afternoon, and a letter the following day, against, and calling for an explanation of, my proceedings on behalf of the captain, on the seizure of Sunday. A correspondence took place between myself, his excellency, and the law officer of the CroWN, which ended in my releasing the Oreto on Tuesday the 17th; and on the vessel being released on this occasion, on further conversation and correspondence with the gov ernor, it was deemed necessary finally to detain the vessel for adjudication in the ViceAdmiralty Court. I found guns on board of her; she is a vessel capable of carrying guns; she could carry four broadside guns forward, four aft, and two pivot guns amidships. Her ports are fitted to ship and unship] port bars cut through on the upper part to unship also; the construction of her ports I consider is peculiar to vessels of war; I saw shot boxes all around her upper deck calculated to receive Armstrong shot, or shot similar; she had breeching bolts and shackles and side-tackle bolts. "Magazine, shell-rooms, and light-rooms are entirely at variance with the fittings of merchant ships. She had no accommodation whatever for the stowage of cargo, only stowage for provisions and stores. "She was in all respects fitted as a vessel of war of her class in her Majesty's navy." In the cross-examination Captain Hickley says the opinions of the governor and the law officer of the Crown were to the effect that the vessel was not liable to seizure; this was after my report of the 13th, after I had made my first examination with the exception of clearing the holds. "The reason I considered she was acting in bad faith was because she did not sail on the 13th. When I go on board of her, the first thing I am made acquainted with is the crew refusing to get the anchor up, because they do not know where the ship was going, although she cleared in ballast for the Havana, and the crew could not get anybody to satisfy them on the point as to where the ship was going." Captain Hickley then proceeds to state his opinion on various points, such as the right to build vessels adapted as vessels of war without her Majesty's leave, the right of seamen to refuse going on any voyage which may prove ruinous to them, and he mentions various circumstances which caused him to inspect the Oreto. He says, "It is impossible for a vessel to fight without guns, arms, or ammunition on board, but the Oreto as she now stands could, in my professional opinion, that is to say, with her crew, guns, arms, and ammunition going out with another vessel alongside of her, be equipped in twenty-four hours for battle." Captain Hickley makes some statements respecting a man named Jones; but as this man has gone away and has given no eyidence in the case, I think it is unnecessary to take further notice of him. Alluding, however, to the information given to him by Jones, Captain Hickley says, "On this public report I seized the vessel again, and Mr. Cardale, the second lieutenant of the Greyhound, was put in charge of her." Captain Hickley's evidence as to the constructions and fittings of the vessel I should consider conclusive, even had there been no other; but that construction and those fittings were made, not here, but in England, and of whatever nature they may be, do not subject the vessel to forfeiture here. Captain Hickley, it appears, on certain grounds which he states, seized the Oreto; but acting on the opinion of the law officer of the Crown and that of the governor, he subsequently released her. Between this time and that of her ultimate seizure there is no evidence whatever that she did anything in violation of the foreign enlistment act; but Captain Hickley's suspicions were aroused by the vessel not sailing for two or three days after that, on which the consignee informed him she would; he, therefore, again went on board the Oreto, and found that the reason of her not going was, because the crew had refused to get her under way on account of their not being satisfied as to what port she was bound to. I must confess I look upon this as exonerating Captain Duguid and others concerned from suspicion of mala fides for not having gone at the time specified by Mr. Harris, but Captain Hickley took a different view of it, and he thereupon seized the vessel again. Now, if he did this, as seems implied in part of his evidence, on account of the crew not being able to obtain satisfactory information as to the destination of the vessel, I can only remark that he did it on ground which is not within the purview of the statute under which she is libelled; but if Captain Hickley thought proper, on a reconsideration of the whole case, to seize her again, he had a right to do so. Lieutenant Cardale gives nearly the same evidence as Captain Hickley did respecting the construction and fitting of the Oreto, proving that she is in every way adapted to be used as a vessel of war. He gives his opinion that the vessel could be fitted with her guns in twenty-four hours, supposing great exertions were made with plenty of hands, and that everything was sent on board ready fitted for use-that is, the guncarriage slides, train-tackles, side-tackles, and all the equipments of the guns. With reference to what Captain Hickley as well as Lieutenant Cardale say respecting the probability of fitting the vessel with guns, ammunition, &c., in a certain time, I have to observe that this evidence may be perfectly correct, but that I have no right whatever to take it into consideration; the case depends upon what has been done since the vessel came within this jurisdiction, and can in no way be affected by what it is possible might be done at some future period. Mr. Stuart, the master and pilot of her Majesty's ship Greyhound, corroborates the evidence of the Oreto being built and fitted as a vessel of war. With respect to acts which were done, or circumstances which occurred on board the Oreto, before she came within the jurisdiction of the Bahamas Vice-Admiralty Court, it is admitted and is clear that the court has no authority to adjudicate. The only ground then on which evidence of those facts or circumstances can be admitted at all is, that it may explain or elucidate acts which have taken place since the arrival of the vessel in this port. The strapping of blocks that might be used as gun-tackle blocks or the taking of shells on board of a vessel built as a vessel of war, might afford ground for suspecting that such vessel was intended to be used as a vessel of war, 33 A C-VOL. V |