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the same date, says: "Since closing my dispatches for the mail, a Con federate States steamer of war, called the Shenandoah, but supposed to have been formerly the Sea King, has anchored in Hobson's Bay." She had then on board four hundred tons of coal remaining of her original supply on leaving London, which was a full cargo of eight hundred and fifty tons.3

Permission to coal and make repairs granted.

Upon his arrival on the 25th, Lieutenant Waddell asked permission of the Governor to make the necessary repairs and sup ply himself with coals to enable him to get to sea as soon as possible; also to land prisoners. 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.5

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 ves sel to carry on war against the commerce of the United States, 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. 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 gov ernor 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.

Protest of the consul.

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Against this decision the Consul most earnestly protested, and noti fied his excellency that "the United States Government will claim in demnity 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

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duct of the colony.

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The commander of the Shenandoah having received his permission to Unfriendly 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

British App., vol. i, p. 500.

2 Am. App., vol. vi, p. 698.

3 Ibid., p. 630.

Brit. Case, p. 144.

5 Brit. App. Counter Case, vol. v, p. 68.

Am. App., vol. vi, pp. 589 and 659.

7 Brit. App., vol. i, p. 500.

Brit. App., vol. i, p. 515; Brit. Case, p. 146. 9 Brit. App., vol. i, p. 594.

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.2

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.'

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Recruitment of men at Melbourne

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. 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.5

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.

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-Dine men. 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

1 Brit. App., Counter Case, vol. v. p. 61.

Am. App., vol. vi, p. 697.

Brit. App., vol. i, p. 499.

Ibid., p. 675.

5 Brit. App., vol. i, p. 701.

Ibid., p. 499.

Ibid., p. 589; Brit. Case, p. 156.

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."

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. 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 board, had a full complement of officers, but was very much in want of seamen. At two different times during the first ten days that I was on board, all hands, and my own crew besides, were obliged to be 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

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Thirty-eight men were shipped from the crews of vessels captured after leaving Melbourne, and seventeen of these were from the Abigail.' 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."

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the contemplated

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 thorities informed of Minister of Justice, affidavits of three persons; on the next recruitments, and do day he called in person, with his solicitor, upon the Crown not prevent them. 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.

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 Hot join were put in irons."

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

Brit. Case, p. 155.

Brit. App., vol. i, p. 598.

3 Am. App., vol. vii, p. 93.

Temple's affidavit, Brit. App., vol. i, p. 702. 5 Am. App., vol. vi, p. 590.

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.

Am. App., vol. vi, p. 530; Brit. App.. vol. i, p. 5×5.

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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 LawOfficers of the Crown upon whom the responsibility of these prosecu tions "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.'

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 fore1 Brit. Counter Case, p. 77.

Brit. App., Counter Case, vol. v, pp. 107. 108.

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."

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, Fiulay, 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 fortuight ago, in the hearing of several persons, that Captain Waddell offered him £17 per month to ship as carpenter. A waterman nained 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, superin

tendent.

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 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 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.

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

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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." +

Their ineffeient

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;" proceedings. 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:

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

Brit. Case, p. 155.

2 Brit. App., Counter Case, volv, p. 108. 3 Brit. App., vol. i, p. 646.

Brit. App., vol. i, p. 647.
Brit. App., vol. i, p. 536

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