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discharge their duty, faithfully and conscientiously, in preventing any breach of neutrality on the part of the commander of the Shenandoah in the enlisting of men; nor does it appear to me that any blame can reasonably or justly attach to them in respect of permitting necessary repairs to be done to the ship, or as to the time allowed for that purpose, or as to the quantity of coal which the vessel was suffered to take on board.
The only question which presents any real difficulty is whether sufficient care was exercised to prevent men froin enlisting in the Shenandoah immediately prior to her departure.
For, it is an undoubted fact that, on the night before the vessel left, which it will be remembered was on the morning of the 18th, a considerable number of men contrived to get on board and sailed away in the Shenandoah, as part of her crew.
In addition to the suspicious circumstances connected with the secre. tion of the man “ Charley” and the other three men, it appears that a detective named Kennedy, having been directed to make inquiries, on the 13th of February, reported as follows:
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.
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, Finlay, and O'Brien, three Melbourne boarding-house keepers, are said to be employed in getting the requisite number of men, who are to receive Lo per month wages, and £8 bounty, &c.
Peter Kerr, a shipwright, living in Railway Place, Sandridge, stated about a fortnight ago, in the hearing of several persons, that Captain Waddell ottered him £17 per month to ship as carpenter. A waterman named McLaren, now at Sandridge, is either already enlisted, or about to be so.
The detective has been wable, 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.
D. S. KENNEDY,
First-class Detective. The superintendent, in forwarding this report, added the following statement :
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 Shenandoahı 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 transft-rred.
Herenpon, the commissioner of trade and enstoms undertook, by the desire of the government and council, that the Eli Whitney should be watched, and that vessel was watched accordingly.
Notwithstanding that the foregoing report of the detective Kennedy appeared to point to specific facts, and the police were on the lookout to detect any attempts to ist men, nothing of a detiuite or certain character came to light. In the report afterward made by the minister of justice, the attorney-general of the colony, the chief secretary, and the commissioner of customs, which has been before referred to, it is stated that
Whilst 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
1 British Appendix, vol. i, p. 523.
exception of the four men already 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.
On the 16th, (as appears from a report of the chief commissioner of police on this subject, made in October last,)? representations were again made to the government that the foreign-enlistment act was be. ing violated, and the police were instructed to use their utmost efforts to prevent it. Nothing, however, appears to have occurred on that day.
But about 5 o'clock on the afternoon of the 17th, a man of the name of Forbes came to the American consul, Mr. Blanchard, and informed him that at 4 o'clock that afternoon he had seen, at the pier at Sandridge, five men, most of whom, if not all, were British subjects, and that one of them bad told him that they and others were going on board a bark called the Maria Ross, then lying in the bay, and were to join the Shenandoah when she was out at sea, and that boats from the Maria Ross were to come for them at 5 o'clock. 3
The consul thereupon took Forbes to the office of the Crown solicitor; but, according to the statement of the consul made to the governor on the ensuing day, the Crown solicitor refused to take the information, and the consul further complained that the language and manner of that officer in doing so had been insulting to him. The Crown solicitor, however, disclaimed any intention of giving offense to the consul, as appears from the letter of the private secretary of the governor to Mr. Blanchard, the consul, which is as follows:
FEBRUARY 21, 1865. Sir: I am desired by his excellency the governor to acquaint you that he received your letter of the 18th instant in the afternoon of that day, Saturday, and that on Monday, the 20th, he caused it to be referred, through the honorable the attorney-general, to the Crown solicitor, for any explanation he might wish to offer.
2. After stating that it was only in consequence of his accidentally returning to his office at half past 5 p. m., after it had been closed for the day, that the interview be. tween you and himself occurred at all, Mr. Gurner states that be informed you that, not being a magistrate, he could not take an information, and adds that he was in a lurry to save a railway train, and therefore lett more suddenly than he otherwise should have done; but he positively asserts that neither in manner nor language did he insult you.
3. His excellency feels sure that the Crown solicitor's tone and manner have been misapprehended, and contidently assures you that there was no intention on the part of that officer to fail in the respect due to your position as the consul of the Cnited States of America.
What occurred after the consul left the Crown solicitor's office is to be found in the statement of a Mr. Lord, an American gentleman residing at Melbourne, made for the use of the cousul, Mr. Lord having accompanied that gentleman in his endeavors to secure the arrest of the meu. Mr. Lord states as follows:
We left and went first to the office of the chief commissioner of police, and, not finding either him or Mr. Lyttleton in, we drove to the houses of parliament, and, on sending your name to the attorney-general, he at once came out and asked us into the side-room. He patiently listened to all you had to say, and then suggested that if you would place the matter in the shape of an atiidavit he would lay it before his colleagues; that a verbal statement was not sufficient for the government to proceed upon. We then left and drove to the office of the detective police, and saw Mr. Nicholson, the chief, who heard the man's statement in full; but, as he could not act without a warrant, advised us to go to the police magistrate, Mr. Sturt, and get a warrant; then be would at once act upon it. Leaving there, we went to the residence of Mr. Sturt, in
1 British Appendix, vol. i, p. 62.
Spencer street, who received you very politely, listened to what you had to say, examined the man, but stated that he could not take the responsibility of granting a warrant on the evidence of this man alone, and advised your going to Williamstown, to Mr. Call, who perhaps would be in possession of corroborative testimony through the water-police. We then left, it being about half past 7, and you, tinding such a disinclination in any one to act in the matter, decided to take the deposition yourself and send it to the attorney-general, leaving it to the government to take such action on it as it might deem proper. Going to your consulate, the deposition was taken and a copy inclosed to the attorney-general, with a request for me to deliver it.
I took it to the houses of parliament, which I found closed; and it being then late, (abont 9,) I decided it was too late to stop the shipment of the men, as we understood the vessel was to leave at 5, and I went home and returued the letter to you on Sunday morning. Previous to going home, however, I again went to the detective office, saw Mr. Nicholson, told him how you had been prevented from getting the evidence before the government in the shape they required it. He expressed his regret, but could not act in so important a matter without it warrant.!
From the foregoing statement it appears that it was suggested by the attorney-general to the consul to embody the matter of his communication in the shape of an affidavit. This the consul, having the power to take aftidavits, could readily have done, in which case the responsibility of further action would have rested with the colonial authorities. Instead of this the consul proceeded to the office of the detective police, but, as the chief officer could not act without a warrant, he very properly advised Mr. Blanchard to proceed to the residence of Mr. Sturt, the police magistrate, to procure a warrant. This accordingly Mr. Blanchard did, but it appears that Mr. Sturt, having heard the statement of the man Forbes, was not satisfied with it or disposed to act on his unsupported testimony. He therefore declined to grant the warrant, but advised that the consul should proceed to Williamstown, to Mr. Call, the head of the water-police, who would probably be able to procure evidence of a more conclusive character.
It being by this time almost 7 o'clock, the consul decided upon doing what the attorney-general had desired him to do some two hours before, namely, take the deposition himself, and dispatch it by Mr. Lord to the attorney-general, leaving it, as Mr. Lord says, to the government to take such action as it might deem proper. The consul himself proposed to follow Mr. Sturt's advice, and proceeded to Williamstown; but we learn from his own statement that when Forbes, his informant, “ found he had to go among his acquaintances, he was afraid of bodily harm, and refused to proceed."2
In the mean time Mr. Lord proceeded with the deposition taken at the consulate to the house of parliament to find the attorney-general, but, on arriving there, found the house was up, and it being then about 9 o'clock, concluded it was too late to stop the shipment of the men, as it had been understood the vessel was to leave at 5, so Mr. Lord gave the matter up, and went quietly home.
I am at a loss to see wherein it can be said that there was here negli. gence on the part of any one, unless it may have been on that of Mr. Lord, who, having undertaken to deliver Forbes's deposition to the attorney-general, left the task he bad undertaken incomplete, because he did not succeed in finding that oflicer at the only place where he sought him. But, in truth, the whole matter becomes perfectly immaterial from the fact that what was desired to be done had reference solely to the preventing of the men from being taken off to the Maria Ross by the boats of that vessel. But, as it turned out, no intention whatever existed of conveying the men to the Shenandoah by means of the Maria Ross, or, if such intention ever did exist, it was afterward abandoned. No boats of
British Appendix, vol i, p. 619. ? Ibid., p. 587.
that vessel came to take the men off, and she left the next morning upon her own destination. But, as showing the anxiety of the local authorities to prevent men from joining the Shenandoah, it should be mentioned that it appears from the report of the detective officer subsesequently employed to make inquiry on the subject that the Maria Ross was searched to see that no men for the Shenandoah were on board of her, both before she left and again when off the leads, that is, before she finally quitted the bay.'
As has, however, been said, there can be no doubt that men did contrive to get on board the Shenandoah late that night under cover of the darkness. It appears from the statement of the consul that one Rob. bins, a master-stevedore, having observed boats taking off men with their luggage from the pier at Sandridge, went up to the American consulate about 11 o'clock at night, and gave information to Mr. Blanchard of what was going on. Mr. Blanchard, however, did not think himself called upon to repair to the spot, or deem it necessary to call upon the police to take any steps to prevent the men from being conveyed to the Shenandoal. He contented himself with telling Robbins “that Mr. Sturt, the police magistrate, had told him the water-police were the proper persons to lodge any information with,” and that “as a good subject, he (Robbins) was bound to inform them of any violation of law that came under his notice." This Robbins promised to do, and to convey a message from Mr. Blanchard to the police.
Thus the interests of the American Government were transferred by their proper representative, who no doubt went quietly to bed, hoping for the best, to Robbins, the stevedore, who, however, seems to have been, “as a good subject,” more zealous in the maintenance of neutrality than the consul, for it appears that Robbins actually went to Will. iamstown and gave information to the police. He crossed over to Will. iamstown, however, only in time to see the last boat-load, going toward the ship. In the mean time, the water-police having heard reports of what was likely to take place, were out in the bay in their boat; but Williamstown, on the opposite side of the bay, being the principal shipping-place, and the place from which men would be the most likely to embark, their attention had to be directed to that quarter; and it would seem that when they approached the pier at Sandridge, from which the men were putting off, the latter secreted themselves in some rough wood in the immediate vicinity, called scrub, and, as soon as the police boat had gone in another direction, slipped off in watermen's boats, and managed to reach the Shenandoah unseen by the police. They were seen by two constables who were successively on duty at this spot, who must, one would suppose, have been pretty well aware of what was going on, as the men had their luggage with them, and at that hour of the night could have had no business on board the Shenandoah; besides which, two American officers, one in uniform, the other in plain clothes, were o the pier directing the embarkation of the men;' but neither of these constables did anything toward preventing the men from getting off.
It is possible that, not having any warrant for the apprehension of the men, they did not think they had any power or authority to detain them; or, the numbers being formidable and the place lonely, they may have thought it wiser to abstain from interfering. By the time Robbins arrived at Williamstown and gave information of what had occurred,
1 British Appendix, vol. I, p. 121
the last boat-load of men must have been already on board;' and the police were powerless to act without orders from the authorities, which would have involved a forcible search of the ship, and which, therefore, the latter could not properly have given.?
I will not go to the length of saying that, in my opinion, the police were on this occasion as vigilant and active as they might have been. There was reason to suspect the officers of the Shenandoah of a design to recruit their crew from the port; and as that purpose had so far been prevented by the lookout kept in respect of the two ships, the Eli Whitney and the Maria Ross, suspected of being intended to take the men to the Shenandoah when outside the waters of the colony, it was not unlikely that, on the eve of the ship's departure, some attempt would be made by the men who wished to ship in her to get on board. The police had received instructions to use the utmost vigilance to prevent anything of the kind being done, but they appear to have failed to carry out their instructions at a critical moment. A few resolute officers, stationed on the two piers of Williamstown and Sandridge, would probably have prevented the men from embarking, or deterred the watermen from conveying them to the ship. But the governor and council acted throughout under an honest and thorough sense of duty, and exhibited in all their relations with the commander of the Shenandoah the fullest determination to prevent, as far as in them lay, any infraction of neutrality.
Possibly their suspicions may have been removed too easily by the positive word of honor of the American commander and his officers, but, as has been more than once observed, it has ever been a received rule of oflicial conduct to trust implicitly to the honor of an officer.
To hold, under such circumstances, that because the local police were not as vigilant as they might have been, or because under cover of the darkness men may have contrived to elude their vigilance, a nation is to be held liable for damage done by a vessel to the extent of a claim of many millions of dollars, would be, as it appears to me, to carry the notion of “due diligence” to an unheard-of and unwarranted length, and would be calculated to deprive the decisions of the tribunal of respect in the eyes of the world.
Questions have been raised as to the number of men thus added to the crew of the Shenandoah, and as to the proportion which the number thus added bore to the number of her crew on her arrival in the port. But to this I attach no value. The second rule of the treaty prohibits any recruitment of men. There can be no doubt that the number was sufficient to constitute a recruitment. And though it may be true that, independently of the addition thus made, the number of the crew remaining after the desertions at Melbourne would have been sufficient to enable the vessel to carry on operations against ordinary merchant-vessels, and, therefore, if the operations of this ship had been directed against the same class of vessels as before, the augmentation of the crew would have made no difference as to her capacity for mischief, yet I agree with the counsel of the United States that it is unlikely that without such augmentation she would have ventured into the dangerous polar seas to destroy the whaling-vessels. My opinion is based on the ground that the authorities cannot justly be held responsible for what happened in spite of their anxious desire and endeavor to insure the observance of nentrality. It only remains to be stated that on hearing that men had been em
British Appendix, vol. I, p. 553.