Lapas attēli

to have been guilty of violating a treaty and of neglecting their own honor and position. This would do more to create a war than any act of the defendant's, and the fact was that the officers of this vessel so faithfully maintained their position that they would not even have Charley as cook. The correspondence with a bilious minister seemed to be quite lost sight of; it was the act of a man who did some cooking while the officers were on shore, and expressed regret at not being allowed to join the ship, that was to give rise to war. The attorney general had even attempted to coax the jury into convicting, by promising, in effect, that the punishment should be small. Perhaps it would be; and this would not be the first time the Crown law-officers had remitted penalties. Possibly the defendant would be allowed to give a check in payment of bis fine. If any war came of the affair at all, it would be from the method • adopted in this colony in dealing with the vessels of foreign powers, by which the feelings of the representatives of the belligerents were outraged. He had not the least anxiety for his client, because he did not believe the executive would dare to carry out any sentence upon him; but he wished to protect the southern flag from unmerited insult. He should like it to be said that, whatever the government of this colony thought proper to do, a jury of twelve men could pot be found to sanction it; and, for the credit of the colony, he did not wish it to be said that political feeling had been allowed to determine the matter, and that a stigma had been unjustly put upon the characters of the oflicers of the Shenandoah.

His honor said that, as the case involved far more important consequences than any. thing merely affecting the defendant, he would postpone his charge to the jury until the following morning. It would be the duty of the jury, in the meanwhile, to abstain from conversing with any one upon the subject of the present trial, or in any way laying themselves open to receive an intluence, remembering that it was their duty to decide the case merely upon the evidence legally before them. The court then rose.

SATURDAY, March 18. The case of James Davidson, alias Charley," in which the defendant was charged with a breach of the foreign-enlistment act, was proceeded with.

The attorney general, (Mr. Higinbotham,) with Mr. Travers Adamson and Mr. M. A. McDonnell, appeared for the prosecution; Mr. Aspinall, with Mr. Wrixon, for the defonse.

Mr. Wrixon said that, before his honor charged the jury, he wished to remind the court of certain objections made by his learned friend, Mr. Aspinall, on the previous day, but not then pressed by him, namely, that the evidence adduced as to various acts of aggression of the ship Shenandoah on the high seas could not be connected with the defendant. Now that the Gazettes were withdrawn, the whole case turned on this. As to the character of the ship, before any proof could be admitted against the defendant, it must be proved that he was at the time in possession of facts which occurred thousands of miles away on the ocean. They had no opportnnity of challenging such evidence, given by witnesses who had been retained and maintained for the prosecution. He referred to Starkie on Evidence (p. 83) in support of the proposition that the defendant could not be bound by the acts of strangers ; such acts were not admissible in evidence. The case of Rex 18. Hunt and others (3 B. and Ald., p. 566) would bear out the view he urged. Lord Tenterden had distinctly laid down this principle. The evidence for the prosecution on this point should have been brought down to a more recent date. As it was, it was a mere assumption that the vessel retained a belligerent character up to the time the defendant went on board.

The attorney general replied that these objections were irregular. The evidence [273] of "the government Gazettes was withdrawn on the court intimating that the

acts of the vessel were sufficient evidence of her warlike character. If the court decided on reopening the question he would again tender the Gazettes, as he was confident they were good evidence.

His honor said he understood the Gazettes were only withdrawn as far as they referred to proof of the pendency of war between two foreign states.

Mr. Aspinall, who had just entered the court, submitted that they were wholly and entirely withdrawn.

His honor: If they were, there was nothing more to be said about them. But, if the Gazettes were admitted, the evidence which they would afford would be very slight, as it would rest on the presumption that the defendant had read the English and Victorian government Gazettes, the latter having been published several days after the defendant was on board the ship. The jury would have to be told that the defendant could not be held to be cognizant of acts which took place before he went on board the vessel.

The attorney general urged that, though slight evidence, the Gazettes were certainly some evidence of the proclamation of neutrality. Every subject of the Crown must be presumed to have a kuowledge of the proclamations made by the Crown in the ordiDary way.


His honor : Is there any reference in the Victorian government Gazette to this vessel :

The attorney general: No.

Mr. Adamson : If the matter be reopened at all, it must be reopened for all purposes.

Mr. Aspinall wished to let the matter remain just where it was on the previous evening. He would remark that there was no proof that there was a gun on board the vessel at all.

His honor said that, although that fact was not brought out very prominently, it had been elicited in the course of evidence.

His honor then proceeded to charge the jury. He said in this case James Davidson, alias Charley, was charged in a number of counts dealing with an offense in many different aspects, but wbich in broad terms was that he had enlisted on board the Shenandoah, she being a confederate war-ship. The information was laid under the English act 59, Geo. III, (cap. 69, sec. 2,) commonly known as the foreign-enlistment act. In order to convict the defendant on any of the counts, the jury would have to be satisfied as to several facts: 1. That 'the defendant was a natural-born British subject. Evidence on this point was contained in the defendant's own statement to the tirst witness, the keeper of the Williamstown watch-house, that he was a Scotchman; although, even in the absence of such testimony, till the contrary was proved, it was to be presumed that all persons found here were natural-born subjects of Her Majesty. 2. he jury must be satisfied that the vessel in question was a ship of war in the service of the Confederate States of America. The jury might take cognizance of the fact, as a matter of geography, that there were two states or governments, the one known as the Federal and the other as the Confederate States of America, each being a portion of what was formerly the United States of America. The jury might take coguizance of this fact without any reference to the merits of the contest-whether secession was right or wrong; they had nothing to do with that. They must regard the fact just in the same manner as they would ihe fact that there were two neighboring states-Spain and Portugal-which, though at a long distant period, had been at war. The case might be dealt with just as though a vessel of one of these powers, being a belligerent, hai entered our waters, and that the offense had been committed on board such a vessel. He gave this by way of illustration. The jury might take cognizance of geographical facts, just as they might of the fact that tliere were two neighboring colonies, South Australia and Tasmania, although they had never been there. 3d. The next question for the jury to decide was whether there was war pending between the Federal and Confederate States of America. The only admissible evidence on this point was the conduct of a ship-the proved acts of the vessel-when at sea she was engaged in capturing Federal vessels and then hoisting the confederate flag. Evidence was adduced of the burning, sinking, and destroying by the Shenandoah of five or six Federal vessels, some of the witnesses being seamen taken out of those vessels. The jury were aware of the manner in which the ship came into our neutral waters and was subsequently placed on the patent slip. All her acts were consistent with the presumption that she was a lawful belligerent-not a pirate. It was a presumptive proof that she was not a pirate; that she came into the port of a neutral maritime power, knowing that, if she were a pirate, all on board would run the risk of huging. The quiet nan

ner in which she came here was, so far, proof that she was a lawful belligerent. [576] It was just as though a *Portugnese ship of war had come into our neutral port

after capturing or destroying a number of Spanish ships, supposing those two countries to be at war. The jury must shut out all extraneous sources of information: they must, so to speak, lock their minds against all sources of information, except such as were disclosed in evidence, and cleal with the facts just as though Spain and Portuigal were the countries involved. It was for them to say whether the facts would reasonably justify them in arriving at the conclusion that there was war pending between the two countries. From the tlag, guns, ofiicers' uniforms, &c., on board the vessel they might draw inferences; but they were not to infer against the defendant that he was aware of the previous history of the ship. Then came the question, Did the defendant know that she was a ship of war? The arguments of counsel on this point had been noticed. The defendant saw that she had all the ci aracteristics of a ship of war, and had remained on board among men wearing a wiform, many of whom were prisoners taken out of Federal vessels. The questions thus arose ; Did the prisoner, by his acts, incur all the culpabilities? Did he go on board the vessel intending to enlist? As to his not baving the leave and license of the Queen, there was no proof that he was under the exceptions mentioned in the act. As to the various counts of the information-the first, fourth, seventh, tenth, thirteenth, sixteenthi, and nineteenth-charging defendant with entering the service as a sailor, the evidence was clear that he was not a sailor; therefore the jury would exclude all those counts from their minds. Now came the question whether entering as a cook was a breach of the foreign-enlistment act. Though at first he had some hesitation on the point, he had come to che conclusion that it was, as it came within the meaning of tbe words of the act "eutering to serve."


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Non-combatants shared the dangers of battle, and must be in readiness to expose themselves to danger. Defendant was a cook, and as men could not fight unless they ate, some one must serve in that capacity. Thus, surgeons were required to attend the sick and wounded ; others were employed in the laborious occupation of supplying the furnace with coals, and these and others, though non-combatants, and probably specially exempted from fighting, all aided in effecting the warlike designs of the ship; so a cook co-operated and came within the meaning of the act, wlich made service rendered to a foreign belligerent power punishable. As to the next class of counts-three, six, nine, twelve-there was but a slight difference between them : if the defeudant was liable under one, lie was under all. The question was, did he “serve" on board, and thus the question arose as to what service was. A man casually employed-such as to calk, or as a temporary cook-would not be considered to be in the service, no more than a temporary waiter employed at a private house would be considered to be in the service of the household. The question for the jury to decide was whether the defendant's relation to the ship was sufficiently permanent to constitnte “service.”. Reverting to counts two, five, eight, eleven, and fourteen, evidence of intention to enlist might be gathered from defendant's conversations with the inferior officers of the ship. The second lieutenant told defendant if he remained on board till they went to sea he should be put on the ship's list. It was for the jury to say whether this amounted to an agreement to serve. Unfortunately, this question had been mixed up with others in the public mind; but the jury must confine themselves strictly to the evidence before them : that the defendaut was on board, wore the uniform, conversed with certain officers ; that when visitors were on board he was secreted in the forecastle, the performance of his ordinary duties as cook being suspended, and his food being taken to him. It was for the jury to say whether defendant's conversation with the first lientenant amounted to an agreement that he should be put on the ship's articles when she got out to sea. Defendant remained on board for some time, and then, with some degree of secrecy as to time and manner, left the ship; he left the vessel in a manner which indicated that it was not intended to be a matter of general observation. It had been said that the honor of the officers was involved in this matter, and these topics bad been freely bandied about in the newspapers. But the question was, did it involve their bonor; did the getting of a cook cast an imputation on their honor? It was for the jury to say whether it would reflect so deeply on their honor that they could not believe it to have occurred. The ofteuse would be considered by most people as venial. The jury must regard these considerations only so far as the occurrence of the alleged act was inconsistent with the character of men of honor, and then to determine how far it reflected on the defendant, and on the probability or otherwise of his guilt. It must be remembered that the prisoner had lost the benefit of such evidence as the ship's otticers could have given. This might give rise to some doubts. The second class of counts referred to defendant's agreeing to serve; tlie third class was as to the actual service. He had already said that he discarded the counts from eighteen to twenty-four; but it would be competent to the jury either to say that defendant attempted to serve, or that he entered into an agreement. The jury might acquit the defendant of the

actual fact of service and convict liim of having intended or agreed to serve [577] He would now turn to the actual *evidence as to the vessel being a ship of war.

[His honor read the evidence of Jolm Williams, and other witnesses, as to the acts of the Shenandoah at sea.] The jury would, of course, consider the character and reliability of these witnesses. It had been urged that they were deserters, and, therefore, unreliable. But in estimating the annount of importance to be attached to this imputation, it must be remembered under what circumstances the men joined the ship: They were taken as prisoners from prizes, and, immediately on arriving in a neutral port, they deserted this forced service. Then there was the evidence as to how the men had been fed and provided for here. It appeared that they had lived at boardinghouses and they were to be paid 78. per day. They appeared to have been dealt with liberally ; but it was for the jury to say whether that treatment of the witnesses amounted to bribery.

The attorney general: The regnlation payment is 78. 6d. per day.

His honor: That did not transpire in evidence, though it was mentioned by Mr. Adamson. It was admitted that the men had some expectation of getting more from the American consul. Still, the amount which they were actually to be paid was 6d. per day under the regulation allowance. As to the defendant and his companions, there was evidence of their having landed in some degree covertly. [His honor read the evidence.] It was for the jury to decide whether the defendant was permanently serv ing on board a war steamer in the capacity of cook while that war-steamer was in our neutral waters. If so, they must convict under the first line of counts. As to whether defendant agreed, the jury would have to arrive at the couelusion that he bargained with the first lieutenant, and that that officer was competent to make such an arrangement. If they did not consider the evidence of actual service sufficient to convict, then they could convict defendunt of an attempt, his going on board the vessel at all being, in the view of the court, au overt act suficient to constitute an attempt to enlist.

Mr. Aspinall reminded his honor that the evidence was that the defendant obtained the uniform from another seaman, not from the officers of the ship.

The jury then retired to consider their verdict. After about an hour's absence they returned into court, and found the defendant “Guilty of an attempt to enter the service of the Confederate States of America."

His honor: Then you find the prisoner guilty on the second count?
The foreman : Yes, your honor; guilty of an attempt to serve-not guilty of serving.

The attorney general intimated that there were two other similar cases. In one, that of Arthur Walmsley, the Crown had decided not to proceed; in the other it was understood that the defendant, William Mackenzie, would plead guilty under the second count.

Mr. Aspinall reminded the court that the defendants had been in custody since the 17th February. He begged to remark that he could not understand how the defendants, in the words of the information, could “attempt to agree to serve, inasmuch as the evidence was that the confederate officer would not have them, and put them over the side of his ship.

Mr. Wrixon followed on the same side, arguing that the finding of the jury must strictly accord with the terms of the count; in support of his argument le quoted a case from the “ Crown Cases Reserved."

His honor held that soliciting to serve was an attempt to commit the offense.
After some further argument,

His honor proceeded to pass sentence. In doing so he said that those prosecutions had not been undertaken in any spirit of hostility on the part of the Crown. A breach of the laws of the country had been proved; but it was not to be said that the defendant had been guilty of an infringement of moral duty, as persons in his rank of life might not, and probably did not, know the important results which might follow from such unlawful acts. He was not disposed to make the defendant a severe example by way of showing the intensity of the neutrality of this British colony. As the defendant had already been imprisoned for more than a month, a small further punishment would be sufficient to show that the neutrality laws must be strictly maintained. The sentence of the court, therefore, was that the defendant be imprisoned for ten days. [Suppressed applause.]

William Mackenzie pleaded “Guilty” under the second count, and was similarly sentenced.

Arthur Walmsley, a lad about fifteen years of age, was brought up, and, on the application of the attorney general, discharged.

The comic appearance of the juvenile offender against international law threw the whole court into a fit of laughter, which lasted for some minutes, the learned judge, the attorney general, Crown prosecutor, in fact the whole bar, joining in the merrimeut.


* No. 31.

Earl Russell to Sir F. Bruce.

FOREIGN OFFICE, June 3, 1865. SIR: I transmit to you herewith, for your information, copy of a letter and its inclosures from the colonial office, relative to questions which have arisen out of the proceedings of the Shenandoah at Melbourne.

I am, &c., (Signed)


No. 32.

dr. Adams to Earl Russell.


London, October 21, 1865. (Received October 23.) MY LORD: Under instructions from my Government, I have the

I No. 30.


honor to submit to your consideration copies of certain papers, marked A, relative to the destruction of the whaling- from Mr. Adams. bark William C. Nye by the vessel known under the name of the Shenandoah.

I am further directed to state that, in view of the origin, equipment, and manning of that vessel, my Government claims to look to that of Great Britain for indemnification for this and other losses that have been occasioned by her depredations.

In order that the facts attending this particular case may be more fully laid before you, I pray your lordship's attention to the series of papers marked B, herewith transmitted, which relates to a very material portion of this vessel's career.

In the statement of this case I shall endeavor to confine myself to a recapitulation of the principal facts. To this end it will be necessary for me to recall your attention to certain portions of the correspondence which I have heretofore had the honor to hold with your lordship.

In the letter which I was directed to address to your lordship on the 6th of September, 1864, when I was under the painful necessity of remonstrating against the conduct of the commander of the yacht Deerhound, in rescuing from the hands of the victor in the strife many of the crew of the Alabama, I received orders to submit to your consideration four propositions, two of which were in the following words:

3. That the continuance of these persons to receive from any British authorities or subjects pecuniary assistance or supplies, or the regular payment of wages, for the purpose of more effectually carrying on hostile operations from this kingdom as a base, is a grievance against which it is my duty to remonstrate, and for which to ask a remedy in their conviction and punishment.

4. The occasion has been thought to warrant a direction to me to ask with earnestness of Her Majesty's government that it should adopt such measures as may be effective to prevent the preparation, equipment, and outfit of any furthur naval expedition from British shores to make war against the United States.

To these propositions your lordship was pleased to reply on the 26th of September, by stating that the rescue of those people from the sea, and from their captors, was regarded by you as a praiseworthy act of humanity, and that, after their escape into this kingdom as a refuge, any attempt to restore them could be viewed by you only as a violation of hospitality. No action whatever, so far as I have had an opportunity of knowing, has followed upon either of these requests.

On the 10th of November following, I took the liberty of calling your lordship's attention to the fact that these refugees, who had been enjoying the hospitality of a neutral kingdom, were in reality persons most of them British subjects, originally enlisted within this kingdom for an unlawful purpose, actually still engaged in the same business, and held together with a view of making a part of another enterprise of the same sort with that of the Alabama, conceived and executed in all its parts by agents of the rebels residing all the time under the protection of Her Majesty's neutral territory at Liverpool.

The result, as displayed in the papers now submitted, shows conclusively that the refuge" spoken of by your lordship has been turned into a den of robbers, and that the humanity so freely commended has in its consequences been productive of wide-spread suffering to many industrious and innocent men.

On the 18th November, 1864, I had the honor to transmit to your lordship certain evidence which went to show that, on the 8th October preceding, a steamer had been dispatched under the British

flag from London, called the Sea King, with a view to [579] *meet another steamer, called the Laurel, likewise bearing that

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