barked in the Shenandoah prior to her departure, the governor caused inquiries to be made, and finding that a violation of neutrality had taken place, he announced his intention of refusing the hospitality of the port to the captain or any other officers of the Shenandoah, should they again visit the colony. He, moreover, wrote to the governors of the other Australian colonies, and to the commodore of the station, to warn them of what had occurred. As the Shenandoah did not visit any other British port until she arrived at Liverpool to be surrendered at the end of the war, no opportunity occurred of taking proper notice of the conduct of her commander on this occasion.

Importance has been attached to the language of this letter of the governor. It is in the following terms:

GOVERNMENT HOUSE, Melbourne, February 27, 1865. SIR: I consider it my duty to place your excellency in possession of the accompanying correspondence and other documents connected with the proceedings of the commander of the Confederate States vessel Shenandoah, while lying in Hobson's Bay, for the purpose of having necessary repairs effected and taking in supplies, under permission granted by me in accordance with the conditions prescribed by Her Majesty's proclamation and instructions for the observance of neutrality.

2. I have also the honor to forward copies of letters from the chief commissioner of police in Victoria, accompanied by reports and statements which leave no doubt that the neutrality has been flagrantly violated by the commander of the Shenandoah, who, after having assured me of his intention to respect it, and pleaded the privilege of a belligerent ship of war to prevent the execution of warrants under the foreign-enlistment act, nevertheless received on board his vessel, before he left the port on the leth instant, a considerable number of men destined to augment the ship's company.

3. I have thought it right to communicate to your excellency this information, in the event of Lieutenant Waddell or any of his officers hereafter claiming the privileges of a belligerent in any port of the colony under your government.

I have, &c.,

C. H. DARLING.

Our distinguished president dwelt, as one of the governing motives of his decision against the British government as to this ship, on the admission thus made by the governor, that the neutrality had been flagrantly violated by the commander of the Shenandoah, as though this were an admission made by the governor as against himself. The gov ernor is complaining that the neutrality of a British port has been violated by a belligerent, in spite of the endeavors of the authorities to maintain it, and of the pledge given by the belligerent to respect it. To hold the governor responsible for what he thus complains of is to reverse the nature of things and to make the party wronged liable instead of the wrong-doer. The violation of the neutrality of a British port by the commander of the Shenandoah could only affect British liability if there had been negligence on the part of the British authorities, whereby the violation of neutrality had been allowed to occur.

I cannot, therefore, concur in the decision of the majority of the tribunal that the British government is responsible for anything that happened with reference to the Shenandoah at Melbourne. Looking to the regulations, and the distance of the vessel from her nearest port, I cannot agree with the president that too much coal was allowed. I cannot agree that repairing or taking in coal at a particular port, on the way to some ulterior operation, makes the port a base of naval operations; still less that the neutral can be affected thereby when he is ignorant of the ulterior operation so contemplated. I cannot agree that where the government of a colony is honestly desirous of doing its duty and maintaining neutrality, the fact that men anxious to ship on board a belligerent vessel elude the vigilance of the police in the nighttime is to make the parent state liable for all the damage such vessel

British Appendix, vol. i, p. 565.

After leaving Mel

may afterward do. And I protest, respectfully but emphatically, against a decision based on grounds to my mind so wholly untenable. The remainder of the history of the Shenandoah may be told in a few words. On leaving Melbourne in February, 1865, she proceeded to the arctic seas in quest of the whalers of the bourne, United States; and does not appear to have touched at any port, with the exception of the island of Ascension, until she arrived and surrendered at Liverpool, on the 6th of November, 1865. Meanwhile, however, the great contest between Federals and confederates had been finally decided. General Lee had been forced to evacuate the lines of Petersburgh and Richmond, and had surrendered with the remnant of his army. The president and vice-president of the confederacy had been arrested and the principal European powers had withdrawn the recognition of belligerent rights accorded in 1861. Under these circumstances, Mr. Mason, the confederate agent in England, applied to Her Majesty's government, on the 20th of June, 1865, for permission to send, through the British authorities, letters to the commander of the Shenandoah directing him to desist from any further hostile proceedings. This application was acceded to, and the letters of recall were sent to Nagasaki, Shanghai, and the Sandwich Islands, and copies were also sent to the governors of the British colonial possessions and to the officers commanding the British squadrons in the Pacific and China seas, and on other foreign stations. In August, reports were received by the British government from Washington, that the Shenandoah was continuing her depredations although her commander had been informed of the termination of the war, and orders were in consequence given to the various colonial authorities, and to the officers commanding British squadrons, to detain the vessel whenever she should come within their reach. The vessel herself was to be surrendered to the United States authorities, but the crew was to be allowed to go free. She arrived at Liverpool on the 6th of November, 1865, and was at once placed under detention by the authorities. A party of men from Her Majesty's ship Donegal was placed on board of her, and a gun-boat lashed alongside to prevent her leaving the port. Her commander addressed, the same day, a letter to the British government surrendering the vessel. He explained that the captures made by him after the close of the war had been made in ignorance of that fact, and asserted that he had received the first intelligence of the extinction of the government, under whose authority he was acting, on communicating at sea with a British bark on the 2d of August, and that he had then suspended all further warlike action.3

Acting upon the advice of the law-officers, the British government decided upon setting free such of the crew of the Shenandoah as could not be prosecuted under the foreign-enlistment act, and upon giving up the vessel herself to the United States Government, who had claimed her through their minister in London. This was accordingly done. The captain of Her Majesty's ship Donegal, who had been placed in charge of the Shenandoah, interrogated the crew, and having satisfied himself, as he afterward reported, that none of them were British subjects, the whole of them were set at liberty. It is certain that, at the time, no evidence to prove the British nationality of any of the crew was offered to, or in the possession of, Her Majesty's government. About seven

1 British Appendix, vol. i, p. 654.

2 Ibid., p. 657; United States Documents, vol. vi, p. 701.

3 British Appendix, vol. i, p. 667.

4 Ibid., pp. 682, 711.

weeks afterward, the deposition of a man named Temple, who asserted among other things that part of the crew were British subjects, was communicated by Mr. Adams to the government, and investigations were made with a view to instituting prosecutions. But Temple was found

1

to be himself unworthy of credit, and, no further evidence being forthcoming, the matter was allowed to drop. The Shenandoah was finally delivered up to the American consul at Liverpool, and sailed for New York in November, 1865.2

It

The act of the British government in thus giving orders for seizing the Shenandoah has been referred to in the United States argument as an instance of the exercise of the prerogative. And in a certain sense it is true that it was so. But the case was altogether exceptional. was supposed that the Shenandoah being, owing to the extinction of the confederate government, from whom her character as a ship of war had been derived, without a commission, was continuing her hostile operations on the high seas. Such acts done in the absence of a commission would have assumed the character of piracy, and the party committing them have become a hostis communis, who might be taken by any one having the means of stopping such proceedings. Instructions might therefore well be given to any officers of Her Majesty to seize the vessel wheresoever found.

Cases of the Sumter, Nashville, Chickamauga, Tallahassee, and Retri

bution.

The five cases we are now about to enter on belong to a class dif fering altogether from those which have hitherto occupied our attention. We have here no question as to the fitting out or equipping on British territory; none of those vessels having been fitted out or equipped, for the purpose of war, in a British port. The complaint with respect to them is that they were permitted unduly to enter and remain in ports of Great Britain, and to procure coal, beyond what Her Majesty's regulations of the 31st of January, 1862, prescribed; or that they were treated with a degree of indulgence refused to ships of the United States.

The Sumter at Trinidad.

FIRST, AS TO THE SUMTER.

This vessel was a steamship; she was purchased at the commencement of the war, by the government of the Confederate States, fitted out, and armed, and duly commissioned as a ship of war. As such she left the Mississippi, on the 30th of June, 1861, under the command of an officer of the name of Semmes, holdinga commission from the confederate government. She cruised for a period of six months, and during that time made seventeen prizes. She coaled once, and once only, at a British port, namely, at Trinidad, where she arrived on the 30th of July. But prior to arriving at Trinidad, she had put in and coaled at the Spanish port of Cienfuegos, and the Dutch port of St. Ann, Curaçoa. After her visit to Trinidad, she put in and coaled at the Dutch port of Paramaribo, and after that at Martinique. Besides stopping at these ports, she put into Cadiz for repairs.

It was in respect of the Sumter, the first ship of war of the Confederate States which appeared upon the ocean, that the United States Government asserted the untenable position that, while itself treating those States as a belligerent power, and shrinking from treating confederate prisoners as rebels, or confederate ships, when taken, as pirates,

they were entitled to call upon all other nations to treat these ships as such, and to refuse the ordinary shelter accorded by the universal comity of nations to vessels of war in neutral ports. Upon this assertion, which was at once repudiated by every other country, I have already taken the opportunity of making such remarks as occurred to me. I refer to the subject in this place only for the purpose of pointing out that, as regards the assistance afforded to the Sumter at Trinidad, the complaint preferred by the United States Government was not in respect of any excess in the accommodation afforded, but to the vessel having been permitted to enter the port and receive any assistance at all.

On the 7th of August, Mr. Francis Bernard, an American gentleman residing at Trinidad-there being at the time no United States consul at that place-wrote to inform Mr. Seward that, "on the 30th ultimo, a steam sloop-of-war, (Semmes, commander,) carrying a secession flag, five guns, some of a large caliber, and a crew of from 120 to 150 men, sailed boldly into our harbor, and reported herself to the authorities of this island as being on a cruise. She was last from Puerto Cabello; and since she succeeded in getting out of the Mississippi River she has already captured no less than eleven American vessels."

Having given the names of some of these, he adds: "The Sumter remained here till the 5th instant, and was allowed to supply herself with coals and other necessary outfits. The British flag was hoisted on the government flag-staff for her arrival, and the officers of the British warvessel Cadmus appeared to be on amicable terms with those of the Sumter. The merchant who supplied the Sumter with coals did it with the consent and approval of our attorney-general."

On the 30th September Mr. Adams, transmitting to Earl Russell an extract from Mr. Bernard's letter, writes as follows:

LEGATION OF THE UNITED STATES,

September 30, 1861.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States, regrets to be obliged to inform the Right Honorable Earl Russell, Her Majesty's principal secretary of state for foreign affairs, that he has been instructed by the President of the United States to prefer a complaint against the authorities of the island of Trinidad for a violation of Her Majesty's proclamation of neutrality, by giving aid and encouragement to the insurgents of the United States. It appears, by an extract from a letter received at the Department of State from a gentleman believed to be worthy of credit, a resident of Trinidad, Mr. Francis Bernard, a copy of which is submitted herewith, that a steam-vessel known as an armed insurgent privateer, called the Sumter, was received on the 30th of July last at that port, and was permitted to remain for six days, during which time she was not only furnished with all necessary supplies for the continuance of her cruise, under the sanction of the attorney-general, but that Her Majesty's flag was actually hoisted on the government flagstaff in acknowledgment of her arrival.

The undersigned has been directed by his Government to bring this extraordinary proceeding to the attention of Lord Russell, and in case it shall not be satisfactorily explained, to ask for the adoption of such measures as shall insure, on the part of the authorities of the island, the prevention of all occurrences of the kind during the continuance of the difficulties in America.

The undersigned deems it proper to add, in explanation of the absence of any official representation from Trinidad, to substantiate the present complaint, that there was no consul of the United States there at the time of the arrival of the vessel. The undersigned had the honor, a few days since, to apprise Lord Russell of the fact that this deficiency has been since supplied by preferring an application for Her Majesty's exequatur for a new consul, who is already on his way to occupy his post.

It will be observed that, in these communications, nothing is said as to the quantity of coal; all that Mr. Bernard reports is that the vessel British Appendix, vol. ii, p. 3.

* Ibid.

"was allowed to supply herself with coal and necessary outfit." In the case of the United States this is converted, without any reference to the actual quantity, into "a full supply of coal.”1

In point of fact, the vessel took in eighty tons, which, as we shall see presently, was not a third of what she could actually carry.

The facts which occurred on the arrival of the Sumter at Trinidad were these:

The governor, evidently a little embarrassed at this, the first visit of a confederate ship of war to the island, sent off a dispatch to Captain Hillyer, commanding Her Majesty's ship Cadmus, then supposed to be at St. Vincent, requesting his presence. Before receiving the letter Captain Hillyer, as appears from his report to Admiral Sir A. Milne of the 6th August, being about to enter the harbor of Granada, was informed by the harbor-master there that a large privateer, belonging to the southern confederation, was at Trinidad, and that the governor of the latter island had dispatched a letter to him at St. Vincent the day before; whereupon he proceeded with his ship to Trinidad, arriving there on the 4th.

He reports farther as follows:

I found a heavy bark-rigged steamer, with South federal flag, with ten stars and pendent, flying. An officer from her boarded us as soon as we anchored, with the captain's respects. Soon after I sent the senior lieutenant, Mr. Sittingstone, with my compliments, requesting he would be good enough to show his commission and papers, which, after some hesitation, and not before Mr. Sittingtone produced his cominission, he did.

From his report, it is a regular commission as commander to Captain Semmes, late of the United States Navy, to the Sumter, as a man-of-war, signed by President Davis. She mounts five guns between decks, viz, four heavy 32-pounders and one pivot 68pounder; but, having been a passenger-boat, her scantling is so light (not more than 5 or 6 inches) that I do not think she conld stand any firing, and the guns being only from 4 to 5 feet from the water, would not be worked in bad weather.

She broke the blockade at New Orleans, and was nearly captured; since then she has been most successful, having eleven prizes; two she sank and the rest are at St. Jago de Cuba, under the protection of the government, with the sanction of the govvernors-in-chief, until they receive orders from Spain as to the matter.

She has been supplied with a new main-yard, eighty tons of coal, and provisions from this place, the attorney-general having given the governor his opinion that it was quite legal to supply her.

I called on Captain Semmes next morning as he was getting his steam up, and he gave me full assurance that he would in no way interfere with British or neutral trade, but complained greatly of the southerners having no port to send their prizes to, and that he would be obliged to destroy all he took, in consequence of the strict blockade on the southern ports and the stringent proclamations of all the great powers. He thinks himself safe at Cuba, as the government of Spain's proclamation is only against privateers and their prizes, and says nothing about men-of-war.

She sailed yesterday under steam, at 1 p. m., and from the signal station was reported going to windward, and, from his questions, I should fancy he is going to cruise for some of the California and China homeward-bound ships, and there is no doubt he will do an enormous amount of damage before he is taken, for he seems a bold, determined man, and well up to his work.

The governor, Mr. Keate, appears to have been much on his guard against any compromise of the neutrality he had been enjoined by Her Majesty's government to observe. In his dispatch to the Duke of Newcastle, of the 7th of August, announcing the arrival of the Sumter, he

writes:

I have the honor to report that a steamer, purporting to be a man-of-war, and to belong to the so-called Confederate States of North America, put into the harbor of Port of Spain on the 30th ultimo. The vessel is called the Sumter, and appears to be a converted passenger-steamer. She now carries, as I am given to understand, five powerful guns.

Case of the United States, p. 321. 2 British Appendix, vol. ii, p. 4.