According to Temple's account she had one hundred and one such persons, of whom fifty-seven were officers and petty officers, and fortyfour were either seamen, marines, or firemen. This result confirms the accuracy of Mr. Nye's estimates and recollection in a striking manner.

After that time, Temple represents the Senandoah as receiving recruitments from captured vessels, as follows: one officer, twenty-one seamen, one fireman, and nine marines; in all, thirty-two persons. He represents the vessel as arriving at Liverpool with one hundred and thirty-three persons on board.

In an official report made by Captain Paynter to the Controller-General of the British Coast Guard, dated November 7, 1865, (Brit. App vol. 1, page 675,) it is stated that "the Shenandoah has a complementof one hundred and thirty-three officers and men."

Temple, in his affidavit sworn to the 6th day of the following December, gives the identical number, and adds the names of the officers and men. When this affidavit was communicated to the British Government an attempt was made to impeach his veracity by efforts to show that his general character did not entitle his statement to credit; but no attempt was made to show that the list attached to his affidavit was in any respect incorrect, undoubtedly because the persons in Liverpool who knew the facts knew it to be true. The attempt was made by Captain Paynter, the officer who took charge of the Shenandoah after she was abandoned by Waddell, and under whose direction the crew was discharged. He therefore either knew whether the facts were correct, or, if they were incorrect, where the persons could be found who could show that they were so. In discharging the crew he undoubtedly had the crew list. If Temple's list had varied from the ship's crew list, it is certain that such variance would have been shown by an officer anxious to prove him unworthy of credit.

Temple's list is supported, 1st. By its intrinsic truthfulness. 2d. By its substantial agreement with Hunt's account. 3d. By the shipmaster's statements reported to Consul Munro, at Rio Janeiro. 4th. By the

D'après le récit de Temple, il avait 101 hommes, dont étaiént 57 officiers et officiers subalternes, et 44 matelots, soldats de marine et mécaniciens.

Ce résultat confirme l'exactitude de l'estimation et les souvenirs de M. Nye de la manière la plus frappante.

Après cette époque, Temple représente le Shenandoah comme recevant des enrôlements des vaisseaux capturés comme suit: 1 officier, 21 matelots, 1 mécanicien-pompier, et 9 soldats de marine, en tout 32 hommes. Il représente le vaisseau arrivant à Liverpool avec 133 hommes à bord.

Dans un rapport officiel écrit par le capitaine Paynter au contrôleur général des gardes-côtes britanniques, daté du 7 novembre 1865 (Brit. App. vol. 1, p. 675) il est declaré que le Shenandoah a un effectif de 133 officiers et matelots."

Temple, dans son affidavit du 6 décembre suivant, donne des chiffres identiques et ajonte les noms des officiers et des matelots.

Lorsque l'affidarit de Temple fut communiqué au gouvernement britannique, on chercha à mettre en donte sa véracité en montrant que son caractère n'inspirait pas de la confiance dans ses déclarations; mais on ne chercha nullement à montrer que la liste annexé à son affidarit était incorrect :-sans doute parce que les personnes à Liverpool qui connaissaient les faits savaient que cette liste était vraie. Celui qui éleva ces dontes, fut le capitaine Paynter, l'officier qui se chargea du Shenandoah lorsqu'il fut abandonné par Waddell et conformément aux instructions duquel l'équipage fut renvoyé. Il savait par conséquent si ces faits étaient exacts:-ou s'ils ne l'étaient pas, il savait où on pouvait trouver les personnes qui pouvaient démontrer leur inexactitude. En renvoyant l'équipage, il avait sans doute tenu la liste de l'équipage. Si la liste de Temple avait différé de celle là, il est évident que cette différence aurait été démontrée par un officier désireux de faire passer Temple comme indigne de foi.

La liste donnée par Temple est appuyée: 1o, par sa véracité intrinséque; 2o, par son accord avec le récit de Hunt; 3o, par les récits des maîtres des vaisseaux capturés, récits rapportés par le consul Munro à Rio Janeiro; 4o, par les affidavits de plusieurs.

affidavits of several captured seamen released at Melbourne from involuntary service on the Shenandoah. 5th. By the letter of the Governor, Sir Charles Darling. 6th. By the report of Detective Kennedy. 7th. By the affidavit of Forbes. 8th. By the affidavit of Nye, the commander of the Abagail. 9th. By the report of Captain Paynter to the controllergeneral of the coast guard. 10th. By the fact that Captain Paynter was not able to disprove it when he had the motive to do so, and when the means were within his power. If this account is to be believed, forty-three persons recruited at Melbourne, in violation of the duties of Great Britain as a neutral, joined the Shenandoah, namely, one officer, thirteen petty officers, nineteen seamen, seventy-five men, and three marines from that port, and, with one exception, no person left it there who had not been first captured as a prisoner, and then compelled under duress to do involuntary service on board.

The figures in this paper are the result of a critical examination of the documents referred to. Where they differ from those hitherto presented, they are to be taken as a revision of our former documents. GENEVA, August 21, 1872.

Analysis of the list accompanying the affidavit of William A. Temple. Came out in the Laurel-22 officers: Waddell, Grimball, Lee, Chen, Scales, Lining, McUlty, O'Brien, Codd, McGuffney, Bullock, Brown, Mason, Hunt, Minor, Colton, Smith, Howard, Guy, Lynch, O'Shea, Alcott; 10 petty officers: Moran, Warren, Bronnan, Hall, Crawford, Wiggins, Fenner, Griffith, Fox, Jones; 2 firemen : Marshall, Rawlinson; 3 seamen: Simpson, Rose, Oar-37.

Came out in the Sea King-2 officers: Whittle, Hutchinson; 1 seaman : Jones; 2 firemen: Martin, Clark-5.

Enlisted from captures made before arriving at Melbourne-9 petty officers: Rowe, Raymond, Wert, Davy, Hanson, Taft, Hopkins, Williams, Bruce; 3 seamen: Way, Blacking, Floyd-12.

Discharged at Melbourne-2 petty officers: Williams, Bruce-2.

Enlisted at Melbourne-1 officer: Blackar; 13 petty officers: Dunning, Strong, Collery. James, Spring, Burk, Exshaw, Glover, McLaren, Marlow, Smith, Alexander, Canning; 19 seamen Collins, Foran, Kerney, McDonald, Ramsdale, Kilgower, Swanton, Moss, Fegan, Crooks, Simms, Hill, Hutchinson, Evans, Morton, Gifford, Ross, Williams, Simmons; 7 firemen McLane, Brice, Green, Burges, Mullineaux, Southerland, Shatton : 3 marines: Riley, Kenyon, Brown-43.

Enlisted after leaving Melbourne and before capture of the Abagail-1 petty officer: Park; 7 seamen Welch, Morris, Adies, Delombas, Roderick, Stevenson, Rosel—8.

Enlisted after capture of the Abagail-1 officer: Manning; 21 seamen: Hawthorn, Seaman, Graft, Kelley, Dowden, Colar, Patterson, Hilcox, Canning, Vanerery, Bill, Givens, Mahoe, Long, California, French, Sailer, Brown, Kanaca, Boy, Wicks; 1 fireman : Carr; 9 marines: Murray, Silver, Burnet, Barry, Floyd, Ivors, Poulson, Clury, Grimes32.

Died on the voyage-1 petty officer: Canning; 1 seaman: Bill-2.

matelots prisonniers relâchés à Melbourne d'un service forcé sur le Shenandoah; 5o, par la lettre du gouverneur sir Charles Darling; 6o, par le rapport du detective Kennedy: 70, par l'affidavit de Forbes; 8o, par l'affidarit de Nye, le commandant de l'Abigail; 9, par le rapport du capitaine Paynter au contrôleur général des gardes-côtes; 10o, par le fait que le capitaine Paynter ne pût réussir à en contester l'exactitude, lorsqu'il avait les raisons et les moyens de le faire.

Si l'on doit croire ce récit, 43 personnes recrutées à Melbourne, en violation des de voirs de la Grande-Bretagne comme puissance neutre, s'embarquèrent sur le Shenandoah dans ce port: ce furent 1 officier, 13 officiers subalternes, 19 matelots, 7 mécanicienspompiers et trois soldats de marine, et, sans exception, personne dans ce port ne le quitta qui n'eût été d'abord fait prisonnier et obligé, par force de faire le service à bord du vaisseau.

Les chiffres de cette écriture sont le résultat d'un examen critique des documents cités; lorsqu'ils diffèrent de ceux présentés jusqu'ici, ils doivent être pris comme une révision de nos documents précédents.

Genève, le 21 août 1872.

IX.---ARGUMENT OF SIR ROUNDELL PALMER ON THE SPECIAL QUESTION AS TO THE LEGAL EFFECT OF THE ENTRANCE OF THE FLORIDA INTO THE PORT OF MOBILE, ON THE RESPONSIBILITY, IF ANY, OF GREAT BRITAIN FOR THAT SHIP.

It is important to consider the principle applicable to the special case of the Florida, after she had entered the Confederate port of Mobile, and there remained several months and enlisted a new crew, before cruising or committing hostilities against the shipping of the United States. If the antecedent circumstances, applicable to this vessel, are such as (in the view of the Tribunal) to justify the conclusion that any want of due diligence, in respect to her, can be imputed to Great Britain, the question arises, whether such want of due diligence involves, as its legiti mate consequence, responsibility for her acts, in the view of the fact that she never cruised or committed any acts of hostility against the United States until after she had been for a long interval of time in a Confederate port, and had thence issued as a duly commissioned Confederate cruiser, and in an altered condition as to her capacity for war.

The facts which occurred as to this vessel are really not distinguishable, in principle, from the case of a ship of war transported from a neutral to a belligerent country by a breach of blockade, manned and made capable of cruising for the first time in the belligerent country, and afterward actually cruising from thence. It is certain that the crew which was hired to sail with the Florida from England to Nassau, was not hired, and did not serve, for any purpose of war; it is equally cer tain that no sufficient crew for such purpose was obtained by her in the Bahamas, or elsewhere within any British possession. She did not enter the port of Mobile simply in transitu, or as a point of immediate departure for a subsequent cruise, for which the necessary preparation had been already made within British territory; but she remained there more than four months, from the 4th of September, 1863, to the 15th of January, 1864.2 She there engaged the crew which enabled her to go to sea, and to commit hostilities against the shipping of the United States. 3

On what principle would such a case as this have been dealt with by international law, if the question had not been one of national responsibility, sought to be cast upon Great Britain, but had arisen under the well-established rules applicable to neutral citizens concerned in breaches of blockade, and in the conveyance of contraband of war to an enemy? If the direct agents in conveying the Florida into Mobile (supposing she had been brought in by and under the charge of another British ship) would not have been under any continuing responsibility by international law, after leaving her there and returning to their own country, how can it be said that such a continuing responsibility ought to attach upon the nation from whose territory she was sent out, merely for want of the use of due diligence to prevent that transaction? Professor

United States App., vol. vi, pp. 307, 331.

* Ibid., p. 334.

3 Brit. App., vol. i, pp. 117, 120-122.

Bluntschli, in his paper on the Alabama question, (“Revue de droit international," 1870,) says, (page 473 :)

Il ne faut d'ailleurs pas perdre de vue que tous ces effets désastreux sont en premier lieu imputables, non pas au gouvernement anglais, mais aux croiseurs eux-mêmes. Personne n'accusera le gouvernement anglais d'avoir donné mission de détruire les navires de commerce américains ou d'avoir, par ses agissements, entravé ou endommagé la marine américaine. Ce que l'on peut lui reprocher à bon droit, en supposant que les faits cités plus haut doivent être considérés comme avoués ou prouvés, ce n'est pas un fait, mais une omission contre le droit. Sa faute ne consiste pas à avoir équipé et appareillé les corsaires, mais à n'avoir pas empêché leur armement et leur sortie de son territoire neutre. Mais cette fante n'a qu'un rapport indirect, et nullement un rapport direct, avec les déprédations réellement commises par les corsaires.

In the case of a breach of blockade the offense is deemed by international law to be "deposited," and the offense of the neutral vessel to be terminated when she has once completed her return voyage. “The penalty," says Chancellor Kent, "never travels on with the vessel further than to the end of the return voyage; and, if she is taken in any part of that voyage, she is taken in delicto." (Commentaries, vol. i, p. 151.) As to contraband, the law is thus stated in Wheaton's "Elements," (Lawrence's Edition, p. 809 :)

The general rule as to contraband articles, as laid down by Sir W. Scott, is, that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. Under the present understanding of the law of nations you cannot generally take the proceeds in the return voyage. From the moment of quitting port on a hostile destination, indeed, the offense is complete, and it is not necessary to wait till the goods are actually endeavoring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach.

Mr. Wheaton adds, by way of qualification, that "the same learned judge applied a different rule in other cases of contraband, carried from Europe to the East Indies, with false papers and false destination, intended to conceal the real object of the expedition, where the return cargo, the proceeds of the outward cargo taken on the return voyage, was held liable to condemnation." These were the cases of the Rosalie and Betty and the Nancy; as to which, in a note, the learned author says:

The soundness of these last decisions may be well questioned; for, in order to sustain the penalty, there must be, on principle, a delictum at the moment of seizure. To subject the property to confiscation while the offense no longer continues, would be to extend it indefinitely, not only to the return voyage, but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the

contraband articles.

If the analogy of these cases is followed, (and what nearer analogy can be suggested?) Great Britain cannot be held responsible for the cruises of the Florida after her departure from Mobile in January, 1864.

The case of the Gran Para (reported in the seventh volume of Mr. Wheaton's Decisions in the Supreme Court of the United States, p.471) is certainly not an authority for any contrary principle or conclusion. The question there was, not whether any authority of the United States should seize or detain the ship Irresistible, (then in the war service of General Artigas as chief of the so-called "Oriental Republic,”) which was held to have been illegally fitted out in a port of the United States, in violation of the neutrality law of that country-much less whether the United States ought to be held responsible for any of her captures upon the high seas-but solely, whether the cruise on which she had taken a prize, (the Gran Para,) which was actually brought into a port 1 The italics in this quotation are in the original text of M. Blüntschli. 2 See also Brit. App. vol. iii, p. 91.

of the United States, was so disconnected from her original illegal outfit, by the fact of her having been at Buenos Ayres during the interval, as to make it proper for the Courts of the United States to refuse to exercise jurisdiction for the purpose of restoring that prize to her original Portuguese owner? Upon the whole circumstances of the case this question was determined in the negative. The material facts being that the Irresistible was built at Baltimore, in all respects, for purposes of war; that she there enlisted a crew of about fifty men, and took in a sufficient armament for the purpose of the cruise in which she was afterwards engaged; that she went to Buenos Ayres, staid there only a few weeks, went through the form of discharging, but immediately afterwards re-enlisted, substantially, the same crew; obtained no new outfit or armament; took a commission from the Government of Buenos Ayres to cruise against Spain, but sent back that commission on the very next day after leaving the port, when the officer in command produced a wholly different commission from General Artigas, as chief of the "Oriental Republic, under which he proceeded actually to cruise. It was with reference to this state of circumstances, (so different from the facts relative to the Florida at Mobile,) that Chief Justice Marshall held that this was a colorable, and not a real termination of the original cruise.

The principle, (he said) is now finally settled, that prizes made by vessels which have violated the Acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The question therefore is, does this case come within the principle?

This Court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and, as the Irresistible made no prize on her passage from Baltimore to the River La Plata, it is contended that the offense was deposited there, and that the Court cannot connect her subsequent cruise with the transactions at Baltimore.

If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would indeed be a fraudulent neutrality, disgraceful to our own Government, and of which no nation would be the dupe. It is impossible for a moment to disguise the facts, that the arms and ammunition taken on board the Irresistible at Baltimore were taken for the purpose of being used on a cruise, and that the men there enlisted, though engaged in form as for a commercial voyage, were not so engaged in fact.

It is submitted that there is nothing whatever, in the view thus taken by Chief Justice Marshall, which can have any tendency to establish the responsibility of Great Britain for captures of the Florida, made after she left Mobile, and never brought into any British port. The simple ground of the decision was that which the Chief Justice announced at the beginning of his judgment:

The principle is now firmly settled, that prizes made by vessels which have violated the Acts of Congress that have been enacted for the preservation of the neutrality of the United States, if brought within their territory, shall be restored. The only question, therefore, is, does this case come within the principle?

And it was held to be within that principle, not because the offense was one which could never be "deposited," but because the "depositation" relied upon in that case was not real but only pretended.

That case, in fact, fell short of deciding so much even as this: that if a prize, taken by the Florida after her departure from Mobile, had been brought into a British port, and if the same rule as to the restitution of prizes, which is the settled and known law of the United States, had also been the settled and known law of Great Britain, such a prize