Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-eighth Congress, Part I

Mr. Adams to Mr. Seward.

No. 542.]

Legation of the United States, London, November 20, 1863.

Sir: Thus far the progress made in the case of the Alexandra has been slow. The lawyers engaged in the defence have consumed all the time down to a late hour yesterday, when the attorney general commenced an argument in favor of his motion. I transmit herewith copies of the London Times, containing a report of the trial so far as it has gone. It is evidently much abbreviated, but it will suffice to give you an idea of the character of the proceedings.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, Washington, D. C.

[Enclosed.]

The Times of the 18th, 19th, and 20th November, 1863.

The Alexandra case.

Court of Exchequer, November 17.

Sittings in Banco, at Westminster. Before the Lord Chief Baron, Mr. Baron Bramwell, Mr. Baron Channell, and Mr. Baron Pigott.

THE ATTORNEY GENERAL VS. SILLEM AND OTHERS, CLAIMING THE ALEXANDRA.

Before going into the arguments of to-day, it will be necessary, perhaps, to call to the recollection of our readers the facts of this case, as well as the nature of the proceedings instituted by the crown against the defendants. In the year 1819 an act, familiarly known as the Foreign Enlistment act, was passed, and the present, we believe, is the first case which has been brought to trial in a court at Westminster Hall under it, although similar proceedings have been commenced from time to time, but never brought to an issue The act is to prevent the enlistment or engagement of his Majesty’s subjects to serve in foreign service, and the fitting out or equipping in his Majesty’s dominions vessels for warlike purposes without his Majesty’s license. The seventh section of the foreign enlistment act, 59 George III, cap. 69, enacts that if any person within any part of the United Kingdom, or in any part of his Majesty’s dominions beyond the seas, shall, without the leave and license of his Majesty for that purpose first had and, obtained, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped. furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or any person or persons exercising, or assuming to exercise, any power of government in or over any foreign state, colony, province, or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exercising, or assuming to exercise, the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom his Majesty shall not then be at war, or shall within the United Kingdom, or any of his Majesty’s dominions, or in any settlement, colony, territory, island, or place belonging or subject to his Majesty, issue or deliver any commission for any ship or vessel to the intent that such ship or vessel shall be employed as aforesaid, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the court in which such offender shall be convicted, and every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of any such ship or vessel, shall be forfeited: and it shall be lawful for any officer of his Majesty’s customs or excise, or any officer of his Majesty’s navy who is by law empowered to make seizures for any forfeiture incurred under any of the laws of customs or excise, or the laws of trade or navigation, to seize such ships and vessels aforesaid, and in such places and in such manner in which the officers of his Majesty’s customs or excise and the officers of his Majesty’s navy are empowered respectively to make seizures under the laws of customs or excise, or under the laws of trade and navigation; and that every such ship and vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner, and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation.

This section is almost a counterpart of the American enlistment act, passed in Congress in the year 1818, and which was a re-enactment of their act of 1794. Nearly all the expressions employed in the American act, it will be seen, have been pulled bodily into the British act. The screw steamer Alexandra was built at Liverpool, by Messrs. Miller & Sons, ship-builders, and after being launched was taken into the Toxteth dock for the purpose of being fitted. She is strongly built of teak wood, her gross tonnage being about 153 tons by the new mode of admeasurement, and her registered tonnage 83 tons. Her masts were put into her, the rigging commenced, and the boiler as well as her screw on board, when, owing to some information with which the government had been privately furnished from time to time, Mr. Edward Morgan, the surveyor of customs at Liverpool, who had watched the building of the ship from the beginning, seized her on behalf of the crown. The attorney general filed an information claiming the forfeiture of the ship, founded on the above section of the foreign enlistment act, against William Cowley Miller, Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bullock, Mathew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, and David Wilson Thomas. The information contains ninety-eight counts. The first count charged that the above persons, with others unknown, before the making of the seizure, without any leave or license of her Majesty for that purpose, did equip the ship with intent that such ship should be employed in the service of certain foreign states styling themselves the Confederate States of America, with intent to cruise and commit hostilities against a certain foreign state with which her Majesty was not then at war, viz, the republic of the United States of America, contrary to the statute, whereby the vessel, together with the tackle, apparel, and furniture, became and was forfeited. The second count charged that the same persons, with others unknown, &c., did equip the vessel with intent that she should be employed in the service of certain foreign states styling themselves the Confederate States of America, with intent to commit hostilities against the citizens of the republic of the United States of America, contrary to the statute, whereby the ship, together with the tackle, apparel, and furniture, became and was forfeited. The third count charged that the same persons, with others unknown, &c., did equip the said ship with intent to cruise and commit hostilities against a state with which her Majesty was not then at war—to wit, the republic of the United States of America— contrary to the statute, whereby the ship, &c, became forfeited. The fourth count charged that the same persons, with others, &c, did equip the ship with intent to cruise and commit hostilities against citizens of the United States of America, with whom and with which respectively her Majesty was not then at war, contrary to the statute, &c. The fifth count charged that the same persons, &c., did equip the ship with intent that the ship should be employed in the service of persons exercising the powers of government in and over certain foreign states styling themselves the Confederate States of America, with intent to cruise and commit hostilities against a certain foreign state, &c., to wit, the republic of the United States of America, contrary to the statute, whereby, &c. The sixth count charged that the same persons, with others, did equip the ship with intent that she should be employed by the Confederate States of America, with intent to cruise and commit hostilities against citizens of the republic of the United States of America, contrary to the statute, whereby, &c. The seventh count charged that the same persons, with others, &c., did equip the ship with intent that she should be employed by persons exercising the powers of government over certain foreign people—to wit, part of the people of the United States of America, with intent to commit hostilities against, &c.—to wit, the republic of the United States of America, contrary to the statute, whereby, &c. The eighth count charged that the same persons, with others, &.c, did equip the ship with intent that she should be employed in the service of persons exercising the powers of government over part of a certain foreign people—to wit, part of the people of the United States of America, with intent to cruise and commit hostilities against citizens of a certain foreign state, &c.—to wit, the citizens of the republic of the United States of America, contrary to the statute, whereby, &c. The ninth to the sixteenth count is the same as the first, substituting “did furnish” for “did equip.” The seventeenth to the twenty-fourth, the same as the first count, substituting “did fit out” for “did equip.” The twenty-fifth to the thirty-second, the same as the first count, substituting “did attempt and endeavor to equip” for “did equip.” The thirty-third to the fortieth, the same as the first count, substituting “did attempt and endeavor to furnish” for “did equip.” The forty-first to the forty-eighth, the same as the first count, substituting “did attempt and endeavor to fit out” for “did equip.” The forty-ninth to the fifty-sixth, the same as the first count, substituting “did procure to be equipped” for “did equip.” The fifty-seventh to the sixty-fourth, the same as the first count, substituting “did procure to be furnished” for “did equip.” The sixty-fifth to the seventy-second, the same as the first count, substituting “did procure to be fitted out” for “did equip.” The seventy-third to the eightieth, the same as the first count, substituting “did knowingly aid, assist, and be concerned in equipping,” for “did equip.” The eighty-first to the eighty-eighth, the same as the first count, substituting “did knowingly aid, assist, and be concerned in furnishing,” for “did equip.” The eighty-ninth to the ninety-sixth, the same as the first, substituting “did knowingly aid, assist, and be concerned in fitting out,” for “did equip.” The ninety-seventh charged that the persons before mentioned, with others, &c., without leave or license, &c., did attempt to fit out the said ship with intent that she should be employed in the service of persons exercising the powers of government over part of a certain foreign people—to wit, part of the people of the United States of America, as a transport or storeship against a certain foreign state with which her Majesty, &c.—to wit, the republic of the United States of America, contrary to the statute, whereby the ship, together with her tackle, apparel, and furniture, became and was forfeited. The ninety-eighth count cearged that the same persons, with others, &c., did equip, furnish, and fit out, and did attempt and endeavor to equip, furnish, and fit out, and did procure to be equipped, furnished, and fitted out, and did knowingly assist and be concerned in the equipping, furnishing, and fitting out of the ship, with intent that she should be employed in the service of certain foreign states styling themselves the Confederate States of America, and in the service of many persons exercising and assuming to exercise the powers of government in and over certain foreign states styling themselves the Confederate States of America, and in the service of many persons exercising and assuming to exercise powers of government over part of a certain foreign people—to wit, part of the people of the United States of America, as a transport or storeship, against and with intent to cruise and commence hostilities against a certain foreign state with which her Majesty was not then at war—to wit, the republic of the United States of America, and against citizens of the republic of the United States of America, contrary to the form of the statute, whereby, &c.; and the attorney general, on behalf of her Majesty, prayed the consideration of the court in the premises that the ship, together with her furniture, tackle, and apparel, might for the respective reasons aforesaid be forfeited.

To this information (which is certainly as long as it could by any possibility have been, to be intelligible) Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, and William Thompson Mann, who claimed the Alexandra, as well as her tackle, &c, by Edward Lee Rowcliffe, their attorney, pleaded that the said ship, furniture, tackle, and apparel did not, nor did any or either of them, or any part thereof, become, nor are nor is the same or any of them, or any part thereof, forfeited for the several supposed causes in the information mentioned, or for any or either of them, in manner and form as by the information was charged. The information, it will be seen, charges that the Alexandra was fitted out or equipped with intent to be employed to harass and to be hostile to the government and citizens of a state with which the crown was not at war, and that the vessel was intended to be employed in the service of the Confederate or Southern States of America. The persons whose names appear in the plea constitute the well-known firm at Liverpool of Fawcett, Preston & Co., iron founders, by whom it was alleged the Alexandra was supplied with engines, guns, and other materials. From the evidence at the trial it appeared that the Alexandra was one of three vessels built by Messrs. Miller & Son, two of which (the gunboats Penguin and Steady) were built for the British government; and the crown sought to establish, by the evidence of many wit nesses, that the Alexandra was also a gunboat, and had been built for the Confederate States for the purposes alleged above. During the time the Alexandra was on the stocks, as well as subsequently to her launch, Captain Bullock and Captain Tessier, both of whom, it was said, were in the naval service of the Confederate States, and acting as their agents at the port of Liverpool, interested themselves very much in the building and fitting out of the ship. Captain Bullock appointed a person named Yonge as paymaster, who swore that it was his duty to make payments to naval officers and others on behalf of the Confederate States, and that he received a regular formal appointment from Captain Bullock as assistant paymaster, and drew upon Messrs. Frazer, Trenholm & Co., who honored his draughts, for the money for the payments he had to make. In order to show the capacity in which Captain Bullock and Captain Tessier had been acting, it was stated that when No. 290, afterwards known as the Alabama, left Liverpool, she left without an armament, and that the Bahama, under the command of Captain Tessier, with Captain Semmes on board, the world-known commander of the Alabama, as well as Captain Bullock, followed her out to sea, and the guns and ammunition on board the Bahama were there transferred to the Alabama, when Captain Semmes took command of her, hoisted the flag of the Confederate States, and she became from that moment a vessel-of-war, carrying a formidable armament of guns, manufactured by Fawcett, Preston & Co., with the name of the firm branded upon them. The crown attached much importance to the interference and control during the construction of the Alexandra by Captain Bullock and Captain Tessier, as well as other persons connected with them, as it tended to show, it was alleged, the connexion between those persons and the confederate government of the southern States. With a view of establishing the character of the build of the Alexandra, among other persons, Captain Inglefield, of her Majesty’s ship Majestic, was called by the crown, and stated that he had examined the Alexandra as she lay in the Toxteth dock, and found her to be a strongly-built vessel, mostly constructed of teak wood, fitted for a yacht, certainly not intended for mercantile purposes, but might be used for, and was easily convertible into, a man-of-war. There was stowage room for a crew of thirty-two men and accommodation for officers. She was of sufficient length to receive guns, but had no appurtenances which would indicate that guns were about to be put on board of her. There was an absence of ring-bolts and plates upon which pivot guns would turn, but there would have been no difficulty, in his judgment, in adding the preparations that were necessary. Her bulwarks were not similar to those of gunboats in the British service. It is unnecessary to follow the evidence given by the crown step by step, neither is it important to give any details of the cross-examination of all the witnesses by the counsel for the defendants. The witnesses, who bore the fire of a very sharp attack made by Sir Hugh Cairns and Mr. Karslake, Q. C, were Yonge and Chapman, the former having left, to use a mild term, the confederate service by dropping overboard one night, and the latter, who, under the pretence of being a secessionist, had wormed himself into the confidence of many of those against whom the crown were complaining, and then came forward to betray their secrets. For the defendants no witnesses were called, and Sir Hugh Cairns, in a very eloquent and masterly address to the jury, said that it had been admitted that the defendants were the bona fide owners of the ship when the seizure was made, and that she was lying at the time in a public dock, without the slightest effort at concealment, and that the crown had been urged on to adopt the proceedings against the defendants by the agents of the United States government at Liverpool, who were always on the alert, and thought they had a right to complain and call upon the crown to put the foreign enlistment act into force. The foreign enlistment act, said Sir Hugh, never was intended to interfere with or to impair bona fide commerce in any way. The intention of the act was to prevent warlike expeditions leaving the ports of this country at a time when the country was neuter, in issuing from the ports of the country in a shape and form in which they could do injury to either belligerent, and thereby enable one or other of the belligerents to come to the government of this country and say, “Look at your port of Plymouth; there sailed out of that port on a certain day a ship fully armed, ready to capture any ship she might meet with. Your ports are being used as places of safety and shelter; armed vessels can sail out or transports or storeships can sail out prepared to do all the mischief in war which a transport or storeship or an armed vessel can do.” The belligerent government would say, “Observe the consequences: we cannot pursue these vessels into your port; we cannot go into your ports to take out a privateer; and yet you allow a privateer to go armed from your ports at the same time that we cannot enter your ports to destroy that vessel.” That was a clear principle, if that were the principle which was proceeded on. The foreign enlistment act, continued Sir Hugh Cairns, is directed against her Majesty’s subjects engaging in war on their own account. That was the essence of the offence as described in the preamble of the act. The act of declaring war or peace was with the sovereign of this realm. If the sovereign choose to remain neuter, it was not to be tolerated that some of her subjects should say that they would become belligerents on their own account, have a little expedition, marshal troops, and arm ships, and carry on war on their own accounts. The sovereign was the arbiter of war and peace. The subject had no right to interfere with the exercise of the right of the sovereign, and it would be perfectly idle for the sovereign to say, “I choose to remain at peace,” if the subjects were, according to their own will, to be allowed to engage in war and fit out warlike expeditions on their own account. Because, if twenty or one hundred men in Liverpool thought proper to fit out a warlike expedition to attack and injure one belligerent, twenty or one. hundred men in London might choose to fit out a warlike expedition to attack and injure the other. The gist of the offence which was spoken of in the seventh section of the foreign enlistment act was, that the offence must be committed within the United Kingdom. If the act be done by the Queen’s subject out of the kingdom, it was no offence at all. It was not like every other prohibitory act, because if it prohibits a thing to be done, it prohibits its being done by a subject of her Majesty everywhere. There was not the least prohibition against building a ship; there was not a word said in the section about prohibiting the building of a ship; there was not a word said about selling a ship. Consistently with every word in the section a man might build a ship in any way he thought fit, and with any purpose. There was no suggestion in the section that it was an offence against the act, to be punished by forfeiture or otherwise, to build or construct a ship. The only words used were words which supposed that a ship was to be built, because the words were “equip, fit out, or arm a ship or vessel,” and you could not equip, fit out, or arm a ship until she was built. The section meant that the person who was spoken of, and who was supposed to equip, fit out, or arm a vessel, was the person who had the intent to cruise on his own account and commit hostilities against a foreign nation with that ship. There must be an equipping, furnishing, fitting out, or arming, or an intent to do that with the kingdom, and in such a way that you should cruise and commit hostilities. The word “cruise” was a technical word when applied to vessels of-war, which cruise for the purpose of committing hostilities. The only thing which the section struck at was this—some person who had the contract of a ship, who may use it in any way he thinks proper; and that person was supposed to fit out and arm a vessel, and to do it with the intention of committing hostilities, he being the judge and the arbiter and determiner whether he would or would not cruise and commit hostilities and further, the ship must be armed or equipped, or fitted out in such a way as would make her such a ship at the time she leaves this country, and make her competent and able to cruise and commit hostilities. It was, upon the history of the act of Parliament, entirely open to any person to build a ship in this way, to sell the ship even, and, though she may be competent to be converted into a ship-of-war, to either of the belligerent powers, and the fact that he afterwards knew that she was sold to the belligerent power, and might be used in a particular way, had nothing to do with it. He was not the person who armed and equipped the ship to cruise and commit hostilities unless he had the intention of arming her in such a way as that when she left the port she would be in a state to cruise and commit hostilities. Sir Hugh Cairns went on to say, when the first American enlistment act was passed, that great and illustrious man who then swayed the destinies, of America, Washington, was President, and he had ordinances issued to the various ports in America, informing their own officers what things were lawful and what were unlawful in regard to the equipment of vessels, there being at that time a war in which America took no part. He said equipments in the ports of the United States of vessels-of-war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or to war, are deemed lawful. Then, further, he said, equipments in the ports of the United States by any of the parties at war with France of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature as being applicable either to commerce or war, are deemed lawful; and, in like manner, equipments of any vessels of France in the ports of the United States which are doubtful in their nature as being applicable to commerce or war, are deemed lawful. Therefore we had, in the first year when the American enlistment act passed, this construction put upon it by the greatest man America ever saw—Washington. He had pronounced that which was deemed unlawful, as simply putting on board munitions or arms of war, and anything that might serve the twofold purpose, and which was useful to either purpose, was perfectly harmless. It would be impossible now to give in full, or even in abstract, the speech of Sir Hugh Cairns, occupying as it did nearly two days in its delivery. As we stated before, no evidence was called in support of the defendants’ case, and it rested entirely upon the cross-examination of the witnesses for the crown and the speech of Sir Hugh Cairns to the jury. The late attorney general, Sir William Atherton, made a lengthy and very forcible reply on the whole case on the part of the crown. The lord chief baron proceeded to sum up, and is reported to have concluded by saying: “Gentlemen, if you think the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then that is a sufficient matter. But if you think the object really was to build a ship in obedience to an order, and in compliance with a contract, leaving it to those who bought it to make what use they thought fit of it, then it appears to me that the foreign enlistment act has not been in any degree broken. I leave you to find your verdict, unless you wish me to read the evidence over to you.” The jury did not wish to hear the evidence read, and the attorney general said, before the finding of a verdict by the jury, he would tender a bill of exceptions to a portion of the learned judge’s ruling. The lord chief baron said that he would accept any bill of exceptions he wished to tender. The attorney general replied that, strictly speaking, it ought to be done before the verdict was given, when Sir Hugh Cairns said that anything in point of form might be dispensed with. The jury having found a verdict for the defendants, the attorney general handed up a note of the exceptions, in order, as he said, that there might be no mistake. Sir Hugh Cairns asked for a copy of it, when the lord chief baron said it need not be done then. He might wish to put it in some other shape. There would be no mistake about it. The attorney general said they were anxious that, they should quite understand what his lordship had ruled and laid down to the jury. It was very shortly stated. The lord chief baron replied that he had no doubt there was a very good note taken of what had been said. “You,” addressing the attorney general, and looking at the paper, “have got here that the vessel was not intended to be fitted.” It should be that the vessel was in the course of building for the purpose of performing the contract, and that there was no intention that she should be equipped, or furnished, or armed, or fitted out at Liverpool. The solicitor general said that was not what had fallen from his lordship. The lord chief baron stated that it certainly was. The attorney general said that he had understood his lordship to say that “if the building was in fulfilment of a contract.” The lord chief baron went on: “And it was not intended that she should be equipped, fitted out, and furnished, and so on, at Liverpool.” The attorney general said there were other points. The chief baron stated: “Every question I put to the jury I put in the language of the act of Parliament, that if it was not intended that she should be equipped, furnished, fitted out, or armed at Liverpool. I took special care of that.” The Attorney General.— I think that is the point. The Lord Chief Baron.—No, you have got here that “if the vessel was not intended to be furnished.” The Attorney General.—No, my lord, it is “furnished or fitted out.” The Solicitor General.— Your lordship said the words were the same; that every one of the words required a warlike armament at Liverpool. That is the point. The Lord Chief Baron.—I will not bind you to what passes at the present occasion. I cannot alter the thing. I have no doubt that you have a very accurate note of what I have said. The Attorney General.—I only wish that we should have your lordship’s concurrence now, while the matter is fresh in your lordship’s recollection. The Lord Chief Baron.—It cannot be a question of recollection. Depend upon it, there is an accurate note taken of what I have said. The Attorney General.—Will your lordship allow me to send in a full note from the best materials we can get? The Lord Chief Baron.— Certainly. With this the Alexandra trial ended. The bill of exceptions was prepared, and the lord chief baron refused to sign it upon the ground, as he stated in the court to the present attorney general, Sir Roundel Palmer, that by the bill of exceptions he (the lord chief baron) purported to tell the jury that the Alexandra must have been armed, and if not armed there was no offence. His lordship objected to sign the exceptions, stating that from the very first moment he had raised the same objection to them, and ultimately, after a very long discussion, it was agreed that the bill of exceptions should be abandoned, and on the 5th instant the attorney general (with whom were the solicitor general and Mr. Thomas Jones) moved for a rule to show cause why there should not be a new trial on the ground of misdirecttion of the learned judge, and also on the ground that the verdict was against evidence. The attorney general was proceeding with a very concise and powerful argument when the court adjourned for a short time. Upon the return of their lordships into court, the lord chief baron said, that during the interval the judges had talked the matter over, and thought that what had been stated by the learned attorney general was unquestionably matter fit to be discussed; therefore, if he were content to take a rule to show cause why the verdict should not be set aside as being contrary to the evidence, or as not being warranted by the evidence, being contrary to the weight of it, and on the ground of misdirection on the part of the judge at the trial, or on the ground that, although there might have been no positive misdirection, there might have been such a want of information furnished to the jury as not to enable them fairly to discharge their duty—if the attorney general would be content to take a rule on these grounds, dividing the second into either positive misdirection or imperfect direction, he might take a rule. The attorney general said that was all he had been asking for, and a discussion then ensued as to the precise manner in which the rule ought to be drawn up. Eventually the rule stood thus: “1. That the verdict was against the evidence. 2. That the verdict was against the weight of evidence. 3. That the lord chief baron did not sufficiently explain to the jury the construction and effect of the foreign enlistment act. 4. That the learned judge did not leave to the jury the question whether the ship Alexandra was or was not intended to be employed in the service of the Confederate States, to cruise or to commit hostilities against the United States. 5. That the lord chief baron did not leave to the jury the question whether there was any attempt or endeavor to equip. 6. That the lord chief baron did not leave to the jury the question whether there was knowingly any aiding, assisting, and being concerned in the equipping. 1. That the learned judge misdirected the jury as to the construction and effect of the seventh section of the foreign enlistment act.” The solicitor general made an application to the court to have a day appointed for the hearing of the arguments on the rule, and this day was appointed.

The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, Q. C, and Mr. Thomas Jones, now appeared to support the rule; and Sir Hugh Cairns, Q. C, Mr. Karslake, Q. C, Mr. Mellish, Q. C, and Mr. Kemplay showed cause against it.

It having been agreed that the notes of the trial should not be read, as the learned attorney general on his motion for the rule had gone so fully into the evidence and made all their lordships well acquainted with the nature of it, Sir Hugh Cairns commenced to show cause against the rule at once. Sir Hugh began by going through the various grounds upon which the rule had been granted, and said that, so far as most of them were concerned, they were definite enough; but as to Nos. 3 and 7, he would say at the outset that, as he found those grounds in the rule, he was bound to believe that they were in accordance with the practice of the court; but they at the same time exposed those who, like himself, had cast upon them the duty of showing cause against the rule—a task it was very difficult to discharge, because they informed them that after they had been heard, an argument was to be addressed to the court by the other side, of the grounds and of the nature of which the defendants’ counsel had not in any way been forewarned. They were told that their lordships were asked to conclude that the learned lord chief baron in some way which was not specified misdirected the jury, or did not direct the jury, but the grounds upon which that was to be contended for they were not told, and therefore could not meet them. He did not desire to overstate the matter at all. He admitted they had had some kind of intimation by a few sentences which had fallen from the attorney general in moving for the rule, but beyond those they had no definite statement as to what the argument for the crown was to be. The court would probably remember that the Alexandra was seized on the 5th of April this year in the Toxteth dock, at Liverpool. (A printed book of the short-hand notes of the trial, which contained an appendix in which may be found the information, the plea, the British foreign enlistment act, the American foreign enlistment act, and other matter, was handed up to the bench.) Sir Hugh Cairns continued: he would call attention to the first count in the information as stated in the appendix of the book referred to. Having read the first count, as well as the plea, both of which appear above, Sir Hugh said the issue raised was, therefore, whether the ship Alexandra was, under the act of Parliament, forfeited for all or for any of the causes which were mentioned on the information. He would first ask the attention of the court, apart from the evidence in the cause or from the charge of the judge, to what, he submitted, was the proper construction of the statute; then to solicit from the court an attention to the evidence which had been given in the case for the purpose of dealing with the rule as far as it states that the verdict was against evidence; and then, in the third place, to submit the view which he took of the charge of the lord chief baron and the objections which were made against the charge. He would call attention to the seventh section of the foreign enlistment act, which contained very many words, and he was afraid it must be said of them that they had contributed, from their number, rather to darken than elucidate the meaning, and he feared he must read the section, at all events a part of it, for the purpose of making an observation upon it. Having read the whole section, Sir Hugh said that he must observe that there were upon the face of the section traces of very great want of accuracy and care in the manner in which the ideas in the section were expressed. There were two examples of that which might be mentioned, because scarcely any argument could arise upon them. Their lordships would observe that in the first line of the section, “that if any person within any part of the United Kingdom” shall do so and so, “shall equip,” &c. In point of strict construction it might be said that that indicated this idea—that the person who was spoken of there was to be himself within the kingdom, though as to the act which he was to do, it might be done either in or out of the kingdom. Of course it was agreed that that was not the construction, and the information proceeded upon a different construction. The information proceeds as if the act were worded thus: “If any person shall within the United Kingdom” do so and so, putting the word “shall,” as it ought to be put, before the word within. And it was so clear that so utterly free from care and caution was the section, that when you came to the second part of it, the words were properly collocated, thereby condemning the improper collocation in the earlier part. The second part contained the second alternative. The words were these, “or shall within the United Kingdom or any of his Majesty’s dominions, or in any settlement,” &c., putting there the word “shall” in the proper place, and admitting that it was improperly placed before. Now, when the word “transport” occurs after the mention of the employment of the ship in the service of any foreign prince, then we find the words “as a transport or storeship, or with intent to cruise or commit hostilities against any prince,” &c. The information assumes (and for the present purpose he would not contest the point) that the court were to read the word “transport” in connexion with the words “against any prince, state, or potentate.” But could any expression be imagined so utterly careless or inaccurate as to talk of employing a ship in the service of a belligerent as a transport or storeship against another belligerent, as if a transport or storeship could be properly spoken of as a ship which would come under an expression of that sort—a ship employed against another belligerent? Whatever be the offences which were indicated by the 7th section, they were offences purely and simply of positive law. They were not offences which in the remotest degree were mala in se, offences against morality, or offences as to which we could have any preconceived idea as to their character or extent. If that were required to be proved, it was proved to demonstration from this consideration, that offence a priori was offence against morality—an offence against those principles which in the absence of legislation would be admitted to govern the conduct of mankind. That consideration would make it necessary for him to enlarge a little the line of argument upon a statute like the one in question, and to enter into an inquiry, which he would make as succinct as the case seemed to him to demand—an inquiry into the history and policy of the legislature upon the subject. The preamble of the act states: “Whereas the enlistment or engagement of his Majesty’s subjects to serve in war in foreign service without his Majesty’s license, and the fitting out and equipping and arming of vessels by his Majesty’s subjects, without his Majesty’s license, for warlike operations in or against the dominions or territories of any foreign prince, state, potentate, or persons exercising or assuming to exercise the powers of government in or over any country, colony, province, or part of any province, or against the ship’s goods or merchandise of any foreign prince, state, potentate, or persons as aforesaid, or their subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom.” We are told, said Sir Hugh, that the acts described “may be prejudicial to and tend to endanger the peace and welfare of this kingdom,” and that the laws in force are not sufficiently effectual for preventing the same. What, therefore, was intended to be struck at and to be restrained was certain acts as to which it was said that they “might be prejudicial to and tend to endanger the peace and welfare of this kingdom;” and that the law in force at that time did not sufficiently restrain them. The attorney general, in moving for this rule, is reported to have said, after repeating the preamble of the act, “It is plain that the object was to preserve the neutrality of this country, and to enforce it against the subjects of this country, and to enforce it against the subjects of this country in matters in which the neglect of it by those subjects, or the violation of it here by foreign belligerent governments, was thought calculated to lead to a position, as regarded foreign nations, which would endanger the peace and welfare of the kingdom. How would it endanger the peace and welfare of the kingdom? Manifestly by involving us in a war—by making us practically, so far, parties, through our subjects, to belligerent operations—if we allowed this country to be made the base of those operations, either for the enlistment of men or for the equipping of vessels of war—as to make it probable that other countries would not endure it, but resent it, and that so we might become involved in war. That is the mischief which the statute is manifestly intended to protect us against.” My lord, continued the learned counsel, there is no difficulty in ascertaining, therefore, what the view of the crown is as to the main object of the act of Parliament. The attorney general says that in the case of war prevailing between two belligerents, we ourselves remaining neutral, we have certain duties as a nation to perform in an international point of view. If those duties are neglected, one or other of the belligerents may complain of that neglect. If redress is not given upon that complaint, we, the neutral nation, may be involved in war. The belligerent which considers that it has a right to complain of our conduct may make it a casus belli against us. Therefore, says the attorney general, it was that the crown came to Parliament and asked for the sanction of the legislature to a restraint put by the crown upon those acts, which, if not restrained, would be complained of by the foreign belligerent power, and if not redressed would become the source and the origin of war against ourselves. Now, if that were so, of course that again opens up a field which we shall have to examine, and invites us to consider what was the extent and amount of international duty which one or both of the belligerent powers might call upon us to observe, and which, if not observed, might be a cause of complaint against us on the part of the belligerent power in a war in which we were neutral. Now I think that in that way we shall get, and get upon principles which the attorney general himself admits, a key to the municipal legislation upon the subject. And fortunately the rules of international law upon this point will, if I mistake not, be found extremely simple, extremely clear, and extremely sensible. There are two rules, as I understand it, of international law, as to which I may say they are established upon authority which cannot be doubted, and between which the whole of this inquiry will lie. Those are rules with regard to the conduct in war of the subjects of the neutral power. I disembarrass the case of any question as to the duty of the neutral power itself as a government; that is a different thing. That stands upon much higher and broader principles. I peak of the duty in war of the subjects of a neutral power. The government of a neutral power, we all know, as a government, is not at liberty to perform the smallest act which would be in itself an assistance to either of the belligerents. For example, the government of a neutral power would not be at liberty to furnish a gun, to furnish a shot, or powder, or ammunition of any sort, to either of the belligerents; but with regard to the subjects of the neutral power the case is different, and the first of the two rules to which I have referred is this—subjects of a neutral power in time of war are at liberty to supply either of the belligerents, or both of them, with all articles termed contraband of war. Now I will cite an authority as to which during this controversy there will be no dispute. Mr. Chancellor Kent, in the first volume of his Commentaries, says:

“It is a general understanding, founded on true principles, that the powers at war may seize and confiscate contraband goods by any complaint on the part of neutral merchants, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation in 1796 (that is to say, it was contended against the United States) that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has been explicitly declared by the judicial authorities of this country. The right of the neutral to transport and of the hostile power to seize are conflicting rights, and neither party can charge the other with a criminal act.”

Then, my lords, as to what is comprehended under the term “contraband,” which is here used, we find it laid down in an earlier page that they are arms and ammunition, and in a naval war, ships and materials for ships, and also horses and saddles, naval stores, and timber, and provisions, and various other matters. These are contraband articles which may thus be supplied. In addition to this, I will refer your lordships to the statement of the rule laid down by Mr. Justice Story, in an American case. He says: “There is nothing in our laws or in the law of nations (and of course it is to the latter expression I am referring) that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure, which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.” Apart from any municipal regulation, that rule, as regards international duty, is perfectly clear. No belligerent power can complain of acts of subjects of a neutral power upon this footing. They are acts which are not in any way prohibited by any rule of international law. That is one, my lords, of the two rules of international law to which I referred. The second rule is this: the territory of a neutral power must be kept absolutely inviolate from anything which may be termed a proximate or immediate act of war, and the neutral government will have a right to complain if that inviolability so defined of the neutral territory is infringed either by the belligerent directly, or by one of its own subjects at the instigation of the belligerent. Now, the rule in this case is laid down as clearly and as succinctly as the former. Chancellor Kent says, at marginal paging 118 of the first volume:

“It is a violation of neutral territory for a belligerent ship to take her station within it in order to carry on hostile expeditions from thence, or to send her boats to capture vessels being beyond it. No use of neutral territory for the purpose of war can be permitted. This is the doctrine of the government of the United States. It was declared judicially in England in the case of the Twee Gebroeders; and though it was not understood that the prohibition extended to remote objects and uses, such as procuring provisions and other innocent articles, which the law of nations tolerated, yet it was explicitly declared that no proximate acts of war were in any manner to be allowed to originate on neutral ground; and for a ship to station herself within the neutral line, and send out her boats on hostile enterprises, was an act of hostility much too immediate to be permitted. No act of hostility is to be commenced on neutral ground. No measure is to be taken that will lead to immediate violence. The neutral is to carry himself with perfect equality between the two belligerents, giving neither the one nor the other any advantage; and if the respect due to neutral territory be violated by one party, without being promptly punished by just animadversion, it would soon provoke a similar treatment from the other party, and the neutral ground would become the theatre of war.”

Now, my lords, I could not help feeling surprised in observing the note of the argument of the attorney general in moving for the rule, when he said, in an expression remarkable rather for its breadth than its accuracy, that he did not believe that it ever entered into the mind of any human being that one of the objects of the foreign enlistment act was to prevent collision between the belligerents using the neutral territory. My lords, it entered into the mind of Mr. Chancellor Kent, and it entered into the mind of Lord Stowell. The expressions they use are clear and interesting, and the case which they put (as it happens) as the consequence of a doctrine different from that which I will show is vindicated by the foreign enlistment act is this: if that doctrine were to be tolerated, you would have first one belligerent making use of the neutral territory for arming and for proceedings of a warlike character; you would have the other belligerent claiming to do the same; and in place of a peaceful and undisturbed territory, which a neutral nation has a right to expect its grounds to be, you would have the neutral territory being the theatre of collision and war. My lords, the same book upon this point refers to another matter connected with what I have read, and which still further illustrates it. At 120 of the marginal paging the author says:

“Bynkershoek makes one exception to the general inviolability of neutral territory, and supposes that if an enemy be attacked on hostile ground, or on the open sea, and flee within the jurisdiction of a neutral state, the victor may pursue him dum fervet opus, and seize his prize within the neutral state. He rests his opinion entirely on the authority and practice of the Dutch, and admits that he has never seen the distinction taken by the publicists or in the practice of nations. It appears, however, that Casaregis and several other foreign jurists, mentioned by Azuni, held a similar doctrine. But D’Ahen, Valin Emerigon, Vattel, Azuni, and others, maintained the sounder doctrine that when the flying enemy has entered neutral territory he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground or waters in pursuit of a foe would lead the pursuer into the heart of a commercial port. There is no exception to the rule that every voluntary entrance into neutral terrritory with hostile purposes is absolutely unlawful. The neutral border must not be used as a shelter for making preparations to renew the attack, and though the neutral is not obliged to refuse a passage and safety to the pursuing party, he ought to cause him to depart as soon as possible, and not permit him to lie by and watch his opportunity for further contest.”

In the case which was referred to, in the first passage which I read, by Chancellor Kent, the case before Lord Stowell, of “the Two Brothers,” reported in the third volume of Robinson’s Admiralty Cases, this question arose: There was a capture, the legality of which came in question. The capture was said to be illegal because the capturing ship, at the time of the capture, was lying within neutral territory—that is to say, within three miles of a neutral shore. The ship did not move herself, and did not, with her guns, or otherwise, take any immediate part in the capture, but she sent her boats outside the neutral territory from the ship, and the boats made the capture; and it was contended that the capture was not invalid, because the ship herself had not made it. Now, Lord Stowell was of opinion that no proximate acts of war were in any manner to be allowed to originate on neutral grounds, and he could not but think that. (The learned counsel read at very considerable length the judgment of Lord Stowell.) His lordship stated that, if it were necessary to prove that a direct and immediate act of hostility had been committed, he should be disposed to hold that it had been sufficiently made out by the facts of the case. The distinction taken, continued Sir Hugh Cairns, between certain things— connected with hostility it may be—which are innocent, and other things connected with hostilities which are matters of complaint and international law—things termed direct and proximate acts or causes of hostility are deemed to be a violation of international law. Those things which are remote and not proximate are not so, and an instance is given by Sir William Scott even with regard to a ship admitted to be a ship which intends to commit hostilities at some future period, viz: that the obtaining provisions and supplies of an innocent character, and not of a warlike character, is an act which is remote—it may be a cause of war, it may be connected with war, but it is remote and not proximate, and the neutral nation cannot complain of any infringement of territory if an act of that kind alone is committed upon it. Now, I will ask, what should be the conclusion we should naturally draw from the two rules I have mentioned as to the course which municipal legislation might be expected to take? The law of nations defines a line outside the dominions of a state—I mean outside the land up to which municipal jurisdiction extends, and beyond which it ceases. We find that, according to the rules of international law, it is allowable to a neutral state, and to the subjects of it, to carry and deliver outside it any of those articles which are called contraband of war—guns, ammunition, ships, or any other article. International law also holds that you might carry guns, &c, from the neutral state, and deliver into a ship outside the boundary line, subject to the right of capture; but, on the other hand, the same law says you must not originate, on the neutral territory, any proximate act of war; you must not issue out of the neutral territory with a ship which shall be prepared to commit hostilities. I say it is beyond all doubt clear, according to international law, that you might bring a ship outside the limit of neutral territory and hold it there or anchor, and fit and load another ship with guns or ammunition, and then carry that ship outside of the limit, and then transfer the guns and ammunition which you had so put on board, just as you would do in a foreign port. You would not be allowed to go inside a neutral territory and arm and prepare for hostilities, in a way calculated to commit hostilities, a ship which might sally out of the neutral territory, go beyond the limit, and, without any intervening space occurring in which it might be captured by the belligerent power, commence hostilities with a ship so armed. This would be a sort of outrage, and considered as an absence of neutrality. I should say, a priori, that what we should expect to be the course of municipal legislation upon the subject would be some legislation which would guard against such a case, and which, by way of restraint upon the subjects of the neutral power, would prevent its subjects from doing that of which the belligerent might complain. Now, we will see if that is the course of municipal legislation upon the subject The first definite municipal act of the legislature was one passed by the Congress of the United States in the year 1794. There are various reasons why, if there be any question or doubt upon the construction of our own act of Parliament, we may fairly look to the history of the American legislation upon the subject. One reason would be, that to a very great extent, in the words of the statute, it is found that our own act follows the American act of Congress. Another reason would be, that we know as a matter of history that it is distinctly affirmed that the object of the legislation in this country was to follow, and to follow as closely as might be, the course of the American legislation. My lords, I find that, with reference to the English act of Parliament, the minister of the day by whom it was introduced (Mr. Canning) said this:

“If I wished for a guide in the system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson. In 1193 complaints were made to the American government that French ships were allowed to fit out and arm in American ports for the purpose of attacking British ships, in direct opposition to the laws of neutrality. Immediately upon this representation the American government held that such a fitting out was contrary to the laws of neutrality, and orders were issued prohibiting the arming of any French vessels in American ports. At New York a French vessel fitting out was seized, delivered over to the tribunals, and condemned. Upon that occasion the government held that such fitting out of French ships in American ports for the purpose of cruising against English vessels was incompatible with the sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain.”

Now, my lords, Mr. Canning referred to certain rules which were issued by the American government just immediately before the act of Congress was passed, rules which are referred to by international writers as being the true exposition of international law. Mr. Canning refers to those rules, and says that if he wished for a guide in the system of neutrality he would take those rules so laid down, and he says that it was upon the principle of those rules that the English bill, as a matter of history in his view, was enacted. The American act of Congress passed in 1794. The occurrences which led to its being passed took place in the year 1793. The French republic was constituted early in the latter year, and the first act almost it did was to send a minister to the United States named Genet, and he instituted the equipment of privateers in American ports to cruise against and capture English vessels, the republic of France having declared war against England at that time. America was at peace with the whole world, and naturally wished to reap the advantage which a commercial country expects to reap from a state of neutrality in the midst of war. America tried to see how far the acts of Genet could be put a stop to on principles of international law; if they could be put a stop to on those principles, to ascertain how far municipal law should be called in aid and constituted for the purpose. My lords, there are two or three references to matters of history which will bring us conveniently to the consideration of the American act of Congress. In the correspondence of one of the American ministers of the day, Jefferson, a book which is entitled Jefferson’s Memoirs and Correspondence, in the third volume, page 242, Mr. Jefferson, writing to Genet, refers to the subject in this way. He says:

“In a conversation which I had afterwards the honor of holding with you, I observed that one of those armed vessels, the Citizen Genet, had come into this port with a prize (that is, into the port of Philadelphia;) that the President had thereupon taken the case into further consideration, and after mature consultation and deliberation was of opinion that the arming and equipping vessels in the ports of the United States to cruise against nations with whom they were at peace was incompatible with the territorial sovereignty of the United States, and that it made them instrumental to the annoyance of those nations, and thereby tended to compromise their peace, and that he thought it necessary, as an evidence of good faith to them as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should depart from the ports of the United States.”

We have given as much as we could, under the circumstances, of the learned counsel’s arguments, which had not concluded when the court adjourned.

In order to give some of the references made by Sir Hugh Cairns to American works, &c, we have had occasion to refer to a very lucid and excellent little work on the policy and interpretation of the foreign enlistment act by Frederick Waymouth Gibbs, C. B., which has just been published by Mr. Ridge, of 169 Piccadilly. As all the public libraries close at 4 o’clock, and are made thereby useless to those who are obliged to work each day after the rising of the law courts, we deem it only fair thus to acknowledge the source from which in this instance we have derived much useful and valuable information.

Court of Exchequer, November 18.

Sir Hugh Cairns resumed his argument this morning, and we continue our report of it from where we left off last evening.

The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, Q.C, and Mr. Thomas Jones, appeared for the crown; and Sir Hugh Cairns, Q. C, Mr. Karslake, Q. C, Mr. Mellish, Q. C, and Mr. Kemplay for the defendants.

Sir Hugh Cairns said: We have a letter from Washington to Mr. Hamilton, his minister, which clearly shows what was working in Washington’s mind, and led afterwards to the rules which his secretary framed. It is printed in Sparkes’s collection of the writings of Washington, and runs thus:

“Dear Sir: As I perceive there has been some misconception respecting the building of vessels in our ports, which vessels may be converted into armed ones, and as I understand from the attorney general that there is to be a meeting to-day or to-morrow of the gentlemen on another occasion, I wish to have that part of your circular letter which respects this matter reconsidered by them before it goes out. I am not disposed to adopt any measure which may check ship-building in this country, nor am I satisfied that we should too promptly adopt measures in the first instance that are not indispensably necessary. To take fair and supportable ground I conceive to be our best policy, and it is all that can be required of us by the powers at war, leaving the rest to be managed according to circumstances and the advantages to be derived from them.”

Before any act was done by Congress the circular letter referred to in this letter was settled and sent out. That circular contains certain rules, which contain, as I will show you, the true exposition of international law. In the collection of American State Papers, vol. i, p. 45, in the following letter, we have the circular letter as finally settled. Now, what the letter says to the collector of customs is this:

“No armed vessel which has been or shall be originally fitted out in any part of the United States by either of the parties at war is henceforth to have asylum in any district of the United States. If any such armed vessel shall appear within your district she is immediately to be notified to the governor and attorney of the district, which is also to be done with respect to any prize that such armed vessel may send or bring in. The purchasing in and exporting from the United States by way of merchandise any articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war, and is not to be interfered with. If our citizens undertake to carry them to any of those parties, they will be abandoned to the penalties which the laws of war authorize ”

The rules ran:

“1. The original arming and equipping of vessels in the ports of the United States by any of the belligerent parties for military service, offensive or defensive, is deemed unlawful. 2. Equipments of merchant vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful. 3. Equipments in the ports of the United States of vessels-of-war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful; except those which shall have made prize of the subjects, people, or property of France, coming with their prizes into the ports of the United States, pursuant to the seventeenth article of our treaty of amity and commerce with France. 4, Equipments in the ports of the United States, by any of the parties at war with France, of vessels fitted for merchandise or war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful, except those which shall have made prize, &c. 5. Equipments of any of the vessels of France, in the ports of the United States, which are doubtful in their nature as being applicable to commerce or war, are deemed lawful. 6. Equipments of every kind, in the ports of the United States, of privateers of the powers at war with France, are deemed unlawful. 7. Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful, except those stranded or wrecked, as mentioned in the eighteenth article of our treaty with France, the sixteenth of our treaty with the United Netherlands, the eighteenth of our treaty with Prussia. 8. Vessels of either of the parties not armed, or armed previous to their coming into the ports of the United States, which shall not have infringed any of the foregoing rules, may lawfully engage or enlist their own subjects or citizens, not being inhabitants of the United States, except privateers of the powers at war with France, and except those vessels which shall have made prizes, &c.”

The result, therefore, of the whole is this: That laying down what was then conceived to be the rule of international law in the case, these provisions were made complying with a treaty which America had with one of the powers, and providing for a test to be applied in every case whether you were dealing with a ship clearly a vessel-of-war or to a vessel which you did not know was meant for war or for commerce, and as to which there might be a dispute. Congress met at the close of the year 1193, and the enlistment act was passed. The third section, which agrees to a certain extent with our seventh section, stands thus: “If any person shall within the limits of the United States,” and there I pause to observe that I think our American brethren write better English in this respect than we did, they put in the “shall” in its proper place; whereas, per incuriam, in our own act it has slipped out of the place where it ought to be found:

“If any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than $10,000, and imprisoned not more than three years.”

It is a singular thing that the words in the first part of this clause are conjunctive, “fit out and arm,” or attempt to fit out and arm, or procure to be fitted out and armed; whereas when we come to the question of being concerned in the furnishing, it is the “furnishing, fitting out, or arming of any ship or vessel.” That has been a subject of controversy in America, and I will show your lordships at a proper time what has been decided upon it. Another thing is very singular, that when we come to the word “concerned,” another term is introduced, which is not found in the earlier part of the sentence viz: “furnishing.” The construction is, that you shall not within the United States fit out a ship as a ship-of-war, to be employed by one belligerent against another. That exactly tallies with the rules laid down by Washington, and adopted by writers upon international law. I will now ask you to go to the fourth section:

“That if any citizen or citizens of the United States shall, without the limits thereof, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly aid or be concerned in the furnishing, fitting out, or arming any private ship or vessel-of-war or privateer, with intent that such ship or vessel shall be employed to cruise or commit hostilities upon the citizens of the United States or their property, or shall take the command of or enter on board of any such ship or vessel for the intent aforesaid, or shall purchase any interest in any such ship or vessel, with a view to share in the profits thereof, such person so offending shall be deemed guilty of a high misdemeanor”—

that is, to commit hostilities upon citizens of the United States, which is a wholly different matter. This section was not in the first act, but was introduced into the act of 1818. The fifth section seems to me, with reference to our investigation of what is the principal offence, of very great importance. It runs thus:

“If any person shall, within the territory or jurisdiction of the United States, increase or augment, or procure to be increased or augmented, or shall knowingly be concerned in increasing or augmenting the force of any ship-of-war, cruiser, or other armed vessel, which at any time of her arrival within the United States was a ship-of-war, or cruiser, or armed vessel in the service of any prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, by adding to (augmenting, that is to say) the number of the guns of such vessel, or by changing those on board of her for guns of a larger calibre, or by the addition thereto of any equipment solely applicable to war, every person so offending shall be deemed guilty of a high misdemeanor, shall be fined not more than $1,000, and be imprisoned not more than one year.”

This throws a flood of light upon the whole legislation, and how it agrees with the rules preceding it. Here you are dealing with a case of a ship as to the destination and object of which there is no possible doubt. Is it lawful to equip her? Nothing of the kind. Is it lawful to augment her armed force by adding to the guns, by changing them for larger or other guns? But if there be any equipment, (and we all know there is abundance of equipment not applicable solely for warlike purposes,) she is at liberty to have that equipment; she may come in and get it and sail away; in other words, the very thing prescribed in the rule by Washington is to be attended to. Sir Hugh, after making some comments on the 1st section of the American act, passed to the 11th section:

“That the collectors of customs be and they are hereby respectively authorized and required to detain any vessel manifestly built for warlike purposes.”

This is a new class of vessel; this is not an armed vessel. They cannot detain, generally, any vessel “manifestly built for warlike purposes,” but any vessel “manifestly built for warlike purposes, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President be had thereon, or until a bond be given.”

No amount of suspicion will justify the collector of customs in a case of that sort. The act merely intends to provide for the case where you are equipping within the ports of America a ship as a vessel-of-war, meaning by that, equipping her with things that are essential and distinguishing characteristics of a vessel-of-war. Now, having troubled your lordships with the words of the American act, I would refer you to those American authorities, so far as we have them upon the construction of this act of Congress, and the first in point of time is in Bee’s American Admiralty Reports, page 76. Bee was not the reporter, but an admiralty judge of considerable reputation. The case is “Moodie vs. The ship Brothers.” The question arose in this way: A privateer had taken a prize; she was brought in for adjudication, and Mr. Moodie, who was the English consul, and in whose name all the proceedings during the beginning of the war were taken, objected to the condemnation upon the ground that the privateer had been fitted out in a port of the United States, in contravention of the American act of Congress, which would have made the capture illegal, if it could have been proved:

“The prize, upon the arrival in this port, was, with the cargo, libelled by the British consul, Mr. Moodie, who, among other causes, alleges that the privateer” (the whole of this report is the judgment of the court) “was originally fitted out in the port of Charleston, or augmented in her warlike force, contrary to the act of Congress and law of neutrality of nations; he therefore claims restitution of the captured vessel. The claimants cannot deny that the privateer was originally fitted, armed, or manned within any of the ports of the United States, or that she received therein any augmentation or addition solely applicable to purposes of war. They produce a copy of her commission from Leveaux, and plead the 17th article of the treaty with France in bar to the interference of this court in this cause. Several exhibits have been filed to show that the captured vessel and cargo are British property, and one exhibit shows that the privateer was formerly an armed vessel in the service of the King of Spain, and then mounted 18 guns; that she was captured by the Montagne, French privateer, and brought as prize into this port, whence she afterwards departed with fewer guns than she had on her coming in” It was agreed between the parties that certain evidence should be taken. The judge continues: “I have already, by my decree in the case of the Courier, declared my opinion of this privateer, but have reconsidered the evidence with great care of Messrs, Wallace, Libby, Williams, Carpenter, and Weyman, and the collector, and they all agree that she was a complete privateer when she first arrived there; she had then 14 guns on her main-deck, two cohorns forward, and swivels on her quarter-deck. They also agree that she received no augmentation of force here; she had been much injured in her engagement with La Montagne, and was compelled to take off her quarter-deck. She went to sea, returned dismasted, and took a new mast, (that was in an American port,) but none of the witnesses saw any additional equipments. Ingram, who worked on her, says she had her quarter-deck taken down, her waist repaired, and two ports cut therein; that she was an armed vessel when she arrived, and was repaired as a privateer. The question, then, is wholly as to the cutting of two new ports when her waist was repaired. This arises out of Ingram’s testimony, which is at variance with that of Williams, Libby, and Carpenter, and positively contradicted by the oath of the claimants, who swear that the repairs she received in this port were necessary to her safety of sailing, but not at all applicable to war.” The learned judge, convinced that that was the issue to be decided upon the evidence, whether the repairs or equipments she had received were at all applicable to war, continued: “They say she actually went to sea with fewer guns than she had when she arrived as a prize. Admitting, then, for the sake of reconciling Ingram’s testimony with that of the other witnesses, and with this oath of the claimants, that two of her ports in the waist were altered, this will not amount to any additional equipments, nor can it be considered as a breach of neutrality. If a prosecution had been instituted under the act of the 5th of June, no forfeiture could have been adjudged for so trifling an alteration. Upon the whole, I retain my opinion, and that upon mature deliberation. I therefore admit the relevancy of the plea in bar.”

Of course it is not for me to consider whether the learned judge was right or wrong in his conclusions upon the facts. He had to determine whether the equipments put on board in an American port were solely applicable to war, and he thought they were not. That was the construction he put upon the act, and dealt with the case accordingly. I ought to have called your lordship’s attention, before I commenced the American cases, to a reference to the authority upon international law, showing that the rules laid down by the Washington government and the American act of Congress were declaratory of and in accordance with the antecedent rules of international law. Mr. Chancellor Kent, vol. I, marginal paging 122, says:

“The government of the United States was warranted by the law and practice of nations in the declarations made in 1193 of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers in their intercourse with this country. These rules were, that the original arming or equipping of vessels in our ports by any of the powers at war for military service was unlawful, and no such vessel was entitled to an asylum in our ports. The equipment by them of government vessels-of-war, in matters which, if done to other vessels, would be equally applicable to commerce or war, was lawful. The equipment by them of vessels fitted for merchandise and war and applicable to either was lawful, but if it were of a nature solely applicable to war it was unlawful. And if the armed vessel of one nation should depart from our jurisdiction, no armed vessel, being within the same and belonging to an adverse belligerent power, should depart until twenty-four hours after the former without being deemed to have violated the law of nations.”

This is an authority which will connect us with the whole chain I have given, first the declaration and then the act of Congress, showing that the declaration and the act of Congress were simply an affirmance of the rule of international law. Having turned aside for a moment, I now return to the next case upon this act in the American authorities. There was a trial for a misdemeanor under this act in the year 1195, reported in Wharton’s American State Trials, page 93. The questions were, whether there was an equipment within the terms of the act of Congress within the American jurisdiction; and the other was, whether there was an intent on the part of Quinet, the prisoner, to join in using the ship as a privateer. The indictment was that he was concerned in furnishing, fitting out, and arming a certain vessel or ship called Les Jumeaux, lying at the port of Philadelphia. The evidence went to show that the vessel had four iron guns, with carriages; her whole appearance changed from what she had been—twenty ports open, and a crew of between thirty and forty on board. Quinet was convicted. The attorney for the states contended that, being converted from a merchant vessel carrying a few guns for self-defence into a privateer armed for hostilities, it was clearly an original outfit within the meaning of the law. Mr. Justice Patteson, in summing up, after going into the evidence, said:

“If the equipments were not to be used for merchandise, the inference was inevitable that they were to be used for war. No man would proclaim from the housetop that he intended to fit out a privateer; the intention must be collected from all the circumstances of the transaction, which the jury will investigate, and on which they must decide. But if they are of opinion that it was intended to convert this vessel from a merchant ship into a cruiser, any man who was knowingly concerned in so doing is guilty in the contemplation of the law.”

The warlike equipments are superadded at last, and at last the judge and all the counsel agreed to take the case as turning on that, using the words of the judge, whether there had been a conversion of the ship into a ship-of-war by virtue of those equipments. Here is a case in which, if the argument suggested on the other side were to prevail, the court and all the counsel were occupying themselves in the most unnecessary and superfluous way it is possible to imagine. If it be right that if you equip in any way within the dominions a ship as to which there is an intent at some time to convert her into a vessel-of-war, you commit an offence, what on earth was the use of the elaborate evidence produced in the case, and the consideration the judge gave to it to show that the equipment was of a warlike nature? because that is the point to which all parties addressed themselves to consider. There is one more American case which I would refer to, viz: the case of “The United States vs. Quincy.” (The facts of this case are very long, and we shall only give a mere epitome of them.) Quincy was charged with being knowingly concerned in the fitting out of a vessel called the Bolivar, with the intent that she should be employed in the service of a foreign people, &c, in hostilities, and the allegation was that he was knowingly concerned in the fitting out of this vessel. The Bolivar was originally a pilot boat, and after alterations sailed from. Baltimore, having on board provisions, 32 water casks, one gun-carriage and slide, a box of muskets, and 13 kegs of powder. The master, Paterson, and the owners, Yalette, had given a bond not to commit hostilities. For Quincy it was argued that, because the American act, when speaking of the principal offence, defined it to be to equip and arm, &c., the secondary offence of being concerned in, &c, could not be committed unless the prosecution could show that he was concerned in fitting out and arming. Both must combine. After the case had been argued and carefully considered, the court held that it was not necessary that the jury should believe or find that the Bolivar, when she left Baltimore and during her voyage to St. Thomas, was armed, or in a condition to commit hostilities, in order to find the defendant guilty of the offence charged in the indictment. Sir Hugh Cairns came now to the consideration of the English foreign enlistment act. Not, as he said, for the purpose of altering the legitimate construction of the act, but, for the purpose of putting the court into possession of the circumstances as a matter of history, under which it was passed, and for the purpose of showing its compliance with the rules of international law, he would shortly refer them to what those circumstances were under which the act was passed. Sir Hugh went on to say: My lords, they may be very briefly stated from Sir Archibald Alison’s history. In the 1st volume of his second History of Europe, section 95, he refers to the very great popular excitement in the year in which this act was passed, and the circumstance of the Spanish colonies having revolted from the mother country, and states that, from the strong sympathy felt in this country with the revolted colonies, both naval and military equipments were being prepared to assist them. A British adventurer, who assumed the title of Sir McGregor M’Gregor, collected a considerable expedition in the harbors of this country, with which, in British vessels and under the British flag, he took possession of Porto Bello, South America, then in undisturbed possession of a Spanish force, a country at peace with England. This aggression led to remonstrances by the Spanish government, and in consequence the government brought in a foreign enlistment bill, which led to violent, debates in both houses of Parliament. Alison goes on to show to what extent this matter had gone in Ireland, referring to debates in Parliament, and the doctrines laid down by Martens, the international writer, which Lord Lansdowne had referred to. Having read the extract from Alison, Sir Hugh said: The same state of things is described by Mr. Canning himself in these words:

“What would be the result if the House of Commons refused to arm government with the means of maintaining neutrality? Government would then possess no other power than that which they exerted two years ago, and exerted in vain. The House would do well to reflect seriously on this before they placed government in so helpless a situation. Did the honorable and learned gentleman really think it would be a wholesome state of things that troops for foreign service should be parading about the streets of the metropolis without any power on the part of the government to interfere to prevent it? At that very moment such was the case in some parts of the empire, and he had little doubt that in a very short time the practice would be extended to London.”

And in another part of the same speech he says:

“It was extremely important for the preservation of neutrality that the subjects of this country should be prevented from fitting out any equipments, not only in the ports of Great Britain and Ireland, but also in the other ports of the British dominions to be employed in foreign service. The principle in this case was the same as in the other, because by fitting out armed vessels, or by supplying the vessels of other countries with warlike stores, as effectual assistance might be rendered to a foreign power as by enlistment in their service. In this second provision of the bill two objects were intended to be embraced—to prevent the fitting out of armed vessels, and also to prevent the fitting out or supplying other ships with warlike stores in any of his Majesty’s ports. Not that such vessels might not receive provisions in any port in the British dominions, but the object of the enactment was to prevent them from shipping warlike stores, such as guns and other things, obviously and manifestly intended for no other purpose than war.”

That was the evil they had to guard against—a state of things in which you had the enlistment and the parading through the streets of men in military assemblage, and the supplying of ships with equipments which are of a warlike character, guns, and matters ejusdem generis, with which the ship would be more or less able to commit hostilities the moment it left the neutral country. Sir Hugh Cairns then read through the preamble of the act, making such observations as he thought necessary upon it, and went through all the sections, one by one, of the act itself. When upon the seventh section, (the section on which the information is founded,) Sir Hugh said he would remind the court of what he had before stated upon this section, and of the circumstance that the whole was prefaced by the words, “without the leave and license of his Majesty;” showed that there was nothing in this which could be said a priori to involve any offence in the nature of malum in se, or an offence as regards the existence of which you could have any preconceived or preformed opinion. We have seen from our own shores an expedition go out fitted out in the most formal way, as ships-of-war, commanded by officers, some of whom were in her Majesty’s service, to China, where the Chinese government are belligerents against a portion of the Chinese empire. The whole was done by leave of the crown, given in an order of council for the purpose. It is, therefore, one of those things in which the crown may throw open the whole of that, whatever it may be, which is covered by the seventh section, if it so thinks fit. There is, therefore, no moral offence, no malum in se which is struck at by the section. The next point is the principle of the entire offence which is defined by this section. Is there any prohibition against building a ship as distinguished from equipping, fitting out, furnishing, or arming? Now, I say that the most cursory inspection of the word would lead us to conclude that there is assumed throughout this section that, before you come to ascertain whether the offence is or is not committed, there is a ship or vessel in existence—there is a ship spoken of which is to be equipped, &c. The natural construction of those terms would be that the ship was in existence as a ship, and that something was to be superadded to the ship, which has occurred here, whatever it may be, equipping, fitting out, or arming. The forfeiture clause makes it still more clear. It says: “And every such ship or vessel, with the tackle, apparel, &c, which may belong to or be on board of any such vessel, shall be forfeited.” And towards the end of the clause it says, “And that every such ship or vessel, with the tackle, &c, together with all the materials, &c, on board such ship, may be prosecuted and condemned in the like manner and in such costs as ships or vessels may be prosecuted for a breach of the excise laws.” Therefore, your lordships, observe that when you come to the end there is a distinction made between the two things spoken of, viz., the ship or vessel itself and the furniture, &c, connected with the vessel. In addition to that, in the part of the section which speaks of the issuing or delivering of a commission, these words occur: “For any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid.” Again, speaking of the existence of the ship or vessel as a thing independent of any equipment or outfit which may be placed upon it, I may say, my lords, as to that, that if the argument is maintained on the other side, which I have seen maintained out of doors, namely, that the moment you find any part of the structure of a vessel to be a part which is suitable for a vessel-of-war, and not for a vessel of commerce, that ship is struck at, and comes within the ambit of this act of Parliament. If that argument is maintained, it must go to this length: that if it were the case, as very probably it is, that in laying down the keel of a ship the keel may be laid down of a kind more or less fitted for a ship-of-war, according as you do or do not intend to employ the vessel as a ship-of-war; if the keel be laid down with the intent that she shall be used as a ship-of-war, then that is an offence committed within the act, that it is a misdemeanor, and that there is a forfeiture, not of the ship, for there is no ship to be forfeited, but a forfeiture of the keel so laid down. That would be absurd, I really do not know that the argument requires any graver consideration; it would be absurd to say that where the act speaks of a ship or vessel being forfeited with her equipments, that is satisfied and met by the mere laying down of the keel, which in no sense can be called a ship, much less any part of the equipment of a ship. If I carry your lordships with me in that observation, and if you ultimately are of opinion, as I think you will be, that it is impossible to contend that building, as distinguished from equipment and furniture, is struck at here, you will observe that there are other matters here connected with ships which are not in any way mentioned or restrained; for example, there is nothing here which restrains the hiring of a ship, or the hiring of room in a ship, for the purpose of carrying out warlike stores, to be delivered either to the ship abroad or to a port abroad; there is not a word which would indicate that that was to be an offence in any shape or form. Again, then, my lords, another observation occurs to me, which is this: if building is not struck at by this act of Parliament, it follows upon every sound principle of reasoning that when you come to deal with words such as “equipping, furnishing, fitting out, or arming,” you must take them to be words diversi generis, as meaning something of a different kind, something not ejusdem generis with building. You cannot upon any sound principle of reasoning assign so capacious and so unmeaning an object to an act of Parliament as to conceive that it does not strike at the building of the hull of a ship, but that it does strike at something which is just of the same kind and character and nature as the mere building of the hull, and which is not connected in any way with hostile or warlike ship-building. But if you adopt the argument that those words “equip, furnish, fit out, and arm” are all ejusdem generis among themselves, so that the character of the last will give a complexion to the whole of the four, then you at once get at an intelligible object and an intelligible meaning on the part of the legislature—namely, that it did not mean to prohibit mere building; that it did not mean to prohibit anything which was of the character of building, and as harmless as building is allowed to be, but that it did strike at something of a wholly different character, something that would turn the ship into a ship of a distinctively warlike character, and give it those attributes and powers which a ship fitted out for war would have. Now, my lords, I am still not approaching the words “attempt or endeavor,” or “procure,” or “be concerned in,” but I am still endeavoring to find out what is the complete offence, if I may use the expression, which is struck at by this section; and the result of my arguments as I have put them before your lordships, abandoning for a moment the verbiage of the act of Parliament, which really cumbers us, and abandoning also for a moment any question of attempt or endeavor, and pointing merely to the principal offence itself, I submit that the construction of the sentence, putting it in very short terms, is this—it is a prohibition to this effect: no person within her Majesty’s dominions shall equip a ship as a ship-of-war with a view to its being used by one belligerent against another. The ingredients in the offence therefore are two fold: first, it must be committed within her Majesty’s dominions; second, there must be an equipment as a ship-of-war, by which I understand an equipment of a warlike character. Your lordships will observe that I am carefully avoiding putting the case as high as it might be put in argument. I might say it must be an equipment which will enable the ship to cruise and commit hostilities—that is, going further, then warlike equipment would not be sufficient. The learned counsel then observed on the eighth section, and made some general remarks upon the information itself. He said “he would deal with the minor words.” They are, in the first place, to attempt or endeavor to equip; secondly, to procure to be equipped; and, thirdly, knowingly aid or assist or be concerned in equipping. Now, at this branch of the argument, I am entitled to assume that the view I have submitted of the principal offence is the correct one; otherwise, of course, it would not be necessary to go into the minor ones; but I will assume now, that the principal offence is an offence so constituted, that is, an equipping within her Majesty’s dominions in a distinctly warlike manner a ship to be used by one belligerent to cruise and commit hostilities against the other. Now let me take, first, “an attempt or endeavor to do that.” What does that mean? Does it mean an attempt or endeavor to do that out of the jurisdiction? It must, of course, be an attempt or endeavor to do the act, which, if it had gone on to its consummation, would be the offence described in the earlier words of the section. If the offence described in the earlier words of the section be to equip in a distinctively warlike manner within the jurisdiction a ship or vessel to be so used, the attempt or endeavor must be shown to be to equip in that distinctively warlike manner within the jurisdiction that ship or vessel so to be used. Now, I will show your lordships, when we come to the evidence in this case, that it never was once suggested that, beyond that which was actually done upon the ship Alexandra at the time of seizure, there was a grain of evidence going to show that anything of a different character, anything diversi generis, was to be done to the ship, before she left the jurisdiction; and I say that advisedly, bearing in mind that there was an attempt made, with which I shall qualify my statement, to show something about guns to be put on board, which was given up by the attorney general at the trial, but which I will deal with, as the attorney general has now renewed the charge. But putting that out of the case, I say it carries not the case the least further. If you rely on an attempt or endeavor, you must show that the attempt or endeavor was to do that particular act which, if the attempt or endeavor had not failed or been interrupted, would have been the offence intended by the act of Parliament. The lord chief baron: I think there cannot be a doubt that the first thing is this: before you talk about attempting, endeavoring, aiding, or procuring, or anything of that sort, you must first see what is the offence created by the act of Parliament; what is the act that is not to be done. Then, when you have ascertained what that is, there can be no doubt that to aid or abet in that, to procure that, to assist in that, and so on, is a minor offence against the same statute, but it does not create a new and different one; and I own, I think there was a great deal of mistake on that point, and much confusion has arisen from the act itself and the attempt to do it being put into different categories. I called your attention very early to-day to that distinction. Let us know what we are to understand as the act forbidden, because to assist, to aid, procure, or order, and so on, any other matter than that which is forbidden, is no offence at all; and therefore it was that I put the question to the jury, “Do you believe that this vessel was intended, before it left Liverpool or any other port of her Majesty’s dominions, to be in such and such a condition, either equipped or armed,” because if that was not intended then all the assistance and doing is nothing. It was admitted the vessel was not completed. If it was not intended to put the vessel into a condition so as to complete the offence against which the act is made, all the attempts are of no importance. Sir Hugh Cairns: I should beg leave to illustrate it in this way, to meet what I understand to be the argument of the crown, intimated in the words I have read: Suppose the case of a ship clearly and admittedly unequipped, unfitted, and unarmed, but built within this country. Lord chief baron: Allow me to say that there is an omission in a part of my summing up which seems to have led to some mistake. I think the late attorney general very much misunderstood it, but everybody who read it with the smallest portion of candor must, I think, perceive that the word “if” has been left out. I am made to say this: “Because, gentlemen, I must say, it seems to me that the Alabama sailed away from Liverpool without any arms at all, merely a ship in ballast, unfurnished, unequipped, unprepared, and her arms were put in at Terceira, not a port in her Majesty’s dominions. The foreign enlistment act is no more violated by that than by any other indifferent matter that might happen about a boat of any kind whatever.” All that was prefixed by the word “if.” Sir Hugh Cairns: Yes, it was one sentence prefixed by the word “if.” Lord chief baron: I must say it seems to me that “if the Alabama” is how it should be read, and I think that no person reading it with any candor would suppose that I had taken on myself to say that the Alabama did all that, because I knew nothing about it; there was no evidence about it. The attorney general: We all understood your lordship so. Lord chief baron: It is very obvious what I mean. The attorney general: It is merely a clerical error. Sir Hugh Cairns: It is correct in one of the copies. Lord chief baron: If I had known that it had appeared in either copy, I certainly would not have said a word about it, for the accuracy of the report is really highly praiseworthy. Sir Hugh Cairns: Your lordship will find it at page 245 of the smaller copy. The attorney general: Your lordship will remember that I read from the smaller copy when I moved for the rule. Sir Hugh Cairns: You will see, my lord, it is not only that you said “if,” but you said, “if it were true that.” Lord chief baron: Yes.

We are now compelled to pass over the next part of the argument, owing to the very great length to which the learned counsel’s argument has gone.

The question (continued Sir Hugh) I was arguing last evening was whether, supposing you could show in point of evidence that, there being in this country a ship wholly unarmed and wholly unequipped, it could be proved there was a certain equipment and armament made ready for her set apart in some store; and supposing that you had conclusive and distinct evidence that there was no intention to put that equipment or armament on board in this country, but the intention throughout was to do so without the dominions, would that be an equipment or a furnishing or a fitting out within the act of Parliament? Test it thus: Suppose an indictment were framed under such circumstances under this act, and with reference to the arming of this ship; of course it would charge that the person indicted did, within her Majesty’s dominions, arm a ship or vessel of such a name with the intent mentioned in the act. How would that be supported? By a proof of this kind—not that there was any armament put on board, but there was a store in these dominions in which had been prepared an armament for the ship, but the evidence showing at the same time a clear intention to put it on board without the dominions. The answer would be that that was not an arming of the ship. You have failed in the allegation that you have made. If that be so with regard to armament, it would be so with regard to equipment, &c. Try it thus: I allege that if a man furnished a house, is that allegation proved in point of fact if I show that he has not and never had a particle of furniture in it, but that a person went out and ordered furniture to be made, and had it prepared and put into a repository with a view to furnish the house at some future time and under different circumstances? You will see how far the argument I am combating will have to go, because, if the argument were a sound one, it would be equally an offence within the act of Parliament to show that there had been, within her Majesty’s dominions, an armament or an equipment prepared for a ship which was never within her Majesty’s dominions at all; it would be equally true to aver that A B armed or equipped, or furnished, or fitted out a ship.

The lord chief baron. Or attempted to do so.

Sir Hugh Cairns. Or attempted to do so—that is to say, if you could show that the ship being without the dominions, and never having been within them, or attempted to be brought within them, A B had prepared or attempted to prepare a certain armament or equipment with the view to be carried out of the dominions and put on board that ship. Your lordships will remember that with regard to the Alexandra there was no evidence whatever over and above what was actually done upon the ship. There was no armament, equipment, or any furniture or fitting out which could make that act an addition to what appeared upon the ship herself. Persons who take strong views say that it is a thing not to be tolerated, that the ports of this country should be turned into arsenals or used as arsenals for one of the belligerent powers. Now, if that is properly understood, I have not the slightest objection to the expression, if it means that they are not to be used to put on board a warlike equipment; but if it is intended to designate anything more than that, I entirely object to it, because there is not the slightest doubt that, according to the popular meaning of those words, the law, whether right or wrong, is so—viz: that you may turn our ports into arsenals for one of the belligerent powers. There is nothing, that I am aware of, to prevent one of the belligerent powers creating a manufactory of arms in one of our ports, for the convenience of shipment afterwards, or establishing a manufactory of arms at a seaport of this country, such as the government have at Woolwich, and make guns and small arms, and sending them away by ships, subject of course to the liability of being captured as contraband goods. Unfortunately, having gone through the observations which I had to make upon the construction of our English act, I am not able to supply your lordships with any judicial authority upon the subject of the construction of the act in this country. The fact is, as has been stated, I believe, on both sides of this case, and I believe it is accurate, so far as we know, that there never has been an instance in this country where any judicial construction has been put upon this act of Parliament.

The lord chief baron. My brother Martin intimated to us that he recollected perfectly well a case tried before Mr. Justice Coltman.

Sir Hugh Cairns. That was the case of a Sicilian ship—Granleli’s case.

The attorney general. We have a note of the summing up in that case. I cannot say much about its authenticity, for it does not come from a source the courts are in the habit of looking at; but if it be accurate, it seems to have been ruled by the learned judge on that occasion.

Mr. Locke. I have it from The Times newspaper, my lord.

Mr. Baron Channel. Lord Chelmsford was the attorney general of the day; I think he was in the case.

Mr. Locke. There is a full report of that case in The Times newspaper of the 6th of July, 1849. I do not know whether your lordships will pay attention to a report of that kind, but it seems very accurately done, and there is the summing up of Mr. Justice Coltman. I should also tell your lordships that Mr. Justice Maule was on the bench at the Central Criminal Court along with Mr. Justice Coltman upon that occasion, and there is one very important observation.

The lord chief baron. As far as my experience goes, the circumstance of a learned judge being present has very little to do with an opinion about the matter. Unless in cases of very serious importance, there are seldom two judges present in the same court; that is for the public convenience.

Mr. Locke. The case occupied no less than four days in being tried, and on the one side was Sir Frederic Thesiger, and on the other Sir Fitzroy Kelley, besides other counsel.

Mr. Baron Channel. The corporation of the city of London employ a shorthand writer; whether they did so at the time or not, I do not know.

Mr. Locke. Yes, my lord.

Mr. Baron Channel. The report furnished by the short-hand writer is not a full report of the case—that is to say, of the speeches of counsel; but all points of. law ruled are taken notice of, and it is printed by some booksellers in Chancery lane, who publish it; it comes out quarterly or monthly, and copies of that work are sent to the judges. Whether that practice existed at the time when the cause now referred to was tried or not, I do not know; if it did, we can have a copy.

Mr. Locke. I can tell your lordship exactly what the practice was at that time, as it now is. A short-hand writer is employed by the corporation, and copies are sent to all the members of the corporation. I do not know whether to the judges or not.

Mr. Baron Channel. Yes; they are sent to the judges.

Mr. Locke. That short-hand writer merely takes down the evidence. There are no objections by counsel taken down, nor any arguments, nor any summing up of the judges. It is simply the evidence. I have that book, if your lordships like to consult it; but, in consequence of there being no points taken, nor any summing up, I consulted The Times newspaper as the best medium that I could adopt, and I there find a very long report during four days, and one or two objections which were taken—one by Sir Fitzroy Kelley, which bears directly upon the question, which was overruled by Mr. Justice Coltman—and likewise the summing up of the judge. It is given at great length.

Sir Hugh Cairns. Perhaps my learned friend will allow us to see the note, valteat quantum, which he has been able to obtain. I recollect, my lord, proceedings which took place on the subject elsewhere.

The lord chief baron. It is not usual in this court, nor I believe in any court, to refer to the report of a trial in a newspaper.

Sir Hugh Cairns. No doubt, my lord, that would be very inconvenient, and I do not propose it at present.

The lord chief baron. The only use I can make of it is this—that my brother Martin, who was present at the trial, should be furnished with the newspaper report to refresh his recollection; and if he could report to us anything which was decided, it might be useful. I think that is the only way in which one could apply it.

Sir Hugh Cairns said that he was not aware of any other case having arisen upon the construction of the foreign enlistment act, and it was remarkable from the fact that seventy years had now passed from the passing of the original American act, and forty years had elapsed since the English act was passed; and he could safely say that occasions must have arisen in the United States repeatedly, and in this country also, where they would have found instances of ships built in such a way as to be easily convertible into ships-of-war, taking their origin in ports of the United States, while a neutral power, or in ports of this country, while a neutral power, and leaving those ports without warlike equipments. Instances must have arisen, again and again, in which those ships might have been made the subject of proceedings under the foreign enlistment act, if it had ever occurred to the mind of any power that proceedings could be taken in a case where you had not the warlike equipment on board the ship. I will now, said Sir Hugh Cairns, call attention to a matter—to the Terceira affair. It occurred about the year 1830, when warlike proceedings were taking place between those who supported Don Miguel on the one side, and the Queen of Portugal on the other. A number of Portuguese refugees came to this country, obtained a ship at Plymouth, and sailed in her for Terceira, having exported in another vessel a quantity of arms and equipments which they caused afterwards to be transferred on board their own ship, and our government, feeling annoyed, took a step which provoked considerable discussion, viz: gave directions to our ships-of-war to intercept the vessels and fire upon one of them, which they accordingly did as she lay in the waters of Terceira. On the part of our government it was said, that suppose our ships did fire on the vessel in the waters of Terceira, still, while they were in this country they committed a breach of the foreign enlistment act, and made themselves liable to capture and detention, because they did not put their armament on board the ship in which they left this country, but sent it out with a view of transferring it into their own ship and incorporating the two. If that were true it could not justify the attack made, as it was within the dominions of another power, for an alleged breach of our own foreign enlistment act. Mr. Huskisson, in his place in Parliament—a minister who had taken part in the passing of the foreign enlistment act, and one of the supporters of the policy of it in general, for he was a colleague of Mr. Canning—is reported to have said, in the third volume of his speeches, at page 559:

“It might be supposed from my right honorable friend’s remarks, that during the fifteen years we have been at peace our neutrality had never before been violated. Has my right honorable friend forgotten the repeated complaints made by Turkey, and has he forgotten that to these complaints we constantly replied, ‘We will preserve our neutrality within our dominions, but we will go no further?’ Turkey did not understand our explanation, and thought we might summarily dispose of Lord Cochrane and those other subjects of his Majesty who were assisting the Greeks. To its remonstrances Mr. Canning replied, (and my right honorable friend being then a colleague of Mr. Canning, must be considered to be a party to his opinions,) ‘Arms may leave this country as a matter of merchandise, and, however strong the general inconvenience, the law does not interfere to stop them. It is only when the elements of armaments are combined that they come within the purview of the law, and if that combination does not take place until they have left this country we have no right to interfere with them.’ Those were the words of Mr. Canning, who extended the doctrine to steam-vessels and yachts that might afterwards be converted into vessels-of-war, and they appear quite consistent with the acknowledged law of nations.”

Now, my lords, this is not the mere statement of opinion of Mr. Huskisson. If it were, of course it would be entitled to respect, and nothing more. This is the statement of a public act, done by a minister of this country in the administration of the affairs of this country, and in the dealings between this country and foreign powers. This is a statement made by a person who had been a minister at the time of which he spoke of a complaint which had been made by Turkey, at the time when Lord Cochrane was engaged in one of those expeditions in which, in his early life, he was concerned; Turkey complained that that was being done. Turkey complained of the export of arms, and ships leaving the country, though not armed, and the answer stated by Mr. Huskisson to have been made by Mr. Canning is this: “It is only when the elements of armaments are combined that they come within the purview of the law; and if that combination does not take place until they have left this country we have no right to interfere with them.” Now, those clearly were the cases where, if the doctrine now put forward had been considered to be the true exposition of this act of Parliament, there would have been a right to interfere on the part of the government, and we may presume that proceedings would have been taken to prosecute those ships. Now, my lords, I will come to the cases that were mentioned in the course of the trial of the Oreto and the Alabama, and speak of them as if they had occurred twenty years ago, and simply matter of history; and if I refer to the words of others I do so merely as indicating the course that was taken with reference to those ships upon the act of Parliament. The whole record of the proceedings of these vessels may be found in the new edition of Mr. Wharton’s book on international law. The case of the Oreto was simply that she was built at Liverpool, left that port unarmed, was subsequently equipped, and became a war-ship in the confederate navy. I will take the case of the Oreto first. This is the statement which I find made in Parliament by one of the advisers of the crown with regard to the Oreto, and it will be a statement, I think, bearing directly upon the view taken of the construction of the act of Parliament. “The Oreto,” says the solicitor general, (Sir Roundell Palmer,) in Parliament, upon the 11th of March in this year, “was made the subject of due representation only once before she left this country, because she sailed from Liverpool on the 22d of March clandestinely, as did the Alabama, and it was only on that same day that a conversation took place between Mr. Adams and Lord Russell, which might have led to her detention if she had not gone. On the 18th of February the first and only previous information communicated to our government was given by Mr. Adams. He stated a case which clearly called for inquiry. The commissioners of customs were directed to make an inquiry; they did so, and on the 22d of February they reported that circumstances worthy of credit tended to show that the Oreto was going, or at all events was credibly represented to be going, to Italy, and not to America, and not a particle of evidence had been offered to the contrary. She was not then fitted for the reception of guns, and had nothing on board but coals and ballast. There was consequently nothing to justify her detention—nothing but vague rumors and suspicions. No further representation was made, and the Oreto sailed on the 22d of March. What then happened? The circumstances of her departure, and the contemporaneous representation made by Mr. Adams to our government, made it probable that she was really intended for the Confederate States, and that our officers had been imposed upon. Still, the case was not clear; there was nothing proved to have been done in England which a court of law would certainly have construed as a violation of the foreign enlistment act. Nevertheless, our government immediately sent orders to Nassau, whither she was understood to have gone, and when she arrived there she was watched. Upon the appearance of a delivery of stores which appeared to be munitions of war into the Oreto while in our waters, although the case was doubtful, and it was questionable whether the evidence would prove sufficient, still, to show our good faith, we strained a point, and, acting upon some evidence, the Oreto was seized. What was the result? She was tried and acquitted, the evidence not being sufficient. Now my observations upon that are these: Here is a statement that the Oreto left Liverpool; that at the time when she left Liverpool she had no warlike equipments on board, but of course, from the nature of the case, she was prepared and able to sail away from Liverpool. She came to Nassau; she is still within our jurisdiction. Before she came to Nassau it has become clear that she was not going to Italy, where she had been said to be going originally. The circumstances were supposed to be sufficiently clear to justify a case made that she was going to be employed by the confederate powers. What is the course taken? Do they say the mere fact that she was able to sail away from Liverpool—the mere fact that she had on board those appliances which would enable her to sail from the port of Liverpool, although she had no warlike equipment on board, will be enough when coupled with the intent to be employed in a particular way, of which we now have evidence Nothing of the sort. The gravamen of the charge is that she took in munitions of war while in the waters of Nassau. I desire to put it no further than it ought properly to be put. I say that that is clearly a statement that the view taken by those who took proceedings against the Oreto was that, short of something that could be called a warlike preparation, they could not institute proceedings against the ship; that there was nothing which amounted to a warlike preparation until she came into the waters of Nassau, and it was in respect of that preparation that she was seized. The Oreto was tried at Nassau, in the vice-admiralty court, and was acquitted. Now, the case of the Alabama was dealt with at the same time, and the facts respecting it I am willing to take in the same way and upon the same statement. Now, with regard to the Alabama, I find this:

“On the first of July the commissioners made their report to Lord Russell. They said it was evident the ship was a ship-of-war. It was believed, and not denied, she was built for a foreign government, but the builders would give no information about her destination, and the commissioners had no other reliable source of information on that point. Were our government wrong in not seizing the vessel then? The circumstances disclosed in the case tried before Justice Story were so far exactly the same as those which occurred in the case of the Alabama, and, in the absence of any further evidence, the seizure of that ship would have been altogether unwarrantable by law. She might have been legitimately built for a foreign government, and, though a ship-of-war, she might have formed a legitimate article of merchandise, even if meant for the Confederate States.”

I will now refer to another part of the same speech:

“What is alleged against us What is the extent of the acts committed, even by individual subjects of this country, which can be considered contrary to any law of our own? Why, the building of these two particular ships. If our law failed to reach them while they were within our jurisdiction, and if nothing was done by them in our ports or in our waters which was against international law, how can we be held responsible for their subsequent proceedings when on the high seas % It was not till the Alabama reached the Azores that she received her stores, her captain, or her papers, and that she hoisted the confederate flag. It is not true that she departed from the shores of this country as a ship armed for war.”

I do not, said Sir Hugh Cairns, understand language if that does not mean that the point in the case with regard to the Alabama was this: that although there might have been evidence (perhaps not conclusive, but still evidence enough to launch a case) as to the intent with which she left our shores, still there was that wanting which bore upon the other, and equally essential, part of the case. She did not leave our shores as an armed vessel; and more than that, she did not receive anything which could be called warlike equipment until she had reached the Azores. But, my lords, the matter regards a subject of history with reference to the Alabama which is made plainer still, because after this statement of the course pursued with regard to the Alabama was made, and before the seizure of the Alexandra took place, and when certainly the public mind was anxious to know what was the line of duty which subjects of this country should pursue upon matters of this sort, I find that this statement was also made with regard to the Alabama. The prime minister, a fortnight after the statement which I have already read, said this—I refer to the 170th volume of the Parliamentary Debates, and to the debates of the 27fh of March, 1863: “I have myself great doubts whether if we had seized the Alabama we should not have been liable to considerable damages. It is generally known that she sailed from this country unarmed and not properly fitted out for war, and that she received her armament, equipment, and crew in a foreign port. Therefore, whatever suspicions we may have had, (and they were well founded, as it afterwards turned out,) as to the intended destination of the vessel, her condition at that time would not have justified a seizure.” Now, the distinction is as clearly drawn as words can draw it between the intended destination, as to which there might be some suspicion, which would be matter of evidence, and that which was a fact patens ad oculos, namely, the condition of the ship; and here is a statement, made by those who had considered the authority of an act of Parliament of this kind, that a ship not fitted out with a warlike equipment when she leaves this country, whatever our suspicions may be with respect to her destination, cannot be made the subject of seizure, because her condition is not such as is pointed at by the act of Parliament. My lords, I cannot help taking notice here of a statement made when the rule was being moved for by the attorney general. It was my learned friend who referred to the case of the Alabama in this discussion. My learned friend said, according to the note which I have seen of the statement, that, according to his judgment, those who were engaged in the despatch of the Alabama from this country had rendered themselves liable to the penalties of this act of Parliament.

The attorney general. I said so in the speech from which you have been reading.

Sir Hugh Cairns, in substance, said when the evidence was completed it was laid before the learned gentleman, who thought there was a sufficient case to warrant her detention. What that evidence was he (Sir H. Cairns) did not know. He had a statement with regard to the condition of the ship when she left this country, and there was no case, in his opinion, to warrant her detention. A distinction was drawn by the attorney general between what he called her structure and things superadded to it. The learned counsel then went through the evidence of Mr. Morgan, by whom the Alexandra was seized, and the evidence of Black, who said the ship’s frame was of British oak, and her planking of teak, and who spoke generally of the very strong manner in which she was built, her upper decks being pitched pine, and the ship, in his opinion, being only suited for war purposes. Mr. Green was the next witness upon whose evidence he commented, and he said that ships were not built so well now as they were twenty years ago. He said the rudder of the Alexandra was stronger than would have been used in merchant vessels. Carter was the next witness whose evidence was dealt with. Hodgson was the next witness. Sir Hugh continued, observing that there was not a scrap of evidence that the guns were intended for the Alexandra. As to guns intended to be put on board the Alexandra, the attorney general, at the time, opened his case as to this by stating that there were one large and two small pivot guns being constructed in the foundery of the defendants for the purpose of being placed in and forming part of the armament of the Alexandra. Sir Hugh then read and commented upon the evidence of the three witnesses called on this point, and contended that there was not a scintilla of evidence that these guns were intended for the Alexandra. They were being made, no doubt, at the same time with the ship, but there was no evidence to connect them with the ship. On the question of equipping or armament, the structure of the hull is unimportant, being in no sense equipment. Machinery and stanchions for hammock nettings were also matters of structure. These things were on board, but were not fittings of any kind, but part of the ship. Stanchions for hammock nettings are original inventions, applicable to be used in all kinds of ships—useful, no doubt, to resist musketry, but also useful for the stowage and airing of hammocks. All these things, therefore, may be and are essential parts of the ship as a ship, and not in any sense warlike equipments.

To Baron Bramwell’s question as to whether he meant to contend there was no evidence whatever, he explained that he did not contend, and had no occasion to contend, that there was no evidence whatever, and that the case should not have been left to the jury; but there was no evidence on which a new trial ought to be granted as for a verdict against the weight of evidence; that the case had been left to the jury, and they had found for the defendants.

It was suggested by Baron Bramwell, interrogatively, that the defendants might have been called as witnesses; he remarking, at the same time, that if they could have been called, slight evidence, unanswered by them, might have had great weight with the jury.

The attorney general here expressed his opinion that the defendants could have been called as witnesses, and some time was occupied by the court looking into the cases and authorities on this subject. The case of “The Attorney General vs. Radlock” (10 Exch.) was referred to, and it was mentioned that the view of the law taken in that case by the lord chief baron and Baron Parke had been since adopted by the legislature and passed into law, rendering defendants admissible witnesses in certain revenue cases; and the question arose, on this last statute, whether the proceedings under the foreign enlistment act came within it. The court did not finally decide the point, but appeared to think that the course taken at the trial did not strictly put the defendants’ counsel to the alternative of calling his witnesses. Baron Bramwell observed that he thought, on the part of people holding the position of British merchants, if they believed what they did to be within the pale of the law, the more manly course would have been to have come forward and state what they actually did, and stand upon their legal right to it.

The argument was then resumed by Sir Hugh Cairns as to the guns to be put on board. He referred to the opening by the attorney general at the trial, in which he admitted the inability of the crown to connect the guns assumed to be for the Alexandra with the defendants’ yard. It was proved that there had been drawings made for the defendants, by their directions, of certain guns and gun carriages, and notice to produce the drawings had been given by the crown; but an objection having been taken to it by the defendants’ counsel, the learned judge decided that the notice was informal, and therefore the defendants were not bound to produce the drawings. Sir Hugh Cairns said that he had now concluded his argument on that part of the case which dealt with the condition of the ship, and he would now go into the question of the evidence relied upon by the crown—that part relating to the intent, the act of Parliament requiring not only an equipment, but that it should be done with an intent to commit hostilities. Was there any reason, continued Sir H. Cairns, after the confession of the attorney general himself that the crown had failed to trace the connexion between the guns in the defendants’ manufactory and the Alexandra, was there any necessity whatever for those against whom the accusation was brought to offer themselves to be examined on the subject? I think, after the fair admission made by the late attorney general, (and everything he said was most fair,) I may consider the count relating to the guns as struck out of the information. Now reverting to the question of intent. The act requires not only an equipment, fitting, furnishing, and arming, but that all or one should be done with the intent that the ship should be employed by one belligerent power to cruise and commit hostilities upon the other. If my view upon the first part of the case be correct, viz., that there must be an equipment or an attempt to equip at a certain time, the question is immaterial. Then the secondary question, viz., the use that was to be made of the ship, as between one belligerent and another, would, of course, become utterly immaterial. It is only on the supposition that the ship was in a condition to comply with the earlier part of the clause that we have to approach and consider the second question. With regard to the species of intent composing a case like the present, the case of “The United States vs. Quincey” is an authority. The court thought in that case that instructions ought to be given to the jury that the offence consisted principally in the intention with which the preparations were made, and they must he made, according to the act, within the limits of the United States, and that the intention, which must he a fixed one, not conditional or contingent, should be formed before she left the United States. The intention belongs exclusively to the jury to decide. It was the material point, on which the legality or criminality must turn, decided, whether the adventure was of a commercial or warlike character. Now, said Sir Hugh, I will show the view taken of the intent in the present case by the attorney general at the trial He said the intent must be the intent of one or more, having at the time the means and opportunity of forwarding or furthering such intention by acts. By intent undoubtedly the act means practical intent. It was for the crown to make out their ease. We maintained at the trial that the evidence did not support their case. We challenged the credit and credibility of the witnesses examined at the trial, and we had good cause for doing so. The learned counsel went through the evidence generally in the whole case, arguing that it had failed in every particular.

Baron Bramwell asked if Sir Hugh was contending that there was no sufficient evidence that the vessel was intended for the Confederate States at all, armed or unarmed.

Sir Hugh Cairns said that he was contending that the verdict was not against evidence, supposing the verdict to have proceeded upon that ground.

Baron Bramwell said, Suppose the jury had thought in their own minds that they thought she was meant to be armed or equipped for warlike purposes, but were not satisfied that she was intended for the confederates; would the learned counsel hold that that would not have been a verdict against evidence?

Sir H. Cairns said, Yes, certainly, they could not tell what was passing in the mind of the jury. They might have determined either or both those things in favor of the claimants; but the claimants were challenged by this rule virtually to meet the crown on both parts of the case.

Baron Pigott said, We understand you are contending that there was evidence that justified the verdict in either view of your argument as to the meaning of the 7th section of the act.

Sir Hugh Cairns. Quite so, quite so, my lord.

The lord chief baron. The question I put to the jury was this: Do you believe that there was any intention of doing the act quite apart from the intent; was there an intention to do that, a commencement of that, which would be either a fitting, or furnishing, or arming of the ship, no matter with what intent, to go against anybody; would it be in that condition so as to be within the meaning of the words; would it be equipped, or furnished, or fitted out, or armed? because if it were so, it is a matter of perfect indifference whether it was for the Confederate States or not.

Sir H. Cairns said, Quite so. The trial has been conducted upon the assumption that we might succeed on both parts of the case. Sir H. Cairns then went at some length into evidence given by the several witnesses at the trial, as well as into the character of the evidence itself, contending that the major part of the evidence was extremely unsatisfactory, and that under any circumstances it could not have justified the jury in finding for the crown. It was for the crown, in a case of forfeiture, or in a case of an offence, to prove their case with a reasonable certainty; and if the verdict had been different from what it was, the defendants would have had good cause to complain. The question of intent was one for the jury, and if they arrive at the conclusion that the intent had not been made out, then they were clearly warranted in arriving at the conclusion they had. I now come to the last point in the case, and that is the direction which was understood to come from the lord chief baron, and to apply that direction to the law and facts I have mentioned. I have had an opportunity of reading the short-hand writer’s notes in two different editions, and I may say of the charge of the learned judge that the propositions deducible from it would carry to the mind of the jury a sufficient and reasonably proper explanation of the law of the subject as applicable to the case. The propositions I deduce are four in number, though they go to makeup one general view of the case. One is, that to build a ship, as distinguished from equipping, fitting out, furnishing, and arming her, is not an offence within the act of Parliament, even although easily convertible into a vessel of war; but I am speaking now irrespectively of the question whether it was intended to sell a ship as an article of merchandise or not. I understood the charge to go to this, that the building of a ship is distinct from equipping her, &c, although she might be easily convertible into a ship-of-war. The lord chief baron said that it was as plain as possible that you must give some effect to the omission of the word “build,” or it would have been said you shall not build. The second proposition he conceived to be laid down was that the Alexandra was not armed, and that it was for the jury to say whether she was equipped, &c, or intended so to be, within the Queen’s dominions. The third proposition which I recollect was that the equipment, &c, must be of a warlike, character; and the fourth, that it was for the jury to say whether they considered there was any intention to employ the ship to cruise and commit hostilities at all. Sir H. Cairns then called the attention of the court to several passages of the lord chief baron’s summing up. It was perfectly apparent, said Sir Hugh, that no person could contend for a moment that the jury could have misunderstood the matter, that where the judge spoke of the building of ships as not being prohibited he meant to refer to the building of ships as distinguished from what might be meant by those other words, equipment, &c. Upon the second point that was presented to the jury the learned judge said the offence against which the information is directed is the equipping, fitting out, furnishing, and arming. He had looked in Webster’s American Dictionary, and found that to equip was to furnish with arms. In the case of a ship, especially, it was to furnish and complete with arms. Furnish was given as the same thing with equip. To fit out was to furnish and supply; and the judge owned that in his opinion equip, fit out, furnish, or arm, all mean precisely the same thing.

The remarks of the learned counsel upon the summing up and the effect of it run to a considerable length, and we shall give it to-morrow, together with Mr. Karslake’s argument, who was addressing the court, and had not concluded his argument when the court rose.

Court of Exchequer, November 19, 1863.

The attorney general, the solicitor general, the Queen’s advocate, and Mr. Thomas Jones, appeared for the crown; Sir Hugh Cairns, Mr. Karslake, Q. C, Mr. Mellish, Q.C., and Mr. Kemplay, appeared for the defendants.

We continue our report of the arguments in this case from where it finished yesterday. Sir Hugh Cairns having gone most carefully and at considerable length through the whole case, said that he should finish by touching upon the point relating to the direction which was understood to have come from the lord chief baron, and submit the propositions which he understood were deducible from the charge. The first was, that to build a ship, as distinguished from equipping, fitting out, furnishing, and arming her, is not an offence within the act of Parliament, even although the ship so built might be easliy convertible into a ship-of-war. 2. That the Alexandra clearly was not armed, and that it was for the jury to say whether she was equipped, fitted out, or furnished, or intended to be so, within her Majesty’s dominions. 3. That the equipment, furnishing, or fitting out must be of a warlike nature. 4. That it was for the jury to say whether they considered that there was any intention of employing the ship to cruise and commit hostilities at all. Sir Hugh said that he did not mean to say that these propositions had been absolutely laid down by the learned lord chief baron, but they were those which he thought fairly deducible from the charge to the jury; and, if he were right in his deductions, the court would then probably be of opinion that the propositions would carry to the mind of the jury a sufficient and reasonably proper explanation of the law on the subject as applicable to the case before them. With regard, first, to the fourth proposition, Sir Hugh said it seemed to him that if any person had a right to complain of it it was the defendants, for they might complain that it was a proposition quite unnecessary, and was putting the case in an unfavorable way for them. The proposition might have been limited to this, to say whether there was an intent to employ her to cruise and commit hostilities on the part of one belligerent against the other belligerent. Sir Hugh Cairns continued: Allow me first to refer in support of the first proposition. After referring to certain authorities—Justice Story and Mr. Chancellor Kent—his lordship says in his charge:

“These gentlemen are authorities which show that where two belligerents are carrying on war the subject of a neutral power may supply to either, without any breach of international law, and certainly without any breach of the foreign enlistment act, (and it does not say a word about it,) all the munitions of war, gunpowder, every description of fire-arms, cannon, every kind of weapon—in short, whatever can be used in war for the destruction of human beings who are contending together in this way. But, gentlemen, why should ships be an exception? In my opinion, in point of law they are not. Presently I shall have to put to you the question of fact about the Alexandra, which you will have to decide. The foreign enlistment act it is now necessary for me to advert to, in order to tell you what is the construction which I put on the 7th section, which alone we have to do with on the present occasion.”

It is clear that his lordship speaks of ships being built, as distinguished from whatever might be meant by equipping, furnishing, fitting out, and arming. His lordship says in another part of his charge, which I will read to you:

“Now, with respect to the question of building, it is certainly remarkable that there is not a word said about it. It is not said that you may not build ships for the belligerent power. There is nothing suggested of the kind, and clearly, by the common law and by the passages I have read to you, surely, if from Birmingham either state may get any quantity of destructive instruments of war, and if from the various parts of the kingdom where gunpowder is made they can obtain any quantity of that destructive material, why should they not get ships? Why should ships alone be contraband—that is to say, forbidden by the statute?”

The jury could not have misunderstood this. Where my lord speaks of the building of ships as not being prohibited, he means to refer to the building of ships as distinguished from what might be meant by those other words “equip.” &c. As to the second point, I will go to the view presented to the jury about the Alexandra, and her condition with reference to the 7th section. The reports do not quite agree; there is a slight inaccuracy in a part of a passage which may affect the whole, and I will call attention to it at a proper time. His lordship, after remarking that he had looked into Webster’s American Dictionary, a work of great learning, research, and ability, said:

“It appears that to equip is to furnish with arms. In the case of a ship, especially, it is to furnish and complete with arms; that is what is meant by equipping. ‘Furnish’ is given in every dictionary as the same thing as ‘equip.’ To fit out is to furnish and supply—as to fit out a privateer; and I own that my opinion is that equip, furnish, fit out, or arm, all mean precisely the same thing.”

There cannot be the slightest doubt that in one sense those four words do mean the same thing; that is, no person could doubt for a moment that to equip would include all equipments, and also that equipments would be a nomen generate. Of course “arm” would be included in the term “equip,” &c. Then the learned judge says:

“I do not mean to say that it is absolutely necessary, (and I think the attorney general is right in that;) it is not, perhaps, necessary that the vessel should be armed at all points.”

Now, with regard to that, I cannot help thinking that there is a slight inaccuracy in the report, because our report differs from it. The lord chief baron is made to say:

“I do not mean to say that it is absolutely necessary, and I think the learned attorney general is right in that.”

Now, that is one sentence. It goes on:

“It is not, perhaps, necessary that the vessel should be armed at all points, although it may be that the case cited from 6 Peters’s Reports by the Attorney General, somewhat late in the day, is a case where the jury actually found that the vessel was fitted out.”

Now we find immediately afterwards that the learned judge takes distinct note that the Alexandra was not armed at all, but; still this was a question to be submitted to the jury, notwithstanding that it seems to me perfectly obvious that just a word or two has dropped out from the sentence. It is reasonably clear that he must have said this:

“I do not mean to say that it is absolutely necessary that she should be armed, and I think the attorney general is right in that, and it is not necessary that she should be armed at all points.”

Because, otherwise, there would have been an end of the case. There would be nothing to go or to leave to the jury if his lordship had meant to say, “It is not necessary that she should be armed at all points,” implying that it is necessary that she should be armed at ail points.

Baron Bramwell. That would probably not be agreed to by the other side for this reason—that if there was an intention to arm, and they were preparing the ship to receive arms, that would be enough.

Sir Hugh Cairns. You must bear in mind the statement of the attorney general in reply; he had conceded—I may say literally in verbis—conceded the question of any intention to arm.

The attorney general. I distinctly differ from my learned friend.

Sir Hugh Cairns. I expect that my learned friend will “distinctly differ” with everything he has heard from beginning to end. I say that the lord chief baron in leaving this question to the jury—“Was there an intention that she should be furnished, or fitted out, or equipped at Liverpool?”—it being admitted that the information did not charge arming, left exactly the question which under the act of Parliament ought to have been left to them. Now, as to the character of the equipment which must be on board, to which throughout the whole of his charge his lordship must have been taken to have been pointing, your lordships will find in another part of his charge these words:

“Now, gentlemen, the question that I shall propose to you is this—whether you think that this vessel was merely in the course of building for the purpose of being delivered, in pursuance of a contract which I own I think was perfectly lawful, or, whether there was any intention that in the port of Liverpool or any other English port (and there certainly is no evidence of any other) the vessel should be equipped, fitted out, and furnished, or armed, for the purpose of aggression? That is the question.”

Now, my lords, lower down you will find, after speaking of Captain Inglefield’s evidence:

“In short, what he makes out is that she might have been built as a vessel capable of being convertible into a war vessel. But the question is, was there any intention that in the port of Liverpool, or any other port, she should be, in the language of the act of Parliament, either equipped, finished, fitted out, or armed with the intention of taking part in any contest?”

Now, we might have demurred to this proposition, but not so the crown. If she had not been armed, equipped, furnished, or fitted out with the intention of taking part in any contest a multo futiore, she could not have these things done to her with the intention of being employed in the service of the confederates, to cruise and commit hostilities against the United States of America. I submit that the charge, looked at in’ the way that I have ventured to put it, will in substance be found to have directed the attention of the jury to everything which ought to have been laid before them as a matter of law as well as on the issue of fact to be decided between the parties. I submit with confidence that on the evidence it is utterly impossible to say that a jury was not warranted in coming, on the facts, to the conclusion that they had done. The evidence for the crown failed to prove the charge made. If the law is as the crown allege it to be, I say it is impossible to suppose—carrying in mind the fact that seventy years have passed since the passing of the American act, and forty years gone since our own was enacted—that cases would not have occurred again and again when seizures and forfeitures would have been made under the penalties of this act. I say the case they are bringing forward is against the history of legislation on the subject; it is against the true and sound construction of the municipal act of Parliament on the subject; it is against the declarations which have been made by every one who had a right to control the movement of the crown, or to direct or advise the movements of the crown, in putting this act into execution from the time the act first attracted public attention, and I trust that your lordships will think that the litigation we have had in this case is enough; that full, perfect, and complete justice has been done between the crown and these claimants on a statute of this kind; and I trust that your lordships will think that there should be no further litigation in this case.

Mr. Karslake, Q. C, followed on the same side. He said it would be convenient to follow the course of his learned friend, Sir Hugh Cairns, and in the first place consider what the construction of the language of the statute was upon which the information had been filed, what the evidence had been in the case, and what the charge of the lord chief baron to the jury was, and what was now complained of. The motion of the learned attorney general upon which the rule was granted was rather directed to this—that the verdict was against evidence as the case was left to the jury, and according to the lord chief baron’s view of the law; but, assuming his lordships’ ruling to be wrong, that the evidence would have supported the verdict had it been for the crown. The question would therefore substantially resolve itself upon that part of the case into this: whether there had been a misdirection on the part of the learned judge.

The attorney general said that his learned friend must not forget that he (the attorney general) took a certain view which might possibly turn out not to be correct; and supposing that view was not correct, then he adhered to his motion on the ground of its being against evidence.

Mr. Karslake. We have the information that my friend, in some view or other, considers that the verdict was not warranted by the evidence given in the case, and upon that ground he asks for a new trial—that is, that the verdict was against evidence; and he also says that there has been a misdirection by the learned judge, and he is allowed to adopt a course which is not allowed to be adopted generally by other litigants in this court, viz: to state generally that there has been misdirection, and by-and-by to contend that there has been misdirection without informing his opponent what the misdirection is. Mr. Karslake stated that as the full history of that which led to the passing of this statute had been gone into so fully by Sir Hugh Cairns, he would trouble the court very little further upon it, but he would call attention to an authority which was earlier than that even of 1793, and which would be found in Fortesque’s Reports, page 338, curiously enough, under a discussion by the judges as to the precedents of the judges—the dictum as to what had been the advice given by the judges in the house of lords as to the right of building ships-of-war for foreigners in this country, and it appeared to him extremely important for the purpose of ascertaining what was declared as long ago as 1713, and again in 1721, to be the opinion of the judges as to the right of fitting out warlike ships for warlike purposes in this country. The following passage occurred:

“In Michaelmas vacation, 1721, the judges were ordered to attend the house of lords concerning the building of ships-of-force for foreigners; and the question the lords asked the judges was whether, by law, his Majesty had a power to prohibit the building of ships-of-war or of great force for foreigners in any of his Majesty’s dominions; and the judges were all of opinion, except Baron Montague, (Chief Justice Pratt delivered the opinion,) that the King had no power to prohibit the same, and declared that Montague had said that he had formed no opinion thereon. This question was asked on occasion of ships built and sold to the Czar being complained of by the minister of Sweden. Trevor and Parker gave the same opinion in 1713.”

There (said Mr. Karslake) your lordships have an opinion given by the judges that the crown could not interfere to prevent ships-of-force being fitted out with warlike equipments in this country for foreigners—at all events in the years 1713 and 1721.

The lord chief baron stated that the last time the judges were assembled in that general way to have a question put to them, without hearing any argument on either side, Mr. Justice Maule refused to give any opinion at all, saying that unless the matter was argued before him, so that he might know what was to be said on one side or the other, he should decline giving an opinion. The question, perhaps, was never argued.

Mr. Karslake. Very possibly.

Baron Bramwell. We are summoned by our writs to advise the house.

Mr. Karslake. I believe at the time it was the common practice for the judges to give information to the crown when asked.

The lord chief baron. Not only in the house of lords, but it was not an uncommon thing, you will find, for the judges to be assembled for the purpose of giving an extra-judicial opinion. They were assembled once upon the question of the right of the sovereign to control the whole of the royal family, and as to giving him, during the lifetime of the Prince of Wales, a control over the Prince of Wales. He was considered to be the father of the royal family. The judges, certainly not in the house of lords, but in Serjeant’s inn, were assembled and gave an opinion, and they have been in the habit of doing it on other state occasions.

Mr. Karslake. I only cited that opinion to show what might be considered to be the law here previous to the passing of the act of Congress. After the learned counsel had gone largely into the reasons of both countries, America and Great Britain, for enacting acts to prohibit the enlisting of their respective subjects in foreign armies, &c, and followed, of necessity, very much upon the arguments of Sir Hugh Cairns, he proceeded: I will assume, then, that supposing the hull of a vessel, which is capable of being used for warlike purposes after it had been equipped and fitted out, is sent from this country for the purpose of being used for those purposes, but is towed away, as a mere hull, inasmuch as there is no prohibition of such an act to be found in this statute, that act itself will be legal, and I say that because it is necessary there should be something more than a vessel which is to be forfeited. It must be a vessel in a particular state and stage of completeness—that is, not simply in the state of a hull, but a vessel furnished, equipped, fitted out, or armed—which is to be the subject of forfeiture under the 7th section. If a shipbuilder has a right in common (and I venture to think he has) with other merchants in this country to supply contraband up to a certain point, the question is, where your lordships will draw the line, and whether your lordships are to give the extremely liberal construction which the attorney general claims for this statute, or whether the more limited construction which we seek to put upon it is the construction to be placed upon the terms of the act. It is rather, under the circumstances, for your lordships to put a limited than an extended construction upon the act, making every vessel built under circumstances of suspicion liable to the forfeiture which is claimed by the crown. Now, I understand my friend on the other side to say, once let a vessel in common parlance become a ship, add to that vessel the stanchion of a hammock netting, she is then equipped sufficiently for the purpose of this statute, provided that you find that that equipment is with the intent charged by the statute.

Baron Bramwell. That if you get clearly to the intent that gives the equipment.

Baron Pigott. First the act and then the intent.

Mr. Karslake. Or it may be simply the intent and then the act, for it is immaterial which you take first, according to the facts of this case that it refers to. After going into an argument upon the construction of the statute, &c, Mr. Karslake said: I want to impress upon the court, that on the part of the person who is the owner or controller, for the time being, of the vessel, there must be that fixed intention which is mentioned in the case of the “United States vs. Quincey,” and that you must ascertain who is the person who has that fixed intention, before you can claim the forfeiture of that vessel. It will be extremely material to bear that in mind, as in this case there are twenty or thirty persons charged with having said this or that about the vessel, the attorney general saying, “They were all engaged together; therefore you must assume the intent to be what we alleged it to be.”

Baron Bramwell said that surely the crown had a right to say, “If we cannot make good our right against any one we are content the ship shall be yours, but if we can show that any one has forfeited, we have a right to do so by all ordinary means in our power.”

Mr. Karslake. The crown must lay hands on some particular person in whom they assume the guilty intention existed which has rendered the ship forfeiture. It is the bounden duty of those who are making out the affirmative to show that at the time when the forfeiture was incurred there were some particular persons who were acting in some way or other against the section of the statute. In order to ascertain the intent, or whether it existed, the first inquiry to be made was, who was the person who was capable of intending at the time of the forfeiture within the meaning of the authorities? Mr. Karslake then went into the meaning to be attached to the words “equip, furnish, fit out, or arm.” He asked the court to accept the construction put upon the section by Sir Hugh Cairns. The learned counsel finished his argument by urging that the direction given by the learned lord chief baron was a right view of the statute; that the verdict was right, and the jury could not have arrived at any other conclusion than they had; and that the verdict, for all the reasons that had been brought forward, ought not to be disturbed.

Mr. Mellish, Q. C, followed on the same side. After some introductory observations, he stated that he ventured to go to the extent of saying that it would be perfectly legal, under the act, for any shipbuilder to build a ship in this country, well knowing it was adapted for warlike purposes, under a contract with one of two belligerents, to equip that ship so far as it was necessary to enable it to sail away from this country, and to deliver it to the belligerent, either here or elsewhere, in an unarmed state. The building of a vessel was not forbidden by the statute; and that being so, the question was this: Was it the intention of the legislature, though it did not forbid the building of a ship in express and direct terms, to make it by implication unlawful? Obviously it was impossible to build a ship or sell a ship adapted for war to one of two belligerents, unless they allowed the builder to sell it in such a state as would enable it to sail away. To say to the shipbuilders of this country, “You may sell ships to one of the two belligerents as much as you please, but you must not put anything on board which will enable them to sail away,” was a manifest absurdity. If it was the object of the legislature to prevent any belligerent providing himself with ships from the ports of this country, it seemed extraordinary that they did not, in plain terms, say, “You shall not be allowed to build a ship for one of two belligerents, nor sell it to him.”

Mr. Kemplay then argued upon the construction of the statute, saying that after the very elaborate manner in which all the facts had been gone through by his learned friends, it would be unnecessary for him to approach them at all, but he would satisfy himself by making a few remarks upon what appeared to him to be the true construction to be put upon the statute.

Cause having been now shown against the rule, the attorney general commenced his argument in support of the rule, and had not concluded when the court rose.