firmness, and threats to leave the ship upon the Governor's hands, and to return and report the matter to his Government, obtained her release."

66

The Tribunal knows, from the contemporaneous documents, what were the real facts, of which this is a garbled and inaccurate version. This same Mr. Hunt also wrote a pamphlet called "The Cruise of the Shenandoah," some extracts from which the United States have made part of their evidence. In this narrative,2 after speaking of the progress of the repairs of the Shenandoah at Melbourne, a story, in some respects similar, is told, but with the omission of all the particulars material to the present inquiry. Not one word is there said about recruits; on the contrary, there is an implied denial that, when the temporary suspension of the repairs took place, any recruitment had been attempted or was intended. "The work," he there says, was nearly completed when an order came from the governor to seize the ship, a rumor having been widely circulated and believed that he had a number of men on board, intending to take them to sea and enlist them in violation of the well-established rules of International Law." Either Mr. Ebenezer Nye's memory after six years confounded things elsewhere read with Mr. Hunt's representations, or those representations must have had in them, as his "Cruise" itself has, a large element of "romance." Whatever view may be adopted, Mr. Nye's affidavit really adds nothing to the original evidence, from which alone the truth on this subject can be ascertained.

Let it, however, be supposed that the statements of Temple, and of Hunt, according to Nye, might be accepted as accurate; that, in all, forty-two or even forty-four men were taken on board the Shenandoah at or from Melbourne. The Shenandoah had lost, at Melbourne, one officer and twenty-three men out of those who constituted her crew when she arrived there, (being the men, or the greater number of them, who had previously joined her from captured vessels.) By this assumed addition her number of officers when she left was the same, and her complement of men was greater by about twenty only than when she arrived in the colony. If such an addition (supposing it were deemed, contrary to the effect of the whole evidence, to have been improperly "suffered" by the Colonial Government) were deemed a sufficient ground for holding Great Britain responsible to the United States for all her subsequent captures, it seems impossible to escape from the conclusion that if the Kearsarge had gone to sea, and made captures with the sixteen or seventeen men on board whom she shipped from Queenstown, the Confederates (had they been successful in the war) might have held Great Britain responsible for all the subsequent captures of the Kearsarge; nay, further, that France is at this moment à fortiori responsible to the United States for all the captures made by the Florida after she had been permitted to renovate her crew in that country.

On what ground is it to be assumed that the addition of this number of men was a direct or proximate cause of all or any of those captures so as to make Great Britain responsible for them?

True it is, that when the Shenandoah came into Port Philip, on the 25th of January, with seventy hands on board, Captain King reported that "from the paucity of her crew at present she could not be very efficient for fighting purposes." But she never was meant, and she never was used, for fighting purposes. Her first cruise, after leaving 1 United States Appendix, vol. vi, pp. 694–698.

2 Ibid., p. 696.

British Appendix, vol. i, p. 499.

Desertas, began with a complement of officers and men certainly not larger than that which remained in her at Melbourne, after all the desertions which took place there, and before any new enlistments. Yet, with that limited number, she began a series of captures; and, as she made these captures, she increased her crew successively from the ves sels taken the Alina, the D. Godfrey, the L. Stacey, the Edward, and the Susan. If she had left Melbourne without any recruitment whatever, she would have been in quite as good a condition for her subsequent cruise as she was for her original cruise, when she left Desertas. The whaling vessels, which she met with afterward, could no more have offered resistance to her than the merchant and whaling ships which she had met before.

On the day of her leaving Port Philip, (18th February,) Consul Blanchard, who had then received all the information which Robbins and others could give him as to the number of men taken on board during the preceding night, wrote thus to Mr. McPherson, the American ViceConsul at Hobart Town: "My opinion is that she intends coming there. with a view to complete her equipment, she having much yet to do to make her formidable. She cannot fight the guns she has on board."1 In point of fact, her subsequent cruise was conducted exactly as her previous cruise had been, and, on Temple's showing, she added to her crew, during the interval between her leaving Melbourne and her arrival at Liverpool, thirty-eight more men, taken from subsequently-captured vessels the Hector, Pearl, General Williams, Abigail, Gypsey, W. C. Nye, and Favorite. It is, therefore, perfectly apparent from the whole history of the ship and of both her cruises, that she was not dependent for her power to make captures upon any addition to the strength of her crew which she received at Melbourne, and that her proceedings would. in all probability, have been exactly the same if she had never received that addition. Can the Tribunal possibly decide that, for the whole losses caused to American citizens by those subsequent proceedings. the nation, in one of whose colonies this recruitment of men (not shown to be a proximate cause of any loss whatever) took place, is to be held responsible?

Finally, it is right that, on the part of Great Britain, but in the interest not of Great Britain alone, but of civilized States in general, the attention of the Tribunal should be seriously directed to the general importance of the question on which it is now about to determine.

The facts, to which the discu: sion relates, occurred seven years ago in a remote colony distant several thousand leagues from Great Britain. The Governor, who then administered the affairs of the Colony, has long been dead. To hold personal communication with the officials, to obtain from them renewed explanations and interrogate them on points of detail, has been impossible. To expect that the British Government should be able to state with exactness every measure of precaution then adopted, and every order or instruction orally given by the police authorities of the Colony to their subordinates, and to account for and explain every circumstance as to which a doubt may be suggested, would be unreasonable in the highest degree. Nevertheless, the Gorernment of Her Majesty has, with an openness, fullness, and precision which it believes to be entirely without example in the history of international controversies, placed before the eyes of the Arbitrators every fact, every direction given to its officers, every act of the Governor of the Colo y and his Council, which could be gathered from the records

1 British Appendix, vol i, p. 617.

of the Colony or of the Home Government, or could be ascertained by a strict and careful inquiry. This narrative shows that, whatever might have been the feelings and sympathies of the people of the Colony, (feelings which, in a free community, no Government attempts to control,) there was, from first to last, on the part of the Colonial Government, a sincere and anxious desire to adhere strictly to the line of neutral duty. It is a narrative of renewed and continued precautions, renewed and continued from day to day during the whole time that the cruiser remained in the waters of the Colony. No reasonable person can doubt that any increase of the Shenandoah's armament, any augmentation of her crew, was a thing which the Colonial Government was really desirous of preventing by all means within its power. No reasonable person can fail to see that prevention, in the latter case, was embarrassed by difficulties, which could only be fully understood by persons actually on the spot, and for which, in judging of the conduct of the local authorities, fair allowance ought to be made. On the night before the Shenandoah left Melbourne, a number of men, taking advantage of those difficulties, contrived to elude the vigilance of the authorities and to get on board the ship, some under cover of the darkness, others under a plausible pretext, which could not be known to be untrue.

Whether, on these facts, Great Britain is to be charged with a failure of international duty, rendering her liable for all captures subsequently made by the Shenandoah, is the question now before the Tribunal; and it is the duty of the Arbitrators to weigh deliberately the responsibility they would undertake by deciding this question in the affirmative.

They will not fail to observe that the principle of such a decision is wholly independent of the three Rules. It is a decision on the nature of the proof, on the character of the facts, upon which a belligerent nation is entitled to found a claim against a neutral, and that claim a demand for indemnity against losses sustained in war in which the neutral has no part or concern. It is not confined to maritime wars. It extends, and may be applied, at the will of the belligerent, to any aet which a neutral Government is under any recognized obligation to endeavor to prevent. Is it necessary to point out that such a decision will certainly prove a fertile precedent?

Throughout the whole of this controversy Great Britain has steadily maintained one thing-that, before a heavy indemnity is exacted from a neutral nation for an alleged violation of neutrality, the facts charged should, at any rate, be proved. This is demanded alike by the plainest considerations of expedie icy and by the most elementary principles of justice. If this Tribunal decides that, in a case of doubt or obscuritya case, in other words, in which the proof is imperfect, the fact of negli gence not clearly made out, an 1 in which recourse must be had to vague presumptions and conjectures-the culpability and burden are to be thrown upon the neutral nation, it will have established a grave and most dangerous precedent-a precedent of which, in the future, powerful States, under circumstances of irritation, will certainly not be slow to take advantage.

ROUNDELL PALMER.

[Translation.]

VIII. OBSERVATIONS ADDRESSED TO THE TRIBUNAL BY MR. CUSHING, IN THE NAME OF THE COUNSEL OF THE UNITED STATES, ON THE 21ST AUGUST, 1872, AND MEMORANDUM AS TO THE ENLISTMENTS FOR THE SHENANDOAH AT MELBOURNE.

MR. PRESIDENT AND GENTLEMEN OF THE TRIBUNAL: The present discussion has its origin in the doubts expressed at the last meeting on the subject of the number of men enlisted for the Shenandoah at Melbourne. Previously to the expression of those doubts, all the members of the Tribunal in succession had announced their opinion on the points involved in the general question of the responsibility of Great Britain with regard to the prizes made by the Shenandoah after her departure from Melbourne.

We have prepared a Memorandum, which proves conclusively the correctness of the statements of Temple, the perfect agreement between his statements and those of Nye, who, in support of these same statements, produces the evidence of Hunt, an officer of the Shenandoah. This Memorandum also adduces the declarations of other witnesses, which confirm the evidence of Temple, Nye, and Hunt. In fact, it is beyond doubt,

1. That the Shenandoah enlisted at least forty-three men at Melbourne. This number is indeed now admitted by Sir Roundell Palmer.

2. That the Shenandoah discharged at Melbourne only seven men of her crew, although thirteen others left her; but that these thirteen were prisoners of war, who did not form part of the crew, and there is reason to believe that the six or seven others who, it is asserted, were discharged at Melbourne, were also prisoners of war.

It follows that the strength of the crew of the Shenandoah was increased by forty-three men.

OBSERVATIONS ADRESSEES AU TRIBUNAL PAR M. CUSHING, AU NOM DỰ CONSEIL DES ÉTATS-UNIS, LE 21 AOÛT 1872, ET MÉMORANDUM SUR LES ENRÔLEMENTS POUR LE SHENANDOAH À MELBOURNE.

MONSIEUR LE PRÉSIDENT, MESSIEURS DU TRIBUNAL: La discussion actuelle a son origine dans les doutes exprimés lors de la dernière séance au sujet du chiffre des enrôlements que le Shenandoah a faits à Melbourne. Avant d'émettre ces doutes, tous les membres du tribunal, l'un après l'autre, avaient annoncé leur opinion à l'égard des points compris dans la question générale de la responsabilité de la Grande-Bretagne au sujet des prises faites par le Shenandoah après son départ de Melbourne.

Nous avons préparé un mémoire qui démontre, jusqu'à l'évidence, l'exactitude des déclarations de Temple, le parfait accord entre ses déclarations et celles de Nye, et qui, à l'appui de ces mêmes déclarations, produit le témoignage de Hunt, officier du Shenandoah. Ce mémoire fait valoir aussi les déclarations d'autres témoins, qui e onfirment le témoignage de Temple, de Nye et de Hunt. En effet il est hors de doute: 1. Que le Shenandoah a enrôlé au moins 43 hommes à Melbourne. Ce chiffre est admis aujourd'hui, même par Sir Roundell Palmer.

2. Que le Shenandoah n'a licencié à Melbourne que 7 hommes de son équipage. quoique 13 autres l'aient quitté; mais que ces 13 étaient des prisonniers de guerre, qui ne faisaient point partie de l'équipage, et il y a lieu de croire que les 6 on 7 autres, que l'on prétend avoir licenciés à Melbourne, étaient aussi des prisonniers de guerre. Il s'ensuit qu'il y eut une augmentation de 43 homines dans l'effectif de l'équipage du Shenandoah.

3. That the word "seamen" employed by Nye means "sailors,” in addition to whom there were on board the Shenandoah, according to Nye's own account, sixty or fifty-five other persons, officers, firemen, &c., in conformity with the narrative of Temple and Hunt.

4. That without the re-enforcement of her crew effected by means of these enlistments at Melbourne, the Shenandoah could neither have continued her cruise, nor consequently have captured the American. whalers in the North Pacific.

5. That all this constituted a flagrant violation of international law, and even of British municipal law, in the opinion of the Governor, Sir Charles Darling, himself.

6. That finally, and above all, it constituted a manifest violation, on the part of the British authorities, of the second Rule of the Treaty, which runs thus:

A neutral Government is bound not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

The Counsel of Great Britain has just addressed to the Tribunal observations, not merely with regard to the number of men enlisted at Melbourne, but also on the subject of the legal bearing of the question of these enlistments as a thesis of the law of nations, or of that laid down by the Treaty.

We frankly confess that we did not contemplate so wide a discussion. We therefore respectfully beg the Tribunal to inform us if the new questions raised by Sir Roundell Palmer remain open before the Tribunal.

C. CUSHING.

3. Que le mot "seamen," employé par Nye, veut dire "matelots; " en dehors desquels il y avait à bord du Shenandoah, d'après le récit de Nye lui-même, 60 on 55 autres personnes, officiers, chauffeurs, et cetera, conformément au récit de Temple et de Hunt. 4. Que, sans le renfort apporté à son équipage au moyen de ces enrôlements à Melbourne, le Shenandoah n'aurait pu ni continuer sa croisière ni, par conséquent, capturer les baleiniers américans dans le hant Pacifique.

5. Que, dans tout ceci, il y a eu une violation flagrante du droit des gens, et même de la loi municipale britannique, de l'avis même du gouverneur sir Charles Darling. 6. Qu'enfin, et surtout, il y a ici une violation manifeste, de la part des autorités de la Grande-Bretagne, de la seconde règle du traité, règle ainsi conçue:

"Un gouvernement neutre ne doit ni permettre ni tolérer que l'un des belligérants se serve de ses ports ou de ses eaux comme d'une base d'opération navale contre un autre belligérant; il ne doit ni permettre, ni tolérer non plus, que l'un des belligérants renouvelle ou augmente ses approvisionnements militaires, qu'il se procure des armes ou bien encore qu'il recrute des hommes."

Maintenant le conseil de la Grande-Bretagne vient d'adresser au tribunal des observations, non-seulement à l'égard du chiffre des enrôlements à Melbourne, mais aussi au sujet des relations juridiques de la question de ces enrôlements, comme thèse du droit des gens ou du traité.

Nous avouons franchement qu'une discussion aussi étendue n'entrait pas dans nos prévisions. Dès lors, nous prions le tribunal très-humblement de nous faire savoir si les questions nouvelles soulevées par sir Roundell Palmer restent ouvertes devant le

tribunal.

C. CUSHING.