Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume II

[89] *Part VII. The Georgia and Shenandoah.

[undated.]

Passing to the cases of the Georgia and Shenandoah, the tribunal has next to deal with two vessels, as to both of which it is not only clear that the British government had not, before they respectively departed from its jurisdiction, any reasonable ground to believe that they were intended to cruise or carry on war against the United States, but it is also clear that they were not within its jurisdiction armed, fitted out, or equipped or specially adapted, either wholly or in part, to warlike use. Part VII.— The Georgia and Shenandoah.

the georgia.

The Georgia. The Georgia, as the arbitrators are aware, was a vessel built at Dumbarton, in Scotland, and sent to sea from the port of Greenock in April, 1863. She had undergone, when completed, the customary surveys by the proper officer of the port of Glasgow, and is described by him as appearing to be intended for commercial purposes. Her frame-work and platings were of the ordinary sizes for vessels of her class. The tide-surveyor at Greenock, in like manner, “saw nothing on board which could lead him to suspect that she was intended for war purposes.” The collector at Greenock adds, from his own observation, that she “was not heavily sparred: indeed, she could not spread more canvas than an ordinary merchant-ship.”¹ In short, she was built, fitted up, and rigged as a ship of commerce, and not as a ship of war. Indeed, when the endeavor was afterward made to employ her as a cruiser, she was found upon trial to be not adapted for this purpose, and she was for that reason dismantled and sold before the end of the war, after having been at sea altogether about nine months. She was registered under the name of the Japan, in the name of a Liverpool merchant, and was entered outward, and cleared in the customary way, for a port of destination in the East Indies. She was advertised at the Sailors’ Home in Liverpool as about to sail for Singapore; and her crew were hired for a voyage to Singapore or some intermediate port, and for a period of two years. The men, when they were hired, believed this to be the true destination of the ship, and her voyage to be a commercial one; and they appear to have continued under this belief until after the vessel had arrived off the coast of France. The number of her crew appears, from depositions furnished on the part of the United States, to have been about fifty. In the Case of the United States a description of the ship is given, without referring to the evidence on which it is founded. She is described, in one of the depositions obtained and produced by Mr. Adams, as “an iron vessel, very slightly built.”² There is no reason whatever to believe that when she sailed from Greenock she had a magazine, or that her cabins or interior fittings were of any unusual strength. She had on board joiners who were fitting up her cabins when she left her anchorage. She was, therefore, when she left this country, a ship to which the first three rules mentioned in the sixth article of the treaty would not apply; nor was she a ship with which Her Majesty’s government were under any obligation to interfere, according to any known rule or principle of international law.¹

[90] The assertion is repeated in this case that the service for which the vessel was constructed was “notorious.”² In proof of this the arbitrators are furnished with two anonymous letters published in an English newspaper in February, 1863, one of which contained no reference whatever to this or any vessel building or supposed to be building for the Confederate States, while the other declared that upwards of fifty were being built for the government of those States, and mentioned a “fine screw-steamer,” lying in the Clyde and called the Virginia, as reported to be partly owned by the confederates and *partly by individuals at Nassau; adding, “It is publicly announced that she is soon to be employed on the line between Nassau and Charleston.” An anonymous letter, mentioning a report that a particular vessel was destined for a blockade-runner, and was partly owned by the confederate government and partly by private individuals at Nassau, is thus adduced as proof that it was notorious that the same vessel was intended for a confederate cruiser. “Her destination,” it is added, “rendered it certain” that she was to carry on war against the United States. Her destination, as we have seen, was Singapore.

In this case again, as in others, the inquiry arises why no information of an enterprise described as having been so “notorious,” and of such serious consequences to the United States, was furnished to Her Majesty’s government or to the local authorities by the United States consul on the spot, or by Mr. Adams. The latter, it subsequently appeared, had “long been in possession of information about the construction and outfit” of the ship; but nothing had ever been furnished to him of a nature to take proceedings upon.” At all events he remained perfectly silent till nearly a week after the vessel had sailed; and the arbitrators are now asked to decide that because the British government did not take, with respect to a vessel about which it was in entire ignorance, proceedings which Mr. Adams himself knew of no facts to support, Great Britain is guilty of a failure of international duty, and responsible for the consequences of it to the United States.

It is next made a matter of complaint that, when informed that the Georgia had sailed, the government did not send a ship of war in pursuit of her. “The sailing and destination of the Japan,” it is said, “were so notorious as to be the subject of newspaper comment. No time, therefore, was required for that investigation. It could have been very little trouble to a certain the facts as to the Alar,” (the merchant-vessel which carried out for her arms, officers, and men.) “The answer to a telegram could have been obtained in a few minutes. Men-of-war might have been dispatched on the 8th from Portsmouth and Plymouth to seize these violaters of British sovereignty.” “This was not done.” The sole evidence produced in proof that the sailing and destination of the Japan were notorious on the 8th of April is an extract from a Liverpool paper published on the 9th, which mentioned a report that the vessel was intended for the confederate service, and had sailed ‘“for unknown destinations.”

[91] If recourse had been had to the navy, “it is probable,” the arbitrators are told, “that the complaints of the United States might not have been necessary.”¹ They might have not been necessary if Mr. Adams had communicated in good time such information as he possessed, instead of keeping it undisclosed until six days after the sailing of the Georgia, and more than three days after the departure of the Alar, and if that information had tended to prove an actual or contemplated violation of the law. As it was, the intelligence of the departure of the Georgia, and the assertion (a bare assertion unsupported by any proof at all) that she was intended for the confederate service, were first communicated to the government on the 8th, coupled with the statement that “her immediate destination is Alderney, where she may be at this moment.”² That the Alar had sailed from Kewhaven tor Alderney and Saint Malo was at this time known to the board of customs, though not known at the foreign office. “No investigation,” the case proceeds, “was necessary.” Mr. Adams’s information ought to have been at once assumed to be right—though it was very frequently wrong, and indeed was materially erroneous in the present instance. The cargo and destination of the Alar might have been ascertained “by telegraph in a few minutes.” Months had been insufficient, apparently, to enable Mr. Adams to acquaint himself with facts “of a nature to base proceedings oh;” Her Majesty’s government is to be allowed only “a few minutes.” The Alar, assumed to be putting to sea on a secret and illicit errand, would naturally, it appears to be supposed, leave the particulars of her cargo and true destination in the possession of the revenue officers at Newhaven. A vessel of war dispatched from Portsmouth or Plymouth on the 8th to Alderney (the place designated by Mr. Adams) would, it is further assumed, have been able to find the Georgia at Ushant which is not less than 150 miles off and in a very different direction, and to find her before she left that coast on the 9th or 10th. Her Majesty’s government must be permitted to observe that a celerity and activity of movement are by this hypothesis attributed to Her Majesty’s ships which would be nothing less than extraordinary. But it seems, besides, to be forgotten that Ushant and its territorial waters are not within the dominions of Her Majesty. They are close to the coast of France, and within the dominions of that power; and, even if it had been the duty of the British Government to institute a pursuit on the high seas of vessels not shown to have committed any offense either against British law or against the law of nations, a seizure of them in French waters would have been as plain a violation of the sovereignty of France, as that of the Chesapeake in December, 1863, *within the waters of Nova Scotia, by a United States cruiser, was a violation of the sovereignty of Great Britain. That an error had been committed in the latter case was acknowleged by the United States; the British government would certainly decline in a like case to commit a similar error.

But the arbitrators are already aware that the British authorities did the very thing which they were accused of not having done. Earl Russell did not order inquiries only; he did order action, A ship of war was in fact sent to Alderney, not indeed from Portsmouth or Plymouth, but from Guernsey, to prevent any attempt which might be made to violate the foreign-enlistment act within British waters, only, however to find that Mr. Adam’s information as to the immediate destination of the suspected vessel had been wrong.

Having delayed till too late giving any information to the British government about this ship, and having then given information which was erroneous, the United States would fain have the arbitrators assume that it was the duty of this government to employ its naval forces in searching for and pursuing her on the high seas, and even in foreign waters. There is no pretense for the suggestion of such a duty. So such duty has been acknowledged by the United States themselves, nor by any other power. Yet it is impossible to deny that the British government did act in this matter with promptitude and alacrity, scanty though the information was, and quite unsupported by proof, and too late, though, it probably was for any effectual measures.

Unable to establish against Great Britain any failure of duty in this respect, the United States attempt to found a claim on the facts that no punishment which appears adequate to the Government of the United States was inflicted on the persons concerned in fitting out the Georgia, and that she continued for some months to be registered as a British-owned ship. It is true that these arguments are evidently advanced with little confidence, but that they should be suggested at all is to Her Majesty’s government a matter of some surprise.

Her Majesty’s government is compelled to ask whether it is seriously contended by the Government of the United States that the Georgia, “though nominally cruising under the insurgent flag and under the direction of an insurgent officer,” was all the time really controlled and owned by a British subject. Is it not, on the contrary, certain that even while Bold’s name remained on the register as that of her nominal owner, the real ownership and control was in the confederate government? Does the Government of the United States seriously contest this? Has it any serious doubt of it? Her Majesty’s government is unable to believe that it has. But even could it be shown that Bold was the actual, instead of being the nominal, owner; that the confederate flag was (as seems to be suggested) merely used to cover the acts of Bold and his agent, the confederate officer; and that the ship was therefore in truth and fact piratical, this would impose no responsibility on the British government. It cannot be maintained on the part of the United States that a government is to be held responsible for acts, whether of war or of piracy, done out of its jurisdiction and beyond its control, on the ground that the vessel by whose instrumentality they were committed was either nominally or really the property of one of its subjects. Certainly there is no power in the world by which this proposition has been more explicitly or resolutely denied.

But this is not all. If the argument be (as it is) untenable on general principles, what are we to think of it when we find that the very ship, which is asserted to have been British all along, was actually captured after she left Liverpool, and when plying as a merchant-ship, on the ground that she was a confederate ship of war, and could not, even by a regular sale in a neutral port, pass into the possession of a British owner and into the British mercantile marine? She is not British when the question is, whether she is to belong to a neutral who has bought and paid for her, or to be seized and appropriated by the United States. She becomes British again (but not, so far as appears, for the benefit of her former British owner) when it is supposed to be possible to found on her alleged British character a claim against Great Britain.

Of the complaint that she was suffered to remain in port for the purpose of being dismantled and sold, it is only necessary to say that, even could this be shown to be (what it clearly was not) an erroneous or improper indulgence on the part of the British authorities, it was not a failure of duty from which any injury arose to the United States; it could not, therefore, be made the foundation of a claim, and is not properly within the scope of the reference to the tribunal.

[92] Her Majesty’s government has never before heard it suggested that a government which forbears to institute prosecutions against all the persons who may have been concerned in fitting out or manning a particular vessel for the naval service of a belligerent, or may themselves have served on board of her, becomes, on that account, *responsible for the losses which she may have been instrumental in inflicting on the other belligerent; and it fails to see how those losses can be attributed to the subsequent forbearance to prosecute. The consequences to which such a principle, if pursued, would lead, cannot be unknown, certainly, to the Government of the United States. It is true, indeed, that when a succession of criminal enterprises, openly undertaken against the peace and security of a friendly country, are suffered to remain unpunished, the encouragement which such impunity holds out to subsequent enterprises of a like kind is a proper subject of grave remonstrance, and may, if remonstrance be unheeded, justify the injured nation in resorting to measures of self-redress. But Her Majesty’s government has always been cautious in the exercise of this right of remonstrance, being aware that it is often difficult to obtain a conviction for offenses of this class, and that the difficulty may be even enhanced by any attempted severity of punishment; and being sensible also that such questions must, in general, be left, in every country, to the independent action of the executive and judiciary authorities, without external interference.

In the case of the Georgia, prosecutions were in fact instituted against the only persons against whom there appeared to be any reasonable prospect of substantiating a charge and obtaining a conviction. As to the sentence pronounced, that is generally a matter over which the government has no control. The law leaves it, within certain limits, to the discretion of the judges, over whom the government has no power. It is not alleged by the United States that a penalty inflicted by a judge was, in any case, remitted by an act of the executive. There often may be, and in this case there were, good reasons, in the interest of the law, for resting satisfied with a moderate sentence, rather than raise difficult and inconvenient questions as to the construction of an act of Parliament.

Before proceeding to the case of the Shenandoah, it is right to recall the fact that, during the year 1863, the attention of Her Majesty’s government was directed to many vessels building or fitting out in British ports, and suspected of being intended for the naval service of the Confederate States. An account of all these has been laid before the arbitrators in the British Case.¹ It has been seen that, of twelve suspected vessels, four were seized and effectually prevented from being applied to their contemplated purpose; while in the eight remaining cases no reasonable grounds of suspicion were found on examination to exist, which would have justified the government in interfering, and none of them were, in fact, ever armed or used for purposes of war. It has been seen that, in every instance, directions were given, without the least delay, for investigation and inquiry on the spot by the proper officers of government; that, in some cases, these inquiries were ordered and made before the receipt of any representation from Mr. Adams and that in every case, without exception, either the information furnished proved to be erroneous, and the supposed indicia of an unlawful intention absent or deceptive, or this intention was defeated or abandoned by reason of the measures taken and the vigilance exercised by Her Majesty’s government.

Far, therefore, from favoring a presumption of remissness or negligence on the part of this government, the facts clearly establish a directly contrary presumption.

the shenandoah.

This vessel, as has been seen from the statement already placed before the tribunal, had been designed solely for a merchant-steamer.¹ She was built at Glasgow to the order of a London firm, with the intention that she should be employed in the China trade. It is a matter of first importance in that trade to secure the earliest arrivals of tea; and the object of the firm in question was to have a vessel which, by the use of steam power, would be able to bring h me the new teas faster than the quick sailing-vessels employed at that time for the purpose.² The Sea King, as she was then called, started on her first voyage to the China Seas toward the end of 1863; and, in order to make profit on her passage out, her owners contracted with the government to take troops to New Zealand. From thence she proceeded to China, and returned with a cargo of tea in the ordinary course of trade. Before starting she had been provided with two smooth-bore twelve-pounder guns, such as are usually carried by ships trading in the China seas, to be used as signal-guns, and for other purposes common to merchant-vessels.³ In September, 1864, after her return to England, she was sold by her owners, Messrs. Robertson, to a Mr. Wright, a merchant of Liverpool, through the agency of regular ship-brokers in that town; and, on the 8th October following, she again left London on a voyage which, to all appearances, was precisely similar to her former one, excepting that, on this occasion, instead of taking out troops to New Zealand, her port of first destination was Bombay. The Shenandoah.

[93] *It appears, from documents now produced by the United States for the first time, that Mr. Dudley, the United States consul at Liverpool, had noticed this vessel when on a visit to Glasgow, where she was built in October, 1863, and that he had at that time written to his Government, describing her as “a very likely steamer for the confederates,” to whom he heard that she was going to be sold. Mr. Dudley’s information, as not infrequently happened, proved to be incorrect;, and all suspicions were set at rest by the discovery that the Sea King was taking out troops to New Zealand.⁴ Nor does his statement that she was “well adapted for war purposes” seem to have been more accurate. Her appearance, even after her conversion into a confederate cruiser, is stated to have been that of an ordinary merchant-vessel, and her own officers doubted whether it would have been safe to fire a broadside with the guns which were then placed on board of her.⁵ It is therefore clear that this vessel also, when she left this country, was not a ship to which the first of the three rules in the sixth article of the treaty would have applied, nor a ship with which Her Majesty’s government were under any obligation to interfere, according to any rule or principle of international law.

It is not pretended that the attention of the British government was in any way called to the Sea King, even at the time when the suspicions of the United States consular authorities were thus roused in regard to her. From that time up to her second departure from England, in October, 1864, the vessel seems to have been entirely lost sight of. Ten days after that second departure Mr. Dudley discovered and reported to the United States legation in London the fact that Mr. Wright, the purchaser of the Sea King, was the father-in-law of Mr. Prioleau, a member of the firm of Eraser, Trenholm & Co.¹ It is now contended, in the Case of the United States, that this circumstance in the family history of the firm should have been known beforehand to the British government, whose duty it was to exercise a special supervision over any transfer of shipping made to or by this gentleman, and that the fact of his having acquired a vessel built for the China trade, and sent her out to Bombay with what it subsequently appeared was an ordinary cargo for such a voyage,² should “at once have attracted the attention of the British officials.” “The omission to take notice of this fact,” it is said, “is a proof of want of the due diligence required by the treaty.”³ It was a failure of due diligence—nay, even of “the most ordinary diligence”—on the part of Her Majesty’s government, that it forbore to pry into the family circumstances of Prioleau, acquaint itself with the name of his father-in-law—and, it may be presumed, with his other connections—and prevent, by some unexplained process, such persons from buying steamers in the London market. What exact “notice” the officials should have taken, or what they should have done to follow up “so palpable a clew,” the United States have omitted, or perhaps have not found it easy to state. It is difficult to suppose that it can be seriously argued that such a system of espionage is among the duties which can properly be expected of a neutral government, or that such a government can fairly be charged with negligence in having failed to discover grounds for action, when the parties most directly interested, with equal access to information, had not even seen cause for suspicion. But Her Majesty’s government thinks it right to direct the attention of the tribunal to this illustration of the view of international duty on which the claims of the United States are founded, and of the “due diligence,” the “wakefulness and watchfulness” which, according to that view, are to be exacted from all neutral nations, under the penalty of being exposed to such demands as are now made against Great Britain.

The best proof of the apparently innocent nature of the voyage is the circumstances that the persons most likely to notice anything out of the ordinary course, namely, the crew of the vessel herself, were quite unsuspicious of the real intentions of the owner; and that when it became known to them, on their arrival off Madeira, that the vessel was to be turned into a confederate cruiser, forty-two out of forty-seven of them refused every inducement in the shape of money and promises held out to them to serve in her, and insisted on being sent back to England.

[94] On the day following the departure of the Sea King from the port of London, another steamer, the Laurel, left Liverpool ostensibly for Matamoras via Nassau. The United States consul at Liverpool reported to his Government that she had taken on board cases marked as machinery, but, in reality, as he believed, containing guns and gun-carriages; *that she had shipped many more seamen than were necessary for a vessel of her description; that he heard that some confederate officers were also to go out in her; and that he had his suspicions that she would prove to be a privateer; but he added, “I have no evidence against her.”¹ He could obtain no evidence; but this does not prevent the introduction into the Case of the United States of the assertion that the British government could, by the exercise of due diligence, have detained her—without evidence, it must be presumed, and without any charge of an offense known to the law. Neither Mr. Dudley nor the United States legation in London gave any notice on the subject to the British authorities, and the attention of the government was first called to the proceedings of the two vessels by a report received on the 12th of November from the British consul at Teneriffe.

The meeting of the Laurel and the Sea King off the Madeira Islands, and the transfer of the latter vessel to the confederate flag under the name of the Shenandoah, after receiving her armament and crew from the Laurel, have already been stated in detail by Her Majesty’s government in the Case presented by it to the tribunal, and need not be here repeated. For the same reason, no further account need be given of the investigations which were made by the British consul at Teneriffe on the arrival of Captain Corbett and the late crew of the Sea King at that island, on board the Laurel, and which led to his sending the captain to England under arrest for breach of the foreign-enlistment act; nor of the steps which were thereupon at once taken by the government to bring the offender to justice. Her Majesty’s government maintains that all that was in its power and could fairly be expected of it was done to vindicate the neutrality of Great Britain on this occasion.

The Shenandoah proceeded from Madeira, and, after a cruise of about three months, anchored in Hobson’s Bay, the port of Melbourne, on the evening of the 25th of January, 1865. She was the first vessel of war belonging to either of the contending parties which had appeared in Australian waters since the commencement of the civil war.² The circumstances of her visit and the conduct of her commander, Lieutenant Waddell, during her stay, placed the colonial authorities in a position of no little difficulty and perplexity, in which they seem to have acted with great discretion and vigor, though their conduct has not escaped much invidious comment in the Case of the United States. It may be convenient to the arbitrators that the facts should be here restated in the form of a connected narrative.

Lieutenant Waddell, immediately on his arrival, sent a letter to the governor stating that the machinery of the Shenandoah required repairs, and that he was in want of coal, and requesting permission for repairs and supplies to enable him to get to sea as quickly as possible.² This note was received about half past 8 o’clock in the evening of the 25th of January; and the messenger was informed that it should receive early attention, and be replied to in the course of the following day. The governor accordingly summoned the executive council on the 26th, and communicated to them the application he had received; and, upon their advice, a letter was addressed to Lieutenant Waddell, granting the permission desired, and requesting information as to the nature and extent of the repairs and supplies required, in order that the governor might be enabled to judge of the time necessary for the Shenandoah to remain in the port of Melbourne. Extracts of orders issued by Her Majesty’s government for the proper preservation of neutrality were at the same time forwarded for Lieutenant Waddell’s guidance.¹

[95] Upon receiving this communication, Lieutenant Waddell applied to Messrs. Langlands, iron-founders, of Melbourne, to examine the vessel and undertake the repairs. He seems further, from a report received by the governor from the officials of the port, to have at once set men to calk the decks and outside of the vessel, which was the only repair that could be executed in her position at the time.² On the 28th January he wrote to apologize for the delay in furnishing the particulars requested of him, and explained that Messrs. Langlands had been pursuing the examination, and had not yet finished their report, although he had impressed upon them the importance of haste. On the 30th January a report of the repairs required was furnished by Messrs. Lang-lands, and forwarded by Lieutenant Waddell to the colonial government. It was to the effect that it would be necessary to place the vessel on the slip.³ On the same day, and before *granting permission for this purpose, the governor appointed a board of three officers, one of whom was the government engineer, to proceed on board the Shenandoah, and report whether she was then in a fit state to go to sea, or what repairs were necessary. This board had the vessel examined by a diver, and reported on the 1st of February that she was not in a fit state to proceed to sea as a steamship; that repairs were necessary, and that the extent of the damage could not be ascertained without the vessel being slipped.⁴ Permission was thereupon granted for placing the vessel upon the slip, which had originally been built by the government, but was at that time in the hands of a private firm.

In reply to a renewed inquiry, Lieutenant Waddell stated the nature of the supplies required by him, which consisted of fresh provisions daily for the crew, and stores of wine, spirits, lime-juice, and clothing.⁵ Of these he received permission to ship such quantities as might reasonably be necessary. An application which he made to be allowed to land some surplus stores was refused, on the advice of the attorney-general, as being inconsistent with the proper observance of neutrality;⁶ and he was afterward informed that, for the same reason, the use of appliances which were the property of the government could not be granted, nor any assistance rendered by it, directly or indirectly, toward effecting the repairs of the Shenandoah.⁷ The governor had also given directions that the officials of the port should furnish him with daily reports of the progress made in repairing and provisioning the vessel, and that every precaution should be taken against her armament being-increased or rendered more effective.⁸

The reports received not showing sufficient progress in the repairs, a letter was addressed to Lieutenant Waddell on the 7th February, desiring him to name a day for proceeding to sea. Lieutenant Waddell explained the delay which had taken place as arising from the recent gales, which had prevented him from lightening the vessel.¹ It will be seen by the reports from the officials of the port that the Shenandoah had broken adrift from her mooring.² The state of the tides further interfered with the process of getting her on the slip, which was at last effected on the 10th February. The board of officers appointed by the governor then again examined the vessel, and reported that the repairs necessary to render her seaworthy could be effected in about five clear working-days.³ On the 14th February Lieutenant Waddell was again requested to state when the Shenandoah would be ready to put to sea, and he replied that she would be ready for launching on the afternoon of the next day; that he had then to take in all his stores and coals, and to swing the ship; and that he hoped to proceed to sea in her by Sunday, the 19th instant.⁴

In the meanwhile the consul of the United States had, since the arrival of the Shenandoah at Melbourne, continued to address protests to the governor, denouncing the vessel as a pirate, and contending that she was not entitled to be considered as a ship of war, and that it was the duty of the government to seize and detain her. These communications, which were accompanied by various affidavits of persons who had been taken off American merchant-vessels captured and destroyed by her, were submitted to the legal advisers of the colonial government. They reported their opinion that there was no evidence of any act of piracy committed by any person on board the ship, and that she purported to be, and should be treated as, a ship of war belonging to a belligerent power.⁵ An answer to this effect was accordingly sent to the consul.⁶

On the 10th February the consul forwarded an affidavit taken before him by a man who had lately been cook on board the ship, which tended to show that men had joined her from the colony, and were at that time concealed on board of her.⁷ The matter was at once placed in the hands of the police; and, evidence having been obtained to identify one of the persons suspected, a warrant was issued for his arrest on the 13th February.⁸

[96] On the evening of the same day a police officer went on board for the purpose of arresting the men; but both on that occasion and on the, following morning he was refused permission to go over the vessel for the purpose, Lieutenant Waddell pledging his word of honor as an officer and a gentleman that he “had not any one on board, had not engaged any one, and would not do so while he was at Melbourne,” and declaring that he would rather fight his ship than allow her to be searched for the man.⁹ The matter was laid by the governor before the executive council on the same day. The *Shenandoah was at this time on the slip, although nearly ready to be launched. A letter was addressed to Lieutenant Waddell calling on him to reconsider his determination, and intimating that, in the meanwhile, the permission to repair and take in supplies were suspended. A proclamation was at the same time issued by the governor forbidding Her Majesty’s subjects to render any aid or assistance

to the Shenandoah, and a body of 100 police and military were ordered down by telegraph to seize the ship. This they proceeded to do the same afternoon. About 10 o’clock in the evening four men were seen to leave the vessel in a boat pulled by two watermen. They were followed and arrested, and one of them proved to be the man against whom the warrant had been issued.¹

Lieutenant Waddell wrote to protest against the course which had been taken. He denied that the execution of the warrant had been refused, as there was no such person as therein specified on board. He added that all strangers had been sent out of the ship; and that, after a thorough search by two commissioned officers, it had been reported to him that no one could be found on board except those who had entered the port as a part of the Shenandoah’s complement of men. “I, therefore,” he wrote, “as commander of this ship, representing my government in British waters, have to inform his excellency that there are no-persons on board this ship except those whose names are on our shipping articles; and that no one has been enlisted in the service of the Confederate States since my arrival at this port, nor have I, in any way, violated the neutrality of the port.”² This letter was laid by the governor before his council on the 15th of February, together with one from the lessee of the slip. The letter stated that, should a gale of wind come on, it would be necessary either to launch the Shenandoah, or to run a great risk of her sustaining serious damage in consequence of her unsafe position, and that the government must take the responsibility of any expenses which might be incurred. As the object in view had been secured by the arrest of the men, it was decided, under these circumstances, to withdraw the previous prohibition, and to allow the launch of the vessel. Lieutenant Waddell was informed that this had been done on the faith of the assurance he had given; but his attention was called to the fact that the four men arrested had been on board his ship, and he was told that he would be expected to use all dispatch, so as to insure his departure by the day named by him, the 19th.³

The Shenandoah was accordingly launched on the evening of the 15th February; she reshipped, from a lighter, the stores which had been discharged before placing her on the slip, and, after taking on board supplies and coal, she left Melbourne at half past 7 o’clock on the morning of the 18th of February, being one day sooner than was expected.

It is right to say that Lieutenant Waddell wrote to deny that the four men arrested had been on board with his knowledge; they had, he said, been ordered out of the vessel by the ship’s police, who had only succeeded in discovering them after the third search.⁴ The officers of the Shenandoah also published, in one of the newspapers, denials of any complicity in the matter on their part.

During the two days which elapsed between the launch of the Shenandoah and her departure from the colony, the most careful vigilance was enjoined on the authorities to prevent any violation of the foreign-enlistment act. A reference, however, to the nature of the harbor, and to the circumstances of the case, will show how difficult it was to take effectual precautions for this purpose. Hobson’s Bay, the harbor of Melbourne, is the inland termination of Port Phillip, a large basin of irregular oval shape, some 60 or 70 miles in circuit, with a narrow entrance to the sea. Such a conformation of coast offered great facilities for sending off men from different parts of the bay, who could be shipped on board the Shenandoah either before or immediately after she had passed this narrow entrance. There was no British vessel of war at or near Melbourne to which the duty of watching or controlling the movements of the vessel could be assigned. The legal advisers of the colonial government, when consulted on the question, had declared that they were not prepared to advise that the execution of a warrant on board of her could properly be enforced at all hazards;¹ and this opinion was afterward confirmed by that of the law-officers of the Crown in England.² All, therefore, that could be done was to enjoin such supervision as could be exercised by the water-police of the port while the Shenandoah was at anchor, and to give orders to the pilot not to allow any boat to come alongside, or any person to come on board, from the time of her weighing anchor till he left her.³ With regard to the first of these two measures it is not difficult to perceive that to keep effectual watch *over a vessel which is shipping coals and stores in a harbor from two to three miles wide at the place where she is anchored, in the midst of some two hundred or more vessels of every kind, must be no easy matter, even if a larger force were employed than oould be available for the purpose on this occasion. With regard to the latter precaution it is evident that everything must depend on the good faith of the pilot, and his ability to carry out his instructions. After the Shenandoah had left Melbourne, it became a matter of public report that some men had joined her before her departure, and the number, which was no doubt much exaggerated, was stated to be as high as fifty or sixty. The inquiries made afterward by the police resulted in the identification of some eighteen or twenty persons altogether, who had left the colony and were believed to be on board of the ship. Of these it appeared that seven had been employed in shipping coals, and they went on board in the night or early morning before her departure, on the pretense of getting paid for their work, but did not return. It further appeared that, about 9 o’clock on the night of the 17th of February, some men had been collected on the railway-pier of Sandridge, a suburb of Melbourne. The pier in question is the terminus of a railway from the town of Melbourne, and there is a communication by a steam-ferry to Williamstown, which is on the opposite side of the bay, about two and one-half miles distant, and where the patent slip and the station of the water-police are situated. The Shenandoah was at anchor in the bay between Williamstown and Sandridge. From the statement of one of the boatmen employed, the men in question must have dispersed into some wooded land a short distance off at the time when the boat of the water-police came round to that part of the harbor, and thus avoided observation. After the boat had rowed off to the opposite side the men seem to have returned in small parties, and gone off from the pier in watermen’s boats, which put them on board the Shenandoah. How many of them were part of the original crew returning to the vessel from the shore, and whether any were new hands, there is nothing to show. The police constable on duty saw the boats after they had started and when they were returning, but had of course no means of investigating this question.⁴ It seems indeed, from the wording of his report, as though the darkness or the distance prevented his seeing whether the boats did or did not actually go to the vessel; all that is stated is that they went in that direction. A man of the name of Bobbins went up to the American consulate, where he arrived about 11 o’clock at night, and stated what was taking place. The American consul sent him back to give information to the water-police at Williamstown, a distance in all about five miles by land and water, where he must have arrived too late for any interference or inquiry.¹

[98] At about 5 o’clock the same afternoon, another man, of the name of Forbes had come to the American consul with a statement that he had seen five men at Sandridge, one of whom had told him that they were going out in a vessel called the Maria Ross, to join the Shenandoah when she got into the open sea beyond the jurisdiction of the port. The consul took the man to the office of the Crown law-officers, which had been closed some time before, but where he met the Crown solicitor, who had accidentally returned. It does not fall within the powers or duties of that officer to take depositions or issue warrants, and he referred the consul to a magistrate as the proper person to go to. The consul then proceeded to the Houses of Parliament, and placed the matter before the attorney-general, who offered to lay the matter before the government if furnished with an affidavit. Instead of complying with this suggestion, the consul applied to the chief of police, who naturally declined to act without a warrant, but suggested, as the Crown solicitor had done, that the consul should apply to a magistrate for the purpose. The consul accordingly went on to a police magistrate in Melbourne. This latter, after examining Forbes, did not feel justified in granting a warrant on such testimony alone, and he advised that application should be made to the water police at Williamstown, who might be able to furnish corroborative evidence. This advice the consul did not think fit to act upon. He returned home, took the man’s deposition himself, and determined to forward it to the attorney-general, to be laid before the government, but he did not do this until the following morning, after both the Shenandoah and the Maria Ross had sailed. It is not true that (as alleged in the case of the United States) “he could get no one to attend to his representations.” On the contrary, they received, according to his own evidence, “patient” attention from the attorney-general, as well as from the magistrate to whom he had recourse, and they advised him what to do;² he did not follow that advice, and he is certainly more justly chargeable with a want of due diligence than those who, though unable to issue the warrant he asked for, did their best to put him in the *right way to obtain it. The Maria Ross was, however, twice searched before leaving the bay, and the mate, who was afterward examined, denied most positively that she had taken any passengers, or that any men were concealed on board of her.³

Such, as far as is known to Her Majesty’s government, is all the information which the authorities of Melbourne were able to obtain as to the alleged shipment of men from the colony on board the Shenandoah. It was furnished, for the most part, to the police by the boatmen who had been employed in putting the men on board, on the understanding that they should not themselves suffer on account of what had been done. Of the four men who had been arrested on the night of the 14th, one claimed to be an American citizen and was discharged; the other three were remanded, and, after a month’s imprisonment, brought to trial. Two of them were then convicted sentenced to farther imprisonment; the third, a boy of seventeen, discharged. The governor, in reporting these facts, announced his intention of refusing the hospitalities of a neutral port to Lieutenant Waddell and the other officers of the Shenandoah, should they revisit the colony.¹ He wrote also to the governors of New Zealand and the other Australian colonies, and to the commander of the British naval forces on the station, to warn them of what had occurred.

Having thus recounted the facts of the visit of the Shenandoah to Melbourne, Her Britannic Majesty’s government proceeds to notice the more important of the complaints made in the case of the United States, respecting the manner in which that vessel and her officers *were received and treated by the authorities. Some of these contradict one another. For instance, at page 426 of the Case, it is imputed as a delinquency that Lieutenant Waddell’s application for permission to repair was not officially answered till after the twenty-four hours allowed by the instructions of January, 1862, for his stay had expired; a statement which is supported by no evidence, and which, from the terms of the United States consul’s report to his own Government, appears highly improbable. It will there be seen that the Shenandoah entered the bay about 8 o’clock p.m. on the 25th of January,² and that the consul received, at 3.30 p mi. on the next day, a communication from the government respecting the prisoners whom Lieutenant Waddell desired to land; this communication having been decided on, and no doubt sent at the same time as the answer to Lieutenant Waddell’s application.³ But almost immediately afterward it is mentioned, apparently as still more reprehensible, that the officer who took Lieutenant Waddell’s letter on shore returned with an affirmative answer the same night.⁴ If it was wrong to delay the official answer, it is difficult to understand what exception could be taken to sending a verbal reply at once; but it will have been seen by the narrative given above, that this second statement is also incorrect, and that the bearer was only informed that the letter would receive early attention.

In the Case of the United States, objection is taken to the permission which was given to Lieutenant Waddell to take on board 250 tons of coal while at Melbourne; and a minute examination is attempted of the nature of the repairs supposed to have been made, with an elaborate estimate of the time in which they might have been completed, if pushed on with rapidity, and if nothing had occurred to delay them. “It is difficult,” the Case says, “under the circumstances, to resist the conclusion that the repairs were dawdled along for the purpose of securing the recruits, and that the authorities, to say the least, shut their eyes while this was going on.” At this distance of time and place; when all the particular circumstances cannot be exactly known, it seems to Her Britannic Majesty’s government that it could scarcely serve any useful purpose to follow all the details of a technical argument which is founded largely on conjecture. What, indeed, could be less reasonable than that the arbitrators should now be asked, in a case of this kind, to set aside the estimates made on the spot and at the time by government officers and experienced professional men, on the strength of a merely conjectural estimate suggested by the United States, which takes no account of local circumstances, and, on no better ground than this, to impute negligence and connivance to the authorities of an important British colony?

[99] The Shenandoah arrived at Melbourne during a period of exceedingly severe weather.¹ She was obliged, according to the showing of the United States themselves, to depend upon her steam power, on account of the inadequacy of her crew. In this manner she *had expended a considerable portion of her original supply of coal, and had worn out the machinery of her screw. She thus came into Melbourne in a partially disabled state, and requested and obtained permission to make good her defects and to replenish her coal. The United States have sought to draw a contrast between her treatment there, and that of a vessel of the United States Navy at Barbados. The difference, however, really lay not so much in the treatment as in the circumstances of the two vessels and the temper of their respective commanders. The Shenandoah was not allowed to remain in port on the mere word of Lieutenant Waddell, but was twice subjected to the examination of a board of officers appointed by the governor for the purpose, who certified that she was in need of repairs. To this examination Lieutenant Waddell assented without any demur. Captain Boggs, on the other hand, who was distant from the ports of his own country about as many hundreds of miles as Lieutenant Waddell was thousands, took offense at a request that he would give an assurance of his inability to put to sea, and preferred to leave the port at once. It was not the intention of the orders of January, 1862, that a vessel should be dismissed summarily from a port in a distant colony, many thousands of miles from her own ports, in a crippled state, in which her crew would be inadequate to manage her. It is objected that the repairs were “dawdled”—and this when, a few pages before,, attention has been drawn² to a passage in one of Lieutenant Waddel’s letters, to show that he had commenced the repairs at once, before a report had been furnished of what was required. On reference to the copies of correspondence sent home at the time, and to those since received from the present governor, it is found that the sentence referred to (“the other repairs are progressing rapidly”) did not occur in Lieutenant Waddel’s original letter, though inserted in the copy published in the colonial newspapers, from which the quotation, in the Case of the United States, is made.³ It is, however, true that, with a view to complete the repairs as soon as possible, men were employed to calk the vessel as soon as permission to repair was received. The nature of the weather, which was very rough, probably rendered it impossible to send down a diver to examine the vessel for the first few days, and the state of the tides seems to have occasioned some further delay in getting her on to the slip, but in other respects the repairs were pushed on with all possible rapidity and completed within the time estimated for them. Lieutenant Waddell expressed throughout his anxiety to shorten his stay, and probably with truth, if, as may be gathered from the correspondence, his men were deserting. The steps taken for examining the vessel, the vigilance enjoined on the authorities of the port, the daily reports required from them as to the progress of repairs, and the reiterated request to Lieutenant Waddell to fix a day for his departure, certainly show no laxity or indisposition on the part of the colonial government to prevent any abuse of the permission granted by it.

On the question of the enlistment of men, and the proceedings taken against the offenders, it is remarked, in the Case of the United States that the authorities “carefully let alone Captain Waddell and his officers, who had been violating Her Majesty’s proclamation and the laws of the empire, and they aimed the thunders of the .law against an assistant cook.” The facts are, in the first place, that there was evidence against the seamen arrested, and suspicion only against the commander; and, in the second place, that the arrest, on a charge of this kind, of the commanding officer of a foreign ship of war who may happen to be ashore (on board, of course, he is secure from it) is a far graver matter than seems to be supposed, and is, indeed, an extreme measure which only very extraordinary circumstances could justify. The local authorities received up to the last the most positive assurances from Lieutenant Waddell that he had not added to his crew, and had not violated, and would not violate, the neutrality of the port. They took every precaution in their power to insure the performance of this promise; and if their efforts were not altogether successful, this must be attributed to the difficulties they had to deal with, the inadequacy of the means at their disposal, and to the reliance which they placed on the word of one whom they knew to be an American officer and might, therefore, reasonably believe to be a gentleman and worthy of credit.

[100] A case (with which the arbitrators are already acquainted)¹ of the reception of some men on board a vessel of war of the United States at Cork shows that such occurrences may, at the time, escape the notice not only of the authorities, but also of the commander of the vessel. On the occasion referred to, sixteen men were shipped on board the United States war-steamer Kearsarge. The fact was not known until the vessel had sailed for France; and on her return to Cork, a month afterward, the men were sent on shore by *the captain, with a declaration that they had been shipped without his knowledge and contrary to his instructions. Six of the men were prosecuted, but were discharged without punishment, as having probably been unaware of the nature of the offense they were committing. Evidence having been produced to implicate some of the inferior officers of the vessel, representations were addressed to the Government of the United States upon the subject, and the latter expressed their willingness to institute an investigation when the Kearsarge returned home. The course adopted on this occasion certainly did not differ, on the side of severity, from that pursued toward the Shenandoah. Nor is it doubtful to Her Majesty’s government that if on that occasion Captain Winslow had been arrested in the streets of Cork, this would have been regarded as somewhat more than due diligence by the Government of the United States.

There is a further statement in this part of the Case of the United States which Her Britannic Majesty’s government approaches with regret.

At page 430 mention is made of a discussion which took place in the legislative assembly at Melbourne as to the reception of the Shenandoah and her supposed identity with the Sea King. The chief secretary stated that “in dealing with the vessel they (the government) had not only to consider the terms of the proclamation of neutrality, but also the confidential instructions of the home government.” On this it is remarked: “Here the United States learned for the first time that, in addition to the published instructions which were made known to the world, there were private and confidential, and perhaps conflicting, instructions on this subject.” Her Britannic Majesty’s government thinks that it will best consult its feelings of self-respect by leaving unnoticed the insinuation conveyed in this passage. It is no doubt true—and to persons possessing ordinary acquaintance with the details of administrative government, it cannot appear surprising—that, in addition to the published instructions to governors of colonies, other instructions were sent from time to time, some of them explanatory of those published instructions, others supplementary to them, as cases arose to show the necessity of such explanations and additions. Such of these as were sent to the governor of Victoria, and have any bearing on the matter, are now laid before the tribunal in the Appendix.¹ Among these instructions will be found one dated the 12th of December, 1863, which inclosed copies of certain correspondence respecting, the visit of the Alabama to the Gape of Good Hope. All the material papers in this correspondence have already been laid before the tribunal.² Among them will be found a report from the English law-officers of the Crown, in which the following passage occurs:

With respect to the Alabama herself, we are clearly of opinion that neither the governor nor any other authority at the Cape could exercise any jurisdiction over her, and that, whatever was her previous history, they were hound to treat her as a ship of war belonging to a belligerent power.

It will have been seen that these last words were reproduced in the answer returned to the representations of the United States consul at Melbourne, on the 30th of January, 1865.³ That these were the particular papers alluded to by the chief secretary is moreover obvious from the context of the speech, in which he mentions that the government had “before them the case of a vessel in exactly the same position as the Shenandoah.” It may not be within the knowledge of the tribunal that the reports of the English law-officers of the Crown to Her Majesty’s secretary of state for foreign affairs have, according to invariable custom, been hitherto considered as documents of a strictly confidential nature, to be made known to none but the executive officers of the government. This rule has now for the first time been departed from, through the anxiety of Her Britannic Majesty’s government that the arbitrators should have before them all materials which could be made available for enabling them to form a correct judgment on the questions submitted to them.

Into the subsequent history of the Shenandoah it is needless to enter. It has been accurately told in the British Case, and there is clearly nothing in it which could impose any responsibility whatever on this country.

[101] The United States must be well aware that, on account of the original outfit of the Shenandoah, they have no just claim against Great Britain. A sense of this, indeed, plainly betrays itself in the Case. An effort is therefore made to found a claim upon the circumstance that this vessel was admitted, in a remote colony of the British Empire, to the ordinary hospitalities of a neutral port, and upon what occurred during her visit there. The charges which it is endeavored to establish against the authorities of the colony, and through them against Great Britain, are, in substance, two. One is, that she *was suffered to repair her steam machinery, which is admitted to have been in need of repair, although (it is objected) she was not shown to be unseaworthy as a sailing ship. It would be difficult to imagine a much less reasonable complaint. The colonial authorities were right in giving this permission, which was given at Brest to the Florida, in spite of the remonstrances of the United States minister, and which is thoroughly sanctioned by custom. They would, indeed, have been guilty of a reprehensible refusal of ordinary hospitality if they had not given it. The other charge is, that the vessel obtained in the port some addition to her crew, and that this was done with the connivance of the authorities of the colony. As the chief proof of connivance, it has been insisted that the ship remained in the port, undergoing repairs, a few days longer than the United States suppose to have been absolutely necessary. Again, to prove even this, which, if established, would be not merely inconclusive, but almost immaterial, there is a struggle against plain facts; and there is an endeavor to substitute conjectural estimates for those made on the spot, and at the time; circumstances are passed over which should have been taken into account; there are imputations of inattention where there was none, and suggestions of bad faith, to which the best answer is silence.

Such is the character of the argument of the United States on this point. It has been answered step by step. But Her Majesty’s government deems it right to add one observation, the truth of which will hardly be disputed in any maritime country. The act here alleged—the recruitment of seamen in a neutral port—is one which is difficult and well nigh impossible for the local authorities to prevent altogether, by any reasonable precautions of their own, which would not be deemed offensive by a belligerent. It is necessary, therefore, either wholly to exclude belligerent ships of war from access to, and refuge in, neutral harbors, or to place some reliance on the word of the commanding officer, and on that honorable understanding which, while it surrounds the vessel on her entrance with a peculiar immunity from the exercise of local jurisdiction, binds her at the same time to respect the sovereignty and neutral rights of the nation whose hospitality she enjoys. It is practically necessary to rely much on this understanding, and it is customary to do so. It has never been held that the duty of the neutral authorities is to surround a foreign ship of war with spies, to dog the steps of her officers, refuse credit to their solemn assurances, or issue warrants against them on suspicion. No neutral power would under-take to do this, and no belligerent would endure it patiently. Great Britain has never hitherto hesitated to trust American officers, as she trusts those of other countries; and she did not deem herself bound to withdraw that customary confidence from officers whom civil dissension had armed against their own country, and who were engaged in an unhappy contest, which she sincerely deplored.

1. Appendix to British Case, vol. i, p. 404.
2. Appendix to Case of the United States, vol. vi. p. 512.
1. British Case, p. 122.
2. Case of the United States, pp. 392, 40S; Appendix to ditto, vol., vi, p. 503.
1. Case of the United States, p. 393.
2. Appendix to ditto, vol. vi, p. 500.
1. Pages 33 to 50.
1. British Case, pages 143 and 160.
2. Appendix to British Case, vol. i, p. 724.
3. Ibid., p. 725.
4. Appendix to Case of United States, vol. vi, p. 555.
5. See report of Captain Payne, Appendix to British Case, vol. i, p. 557, and of the United States consul at Melbourne, Appendix to Case of the United States, vol. vi, p. 595.
1. Appendix to Case of United States, vol. iii, p. 319; vol. vi, p. 560.
2. See evidence given at the trial of Captain Corbett, Appendix to Case of the United States, vol. iv, p. 632.
3. Case of the United States, p. 417.
1. Appendix to Case of the United States, vol. iii, p. 317; vol. vi, p. 538.
2. Appendix to British Case, vol. i, p. 500.
2. Appendix to British Case, vol. i, p. 500.
1. Appendix to British Case, vol. i, p. 511; vol. v, p. 65.
2. Ibid., vol. i, p. 529; vol. v, p. 79.
3. Ibid., vol. i, p. 640; vol. v, p. 69.
4. Ibid., vol. i, p. 513; vol. v, p. 73.
5. Ibid., vol. i, pp. 517 and 641; vol. v, pp. 69, 70.
6. Ibid., vol. i, pp. 520, 552; vol. v, pp. 75,76.
7. Ibid., vol. i, p. 642; vol. v, p. 77.
8. Ibid., vol. i, p. 529; vol. v, p. 74.
1. Appendix to British Case, vol. i, pp. 542, 643; vol. v, p. 77.
2. Ibid., vol. i, p. 529; vol. v, p. 80.
3. Ibid., vol. i, p. 522; vol. v, p. 78.
4. Ibid., vol. i, p. 643; vol. v, p. 78.
5. Ibid., vol. i, p. 515; vol. v, p. 88.
6. Ibid., vol. pp. 593, 617; vol. v, p. 68.
7. Ibid., vol. i, p. 606; vol. v, p. 107.
8. Ibid., vol. i, p. 536.
9. Ibid., vol. i, p. 524; vol. v, p. 109.
1. Appendix to British Case, vol. i, pp. 525–527; vol. v, pp. 109–112.
2. Ibid., vol. i, p. 644; Vol. v, p. 110.
3. Ibid., vol. i, p. 645; vol. v, p. 112.
4. Ibid., vol. i, p. 646; vol. v, p. 113.
1. Appendix to British Case, vol. i, p. 526.
2. Ibid., vol. i, p. 558.
3. Ibid., vol. v, p. 84.
4. Ibid., vol. i, pp. 551–553; vol. v, pp. 117–122.
1. Appendix to British Case, vol. i, p. 587.
2. Ibid., vol. i, pp. 587, 618.
3. Ibid., vol. i, p. 554; vol. v, p. 120.
1. Appendix to British Case, vol. i, p. 550.
2. Appendix to the Case of the United States, vol. vi, p. 588.
3. See Appendix to British Case, vol. i, p. 511. It is stated in one of the newspapers sent home by the American consul, that the reply was known on board the Shenandoah between 3 and 4 o’clock, (Appendix to Case of United States, vol. vi, p. 652.)
4. This is stated on the authority of a published account of the cruise of the Shenandoah by one of her officers, which in other respects also gives a very inaccurate account of the communications between Lieutenant Waddell and the colonial authorities.
1. Case of the United States, p. 421.
2. Ibid., p. 427.
3. See Appendix to British Case, vol. v., p. 63.
1. See British Case, p. 154.
1. Appendix to British Case, vol. v, pp. 125–131.
2. Ibid., vol. i, pp. 300, 306, 312, 322.
3. Ibid., vol. i, p. 593.