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 hoisted. 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 Hobson's Bay. He was in plain clothes at this 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-arms. Defendant was on board when witness left the ship on the 6th 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 pays 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 uniform-trousers of defendant were not new, nor yet very 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 nesses 78. a day?

wit

Charles Behucke, 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 scuttled, 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 of 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 re markable 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 Hol son's Bay. I signed artic es because 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 money when I left the ship. Have since received only 18. from a boarding-house keeper. The ship was on the slip when I left her.

To Mr. Adamson: 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 February, be tween 9 and 10 o'clock, he was in charge of a police-boat close under the Shenan

doah, 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, in confederate uniform, came to the gang

way and stood over the boat. In a few seconds four men came 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 had 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.

Examination 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 Lame on board the vessel. Had been on 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 submitted 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 had 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 evidence 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 had 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 court 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 vs. 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 publication 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 had no accredited agent here, and there was no judicial proof that the Northern and Southern States were belligerent powers, the Federals themselves not admitting 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 support 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 rs. 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 proved itself, and there were no other local means of proving the Queen's proclamation. He cited Russell rs. 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 countries 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 ever 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 had 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 his 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 sig nificance 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 through the Amer ican press that a jury of a British colony had pronounced the officers.of a southern ship

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 his 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 not 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 officers of the Shenandoah.

His honor said that, as the case involved far more important consequences than anything 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 influence, 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

defense.

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 opportunity 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 vs. 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 [275] 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 knowledge of the proclamations made by the Crown in the ordinary 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 which 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 first 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. The 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 the 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, had 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 there 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 hanging. The quiet man

ner in which she came here was, so far, proof that she was a lawful belligerent. [576] It was just as though a *Portuguese 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 deal with the facts just as though Spain and Portugal 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 flag, guns, officers' 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 characteristics of a ship of war, and had remained on board among men wearing a uniform, 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 having 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, sixteenth, 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 the conclusion that it was, as it came within the meaning of the words of the act " entering to serve.”