offended in the construction and outfit of these vessels, was the first to grant them neutral hospitalities. From that time her ports were never closed to any insurgent vessel of war; and permission to coal, provision, and repair was never refused.

It is said in the British Counter Case, p. 118, that, during the course of the war, ten insurgent cruisers visited British ports. The total number of their visits was twenty-five, eleven of which were made for the purpose of effecting repairs. Coal was taken at sixteen of these visits. The total amount of coal taken was twenty-eight hundred tons.

The number of visits made by these cruisers to all the ports of all other neutral nations during the war did not exceed twenty. So it appears that the hospitalities extended by Great Britain in this form to the insurgents were greater than those of all the world beside; and yet more serious offenses had been committed against her than any other neutral nation.

They required repairs at about one-half their visits and coal at about two-thirds.

The average supply of coal to vessels of the insurgents was one hundred and seventy-five tons.

neutrality which en

Because, therefore, the insurgents did make use of the ports of Great Britain as a base for their naval operations, and the British All this conatiGovernment did not use due diligence to prevent, but on the tuted a violation of contrary suffered and permitted it, all supplies of coal in tailed responsibilty. those ports to Confederate ships were in violation of the neutrality of Great Britain, and rendered her responsible therefor to the United States.

M. R. WAITE.

VII.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTION OF THE RECRUITMENT OF MEN FOR THE SHENANDOAH AT MELBOURNE.

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 Maj esty's "neutrality."

Care was taken to ascertain, by a proper survey, what repairs were necessary; and, while allowing them to be made, the Governor (34 February, 1865) ordered a strict supervision, and daily reports, by the

500.

1 British App., vol. i, p. 499.

2 Ibid., pp. 523, 557, and 571. Lieutenant Waddell to Governor Darling, January 25, 1865. British App., vol. i. p.

66

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." 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 appli ances, 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."

So matters stood, the most scrupulous and anxious care being taken to prevent any breach of neutrality, till the 10th of February, when Cousul 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

1 British App., vol. i, p. 519. The same as to supplies. British App., vol. i, p. 517. British App., vol. v, pp. 76, 77.

3 Ibid.,

vol. pp. 606, 608.

shipped on 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 Attor ney-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." +

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 Febru ary, 1865.) Captain Waddell thereupon remonstrated by letter of that date.

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 stran gers 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 board 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 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 1, in any way, violated the neutrality of the port.

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.

Ibid., p. 32. "Ibid., p. 644.

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."1 Captain 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.

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. 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." +

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. 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 1 British App., vol. v, pp. 527, 542, 545, 572. 2 Ibid., pp. 645, 646. 3 Ibid., pp. 537, 545. 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; althoug the fact that they were there may subsequently 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.