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, which 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 defendant was liable under one, he 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 constitute "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 defendant 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 lieutenant 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 had been freely bandied about in the newspapers. But the question was, did it involve their honor; 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 offense 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 officers could have given. This might give rise to some doubts. The second class of counts referred to defendant's agreeing to serve; the 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 him 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 John 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 amount 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 regulation 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 conclusion 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 defendant of an attempt, his going on board the vessel at all being, in the view of the court, an overt act sufficient 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 he quoted a case from the "Crown Cases Reserved." His honor held that soliciting to serve was an attempt to commit the offense. 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 merriment. [578] * 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 Mel bourne. I am, &c., No. 32. RUSSELL. Mr. Adams to Earl Russell. LEGATION OF THE UNITED STATES, London, October 21, 1865. (Received October 23.) MY LORD: Under instructions from my Government, I have the No. 30. honor to submit to your consideration copies of certain Representation. 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 tions have been instituted, indeed, against a few persons who were al leged to have been acting in contravention of the provisions of the enlistment act. Mr. Rumble, after escaping from justice by the leniency of a jury, received a decided censure from the government; Captain Corbett, the officer commanding the Sea King, though prosecuted, ap pears never to have been brought to trial. But these, with a few minor cases, were exclusively those of British subjects, who appear to have been acting merely as instruments of a power above their heads. Not a single individual directly connected with the rebellion, and sent here to conduct the operations, has ever been molested in any manner. It cannot, therefore, be at all a matter of surprise when the mainspring of the various naval enterprises, the director of the Alabamas, Floridas, Georgias, and Shenandoahs, was left wholly undisturbed, that it has been impossible to put a stop to the damage which has ensued to the people of the United States from the ravage and depredation committed upon them by the operations carried on from this kingdom. At the very time when the fortunate encounter of the Alabama by the United States steamer Kearsage terminated in the destruction of one of these corsairs, the offspring of the violated law of this land, and when the people of the United States were congratulating themselves that one great cause of irritation between the two countries was at last laid to rest, it now appears that the directing power to which I have alluded at once turned its attention to a husbanding of the seamen saved by a trick from the hands of the victor, with a view to the immediate production of a successor to the same work. The evidence which I now have the honor to submit shows that many of the crew saved from the Alabama have been from the beginning, and still continue to be, a part of the crew of the Shenandoah. Neither does it appear from anything within my knowledge that the smallest attention was ever paid by Her Majesty's government to the representations which I had the honor to submit at the time touching the probability of precisely such an operation. That the principal person engaged in the direction of this bureau was an officer by the name of J. D. Bullock, expressly dispatched from Richmond for the purpose of organizing it, is a fact to which I had the honor to call your lordship's attention in many different forms during the progress of the struggle. Yet, in spite of all this evidence, Mr. Bullock appears to have been permitted to conduct his operations, and especially to shape the outfit and the entire cruise of the Shenandoah, without the smallest interference from any official quarter. It may, however, be objected that whatever may have been the nature of my remonstrances, no sufficient evidence was presented of the official character and proceedings of Mr. Bullock to sustain the initiation of any prosecution against him in the courts. To which I am pained to be constrained to reply that my Government has reason to believe [581] *that Her Majesty's government has in one instance considered, that evidence sufficient to sustain it in recognizing the authority of Mr. Bullock over the commander of the Shenandoah so far as to stop its career, and in consenting to furnish the medium by which to transmit his orders to that vessel. The power to prevent certainly implies the previous existence of a power to control. I beg permission to express the hope that inasmuch as the papers in which this fact appears have not come into the hands of my Government by direct communica tion from your lordship, I may presume them not to be genuine. Should the fact be otherwise, however, while readily conceding that the motive for such a proceeding may have been substantially of the most friendly nature, in accelerating the termination of the ravage com mitted by that vessel, I do not at the same time feel at liberty longer to disguise from your lordship the sense of extreme surprise which the knowledge of it has caused, not less on account of the singular recog nition thus incidentally made of the authority of one long since pointed out as the principal offender against the neutrality of this kingdom, and enjoying a degree of impunity difficult to be understood, than of the fact that Her Majesty's government appears to have determined thus to act without deigning any friendly signification of its purpose to the party most directly interested in the decision. Since the preceding was written I have had the honor to receive unofficially from your lordship the gratifying intelligence that Her Majesty's government have decided to send orders to detain the Shenandoah if she comes into any of Her Majesty's ports, and to capture her if she be found on the high seas. I have taken great pleasure in transmitting this to my Government. At the same time, I trust I may be pardoned if I am compelled to remark that had Her Majesty's government felt it to be consistent with its views to adopt this course at the time when it adopted that upon which it has been my painful duty to animadvert, it would have most materially contributed to allay the irritation in my own country inseparable from the later outrages committed by that vessel. Having thus acquitted myself of the unpleasant duty with which I have been charged, I pray, &c., (Signed) CHARLES FRANCIS ADAMS. [Inclosure 1 in No. 32.] Messrs. Merrill & Co. to Mr. Seward. SAN FRANCISCO, August 16, 1865. Destruction of W. C. Nye. DEAR SIR: The English propeller Sea King, alias confederate steamer Shenandoah, kas made her appearance in the Arctic Ocean and threatens the destruction of the entire whaling-fleet. Twenty-five whaling-vessels have already been burned by her, and four others captured and bonded for the purpose of bringing the crews of the burnt ships to this port and the Sandwich Islands. On the 26th of June she burnt our bark the William C. Nye, of this port, sending her crew on to this port in the whaler General Pike, and we wish to place on file or present for collection our claim against the English government for the destruction of the said vessel, amounting to $280,212.50. The size of the William C. Nye, and the owners of her, are certified to by our deputy collector; and we forward with the claim the captain's "extended protest." Please inform me whether the claim should be presented in any different shape. Allow me to suggest that the next Congress be recommended to appoint a "commission" to adjust these claims, while all the testimony that may be required can be obtained, and the various facts in the different cases are fresh. We remain, &c., J. C. MERRILL & CO The bark William C. Nye was the capacity of 3893 tons, as appears from copy of her register on file in this office, and she was owned as per statement hereunto attached. In witness whereof I have hereunto set my hand and seal, at San Francisco, this 11th day of August, 1865. (Signed) H. Ex. 282-54 E. DANIELS, |