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 III

IX.—The Shenandoah.

June 10, 1872.

Open hostilities were commenced by the insurgents against the Government of the United States on the 12th of April, 1861, by an attack on Fort Sumter, in the harbor of Charleston and State of South Carolina, Previous to that time, W. L. Yancey, P. A. Rost, and A. Dudley Mann had been appointed by the insurgent president “a commission” to the Government of Her Britannic Majesty. They proceeded to London, and on the Saturday previous to the 11th day of May (being the 4th) were admitted by Earl Russell to an informal interview.¹General review of facts establishing want of due diligence.

On the 30th of April, Fraser, Trenholm & Co., a branch at Liverpool the commercial house of John Fraser & Co., at Charleston, became the financial agents and depositaries” of the insurgent Government, through whom contracts required abroad” were to be carried out.²

On the 10th of May the insurgent congress authorized the president “to cause to be purchased, if possible, otherwise to be constructed, with the least possible delay, in France or England, one or two war-steamers of the modern and improved description, with a powerful armament and fully equipped for service.”³ On the same day another act was passed making an appropriation “to enable the Navy Department to send an agent abroad to purchase six steam propellers, in addition to those before authorized.”⁴ Of the sums appropriated by these acts and others which had preceded them, “six hundred thousand dollars” were placed at once in England and agents dispatched abroad to purchase gun-boats.5⁵

On the 1st of July the insurgent secretary of war, in a letter of instruction to a Mr. Charles Green, who had been appointed to go to London and act with Captain Huse and Major Anderson in the purchase of arms, &c., desired him to give or cause to be given special attention to the shipments. It is then said, “in this connection it is proper to remark that Captain North, of the Confederate States Navy, is now in Europe to purchase vessels for this Government, and it is probable that, being a British subject, you might secure the shipments under British colors.”⁶

About the same time James D. Bullock was appointed “head agent of the confederate navy in England.”⁷ He immediately went to England and established his “headquarters” at Liverpool, in one of the rooms of the office of Frazer, Trenholm & Co., the “financial agents and depositaries.”⁸

As early as the 4th of July the Consul of the United States at that port (Liverpool) informed the head constable of the city and the collector of customs of the port that he had reason to believe Bullock had “come to England for the purpose of procuring vessels to be fitted as privateers to cruise against the commerce of the United States, and that he will make Liverpool the scene of his operations.”¹

On the 14th of August, the above named commissioners, having on “two different occasions” before “verbally and unofficially informed” Earl Russell of their appointment, took occasion to address to him a formal communication in writing, and in that communication, among other things, said “this Government [that of the insurgents] commenced its career entirely without a navy. * * The people of the Confederate States are an agricultural, not a manufacturing or a commercial, people. They own but few ships. * * But it is far otherwise with the people of the present United States. * * They do a large part of the carrying trade of the world. Their ships and commerce afford them the sinews of war, and keep their industry afloat. To cripple this industry and commerce, to destroy their ships or cause them to be dismantled and tied up to their rotting wharves, are legitimate objects and means of warfare.”²

On the next day (the 15th) Mr. Adams addressed Earl Russell as follows:

From information furnished from sources which appear to me entitled to credit, I feel it my duty to apprise Her Majesty’s Government that a violation of the act prohibiting the fitting out of vessels for warlike purposes is on the point of being committed in one of the ports of Great Britain, whereby an armed steamer is believed to be about to be dispatched with the view of making war against the people of the United States. It is stated to me that a new-screw-steamer, called the Bermuda, ostensibly owned by the commercial house of Frazer, Trenholm & Levy, of Liverpool, well known to consist in part of Americans in sympathy with the insurgents in the United States, is now lying at West Hartlepool, ready for sea. She is stated to carry English colors, but to be commanded by a Frenchman.³

To this Earl Russell replied on the 22d of the same month that he had been advised by the Law-Officers of the Crown “there is not sufficient evidence to warrant any interference with the clearance or the sailing of the vessel.”⁴

This vessel turned out to be only a “transport,” and not an “armed vessel of war;” and the United States admit that the evidence, then in the possession of the two Governments, might not have been sufficient to justify her condemnation by the courts upon the proper proceedings instituted for such purpose; but they insist that the complaint of Mr. Adams, following so closely as it did upon the remarkable communication of the insurgents already quoted, was worthy of being kept in the remembrance of Her Majesty’s Secretary of Foreign Affairs. As has been seen, Bullock contracted in Liverpool, shortly after his arrival, for the construction of the Florida; not long after a contract was made for the Alabama; and later still, others for the Alexandra and the Laird iron-clads at Liverpool, and for the Georgia and Pampero, (or Canton,) at Glasgow. A purchase was also made of one of Her Majesty’s cast-off gun-boats, the Victor, afterward known as the Rappahannock.⁵ The Florida, Alabama, and Georgia (the first two after having been made the subject of special complaint by the United States to Her Majesty’s Government) escaped from the ports of Great Britain, and their ravages upon the commerce of the United States formed the subject of much correspondence between the two governments As early as the 20th November, 1862, Mr. Adams called the attention of Earl Russell to this subject by letter, and in so doing said: “I have the honor to inform your lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in Her Majesty’s ports hereafter.”¹

The Alexandra was made the subject of judicial proceedings, and Her Majesty’s Government, through the inefficiency of its laws as actually administered, was compelled to pay the insurgents damages and costs for the detention.

The iron-clads were detained, and, to avoid another Alexandra experience, were purchased from the insurgents by Her Majesty’s Government at a price which, the United States have reason to believe, did not entail a pecuniary loss upon the sellers. The Pampero (or Canton) was seized, and, by arrangement with the builders, a decree of forfeiture obtained, which was never enforced except for the detention of the vessel until the final defeat of the insurgents. The Rappahannock escaped, but was detained by the Government of France and was never made available against the United States. But she became a subject of annoyance and vexation to Her Majesty’s Government, and furnished additional proof that, in the midst of the state of feeling which surrounded Her Majesty’s courts of justice in England, her laws could not at all times be made available there to enforce her international obligations and protect her from liability for national wrongs.

An offending officer acquitted by a jury on a trial before a judicial tribunal, was punished by the Government by being put on half-pay for life.

The Navy Department of the insurgents had and maintained its headquarters at Liverpool. Bullock, the “head agent,” issued his orders and commissioned his officers from these headquarters. His seamen were recruited there; his officers congregated there, waiting the preparation of the vessels on which they were to cruise, and when the vessels got out of port, clandestinely or otherwise, had no difficulty in finding the means to reach them. Bounties, advances, half pay notes, and wages were made payable and paid there. When a ship went out of commission or enlistments expired, officers and other seamen made their way back there to the “Department.”

In the mean time the British flag was allowed to cover cargoes, contraband of war, intended to pass a blockade maintained by the United States and supply the insurgents with the means of carrying on their operations. Ships were purchased by the insurgents intended for and maintained as “transports,” all which were permitted to and did sail under the British flag. Constant complaint of this was made by the United States to Her Majesty’s Government, and the reply uniformly came back that international obligations did not make it incumbent upon Her Majesty to interfere.

In the fall of 1864 the insurgents were again without any available Navy. The Florida and the Alabama had been sunk; the Sumter and the Georgia had been dismantled and sold in British ports to British subjects, the proceeds of the sales finding their way from thence into the Treasury of the insurgents. The Tallahassee had succeeded in running the blockade and in making a port of the insurgents after her short though destructive career, but was then held by the blockade maintained by the United States. The Rappahannock was held firm in the hands of the Government of France, and the Chickamauga, although commissioned, was still detained by the blockade. In the mean time the commerce of the United States had largely disappeared. Nearly two hundred vessels, with their cargoes, had been committed to the flames.¹ Over seven hundred, with an aggregate of nearly half a million of tonnage, had been transferred for self-preservation from the flag of the United States to that of Great Britain.² All or nearly all of this had been caused by vessels fitted out in the ports of the Clyde or the Mersey. They had been manned and supplied from Great Britain. Their commissioned officers were chiefly from the insurgents; but they were commissioned in Great Britain and took their orders and departure there.

But there was still left in the frozen seas of the North Pacific a little fleet of vessels from which it was supposed the flag of the United States could be floated with safety. This fleet was largely owned, and entirely officered and manned, by bold and daring seamen who made the Arctic seas their home in order that they might supply the inhabitants of more favored regions with such necessaries as those seas alone produced. This little fleet destroyed, and the commerce and carrying trade of the United States would be substantially gone. This “legitimate object and means of warfare,” so early brought to the attention of Earl Russell by the “commission” sent from the insurgents, would then have fully accomplished its work. No vessels or cargoes had been condemned as prize and sold, but all had been destroyed.

To accomplish this further destruction a Navy must be provided. It need not be large, but still something must be had. It could not be obtained from France, because “no violation of its neutrality would be permitted,”³ and work upon vessels of war would not be allowed there unless the builders could satisfy the Minister of Foreign Affairs that they “were honestly intended” for a government other than that of the insurgents.⁴ The minister of marine there had also declared that suspected vessels “should not be delivered to the Confederates.”⁵

The hospitalities of the ports of Great Britain had never been refused to a ship having a commission of the insurgents. Her Majesty’s Government had acknowledged the inefficiency of her laws as enforced in her courts and executed by her officers, yet Her Majesty’s prime minister had declared, from his place in the House of Commons, that the Government and people of the United States “must not imagine that any cry which may be raised will induce us (Her Majesty’s Government) to come down to this House with a proposal to alter the law.”⁶

If by chance a vessel was detained, no pecuniary loss to the insurgents would be likely to follow, for the money invested would be paid back, and, possibly, a profit be added. The “navy agent” and the only efficient “Navy Department” of the insurgents were still tolerated and permitted to maintain “headquarters” at the principal commercial port of the Empire. Great Britain had never yet resented an insult to her neutrality by the insurgents. There never had been so great activity in the construction and purchase of steamers in Great Britain for “transports” as at this time.⁷

Consequently the Navy Department, located in Great Britain, sought there to obtain its means of operation. A vessel known as the Sea King, which, while building at Glasgow, a year previous, had attracted the attention of the officers of the United States as suspicious, was found in port on her return from a voyage to the East Indies. On the 20th September, 1864, she was purchased and a bill of sale given of her to the father-in-law of the managing partner of the firm acting in Liverpool as “financial agents” of the insurgents.¹ This bill of sale was registered in a public office of Her Majesty’s Government on that day.²

Purchase of the Sea King.

On the 5th October a crew for that vessel was shipped, at a shipping-office in London, and before a shipping-master, for “a voyage from London to Bombay, (calling at any ports or places on the passage that may be required,) and or any other ports or places, in India, or China or Japan, or the Pacific, Atlantic, or Indian Oceans, trading to and from as legal freights may offer, until her return to a final port of discharge in the United Kingdom, (or Continent of Europe, if required;) voyage not to exceed two years.”³

The Arbitrators will in all this see a striking resemblance to the circumstances attending the purchase and sending forth of the Georgia eighteen months before. On the 7th October, at 3 p. m., a certificate of sale was filed in the office of the registrar of shipping, in accordance with section 76 of the merchant-shipping act, 1854,⁴ by which the owner empowered the master to sell the ship at any port out of the United Kingdom, for not less than £45,000, within six months from the date of the certificate.⁵ Her master was Peter S. Corbett, who had previously commanded the insurgent transport Douglass, afterward known as the Margaret and Jessie.

The Sea King was cleared and sailed from London on the 8th of October, with a cargo of coal. She commenced engaging her crew as early as the 25th September.⁶Her departure.

On the 7th of October, the attention of the Consul at Liverpool was drawn to some suspicious circumstances connected with a screw-steamer called the Laurel, which he understood had been recently purchased by the insurgents,⁷ but his knowledge was not such as to justify a presentation of the case to Her Majesty’s Government, under the rules prescribed for the action of its officers. Therefore, no report was made by Mr. Adams to Earl Russell. She was cleared from Liverpool on the 8th of October for Matamoros, &c.⁸

As early as the 12th October, an article appeared in the Liverpool Journal of Commerce announcing her sailing and using this language:Departure of the Laurel with her crew and armament.

Her cargo is of such a mixed nature that no belligerent State would have the slightest doubt as to its usefulness. * * * But the Laurel must not be supposed to be intended for a cruiser; she is merely a tender, and carries out to a certain latitude guns and ammunition for a new screw-steamer of which Captain Semmes is to take command. * * * To show that Captain Semmes does not go unattended, we may here state that he took with him on board the Laurel eight officers and one hundred men, most of whom served with him on board the Alabama.⁹

There were errors in the statements contained in this article, but the very errors show that the air was at that time filled with rumors, and that intelligent action at the proper time by the Government might have traced these rumors to their source, and, in all probability, prevented this new escape.

The Laurel did, however, clear with the armament of the Sea King as cargo, and with all, save one, of her officers (twenty-four) and some (seventeen) seamen as passengers.¹

Of these officers, five had previously served on the Alabama alone, two on both the Alabama and Sumter, one on the Georgia alone, one on both the Rappahannock and Georgia, and two on the Rappahannock alone; and of the men, five had served on the Alabama. Three of the officers had avoided capture at the time the Alabama was sunk in the engagement with the Kearsarge, by escape upon the English yacht.²

On the 17th October the two vessels, the Sea King and the Laurel, met at the island of Madeira. They proceeded from thence to the island of Desertas, where the armament, and the officers and seamen who came as passengers, were transferred to the Sea King. No bill of sale was ever given by the captain under the certificate of sale. No purchase money was paid there. The certificate of sale was never returned to the office of the registrar in Great Britain as was required by section 81 of the merchant-shipping act, 1854,³ and the registered British character of the Sea King remained during her whole career. But the armament transferred, in the same manner as had previously been done in the cases of the Alabama and Georgia, the Sea King became the Shenandoah, an insurgent cruiser. She had, however, no sufficient crew. Of officers and men she mustered not to exceed forty-four. All the seamen were, however, British subjects, and the officers came together on British soil to be placed on board the new cruiser under the protection of the British flag. If a ship of war of the United States had met the Laurel on her passage and taken these officers from her deck, Great Britain would have considered her neutrality violated, and demanded their return amidst the most active preparations for war, as had been previously done in the case of the Trent.⁴Armament of the Shenandoah.

It may be admitted that if the Shenandoah at this point in her history stood alone, and there had been no other cause of complaint against Her Majesty’s Government, the United States could not now hold Great Britain responsible for her original escape and armament. But this vessel was purchased in, and armed from, Great Britain, three years and a half after the insurrection in the United States had put on the form of war. The insurgents had found the laws and the Government of Great Britain favorable to their operations. They had, under those laws and under that Government, availed themselves of the “ports of the Clyde and the Mersey,” (their only ports,) and made a navy. Under the warfare of that navy, the commerce of the United States, which at the commencement rivalled that of Great Britain, had been transferred to the English flag. Her Majesty’s Government had never punished the insurgents for any violation of her neutrality. It had not then even remonstrated. On the contrary, it had tolerated and thus encouraged violations. It seems never to have conceived the idea which was so significantly promulgated by His Majesty, the Emperor of Brazil, that toleration of abuse was “equivalent to permitting the ports of the empire to serve as bases for operations.”⁵

The negligence which enabled the Florida and the Alabama to escape fastens itself upon the Shenandoah. The excessive hospitality which had always been extended gave the insurgents to understand, as they rightfully might, that the ports of Her Majesty’s dominions could be made the bases of their naval operations, and in consequence they operated from there, and from there alone.

When the commander of the Shenandoah left Liverpool to join her, and take command, he had in his possession a letter from Bullock, bearing date of October, 1864;¹ and when he returned in November, 1865, he addressed Earl Russell as follows:

I commissioned the ship in October, 1864, under orders from the naval department of the Confederate States; and, in pursuance of the same, commenced actively cruising against the enemy’s commerce. My orders directed me to visit certain seas in preference to others; in obedience thereto I found myself in May, June, and July of this year, in the Okhotsk Sea and the Arctic Ocean.²

Thus she started, under orders issued from Great Britain, to reach the most distant commerce of the United States.

Her first point of destination on the course she was ordered to make was Melbourne, in Her Majesty’s dominions. To that port a transport, bearing the name of John Frazer, (one of the firm of John Frazer & Co., at Charleston, of which Frazer, Trenholm & Co., the Liverpool depositary, was a branch,) was sent from England by the insurgent Navy Department with her supply of coal.³

Her Majesty’s Government received notice of the equipment of the Shenandoah, and its attending circumstances, on the 12th November It came in the form of a report from the Consul of Her Majesty at Teneriffe, and was accompanied by the captain of the Sea King, under arrest, and affidavits of witnesses detailing the facts.⁴

On the 18th Mr. Adams also communicated the same information to Ear Russell, with additional affidavits.⁵

The November mail from Europe, which arrived at Melbourne about the middle of January, carried there the news of her departure and her conversion into a vessel of war.⁶

After starting upon her cruise she “boarded at sea the galley Kebby Prince, from Cardiff, to the port of Bahia;” and in such act her commander opened the manifest of such “galley, breaking the seal of the Brazilian Consulate.” For this offense His Majesty, the Emperor of Brazil, true to his principles of enforcing neutrality, as well as proclaiming it, promulgated au order in the official gazette at Rio Janeiro, on the 21st of December, prohibiting “the entrance into any port of the empire of said steamer, or of any other vessel commanded by the said Waddell.”⁷

On the 25th of January, 1865, she arrived at Hobson’s Bay, near Melbourne, and asked leave to coal and repair. Commander King, of Her Majesty’s ship Bombay, then at that station, in reporting to Commodore Wiseman, under date of the 26th, said:Arrives at Melbourne.

The crew at present consists of only seventy men, though her proper complement is one hundred and forty. The men almost entirely are stated to be either English or Irish. Captain Waddell informed me that the Shenandoah is fast under canvas and steams at the rate of thirteen knots; that she is fourteen months old, and was turned into a man-of-war on the ocean. He also told me that he had lately destroyed nine American vessels. It is suspected that the Shenandoah was lately called the Sea King, and that remains of the old letters are still perceptible; but of that I cannot speak from personal observation. * * * * From the paucity of her crew at present she cannot be very efficient for fighting purposes.⁸

The Governor of the Colony also, in reporting to Mr. Cardwell under the same date, says: “Since closing my dispatches for the mail, a Confederate States steamer of war, called the Shenandoah, but supposed to have been formerly the Sea King, has anchored in Hobson’s Bay.”¹ She had then on board four hundred tons of coal remaining of her original supply on leaving London,² which was a full cargo of eight hundred and fifty tons.³

Upon his arrival on the 25th, Lieutenant Waddell asked permission of the Governor to make the necessary repairs and supply himself with coals to enable him to get to sea as soon as possible; also to land prisoners.⁴ He also, as he came into the bay, informed the tide-inspector that his object in visiting Port Phillip was to have some machinery repaired, and to procure coals and provisions.⁵Permission to coal and make repairs granted.

Thus the officers of Her Majesty’s Government at Melbourne were at once, upon the arrival of the vessel, informed that the Sea King, which the November mail from Europe, received a few days before, advised them had left England with the intention of being converted into a vessel to carry on war against the commerce of the United States,⁶ was then in port short-handed, asking permission to repair, provision, and coal. The request of Lieutenant Waddell was taken under consideration by the governor, who informed him that it should receive early attention and be replied to the next day.⁷ On the next day the executive council was specially summoned by the Governor and under their advice the permission asked for was granted.

Against these hospitalities the Consul of the United States protested on the 26th, and in so doing called the attention of the governor to the circumstances under which she had been armed and equipped, and of her identity with the English vessel Sea King. His protest was repeated on the 27th and 28th, but on the 30th his excellency replied that after advising with the law-officers of the Crown he had “come to the decision that, whatever may be the previous-history of the Shenandoah, the Government of this Colony is bound to treat her as a ship of war belonging to a belligerent power.” It now appears also that the advisers of his excellency tendered to him their opinion that it would not be expedient, to call upon the lieutenant commanding to show his commission from the Government of the Confederate States authorizing him to take command of that vessel for warlike purposes.⁸Protest of the consul.

Against this decision the Consul most earnestly protested, and notified his excellency that “the United States Government will claim indemnity for the damages already done to its shipping by said vessel, and also which may hereafter be committed by said vessel * * upon the shipping of the United States of America, if allowed to depart from this port.”⁹

The commander of the Shenandoah having received his permission to repair, provision, and coal, had leave to take his vessel into the public docks, which were at the time controlled by private parties as lessees. The vessel and her officers were received with open arms by the people of Melbourne. The Governor of the Colony did not dine with or participate in the public or private hospitalities to the officers of the vessel, but the mayor of Melbourne and its inhabitants did.¹ Crowds of people flocked to obtain sight of the “stranger,” which bore the flag of insurgents that were supposed to have the sympathies of the English people at home; and the officers of the ship, “whose history was so brief, but so brilliant,” could remember gratefully “the hospitalities of Melbourne and Ballarat.²Unfriendly conduct of the colony.

In short, at Melbourne, “in Australian waters, where a vessel of war belonging to the Confederate States” had never before been seen, the feeling which at home had permitted a Florida and an Alabama to escape, was found to exist in all its English vigor. The insurgent flag was hospitably received and courted there, as for nearly four years it had been in the ports of other British Colonies, and of the United Kingdom itself.

But the Consul of the United States having failed, upon the proof furnished by him, to induce the Governor of the Colony and his executive council to act as other nations had acted, and refuse the Shenandoah the hospitalities of the port, set himself about finding other testimony, and that which would be more effective.

The vessel came into the port short-handed, and “at present she could not be very efficient for fighting purposes.”³

When she arrived at Liverpool, after her career was ended, her complement of officers and men, according to the report of Captain Paynter of Her Majesty’s ship Donegal, was one hundred and thirty-three.⁴ Her officers numbered twenty-six, leaving for her crew one hundred and seven. Temple, in his affidavit, makes the total number of enlistments on board the vessel, during her entire cruise, one hundred and eleven. Of these, two deserted at Melbourne and two died on the cruise, leaving the number of men on board when she arrived at Liverpool the same as stated by Captain Paynter. According to the same affidavit, the total crew on board, when the Laurel left her at Desertas, including those that originally came on the Sea King and those upon the Laurel, was nineteen. Twelve joined her from the crews of the captured vessels previous to her arrival at Melbourne; but two of these deserted there, leaving, as the aggregate of her crew on her arrival, and before any new recruitment, only twenty-nine men, and with the officers then on board, fifty-four. The officers which left Liverpool on the Laurel numbered twenty-four. One, Lieutenant Whittle, went by the Sea King, and one joined from a whaling-vessel captured in the Arctic Ocean, giving her, when she finished her cruise, twenty-six.⁵Recruitment of men at Melbourne.

As has been seen, Commander King, when he visited her upon her arrival at Melbourne, reported her as having seventy men. Of course he got his information from the officers, who were not likely to give the number smaller than it actually was. It would not do to make it much too large, because “the paucity of the crew” was such as to attract the attention of the officer.⁶

The Consul at Melbourne, in writing to Mr. Adams on the 26th of January, the day after her arrival, mentioned the fact that her crew, all told, consisted of seventy-nine men.⁷ But his knowledge at that time must have been derived from rumors in circulation; he had no means of verifying the statement himself. On the 10th February, Captain Payne, secretary of the naval board at Melbourne, who visited her at the request of the Governor, said in his report, “there appeared to me to be about forty to fifty men on board, slouchy, dirty, and undisciplined. I noticed also a great number of officers, and could not help remarking that the number appeared out of all proportion to the few men I saw on board.”¹

Silvester, in his deposition, as printed among the documents submitted in evidence, says that when the Laurel left her the crew, including officers, consisted of twenty-three men.² This is undoubtedly a mistake. It may have been a clerical error in the original draught of the deposition or in transcribing.

It is clear, therefore, that when the Shenandoah reached Melbourne she was short-handed, and that an increase of her crew was absolutely necessary to make her an efficient vessel of war. Even after the additions she received at Melbourne she continued short-handed. Captain Nye, the master of the ship Abigail, captured on the 27th of May, says:

The Shenandoah, at the time I was taken on hoard, had a full complement of officers, hut was very much in want of seamen. * * * At two different times during the first ten days that I was on hoard, all hands, and my own crew besides, were obliged to he up all night working the ship in the ice. The officers and crew complained of being short-handed, and my own men were urged to join her.³

Thirty-eight men were shipped from the crews of vessels captured after leaving Melbourne, and seventeen of these were from the Abigail.⁴ These made part of the one hundred and seven on board when the Shenandoah arrived at Liverpool.

As early as the 1st of February the Consul set about bringing the fact that she was short-handed to the knowledge of the government, and he commenced procuring affidavits, and employed his counsel.⁵

On the 2d of February he left with the chief clerk of the law-office of the Crown, in the absence of the Attorney-General and the Minister of Justice, affidavits of three persons; on the next day he called in person, with his solicitor, upon the Crown Law-Officers: on the next day, the 4th, he handed in two other affidavits; and on Monday, which was the 6th, he and his solicitor called again, in pursuance to an appointment made, and produced seven additional affidavits.The colonial authorities informed of the contemplated recruitments, and do not prevent them.

In nearly every one of these affidavits, among the other important facts developed, is the one that during the entire cruise previous to her arrival at Melbourne, great efforts were made by the officers of the Shenandoah to increase their crew by the enlistment of men from the prisoners taken on the different prizes. For that purpose such as would not join were put in irons.⁶

At this interview the Consul was given to understand, in fact, as he said in his dispatch to Mr. Seward subsequently, the Law-Officers “seemed to admit that she would be liable to seizure and condemnation if found in British waters; but would not admit that she was liable to seizure here, unless she violated the neutrality proclamation while in this port, and if she did they would take immediate action against her.”⁷

From this it appears that the same doctrine prevailed among the Law-Officers of the Crown at Melbourne, which had permitted the escape of the Florida at Nassau.

Although that doctrine is now repudiated by Her Majesty’s Government, it was known at the Foreign Office as early as the 16th of September, 1862, that the Florida had been released at Nassau upon that, ground, and that ground alone. It was a doctrine that had a most important bearing upon the constantly recurring attempts at the evasion of the laws of Her Majesty by the insurgents; but it does not appear to have been considered of sufficient importance to justify instructions from Her Majesty’s Home Government to any of the numerous Law-Officers of the Crown upon whom the responsibility of these prosecutions “in so great a measure rested.”

The United States agree with Her Majesty’s Government when it says, as it does in its Counter Case, that it should not be, and they hope it is not, in the power of Her Majesty’s Government to instruct a judge, whether in the United Kingdom or in a colony or dependence of the Crown, how to decide a particular case or question. No judge in Her Majesty’s dominions should submit to be so instructed; no community, however small, should tolerate it; and no minister, however powerful, should ever think of attempting it.¹

But the United States cannot but think the Law-Officers of the Crown occupy a different position, and that when Her Majesty’s Government sees so striking an error prevailing among those whose duty it is to conduct the judicial proceedings, by means of which international obligations are to be enforced, it is not only the right of the Government, but its imperative duty, to correct the error, and see to it that such important rights are not again “admitted” away, to the great injury of a nation with which Her Majesty was at peace. A judge whose duty it is to decide may not be instructed; but a mere agent whose duty it is to present a case for decision may be. If such an agent fails in his duty or errs in his opinion, and such error or such failure in duty is likely to be repeated by the same or other agents, it is neglect in a government if it fails to attempt, at least, to prevent the repetition, and if the repetition should affect other nations the government must answer for the consequences.

But accepting this doctrine of the Law-Officers for the time being, the Consul on the 9th of February forwarded to the Governor the affidavits which he had already presented to the Law-Officers; and on the 10th he sent the affidavit of John Williams, who swore that on the 6th February, when he left the ship, “there were fifteen or twenty men concealed in different parts of said ship, who came on board since said Shenandoah arrived in Hobson’s Bay; and said men told me they came on board said Shenandoah to join ship. That I cooked for said concealed for several days before I left. That three other men, in the uniform of the crew of the said Shenandoah, are at work on board of said Shenandoah, two of them in the galley, and one of them in the engine room. That said three other men in uniform also joined said Shenandoah in this port. That I can point out all men who have joined said Shenandoah in this port.” This was received by the Governor at 3.30 p. m. of the 10th, and he made an order that it be referred to the Attorney-General.”²

On the same day Captain Payne, who had been instructed by the Governor to report upon the vessel, among other things, informed him that there appeared “to be a mystery about her fore-hold, for the fore-man of the patent slip, when asked to go down to that spot to measure her for the cradle, was informed he could not get to the skin at that place. The hatches were always kept on, and the foreman states that he was informed they had all their ‘stuff’ there.”¹

On the 13th February the following reports were forwarded to the “honorable the chief secretary” of the Colony:

Detective Kennedy reports, in reply to certain questions submitted to him for inquiry on the 11th instant:

First. That twenty men have been discharged from the Shenandoah since her arrival at this port.

Second. That Captain Waddell intends to ship forty hands here, who are to be taken on board during the night, and to sign articles when they are outside the Heads.

It is stated that the captain wishes, if possible, to ship foreign seamen only; and all Englishmen shipped here are to assume a foreign name.

McGrath, Finlay, and O’Brien, three Melbourne boarding-house keepers, are said to be employed in getting the requisite number of men, who are to receive £6 per month wages and £8 bounty, &c.

Peter Kerr, a shipwpight, living in Railway Place, Sandridge, stated about a fortnight ago, in the hearing of several persons, that Captain Waddell offered him £17 per month to ship as carpenter. A waterman named McLaren, now at Sandridge, is either already enlisted or about to be so.

The detective has been unable, up to the present, to collect any reliable information as to whether ammunition, &c., has been put on board the Shenandoah at this port, or whether arrangements have been made with any person for that purpose.

(Urgent.) For the chief commissioner’s information. C. H. Nicholson, superintendent.

Mr. Scott, resident clerk, has been informed, in fact, he overheard a person represented as an assistant purser state, that about sixty men engaged here were to be shipped onboard an old vessel, believed to be the Eli Whitney, together with a quantity of ammunition, &c., about two or three days before the Shenandoah sails, The former vessel is to be cleared out for Portland or Warrnambool, but is to wait outside the Heads for the Shenandoah, to whom her cargo and passengers are to be transferred.

C. H. Nicholson,

Superintendent.²

After these reports, on the next day, there came to the Attorney-General of the Colony the following communication from Lieutenant Waddell, very significant when read in connection with the previous report from the police. “Be pleased to inform me if the Crown claims the sea to be British waters three miles from Port Philip Head lights, or from a straight line drawn from Point Lonsdale and Schanck.”³

Upon the reception of this, the Attorney-General sent a note declining to give the information asked for. On presentation of the note to Lieutenant Waddell, he handed it “back to the messenger with the simple answer that it was not what he wanted, that it had better be taken back with his compliments.”⁴

On the 13th of February, a warrant was issued by a magistrate for the arrest of one of the men charged to have been enlisted;⁵ and it was at once placed in the hands of the superintendent of police for service. This officer went the same evening on board the vessel to execute his warrant, and on the next day made the following report:Their inefficient proceedings.

I have the honor to inform you that, acting on your instructions, I proceeded last evening to the Confederate war-steamer Shenandoah, with a warrant for the arrest of a man known as Charley, stated to have illegally engaged himself on board the vessel. I asked for Captain Waddell, but was informed that he was not on board. I then asked for the officer in charge, saw him, and obtained permission to go on board. I told the officer my business, and requested that he would allow me to see the men on board, in order that I might execute my warrant. He refused to allow me. He then showed me the ship’s articles and asked me to point out the name of the man, which I was unable to do. I showed him my warrant, which he looked over, and returning it to me he said, that is all right, but you shall not go over the ship. He told me I had better return when the captain was on hoard; but as he could not say at what hour he would probably return, I told him that I would see the captain the following day. This morning I went again to the Shenandoah, and after stating my business was allowed on board. I told Captain Waddell that I was informed he had persons on board who had joined his vessel here, and that, informations having been sworn to that effect, I had a warrant with me. He said, I pledge you my word of honor as an officer and a gentleman that I have not any one on board, nor have I engaged any one, nor will I while I am here. I said I understood that the persons I wanted were wearing the uniform of the Confederate States, and were working on board. This he distinctly denied. He offered to show me the ship’s articles but I declined, and told him that I had seen them last evening. I then asked him to allow me to go over the ship, and see if the men I wanted were on board. This he refused to do. I said I must try to execute my warrant, even if I had to use force. He said he would use force to resist me, and that if he was overcome he would throw up his ship to the government here and go home and report the matter to his government. He said that he dare not allow me to search his ship; “it was more than his commission was worth, and that such a thing would not be attempted by the Government to a ship of war of another country.” He said “it was only by courtesy that I was allowed on board,” and that he considered “a great slight had been put upon him by sending me to the ship with a warrant.” He said he thought that his “word should have been taken in preference to that of men who had probably deserted from the ship, and had been put up to annoy him by the American consul.” He said that if I took one man, I might come afterwards and take fifteen or twenty, and that the American consul would perhaps lay an information against him as being a “buccaneer or pirate.” He said he thought that he had been very badly treated here by the police refusing to assist him in arresting his deserters. Before leaving I asked him again if he refused to allow me to look for the man for whom I had a warrant in my hand. He replied yes, that he did refuse, and that he would fight his ship rather than allow it. I then left.¹

On the day of its receipt this report was submitted by the Governor to the executive council. In pursuance of the advice of the council, the secretary of the commissioners of trade and customs addressed a letter to Lieutenant Waddell, appealing “to him to reconsider his determination,” and informing him that pending such further information the permission to repair and take in supplies was suspended.² The answer to this letter was dispatched by Lieutenant Waddell at five minutes before ten o’clock on the evening of the 14th,³ and in it he says:

I have to inform his excellency the governor that the execution of the warrant was not refused, as no such person as the one therein specified was on board; but permission to search this ship was refused. According to all the laws of nations, the deck of a vessel of war is considered to represent the majesty of the country whose flag she flies, and she is free from all executions, except for crimes actually committed on shore, when a demand must be made for the delivery of such person, and the execution of the warrant performed by the police of the ship. Our shipping articles have been shown to the superintendent of police, all strangers have been sent out of the ship, and two commissioned officers were ordered to search if any such had been left on board. They have reported to me that, after making a thorough search, they can find no person on board except those who entered this port as a part of her complement of men. I, therefore, 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 my shipping articles, and that no one has been enlisted in the service of the Confederate States since my arrival in this port, nor have I in any way violated the neutrality of the port. And I, in the name of the Government of the Confederate States of America, hereby enter my solemn protest against any obstruction which may cause the detention of this ship in this port.⁴

At about 10 o’clock p. m. of that day, four men left the Shenahdoah in a boat pulled by two watermen.⁵ They were arrested, and one of them was identified as the man for whose arrest the warrant was issued.

On the same 14th day of February the Consul forwarded to the Governor two other affidavits, in one of which, that of Hermann Wicke, the following statement is made:Further proof of recruiting furnished the authorities.

That the rations in Hobson’s Bay are served by the master-at-arms, (I believe named Reed,) who gives the rations to Quartermaster Vicking, and this latter brings the rations to the galley to be cooked by the cook, known by the name of “Charley;” that said cook Charley was not on board the Shenandoah on her arrival in the bay; he went on board since her arrival, and he told me he would join the ship as cook; that he dared not do it in the port, but that he would do it when proceeding outwards; that I also saw said cook take rations to a number of men who were concealed in the forecastle, who went on board since her arrival in Hobson’s Bay. That on Saturday, 11th February, 1865, when working and cleaning the Shenandoah, three boys, who came on board the Shenaudoah since her arrival in this port, assisted in painting between decks, whereas the number of men so concealed (as mentioned above) worked on deck; that the said men so concealed, in number about ten, received rations cooked in the same cooking apparatus and served in the same way as the regular crew on board; they eat out of the ship’s plates in the forecastle, such as were used by the prisoners while on the cruise; that they sleep on board, one part in the forecastle, the other part between decks. That the cook Charley and another, which I could identify if seeing him again, wore sometimes the ship’s uniform.¹

And in the other, that of F. C. Behucke, the following appears:

That before I left the said steamship I saw about ten men concealed in said Shenandoah. Some of said men told me they came on board to join. That several of the said men were at work with me on Saturday last with the knowledge of the officers; that one of the said men told me that he could not sign articles in this port, but was going to do so as soon as he got outside; that one man in the galley, who came on board at this port, wears the uniform and performs his duty in the said uniform; that said man in the galley has been wearing the uniform for about eight or ten days; that I heard said man in the galley called Charley; that all the said men who came on board since we arrived in Melbourne have been rationed from the said ship Shenandoah; that I have seen the master-at-arms serve out their provisions to Vicking; that after the provisions are cooked I have seen Quartermaster Vicking take it to them from the galley while concealed in the forecastle.²

All these communications were, on the 15th of February, submitted by the Governor to his executive council.³

From this it appears that on the 15th of February the Governor and his council knew from the statement of au officer in command of one of Her Majesty’s ships that the ship, from the “paucity of her crew,” was not in condition for a ship of war; that one witness, who was still within the reach of the judicial process of the Colony, had stated, under oath, that there were fifteen or twenty men concealed in different parts of the ship who came on board to join; that an officer of the Government, whom the Governor had sent on board to examine the vessel, reported that “there appeared to be a mystery in the fore-hold” and no one had been admitted there; that the police officers of the Government, who had been directed to ascertain the facts, had reported that it was the intention of the commander to ship forty hands, and that some men had been engaged, and arrangements had been made for the engagement of others; that upon an order being issued upon the sworn testimony of a complainant for the arrest of a man who had enlisted to serve upon this vessel, the officer whose duty it was to make the arrest reported that he had been prohibited by an inferior officer of the ship and by the officer in command, each acting separately, from serving the process on board the vessel, the principal officer in command declaring upon his honor as an officer and a gentleman there was no such person on board; that upon an “appeal” to the commander for a reconsideration of his decision he replied that no such person was on board at the time the request for permission to serve the process was made, when the falsehood of his statement was proven by the arrest of the man, who left the vessel at or about the time the letter was being written, and which was more than twenty-four hours after the attempt to serve the process was made;¹ and that, after this statement of the commander, the Consul of the United States produced the affidavits of the other persons, who declared positively that there was a large number of men still concealed on board to enlist when the ship got out of port.

Notwithstanding all this, however, upon the assurance of the commander, made after after the arrest of the four persons who escaped, “that there were no persons on board his ship whose names were not on the shipping articles,” and that no one had enlisted “in the service of the Confederate States since his arrival in port,” the order suspending permission to repair and take on supplies was unconditionally rescinded, and the ship released from the surveillance of the police who had been placed around her. No promise was exacted for the future; no officer was placed on board; no watch maintained, but the full and untrammeled hospitality of the port was granted to a ship whose commander had not scrupled to state upon his honor” that which the Governor knew to be false.The authorities parley with the commander of the Shenandoah in place of acting.

After the release was ordered, and notice thereof given to Lieutenant Waddell, his excellency caused to be addressed to him a letter as follows:

I am directed by his excellency the Governor to further acknowledge your communications of the 13th and 14th instant, in which, alleging that the vessel under your command had been seized, you ask whether the seizure be known to his excellency the governor, and if it meets his approval.

I am to inform you, in reply, that this Government has not directed or authorized the seizure of the Shenandoah.

The instructions to the police were to see that none of Her Majesty's subjects in this Colony rendered any aid or assistance to, or performed any work in respect of your vessel, during the period of the suspension of the permission which was granted to you to repair and take in supplies pending your reply to my letter of yesterday’s date in regard to a British subject being on board your vessel, and having entered the service of the Confederate States, in violation of the British statute, known as the foreign-enlistment act, and of the instructions issued by the Governor for the maintenance of the neutrality by Her Majesty’s subjects. In addition to evidence previously in possession of this government it has been reported by the police that about ten o’clock last night four men, who had been in concealment on board the Shenandoah, left the shin and were arrested immediately after so leaving by the water police.

It appears from the statements of these men that they were on hoard your vessel both on Monday and Tuesday, the 13th and 14th instant, when their presence was denied by the commanding officer in charge, and by yourself subsequently, when you declared that there were “no persons on board this ship, except those whose names are on our shipping articles.” This assertion must necessarily have been made by you without having ascertained for yourself by a search that such men were not on board, while at the same time you refused permission to the officer charged with the execution of the warrant to carry it into effect.

Referring to that portion of your communication of the 14th instant in which you inform his excellency the Governor, “that the execution of the warrant was not refused, as no such person as the one specified therein was on board” I am in a position to state that one of the four men previously alluded to is ascertained to be the person named in the warrant.

I am also to observe, that while at the moment of the dispatch of your letter it may be true that these men were not on board the Shenandoah, it is beyond question that they were on board at the time it was indited, your letter having been dispatched at five minutes before ten o’clock.

It thus appears plain, as a matter of fact, the foreign-enlistment act was in course of being evaded. Nevertheless, inasmuch as the only person for whose arrest a warrant was issued has been secured, and as you are now in a position to say, as commanding officer of the ship, and in behalf of your Government, whose faith is pledged by the assurance, 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 in this port,” his excellency the Governor has been pleased to revoke the directions issued yesterday, suspending permission to British subjects to aid and assist you in effecting the necessary repairs, and taking in supplies.

I am to add, it is expected that you will exercise every dispatch, so as to insure your departure by the day named in your first letter of yesterday, viz, Sunday next.¹

To this the lieutenant commanding replied on the 16th, and in so doing took occasion to say:

In conclusion, sir, allow me to inform you that I consider the tone of your letter remarkably disrespectful and insulting to the Government I have the honor to represent, and that I shall take an early opportunity of forwarding it to the Richmond Government.²

But he accepted the privileges granted. The disrespect and insult consisted, as the Arbitrators will readily perceive, in intimating somewhat distinctly to the commander, that the Governor accepted statements made “upon honor,” which he knew to be false in spirit, if not in letter.

On the 16th of February an examination was had of the parties arrested while leaving the ship, before one of Her Majesty’s justices of the peace for the Colony. The witnesses, whose affidavits had been taken and presented to the Governor, were examined orally in court. Every fact stated in the affidavits was proven, and the accused were identified as the parties who were on the ship. One of them (Charley) was not only on the ship, but in the uniform of the ship performing the duties for which he had enlisted, or at least had agreed to enlist. Upon this testimony the persons arrested were all, on the 17th, committed for trial, and two were subsequently convicted.³ But one was afterward discharged by the Attorney-General on account of his youth, and another for want of proof as to his nativity. The next day the officers of the vessel appealed to the public through the newspapers. They there stated, “upon their honor,” to protect themselves, and secure the escape and increased efficiency of their ship, what they dared not state, “under oath,” to protect the ignorant men whom they allowed to suffer for their own crime.⁴

Immediately after the order permitting the repairs and supplies to be continued was made known, the Consul addressed another communication to the Governor, which he closed by saying: “I trust, therefore, that upon further reflection, your excellency will reconsider your decision regarding this vessel, against which I have felt constrained to protest so earnestly.”⁵

This communication must have come into the hands of the Governor not long after he had received the somewhat pointed letter of the commander of the vessel; but neither the representations of the Consul, the result of the examination of the men who had been persuaded by the real offenders to become criminals, the insolence of the commander of the vessel, nor anything else, could induce the authorities composing Her Majesty’s Government at this Colony even to put the vessel under further surveillance.

On the 16th of February, the consul placed in the hands of the Attorney-General a further affidavit of Michael Cashmore, a citizen of Melbourne, stating that he had, on the 2d of February, seen on the Shenandoah a man in the uniform of the “ship who was sitting with the other sailors eating soup,” and who told him he had joined the ship that morning; and also an affidavit from the captain of a vessel in the port in which it was stated that fourteen days before he had gone on board the ship and inquired of the commanding officer if he had any chronometers for sale; that he was directed to a person in the uniform of an officer; that he had made a selection from five or six chronometers handed him by the officer and bought and paid for one which he described.¹ These affidavits were procured and placed in the hands of the Law-Officer of the Crown just after the vessel had been launched from the slip.Further information of contemplated recruitments.

On the 16th of February, Lieutenant Waddell informed the governor, that every dispatch was being used by him to get the Shenandoah to sea at the earliest possible moment;² and on the 17th, it was reported by the tide-inspector that she had taken on coals during the night, and was reshipping stores from a lighter.³ It must have been apparent to all she would remain in port but a short time longer.

At 5 o’clock in the afternoon of the 17th, the Consul received other information to the effect that men were being enlisted to increase the crew. He went at once with his new witness, Andrew Forbes, to the Crown Solicitor, by whom he was sent to some of the “plenty of magistrates then he went to the office of the chief commissioner of police, who was not in; then to the Attorney-General, who wanted an affidavit taken; then to the office of the detective police, but the chief of that office must have a warrant before he could act, and advised him to go to the police justice for that purpose; then to the police justice, who could not take the responsibility of granting a warrant upon the evidence of one man alone, but advised him to go to a magistrate at Williamstown, about four miles distant, who, perhaps, might have corroborative testimony. It was, by this time, half-past seven o’clock in the evening. At this hour the Consul took the affidavit of the witness, which he sent by private hand to the attorney-general, and started himself for Williamstown. The witness, however, being afraid of personal harm, refused to go with him, and the affidavit did not reach the attorney general on account of the lateness of the hour.⁴ The Consul did, however, send a messenger to the water-police, at Williamstown, who reported to them the shipping of the men, but they said they were powerless to interfere without directions from the head authorities at Melbourne.⁵ In view of this state of facts the United States believe the Arbitrators will not agree with Her Majesty’s Government when it says, as it does in the Counter Case, on page 97, that the Consul was “certainly more justly chargeable with a want of due diligence than those” to whom he applied for assistance.Refusal of the colonial authorities to act.

The United States in this connection also ask the attention of the Arbitrators to the following statement in the Counter Case, presented by Her Majesty, on page 98:

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.

But on the 16th, more than twenty-four hours before she left port, it was demonstrated there was evidence enough to convict four men who had enlisted before the vessel had sailed, and before she went to the docks. That information was not obtained from boatmen. Everything transpired under the eyes of the police themselves, and the conviction followed from their testimony, connected with that which had been furnished by the Consul. It was what they knew before the vessel left port which should have compelled them to act, not what came to them after. The United States have never asked for the conviction of the boatmen. What they wanted was the detention of the vessel, or, at least, the adoption of such measures as would prevent the augmentation of her warlike force.

The Shenandoah left her anchorage early on the morning of the 18th and proceeded to sea unmolested. The “guns were all loaded before the vessel went outside of the Heads.”¹ The chief commissioner of police says, on the 26th October, 1871, that “no visitors were allowed on board the Shenandoah under any pretense for three days before she sailed, and, in the absence of any of Her Majesty’s ships in our waters at the time, the efforts of the water-police were necessarily of little avail.”² The same officer says, in the same report: “Had the Shenandoah been afloat in the bay at the time, I am convinced that any attempts on the part of the police to search her, or to execute warrants for the apprehension of persons illegally enlisted, would have been violently resisted.” If this was understood at the time, the United States are at a loss to know why it was she was permitted to get afloat until her officers had allowed their vessel to come under the surveillance of the Government, or until some means had been devised by which a fresh violation of the neutrality of the waters might be prevented. Her Majesty’s ship Bombay was in port when the Shenandoah arrived, and the United States can hardly believe she had been permitted to leave the harbor entirely unprotected while so troublesome a visitor remained. At so important a station there must have been some vessel of Her Majesty’s powerful Navy that could be called upon by the Governor of the Colony for assistance in case it became necessary. At any rate the Shenandoah could have been held upon the dock until a ship of war was found to watch her if the authorities had been so disposed.Large recruitments of men; departure from Melbourne.

As soon as the Shenandoah got outside of the neutral waters an addition was found to the complement of her men. They may not have been added to her crew in form, by actual enlistment, but they were recruited: and with the men on board the enlistment was easily accomplished. In this way forty-two men were added to the crew, as will appear by the affidavit of Temple, in which names are given.³ Among these names the Arbitrators will find, as master-at-arms, “Charles McLaren.” His name also appears in the report of the chief detective at Sandridge, made on the 13th of February, where it is said: “A waterman named McLaren, now at Sandridge, is either already enlisted or about to be so.”⁴ It also is found in the report of the same detective on the 21st, as McLaren, “who stated openly a short time back to a waterman named Sawdy and others, that he was about to ship on the Shenandoah.”⁵ They will also find the names of Thomas Evans, Robert Dunning, and William Green, which also appear in the affidavit of Forbes,⁶ the witness who went with the consul on the 17th when he endeavored to obtain some action by the officers.

As soon as the vessel had escaped, it was easy for the authorities to satisfy themselves that large additions had been made to the crew.

The 18th, the day on which she sailed, was Saturday. The papers published on Monday morning all make mention of the increase of her crew. The Herald has the following notice:

The Confederate cruiser Shenandoah left Hobson’s Bay at about 6 a. m. on Saturday and was seen during the afternoon outside the Heads by the schooners Sir Isaac Newton and Zephyr. She steamed up to the former and hoisted an English ensign, which on being answered with a like flag she stood off again; when the Zephyr saw her at a later hour of the day she was hove to off Cape Schanck. Several rumors are afloat that the Shenandoah shipped or received on board somewhere about eighty men just prior to leaving. We have since been informed that she took away a large number, but not equal to that above stated.¹

In the Argus it was said:

It is not to be denied, however, that during Friday night a large number of men found their way on board the Shenandoah, and did not return on shore again.²

Another paper said:

There is no doubt that she has taken away with her several men from this Colony; report says eighty, but that is probably an exaggeration. The neglect of the Attorney-General in not replying to Captain Waddell’s question as to the extent of the neutral limit, has apparently absolved that commander from responsibility so far as carrying on hostile operations outside Fort Philip Heads is concerned, for, according to our shipping report, the Shenandoah steamed up to the schooner Sir Isaac Newton, evidently with the intention of overhauling her had she happened to be a Yankee vessel.³

And the Age said:

The Shenandoah left Hobson’s Bay at 6 o’clock on Saturday morning. It is currently reported that she shipped some eighty men just prior to leaving. At a late hour on Saturday she was hove to off Cape Schanck. The police on Saturday received the following information relative to an attempt made to enlist men for the confederate service on board the confederate steamer Shenandoah. About half past 4 o’clock on Saturday afternoon, a man who gave his name and address as George Kennedy, 125 Flinders Lane, east, called at the police office in Russell street, and stated that, having seen an advertisement in the Argus, he called on the advertiser, Powell, with whom was another man whose name he did not know. He remained in their company for several hours, during which time they supplied him with drink, and endeavored by every kind of persuasion to induce him to join the confederate service on board the Shenandoah, for which purpose they also conducted him to the wharf, and desisted from their efforts only when he openly stated his intention of reporting the matter to the authorities. Kennedy further stated that when the men were using their endeavors to get him to join the Shenandoah there were several other persons present who accepted their offers, and whom he now believes to be on board that vessel.⁴

On the 21st, the senior constable of the water-police reported “that at about 9 o’clock p. m. on the 17th instant, [the evening before she sailed,] when on duty at the railway pier, Sandridge, he observed three watermen’s boats leave that pier, and pull toward the Confederate States steamer Shenandoah, each boat containing about six passengers: observed likewise a person who the constable believed to be an officer of the ship in plain clothes, superintending the embarkation of the passengers; saw the same boats returning in about half an hour afterward, midway between the Shenandoah and the pier, with only one man in each of them; on returning to the pier at about midnight, was informed by the constable on duty there (Knox) that during the absence of the police; boat, three or four boats had left the pier for the Shenandoah, containing in all about twenty passengers. Have made inquiries relative to the persons conveyed on board, and find that the parties named in the margin were seen on board at one o’clock in the morning of the 18th instant.”⁵

George W. Robbins also stated to the police that “he passed across: the bay on Friday night last, with a message from the American Consul to the police, to the effect that the Shenandoah was shipping men on board. On his way he saw a boat pulled by Jack Riley and a man named Muir; they had about twelve men in a boat. On his return, Riley and Muir being alone, pulled up from the Shenandoah, and hailed Robbins. Robbins did not reply.”¹ The report of this last statement was made on the 22d.

But the United States ask the attention of the Tribunal to another fact connected with the treatment of the Shenandoah at Melbourne.

She was a “full-rigged ship of superior build, and with good winds she was a fast sailer, but with light breezes she was only ordinary. She also had steam-power auxiliary, with a propeller that could be used at pleasure, and which, when not in use, could be hoisted up, so as not to interfere with her sailing. During the days before named, she sailed more than two thousand miles, and only used her steam-power twice, once in going through the straits and again in clearing Behring’s Island.”² She only used steam-power two days during the thirty preceding her arrival at Melbourne.³ Steam was rarely used except in making captures.

Her repairs were only necessary to make her steam-power effective. The board of inspectors appointed by the Governor to ascertain what repairs were needed, reported that she was not “in a fit state to proceed to sea as a steamship, and all the particular repairs specified by them, and by the firm employed by Captain Waddell, related to her steam-power alone. Not a word is said of any repairs to her hull, and it does not appear that any were made except calking.Excessive repairs at Melbourne.

As has been seen, when she arrived she had on board four hundred tons of coal.⁴ This fact was made known to Governor Darling by the United States Consul on the 17th of February.⁵ But he must have been made acquainted with the same fact from other sources. Captain Waddell asked leave to land his “surplus stores.”⁶Coaling then excessive.

On the 7th the tide inspector reported that she “on Monday was lightening, preparatory to being taken on the slip, by discharging stores and coals into the lighters near the breakwater.”⁷ On the same day the harbor-master reported “the crew and a party of men from the shore are now employed in discharging coals and stores into lighters. * * I have been given to understand, if she be sufficiently lightened, and weather permitting, she will be taken into the slip to-morrow afternoon.”⁸ Again, on the 8th, the tide inspector reported, “The Shenandoah continued to discharge stores into lighters yesterday, but little progress was made, owing to the boisterous state of the weather.”⁹ And on the 9th, the harbor-master reported “that the persons in charge of the patent slip, on placing the Shenandoah on the cradle yesterday, found she was drawing too much water to admit of the vessel being taken up with safety. The crew and men from the shore are lightening her abaft, preparatory to another trial to get her up to-day at high water.”¹⁰ It will be borne in mind that she was a vessel of war without cargo, except coal. She was lightened, therefore, by taking out coals and supplies only.

On the 17th the Consul protested to the Governor against her being permitted to take in coals, adding, “I cannot believe Your Excellency is aware of the large amount of coal now being furnished said vessel;”¹¹ but the Governor “acquainted” him in reply, on the same day, that a ship of war of either belligerent is, under Her Majesty’s instructions, allowed to take in coal sufficient to carry such vessel to the nearest port of her own country or to some nearer destination.”¹

Thereupon, when the vessel was launched from the slip, she was hauled alongside the John Frazer, and took in three hundred tons of coal, which, with the four hundred she already had on board, gave an ample supply for the contemplated cruise.2² It is now said by the collector of customs that “two hundred and fifty tons of coals were transshipped to her from the John Frazer.”³ It matters but little which of these amounts was actually taken, for, after a cruise of nine months and her destructive work among the whaling fleet in the Arctic seas, she arrived, on the 6th of November, at Liverpool, with one hundred and thirty tons remaining on board, according to the report of Captain Paynter, of Her Majesty’s ship Donegal, to the Comptroller General of the Coast-guard.⁴

Notwithstanding the protest of the Consul, no account seems to have been required of the actual amount on hand, and from all that appears an unlimited permit was granted.

She was also permitted to take on board supplies for her cruise. The extent of these supplies does not appear.

On the 30th of January the Commissioner of Trade and Customs informed Lieutenant Waddell that “it will be necessary that a list of the supplies required for the immediate use of your vessel * * * should be sent in for the guidance of His Excellency.”⁵

On the same day Lieutenant Waddell replied, “I have to state the immediate supplies required for the officers and crew under my command consist of fresh meat, vegetables, and bread daily; and that the sea supplies required will be brandy, rum, champagne, port, sherry, beer, porter, molasses, lime-juice, and some light materials for summer wear for my men, &c.”⁶

It will be noticed that the quantities required are not stated; but on the next day the commander was notified that “permission is conceded tor you to ship on board the Shenandoah, in such quantities as may be reasonably necessary, the provision and supplies enumerated in your communication under reply.”⁷

If any further list was furnished, Her Majesty’s Government has not seen fit to present it for the consideration of the Arbitrators.

The permit for general supplies appears, therefore, to have been as unlimited as that for coal.

Without these additions to her steam-power, crew, and supplies, she never could have accomplished the objects of her cruise. Although “a last sailer in a strong wind, with a light breeze, she could not have out-sailed the average of the whalers.”⁸ It is the firm opinion of Captains Nye, Hathaway, Winslow, Wood, and Baker that if she had not used her steam-power, she could never have captured the larger portion of the whaling fleet. She waited for a calm before attacking the whaling vessels, in order to prevent their escaping into the ice, and then made chase under steam.⁹ And she could not have been safely handled in the Arctic seas if she had not obtained the additions to her crew’ at Melbourne. Even with these additions it was often necessary, as has been seen, to call on the prisoners to assist in working the ship.

The United States believe that after this statement of the occurrences at Melbourne, the Arbitrators will be surprised to find in a report of the Governor of the Colony to the Home Government, detailing the facts substantially as they are now given, the following passage:

I will not close my report of these transactions without assuring you that nothing could be further from my intention or that of my advisers than that the letter of the Commissioner of Trade and Customs of the 15th instant should be justly open to the charge of being disrespectful and insulting to the Government at Richmond. A clear recapitulation of the facts appeared to be expedient, if not necessary, for reasons which I have already stated; while the reference to that Government was a direct and natural consequence of the declaration in Lieutenant Waddell’s letter of the 14th instant, then under reply, that he had written as commander of the ship representing his Government in British waters. Nor can I omit to observe that it would have been more consistent with the representative character in which Lieutenant Waddell thus declared himself, if, possessing, as he did throughout, ample power and means to ascertain that his ship had not become a place of concealment for British subjects seeking to violate or evade the law, he had employed that power and those means more effectively before committing himself to a solemn assertion, which eventually proved incorrect, and if, upon the discovery that these men were on board his ship, (assuming that discovery to have been made as he affirms it was after he had dispatched his letter of the 14th,) he had immediately apprised the Government of the mistake he had committed, instead of leaving it to be brought to light by the apprehension of the culprits themselves, and through the medium of a police examination.¹

In less than sixty days after this report was written, and before any advices of what had been done could have reached Richmond, there was no “Government” there to be insulted, or to which representations could be made. The armies of the insurgents had surrendered, and those who had administered the Government were fugitives.

Only ten days before the date of that report, and after it was apparent to all that the struggle of the insurgents was nearly at an end, Her Majesty’s Secretary of State for Foreign Affairs addressed the first remonstrance of his Government to the agents of the insurgents, and after stating that the “unwarrantable practice of building ships in this country to be used as vessels of war against a State with which Her Majesty is at peace still continues,” says, “Now, it is very possible that by such shifts and stratagems the penalties of the existing laws of his country, nay, of any law that could be enacted, may be evaded; but the offense thus offered to Her Majesty’s authority and dignity by the de facto rulers of the Confederate States, whom Her Majesty acknowledges as belligerents, and whose agents in the United Kingdom enjoy the benefit of our hospitality in quiet security, remains the same. It is a proceeding totally unjustifiable and manifestly offensive to the British Crown.”²

It is a source of pleasure to the United States to learn that at last Her Majesty’s Government did realize that the practices of the agents of the insurgents, which had been continued for so many years, were “manifestly offensive.” It would have been more gratifying, however, if this manifestation had been noticed at a somewhat earlier date.

The Consul of the United States, in reporting the facts to his Government on the same day that the Governor reported to the Government of Her Majesty, uses the following language:

What motives may have prompted the authorities, with evidence in their possession as to the shipment of large numbers of persons on board said vessel, substantiated by the capture and commitment of some escaping from said ship, to allow the said vessel to continue to enjoy the privileges of neutrality in coaling, provisioning, and departing, with the affidavits and information lodged and not fully satisfied, I am at a loss to conceive. Was it not shown and proved that the neutrality was violated? And yet she was allowed her own way unmolested, thus enabling her to renew her violations of neutrality on a larger scale. There are eyes that do not see and ears that do not hear, and I fear that this port is endowed with such a portion of them as may be required to suit the occasion; for in what other way can my unsuccessful attempts to obtain the assistance of the authorities on the evening of the 17th instant be explained?¹

The United States believe the Arbitrators will agree with the Consul in all that he has said.

And here again the United States must ask the Arbitrators to contrast the conduct of Her Majesty’s Government with that of His Majesty the Emperor of Brazil, who, as early as June 23d, 1863, upon much less provocation from these same belligerent insurgents, caused, among others, the following salutary rules to be promulgated for the guidance of the presidents of his several provinces:Contrast between the course of Brazilian and of British authorities.

6. Not to admit in the ports of the Empire the belligerents which may once have violated neutrality.

7. To cause to retire immediately from the maritime territory of the Empire without furnishing them with any supplies whatever, the vessels which attempt to violate neutrality.

8. Finally, to make use of force, or in default, or by the insufficiency of the same, to protest solemnly and energetically against the belligerent, who, being warned and intimated, does not desist from violating the neutrality of the Empire.²

From Melbourne the Shenandoah made her way to the Island of Ascension, where, about the 4th of March, she destroyed four whaling vessels at anchor in the harbor. One of these vessels was from Honolulu, under the Honolulu flag, and commanded by a citizen of Honolulu. She remained at this island until about the 14th of March, and then cruised for nearly a month off the coast of Japan. The latter part of May she arrived in the Ochkotsk sea, where, on the 27th of May, she captured and destroyed the whaling ship Abigail, Captain Nye. She then sailed for Cape Thaddeus, a place much frequented by whaling ships, and arrived there about the 20th of June. Between that time and the 28th she captured twenty-four whaling vessels with their cargoes and outfit, and destroyed all except one, the largest number having been taken on the 28th. The United States believe the Arbitrators will find from the testimony of Captain Nye, Captain Hathaway, and W. H. Temple,³ that most, if not all of these captures were made after Lieutenant Waddell had received news that the war had ended.

It is true it is said in the British Case, “that the commander of the Shenandoah positively affirmed that he had, on receiving intelligence of the downfall of the Government by which he was commissioned, desisted instantly from further acts of war,”⁴ but it must be borne in mind that the same commander had previously made some “positive” statements at Melbourne which were afterwards found by Her Majesty’s officers there not to have been in all respects true, and under these circumstances the United States believe that, if it becomes material, the Arbitrators will give more credence to the affidavits of the intelligent captains than to the assertions of the late commander. Although the testimony of Temple was severely criticised by the attorney of the commander at the time it was presented, all his statements, material to this question, have been fully sustained by the testimony of the other witnesses obtained since that time.

The insurrection came to an end in the month of April, 1865. On the 20th of June, Mr. Mason, one of the agents of the insurgents in London, addressed a note to Earl Russell in which he said:

It being considered important and right, in the present condition of the Confederate States of America, to arrest further hostile proceedings at sea in the war against the United States, those having authority to do so in Europe desire as speedily as practicable to communicate with the Shenandoah, the only remaining Confederate ship in commission, in order to terminate her cruise. Having no means of doing this in the distant seas where that ship is presumed now to he, I venture to inquire of your lord ship whether it will be agreeable to the Government of Her Majesty to allow this to be done through the British consuls at ports where the ship may be expected.¹

Mr. Mason inclosed an “order” from Bullock, written at Liverpool, and addressed to Lieutenant Waddell, in which the following appears:

I have discussed the above circumstances fully with the Hon. J. M. Mason, the diplomatic representative of the Confederate States in England, and in accordance with his opinion and advice I hereby direct you to desist from any further destruction of United States property upon the high seas, and from all offensive operations against the citizens of that country.²

This order of Bullock was sent through Earl Russell to the consuls of Her Majesty at the points where it was expected the Shenandoah might appear.

On the 6th of November she again arrived at Liverpool, and her officers and men were landed there and discharged.Shenandoah at Liverpool.

1. Russell to Lyons, Am. App., vol. i, p. 37.
2. Am. App., vol. vi, pp. 29 and 182.
3. Am. App., vol. vi, p. 29.
4. Ibid., p. 30.
5. Ibid., p. 31.
6. Ibid., p. 30.
7. Testimony of Prioleau, Am. App., vol. vi, p. 186.
8. Ibib.
1. Am. App., vol. vii, p. 72.
2. Am. App., vol. i, p. 336.
3. Brit. App., vol. ii, p. 133.
4. Brit. App., vol. ii, p. 138.
5. Am. App., vol. vi, p. 174.
1. Adams to Russell, Nov. 20, 1862, Am. App., vol. i, p. 666.
1. Am. App., vol. iv, p. 446.
2. Brit. App., vol. i, p. 504.
3. Am. App. Counter Case, p. 897.
4. Ibid., p. 904.
5. Am. App. Counter Case, p. 916.
6. Am. App., vol. iv, p. 531.
7. Bullock to Memminger, and other correspondence, August 23, 1864; Am. App., vol. vi, p. 169.
1. Am. App., vol. vi, p. 560.
2. Brit. App., vol. i, p. 495.
3. Ibid., p. 496.
4. Am. App. Case, p. 1144.
5. Brit. App., vol. i, p. 495.
6. Brit. App., vol. i, p. 486.
7. Am. App., vol. vi, p. 556.
8. Brit. App., vol. i, p. 492.
9. Am. App., vol. vi, p. 558.
1. Brit. App., vol. i, p. 477.
2. See Temple’s affidavit, Brit. App., vol. i, p. 701; inclosure No. 2, in Mr. Adams to Earl Russell, ibid., 379.
3. Am. App. Counter Case, p. 1145.
4. Am. Case, p. 82.
5. Brit. App., vol. 1, page 294.
1. Brit. App., vol. i, p. 667.
2. Ibid., p. 667.
3. Brit. App., vol. i, p. 696: Am. App., vol. vi, p. 698.
4. Brit. App., vol. i, p. 477.
5. Brit. App., vol. i. p. 484.
6. Blanchard to Seward, Brit. App., vol. i, p. 584.
7. Am. App., vol. vi, p. 588.
8. Brit. App., vol. i, p. 499.
1. British App., vol. i, p. 500.
2. Am. App., vol. vi, p. 698.
3. Ibid., p. 630.
4. Brit. Case, p. 144.
5. Brit. App. Counter Case, vol. v, p. 68.
6. Am. App., vol. vi, pp. 589 and 659.
7. Brit. App., vol. i, p. 500.
8. Brit. App., vol. i, p. 515; Brit. Case, p. 146.
9. Brit. App., vol. i, p. 594.
1. Brit. App., Counter Case, vol. v, p. 61.
2. Am. App., vol. vi, p. 697.
3. Brit. App., vol. i, p. 499.
4. Ibid., p. 675.
5. Brit. App., vol. i, p. 701.
6. Ibid., p. 499.
7. Ibid., p. 589; Brit. Case, p. 156.
1. Brit, Case, p. 155.
2. Brit. App., vol. i, p. 598.
3. Am. App., vol. vii, p. 93.
4. Temple’s affidavit, Brit. App., vol. i, p. 702.
5. Am. App., vol. vi, p. 590.
6. See protest Captain Nichols, Brit. App., vol. i, p. 589; affidavit, Bruce, ibid., p. 594; Colby, ibid., p. 597; Silvester, ibid., p. 598; Jones, ibid., p. 599; Ford, ibid., p. 601: Brackett, ibid., p. 602; Bollin, ibid., p. 603; Sandall. ibid.; Scott, ibid., p. 604; Lindborg, ibid.
7. Am. App., vol. vi, p. 530; Brit. App., vol. i, p. 585.
1. Brit. Counter Case. p. 77.
2. Brit. App., Counter Case, vol. v, pp. 107. 108.
1. Brit. Case, p. 155.
2. Brit. App., Counter Case, volv, p. 108.
3. Brit. App., vol. i, p. 646.
4. Brit. App., vol. i, p. 647.
5. Brit. App., vol. i, p. 536
1. Brit. Case, p. 150.
2. Brit. Case, p. 151.
3. Brit. App., Counter Case, vol. v, p. 110.
4. Brit. App., vol. i, p. 647.
5. Brit. Case, p. 152; Brit. Counter Case, p. 96.
1. Am. App., vol. vi, p. 626.
2. Am. App., vol. vi, p. 627.
3. Brit. App., vol. i, p. 526.
1. Speech of McCullock in the colonial assembly, Am. App., vol. vi, 666.
1. Brit. App., Counter Case, vol. v, p. 112.
2. Ibid., p. 113.
3. Brit. App., vol. i, p. 596.
4. Ibid., p. 546.
5. Ibid., p. 614.
1. Brit. App., vol. i, p. 615.
2. Ibid., p. 621.
3. Ibid., p. 532.
4. Lord Blanchard, Brit. App., vol. i, p. 617.
5. Affidavit of Bobbins, Am. App., Counter Case, p. 115.
1. Brit. App. Counter Case, vol. v, p. 120.
2. Ibid. p. 121.
3. Brit. App., vol. i, pp. 701, 702.
4. Brit. App. Counter Case, vol. v, p. 108.
5. Ibid., p. 117.
6. Brit. App., vol. i, p. 616.
1. Am. App., vol. vi, p. 683.
2. Ibid., p. 684.
3. Ibid.
4. Ibid., p. 685.
5. Brit. App. Counter Case, vol. v, p. 119.
1. Brit. App. Counter Case, vol. v, p. 120.
2. Affidavit of Captain Nye, Am. App., vol. vii, p. 92.
3. Affidavit of W. G. Nichols, Am. App., vol. vii, p. 102.
4. Am App., vol. vi, p. 698.
5. Brit. App., vol. i, p. 614.
6. Ibid., p. 520.
7. Ibid., p. 529.
8. Brit. App., vol. i, p. 530.
9. Ibid.
10. Ibid.
11. Ibid., p. 615.
1. Brit. App., vol. i, p. 617.
2. 2 Am. App., vol. vi, p. 698.
3. Brit. App. Counter Case, vol. v, p. 85.
4. Brit. App., vol. i, p. 674.
5. Ibid., p. 640.
6. Brit. App., vol. i, p. 517.
7. Ibid., p. 641.
8. Am. App., vol. vii, p. 97.
9. Affidavits collected in Am. App., vol. vii, pp. 92 et seq.
1. Brit. App., vol. i, p. 509.
2. Am. App., vol. i, p. 631.
1. Am. App., vol. vi, p. 595.
2. Brit. App., vol. i, p. 295.
3. Am. App., vol. vii, pp. 94, 95. Brit. App., vol. i, p. 693.
4. Brit. Case, p. 157.
1. Brit. App., vol. i, p. 653.
2. Ibid.