Lapas attēli

sion to search the 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 ofticers were ordered to search if any such bave 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 part of the complement of men.

I, therefore, as commander of the 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 serv. ice 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, bereby enter my solemn protest against any obstruction which may cause the detention of this ship in this port. I have, &c.,


Lieutenant Commanding, Confederate States Vary.' Hon. Jas. G. FRANCIS,

Commissioner of Trade and Customs, Melbourne. It appears from a report of the superintendent of police that, in order to carry out the instructions of the government, he proceeded to Wil. liamstown on the afternoon of the 14th, took possession of the slip on which the Shenandoal was placed, and cleared the yard of the workmen employed on the vessel. The effect of this determined course of proceedings soon showed itself. At about 10 p. m. four men were seen to leave the vessel in a boat pulled by two watermen. They were pursued by the water-police, and bronght back to the superintendent. On being questioned, they said they had been on board a few days, unknown to the captain, and that as soon as he found they were ou board, he ordered them to go ashore. The men were detained, and the American consul was communicated with respecting them. Toward morning tug. steamers came to tow the vessel off, but were ordered away by the superintendent, who also took steps for preventing the vessel being furnished with a pilot. The four men were taken before a magistrate on the 16th. One, being an American, was discharged; the three others, one of whom was the man Davidson, (“ Charley,”) were committed for trial. Two of them, after awaiting their trial in prison for a month, were sentenced to a further imprisoument of ten days; the other, being a mere youth, was, on that account, discharged.3 The vessel still rea mained on the slip.

On the 15th of February, the lessee of the slip wrote to the chief secretary, stating that his manager had informed him that should a gale of wind occur, he would either be compelled to launch the ship, or run a great risk of her sustaining serious damage in consequence of her unsafe position on the cradle. This being so, and all motive for searching the ship being now at an end, the man against whom the warrant had been directed having been taken, and there being no reason for supposing that there were other Melbourne men secreted in the vessel, it was thought advisable that the order suspending the perinission to repair should be revoked, and the necessary repairs to the ship be allowed to be completed, the commander being informed that he was expected to use every dispatch in getting to sea by the time previously fixed.

Captain Waddell having written to complain of the ship having been seized, was informed, in reply, that the ship had not been seized, but

Britsh Appendix, vol. i, p. 644.
2 Ibid., p. 527.
3 Ibid., vol. v, p. 62.
4 Ibid., vol. i, p. 528.


that further progress with the repairs had been arrested by reason of his refusal to allow the ship to be searched. He was also reminded of the four men having been caught leaving the ship, notwithstanding his statement that there was no stranger on board; but he was at the same time informed that, as the man against whom the warrant had been issued was now in custody, and he (Captain Waddell) had given his assurance that no person other than those on her shipping articles were now on board the ship, the work might proceed. In acknowledging this communication Captain Waddell took the opportunity of observing as follows, with reference to the four men :

The four men alluded to in your communication are no part of this vessel's complement of men; they were detected on board by the ship's police after all strangers were reported ont of the vessel, and they were ordered and sent out of the vessel by the ship’s police immediately on their discovery, which was after my letter had been dispatched informing his excellency the governor that there were no such persons on board. These men were here without any knowledge, and I have no doubt can be properly called stowaways, and such they would have remained but for the vigilance of the ship's police, inasmuch as they were detected after the third search, but in no way can I be accused, in truth, of being cognizant of an evasion of the foreign-enlistment act.

On the evening of the 15th, the repairs having been completed, the vessel was launched from the slip and anchored in the bay, where she proceeded to reship her stores and coal, of which latter article she was allowed to take in a further supply of 250 tons.

She finally quitted Port Philip on the morning of the 18th of February.

Blame has been cast on the governor for having allowed the repairs of the vessel to be completed and the vessel to be launched, or coal to be supplied to her, in consequence of the attitude of defiance assumed by Captain Waddell in refusing to suffer his ship to be searched.

The position was, however, an embarrassing one.

It was very doubtful how far the police officer, after having received the word of honor of Captain Waddell, as an officer and a gentleman, that the man against whom he had a warrant was not on board, had done right in insisting on searching the ship, and in threatening to use force in order to execute the warrant. The position taken by Captain Waddell that a ship of war of another nation is not subject to local jurisdiction is undoubtedly true. Upon a request of Sir C. Darling to be informed as to the propriety of executing a warrant under the foreignenlistment act on board a confederate ship of war, the law-officers of the Crown, on being consulted, advised as follows:

It appears to us that, in the circumstances stated, his excellency the governor acted with propriety and discretion ; and there does not appear to us, at present, to be a necessity for any action on the part of Her Majesty's government.

With respect to his excellency's request, that he may receive instructions as to the propriety of executing any warrant under the foreign-enlistment act on board a confederate (public) ship of war, we are of opinion that, in a case of strong suspicion, he ought to request the permission of the commander of the ship to execute the warrant; and that, if this request te refused, he ought not to attempt to enforce the execution; but that, in this case, the commander should be desired to leave the port as speedily as possible, and should be informed that he will not be re-admitted into it.3

There can be no doubt as to the soundness of this advice. While a ship of war is thus exempt from local jurisdiction, the right of the local authority to withhold the accommodation of the port is equally undoubted; and the exercise of this power, applied here in the first in

British Appendix, vol i, p. 616.
Ibid., vol. v, p. 85.
3 Appendix to British Case, vol. i, p. 53.352.




stance, might no doubt have been prolonged. But, the honor of the commander of the ship having been pledged, ought the search of the vessel to have been further insisted on? By the comity of nations the word of a commissioned officer is held to be sufficient guarantee for the truth of anything to which it is officially pledged. The rule is a sound


a one. The best security for honorable conduct is unhesitating contidence whenever honor is pledged. It is of infinitely greater moment that such a rule should be maintained than that Charley"

" should be arrested and undergo a month's imprisonment. Any vaporing language, or, in transatlantic phrase, “ tall talk” of Captain Waddell might be excused owing to the impropriety of the police officer's threat of using force to search the ship under his command.

It is true that the fact to wbich the word of the commander has been pledged turned out to be otherwise. But Captain Waddell explained this by saying that the men bad secreted themselves in the bottom of the vessel, and had only been discovered on a third search. Now it is well known that men do contrive to secrete themselves in ships so as to elude search. A striking instance occurred in the case of the United States ship the Kearsarge. When that ship left Cork in November. 1863, sixteen men contrived to hide themselves in her, nor was their presence in her known to Captain Winslow, her commander, till the day after the vessel had gone to sea, notwithstanding that search had been made, and other men, found concealed on board, had been sent out of the ship just before her departure. It should be added that Williams and Madden having stated in their depositions that certain of the subordinate officers of the ship had been aware of the presence "Charley" in the forecastle of the ship, these officers immediately published in the Melbourne Argus declarations signed by them, denying in the most positive terms the statements affecting them. Sir Roundell Palmer puts the pertinent question : “ Can it be imputed as a want of due diligence to the government of Melbourne (whose good faith and vigilance had otherwise been so manifestly proved) that although not entirely satisfied with Captain Waddell's demeanor or conduct, they accepted the solemn assurances of not one, but several, officers of the same race and blood, and with the same claims to the character of gentlemen as the officers of the United States ?”

The matter was further complicated by the fact that the owner of the slip had reported that the position of the vessel on the cradle was one of danger; and that, if a gale of wind should arise, a disaster would probably ensue. It is obvious that, if such a thing had happened it would have been very awkward for all parties. The wisest thing, therefore, as it appeared to the governor and his council, was to allow things to be completed and to get rid of this unpleasant visitor as early as possible. That the conduct of Captain Waddell in augmenting his crew from the colony, as it afterward turned out that he did, in spite of his solemn promise to observe neutrality in this respect, was conduct disgraceful in an officer and a gentleman, there can be no doubt; but, as I have before observed, no governor or other authority can be blamed for trusting to the word of any one bearing the commission of an officer. I am bound to respect, but I certainly cannot share, the opinion of some of my colleagues that Sir C. Darling showed any indulgence to the commander of the Shenandoah, in further extending to him the privileges of a belligerent, inconsistent with what, as the governor of a neutral government, he was fully empowered and entitled, in the exercise of his judgment

See United States Documents, vol. ii, p. 429.

Supply of coal.

and discretion, to extend. Still less can I think that, even if there was any error of judgment in this respect, and the governor of Melbourne was, under the circumstances—as I heard it two or three times said in the course of the discussion—too civil (“trop poli") to Captain Waddell, that the British nation is therefore to incur a liability to a claim of soine $6,000,000. If such a conclusion is to be arrived at upon such facts, I shall be half disposed to agree with M. Staempfli, that there is, indeed, no such thing as international law, but that we are now creating it for the first time.

I pass on to another subject of complaint, namely, the supply of coal which the Shenandoah was allowed to receive and which is said to have been excessive-an assertion which, I confess, I have heard with no little surprise. It is true that the Shenandoah still had on her arrival at Melbourne, if reliance is to be placed on a journal kept by a midshipman on board, 400 tons of coal in her bunkers; it is true that she was there allowed to take in 250 tons more.

But international law, as we have seen, imposes no limitation on the quantity of the supplies which a belligerent vessel may obtain in a neutral port. The only restriction in this case would therefore arise from the government regulation that no vessel should be allowed to take more than sufficient to convey her to her nearest port. Now the nearest port of the country of the Shenandoah was some thirteen thousand to fourteen thousand iniles from Melbourne; and all the coal which could possibly have been stowed in the vessel would have fallen infinitely short of what she must have consumed on such a voyage if she had had recourse to her steam-power. It is true we are told that she was an excellent sailer. Mr. Evarts informed us, I believe, on the authority of a midshipman's journal, afterward publisherl under the title of "The Cruise of the Shanandoah," that her speed under canvass was at times equal to sixteer knots an hour; but it did not occur to that distinguished counsel to tell us how the governor and his council could possibly know that fact, unless, indeed, they were to know it by intuition. Although, from the vessel's build and appearance, she might be thought likely to be a fast vessel, all they knew of her was that she was a screw-steamer, adapted to sail or steam.

The argument that a vessel is not to be allowed coal because she is not likely to use it, strikes me, I must say, as a very singular one. If she does not use it, what harm can arise to any one from her having it on board ?

“ Yes, but,” says Mr. Evarts, “ this coal was to enable her to have an advantage over the whalers when among the ice.” But here we must have recourse again to the intuitive powers of the governor and his council. For how else, in the name of common sense, were they to know that the intention of Captain Waddell was to go among the icebergs in pursuit of the whaling vessels? Captain Waddell knew his business too well to let his intentions in this respect be known. Nor is it at all reasonable to say that, because a vessel can both sail and steam, she is not entitled to have whatever is necessary for navigation in both forms. The government regulations, which allow a vessel to have the quantity of coal necessary to take her to the nearest port, make no distinction (any more than does international law) between vessels depend. ing wholly upon steam, and others navigating both by steam and sail. The regulation must be taken to have reference to the quantity of coal which would be required to take the vessel to her nearest port, if she had to depend on steam alone.

It would be absurd to suppose that, in every case, the local authority is to enter upon a nice calculation of the sailing power of the particular

Melbournea bara of naval operations.

vessel, and allow a greater or less quantity of coal according to the estimate that may be formed of the rate of speed under canvas. A vessel is entitled to the advantage of all her motive power, however derived. Either may fail. A vessel under sail may carry away her masts. In this instance, bad the Shenandoah been going homeward this might have happened when she was thousands of miles from home. It seems to me, therefore, that it was not a question for the local gor. ernment whether this vessel was a good sailer or not. The only question was, what amount of coal she was at liberty to have according to the regulation. Referring to that, and looking to the immense distance between her and her nearest port, no one, as it seems to me, can reasonably say that she was allowed a single ton too much.

But it is said that by taking in coal at Melbourne, with

the ulterior purpose of making war on the whaling vessels of the United States, this vessel was enabled to make the port of Mel. bourne a " base of naval operations."

As I have already observed, when the law on this subject was under discussion, the application of such a rule in favor of the United States to the prejudice of Great Britain would be a flagrant injustice, seeing that, as I then showed, ships of war of the United States obtained many thousand tons of coal, under exactly the same circumstances, that is to say, when they had particular “naval operations” in immediate view. If this doctrine is to hold, every time a vessel, having a particular belligerent purpose in view, takes in coal, and proceeds on such purpose, the port will be at once converted into a base of naval operations. The same reasoning would of course apply, and in the same degree, to repairs.

This proposition is, to my mind, utterly unreasonable, as being alto. gether inconsistent with any idea that ever has been, or properly can be, attached to the term “ base of operations;" and is, moreover, in the most flagrant degree unjust, if it is to have the effect of imposing on the neutral any responsibility to the other belligerent. For it is obviously inconsistent with common justice that the neutral state shall suffer for that to which it is not only no party, but of which it has also no knowledge. By the common practice of nations, as well as by the reg. ulations of the governient, a belligerent vessel is allowed to have the benefit of necessary repairs, and to take a supply of coal without the local government being entitled to inquire into her ulterior destination. No such inquiry is prescribed by the regulations in question, or by those made by any other nation; nor has any publicist ever suggested that such a proceeding should be adopted. No such inquiry could, with propriety, be made; nor could the commander of the ship be called upon to auswer it if made. The knowledge of his intended course might expose him to the attack of an enemy. No such question, so far as I am aware, was ever put to a belligerent vessel during the whole course of the war. None such was erer put to a ship of the United States when applying for coal at a British port. This being so, to say that, the local government being in ignorance of the destination of the res. sel, a responsibility is to be incurred because the belligerent, in obtain. ing this accommodation, has an ulterior operation in view, as to which, by some violent distortion of language, the port may be said to be thas rendered a base, but of which ulterior operation the neutral knows nothing, appears to me to be an outrage not only on the first principles of justice, but also upon the plainest dictates of common sense.

T'hus far I am unable to discover anything but a desire on the part of the local government to comply with the Queen's regulations, and to

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