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The history of the Alabama claims page 3


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It was decided at the executive council, held on the 26th January, to consider the application of the commander of the Shenandoah, that Lieutenant Waddell should be told to state in writing the nature and extent of the repairs which his ship required, and also that he would be permitted to take on board provisions and other stores required for the subsistence of his crew, but not beyond what might be necessary for immediate use. The time that the ship would be allowed to remain would be fixed by the Colonial Government as soon as they received Lieutenant Waddell's answer to the inquiry about the repairs.

The United States Consul wrote to the Governor on the 28th January, tendering evidence of the identity of the Shenandoah with the Sea King, and arguing that since she had not entered a Confederate port since leaving England, she could have obtained no new " naturalisation," that her original British registration remained consequently in force, and that she was not entitled to any of the rights accorded by international law to the ships of a belligerent. Even in the ease of men, it seems hardly rational to maintain that they cannot legally change their nationality without touching the soil of the country to which they wish to transfer their allegiance; but to propound such a doctrine concerning ships borders surely on the absurd! The Governor consulted the law officers, guided by whose opinion he informed the Consul that the Victorian Government considered that- the Shenandoah could be regarded in no other light than as a vessel of war of the Confederate navy, and that she would be so treated. On this point a long and animated correspondence arose between the British and American Governments after the close of the war, the latter maintaining that the Shenandoah had acquired no new nationality since leaving England, the former holding that by international law and right reason the sale and transfer of the vessel effected or announced at Madeira constituted a valid change of ownership, and altered her nationality. But this is too intricate a question to be discussed here.

Lieutenant Waddell engaged a firm of iron-founders, the Messrs. Langlands, to examine' the machinery connected with the ship's screw-propeller. The matter was not accomplished with the same expedition that would have been possible in New York or London, and the American case makes the most of, and puts the worst construction on, this comparative tardiness. But when it is considered that the colony of Victoria, though its material and civil progress had been doubtless extraordinary, was at that time just thirty years old, it cannot be deemed a subject of complaint that everything did not proceed with the swiftness and facility that characterise an old community. On the 30th January, Messrs. Lang- lands reported that in order that the extent of the damage to the screw machinery might be fully ascertained, the vessel must be placed on the slip, and that the necessary repairs could not, in their opinion, be effected in less than ten days from that date. This brings us to the 9th February. Now, if the Government had been content to accept the report of the persons employed by the Confederate commander as to the length of time required for the repairs, they might justly have been charged with laxity, and a want of due diligence; but they incurred no such reproach. On the 29th or 30th January, the Government appointed a board of three officers, of whom one was the Government engineer, to visit and inspect the ship, so that they might obtain an independent professional opinion as to her condition. This board, after visiting the Shenandoah, reported on the 1st February that she was not in a fit state to go to sea as a steamship, and must be placed upon the slip, that the exact nature of the repairs needed might be ascertained. The framer of the American case omits all mention of this board, and so words his narrative as to convey the impression that the Governor took Lieutenant Waddell's bare word about the repairs, and the time required for them, and conceded to him all that he asked.

After having received the report of the board, which in effect confirmed that of the Messrs. Langlands, the Governor granted to Lieutenant Waddell permission to stay in the port for the number of days required for the completion of the repairs necessary to enable the vessel to put to sea as a steamship. The case of the United States represents that this was an excess of hospitality; that the Shenandoah could use her sails, and, as a sailing vessel, was perfectly seaworthy; that she ought,' therefore; to have been required to put to sea at once, and not allowed to put her screw in repair, so as to be able, when she got among the American whalers in the Arctic Sea, to steam about and destroy them one after another. How the Victorian Government was to dive into futurity, and forecast the movements of the Shenandoah after she left Port Phillip, is not suggested. That the commander of a vessel like the Shenandoah, full-rigged, but notoriously short handed, should have desired to put his auxiliary steam power into working order, must have seemed the most natural thing in the world to the Melbourne authorities; and the notion that by allowing it they were laying themselves open to an accusation of breach of neutrality never, in all probability, crossed their minds. The United States themselves admit (Case, p. 421) that the scantiness of her crew, after parting with the Laurel, obliged the Shenandoah " to depend upon her auxiliary engine."

Orders were given by the Governor on the 3rd February to the Customs and Police departments to keep a vigilant watch on all that went on in and around the Shenandoah, while refraining from1 anything that was offensive or needlessly obtrusive, and to send in daily reports to the Government. These orders were punctually obeyed. From the reports furnished it may be gathered that the Shenandoah, being a large ship and deep in the water, had to be lightened before she could be taken on to the slip; that for this purpose she ranged alongside the railway pier at Sandridge to discharge on it a portion of her coals and stores; that, heavy weather coming on, she broke away from her moorings, and was obliged to anchor in the middle of the channel (which is here two miles and a half wide); and that, the process of lightening being thus delayed, it was only on the 7th or 8th February that she could be hauled on the slip. On all these material points the framer of the American case - let us hope because he was ignorant of them - is silent.

A fresh difficulty arose for the Colonial Government on the 10th instant. The Shenandoah, as we have seen, was short-handed; and there is some evidence which points to a diminution of her complement, already far too scanty, by desertion, subsequent to her arrival at Melbourne. That Lieutenant Waddell was desirous of enlisting men from shore - without breaking our neutrality more than he could help, but any way of enlisting them - is beyond a doubt. He is said to have expressed a preference for foreigners. British subjects he did not want, at any rate while he lay off Sandridge. But his subsequent conduct precludes us from believing that his scruples about infringing our neutrality were more than skin-deep. Confederate agents were busy among the low purlieus and sailor-haunted quarters of Melbourne, and their machinations reached the vigilant ears of the United States Consul. That gentleman, on the day just named, sent in to the Government the affidavit of a prisoner who had made his escape from the Shenandoah, to the effect that fifteen or twenty men, most of whom he named, had joined the ship since she came in, and were concealed on board. This was a serious matter, and the Government appear to have behaved with becoming promptitude. To engage or procure the engagement of any person as a sailor in sea-service under the flag of a belligerent Power, while Great Britain is at peace, is a distinct offence against the Foreign Enlistment Act of 1819, and is punishable as a misdemeanour. A Williamstown magistrate granted a warrant for the apprehension of one of the persons mentioned in the affidavit, whose name was James Davidson, but who was commonly called " Charlie." The framer of the American case sneers at the authorities for " proceeding against Charlie only," and " carefully letting alone Captain Waddell and his officers, who had been violating Her Majesty's proclamation and the laws of the Empire." It should be known that British authorities can only act according to law, and that while the law made it possible to issue a warrant against Charlie, who was sworn to have committed an illegal offence, the law could have no hold on Lieutenant Waddell, against whom mere rumour and suspicion were all that could be alleged. Even, however, if he had violated our municipal law, he would not, we believe, have been liable to arrest, for the captain of a man-of-war, at any rate on board his own ship, bears a public character, and cannot be arrested without disparagement to the dignity of the Power which he represents.

The superintendent of police, armed with the warrant for the apprehension of Davidson, went on board the Shenandoah. On the first occasion the captain was on shore, and the officer in charge said that in his absence he could not allow the ship to be searched. The next day (February 14) the superintendent again visited the ship, and informed Lieutenant Waddell of the object of his mission. Waddell declared that he had no such person on board. He added, " I pledge you my word of honour as an officer and a gentleman, that I have not any one on board, nor have I engaged any one, nor will while I am here." The superintendent still requested permission to search the ship, but this the commander would not permit. He said that he dared not do it; that it was as much as his commission was worth; and that such a thing would not be permitted on board a man-of- war belonging to any Power.

The superintendent returned to Melbourne and reported to the Government the result of his visit. An executive council was immediately held to consider the state of things. Some thought the claim to execute the warrant should be enforced with all the power of the Government; others (and their opinion was afterwards confirmed by that of the highest legal authorities in England) doubted whether the enforcement of a search was permissible according to international la w.. A middle course, and as it would seem, a sound and discreet course, was adopted. The commander of the Shenandoah was requested to reconsider the determination which he had expressed not to suffer the warrant to be executed, and was informed that, meantime, the permission to receive supplies, and to have repairs executed, was suspended. The Governor, by proclamation, forbade all Her Majesty's subjects to have anything to do with the supplies or repairs required on the Shenandoah from that time forward. Superintendent Lyttleton, the same officer who had boarded the vessel with the search-warrant, crossed with a party of police to Williamstown, where the slip was on which the Shenandoah had been raised, cleared the yard, took possession of the slip, and sent away the mechanics who were at work on the ship's stern-post. These proceedings do not look like the acts of a Government that was negligent about causing British neutrality to be respected.

Lieutenant Waddell replied the same day (February 14) to the letter of the Collector of Customs requesting him to reconsider his refusal to let the warrant be executed. In this letter he pointed out forcibly enough that " the deck of a ship of war represented the majesty of the country whose flag she bore," and was therefore exempt from the ordinary operation of law in any country where she might be temporarily remaining. He reiterated, however, his declarations that all strangers had been sent out of the ship, and stated that two of his officers, who had been ordered to institute a search, had reported to him that they could find no one on board except those who entered the port as part of the crew.

But the commander and his officers were both mistaken. We say mistaken, because the evidence does not seem to us to justify the assumption, which is freely made about his own countrymen by the framer of the American case, that they were guilty of duplicity and falsehood. About ten o'clock that same night the police in charge of the slip saw a boat put off from the Shenandoah; they pursued and overtook it. In this boat were four men, who were all detained in custody. One turned out to be an American, and was before long released; of the other three one proved to be the identical "Charlie," for whose apprehension the warrant had been issued. On being questioned, the men said that they had been some days on board unknown to the captain, who had ordered them on shore as soon as he knew it. The American case mentions the arrest of the men, but does not give their story, leaving its readers, therefore, to conclude that Lieutenant Waddell had just before written to the Colonial Government an egregious and deliberate falsehood.

The three men were charged before a magistrate on the 16th February with a violation of the Foreign Enlistment Act, and were committed for trial. When the trial came on, one of them, who was only fifteen years of age, was discharged by the presiding judge on account of his youth; the other two were convicted and sentenced to ten days' imprisonment. This fact again - one surely somewhat material in the inquiry whether the Victorian Government were negligent or diligent in regard to the duties of neutrality - is passed over in the American case.

On the 15th February, all repairs being now suspended, the lessee of the slip wrote to the Chief Secretary that the Shenandoah was in an unsafe position on the cradle, and that, if a gale of wind arose, he should either be compelled to launch her, or if she were kept on the slip, it would be with great risk both to the hull and machinery. This letter placed the Government in an embarrassing position. Some days before, on the 10th February, the board of officials who had inspected the ship on her first arrival had again visited her after she was hauled on to the slip, and reported that the repairs to her stern bush would require five clear working days from that date. Of course, for every day that the repairs were suspended, the necessary detention of the vessel in the port was prolonged. Again, although the commander of the I Shenandoah had refused to give way in the matter of the warrant, yet the Government, doubting whether he might not be legally in the right, was not disposed to press hardly upon him on that score, especially as the statement of the arrested men, joined to Lieutenant Waddell's reiterated declarations, disposed them to believe that the British subjects who had joined the ship were now really out of her. And indeed, so far as appears, this was actually the case. On the whole the Government determined to remove the embargo which had been laid upon the vessel, and allow the repairs to be completed. A letter was written to Lieutenant Waddell to this effect, in reply to which he reiterated, in the most formal manner, his resolution to respect British neutrality, and also explained the apparently suspicious circum-- stances attending the departure of the four men from the vessel on the night of the 14th instant. This part of the story is so confusedly told in the American case, that no one could gather from it the exact order and connection of the events; nothing is clear about it except the animus of the writer.

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