fore clear that this vessel also, when she left this country, was not a ship to which the first of the three rules in the sixth article of the treaty would have applied, nor a ship with which Her Majesty's government were under any obligation to interfere, according to any rule or principle of international law. It is not pretended that the attention of the British government was in any way called to the Sea King, even at the time when the suspicions of the United States consular authorities were thus roused in regard to her. From that time up to her second departure from England, in October, 1864, the vessel seems to have been entirely lost sight of. Ten days after that second departure Mr. Dudley discovered and reported to the United States legation in London the fact that Mr. Wright, the purchaser of the Sea King, was the father-in-law of Mr. Prioleau, a member of the firm of Fraser, Trenholm & Co. It is now contended, in the Case of the United States, that this circumstance in the family history of the firm should have been known beforehand to the British government, whose duty it was to exercise a special supervision over any transfer of shipping made to or by this gentleman, and that the fact of his having acquired a vessel built for the China trade, and sent her out to Bombay with what it subsequently appeared was an ordinary cargo for such a voyage, should "at once have attracted the attention of the British officials." "The omission to take notice of this fact," it is said, "is a proof of want of the due diligence required by the treaty." It was a failure of due diligence-nay, even of "the most ordinary diligence" on the part of Her Majesty's government, that it forbore to pry into the family circumstances of Prioleau, acquaint itself with the name of his father-in-law-and, it may be presumed, with his other connections and prevent, by some unexplained process, such persons from buying steamers in the London market. What exact "notice" the officials should have taken, or what they should have done to follow up "so palpable a clew," the United States have omitted, or perhaps have not found it easy, to state. It is difficult to suppose that it can be seriously argued that such a system of espionage is among the duties which can properly be expected of a neutral government, or that such a government can fairly be charged with negligence in having failed to discover grounds for action, when the parties most directly interested, with equal access to information, had not even seen cause for suspicion. But Her Majesty's government thinks it right to direct the attention of the tribunal to this illustration of the view of international duty on which the claims of the United States are founded, and of the "due diligence," the "wakefulness and watchfulness" which, according to that view, are to be exacted from all neutral nations, under the penalty of being exposed to such demands as are now made against Great Britain. The best proof of the apparently innocent nature of the voyage is the circumstance that the persons most likely to notice anything out of the ordinary course, namely, the crew of the vessel herself, were quite unsuspicious of the real intentions of the owner; and that when it became known to them, on their arrival off Madeira, that the vessel was to be turned into a confederate cruiser, forty-two out of forty-seven of them refused every inducement in the shape of money and promises held out to them to serve in her, and insisted on being sent back to England. On the day following the departure of the Sea King from the port of 1 Appendix to Case of United States, vol. iii, p. 319; vol. vi, p. 560. *See evidence given at the trial of Captain Corbett, Appendix to Case of the United States, vol. iv, p. 632. 3 Case of the United States, p. 417. London, another steamer, the Laurel, left Liverpool ostensibly for Matamoras via Nassau. The United States consul at Liverpool reported to his Government that she had taken on board cases marked as machinery, but, in reality, as he believed, containing guns and gun[94] carriages; *that she had shipped many more seamen than were necessary for a vessel of her description; that he heard that some confederate officers were also to go out in her; and that he had his suspicions that she would prove to be a privateer; but he added, “I have no evidence against her." He could obtain no evidence; but this does not prevent the introduction into the case of the United States of the assertion that the British government could, by the exercise of due diligence, have detained her-without evidence, it must be presumed, and without any charge of an offense known to the law. Neither Mr. Dudley nor the United States legation in London gave any notice on the subject to the British authorities, and the attention of the government was first called to the proceedings of the two vessels by a report received on the 12th of November from the British consul at Teneriffe. The meeting of the Laurel and the Sea King off the Madeira Islands, and the transfer of the latter vessel to the confederate flag under the name of the Shenandoah, after receiving her armament and crew from the Laurel, have already been stated in detail by Her Majesty's government in the case presented by it to the tribunal, and need not be here repeated. For the same reason, no further account need be given of the investigations which were made by the British consul at Teneriffe on the arrival of Captain Corbett and the late crew of the Sea King at that island, on board the Laurel, and which led to his sending the captain to England under arrest for breach of the foreign-enlistment act; nor of the steps which were thereupon at once taken by the government to bring the offender to justice. Her Majesty's government maintains that all that was in its power and could fairly be expected of it was done to vindicate the neutrality of Great Britain on this occasion. The Shenandoah proceeded from Madeira, and, after a cruise of about three months, anchored in Hobson's Bay, the port of Melbourne, on the evening of the 25th of January, 1865. She was the first vessel of war belonging to either of the contending parties which had appeared in Australian waters since the commencement of the civil war. The circumstances of her visit and the conduct of her commander, Lieutenant Waddell, during her stay, placed the colonial authorities in a position of no little difficulty and perplexity, in which they seem to have acted with great discretion and vigor, though their conduct has not escaped much invidious comment in the case of the United States. It may be convenient to the arbitrators that the facts should be here restated in the form of a connected narrative. Lieutenant Waddell, immediately on his arrival, sent a letter to the governor stating that the machinery of the Shenandoah required repairs, and that he was in want of coal, and requesting permission for repairs and supplies to enable him to get to sea as quickly as possible.2 This note was received about half past 8 o'clock in the evening of the 25th of January; and the messenger was informed that it should receive early attention, and be replied to in the course of the following day. The governor accordingly summoned the executive council on the 26th, and communicated to them the application he had received; and, upon their advice, a letter was addressed to Lieutenant Waddell grantAppendix to Case of the United States, vol. iii, p. 317; vol. vi, p. 538. Appendix to British Case, vol. i, p. 500. 1 ing the permission desired, and requesting information as to the nature and extent of the repairs and supplies required, in order that the gov ernor might be enabled to judge of the time necessary for the Shenaudoah to remain in the port of Melbourne. Extracts of orders issued by Her Majesty's government for the proper preservation of neutrality were at the same time forwarded for Lieutenant Waddell's guidance.1 Upon receiving this communication, Lieutenant Waddell applied to Messrs. Langlands, iron founders, of Melbourne, to examine the vessel and undertake the repairs. He seems further, from a report received by the governor from the officials of the port, to have at once set men to calk the decks and outside of the vessel, which was the only repair that could be executed in her position at the tiine. On the 28th January he wrote to apologize for the delay in furnishing the particulars requested of him, and explained that Messrs. Langlands had been pursuing the examination, and had not yet finished their report, although he had impressed upon them the importance of haste. On the 30th January a report of the repairs required was furnished by Messrs. Langlands, and forwarded by Lieutenant Waddwell to the colonial govern ment. It was to the effect that it would be necessary to place [95] the vessel on the slip. On the same day, and before granting permission for this purpose, the governor appointed a board of three officers, one of whom was the government engineer, to proceed on board the Shenandoah, and report whether she was then in a fit state to go to sea, or what repairs were necessary. This board had the vessel examined by a diver, and reported on the 1st of February that she was not in a fit state to proceed to sea as a steamship; that repairs were necessary, and that the extent of the damage could not be ascertained without the vessel being slipped. Permission was thereupon granted for placing the vessel upon the slip, which had originally been built by the government, but was at that time in the hands of a private firm. In reply to a renewed inquiry, Lieutenant Waddell stated the nature of the supplies required by him, which consisted of fresh provisions daily for the crew, and stores of wine, spirits, lime-juice, and clothing." Of these he received permission to ship such quantities as might reasonably be necessary. An application which he made to be allowed to land some surplus stores was refused, on the advice of the attorney-general, as being inconsistent with the proper observance of neutrality; and he was afterward informed that, for the same reason, the use of appliances which were the property of the government could not be granted, nor any assistance rendered by it, directly or indirectly, toward effecting the repairs of the Shenandoah. The governor had also given directions that the officials of the port should furnish him with daily reports of the progress made in repairing and provisioning the vessel, and that every precaution should be taken against her armament being increased or rendered more effective." The reports received not showing sufficient progress in the repairs, a letter was addressed to Lieutenant Waddell on the 7th February, desiring him to name a day for proceeding to sea. Lieutenant Waddell Appendix to British Case, vol. i, p. 511; vol. v, p. 65. Ibid., vol. i, p. 640; vol. v, p. 69. Ibid., vol. i, p. 518; vol. v, p. 73. Ibid., vol. i, pp. 517 and 641; vol. v, pp. 69, 70. Ibid., vol. i, pp. 520, 552; vol. v, pp. 75, 76. Ibid., vol. i, p. 642; vol. v, p. 77. Ibid., vol. i, p. 529; vol. v, p. 74. explained the delay which had taken place as arising from the recent gales, which had prevented him from lightening the vessel. It will be seen by the reports from the officials of the port that the Shenandoah had broken adrift from her moorings.2 The state of the tides further interfered with the process of getting her on the slip, which was at last effected on the 10th February. The board of officers appointed by the governor then again examined the vessel, and reported that the repairs. necessary to render her seaworthy could be effected in about five clear working-days.3 On the 14th February Lieutenant Waddell was again requested to state when the Shenandoah would be ready to put to sea, and he replied that she would be ready for launching on the afternoon of the next day; that he had then to take in all his stores and coals, and to swing the ship; and that he hoped to proceed to sea in her by Sunday, the 19th instant.* In the meanwhile the consul of the United States had, since the arrival of the Shenandoah at Melbourne, continued to address protests to the governor, denouncing the vessel as a pirate, and contending that she was not entitled to be considered as a ship of war, and that it was the duty of the government to seize and detain her. These communications, which were accompanied by various affidavits of persons who had been taken off American merchant-vessels captured and destroyed by her, were submitted to the legal advisers of the colonial government. They reported their opinion that there was no evidence of any act of piracy committed by any person on board the ship, and that she purported to be, and should be treated as, a ship of war belonging to a belligerent power. An answer to this effect was accordingly sent to the consul. On the 10th February the consul forwarded an affidavit taken before him by a man who had lately been cook on board the ship, which tended to show that men had joined her from the colony, and were at that time concealed on board of her. The matter was at once placed in the hands of the police; and, evidence having been obtained to identify one of the persons suspected, a warrant was issued for his arrest on the 13th February." On the evening of the same day a police officer went on board for the purpose of arresting the men; but both on that occasion and on the following morning he was refused permission to go over the vessel for the purpose, Lieutenant Waddell pledging his word of honor as an officer and a gentleman that he had not any one on board, had not engaged any one, and would not do so while he was at Melbourne," and declaring that he would rather fight his ship than allow her to be searched for the man.9 The matter was laid by the governor before the executive council [96] on the same day. The *Shenandoah was at this time on the slip, although nearly ready to be launched. A letter was addressed to Lieutenant Waddell calling on him to reconsider his determination, and intimating that, in the meanwhile, the permission to repair and take in supplies was suspended. A proclamation was at the same time issued by the governor forbidding Her Majesty's subjects to render any aid or assist 1 4 Appendix to British Case, vol. i, pp. 542, 643; vol. v, p. 77. 2 Ibid., vol. i, p. 529; vol. v, p. 80. Ibid., vol. i, p. 522; vol. v, p. 78. Ibid., vol. i, p. 643; vol. v, p. 78. 5 Ibid., vol. i, p. 515; vol. v, p. 88. ance to the Shenandoah, and a body of 100 police and military were ordered down by telegraph to seize the ship. This they proceeded to do the same afternoon. About 10 o'clock in the evening four men were seen to leave the vessel in a boat pulled by two watermen. They were followed and arrested, and one of them proved to be the man against whom the warrant had been issued.1 Lieutenant Waddell wrote to protest against the course which had been taken. He denied that the execution of the warrant had been refused, as there was no such person as therein specified on board. He added that all strangers had been sent out of the ship; and that, after a thorough search by two commissioned officers, it had been reported to him that no one could be found on board except those who had entered the port as a part of the Shenandoah's complement of men. "I, therefore," he wrote, "as commander of this ship, representing my government in British waters, have to inform his excellency that there are no persons on board this ship except those whose names are on our shipping articles; and that no one has been enlisted in the service of the Confederate States since my arrival in this port, nor have I, in any way, violated the neutrality of the port." This letter was laid by the governor before his council on the 15th of February, together with one from the lessee of the slip. The latter stated that, should a gale of wind come on, it would be necessary either to launch the Shenandoah, or to run a great risk of her sustaining serious damage in consequence of her unsafe position, and that the government must take the responsibility of any expenses which might be incurred. As the object in view had been secured by the arrest of the men, it was decided, under these circumstances, to withdraw the previous prohibition, and to allow the launch of the vessel. Lieutenant Waddell was informed that this had been done on the faith of the assurance he had given; but his attention was called to the fact that the four men arrested had been on board his ship, and he was told that he would be expected to use all dispatch, so as to insure his departure by the day named by him, the 19th.3 The Shenandoah was accordingly launched on the evening of the 15th February; she reshipped, from a lighter, the stores which had been discharged before placing her on the slip, and, after taking on board supplies and coal, she left Melbourne at half past 7 o'clock on the morning of the 18th of February, being one day sooner than was expected. It is right to say that Lieutenant Waddell wrote to deny that the four men arrested had been on board with his knowledge; they had, he said, been ordered out of the vessel by the ship's police, who had only succeeded in discovering them after the third search. The officers of the Shenandoah also published, in one of the newspapers, denials of any complicity in the matter on their part. During the two days which elapsed between the launch of the Shenandoah and her departure from the colony, the most careful vigilance was enjoined on the authorities to prevent any violation of the foreignenlistment act. A reference, however, to the nature of the harbor, and to the circumstances of the case, will show how difficult it was to take effectual precautions for this purpose. Hobson's Bay, the harbor of Melbourne, is the inland termination of Port Phillip, a large basin of irregular oval shape, some 60 or 70 miles in circuit, with a narrow entrance to the sea. Such a conformation of coast offered great facilities Appendix to British Case, vol. i, pp. 525–527; vol. v, pp. 109–112. 3 Ibid., vol. i, p. 645; vol. v, p. 112. |