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

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

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

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

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On the same 14th day of February the Consul forwarded to the Governor two other affidavits, in one of which, that of Herrecruiting furnished mann Wicke, the following statement is made:

Further proof of

the authorities.

That the rations in Hobson's Bay are served by the master-at-arms, (I believe named Reed,) who gives the rations to Quartermaster Vicking, and this latter brings the rations to the galley to be cooked by the cook, known by the name of "Charley;" that said cook Charley was not on board the Shenandoah on her arrival in the bay; he went on board since her arrival, and he told me he would join the ship as cook; that he dared not do it in the port, but that he would do it when proceeding outwards; that I also saw said cook take rations to a number of men who were concealed in the forecastle, who went on board since her arrival in Hobson's Bay. That on Saturday, 11th February, 1865, when working and cleaning the Shenandoah, three boys, who came on board the Shenandoah since her arrival in this port, assisted in painting between decks, whereas the number of men so concealed (as mentioned above) worked on deck; that the said men so concealed, in number about ten, received rations cooked in the same cooking apparatus and served in the same way as the regular crew on board; they eat out of the ship's plates in the forecastle, such as were used by the prisoners while on the cruise; that they sleep on board, one part in the forecastle, the other part between decks. That the cook Charley and another, which I could identify if seeing him again, wore sometimes the ship's uniform.2

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

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

From this it appears that on the 15th of February the Governor and his council knew from the statement of an officer in command of one of Her Majesty's ships that the ship, from the "paucity of her crew," was not in condition for a ship of war; that one witness, who was still within the reach of the judicial process of the Colony, had stated, under oath, that there were fifteen or twenty men concealed in different parts of the ship who came on board to join; that an officer of the Government, whom the Governor had sent on board to examine the vessel, reported that "there appeared to be a mystery in the fore-hold" and no one had been admitted there; that the police officers of the Government, who had been directed to ascertain the facts, had reported that it was the intention of the commander to ship forty hands, and that some men had been engaged, and arrangements had been made for the engagement of others; that upon an order being issued upon the sworn testimony of a complainant for the arrest of a man who had enlisted to serve upon this vessel, the officer whose duty it was to make the arrest reported that he had been probibited by an inferior officer of the ship and by the officer in command, each acting separately, from serving the process on board the vessel, the principal officer in command declaring upon his honor as an officer and a gentleman there was no such person on board; that upon an "appeal" to the commander for a reconsideration of his decision he replied that no such person was on board at the time the request for permission to serve the process was made, when the falsehood of his statement was proven by the arrest of the man, who left the vessel at

1 Am. App., vol. vi, p. 626. 2 Am. App., vol. vi, p. 627.

3 Brit. App., vol. i, p. 526.

or about the time the letter was being written, and which was more than twenty-four hours after the attempt to serve the process was made; and that, after this statement of the commander, the Consul of the United States produced the affidavits of the other persons, who declared positively that there was a large number of men still concealed on board to enlist when the ship got out of port.

minder of the She

acting.

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

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

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

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

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

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

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

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

It thus appears plain, as a matter of fact, that the foreign-enlistment act was in course of being evaded. Nevertheless, inasmuch as the only person for whose arrest a warrant was issued has been secured, and as you are now in a position to say, as commanding officer of the ship, and in behalf of your Government, whose faith is pledged by the assurance, that there are "no persons on board this ship except those whose names are on our shipping articles, and that no one has been enlisted in the service of the Confederate States since my arrival in this port," his excellenty the Governor has been pleased to revoke the directions issued yesterday, suspending permission to

1 Speech of McCullock in the colonial assembly, Am. App., vol. vi, 666.

British subjects to aid and assist you in effecting the necessary repairs, and taking in supplies.

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

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

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

ment.*

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

On the 16th of February an examination was had of the parties arrested while leaving the ship, before one of Her Majesty's justices of the peace for the Colony. The witnesses, whose affidavits had been taken and presented to the Governor, were examined orally in court. Every fact stated in the affidavits was proven, and the accused were identified as the parties who were on the ship. One of them (Charley) was not only on the ship, but in the uniform of the ship performing the duties for which he had enlisted, or at least had agreed to enlist. Upon this testimony the persons arrested were all, on the 17th, committed for trial, and two were subsequently convicted. But one was afterward discharged by the Attorney-General on account of his youth, and another for want of proof as to his nativity. The next day the officers of the vessel appealed to the public through the newspapers. They there stated, "upon their honor," to protect themselves, and secure the escape and increased efficiency of their ship, what they dared not state, "under oath," to protect the ignorant men whom they allowed to suffer for their own crime.1

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

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

Further informa

On the 16th of February, the consul placed in the hands of the Attor ney-General a further affidavit of Michael Cashmore, a citition of contemplated zen of Melbourne, stating that he had, on the 2d of Febru recruitments. ary, seen on the Shenandoah a man in the uniform of the "ship, who was sitting with the other sailors eating soup," and who told him he had joined the ship that morning; and also an affidavit from the captain of a vessel in the port in which it was stated that fourteen

1 Brit. App., Counter Case, vol. v, p. 112.

* Ibid., p. 113.

3 Brit. App., vol. i, p. 596.

Ibid., p. 546. 5 Ibid., p. 614.

days before he had gone on board the ship and inquired of the commanding officer if he had any chronometers for sale; that he was directed to a person in the uniform of an officer; that he had made a selection from five or six chronometers handed him by the officer and bought and paid for one which he described. These affidavits were procured and placed in the hands of the Law-Officer of the Crown just after the vessel had been launched from the slip.

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

act.

Refusal of the co

At 5 o'clock in the afternoon of the 17th, the Consul received other information to the effect that men were being enlisted to increase the crew. He went at once with his new witness, lonal authorities to Andrew Forbes, to the Crown Solicitor, by whom he was sent to some of the "plenty of magistrates;" then he went to the office of the chief commissioner of police, who was not in; then to the Attor ney-General, who wanted an affidavit taken; then to the office of the detective police, but the chief of that office must have a warrant before he could act, and advised him to go to the police justice for that purpose; then to the police justice, who could not take the responsibility of granting a warrant upon the evidence of one man alone, but advised him to go to a magistrate at Williamstown, about four miles distant, who, perhaps, might have corroborative testimony. It was, by this time, halfpast seven o'clock in the evening. At this hour the Consul took the affidavit of the witness, which he sent by private hand to the attorneygeneral, and started himself for Williamstown. The witness, however, being afraid of personal harm, refused to go with him, and the affidavit did not reach the attorney general on account of the lateness of the hour. The Consul did, however, send a messenger to the water-police, at Williamstown, who reported to them the shipping of the men, but they said they were powerless to interfere without directions from the head authorities at Melbourne. In view of this state of facts the United States believe the Arbitrators will not agree with Her Majesty's Government when it says, as it does in the Counter Case, on page 97, that the Consul was "certainly more justly chargeable with a want of due diligence than those" to whom he applied for assistance. The United States in this connection also ask the attention of the Arbitrators to the following statement in the Counter Case, presented by Her Majesty, on page 98:

Such, as far as is known to Her Majesty's Government, is all the information which the authorities of Melbourne were able to obtain as to the alleged shipment of men from the Colony on board the Shenandoah. It was furnished, for the most part, to the police by the boatmen who had been employed in putting the men on board, on the understanding that they should not themselves suffer on account of what had been

done.

But on the 16th, more than twenty-four hours before she left port, it was demonstrated there was evidence enough to convict four men who had enlisted before the vessel had sailed, and before she went to the docks. That information was not obtained from boatmen. Everything transpired under the eyes of the police themselves, and the conviction followed from their testimony, connected with that which had

'Brit. App., vol. i, p. 615.

621.

Ibid., p.
Ibid, p. 532.

Lord Blanchard, Brit. App., vol. i, p. 617.

5 Affidavit of Robbins, Am. App., Counter Case, p. 115.

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