Lapas attēli

The first, fourth, seventh, tenth, thirteenth, and sixteenth counts, after averring that Davidson was a British subject, charged that he, without leave, &c., did agree to edlist as a sailor, &c.

The second, fifth, eighth, eleventh, fourteenth, and seventeenth counts, charging bin with agreeing to be engaged, &c.

The third, sixth, ninth, twelfth, fifteenth, and eighteenth counts, charging him with agreeing to serve, &c. The first, third, seventh, ninth, thirteenth, and fifteenth counts, in a ship of war, &e

The fourth, sixth, tenth, twelfth, sixteentli, and eighteenth counts, in a ship equipped for war, &c. The first six counts, in aid of foreign states styling themselves the Confederate

States of America. [569] *The seventh to the twelfth counts in aid of divers persons assuming to exer

cise powers of government in a certain foreign state, that is, the Confederate States of America.

The thirteenth to the eighteenth counts, in aid of persons assuming to exercise the powers of government in and over part of a certain foreign people, that is, part of the people of the United States of America.

The nineteenth and twenty-fourth counts, attempts to commit same.
The prisoner pleaded not guilty.
The following extracts from the Age, newspaper, are a fair statement of the evidence
&c., adduced at the trial:


FRIDAY, March 17.

(Before His Honor Mr. Justice Molesworth.) THE SHENANDOAH PROSECUTIONS.— James Davidson, alias Charley, was placed on the floor of the court, and pleaded not guilty to an information charging him with a breach of the foreign-enlistment act. There were twenty-four counts in the indict. ment, charging the defendant in various forms with having enlisted in the service of the Confederate States of America on board the confederate ship of war Shenandoah. without baving obtained the permission of Her Majesty.

The attorney general, with Mr. Travers Adamson and Mr. M. A. MeDonnell, appeard for the prosecution, and Mr. Aspinwall, with Mr. Wrixon, for the defense.

The attorney general said the Crown would permit the defendant to challenge any juryman he bad an objection to, though he had no right of challenge.

The defendant availed himself of this permission to challenge one juror. The attorney general, in stating the case to the court, said the defendant was charged with an offense against the second section of the act 59, Geo. III, cap. 59, commonis called the foreign-enlistment act. There were a number of counts in the information, all pointing substantially to the same offense, and be thought the jury would have little difficulty, notwithstanding the number of counts, in torming a judgment as to the character of the act committed by the defendant. The several counts charged the defendant with three distinct acts. He was informed against: first, for that he did unlawfully agree to enlist and enter himself for service as a sailor for and on board a certain ship of war called the Shenandoah, in the service of and for and in aid of eertain foreign states styling themselves the Confederate States of America. He was next informed against for having, being a natural-born subject of the Queen, without having obtained Her Majesty's license for such agreement, enlistment, or service, agreed to enlist on board this vessel. He was also charged with actual service on wliat was variously described as a ship of war of and in aid of the Confederate States of America, a vessel equipped and intended to be used for divers warlike purposes, belonging to divers persous assuming to exercise the powers of government in a certain foreign country, to wit, the Confederate States of America; and the concluding counts charge him with an attempt to commit those ofienses. The foreign-enlistment act was passed by the English Parliament in the year 1819, and the second section provided that any persons being convicted of any one of the ottenses now charged against the prisoner should be deemed guilty of a misdemeanor, and be punishable by tine or imprisonment. The words of this second section were : “Any natural-born subject of His Majesty, who shall take or accept, or agree to take or accept, any military commission, or who sball otherwise enter into the military service as a commissioned or non-commissioned officer, or shall enlist or enter himself to enlist, or shall agree to enlist or enter himself as a soldier, or be employed, or shall serve in any wurlike or military operation in the service of, or for, or under, or in aid of any foreign prince, state, potentate, &c.; or shall enlist or enter himself, or agree to enlist or enter himselt, to serve as a sailor or marine, or be employed or engaged, or shall serve with or on board any slip or vessel of war, titted out, equipped, or intended to be used for warlike purposes, shall

be subject to the penalties provided." The object of this act, it would be observed, was to enable Her Majesty to enforce neutrality when thought proper during the time foreign nations were at war, and it was hardly necessary for him to insist npon the necessity of each of Her Majesty's subjects lending their aid in order to have the proclamation of neutrality strictly observed, especially when it was considered that the act of a single subject of Her Majesty might lead to unlooked-for war; and it must at

the same time be borne in mind that foreign countries looked with jealous anx[570] iety to see what position the Crown of England would assume *during the wars

of foreign nations. With reference to the war now being carried on between the Confederate States and Federal States of America, Her Majesty issued a procla- · mation of neutrality on the 13th May, 1861, and that proclamation was published in the Government Gazette of this colony on the 17th July, 1861. On the 4th February of the present year, there was again published in the Government Gazette of this colony, by order of his excellency the governor, a notification that the neutrality laws would be strictly enforced. No matter what the personal feeling of the jury might be, they had simply to consider whether the offense charged had been committed ; and they must see that, with the view of carrying out the wise intentions of this law, no one should be permitted to do an act in frustration of it, by which this country might possibly be brought into the war now going on. On the 25th January last, the confederate war steamer Shenandoah arrived in Hobson's Bay, under the confederate flag, and having on board a number of persons taken from captured Federal vessels. The defendant was soon afterward seen on board, in the confederate uniform, and it would be proved that he remained there a fortnight under circumstances which justified the Crown in believing that it was his intention to join the ship. Upon å first view of the facts, it might appear somewhat barsh to enforce the law in such a case, and he had no hesitation in saying that, taken apart from the breach of the law, thó ottense was a harmless one, and the only object of the Crown in bringing this prosecution was to assert and vindicate the law. The Crown had no wish to act in a vindictive spirit, and the law being once asserted and vindicated, the Crown would be satisfied with as mild a sentence as the court thought fit to intlict.

The London Government Gazette of 14th May, 1861, containing proclamation of 13th May, 1861; the Victoria Government Gazette of 17th July, 1861. A supplement to the latter Gazette of the 4th February, 1865, having been put in, the following evidence was called :

Constable Wardle, watch-house keeper at Williamstown, proved having received the defendant in charge about 10 o'clock on the night of the 14th February. The description taken down was: aged twenty-one, seaman, native of Scotland, Protestant, and able to read and write.

John Williams, a man of color, stated that he was a native of the United States of America. On the 7th of November, at sea, he was taken from the bark De Godfrey. He entered on board the Shenandoah' as cook. Saw the southern confederacy colors on board. Defendant came on board two days after the vessel arrived in Hobson's Bay. He said his name was Charley; that he came out to Victoria in the Great Britain, and that he had come on board to join the Shenandoah. Mr. Bullock, the sailing-master, told defendant to keep out of sight while visitors were on board. When strangers came to the ship defendant was locked up in the forecastle, and was fed through an aperture. He wore the confederate uniform, like the other men on board. The master-at-armis always used to lock the forecastle door when defendant was put inside. Witness left the ship on the 5th February. Defendant was then employed as assistant ward-room cook. Witness heard the defendant once speaking with the first lieutenant, Mr. Whittle, about enlisting. The first lieutenant told him he could not enlist him while the ship was in port, but that he would when they got out to sea. At the time the defendant had on the southern confederacy uniform.

To Mr. Aspinall: Do not know either Mr. Lord or Mr. Francis. I joined the ship on compulsion, and on coming to this port claimed the United States protection.

Mr. Aspinall was about to ask the witness whether he was aware that Captain Waddell had said his testimony was entirely false, and whether he was aware that the officers of the ship had contradicted his statement, but his honor ruled that answers to these questions could not be received in evidence.

Cross-examination continued: I don't know the name of the gentleman who took me down to the Williamstown police court. Defendant did not merely say he should like to sail in the Shenandoah, he said he came to join the ship. He cooked in the confederate uniform. Defendant did not wear an old cast-off pair of uniform trowsers, but a new pair. He had not a uniform coat; only cap and trowsers. The vessel, at this time, was not prepared to go to sea. I am at present supported by the United States consul, who pays my board. Paymaster Smith serves out clothes on the Shenandoab, but defendant did not get his clothes from Smith. It was not the United States consul who drove me down to Williamstown. Have not been at the treasury buildings or at the law-offices.

Walter James Maddev, seaman, deposed that he was a native of Boston, and was taken


by the Shenandoah from the bark De Godfrey on the 7th November last. The Shenandoah came down under English colors, and, after making the capture, the confed.

erate colors were boisted. The valuables having been removed to the [571] *Shenandoah, the De Godfrey was burned. The sailors of the Federal bark were

made to serve as seamen on the confederate vessel. Witness was rated as captain of the hold. While witness was on board the Shenandoah other captures were made, and the confederate flag was hoisted on these occasions, when the enemy's ships had been secured. First saw the defendant four or five days after the Shenandoah arrived in Hob. son's Bay. He was in plain clothes at tbis time, but a day or two afterward witness saw him cooking in the confederate uniform. One evening defendant told witness he should like to join the ship, and he wished she were at sea. Defendant was put in the forecastle while visitors were on board. The master-at-arms locked the door on these occasious, and food was put through the hole where the cable-chain goes. Defendant went by the name of Charley. He usually slept on the berth-deck. The calkers at work on board usually knocked off and went ashore between 5 and 6 o'clock in the evening. Defendant always slept on board. I saw defendant once speaking to the master-at-armis. Defendant was on board when witness left the ship on the oth February

To Mr. Aspinall : I deserted the ship, though I signed articles. I am supported by the American consul, and am promised 78. a day as a witness. The consul pars for my board and lodging. I got £7 a month on board the Shenandoah. Could not get my lodgings and 78. a day on board a merchant-ship. The consul told me I should have to pay for my lodgings out of the 78. a day.

Mr. Aspinall. When you get it; but it depends upon the appropriation act being passed whether you get it at all. [Laughter.]

Cross-examination continued; I have been paid 38. by the boarding-house keeper I stay with since leaving the Shenandoah. That is all the money I have received with the exception of some I earned for carting sand. Visitors were not on board the ship every day, and defendant was not locked up when strangers were not on board. He cooked in the galley on these occasions, but he was always locked up in the forecastle when visitors were on board. The uniforin-trousers of defendant were not new, nor yet vers old. Eight or ten others were locked up with defendant in the forecastle. I know Mr. Lord. That gentleman took me up to the Crown solicitor, but I do not know for what purpose. Not a word was said on the way. My uniform-clothes were served out to me by the paymaster, and any man who enlisted would get his clothes from that officer.

To Mr. Adamson: Are you aware that it is the government regulation to pay witnesses 78. a day?

Charles Belucke, a German, stated that on the 13th October he was taken by the officers of the Shenandoah from the Federal bark Alina. The bark was seuttled, and the crew joined the Shenandoah. The latter vessel carried English or Federal colors when there was a ship in sight, and at other times the confederate colors. Eight or nine days after arriving in Hobson's Bay, saw the defendant on board the Shenandoah, cooking in the galley. He was called Charley, and was locked in the forecastle when visitors were on board. He usually slept on the berth-deck.

To Mr. Wrixon : Defendant usually wore the confederate uniform gray shirt and confederate trowsers, the same as I now have on. There is no stripe nor anything remarkable about the trowsers; they are simply made of gray cloth. The shirt was distinguished by the broad man-of-war collar. The uniform-trousers defendant wore were in good preservation. I have left the Shenandoah. Charley was never on deck when visitors were on board. There were two port-doors, and two other doors to the forecastle. The port-doors open from outside. There was another cook on board besides Charley. The American consul pays my board-£1 a week. Have been told I shall get 78. a day for the time I have been kept waiting to give evidence.

To the attorney-general: Defendant, when on board, wore the uniform-cap, besides shirt and trowsers. When he first came on board we wore whiskers, but he afterward removed them.

Hermann Wicker, a companion of the last witness on board the Alina and Shenandoah, corroborated his evidence.

To Mr. Aspinall: About 23 men deserted the Shenandoah in Holson's Bay. I signed artic es he cause I was frightened, and left the ship because I had been taken out of a pr ze. Never heard an officer speak to Charley while he was on board. Had no mones when I left the ship. Have since received only 18. from a boarding-house keeper. The ship was on ihe slip when I left her.

To Mr. Adamsou: When asked to sign the ship's articles I could not speak English. and assented without understanding what was said.

Alex. Minto, an officer of water-police said: On the night of the 14th Febrnars, between 9 and 10 o'clock, he was in charge of a police-boat close under the Shenandoalı, which was at that time on the patent slip at Williamstown.

Saw a boat [572] astern of the ship haul up to the gangway, and George Nicholls, a waterman,

then went on board. A gentleman, iu confederate witorm, came to the gang

way and stood over the boat. In a few seconds four men camo down to the boat from the Shenandoah, the defendant being one of them. Hauled the police-boat close to theirs, and, speaking to the men, asked what they were doing on board. Believe the defendant answered, “We are working day-work." The boats were close together at the time. Heard a call of “George” from the officer on the gangway, and directly afterward the waterman Nicholls slid down from the ship into the boat. The men in the shore-boat then pulled away as hard as they could. Followed them in the policeboat, and found them at the railway-station. Defendant was among the men there. Remarking to defendant that he was in a hurry to get away from the ship, he hesitated, and said, "O, the Shenandoah, you mean.” In the course of remarks afterward made, defendant said he had sold all he had to go on board the ship, and he should be very sorry if he could not go in her. Some of the men also said they were sorry they bad not managed better by going on board later, or making some better arrangement to carry out their purpose. One of the men said he had gone on board to see a young man who shipped on board the Shenandoah from the steamer Laurel.

Thos. H. Lyttleton, superintendent of police, deposed that, on the 14th February last, he went down to the Shenandoah, then lying on the slip at Williamstown. He went to execute the warrant produced.

His honor held that the witness could not be examined as to the nature of this warrant.

Esamination continued : Saw the Confederate States flag flying from the ship's stern. On the same evening defendent was brought before witness by Minto. Said to him, “You are the very Charley I have been looking for.” Defendant said it was a great joke on board, (witness having gone for Charley,) and that there was no person of that came on board the vessel. Had been or board on the 13th as well as on the 14th. Defendant stated that he had been on board some time, and that the officers had compelled him to leave the vessel. The uniform of the men was as described today by the other witnesses.

To Mr. Aspinall: The uniform resembles that worn in Pentridge. I was not intrusted with the capture of the vessel on the slip. It was the slip I took, not the ship. I had with me fifty men to capture Charley.

This closed the case for the Crown.

Mr. Aspinall snbmitted that there was no proof whatever that the Shenandoah belonged to a belligerent power. The evidence went to show that at one time she carried one flag and at another time another flag. There was no proof of the ship's commission ; nobody bad been called to speak about it, and, for all the court knew, she might be a pirate, belonging to no particular country. Because it suited the vessel in the course of her operations to fly one flag at one time and a different flag at another, the Crown could not select one, and say she was a confederate ship. If there was evi

dence against the captain there was none against the present defendant, who was only . cook on board ; and there had been no recognition of the vessel in question by the authorities here as a, confederate ship.

His honor thought the acts of the ship were evidence of what she was. The acts he referred to were the capture of the merchantmen of an enemy. The change of flag was the ruse ordinarily adopted to entrap an enemy's vessel ; but when in harbor here, claiming to be recognized as the ship of a foreign power, it seemed that the flag displayed had been uniformly that of the Confederate States.

Mr. Aspinall said the only evidence of the ship's nationality was her display of the confederate flag in Hobson's Bay. Then there was no proof that the southern confederacy had been recognized as a belligerent power; and the northerners contended that their antagonists were merely rebels. It haul been laid down that a war between foreign countries must be proved, the British courts only taking judicial cognizance of war in their own country.

His honor: The powers in question were at present actually fighting, and he thought the Gazettes would prove their position as belligerents.

Mr. Aspinall: Fighting was not war, and it was necessary to show that the heads of the communities were engaged to constitute war. If the confederate ship did any wrong, assuming that she did, that could be no evidence of war between one country and another. As a fact, he did not deny the existence of the war, but on behalf of his client he claimed to be entitled to legal proof of it. He submitted the conrt had no right to say there was a war, though aware of the fact, in the absence of legal proof. His honor considered that evidence of warlike acts was sufficient to send the case to

the jury. [573] *Mr. Aspinall desired particularly to press this point on the court, because it

would be useless for him to tell the jury there was no war. In the case of Dolar is. Lord Huntingdon, (11 Vesey, jr., p. 292,) Lord Eldon distinctly supported the view he took. There was also no proof of the Queen's proclamation. According to Taylor on Evidence, (p. 17,) an authenticated copy must be produced, sealed with the seal of the state or country to which it belonged; and publicatiou in a gazette" was not authentication.

His honor: The Gazette was an established means of publication for these documents, and the Gazette recognized the powers in question as belligerents. He was inclined to think production of the Gazette was sufficient proof.

Mr. Wrixon called attention to the fact that the offense with which the defendant was charged was one created by statute, and that the Crown could not claim a conviction unless the case were brought fully and completely within the statute. The whole object of the statute had reference to acts of war between foreign powers, and could it be contended that the case of persons joining a party of pirates could be brought up under this act? It was a necessary ingredient to prove the existence of war; and, in the absence of proof of this kind, the case could not be distinguished from one of piracy, as he had supposed this to be for the purposes of argument. The Confederate States bad no accredited agent here, and there was no judicial proof that the Northern and Southern States were belligerent powers, the Federals themselves not adóitting it. Neither was there any proof that the defendant had enlisted. It was merely sworn that he had acted as cook and that he had expressed his sorrow at not being permitted to remain on board.

Mr. Aspinall submitted it was necessary to show that defendant had sought and asked for employment in order to sopport the charge.

His honor: Defendant having given his time on board ship and his having assisted in the arrangements for his own concealment were so far overt acts as to his ultimate intention of serving on the ship.

The attorney general, on the authority of King 18. Holt, (5 Term Reports,) contended that publication of the proclamation in the Gazette was evidence at common law. According to the act 8 and 9 Vict., cap. 113, sec. 3, the Gazette provedl itself, and there were no other local means of proving the Queen's proclamation. He cited Russell re. Ryan (Crown cases) and Taylor on Evidence, (p. 23.) The Confederate States being only recognized as a belligerent power, they had no representative here, and the ordinary means of proof in such cases was therefore not obtainable. Mr. Adamson and Mr. McDonnell were also heard on the same side.

His honor said the point he had most difficulty in dealing with was that in regard to the Queen's proclamation appearing in the Government Gazette. He had some doubt about whether the Gazette proved itself, and, if it did, whether the Queen's proclamation was evidence that the United States or two other conntries were engaged in war. It would have been more regular had defendant's counsel raised the objection when these documents were put in. However, he thought he ought to give defendant the benefit of a special case. If the Crown pressed him to receive this documentary evidence, he would do so, and reserve the case for the defendant; but if the Crown did not ask him to accept it, he would exclude this portion of the evidence.

The attorney general elected to go to the jury upon the evidence founded on acts proved.

His honor said, that being so, he would not reserve a case, though he would grant a new trial motion if asked. He would merely take the acts proved as evidence of a war and that the ship was simply a belligerent vessel of some power.

Mr. Aspinall then addressed the jury for the defense, in a humorous speech, which excited great laughter, characterizing this as the most ridiculous state prosecution erer brought before twelve men. Superintendent Lyttleton had marched up with fifty men, supported by Mr. Verdon and all the artillery, for the purpose of capturing a cook; but, like the King of France, they all marched down again, for, having captured the vessel on the slip, they dropped it like a hot potato. The Crown would have the jury believe the country was about to be plunged into a war, all because this man had cooked a few chops for the officers of the ship while on the patent slip. What a case was this to make a state trial of! Did the jury believe that Her Majesty was trembling upon her throne because Charley was cooking a few sausages ? Or that, because the attorney general was prosecuting in this case, the Confederate States cared whether Charlie was cooking chops or hominy there The defendant was no loafer; he was a man seeking to earn a living by honorable employment; and why was he seized upon

to be made a scape-goat! Mr. Langlands, who bad gone the length of putting [574] the ship in repair and making her *ready for war, was allowed to go scot-free;

but the man who had fried potatoes on the patent slip stood before them a state prisoner, awaiting his fate. Charley, the cook, subverting the British constitution ! That was the proposition submitted to the jury. In order to convict this man, the jury must believe that he was engaged. The attorney general proved that he was not engaged; that he had been refused; and this was bis evidence that he was engaged. Intent and attempt were very different things; and a man might go on a ship merely in the hope of getting employment. The attorney general, it seemed, insisted upon a conviction, though he did not intend to press for a heavy penalty. There was a signiticance in this, and it was plain that the intention of the prosecution was to prove Captain Waddell and the officers of the Shenandoah liars. Though the defendant only got an hour's imprisonment, if the jury convicted, it would go forth throngh the American press that a jury of a British colony had pronounced the officers.of a southern ebip

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