Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Major General Doyle to the Duke of Newcastle.
My Lord Duke: I have the honor to transmit documents containing a particular account of the circumstances which have taken place since the Chesapeake was placed in the vice-admiralty court. The affidavits indeed narrate those which occurred at the original taking of that vessel, and also afterwards to the period of her recapture by the United States war-steamer Ella and Annie.
[Page 541]I thought it best to send these papers to your grace, (which have been printed in a pamphlet form by order of the judge,) although I had previously sent slips from newspapers containing some of the information which will be found in these documents.
Your grace will see that Judge Stewart had originally taken the same view of the law as applicable to this case, as is contained in the opinion of the imperial crown officers communicated to me in the enclosure to your despatch of the 23d ultimo, marked “Nova Scotia, confidential,” which I received by the last mail, and which I deemed it right to show to the judge and the crown officers. Moreover, your grace will observe by these documents and the judge’s remarks on directing the vessel and cargo to be restored, that her Majesty’s advocate general consented to the writ of restoration being awarded without bail, and your grace will also perceive that the difficulty which the imperial law officers of the crown apprehended from placing the Chesapeake in the vice-admiralty court has thus fortunately not arisen.
Trusting that the course I have pursued in this most embarrassing case may give me the honor of your grace’s approval,
I have, &c.,
Report of proceedings in the vice-admiralty court of Halifax, Nova Scotia, respecting the Chesapeake.
Judgment was this day given by the Hon. Alexander Stewart, C. B., judge of the vice-admiralty court, in the cause No. 211 of the Queen vs. The steamer Chesapeake and cargo.
The advocate-general for the crown.
J. W. Johnston, J. W. K. Johnston and Isaac J. Wylde, esquires, advocates and proctors for portions of the cargo.
The Hon. S. L. Shannon, advocate, and William Morse, esquire, proctor, for the vessel and the remainder of the cargo.
On the 6th of January last, the advocate-general exhibited affidavits of himself made before the registrar, and copies of three affidavits made before the mayor of this city, by Jamas Johnson, George Ames, and Mary V. Burgoyne, and also the affidavits of William Henry, Alexander Henry, John E. Holt, and Patrick Conners, sworn before the registrar, (copies of all which affidavits are attached to this judgment.) Upon these affidavits he moved for a warrant to arrest the steamer Chesapeake and cargo as having been piratically taken on the high seas from her lawful owners, which I granted. It was issued on the same day, made returnable on the 12th, executed on the 7th, and returned and filed in the registry on the 9th of January. On this last day he moved for a commission of unlivery, which I granted, informing him that he might cause the cargo to be unladen or not, as in his discretion he should think fit.
On the 18th he placed it in the hands of the marshal, who on the 29th returned it executed (with inventory attached to it) unto the registrar.
No appearance on behalf of the captors of the Chesapeake having been filed on the return day of the warrant of arrest, they were, on the petition of the procurator general, in the usual manner pronounced in default.
Claims by British owners for parts of the cargo have been allowed, viz., to Ross & Co., of Quebec, for 109 hogsheads of sugar; to Belony & Lamotte, for 10 hogsheads of tobacco and a box of tinfoil; to Charles Sampson, for 1 cask of angers; and to James McInlay for 5 rolls of sole-leather; and her Majesty’s advocate general having consented thereto, I decreed writs of restitution.
[Page 542]On the 10th of February, Mr. Morse, on behalf of the owners of the vessel, moved for the admission of their claim that the vessel’ be restored to them, and that the remainder of the cargo (which is unclaimed, and which is owned in part by British subjects and in part by American citizens) should be delivered to them, in order that they might carry the same to the original port of destination, Portland, in the United States, and there deliver it to those who were entitled to receive it. The advocate general has examined this claim, and consented that a writ of restitution thereof be granted without bail, to answer prospective or (what are in this court designated) latent claims. And upon this claim I am now giving judgment. But it is obvious that thus granting this claim and the restoration prayed for will terminate this case. These claimants are citizens of the United States of America; the vessel is an American steamer; and I may mention that, as an additional ground for the delivery of the unclaimed cargo to them, they allege that they have a lien thereon for freight. It is the ordinary practice of this court to direct property taken by pirates to be returned to the owners without delay, and, except where there is a strong necessity for requiring it, without bail for latent claims, taking care to protect the rights of the salvors and the droits of admiralty. At this period it is incumbent on me to state that I adhere to the opinion I expressed on the 9th and repeated on the 12th of January. I do not at all controvert the legal principles suggested at the bar as worthy of my consideration, but I do not perceive their applicability to the circumstances of the present case. But whether I be in error or not, whoever or whatever they are who seize the vessel, and whatever in their own or in their counsel’s estimation their rights may be, they have not thought fit to vindicate them before this court. They have, as I have just noticed, suffered judgment by default.
I have been much embarrassed in dealing with this case. To grant this application will be entirely within the rules applicable to it, for, on the facts sworn to, the taking was undoubtedly a piratical taking. But in its origin, in its position before the court, in the mode of the recapture, in short, in all the concomitant circumstances, the case is very peculiar. I was, therefore, in the absence of decided cases, obliged to recur to and rely on for my guidance those principles which lie at the basis of all law. And I do not think I shall be acting unbecomingly in referring for a few moments to those principles.
The right of self-defence is one of the fundamental attributes of an independent state, and the principles which regulate its conduct towards other states have their foundation in a higher philosophy than that which underlies the municipal or positive law. The latter implies a ruler to prescribe, and a subject to obey. An independent state recognizes no superior, acknowledges no authority paramount to its own. Underneath international law lies the ultima ratio regum. Every independent state determines for itself, as exigencies arise, what shall be the penalty for infractions of the law which it prescribes. The sovereign whose territorial rights are violated by the subjects or citizens of a friendly state is not bound to appeal for reparation to (what might be) the tardy justice to be conceded by that state. If those subjects or citizens are within its territory, it will inflict on them its own penalty, in its own mode. An independent state is not circumscribed by the limits which are essential to the administration of municipal law, since by it the agents of the community protect from the aggression of the wrong-doer the individuals of which it is composed. Then if one of the Queen’s subjects had violated the municipal law as flagrantly as the captors of the Chesapeake have outraged the international law, and such violation would have (as it unquestionably would) justly subjected the offending vessel to forfeiture, shall those who have violated the higher law be subjected to a less penalty? Assuredly not.
Then as to the right disposal of the forfeited vessel. It were derogatory to the royal dignity to add the proceeds of property which had belonged to the [Page 543] citizens of a friendly nation to the privy purse of the Queen, and it would as little become the honor of the British nation to make profit out of their misfortune.
What more appropriate mode of dealing with this vessel and cargo, then, than to restore them to their original owners;—not as a favor to them, but as an act of justice to the offended dignity of the crown; not as recognizing any right of the government of the United States to require such restoration, but as a fit punishment of the offenders, and a warning to others. The law which the Queen and the Parliament have prescribed to enforce the observance of her neutrality is to be found in her Majesty’s proclamation, and in the statute under the authority of which it was issued. Is the offence which I have suggested against the municipal law, or can any offence be more serious than that by which the British nation might be drawn into the sad contest which has desolated and is still desolating one of the fairest portions of the earth?
By the affidavits on which I granted the warrant it is certain that the Chesapeake, if a prize at all, is an uncondemned prize. For a belligerent to bring an uncondemned prize into a neutral port, to avoid recapture, is an offence so grave against the neutral state that it ipso facto subjects that prize to forfeiture. For a neutral state to afford such protection wbuld be an act justly offensive to the other belligerent state.
The Chesapeake was brought, not into one port only, but into several of the ports of this province; not openly, but covertly; not in her proper name, but in a false name. Still further, they who thus invaded the Queen’s territory, surreptitiously landed and sold therein a considerable portion of her cargo, making no distinction between those parts of it which were owned by the subjects of her Majesty and those belonging to the citizens of the United States; and instead of vindicating the rights which it was asserted for them at the bar they possessed, they (after landing on the shores of this province, and thus being under the protection of British law) have long since fled from and are still fugitives from it.
These are the facts on which I deemed it right to recommend at once that the Tessel should not be unladen or removed from the custody of the provincial government, in order that she might be restored intact to her owners. I then thought, I still think, that it would not consist with the dignity of her Majesty, though the capture had been a lawful one, to hold valid a plea on behalf of these persons. The facts I have just mentioned must have been admitted, for they are in their nature incontrovertible.
This court has no prize jurisdiction, no authority to adjudicate between the United States and the Confederate States, or the citizens of either of these States. Yet, if a claim to the vessel and cargo could have been sustained, all further jurisdiction on my part over them must have ceased, and they must have been further disposed of by competent authority, and it would have in that case been my duty to have examined into the question of prize. As the case at present stands, I am rightfully exercising jurisdiction; for the facts disclosed by the affidavits as to the actual taking of the vessel from the master and crew beyond all doubt constitute a piratical taking. The effect of upholding the plea of these captors might possibly be that, notwithstanding their gross misconduct, the vessel and cargo might be left to them. For, as his honor the administrator of the provincial government had directed the vessel and cargo to be brought into this court for adjudication, he could hardly then have resumed possession for any purpose. Impressed, then, by these strong convictions, as such a condition is dispensed with by the advocate general, I will not myself volunteer to impose (as a condition precedent to the restoration of the property) that their owners shall give bail to answer prospective claims; for, if I am rightly informed, the amount to be required would be at the least eighty thousand dollars, and to insist on such bail might be equivalent to a refusal to restore the property.
Unlading the vessel, and the incident expenses, hare rendered their ratable [Page 544] adjustment a matter of great difficulty; a difficulty, to be sure, which might be overcome by my decreeing a particular appraisement and valuation of the vessel and cargo to be made by the marshal, and a subsequent reference to the registrar and merchants. After a careful consideration, however, of this part of the case, I think it not unjust to order that the costs and expenses (except only the costs of these claimants whose property is to be delivered to them here, which, as well as those of the advocate general appertaining thereto, they are to pay) be paid by the owners of the vessel, leaving to them to adjust and seek repayment thereof from the shippers, insurers, and other persons chargeable therewith. If this were an ordinary case of capture from pirates, the prescribed salvage would have been one-eighth of the value of the property, and this, on the value of the yessel alone (which, I am informed, is more than sixty thousand dollars) would have been seven thousand dollars, and the owners of both vessel and cargo have been fortunate that they were not destroyed at sea, and so wholly lost to them. It is unnecessary to recur to the circumstances of the recapture. It suffices to remark that the taking was not an ordinary piratical capture. It is even possible not to have been a case of piracy at all. This court would stultify itself were it to affect ignorance of what is patent to everybody, namely, that those who wrested the Chesapeake from the master and crew are at the present moment in the adjoining province of New Brunswick, asserting that they made the capture as citizens of and parties duly authorized by the government of the Confederate States, and that they have produced documents and proofs thereof before magistrates there duly invested with the right to determine the validity of their claim, so far at least as affects their alleged piratical character. I allow this claim, and will decree a writ of restitution when moved, to be given to the claimants upon payment of the costs and expenses, as I have before specified.
The registrar will estimate as accurately as he can the amount which will certainly cover the whole costs and expenses, to be paid, as I have directed, by the vessel, and upon that amount being paid into the Bank of British North America, the bank of deposits of this court, he will issue the writ of restitution to the owners of the vessel. And he will, by orders on the said bank, pay to the several parties entitled to receive the same, such sums as he may have taxed and allowed, and the remainder, if any, he shall return to the said owners. In like manner he is to tax, and allow and cause to be paid by the claimants of that part of the cargo which has been, is, or is to be delivered here, all their costs, and the costs of the advocate general appertaining to their claims. The registrar will cause this judgment to be inserted in one of the city newspapers, and he will also cause to be printed in the same manner as the affidavits in this cause are printed, this judgment, and also my remarks thereon of the 13th January, and 10th instant, and attach copies thereof to this judgment, and also copies of the said affidavits. And the registrar will include in his bill the charge for the printing done and to be performed in this cause against the vessel, and pay the same to Alpin Grant, esq., the printer of this court, out of the sum to be deposited as aforesaid in the Bank of British North America.
Court of Vice-Admiralty.
This court met to-day for the consideration of this case. On taking his seat, the judge directed the registrar to cause the affidavits on which the warrant of arrest was granted, and as the case proceeded, any other material documents, to be printed by the Queen’s printer, for the use of the court, and for transmission to England. He also ordered that officer to ascertain if a competent shorthand [Page 545] writer could be procured, as he should require one on every important hearing; and (remarking that the fees allotted to the judge by the fee-table were, in all cases, of very trifling amount) he desired the registrar neither to receive nor charge any fees for him in this case.
His lordship then said:
“On ordinary occasions it is of little moment what mistakes are made by those who report the proceedings of a court of justice, but in the present it is incumbent on me, so far as I can, to prevent even a temporary misapprehension of the course I shall pursue. I have, therefore, reduced to writing what I endeavored to express on Saturday last, merely observing that I did not then modify any doctrine I stated at the outset of my remarks, nor do I intend to do so now.
“It is not at all extraordinary that gentlemen unacquainted with the law and practice of a court which are in many particulars peculiar to itself, and which during time of peace is very unfrequently called upon, to misapprehend both. But this case not only brings before me (incidentally to be sure, but still calls for) examination and application, the principles of international law, and has besides also excited great interest and attention in the United States of America. I am naturally desirous that what I do or say as a judge in it should be accurately stated by the press. Now, in the first place, I have to remark, that it is in this court open to the judge in any stage of the proceedings, especially where the rights of the crown are or may be involved in it, to indicate to the parties the proper course to be pursued, and upon the facts before him, if they cannot be gainsaid (and those on which I have formed my opinion cannot be gainsaid) to call their attention to the view of the law applicable thereto, which has occurred to him. It is his duty, therefore, sometimes to interfere ex officio, as did the most eminent of my predecessors, Sir Alexander Croke, in the case of the Herkimer, in which he said: ‘It is quite in accordance with the constitution of the court of admiralty for the judge to indicate ex officio to the parties any view which may seem to have an important bearing on their rights,’ adding, ‘such proceedings must necessarily be governed by the discretion of the court.’
“Now the facts set forth in the affidavit on which I granted the warrant are, that the Chesapeake and cargo were forcibly taken on the high seas from those who were conducting her from New York, in the United States of America, to her port of destination, Portland, (she being a steamer carrying passengers, and a cargo owned by several shippers, some British and some citizens of the United States,) by a number of persons who had gone on board as passengers at New York. That one of her crew was then slain by them. That those persons brought her into several of the ports of this province, giving her a false name. That they landed and sold a considerable part of her cargo. That they entered and remained in Sambro harbor, within a short distance from this port, and on the approach of a ship-of-war of the United States, left the vessel and fled to the shore, and while there with fire-arms forcibly resisted process issued against them by lawful authorities here, signifying that on any attempt being made to arrest them they would use them; and, finally, that they are all now fugitives from justice. Unexplained, these circumstances certainly constitute a piratical taking, and such as required me to grant a warrant to arrest the vessel and cargo. Vague assertions and rumors to the effect that this taking of life and this capture were the acts of duly authorized belligerents furnish no reply to such a case. Indeed, Mr. Eitchie suggested it as possible, and addressed me as amicus curiœ only. With reference to the principles he propounded, they lie on the very surface of international law; and if those persons are really entitled to the character asserted for them, we have a right to expect that they should be prompt to vindicate that character before a British tribunal such as her Majesty’s supreme court, on whom they might, I am sure, rely for protection, if the law entitled them to protection.
[Page 546]“Now the jurisdiction of the court of vice-admiralty over cases of piracy is exclusive, for the crown has jure coronœ as droits of admiralty the absolute right of goods belonging to pirates, and also to those found in their possession, if not claimed by their owners and proof made of their title. Until such claim is established, they must remain in the custody of this court. At the end of a year, they are, if no claim is preferred, condemned to the crown as droits of admiralty. Moreover, this court is bound to see that salvors are properly rewarded. In the present case no such claim is preferred, or if preferred, it would not be listened to for a moment.
“It is not for me to deal with the gross outrage on the liberty of our fellow-subjects, and the contemptuous and coarse violation of her Majesty’s proclamation and her territorial rights, perpetrated by officers of the navy of the United States. We may rest assured that these are safe in the hands of Earl Russell, a statesman who has ever been foremost in vindicating the rights of his countrymen in every part of the world. I do not doubt that his lordship will promptly demand that ample reparation be made by the government of the United States, and I confidently anticipate that that government will as promptly disavow and apologize for the conduct of their officers, and make lull reparation to the sufferers. I think, too, we have all reason to be gratified that our gracious sovereign has been so fitly represented in the recent emergency by her representative, General Doyle. With the courtesy natural to him, and the spirit and decision which his high office and duty as a soldier taught him, his prompt measures to obtain the release of our fellow-subjects so ignominiously treated cannot but secure to him the gratitude of every Nova Scotian.
“From the first I thought it probable that the case would come before me, and therefore I, as carefully as I could, considered the principles which, if it should, must govern my proceedings. I knew, indeed, that though his honor the administrator of the government might, as representative of the Queen, possibly direct the vessel and cargo to be delivered at once to their respective owners, yet for him to do this without waiting for the instruction of her Majesty’s government, I also knew would be assuming a very grave responsibility. Besides, this case is primœ impressionis, and in many of its aspects full of difficulties. Prima facie, the facts before his honor, and of course submitted to his legal adviser, the advocate general, exhibited an undoubted case of piracy. But it was well to pause before presenting it to this court as such, in order that all the circumstances should be fully ascertained. Moreover, the nature of the cargo shipped by British owners as well as citizens of the United States rendered it extremely difficult for the local government to and his honor, since they had no authority to administer an oath to the claimants, and no machinery to effectively ascertain their respective rights. What the government could do, they did promptly and well, and by their vigilance and activity much of the goods clandestinely landed from the Chesapeake have been saved for the owners.
“Looking, then, at the circumstances of this case, I (in the exercise of the discretion of which I have already spoken) thought it well, with a view to preventing further delay and saving the heavy expense attendant on this litigation, to suggest at the outset to the parties the course which the incontrovertible facts of the case has led me to adopt, viz: That the owners of the vessel and cargo should conjoin their claims, instead of presenting separate claims, and thereby render unnecessary the unlading the cargo, and enable the vessel at once to resume her original voyage. I had previously directed the marshal not to take the rigging from or otherwise dismantle the vessel, but to wait on his honor the administrator of the government and the authorities at the dock-yard and the provincial government, and ask them to permit the vessel and cargo, and that part of the cargo the posssession of which had been obtained by the officers of the provincial government, to remain as at present until some further order should be made therein by this court, and this was immediately conceded. I [Page 547] granted the decree of unlivery for which the advocate general moved, to be used at his discretion, and directed the respective claimants to confer with each other, and to submit their proofs to him preparatory to their moving for the restoration of their property. On this occasion Mr. Wylde, the proctor of one of them, signified his client’s desire that his portion of the property, should be delivered here. Appearances on behalf of the vessel and parts of the cargo have been filed (I take it for granted the proctors have filed their proxies, duly authenticated;) but no appearance has been given for the alleged captors.
“In the course of his address, Mr. Ritchie suggested that but for fear of his being delivered upon the demand of the goverement of the United States, under the extradition treaty, the principal person engaged in the capture would appear openly and make a claim. Captures lawfully made by a belligerent may by subsequent misconduct of the captors, in respect to such captures, so divest themselves of their vested rights as to take from them the and of the court of admiralty. Now the consideration of such a claim as Mr. Ritchie suggests, though but an incident of the cause over which, in virtue of its constitution and power, it has and exercises original jurisdiction, calls on me to proceed upon the common law of the admiralty, and the enlarged principles of international law which guide this court in contradistinction to those circumscribed technicalities and rules which obtain in other courts. Yet, even in the courts of common law and equity, we have the maxims that ‘a man must come into court with clean hands;’ ‘that he who seeks must do equity,’ and the like. A mere reference to the admiralty reports will show that such subsequent misconduct has the effect I have mentioned. More than sixty years ago Sir Alexander Croke decided, not on a statutable provision, but on the common law of the admiralty, in the case of La Reine des Anges, that the right of the captor to a prize which had vested in him was by his subsequent conduct in respect to the captured vessel wholly divested, and he condemned her as forfeited to the crown jure coronœ.
“Now the course of proceedings in this court in this case, as prescribed under acts of the imperial Parliament, will be this: The proctor general, on behalf of the crown, will file a libel, setting forth therein as piratical acts all the circumstances I have detailed; and if any claim be put in either on behalf of the person to whom Mr. Ritchie referred, or of the Confederate States, assuming that the latter have such a corporate character as to give them a right as a nation to a locus standi in this court, (as to which I will say nothing more at present,) and assuming further that the Chesapeake was lawfully captured, then those circumstances must be all admitted by the plea of such a claimant.
“Now by clause 3 of section 12 of our rules, it is prescribed to the judge as his duty ‘to reject immediately all pleas which, if assumed to be true, will not justify him in pronouncing a decree for the party pleading such plea,’ for in this court both parties are actors. The effect of my decreeing such a plea to be valid would be to deliver the vessel and property to the claimant. But am I, sitting as the judge of a court of admiralty, and representing her Majesty in it, to sustain the plea of men who have violated her proclamation of neutrality, offered an affront to her dignity;—of men who, claiming to be belligerents, and not seeking the privileges which the courtesy of neutral powers extend to belligerent vessels, but who have grossly and wilfully and stealthily violated her territory and sold goods therein;—who have, with revolvers and lawless force, violently resisted on the same territory the officers seeking to execute the process of her magistrates; and who are at this moment fugitives? If, indeed, these people had entered this port claiming the privileges usually accorded to belligerent vessels by neutral states, then the principles referred to might perhaps have been invoked on their behalf before a tribunal authorized to consider them. But this court of vice admiralty has no such authority, except, as I have said, as incidental to the jurisdiction which it rightly exercises in cases of [Page 548] piracy. Among the principles I have referred to is that one by which neutral property, not being contraband, found by belligerent captors on board of a prize is restored to the neutral owners. But unless the view of the course I propose to pursue be correct, I have no authority to decree a delivery of that claimed in this case by British owners, still less, if possible, to order the vessel to be restored to her owners.
“I trust that a judicial career of now nearly eighteen years has enabled the bar to believe that I am capable of altering my opinion, when counsel shows that it is erroneous. I confess, as at present advised, I should feel it my duty to reject such a plea; and had the facts been capable of being controverted or materially modified on which my opinion is founded, I should have studiously refrained from expressing it at this early stage of the cause. But the rights of British owners are concerned, large expenses are being daily incurred, and I am desirous, as I have said, to diminish them, and to expedite those proceedings. The conduct pursued by the persons who seized the Chesapeake, after the seizure—though it were a lawful seizure—has, I think, by international law, rendered their prize subject to forfeiture to her Majesty to be dealt with as to her may seem fit.”
At the close of his proceedings his lordship informed the advocate general that, under the facts before him, unless they were altered by evidence, he would treat it as a case of piracy throughout.
Court of Vice-Admiralty.
On taking his seat upon the bench, his lordship stated that the appointment of a printer and of a shorthand reporter to the court having been recently authorized, he had appointed Mr. A. Grant to the first-named office, and Mr. John J. Bourinot to the latter; whereupon the registrar of the court presented to the respective parties the commissions which his lordship had been pleased to grant.
On granting the motions for writs of restitution of such parts of the cargo of the Chesapeake as were claimed, and their claims allowed on Friday, the 5th of February, his lordship remarked:
“What I have said and done in this cause has been greatly misunderstood and misrepresented, and it is of much importance that this should, as far as possible, be prevented from again occurring. I have, therefore, thought it well to reduce to writing what I have to say in decreeing these writs as prayed. It has been thought, for example, that my proceedings will be in effect deciding in favor of the demands made by the government of the United States upon the governments of this and the adjoining province of New Brunswick for the delivery, under the extradition treaty, of the captors of the Chesapeake as pirates. But with questions or rights under that treaty this court has no concern: no authority to interfere directly or indirectly. And the view I have taken of the case before me can and could in nowise affect that demand, even if it were invested with full authority to adjudicate upon it. I grant these writs, and I am prepared to decree the same writs in order to the restoration of the vessel and the remainder of the cargo to their original owners, upon due proof of their title to them, and payment of the costs and expenses which have been incurred. Those which have now been preferred I will examine and pronounce thereon on Saturday next. It will be recollected that, at the commencement of these proceedings I stated that, in my view, assuming the captors of this vessel to be lawfully authorized belligerents, they had forfeited their rights; that I could [Page 549] not, therefore, entertain a plea on their behalf, and that the proper course to be pursued was to restore the vessel and cargo to their original owners. Subsequent research and reflection, and circumstances which have since occurred have confirmed this view, and also enabled me to state, that in my early announcement of it I rightly exercised the discretion which is constitutionally reposed in a judge of a court of admiralty. Still, if these opinions be erroneous they can be readily corrected. This court (though it administers its functions in Halifax) is an imperial tribunal, acting by the authority of acts of the imperial Parliament, and guided by international and maritime as well as municipal law; and from its decrees an appeal lies to the highest appellate tribunal but one in the empire. If, therefore, these captors have the rights which it has been suggested at the bar belongs to them, the confederate government and its agents can have no difficulty in effectively vindicating them. The announcement of those views was received with but scant deference. They, especially the intimation that the Chesapeake and her cargo should he forthwith restored to their owners, were promptly denounced as inconsistent with that common sense, the application of which, it was said, to legal problems, was all that was required for their solution. This reception of them troubled me but little, as I felt that no personal disrespect could be intended; but the conduct of a portion of the press in these colonies has given me great concern. Free and fearless criticism of the proceedings of courts of justice, such (and such only) as one sees in the great leading organs of public opinion in England, is an essential corrective of these proceedings. But the circumstances of this case, it is well known, have excited the most angry feelings throughout the United States, and the epithets and strictures, and the unworthy motives and conduct imputed to this court, and to myself as judge of it, are as unpatriotic as they are un-English, for they can have no other tendency than to exasperate these feelings, and justify alike the confederates and the federals in treating with contempt any decree which it may pronounce.”
Motions were then made by the several counsel in reference to the vessel and cargo, after which his lordship stated that on Monday next he would give judgment, which would be in the nature of a final decree in the case. The court then adjourned till Monday next at 11 o’clock.
Province of Nova Scotia.
In the Vice-Admiralty Court of Halifax:
Appeared personally James William Johnston, of Halifax, in the said province, barrister-at-law, advocate and procurator general, and being duly sworn to depose the truth, did make oath and say:
That a steamship called the Chesapeake was lately brought into the harbor of Halifax, and surrendered to the provincial authorities by A. G. Clary, esq., as commander in the United States navy, in command of the United States war steamer Dacotah, who represented that the said steamer Chesapeake had been taken possession of in the harbor of Sambro, in this province, by the United States gunboat Ella and Annie.
That application was made by the acting United States consul to his honor the administrator of the government for a warrant under the extradition treaty between Great Britain and the United States, and the act of Parliament made for giving effect to the treaty to authorize proceedings for the extradition of certain persons charged with an act of piracy in seizing the said steamer Chesapeake on the high seas, and the killing of a man belonging to her; and afterwards a warrant was issued by the mayor of the city of Halifax for the arrest of these three persons or some of them, on certain affidavits, of which copies [Page 550] marked A, B, C, are hereto annexed, as appears by reference to the proceedings in that behalf had before the mayor. That the signature and addition to the jurat of the said three affidavits, “P. C. Hill, mayor and J. P.,” are of the proper handwriting of Philip Carteret Hill, the mayor of the said city, and justice of the peace within the same, with which this deponent is well acquainted.
That the said affidavits were made and the last-mentioned warrant issued thereon, on a charge alleged of piracy and murder on board the said steamer on the high seas, and her capture from the possession of the master under whose control she was sailing, for the purpose of procuring the arrest of the parties accused under the said treaty and act of Parliament, with a view to their extradition. And the said affidavits, being the foundation for the said warrant, cannot be procured to annex hereto, but remain with the said mayor in the proceedings had or which may be had before him thereon, and the deponent saith that he has carefully collated and compared the paper writings hereto annexed, marked A, B, and C, with the said original affidavits, and that the said paper writings respectively are true and correct copies of the said original affidavits.
And further, the deponent saith, that from reports received from and investigations made by officers of the revenue, under the authority and direction of the provincial government, it has been ascertained that the said steamer Chesapeake, after her capture, was brought to Nova Scotia by her captors, and was taken into the ports of Shelburne and La Have, where quantities of her cargo laden at New York were landed, a portion at La Have, under permit of a custom-house officer, acting without due consideration or authority, and the remainder secretly, and without the pretence of authority, and in violation of the revenue laws of this province. That of the former, property of considerable value has been arrested in Halifax, and is now in charge of the provincial government. The two officers of the provincial customs were sent from Halifax to discover and secure as much of the cargo of the Chesapeake as possible, by whom a small portion was recovered, which is also under the charge of the provincial authorities. That a considerable portion of the cargo, it is understood, remains on board.
And the deponent saith that the said steamship Chesapeake, and portions of her cargo, are now held by the provincial authorities, subject to all such rights and responsibilities as legally attach thereto, and to such judicial decision thereon as may be lawfully made in the premises.
J. W. JOHNSTON.
Sworn before me this sixth day of January, A. D. 1864,
A.
Halifax.
The deposition of James Johnston:
I was chief engineer on board the steamship Chesapeake, bound from New York to Portland. There were twenty passengers on board. At half past one o’clock on the morning of the 7th December, being off Cape Cod, had just gone off watch, I was waked up by report of pistols and some person screaming; I went on deck, found the first assistant engineer dead. I raised him up and asked what was the matter; got no reply and went below, where I was shot in the chin by a passenger named Brooks; I heard Brooks tell a man when we were in La Have river that he had fired five or six shots and had killed the first assistant engineer. After I had got the shot in the chin I went across the engine-room and found the mate there; I asked him what was going on; he told me that he [Page 551] was shot in two places; I saw the wounds afterwards. Mr. Braine, commonly called J. C. Braine, Lieutenant Parr, David Collins, —— Brooks, Isaac Tredwell, two brothers by the name of Moore, two brothers by the name of Cox, —— Kenny, George Wade, George Sayers, —— Seeley, William Harris, took charge of the ship and put the captain in irons, and told us we were all prisoners to the confederate flag, and hoisted the confederate flag in Shelburne. They compelled me to stay with them, being the engineer. Part of the cargo was sold in different ports on the shore. Never saw any commission to Braine, or uniform on any of the men. The persons above named wore pistols, and guarded me while on my watch; they ail were concerned in the cpture of the ship.
JAMES JOHNSTON.
Sworn to, at Halifax, this 18th day of December, A. D., 1863, before me,
B.
And this deponent, George G. Ames, being duly sworn, saith: I belong to Maine. I was cabin-boy on board the steamer Chesapeake. She started from New York for Portland at 3 o’clock on Saturday afternoon. On the following Monday, about half past 1 o’clock, I was sleeping in the back part of the ship on a lounge with the cook, and was awoke by a scuffling on deck. I asked the cook what the trouble was; he said they were taking in sail; next I heard the report of pistols on deck, and groans. I rushed to the companion, and was told to surrender to the southern confederacy, by the men who guarded it. I then went back behind the companion-way; the guard told me if I would be peaceful I should be landed with the passengers and crew, and treated well. Soon after, Lieutenant Parr came down; I asked him what the matter was; he said we were prisoners to the Confederate States. I asked him who was killed; he told me the second engineer was dead and overboard. None of the persons were in uniform. We ran down to Grand Manan, remained there about four hours. Braine ordered the boat down, and went ashore; came on board shortly after and ordered the ship under way about 5 o’clock in the afternoon. About ten miles from St. John we were put on board the pilot-boat and taken to St. John. I could identify the whole of them, but did not know their names; they compelled three firemen and two engineers to remain on board when the rest of the passengers and crew were put on board the pilot-boat.
GEORGE G. AMES.
Sworn to, at Halifax, this 18th day of December, A. D. 1863, before me,
C.
And this deponent, Mary V. Burgoyne, of Jersey City, in the State of New Jersey, on her oath saith as follows: I was stewardess on board the steamer Chesapeake. There were twenty passengers on board, all men. On Monday morning, December 7, at half past 1 o’clock, I heard some person come into the cabin. I looked out, saw the mate, Charles Johnston, going into the pantry; while he was there I heard the noise of a pistol in the engine-room; saw the state-room from the pantry to the engine-room. I shut my door, and afterwards [Page 552] heard a great number of pistol shots; some one knocked at my door; it was the cook; he asked me if I was frightened; I said no; I asked if all hands were killed; he said no, but that we were prisoners to the confederates, and while we behaved well nothing would happen to us. About 2 o’clock Captain Willett, the master of the Chesapeake, came to my room and knocked; he was in irons; he told me not to be frightened; that he had begged them to let me be; the chief engineer came next and told me the same thing; Parr, one of the leaders of the rebels, came with him, and also told me so, that he would land us at the first place he came to. Next day at 5 o’clock we were sent on shore in a pilot-boat to St. John, except the chief and third engineers, and three firemen, who were kept on board. Four of the passengers were put on board the pilot-boat, and the remainder, sixteen, stayed on board the Chesapeake; their names were Henry C. Braine, otherwise J. C. Braine, Henry A. Parr, George Brooks, George Sayers, otherwise George Robinson, George Moore, Robert Carr, Robert Cox, Gilbert Cox, James Kinney, James Wilson, otherwise George Wade, Robert Moore, ——— Collins, ——— Seely, William Harris, and ———Osburne, who piloted the ship from Cape Cod to Grand Manan. These were the sixteen that remained on board when we left; they were all concerned in the capture of the steamer; none of them wore uniforms, and I saw no flag at any time; they were all armed; three of a guard in the cabin at night, and one in daytime.
MARY V. BURGOYNE.
Sworn to, at Halifax, this 18th day of December, A. D. 1863, before me,
Province of Nova Scotia.
In the Vice-Admiralty Court of Halifax:
Appeared personally William Henry, of Halifax, in the county of Halifax and province of Nova Scotia, engineer, and Alexander Henry, of Halifax, in the said county and province, engineer, and each of them being duly sworn to depose the truth, did each for himself severally make oath and say: That they are brothers, natives of that part of Great Britain called Scotland, and natural-born subjects of the kingdom of Great Britain, and each for himself says that he has never been naturalized in or come under the allegiance of the United States of America, or any other foreign kingdom. That they left Scotland together about eleven years ago, and went to the United States, but they have been principally in the British North American provinces, where they have worked at their business of engineers, on shore or on board of steamers, and have lately resided at Halifax, in Nova Scotia. That on Wednesday, the 16th day of December last, they were requested by a person with whom they were unacquainted, to engage on board a steamer represented to be then in Sambro harbor, about sixteen miles from Halifax, as engineers, and being out of employment, these deponents entertained the proposal so far as to settle on the amount of their wages, and agree to visit and inspect the vessel, upon the understanding that if satisfied with her they would enter into written articles there, and if not satisfied would return to Halifax. That upon this understanding, these deponents left Halifax on board the schooner Investigator, laden with coals for the said steamer, about 11 o’clock on that Wednesday night, and reached Sambro about half past 3 o’clock on the next morning, being Thursday, the 17th day of December last, when the schooner went alongside a steamer which was lying at anchor a little inside of the mouth of Mud creek, within Sambro harbor, and within the county of Halifax, in the province of Nova Scotia. That these deponents understood the said steamer to be the vessel called the Chesapeake, [Page 553] that had been captured a short time before off the American coast That a person was on board who was called the captain, and appeared to be in charge of the steamer, and to have command of his crew, and these deponents heard him give instructions for putting the coal from the schooner into the steamer. That the deponents soon after turned into berths in a state-room in the steamer’s cabin, and went to sleep; and the deponent William Henry says, that between 7 and 8 o’clock next morning, on the same 17th day of December, he was aroused by a person calling and saying that a gunboat was approaching, whereon the said deponent William Henry went on deck, and perceived a steamer about three miles off, and within Sambro Light-house island, approaching in a direct course towards the Chesapeake; that the said deponent found great confusion to prevail on the deck of the Chesapeake, where the men were employed in clearing a boat and other preparations for leaving the vessel, with several shore boats alongside. The captain in command of the Chesapeake was on deck, and ordered the said deponent on his coming up to get up steam, who, in obedience to that command, went below into the fire-room, and then shut the furnace doors, the fires being on, but damped, and after being below about five minutes the said deponent came on deck, when he observed the approaching steamer coming up the harbor, still steering toward and then within about two miles from the Chesapeake. That on coming on deck on this second occasion, the said deponent found that the captain and all the crew had left the Chesapeake, and were then in boats proceeding toward the shore, where they all landed and disappeared, and the schooner Investigator had hauled off and come to an anchor about 400 or 500 yards from the Chesapeake. That the steamer Chesapeake all this time was at anchor about 200 or 300 yards from the shore, with a small cove ahead, further into which the schooner Investigator moved and anchored, as aforesaid; the schooner, when so at anchor, being about 300 or 400 yards from the shore. That after the said deponent came on deck this second time, and after the captain and crew of the Chesapeake had left her, several persons remained on board, who represented themselves to have belonged to the crew of the Chesapeake before and at her capture, one of whom, when the gunboat had neared the Chesapeake to within a short distance, and was still approaching her, and when the captain and crew had left the vessel and made their escape as aforesaid, hoisted the United States flag, the union down, and after it had floated for two or three minutes in that manner hauled it down and rehoisted it with the union up. That the approaching steamer, which proved to be the United States gunboat Ella and Annie, came alongside the Chesapeake, and a number of armed men came from the gunboat on board the Chesapeake, and took possession of her. And this deponent, the said Alexander Henry, says that white he was still in his berth an officer with a drawn sword came into the cabin where he lay, and ordered the deponent to rise and come on deck, which he did. And these deponents say, that while on the deck of the Chesapeake, being questioned by a person they understood to be the captain of the Ella and Annie, they informed him they were British subjects, resident in Halifax, and had only come on board the Chesapeake early that morning for the purpose of engaging as engineers, should they approve the condition of the vessel and her machinery; and the engineer who had belonged to the Chesapeake before her capture informed the said captain of the Ella and Annie that these deponents had only come on board that morning, and were not connected with those who had been concerned in the capture of the Chesapeake. Nevertheless, these deponents were ordered by an officer of the said gunboat to go on board of her, which they were compelled to do, and where they were immediately heavily ironed, both on the wrists and ankles; and soon afterwards a man was put with them, and also placed in irons, who they understood from persons on board the gunboat had been taken from on board the schooner Investigator, in the said harbor.
That while the said two steamers lay together ia Mud creek, as aforesaid, [Page 554] coals were shipped from on board the gunboat into the Chesapeake; and in three or four hours after the gunboat had taken possession of the Chesapeake the two steamers were got under way, and these deponents were informed by some of the crew of the gunboat that they were bound for Boston, and at a later period that the course had been changed for Halifax, by order of another United States man-of-war they had fallen in with. That these deponents, together with the said other prisoner, who they understood was called Wade, were kept on board the said gunboat Ella and Annie in close confinement, and heavily ironed on the arms and legs, for over fifty hours; and on Saturday, the 19th day of December last, they and the said Wade, all being handcuffed, were brought up and put into a boat under charge of an officer and part of the crew of the Ella and Annie, and were taken to the Queen’s wharf, at Halifax, where by the said officer they were delivered to the sheriff of the county of Halifax, by whose direction the said officer caused their handcuffs to be taken off, and the sheriff thereupon declared them to be free. And these deponents say that their clothing, contained in a large trunk and canvas bag, was on board the schooner Investigator when the Chesapeake was taken possession of by the gunboat. That they were informed by the said Wade that a number of trunks and other property had been taken by the men of the gunboat from the schooner, and brought on board the gunboat, among which, from the description he gave, were the clothes of these deponents. That these deponents applied to Mr. Gunnison, the United States acting vice-consul for the restitution of their clothes, on Saturday, the 19th day of December last, who, in the presence of their counsel, John W. Ritchie, esq., promised they should be delivered to them, and stated that the Ella and Annie would not leave Halifax before Monday. That the said vessel left on the Saturday night, and on Monday, on applying to Mr. Gunnison for their clothes, he denied that he had promised to get them, and the deponents have lost their said clothes, to the value of one hundred dollars.
WILLIAM HENRY.
ALEXANDER HENRY, his + mark.
Sworn before me (the same having been read over to the deponent) this fourth day of January, A. D. 1864,
Province of Nova Scotia,
In the Vice-Admiralty Court of Halifax.
Appeared personally John E. Holt, of Halifax, in the province of Nova Scotia, master mariner, and being duly sworn to depose the truth, did make oath and say that he is a native of the province of Nova Scotia, and a natural born subject of Great Britain, and has never been naturalized or acknowledged allegiance to any other state. And he says that, being the owner and master of the schooner Investigator, of twenty-five tons burden, he was engaged to take a load of coal to a steamer lying at Sambro; and on Wednesday, the 16th day of December last, at about eleven o’clock, he left Halifax in the said schooner with a load of coal, and reached Sambro at three o’clock on Thursday morning. That a steamer was then lying in the mouth or entrance of Mud cove, a harbor inside of Sambro headlands, and about two or three hundred yards from the shore, and in a situation where she was conspicuous to vessels passing into or out of the harbor of Halifax.
That the deponent placed his schooner alongside of the steamer, and [Page 555] commenced transhipping the coal, as he had been directed to do at Halifax, being assisted by the crew of the steamer. That about seven o’clock on the morning of the last-mentioned day, the deponent saw a steamer off Sambro steering westwardly, but which as soon as she had opened the harbor bore up north, and stood right in and toward the first-mentioned steamer and the deponent’s schooner. That the crew of the steamer alongside of which the deponent’s vessel was lying, and which the deponent understood to be the Chesapeake, when it became apparent that the steamer outside was bearing toward them, made their escape to the shore, having put a number of chests, a quantity of loose clothing, and other articles on board the schooner, and the deponent hauled his schooner off, and proceeded about four hundred yards further into the harbor and came to anchor. That there remained on board the Chesapeake several men whom deponent understood had belonged to her original crew before her capture off the American coast, of which deponent had heard. That after the deponent had hauled off from the Chesapeake about a quarter of an hour one of the men on board hoisted the United States flag upside down, the approaching steamer being about four hundred yards distant from the Chesapeake, and bearing towards her; in a few minutes the flag on board the Chesapeake was hauled down and hoisted with the Union up, by which time the approaching steamer, which proved to be the United States gunboat Ella and Annie, was close to the Chesapeake, and which vessel she immediately afterwards boarded.
That about an hour afterwards a boat with seven armed men came on board the deponent’s schooner. That the officer in command having ordered his men to open the hatches, the deponent demanded his authority, when the officer placed his hand upon his pistol and said, “This is my authority,” and, at the same time, three of the men presented their pistols at the deponent. That some of the boarding party remained on deck with pistols in their hands, while others went below; they ransacked the schooner throughout, and took away a large number of trunks, bags, and loose clothes, and any articles they could find that they supposed belonged to the men who had been on board the Chesapeake, including the chest and bag of two men named Henry, who had gone down in the schooner from Halifax. That they also made prisoner of and carried away a man, whose name deponent afterwards understood was Wade, who came on board the schooner from the Chesapeake when the gunboat was approaching. That this deponent remonstrated with the officer in command of the boat’s crew against the outrages committed on board his vessel, who replied that deponent had better be quiet or he would make a prisoner of him and take him to Boston, where he, deponent, would make a good witness.
JOHN E. HOLT.
Sworn before me, this fourth day of January, A. D. 1864,
Province of Nova Scotia, In the Vice-Admiralty Court of Halifax.
Halifax, ss:
Appeared personally Patrick Conners, of New York, in the United States of America, fireman, and being duly sworn to depose the truth, did make oath and say: That in the afternoon of Saturday, the 5th day of December last, he sailed in the capacity of fireman on board the steamship Chesapeake, from New York, bound to Portland, in the State of Maine, in the United States, with passengers and freight on board. That the said steamer had been and was [Page 556] then employed as a regular packet, for the conveyance of freight and passengers between New York and Portland. That while on the said voyage, and off Cape Cod, at about two o’clock in the morning of Monday, the 7th day of December last, this deponent being on duty in the fire-room, four men armed with pistols rushed into the fire-room and seized the deponent, and put him in irons, having first fired a pistol close to him. That the second engineer, named Shaffer, having come into the fire-room, and inquired the cause of the disturbance, one of the men fired a pistol at or near him, upon which the said Shaffer raised his hands to his face and ran out of the fire-room calling for the captain. That this deponent remained in the fire-room in irons for about one hour and a half, during which time three of the four said armed men continued to move between the fire-room and engine-room. That the fires having got low, the deponent was released from irons and ordered by the said party to attend to the fires, and one of them stood over him with a pistol to see that he did so, and from that time until the Chesapeake was brought from Sambro to Halifax, he, the deponent, two other firemen, the assistant engineer and the chief engineer, belonging to the said vessel when she left New York were compelled to attend to the fires and engines under a guard of armed men. That from the time when the party of armed men seized the deponent and put him in irons in the fire-room, as before mentioned, the said vessel continued under the control and direction of the said party, and those who acted with them from that time, until taken possession of at Sambro by the United States gunboat Ella and Annie, on Thursday, the 17th day of December last.
That after the capture of the Chesapeake, as before mentioned, a number of passengers who had left New York in her, her captain and all her crew, except the five persons above mentioned, were sent on shore at New Brunswick. That the deponent and the rest of the said five persons were desirous and demanded to leave the Chesapeake at the same time, but were forcibly detained on board by the persons in whose charge she then was, and that a person came on board about that time who assumed the command of the vessel, and of the party by whom she had been captured. That the said steamer Chesapeake was afterwards taken into Shelburne in Nova Scotia, where she remained over the night, and during that night a quantity of goods, part of her cargo from New York, were taken out of the vessel and carried on shore, as this deponent is fully assured from the movements he heard on board the vessel, and the conversation of the crew. That from Shelburne the steamer was taken into La Have, where she remained over two nights, and where also was taken out of her and carried on shore a quantity of her cargo, as this deponent is perfectly assured, by the means aforesaid. That part of these goods were taken out while the vessel lay up the river of La Have, nearly abreast of a large church, and she afterwards dropped down the river and lay all night at or near the mouth of the river, and during that night a vessel came alongside, into which goods from the Chesapeake were put, and a vessel had also been alongside of her for the same purpose at Shelburne.
That while at Sambro, the deponent was informed by the chief engineer that he and the four other men, including this deponent, who had belonged to the Chesapeake when she left New York, were to be put on shore at Sambro, in consequence of two engineers having been engaged at Halifax, and two firemen, and in consequence this deponent and his said comrades prepared their chests for leaving the vessel; but before the arrangement could be carried into effect, the United States gunboat Ella and Annie came in sight, and when it was seen that she was bearing down towards the Chesapeake, the crew of that vessel made their escape on shore, leaving on board the five men of her original crew, and two engineers who had come from Halifax. That after the officers and crew who had command and charge of the Chesapeake had left the vessel, and while the gunboat was rapidly approaching the Chesapeake, the chief [Page 557] engineer hoisted the United States flag with the union down, and when she had got nearly alongside, rehoisted it with the union up.
That the Ella and Annie put a crew and pilot on board the Chesapeake, and the two vessels got under way and left Sambro together, on the said 17th day of December. That the deponent was aware that the Ella and Annie, some time after she had been under way from Sambro, was spoken by another vessel, which he learnt to be the United States man-of-war Dacotah, but what passed he could not hear, and cannot say. And the deponent saith that when the said steamer Chesapeake was under way leaving Shelburne, the deponent, while passing from the forcastle to the fire-room, saw the confederate flag flying at the main peak.
PATRICK CONNERS.
Sworn before me, this 6th day of January, A. D. 1864,