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

VII.—Argument of Sir Roundell Palmer on the question of the recruitment of men for the Shenandoah at Melbourne.

[undated.]

Her Britannic Majesty’s Counsel, being permitted to offer some further observations in explanation of the facts as to the recruitment of men by the Shenandoah at Melbourne, as to which there appeared to the President to be some obscurity in the evidence, takes the liberty to submit the following statement:

Before the Tribunal can hold Great Britain responsible, by reason of this recruitment of men, for the subsequent captures of the Shenandoah, it must be satisfied (1) that the Government of Great Britain, by its Representatives in the Colony of Victoria, “permittted or suffered” the use of its ports or waters by the Shenandoah for this purpose, if not directly, at least by the want of due diligence to prevent such recruitment, and (2) that the recruitment so made was an augmentation of force necessary to enable the Shenandoah to effect the captures for which Great Britain is sought to be held responsible, and without which those captures could not have been made, and was in this way a direct and proximate cause of those captures.

It cannot be pretended, on the one hand, that Great Britain ought to be held responsible for a recruitment of men by a belligerent vessel which the local Government in no sense “permitted or suffered;” nor, on the other hand, that every act prohibited by the Second Rule of the Treaty of Washington can render the neutral Government responsible for all captures after such act, however remote, indirect, partial, or insignificant may have been the relation of that act, as a cause, to those captures as an effect.

The Shenandoah arrived at Melbourne on the 25th of January, 1865, and the next day she was visited by Captain King, Naval Agent on board of the Bombay, who found that her crew (it is presumed including officers and petty officers) then consisted of seventy men¹. Of these seventy, about twenty-three appear to have soon afterward deserted, having previously served on board of some of the ships which the Shenandoah had taken on her cruise between October, 1864, and January, 1865. Her force was thus reduced to about forty-seven men, being the same, or nearly the same, number with which her cruise from the Desertas originally commenced; and less by twenty-three men than her force was when she arrived at Melbourne.²

On the day of his entrance into Port Philip, Captain Waddell, when asking permission to make the repairs and obtain the supply of coals necessary to enable him to get to sea as quickly as possible, and also to land his prisoners, gave a spontaneous promise to “observe” Her Majesty’s “neutrality.”³

Care was taken to ascertain, by a proper survey, what repairs were necessary; and, while allowing them to be made, the Governor (3d February, 1865) ordered a strict supervision, and daily reports, by the Customs authorities, directing every precaution in their power to be taken “against the possibility of the commander of that vessel in any degree extending its armament or rendering the present armament more effective.” These orders were transmitted by the Head of the Customs Department to the Harbor Master, (February 6, 1865,) with a direction that “the proceedings on board the Shenandoah must be carefully observed, and any apparent abuse of the permission granted to that vessel with respect to repairs at once reported.”¹ These orders were strictly acted upon.

On the 7th February leave to land “surplus stores” from the Shenandoah was refused, under the advice of the Attorney-General; and, on the same day, Captain Waddell was informed that “the use of appliances, 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.”²

So matters stood, the most scrupulous and anxious care being taken to prevent any breach of neutrality, till the 10th of February, when Consul Blanchard forwarded to the Governor an affidavit of one John Williams, a colored man, who had joined the crew of the Shenandoah from the captured ship D. Godfrey, in which he stated that on Monday, the 6th February, when he left the ship, “there were fifteen or twenty men concealed in different parts of the ship, who came on board since the Shenandoah arrived in Hobson’s Bay, and who told him they came on board to join the ship; that he had cooked for these men; and that three others, who had also joined the Shenandoah in the port, were at the same time working on board in the uniform of the crew of the Shenandoah.” On the 13th another affidavit of one Madden, who had also belonged to the crew of the D. Godfrey, was added, in which Madden said that, “when he left the vessel on the 7th February, there were men hid in the forecastle of the ship, and two working in the galley, all of whom came on board the vessel since she arrived in the port; and that the officers pretended they did not know that these men were so hid.”³

The letter of the 10th February was the first intimation which the Governor ever received of any attempt at a recruitment of men. On the next day, the 11th February, Detective Kennedy was directed to make inquiries on that subject; and he, on the 13th February, reported “that twenty men have been discharged from the Shenandoah since her arrival at this port. 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;” adding, “it is said that the captain wishes, if possible, to ship foreign seamen only, and all Englishmen shipped here are to assume a foreign name.” He also mentioned certain persons said to be engaged in getting the requisite number of men; and he named one man, who stated, “about a fortnight ago,” that Captain Waddell had offered him £17 to ship as carpenter, and another, as “either already enlisted or about to be so.” But, as to the persons so named, no evidence was then, or at any time afterward before the departure of the ship, produced by any person in support of the information which had been so given to the detective officer.

To this Report Mr. Nicolson, the Superintendent of Detectives, made the following important addition on the same 13th February:

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 oh board 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 Warnambool, but is to wait outside the Heads for the Shenandoah, to whom her cargo and passengers are to be transported;¹

This statement of Mr. Nicolson, while suggesting that the number of intended recruits might be even larger than that of which Detective Kennedy had received information, pointed to certain definite means, viz, transshipment from another vessel, (the Eli Whitney being named,) as those by which the recruitment was intended to be made.

The Governor in Council on the same day took these Reports, and also Consul Blanchard’s letter of the 10th February, and Williams’s affidavit, into consideration. The Law-Officers of the Colonial Government had already directed informations to issue, and warrants to be obtained, against such persons as Williams could identify as being on board the Shenandoah for the purpose of enlistment; and it was resolved that the movements of the Eli Whitney (then lying in the bay) should be carefully watched by the Customs Department. This watch was successful in preventing the accomplishment of the suspected design by means of that vessel, if it had, in fact, been entertained.²

A circumstance which occurred on the following day, the 14th of February, was calculated to confirm the impression that, if any such purpose really existed, its accomplishment was likely to be attempted by means of some auxiliary vessel lying outside the line of British jurisdiction. Captain Waddell on that day inquired by letter of the Attorney-General in what precise way the line of British jurisdiction at Port Philip was considered to be measured by the authorities. An answer to this inquiry, without explanation of the purpose with which it has been made, was most properly refused.³

A warrant having been issued for the apprehension of one of the men, said to be on board the Shenandoah and passing by the name of Charley, Mr. Lyttelton, Superintendent of Police, went on the 13th February on board the ship to execute it, but was met by the objection of the privileged character of the vessel as a public ship of war. Captain Waddell was then absent; but on the next day, the 14th, when Mr. Lyttelton returned, he repeated this objection, adding:

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.”⁴

The Governor then considered it right, since Captain Waddell refused to permit the execution of the warrant on board the ship, to suspend the permission which had been given for her repairs, and to take care that a sufficient force was in readiness to enforce that order of suspension. This was done, by a public notice, on the same day, (14th February, 1865.)⁵ Captain Waddell thereupon remonstrated by letter of that date.⁶

The execution [he said] of the warrant was not refused, as no such person as the one specified was on board; but permission to search the ship was refused. * * * 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 have been left on board. They have reported to me that, after making a thorough search, they can find no person on hoard except those who entered this port as part of the complement of men. I, therefore, as Commander of the ship, representing my Government in British waters, have to inform his Excellency that there are no persons on hoard 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.

On the next day, however, (the 15th,) certain men who had been on board, as described in Williams’s and Madden’s affidavits, left the Shenandoah, four of whom, being observed, were captured on landing; and among these was Charley, for whose apprehension the warrant had been issued. An officer of the Shenandoah was seen at the gangway of the ship, apparently directing the boatmen who took those four men on shore; and the men themselves stated to the Superintendent of Police “that they had been on board a few days unknown to the Captain; and that, as soon as he found they were on board, he ordered them on shore.”1¹Captain Waddell, when informed by the head of the Customs Department (15th February, 1865) of the arrest of these men, and reminded by him that they were thus proved to have been on board on the two previous days, when their presence was denied by the officer in charge, and by himself, “necessarily without having ascertained by a search that such men were not on board,” answered thus:

The four men alluded to in your communication are no part of this vessel’s complement of men; they were detected by the ship’s police, after all strangers were reported out of the vessel, and they were ordered and seen out of the vessel by the ship’s police immediately on their discovery, which was after my letter had been dispatched informing his Excellency the Governor that there were no such persons on board. These men were here without my knowledge, and I have no doubt can properly be called stowaways; and such they would have remained, but for the vigilance of the ship’s police, inasmuch as they were detected after the third search; but in no way can I be accused, in truth, of being cognizant of an evasion of the Foreign-Enlistment Act.²

In the depositions of Williams and Madden, taken before the magistrate on the 16th February, it was stated that certain of the subordinate officers of the ship (not Captain Waddell) were cognizant of the presence of Charley in the forecastle of the ship; but these statements were not confirmed by the other witnesses; and no similar evidence was given as to the rest of the prisoners.³ The particular officers of the Shenandoah, as to whom these statements were made by Williams and Madden, published on the same day in the Argus, a Melbourne newspaper, declarations, signed with their names, most positively denying all the statements affecting them; and one of them, Acting-Master Bullock, said that he had been often asked by persons on board if they could be shipped; and had invariably answered: “We can ship no man in this port, not even a Southern citizen.”⁴

This was the position of matters when the 17th of February arrived: the reports of the detective officers had preceded, not followed, the investigations with respect to the men alleged to be actually on board for the purpose of enlistment, and the solemn and repeated declarations and promise of Captain Waddell, on the word of a gentleman and an officer, confirmed by the declarations of the other officers of the ship. The Eli Whitney had been strictly watched. No further definite information had reached the Government, who believed that all the men who had been secreted on board the Shenandoah had actually left the vessel.⁵ Mr. McCulloch, the Chief Secretary of the Government, and Mr. Harvey, the Minister of Public Works, expressly so stated in the Debates of the Legislative Council of the 15th and 16th February, the latter minister saying, (15th February:)¹ “It was now known that several men who shipped in Hobson’s Bay had escaped, in addition to the four who were captured.” And although, on the 17th February, Consul Blanchard again requested attention to the statement contained in the affidavits originally sent, (and in certain other affidavits of persons who were also produced as witnesses against the four prisoners,) that there had been, at the dates when those witnesses left the vessel, ten or more persons on board under similar circumstances, (the witnesses speaking with wide variations as to the number;)² this was not inconsistent with the belief of the Government that all such persons had afterward left the ship, especially as, in the depositions of the same witnesses before the magistrate, (except that of Williams in one case, on cross-examination,) no mention whatever was made of any such other persons; which was also the case on the subsequent trial, in March following.³ It is further to be remembered that on the 17th February the prosecutions against these four men (who were not tried till the 17th March) were actually pending.

As matters then stood, however unsatisfactory some of the circumstances might have been, it would be very difficult for any candid mind to draw a sound distinction between the position of Captain Waddell with respect to the men alleged by him to be “stowaways,” and that of Captain Winslow, of the United States ship Kearsarge, with respect to the sixteen or seventeen men taken in that ship from Queenstown to the coast of France.⁴ If Captain Winslow, as a man of honor, was properly exonerated, upon his own solemn assurance, from responsibility for that act, in which some of his subordinates must have, to some extent, participated, and as to which his own conduct on the French coast, before he sent the men back, was certainly not free from indiscretion, can it be imputed as a want of due diligence to the Government of Melbourne (whose good faith and vigilance had otherwise been so manifestly proved) that, although not entirely satisfied with Captain Waddell’s demeanor or conduct, they accepted the solemn assurances of not one, but several officers, of the same race and blood, and with the same claims to the character of gentlemen as the officers of the United States?

In the memorandum sent home by Lord Canterbury on the 6th of November, 1871, signed by the gentlemen who were the Chief Secretary, Commissioner of Customs, Minister of Justice, and Attorney-General of the Colony when the Shenandoah was at Melbourne, it is thus stated:

While the Shenandoah was in port there were many vague rumors in circulation that it was the intention of a number of men to sail in her; but although the police authorities made every exertion to ascertain the truth of these rumors, yet (with the exception of the four men alluded to) nothing sufficiently definite to justify criminal proceedings could be ascertained; indeed, at the best, these rumors justified nothing more than suspicion, and called only for that watchfulness which the Government exercised to the fullest extent in its power. It was not until after the Shenandoah had left the waters of Victoria that the Government received information confirming in a manner the truth of these rumors.⁵

In the report from the office of the Chief Commissioner of Police, dated October 26, 1871, it is also stated that “on the 16th February representations were again made to the Government that the Foreign Enlistment Act was being violated; and the police were instructed to use their utmost efforts to prevent this; but, as 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.”¹

Late in the afternoon (about 6 p.m.) of the 17th February, the United States Consul received information from one Forbes, which was afterward, on the same evening, reduced into the shape of an affidavit, and intrusted to a Mr. Lord, with a view to being placed in the hands of the water-police, too late, however, (in Mr. Lord’s judgment,) to be so acted upon. From the haste with which the Consul was obliged to act in this matter, and the inability of the Crown Solicitor to take the affidavit, some misunderstanding arose, which, however, ceases to be in any way material, when the substance of the information is regarded. What was that information? That five persons, named by Forbes, standing on the railway pier at Sandridge, at 4 o’clock p. m., on the 17th of February, admitted to him (by the statement of one of them, made in the presence of the rest) that they were “going on board the Maria Ross, then lying in the bay ready for sea;” and that, “when the Shenandoah got outside the Heads, the boats from the Maria Ross were to come to take them on board at 5 o'clock;” adding, “that there were many more, besides his party, going the same way.”²

This statement, so far as it may be considered to have reached any officer of the Government in time for action, directed their attention positively and exclusively to the Maria Ross as the medium intended to be used for the apprehended recruitment. The Government did their duty vigilantly with respect to this ship, the Maria Ross. She was twice searched; once by the crew of the Customs boat and once again at the Heads; and it was proved to the satisfaction of Detective Kennedy (nor is there any reason now to doubt the fact) that, when she sailed on the morning of the 18th February, there were no men on board her, except her crew.³

The information which had thus been given as to the supposed intention to transfer men to the Shenandoah from the Maria Ross may perhaps supply an intelligent reason for the fact that, on the night of the 17th, the police-boat, instead of remaining off shore, pulled in the direction of that part of the bay in or near which the Shenandoah was lying.⁴

Of the shipment of men, which did undoubtedly take place on the night of the 17th February just before the Shenandoah left, whatever may have been its real amount, and of the means by which it was accomplished, the Government of Victoria had neither knowledge nor means of information. The best evidence of the facts relating to it is that which was collected shortly after the Shenandoah had sailed by the Government of Melbourne itself, and which was published at the time, without the least disguise, by Her Majesty’s Government. The substance of that evidence shall here be concisely stated; and some remarks must afterward be made on the affidavit of Temple, sworn at Liverpool in December, 1865, and on that of Ebenezer Nye, sworn in the United States on the 22d September, 1871.

The Melbourne newspapers of the 20th February, 1865, spoke of certain rumors (which were believed to be partially true, though exaggerated as to number) that the Shenandoah had taken away with her “about eighty men.” These reports were at once ordered to be investigated by the police. It appeared that seven men of Williamstown, who had been employed in coaling the Shenandoah, went on board her on the morning of the 18th, just as she sailed, under pretense of getting paid for their work, and did not return. So far, inquiry seems to have been made as to the occasion for their going. They went by daylight, and the occasion alleged was credible and lawful. Other men were taken off in boats between 9 o’clock p. m. and midnight on the 17th, from the Sandridge Railway Pier; their numbers were variously reported. According to the information obtained by Detective Kennedy, chiefly from Robbins, there were five boats employed; according to that of Superintendent Lyttelton, about 40 men were in the scrub near the pier, and three other boats went off with eighteen men. There was (according to the boatmen) an officer of the Shenandoah standing on the pier. Constable Minto, who was on duty at the pier at 9 p. m. on that evening, “observed three watermen’s boats leave the pier and pull toward the Shenandoah, each boat containing about six passengers,” and saw a person in plain clothes, whom he believed to be an officer of that ship, superintending the embarkation. He was succeeded on duty by another constable, named Knox, who, on Minto’s return at midnight, told him that, “during the absence of the police-boat, (which had pulled off, as already stated, into the bay,) three or four boats had left the pier for the Shenandoah, containing in all about twenty passengers.”¹ Besides these, it appears that one officer (Blacker) joined the Shenandoah, from a ship called the Saxonia, under circumstances of which the Colonial Government could have had no notice whatever.

It is impossible to rely on the accuracy, as to numbers, of these estimates, which, if taken at their maximum, would appear to give about thirty-eight or forty men, exclusive of the seven others from Williamstown, who went on the morning of the 18th February. But of these, again, it would be very hazardous to assume that all were recruits, whether British subjects or foreigners. Some (a very few only were identified by name) were undoubtedly both recruits and British subjects; and whether the number of them was greater or less, the offense of Captain Waddell was very justly regarded by Governor Darling as a serious one against Her Majesty’s neutrality. But it is consistent with all probability and experience that some of the proper crew of the Shenandoah may have remained on shore (as sailors constantly do) to the last moment, and may have returned with or without baggage. Justice would hardly be done to the policemen, Minto and Knox, if this habit of sailors, and also the fact that they are often accompanied by their friends to the ship, when nothing wrong is intended, were not borne in mind. Those two policemen appear to have told their story without any sign of consciousness that the circumstances had made it their duty to interfere with the boats and persons in question. If, in this respect, they should be deemed to have misconceived or to have failed in their duty, it is surely out of the question to hold Great Britain responsible on that account.

It now becomes necessary to advert to the part taken by George Washington Bobbins (whose affidavit, sworn on the 21st of September, 1871, is made part of their evidence by the United States) as to this transaction. Robbins was a stevedore at Melbourne; he gave information, at the time of the inquiry there, as to these events, to the Melbourne police and others. He stated to Detective Kennedy² that between 10 and 11 o’clock at night, on the 17th of February, he was himself in a boat alongside the Shenandoah, and saw Riley’s boat, (with twelve men,) and four other boats, put men on board that vessel. He also stated to Superintendent Lyttleton¹ that “he passed across the bay on that night, with a message from the American Consul to the police, to the effect that the Shenandoah was shipping men on board; and, on his way, saw a boat pulled by Jack Riley and a man named Muir; they had about twelve men in the boat. On his return, Riley and Muir, being alone, pulled off from the Shenandoah.”

Consul Blanchard (to Mr. Seward, February 23) says:²

During the night several persons endeavored to find me, to give information of the shipment of men for said vessel. One Robbins, a master stevedore, found me at 11 o’clock p. m., and informed me that boat-loads of men with their luggage were leaving the wharf at Sandridge, and going directly on hoard said vessel; and that the ordinary police-boats were not to be seen in the bay. I informed said Robbins that Mr. Sturt, police magistrate, told me the water-police were the proper persons to lodge any information with; and that he, as a good subject, was bound to inform them of any violation of law that came under his notice, which he promised to do. * * * On the 18th of February the aforesaid Mr. Robbins called at the Consulate, and informed me that six boat-loads of men left the wharf with their luggage during the previous night, and that they were taken on board said vessel through the propeller’s hoist-hole. When asked to give his affidavit, he said, as the officials would take no notice he would only injure his business by so doing, and he declined. He stated that about seventy men went on board said vessel on the night of the 17th February, and that some of them took and used his boat to go in. Captain Sears, of the American bark Mustang, was on the wharf watching; who informs me that he saw several boat-loads of men with luggage go to said vessel while lying in the bay; and that he also saw Robbins go to the police.

It is manifest, from all the foregoing evidence, that Robbins did not go to the police till after midnight on the 17th February, when all the men in question had already been shipped. And, if the nature of what was being done was at the time clearly manifest, it might have been expected that some interference by the police would have been previously invited by the American Captain Sears, who witnessed the departure of so many boats full of men. Robbins, in his affidavit of the 21st September, 1871, does not undertake to say more as to the number of men who were shipped than this: “I know that several men, residents of this port, went on board the Shenandoah in this port, as addition to her crew, and went away in her,” naming two individuals who did so. He also there says, “I reported to the water-police at Williamstown” (i. e., on the opposite side of the bay, where their station was) “the shipping of the men, but they said they were powerless to interfere without directions from the head authorities in Melbourne.”³ At that time the recruitment of the night in question had been fully accomplished.

It is submitted, that nothing can more plainly establish the good faith and zeal, in this whole matter, of the Government of Victoria, than the resentment which they immediately manifested at the breach of Captain Waddell’s honorable engagement and at the violation of Her Majesty’s neutrality which had thus taken place. A resolution was at once passed to refuse all further hospitalities to the Shenandoah in the event of her return; and information was promptly given (February 27, 1865) to the Governors of all the neighboring British Colonies that they might adopt a similar course.⁴

With respect to Temple’s affidavit, its only bearing is upon the question what number of men were shipped by the Shenandoah at Melbourne, and whether those were, or were not, British subjects. Apart from any extrinsic confirmation which it may be considered to receive from more trustworthy quarters, no reliance can be placed upon the truth of any word spoken by this man. He is proved¹ to have offered, in the case of Captain Corbett, to give evidence then admitted by himself to be willfully false; and in this very affidavit he states several flagrant falsehoods, which he must have well known to be such, as to entertainments alleged by him to have been given on board the Shenandoah, not only to other officers of the Colonial Government, but to the Governor of Victoria, Sir Charles Darling, himself; and also as to assistance in like manner alleged by him to have been given to Captain Waddell, in the repairs of the ship, by the Government Surveyor at Melbourne.²

What Temple says is, that when the Shenandoah left Port Philip she had on board “some fifty or sixty persons as stowaways, all British subjects.” His means of knowledge as to who were, and who were not, really British subjects, do not appear, and cannot be assumed. In the list appended to his affidavit, the composition of the crew, when the ship arrived at Liverpool in the autumn of 1865, purports to be stated. By that list it is made to appear that she then had twenty-four officers, and thirty petty officers and men, who were on board her at the time of her arrival at Melbourne; one officer (Blacker, in place of another who had left her there) and forty-three petty officers and men, (thirty-seven said to be British, and six American,) who joined her at Melbourne; and thirty-eight men, obtained from the crews of vessels captured subsequently to her departure from Melbourne. “Some fifty or sixty” thus became, even on his own showing, reduced to forty-four.

It is submitted that nothing is added to the credit or weight of Temple’s evidence, on these points, by the remarks made upon it in Governor Darling’s dispatch to Mr. Cardwell of the 21st March, 1866:³

Having expressed to you in my dispatches, to which you refer, my belief that Captain Waddell had, notwithstanding his honorable protestations, flagrantly violated the neutrality he was bound to observe, in the shipment of British citizens to serve on board his vessel, I have read without surprise, but with deep regret, the long list of names furnished by Mr. Temple, which completely proves that this belief was justly founded.

The Governor, without going into any exact computation, was content to take the statement of a man whom in other respects he proved in the same letter to have sworn to deliberate untruths, as sufficient to confirm his own general belief, previously formed and expressed. If Temple is not a trustworthy witness as to details, this cannot make him so; the original grounds of the Governor’s own belief remain, as they were before, a far better source of information.

With respect to the affidavit of Ebenezer Nye, of the Abigail, (United States Appendix, vol. vii, p. 93,) he says nothing of his own knowledge, but simply reports information said to have been given to him, after May, 1865, on board the Shenandoah, by Mr. Hunt, the master’s mate of that ship. Even if there were nothing else by which to test the value of such miscalled evidence, it would plainly be of no value. Hunt is here represented as saying that “forty-two men joined the Shenandoah at Melbourne; that some of them came on board when she first arrived; that the United States Consul protested against their joining, and the Governor finally attempted to stop them, and to search the ship; but that Captain Waddell would not allow the ship to be searched, though a number of recruits were then on board; that the Governor was then about to seize the vessel, but that Captain Waddell by his firmness, and threats to leave the ship upon the Governor’s hands, and to return and report the matter to his Government, obtained her release.”

The Tribunal knows, from the contemporaneous documents, what were the real facts, of which this is a garbled and inaccurate version. This same Mr. Hunt also wrote a pamphlet called “The Cruise of the Shenandoah,” some extracts from which the United States have made part of their evidence.¹ In this narrative,² after speaking of the progress of the repairs of the Shenandoah at Melbourne, a story, in some respects similar, is told, but with the omission of all the particulars material to the present inquiry. Not one word is there said about recruits; on the contrary, there is an implied denial that, when the temporary suspension of the repairs took place, any recruitment had been attempted or was intended. “The work,” he there says, “was nearly completed when an order came from the governor to seize the ship, a rumor having been widely circulated and believed that he had a number of men on board, intending to take them to sea and enlist them in violation of the well-established rules of International Law.” Either Mr. Ebenezer Nye’s memory after six years confounded things elsewhere read with Mr. Hunt’s representations, or those representations must have had in them, as his “Cruise” itself has, a large element of “romance.” Whatever view may be adopted, Mr. Nye’s affidavit really adds nothing to the original evidence, from which alone the truth on this subject can be ascertained.

Let it, however, be supposed that the statements of Temple, and of Hunt, according to Nye, might be accepted as accurate; that, in all, forty-two or even forty-four men were taken on board the Shenandoah at or from Melbourne. The Shenandoah had lost, at Melbourne, one officer and twenty-three men out of those who constituted her crew when she arrived there, (being the men, or the greater number of them, who had previously joined her from captured vessels.) By this assumed addition her number of officers when she left was the same, and her complement of men was greater by about twenty only than when she arrived in the colony. If such an addition (supposing it were deemed, contrary to the effect of the whole evidence, to have been improperly “suffered” by the Colonial Government) were deemed a sufficient ground for holding Great Britain responsible to the United States for all her subsequent captures, it seems impossible to escape from the conclusion that if the Kearsarge had gone to sea, and made captures with the sixteen or seventeen men on board whom she shipped from Queenstown, the Confederates (had they been successful in the war) might have held Great Britain responsible for all the subsequent captures of the Kearsarge; nay, further, that France is at this moment à fortiori responsible to the United States for all the captures made by the Florida after she had been permitted to renovate her crew in that country.

On what ground is it to be assumed that the addition of this number of men was a direct or proximate cause of all or any of those captures so as to make Great Britain responsible for them?

True it is, that when the Shenandoah came into Port Philip, on the 25th of January, with seventy hands on board, Captain King reported that “from the paucity of her crew at present she could not be very efficient for fighting purposes.”³ But she never was meant, and she never was used, for fighting purposes. Her first cruise, after leaving Desertas, began with a complement of officers and men certainly not larger than that which remained in her at Melbourne, after all the desertions which took place there, and before any new enlistments. Yet, with that limited number, she began a, series of captures; and, as she made these captures, she increased her crew successively from the vessels taken—the Alina, the D. Godfrey, the L. Stacey, the Edward, and the Susan. If she had left Melbourne without any recruitment whatever, she would have been in quite as good a condition for her subsequent cruise as she was for her original cruise, when she left Desertas. The whaling vessels, which she met with afterward, could no more have offered resistance to her than the merchant and whaling ships which she had met before.

On the day of her leaving Port Philip, (18th February,) Consul Blanchard, who had then received all the information which Robbins and others could give him as to the number of men taken on board during the preceding night, wrote thus to Mr. McPherson, the American Vice-Consul at Hobart Town: “My opinion is that she intends coming there, with a view to complete her equipment, she having much yet to do to make her formidable. She cannot fight the guns she has on board.”¹ In point of fact, her subsequent cruise was conducted exactly as her previous cruise had been, and, on Temple’s showing, she added to her crew, during the interval between her leaving Melbourne and her arrival at Liverpool, thirty-eight more men, taken from subsequently-captured vessels—the Hector, Pearl, General Williams, Abigail, Gypsey, W. C. Nye, and Favorite. It is, therefore, perfectly apparent from the whole history of the ship and of both her cruises, that she was not dependent for her power to make captures upon any addition to the strength of her crew which she received at Melbourne, and that her proceedings would, in all probability, have been exactly the same if she had never received that addition. Can the Tribunal possibly decide that, for the whole losses caused to American citizens by those subsequent proceedings, the nation, in one of whose colonies this recruitment of men (not shown to be a proximate cause of any loss whatever) took place, is to be held responsible?

Finally, it is right that, on the part of Great Britain, but in the interest not of Great Britain alone, but of civilized States in general, the attention of the Tribunal should be seriously directed to the general importance of the question on which it is now about to determine.

The facts, to which the discussion relates, occurred seven years ago in a remote colony distant several thousand leagues from Great Britain. The Governor, who then administered the affairs of the Colony, has long been dead. To hold personal communication with the officials, to obtain from them renewed explanations and interrogate them on points of detail, has been impossible. To expect that the British Government should be able to state with exactness every measure of precaution then adopted, and every order or instruction orally given by the police authorities of the Colony to their subordinates, and to account for and explain every circumstance as to which a doubt may be suggested, would be unreasonable in the highest degree. Nevertheless, the Government of Her Majesty has, with an openness, fullness, and precision which it believes to be entirely without example in the history of international controversies, placed before the eyes of the Arbitrators every fact, every direction given to its officers, every act of the Governor of the Colony and his Council, which could be gathered from the records of the Colony or of the Home Government, or could be ascertained by a strict and careful inquiry. This narrative shows that, whatever might have been the feelings and sympathies of the people of the Colony, (feelings which, in a free community, no Government attempts to control,) there was, from first to last, on the part of the Colonial Government, a sincere and anxious desire to adhere strictly to the line of neutral duty. It is a narrative of renewed and continued precautions, renewed and continued from day to day during the whole time that the cruiser remained in the waters of the Colony. No reasonable person can doubt that any increase of the Shenandoah’s armament, any augmentation of her crew, was a thing which the Colonial Government was really desirous of preventing by all means within its power. No reasonable person can fail to see that prevention, in the latter case, was embarrassed by difficulties, which could only be fully understood by persons actually on the spot, and for which, in judging of the conduct of the local authorities, fair allowance ought to be made. On the night before the Shenandoah left Melbourne, a number of men, taking advantage of those difficulties, contrived to elude the vigilance of the authorities and to get on board the ship, some under cover of the darkness, others under a plausible pretext, which could not be known to be untrue.

Whether, on these facts, Great Britain is to be charged with a failure of international duty, rendering her liable for all captures subsequently made by the Shenandoah, is the question now before the Tribunal; and it is the duty of the Arbitrators to weigh deliberately the responsibility they would undertake by deciding this question in the affirmative.

They will not fail to observe that the principle of such a decision is wholly independent of the three Rules. It is a decision on the nature of the proof, on the character of the facts, upon which a belligerent nation is entitled to found a claim against a neutral, and that claim a demand for indemnity against losses sustained in war in which the neutral has no part or concern. It is not confined to maritime wars. It extends, and may be applied, at the will of the belligerent, to any act which a neutral Government is under any recognized obligation to endeavor to prevent. Is it necessary to point out that such a decision will certainly prove a fertile precedent?

Throughout the whole of this controversy Great Britain has steadily maintained one thing—that, before a heavy indemnity is exacted from a neutral nation for an alleged violation of neutrality, the facts charged should, at any rate, be proved. This is demanded alike by the plainest considerations of expediency and by the most elementary principles of justice. If this Tribunal decides that, in a case of doubt or obscurity—a case, in other words, in which the proof is imperfect, the fact of negligence not clearly made out, and in which recourse must be had to vague presumptions and conjectures—the culpability and burden are to be thrown upon the neutral nation, it will have established a grave and most dangerous precedent—a precedent of which, in the future, powerful States, under circumstances of irritation, will certainly not be slow to take advantage.

Roundell Palmer.

1. British App., vol. i, p. 499.
2. Ibid., pp. 523, 557, and 571.
3. Lieutenant Waddell to Governor Darling, January 25, 1865. British App., vol. i, p. 500.
1. British App., vol. i, p. 519. The same as to supplies. British App., vol. i, p. 517.
2. British App., vol. v, pp. 76, 77.
3. Ibid., vol. i, pp. 606, 608.
1. British App., vol. v, p. 523.
2. Ibid., p. 521.
3. British Appendix, vol. v, pp. 78, 79.
4. Ibid., vol. i, p. 524.
5. Ibid., p. 525.
6. Ibid., p. 644.
1. British App., vol. v, pp. 527, 542, 545. 572.
2. Ibid., pp. 645, 646.
3. Ibid., pp. 537, 545.
4. British Appendix, vol. i, pp. 547–548. It appears from the depositions that there were at this time (and, indeed, until the vessel left the port) many men working on board; and it may be collected also from the depositions that the four prisoners came or remained on board of their own accord, being desirous of going to sea in her; although the fact that they were there may subsequeutly have come to the knowledge of some of the officers.
5. See, also, Lord Canterbury’s dispatch of November 6, 1871; British Appendix, vol. v, p. 61.
1. British Appendix, vol. i, pp. 633, 636.
2. Ibid., pp. 606, 611, 615.
3. Ibid., pp. 537, 545, 568, 571.
4. See United States Appendix, vol. ii, pp. 419–454; particularly pp. 429, 430, 434, and 448.
5. British App., vol. v, p. 62.
1. British App., vol. v, p . 121.
2. Ibid., vol. i, p. 555.
3. Ibid., vol. v, pp. 120, 121.
4. Ibid., vol. i, p. 551.
1. British App., vol. i, pp. 550–553.
2. Ibid., p. 550.
1. British App., vol. i, pp. 550–553.
2. Ibid., p. 587.
3. Appendix to United States Counter Case, p. 1185.
4. British Appendix, vol. i, p. 565.
1. British App., vol. i, pp. 710, 711, and 723.
2. Ibid., pp. 696, 721, and 722.
3. Ibid., p. 722.
1. United States Appendix, vol. vi, pp. 694–698.
2. Ibid., p. 696.
3. British Appendix, vol. i, p. 499.
1. British Appendix, vol i, p. 617.