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Tous les autras axemplairas originaux aont filmte en commen^ant par la pramlAre page qui comporte une empreinta d'impression ou d'illustration et en terminant par la derniAre page qui comporte una telle empreinte. Un dea symboles suivants apparattra sur la darnlAre image da cheque microfiche, selon le cas: le symbols -^ signifie "A SUIVRE", la symbols y signifie "FIN". Les cartes, planches, tableaux, etc.. peuvent Atre filmte A das taux da reduction diffirants. Lorsquo ie document est trop grand pour Atra reproduit en un seul cliche, il est f ilmA A partir da Tangle supAriaur gauche, de gauche it droite. et de haut en baa. an prenant la nombra d'imagea ntcassaira. Lea diagrammas suivants illustrent la mAthode. 32X 1 2 3 4 5 6 THE FOREIGN ENLISTMENT ACTS -If, OP ENGLAND & AMERICA. THE "ALEXANDRA" & THE RAMS. S;"' BY VIGILANS. LONDON: SAUNDERS, OTLEY, AND CO. 66 BROOK STREET, W. 1864. Thk law has prohibited certaiD things, but it has not made theiu wrong in themseh^es, nor are we able to see why the selling of ships to belligerents by the subjects of neutral States should be prohibited by the municipal law. It seems unwise to enact further restraints on our natural liberty than the law of nations has im- posed, and thus to give foreign States and their adherents a claim to interfere in the management of our domestic affairs. We do not wish to see a return to ex officio prosecutions for violations of a statute which it is open to any one who pleases to enfortie, and while we abhor the slavish timidity which would call upon Government to abridge liberty at home in order to conciliate animosity abroad, we are firmly convinced that as no law has been strong enough to put down smuggling when a large profit is left on the transaction, so the Northern States must provide them- selves with some better defence than our Foreign Enlistment Act and their own inefficient navy if they wish to arrest the depreda- tions and confound the enterprise of the Confederate States. — The Times, April, 1863. PREFACE. rpHE many important questions involved in the -*- seizure of the Alexandra and the Rams have been closely scanned and scrutinized by all those who in any way take an interest in the legal or political passing events of the day. The case of the Alex- andra has " dragged its slow length along" through the first stage of trial, and in the speeches of prose- cution and defence no conceivable point of attack and no possible loophole have been overlooked in the desire to secure victory to their respective clients. The discussions in Court and the writings on the question "out of doors" have placed the public in complete possession of every detail of the case, and thus a layman, choosing to sift for himself from the mass of argument the essence of the attack and defence, can form, without much difficulty, a tolerably succinct view of the real questions at issue. The case of the Rams not having as yet been sub judice, may be said, as far as any legal argument goes, to be hardly ripe for discussion. Both cases, however, being alike prosecutions under the Foreign Enlistment Act, the decision in the one will doubt- IV I'KLIFACE. leas liave considerable effect upon any proceedings to be eventually taken in the other. Should the Alex- andra be finally condemned, it must be admitted that there cannot be much hope of a successM defence of the Rams ; whilst if the defence of the Alexandra is successfully maintained through the diflferent stages of a persistent prosecution, it may become a question with the Government whether it is worth their while to incur a further defeat in what at the best was at starting a very doubtful adventure. My object in placing this little treatise before the public is to con- tribute my mite towards the support of that side which I believe commands the sympathy of a majority of those who are capable of reasoning on the subject. I have closely watched the contest between a liositating and lukewarm prosecuting Government and a subject determined if possible to retain those rights to which he may well consider himself entitled in default of any previous judgment of a contrary natiu'e having been inscribed in the annals of our legal courts. Government and subject are alike novices in the proceedings ; both have to be taught what is the law and what the real construction to be placed upon the statute under which the action is laid, and to both will the ultimate decision be of vital consequence. Condemnation will render shipbuild- ing to the one a profession involving great doubts, PREFACE. V uncertainties, and frequent official interference ; and iicquittal will, we are told, compel Government to apply to Parliament for a measure which shall give them gi'eater powers of molestation in that important branch of our trade. It is not ray wish to commit to print a series of egotistical remarks and opinions, but rather to gather from the copious arguments of Judge and Counsel what were the history and origin of the Foreign Enlistment Acts of England and America,* what pre- cedents are available for our guidance, and how far the history, origin, and precedents may be applied to sustain the defence set up on behalf of the impounded sliips. VIGILANS. Janaary, 18G1. * I am indebted to the Timea for the Report of the Trial, extracts, «kc. tl II CONTENTS. CHAPTER I. THE HISTORY, ORIOIN, AND OBJECT OP THE AMERICAN FOKEION ENLISTMENT ACT page 1 CHAPTER II. PRECEDENTS UNDER THE AMERICAN ACT, AND THEIR COMPARISON WITH THE CASE OF THE "ALEXANDRA" 8 CHAPTER III. HISTORY, ORIGIN, AND OBJECT OF THE ENGLISH FOREIGN ENLISTMENT ACT 19 CHAPTER IV. WHAT IS NECESSARY TO CONVICTION UNDER THE SEVENTH SECTION OF THE BRITISH FOREIGN ENLISTMENT ACT 25 CHAPTER V. THE TRIAL OP THE "ALEXANDRA" 30 CHAPTER VI. THE HEARING BEFORE THE FULL COURT 36 ^,jjj ctNTMNTS. CllArTKK VII. ,„:MAUKH on TIIK ARC.l'MKMS FOK AND ACAINST TIIK NKW ^ inice <0 TllIAI ' " CM A ITER Vlll. ftp Tin; .11 Di.MKNT (ii- Tin; iri-i- rOl'UT ' CHAPTER TX. Tin', LKlTKItS OF " IIISTORU'US" ^'' CHArTKU X. 110 CONCLUDINU KKMAKKS FOREIGN ENLISTMENT ACTS. CHAPTER I. THE TIISTOUV, OHl(;iN, AND OBJECT OF THE AMERICAiN FOREIGN ENLISTMENT ACT. kl:\ rpHE early clays of the American Republic were 1 constantly troubled by questions of great diffi- culty. Frequent threats of secession, and actual insurrections at home, with foreign complications arising from the several treaties into which the young Confederation had entered, made the task of government one which few but a Washington could have successfully encountered. The great continental war then raging between England and her allies on one side, and France and her satellites on the other, rendered the existence of these treaties doubly perplexing. France, to whom the United States owed so much for their valuable and timely recognition and assistance, had fastened upon their Government a Treaty, an article of which forbade the enemies of France fitting out privateers in American ports. B FOREIOxX tNLISTiMENT ACTS. M. Genet, the Minister of the French Republic to the United States in 1 793, sought to interpret this article as allowing French privateers to be fitted out in those ports, and insisting on such an inter- pretation, he, on his arrival at Charleston, and before he liad even given in his credentials to the President, authorized the fitting out and arming of vessels in that port, enlisting men, foreigners as well as citizens, and giving them commissions to cruize and commit liostilities against England, a State then at peace with America. The United States Government, of course, resisted any such interpretation of the Treaty, and asserted that whilst refusing the right to fit out privateers to any enemy of France, the article in question " did not give permission, either expressly or by impH- cation,to France herself to fit out such ships against a power which, though hostile to France, was at })eace with the United States." M. Genet, however, Avas ill-satisfied with such a view of the position, and, doubtless thinking that a sense of gratitude for past favours would cause the United States to grant to France what she persistently refused to other nations, continued to press his case, and, inrjed, to proceed with his enhstments. But Mr. Jefferson, the American Secretary of State for Foreign Affairs, seeing to what compHcations such a line of policy would inevitably tend, resisted all HISTORY OF THE AMERICAN ACT. 3 tho threats and bombast of M. Genet, and sent orders to the American Minister at Paris to demand the recall of that gentleman. Meanwhile, Washington made an appeal to Congress in a most memorable message, which elicited the marked admiration of Mr. Fox in the House of Commons, and obtained as its result the passing of the first Foreign Enlist- ment Act of America, of which the 3rd, 4th, 6th, and Uth sections, being those which immediately concern the equipment of ships, aie here given. The 3rd section is — If any person shall, within the limits of the United States, fib out and arm, or attempt tu 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 cruize 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 em- ployed as aforesaid, every person so oflFending shall be deemed guilty of a high misdemeanour, and shall be fined not more than $10,000, and imprisoned not more than three years. The 4th section is — 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 pi'ivateer, with intent that such p 9 FOliEKliN ENJ.lSTMEiNT ACTS. ship or vessel shall be employed to cruize or commit hostilities upon the citizens of the United States or their property, or shall take the coiuniand of, or enter on board of any such ship or vessel for the intent iiforesaid, or shall purchase any interest in any such ship or vessel, with a view to share in the profits thereof, such person so olfendiug shall be deemed guilty of a high misde- meanour. Tlie 5tli section is — 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 the 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 peoi^le, or belonging to the subjects or citizens of any such Prince or State, colony, district, or peoi)le, 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 j>eaoe, 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 otteuding shall be deemed guilty of a high misdemeanour, shall be fined not more than $1,000, and be imprisoned not more than one year. The lltli section is — Tiuit the collectors of customs be and they are hereby rospectively authorized and reipiired to detain any vessel mani- festly built for warlike purposes, of which ths cargo shall princi- pally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it I>robable that such vessel is intended to be employed by the owner or owners to cruize or commit hostilities upon the subjects, •:itizens, or properly of nny foreign Prince or State, or of any HTSTOm' vF THE AMERICAN APT. 5 colony, diatiict, 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. Such, then, are the history and origin of the American Act of 1794, which was superseded by an Act of 1S18 ; though its provisions w^ere all incorporated in that new Act, the wording of which is nearly similar to our statute, which is, indeed, all but a copy of its predecessor in the United States. We have clearly seen that this Act of America was passed by Congress at a time of considerable political difficulty ; and that though it was an extreme measure to be directed against a country to which America owed so much, yet it w^as demanded as a means of putting a check upon the French arma- ments of that day in United States ports ; as a vindication of their neutrality between the bellige- rents ; and, lastly, as a step to render illegal for the future all enlistment of American subjects to aid a foreign war, and the equipment and armament of any ship with a like personally hostile mtent. It will be observed that the offence of M. Genet, lead- ing to the passing of this measure, was that of enlisting American citizens for land and sea service, and fitting out and arming vessels in United States ports, and also providing commissions for such ships. No offence of either buying or building ships was alleged against M. Genet, and the actual orais- •vr. FOREIGN EXLTSTMENT ACTS. m sion of all reference to such acts in the statute can lead to but one conclusion. That the authorities did not deem such dealings calculated to lead to such complications as had arisen from the trans- actions of M. Genet; and that they, therefore, decided to consider them as legal, and exempt from prohibition. Obviously, also, M. Genet, being in haste to form his expedition, could not have waited for the build- ing of vessels, and, doubtless, selected those ready with crew and commander, and which would therefore require simply armament and commissioning. And so building being entirely out of the question, the chief commercial element was, doubtless, considered to be wanting to the transaction in the eyes of the United States authorities. The omission of any prohibition to build or sell a ship in the Acts both of England and America is very important, and a circumstance to which I shall again have occasion to refer. I will only further say of the acts of M. Genet, that had the present American statute been then in existence, every one of its clauses would have been violated by him. The enhstment of American sub- jects, and the equipping and arming of French vessels in American ports, are evident violations of its letter and spirit. Neither of such transac- tions has the shadow^ of any commercial aspect. HISTORY OF THE AMEHICAN ACT. and both have for their distinguishing feature the personal engagement of American subjects in a war with a State at peace with America. Had this personal engagement of American citizens and ships been dispensed with, had the French Minister con- tented himself with employing agents to purchase ships even equipped and armed, and had those agents dispatched the ships from the United States ports as a mere act of commerce, is it too much to assert that no interference of American authorities would have taken place, and that further and more mischievous enterprises must have been attempted before such a measure as their Foreign Enlistment Act would have been passed into law? But the position of the chief offender, the personal engage- ment of American subjects, and the combination of armaments in the United States, left the Govern- ment clearly no alternative but that of arresting now and for the future acts which had but one aspect, that of belligerent intent, and entirely lacking the least appearance or evidence of any commercial transaction. FOREIGN FA'IilSTMKNT ACTS. CHAPTER IT. rflKnEDEXTS UNDER THE AMERICAN ACT, AND THEIR COMl'ARTSON WITH THE CASE OF THE "ALEXANDRA. >» TT seems to be admitted on all sides that as there ■*- has been no conviction sustained, nor indeed any case fairly brought to trial under the 7th section of our Foreign Enlistment Act, so there is no guidance for our judges in the shape of precedent under our Act. As it is also understood that our statute was formed by its framers on the American model, it is only fair to assume that American precedents are therefore of the greatest importance to our judges as beacons in waters not navigated by any of their predecessors. It says much for the adventurous character of Americans, that they, inhabitants of a country so vast, and offering such manifold oppor- tunities of inland occupation, should have betaken themselves so freely to naval risks, and have thus furnished beyond any other country such frequent cases of interference in foreign naval warfare. Amongst these numerous records of judicial deci- sions are one or two bearing immediately on the case before us. There is the decision on the Saritissima Trinidad PRErEDENTS UNDER THE AMERICAN Af'T. in the Supreme Court, which is very important, and well worthy the careful consideration of those wish- ing to ascertain what was deemed legal and what illegal under the Act in the- Courts of America. This vessel was originally built and equipped at Baltimore as a privateer during the war between this country and America, and cruized against us. When peace was declared, she changed her rig and was sold by the then owners. In 1816 she was loaded with a cargo of warhke munitions by her new owners, who were American citizens, and being armed with 10 or 12 guns, which were a part of her original armament, she was sent from that port, under the command of the captain, Chaytor, osten- sibly to the North- West Coast, but in reality to Buenos Ayres, a colony then in rebellion against the mother country, Spain. The supercargo had written instructions authorizing him to sell the vessel to the Buenos Ayres Government for a suit- able price. She arrived at Buenos Ayres, having sailed under the protection of the American flag, but not having committed any act of hostility on the voyage. At Buenos Ayres she was sold to Captain Chaytor, then commanding her, and soon after- wards assumed the flag and character of a public ship-of-war, and was understood by the crew to have been sold to the Buenos Ayres Government. Captain Chaytor made the crew acquainted with 10 KORRIGN KNfJSTMENT ACTS. these facts, and informed them moreover that he had become a citizen of Buenos Ayres, and had received his commission to command the vessel as a national ship, and immediately invited the crew to enlist in the service, the greater part of whom enlisted accordingly. Here, then, was a ship built and equipped and armed in the United States jurisdiction, manned and commanded by American subjects, and with a cargo of arms and munitions despatched from a United States port, with an ostensible destination to the North-West. She changes her course, however, to Buenos Ayres, then a belligerent State, where she is sold to a belligerent Government, and where her commander and great portion of her crew enlist and are commissioned in the service of that State, with the intent of their taking personal part in the hostilities then prevailing between the colony of Buenos Ayres and the parent country. Compare this case with that of the Alexandra, a ship in an incomplete state, without guns or any proof of the intention to mount guns, and without crew or commander. Then let us ask ourselves which offence corre- sponds in the intent and equipment to those cases of personal engagement in hostilities which, as we have seen, led to the passing of the English and American Foi'eigii Enlistment Acts ? PRECEDENTS UNDER THE AMERICAN ACT. 11 If the equipment of the Alexandra merited the term warlike and its consequent penalties, what description will apply to that of the Santisaima Trinidad ? If the intent of the Messrs. Sillon, the claimants of the Alexandra, was one of a practically hostile nature, what legal epithet or penalty can fitly apply to the American owner, Captain Chaytor, and the crew of the Santissinia Trinidad? If the owners of the unarmed and unequipped Alexandra, in selling her clean-handed to the belli- gerent, are guilty of misdemeanour, are the owners in the American case quoted guilty of no greater crime in actually transferring to a belligerent service a fully-armed and American-manned ship-of-war ? Does this Act, in its very limited language, provide for two such extremely diverse cases ? Let us read the judgment of the Supreme Court in this case, where it is alleged by the owners of the ships captured by this vessel, that such captures were invalid, on the ground of the original illegal equip- ment of the cruizer : — " It is apparent," said Mr. Justice Story, in delivering the judgment of the Supreme Court, " that although equipped as a *' vessel of war, she was sent to Buenos Ay res on a commercial " adoenture, contraband indeed, but in no shape violating our laws " or our national neutrality. If captured by a Spanish ship of " war during the voyage, she would have been justly condemned " as a good prize for being engaged in a traffic punishable by the " law of nations. But there is nothing in our laws, or in the laio "of nations, which forbids our citizens from sending armed vessels, f! H fl 12 I'OKKKIN KNLISTMKNT ACTS. "aa well as munitions of war, to foreign ix-rts for palff.' — 7 Whoaton Reports, [>. 283. A later judgment of the ssinio Siipreinc Court, in 1832, in the case of a vessel called The Bolivar, otherwise has Damas Avf/cntinas, is still more con- clusive. That vessel had been fitted out and equipped at Baltimore by the defendant, John D. Quincy, and sailed from that port to the island of St. Thomas, in the West Indies, the owner and equii)per, as ho averred, intending when he left Baltimore to go in search of funds, with which to arm lier and prepare her for a cruize as a privateer. Mr. Justice Thom- son, in delivering the opinion of the Supreme Court to the effect that the jury ought to be instructed that the defendant was not guilty, if it should bo of opinion that this averment was proved, said : — " The offence consists principally in the intention with which the " preparations are made. These preparations, according to the " very terms of the Act, m\ist be made within the limits of the " United States ; and it is equally necessary that the intention " with respect to the employment of the vessel should be formed " before she leaves the United States. And this must be a fixed " intention, not conditional or contingent, depending upon some "future arrangements. This intention is a question belonging " exclusively to the jury to decide. It is the material point on " which the legality or criminality of the act must turn ', and "decides whether the adventure is of a commercial or warlike " character. The law dues not prohihit armed vessels belonging to *^ citizens of the United Slates from sailing out of our ports : it only " requires the owners to give security (as was done in the present " case) that siich vessels shall not be emphyed by them to commit FMMil'KDENTS UNDKIt THE AMEUKJAN ACT. v\ '■ lioHtilities AgaiuHt foreign Powers at peace witli the United States. " Tlio colhcturs are not authorized to detain vessels, althouyh inani- "ffdljj built for warlike purposes, and about to depart from the " United States, unless circumstances shall render it probable that •' such vessola are intended to bo employed by the monera to commit "hostilities against some foreign power at peace with the United *• States. "All the latitude, therefore, necessary for commercial purposes " is given to our citizens, and they are restrained only from such " acts as arc calculated to involve the country in war." This case is even more to the point than the pi'eceding one. Hero is a sliip fully equipped and manned with an American crew ; she sails out of an American port with the avowed intention of pri- vateering, not certainly at once, but at a date of a very indefinite nature. Here was the equipment [)i'oved and the ultimate intent avowed, in fact, a far stronger case than is presented in the meagre details attempted to be proved against the Alexa7idra, and yet we find recorded an acquittal on the ground that the actual present intent was not hostile. The intevi of the owner at the time of sailing was the thing to be ascertained as vitally essential to conviction, and that present intent, in spite of an averred future intent of hostile employment, was deemed harmless. Now, what present hostile intent resides in the minds of the present owners of the Alexandra ? What practical and personally hostile intent have they ? Are they masters of the intent to cruize or commit hostilities ? The Attorney- 1 1- I (• " f ' ' 1 u FOUEUJN KNr^lSTMKNT ACTS. General allowed that he consulered the Confederate Government as masters of the intent to cruize. But the Confederate Government cannot be reached by our Foreign Enlistment Act. It is but municipal, and applicable therefore to those oidy within our jurisdiction. But, says the Attorney-General, they have agents. Well, then, why are they not the objects of the prosecution, instead of those who merely follow their ordinary avocations of building, fitting, and equipping, all of which transactions are of a purely commercial nature? But these very agents are here only on a commercial errand, which may be designated as for the purpose of buying and in some measure superintending llie building of ships. Granted even that Captain Bullock was eventually to command the Alexandra, — till that command was taken up, he could be guilty of no act hostile to any State. And, therefore, had the Alexandr i when fitted and equipped sailed from our ports under the English flag and under English command, changing that flag and that command when beyond our jurisdiction, — what is the nat re of her action, different to that of the Santissima Trinidad auu Bolivar, that the one should be guilty and the othe>;- innocent? The owners, Messrs. Sill on, and oth( i.,5 v ^.» are Uefendants in the action, would be ankad M\oir intei^t, and security would be demanded of them that thcf/, the owners, did not I'KEC'KDKNTS UNUKU THt AMKUKAN ACT, 15 iiitoiul committing hostilities. Tboy would when hoyond our jurisdiction transtbr tiitMr charge to the (youfodoratc authorities, who would llion hoist the Confederate flag (constituting, according to the best authontijj;, :i perfectly valid commission), and the sl)i;i woiilu I ten be the public ship-of-war, with all lior ri<^:)it8 of capture in possession. The English HuJire in the transaction would have been that of I)uil(llri ( and equipping for sale; the builders might iijive had certain sympathies, but let the fact of a sale be proved, and their commercial and therefore innocent intent is beyond all doubt. The Acts of both countries were undoubtedly framed to prevent and prohibit overt acts of war by subjects against a State at peace with their Government, though at the same time every commercial transaction was to be free and unfettered even with belligerent states. These municipal statutes were to control the subject and prevent him being found either on land or at sea acting against a friendly State. But if the result of commerce was to put a belligerent in possession of a ship, the neutral could not be complained of by the other belligerent. If a war does not hinder, but much animate the trade of a neutral in warlike munitions, why should not the trade of a neutral in ships receive a like stimulus ? That Mr. Huskisson, the colleague of Mr. Canning, considered such a trade lawful, is evident from his :r 16 FOHEIUN KNLISTMENT ACTS. language in the House of Commons dunng debates on the subject. Tliose precedents, however, distinctly show that the American judicial view of the law was this : That their subjects might sell ships-of-war to belligerents, and that every commei'cial transaction in ships was allowed; the things to be prevented and prohibit k1 being personal service on board such ships, and the adding to the armament or warlike equipment of any belligerent vessel. ' * There is one more case to which I will refer, because important in connection with a certain charge made against the constri^ction of the Alexandra. It was said that her bulwarks were stronger than usual in yachts or merchant-ships, and that she had two or more ports cut. The claimants of vessels captured by the ship The Brothers resisted the right of capture in the American courts, on the ground that The Brothers had had her armament augmented in an American port. It was proved and admitted that the ship had come into port, and bad her waist repaired and two new ports cut in it. The Court, however, decided that this was not a sufficient alteration to render her guilty of a vio- lation of the Act, and therefore condemned the captures. These three important precedents have been naturally made available by the defence to prove Avhat range of freedom in dealing with belligerents I'KRf'EDENTS UNDER THE AMERICAN ACT. 17 has l>ecn allowed by the American courts. The [)rosecution attempted to reduce the importance of those cases in the eyes of the judges by asserting that they had been made too much of by their opponents. But I think that if these cases are to bo slighted, it is equivalent to ignoring entirely the value of American precedent. But if, as I venture to think, precedents are generally eagerly looked for and embraced as guides to present proceedings, the value of these particular cases cannot be overrated. The veiy expression in the case of the Bolivar, that " all latitude necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the covmtry in war," seems to me to contain the essence of the judgment in the case. Apply these remarks, as in common fairness they should be applied, to the case of the Alexandra, and allow commerce to have its sway, interposing with m-officio authority when commerce ceases on the part of the subject, or of those within our juris- diction, and such persons by personal interference in hostilities do that which, according to the preamble of the Act, " may be prejudicial to, and tend to endanger the peace and welfare of the kingdom." America saw fit, during all the wars which found her neutral, to avoid passing in her judgments any hindrances on the commerce in ships of her sub- % !• %' lift, { 18 FOREIGN ENLISTMENT ACTS. jects. In tlie two cases of the Samtissima Trinidad and tlie Bolivar^ where, short of actual hostilities, the points in evidence were as strong as could be ; the commercial act intervening in the one, and the absence of actual and personally present intent in the other, secured acquittal. Wliy is the law, the identical law then in action, to be now strained, if not indeed perverted, against our subjects at the instigation of the partizans of those whose judges have left such decisions on record ? Let our com- merce be as free as theirs then was, and let official interference be stayed till such time as offences are perpetrated similar to those which brought the Acts of England and America into being. IIISTIIKY OF TITK RXOI.TSIT AtM'. 19 n CHAPTER Til. HISTORY, ORIGIN, AND OBJECT OF THE ENGLISH rOFJEIGN ENLISTMENT ACT. /^IJR English Statute, like its predecessor the Act ^ of America, had its origin in certain doings of our subjects, which were so evidently acts of open war against a friendly Power, that no government could fail to see the necessity of stopping such proceedings, which if passively allowed by it would have had the effect of placing this country in a most anomalous position. Wliilst the Government would have been nominally and indeed really at peace with Spain, its subjects would have been carrying on a war with that country by evincing active sympathy with her rebels and supporting that sympathy l)y armed expe- ditions. In 1817 the Spanish colonies in South America were in rebellion against the mother country. Great sympathy existed in this country with that rebellion, and the assistance rendered by our subjects was soon of so open a character as to lead to remonstrances from Spain. We added an article to the Treaty of Friendship of 1814 with that country, binding ourselves to take •I. ■^i 20 rOUKlGN KM.LSTJIKNT ACTS. I t ■! ''i stringent measures to arrest this assistance from British subjects. To give effect to this article a proclamation was issued forbidding the furnishing of supplies to both belligerents, i.e., Spain, and her coloTjists who were now in such force as to possess the character of a Government de facto. In 1818, however, great doubts arose as to whether the muni- cipal laws of Great Britain then in existence ap- plied to Governments which were unacknowledged amongst the Powers of the world, and whether British subjects granting assistance to the colonists were liable to the penalties named in the statute law. It became necessary, therefore, to remove all doubt in the matter by remodelling the laws then existing. Another object was also to be obtained by so doing. Under the old common law the offence of enlisting in foreign service without licence was punishable with death. The severe nature of the penalty caused juries to view with great clemency parties charged imder the statute, and no convictions w^ere therefore sustained. The severity of tlie law was thus the bar to its enforcement, and to modify this, and introduce a clause applicable to imacknowledged Powers, was therefore the aim of our legislators. In 1819 the new Foreign Enlistment \cf was passed. With its general features the reader is doubtless familiar, and it will therefore be sufficient for my purpose to give at length merely that section which bears on the cases in point. HISTORY OF THE ENTJLISU ACT. The 7th section stands thus :■ 21 1^ I * . " 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 licence of His Majesty for that purpose first had and obtained as aforesaid, 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 of any person or persons exercising or assuming to exercise any powers 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 cruize or commit hostilities against any Prince, State, or potentate, or against the subjects or citizens of any Prince, State, or potentate, or against the pei'sons exercising or assuming to exercise the powers of govern- ment 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 HisMajoaty'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, any such person soofiending shall be deemed guilty of a misdemeanour, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprison- ment, 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 oflScer 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 and navigation, to seize I !. 'I; m 22 t'UKElGN HNhlS'niENT ACTS. such ships and vessels aforesaid, and in such places and in such manner in which the otlicers of His Majesty's Customs or Excise and the oflicers of His Majesty's navy arc empowered respectively to make seizures under the laws of Customs and Excise, or under the laws of ti'ade 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 con- demned in the like manner, and in such courts as ships or vessels may bo 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. Tlio difference between tliis clause and the Equip- ment clause in the Amei'ican Act is more grammati- cal than substantial, consisting of the position of the word " shall," which in the American Act stands, " If any person shall," &c., and not, as in the Eng- lish Act, after " If any person in any part of the United Kingdom, or in any part of His Majesty's dominions beyond the seas, xhall,'' &c. This dis- tinction is so far important as making it appear that one Act demands as necessary to conviction that the person shall be within the jurisdiction when he commits the offence, whilst the other would require specially that the offence shall be committed within the jurisdiction. But as it is evident that the per- son and the offence must be coupled, it follows that conviction in either case could only ensue when both [)erson and instrument of offence were within juris- diction, thus rendering the position of the word " shall " of merely minor consequence. The demand I HISTORY OF THE ENOLISH ACT. 23 (or onr Act then clearly arose from the necessity of stopping certain personal engagements of our sub- jects in foreign wars. The words of that able statesman, Lord Castlereagh, in the debate that ensued on the question, put before the House a state of things too plainly calling for instant interference. " Not only officers in small numbers went out to join the insurgents' corps, but there was a regular organization of troops, regiments regularly formed left the country, ships of war were prepared in our ports, and transports were chartered to carry out arms and ammunition." Here was that combination of armaments of which Mr. Canning spoke when referring to the complaints of Turkey, of the assistance given to the Greeks by Lord Cochrane. But in the offence to which Lord Castlereagh alluded there were no allegations of sale or building, but positive personal interference in war by the subject, and as the Act passed to suppress these very interferences in war by the subject con- tains no reference to selling or building, we may again fairly draw the inference that such acts were not designated as illegal by the framers thereof, either because not present to them in the offences aimed at and complained of, or because they were not deemed of sufficiently hostile a nature to demand prohibition. And let it be observed that in none of these offences which so plainly called for suppression at ■:svt, 24 rOUElliN LNLISTMKN'l' ACTS. the time ol' tlio j)iissiii^ of the iiiejisim* was there the faintest ti'aco of any commercial transaction. Enlist- ments, j)ei*sonal eciuipment, and the arming and com- missioning of ships were the acts indicated as taking place, and as being calculated to draw tliis country into actual war. There is peculiar significance in the fact that the causes of the origin of the English and American Acts were identical. They may be described as having been in both cases brought about by the pergonal participation in liostihties of subjects who, in regiments and on board ships, formed asub- stanli.J aid to those warring against a country at [)eace with their respective Governments, and in which expc'ditions no element of a commercial trans- action could be descried or pretended. Is sucli a state of tilings before us now ? Had the present transactions — those o? sale of ships to belligerents — been the only ones in those days, should we have had in 1818 and 1819 two such Acts passed in America and England as those now the subject of such fre- quent reference ? Ascertaining thus from debates and ])recedents what were the intentions of the framers, do not our Government unfairly strain, nay seek to misinterpret, to the disadvantage of many of our subjects and the weaker side in the war, these measures, which Avcre passed to suppress a far greater and very difterent source of aid to a belli- gerent ? UIIAI' Will, CONVICT UNDEU TlIE SEVKNTII SECTION. 25 CHAPTER IV. WHAT IS NECESSAIIY TO CONVICTION UNDER THE SEVENTH SECTION OF THE 15IUTISH FOREIGN ENLISTMENT ACT. rnilREE things must of necessity be proved against -L any one indicted under the 7th section of this statute ere conviction can be said to be established. Ownership, equipment, and intent must be conclu- sively shown to exist in the person of any one charged with committing the misdemeanour ; and these facts must be proved conjointly, inasmuch as ownership or ownership with equipment, but without intent, is clearly no offence under the statute. "To equip with intent" is prohibited, and not simply to equip. What then can be the position of one who equips and s(ills to a party who then carries out the hostile intent ? If to equip with intent to employ in foreign service, or with intent to cruize, is the actual offence aimed at, and which plainly assumes the personal cno-agement in hostilities of the equipper, and pre- sumes the absence of any commercial act on his part, then how, under the same statute, can it be said to be an offence of an equally grave nature to equip with intent to sell, indifferent as to the use made of the ship equipped ? If a person can buy a 20 rOlM'MiA' MNLISI'MllM A» 31 I liaron who tried the case said, prior to the verdict, that he would accept any bill of exceptions that was tendered ; but when they were handed to him, he found that in them was asserted that he had laid down the law, and that erroneously, and that under his rulinp^ the jury had returned their verdict, and that thus the Government were entitled to a new trial, on the grounds of misdirection and on omission of direction on certain points. The Lord Chief Baron replied that he had distinctly avoided laying down any law on the point to the jury, but had put the question of law to them in the very words of the Act. He refused to receive such a bill of exceptions ; and after an animated discussion, it was decided that counsel should be heard on both sides to show cause why a new trial should or should not be held. After five days' argument the case was again adjourned, the judges taking time to consider their judgment. On the actual trial the weakness of the prose- cution was evident from the first. This was not, it must be remembered, an ordinary ex officio prose- cution originating with the Government ; it was, on the contrary, a case of the North pitted against the South. The Emancipation Society and other par- tizans of the Federals set themselves to work to find out and even invent information concerning these ships ; and to procure even this doubtful evidence, they were compelled to have recourse to the services 32 FOriEION ENLISTMENT ACTS. I of the worst class of informers, and even with such aid they received from Earl Russell direct assertions that they had but furnished him with the most insufficient data to go upon. This, then, was essentially an aggressive prosecution by a certain set of partizans against shipowners and builders who in their ordinary trade and avocation had provided the South with ships. Such a prosecution to be successful should ever have witnesses in support of it who can stand reasonable scrutiny as to character and antecedents in the witness-box. Love of fair play has always so much weight (thank God ! ) with an English jury that they are ever prepared to give the prisoner, or weaker party, the benefit of tlie least doubt. None can deny that from the loose manner of giving evidence, and the generally in- credible nature of that evidence when given, of some of the most important witnesses, tliose doubts were presented to the minds of the jury. There were witnesses only on one side, that of the prosecution. Four of them were discharged or discontented work- men previously employed in yards connected with the defendants; one was a confessed spy of the worst order; one was the notorious informer who had been Federal, Confederate, and Federal again, and in each case for the sole sake of filthy lucre, and had called down from Sir H. Cairns the well- merited declamation of that learned gentleman. The I THE TRIAL OF THE " ALEXANDIJA." 3i5 ons lost was tain who ided o be )rt of . acter f fair witli give Df the ! loose lly in- >f some bs were •c were 3Cution. d work- ed with of the ncr who i\ again, Licre, and ;he well- nan. The remainder were highly respectable witnesses, whose evidence, however, was of a purely technical and comparatively immaterial nature. Sir Hugh Cairns, scorning the attendance of witnesses, depended entirely upon the strength of his arguments, founded, as he knew they were, upon precedent, law, and justice. The weakness of the prosecution, of which he was well aware, was as good to him as a dozen valuable witnesses on his side. The Lord Chief Baron summed up, remarking, " that it was admitted that the vessel was not " armed, that the question, therefore, was whether " the preparation of this vessel in its then condition ** was a violation of the Foreign Enlistment Act, " and whether under the 7th section the vessel as " then prepared at the time of seizure was liable to " seizure. He protested against the doctrine that " no man is to be convicted of any crime if there is any possible solution of the circumstances by an imagination of his innocence, but that there must " at all times be a thorough sober persuasion and satisfaction with respect to the guilt of the party accused, and undoubtedly you must act upon " proof, and not upon suspicion." His Lordship then read passages from Storey and others, showing that " when two belligerents are carrying on war " a neutral power may supply, without any breach " of international law, and without a breach of '\: ? (t ii It C( D 34 FOh'KI<;N IINLISTMENT APTS. if J I ;r'j 'i fit. I., , ) ill; (< (( (( (( (( (( (( (( (C (C <( it a (( (( (C <( (( (( C( (( i( (C <( <( (( (( the Foroi^-n Enlistment Act, munitions of war, g-unpowdor, every description of arms, everything in fact, that can be used for the destruction of human beings." " Why," said his Lordship, shouhl ships be an exception ? I am of opinion in point of law they are not. The question I shall put to you is, whether you think that vessel was merely in course of building in pursu- ance of a contract that was perfectly lawful, or Avlictliei' there was any intention in the port of Liverpool or any other port of England, that the vessel should bo fitted out, equipped, furnished, and armed for purposes of aggression. Surely, if Birmingham may supply munitions of war of various kinds, why object to ships ? Why should ships alone be in themselves contraband ? I asked the Attorney- General whether a man could not lawfully make a vessel intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it ? To my surprise the Attorney-General declined to give an answer to the question; which I think a grave and ])cr<:inent one. Eut you, gentlemen, are lawyers enough, T think, to know that a man may make a vessel and offer it for sale. If a man may build a vessel for the purpose of offering it for sale to (Mthcr of the belligerents, may ho not execute an order fo]- it ? That appears to me to THE TRIAL OF THE " ALEXANDILV »> :]5 " bo a matter of course. The Alexandra was clearly " nothing more than in the course of building ; if " you think, therefore, that the object really was to " build a ship in obedience to an order, in compli- *' ance with a contract, leaving those who bought it *' to make what use of it they thought fit ; it " appears to me that the Foreign Enlistment Act " has not been broken, but if you think that the " object was to furnish, fit out, equip, and arm that " vessel at Liverpool, that is a different matter." The jury immediately returned a verdict for the defendants. f m :]r) FOREIGN ENLISTMENT ACTS. CHAPTER VI. THE HEARING BEFORE THE FUl-L COURT. OIR HUGH CAIRNS first drew attention to what ^ he deemed the proper construction to be placed upon the Act, then to the evidence in the case, and lastly, to the charge of the Lord Chief Baron. He recounted the history of the Act, quoting Kent's Commentaries on the question of dealings in con- traband by neutrals with belligerents ; and on the question of overt acts of hostility by belligerents within neutral territorv, and referred to this latter subject to refute the assertion of the Attorney- General, who, when the Lord Chief Caron gave it as his belief that the statute was partly passed to obviate the possibility of two ships belonging to two belligerents being equipped in one of our ports, and commencing hostilities within our waters, stated that " such a state of things had never entered into the mind of any human being." Sir Hugh Cairns showed by these quotations that Lord Stowell and Chancellor Kent had both taken into consideration such a probability. He then referred to the history of the American Act, which lie said was taken by our legislators as THE IIEAKING BEFOUE THE FULL COUllT. :37 a model. He stated iit length what were the different sections of the American Act. He referred specially to the 3rd section as corresponding with our 7th ; to the 5th, forbidding the augmenting of the armaments of a ship of war in the service of a belligerent State. He then passed to the 11th section, which autho- rizes the collectors of customs to detain vessels manifestly built for warlike purposes, " when their cargoes shall consist of arms and munitions of war, or when the number of men shipped, and other circumstances, make it probable that the owners intend to employ such vessel to cruize or commit hostilities." He then cited a case in Bee's Reports, page 76, where the ship Brothers, a privateer, after an action at sea, goes into an American port, is refitted, and has a new waist and two new ports cut, but which the judge decided was no sufficient alteration within the meaning of the Act to render her captures invalid. Sir Hugh then quoted Kent, vol. i., p. 122 : — " The Governtnenc of the United States was warranted by the "law and practice of nations in the declarations made in 1793 " of the rules of neutrality, which were particularly recognised " 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 sei'vice was unlawful, and no such " vessel was entitled to an asylum in o ir ports. The equipment " by them of Government vot^sels of war, in matters which, if done ill :5« KolUHCN KNMSTMFNT ACTS. !•:;:'! " to otlior vessels, would l)e eiiimlly apjilicalde to commerce or " war, was lawful. Tlie ecjuiprncnt by tliom of vessels fitted " for iiiorcliandiHo and war iuid aiii)lic!d)Io to either was lawful, but " if it were of a nature solely applicable to war, it wa-s unlawful. " A nd if the armed vessel of one nation should depart from our "jurisdiction, no armed vessel, being within the same and belofg- " iug to an adverse belligerent jiower, should dej)art until twenty- " four hours after the foruier without being deemed to have violated " the law of nations." This is an authority which will connect us with the whole chain 1 have given, first the declaration and then the Act of Congress, showing that the declaration and the Act of Congress were simply an aflirmance 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 authoi'ities. There was a trial for a misdemeanour under this Act in the year 1795, reported in Wharton's " American State Trials," page 93. The questions were whether there was au 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 ill furnishing, fitting out, and arming a certain vessel or ship called Les Jumemix, lying at the port of Philadelphia. The evidence wont 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 witl^in the meaning of the law. Mr. Justice Pat- teson, 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 priviitoer; the intention must be collected from all the X I I TlIK IIEAIIING BEFORE THE FULL COUKl'. 39 " cii'cninstances of the transaction, which thd jury will iuvostigato, " 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 wavlike 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 con- version of the ship into a ship of war by virtue of those erpiip- uients. 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 oirence, what on earth was the use of the elaborate evidence pro- duced in the case, and the consideration the judge gave to it to show that i-he equipment was of a warlike nature ? because that is the point to which all parties addressed themselves to consider. Sir Hugh then reverted to the history of the English Act. In quoting Alison's "History of Europe " he said : — In the first volume o" his second " History of Europe," sect. 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 M'Gregor M'Gregor, collected a considerable expedition in the harbours of this country, with which, in British vessels and under the Br'tish 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 I 1 40 nJl.'Mir.N KNIJSTMKNT ACTS. nimonstranccrt \>y the Spanwh GoveriitiK'nt, mul in consoqucnco tlie GoveniniPiit brought in a Foreign KnliHtnicnt IVill, which 1(m1 to violent debates in both Houhch 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 Lansdowno had referred to. Having read the extract from Alison, Sir Hugh said, — The same state of things is described by Mr. Canning him- self in these words : — •' What would be the result if the House of Commons refused " to arm Government with the means of maintaining neutrality t " 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 Hon. 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 " Government to interfere with it ? At that very moment such *• was the case in some pai-ts of the empire, and he had little " doubt that in a very short time the practice would be extended *' to London. " 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 Mnjetsty's ports. Not that such vessels l!![i^ TIIK JIEAKINU IlErullE THE TULL COl.UT. 41 " nii;jlit not receive provisions in any port in the British duniiuiouB, " Ijiit the ohjoct of the enactment was to prevent them from " sliipping w trliko stores, such as guns and otlier things, obviously *' iiiid nmnifostly intended for no other purpose than war." This, said Sir Ilii^h, was the evil they had to guard jigainst — a state of things in which they liad the enlistment and the parading through ihe streets of men in military assemblage, and the sujiplying of ships with equipments which are of a warlike character, guns, and matters ejusdem generis, with wliicli the ship would be more or less able to commit hostilities the moment she left the neutral country. Remarking on the absence in the Act of niiy prohibition to build, Sir Hugh said it was a perfectly just assumption that such absence led to the belief that the section intended that prior to ascertaining whether or not the offence of equip- ment had been committed, it should be shown that a vessel existed — that there is a ship spoken of which is to be equipped. He referred to the for- feiture clause as carrying out this assumption. Sir Ilvigh then completely overthrew the argument on the other side, that if a keel was laid down of a kind more or less fitted for a ship of war, such keel would be liable to seizure. This, as he showed, would be absurd, for how could the keel be that equipment or attempt at equipment of a ship spoken of in the Act, when there was in reality as yet no u 12 lOUKIiiN KN MSI' mi; NT A(T(*. sliip tliat, could carry such (Hjuipmcut ? Sir iru^rh tlu'ii, (l\v('llin<^ on tlic fuct that fli(> terms ('(juip, fui'iiislj, fit out, and ai'in, were all ilircrni (jcncrU not «'jn.^(.h'iii (joncrU with ship-biiildiiig, asserted tliut this was further evidence that tlu^ trainers of the Act never intended the i)rohil)ition of shi})-1)uildinjjf. Adverting to the Tcrccira affair of 18liO, hi whicli some Portuguese refugees came to this country, obtained a ship at Plymouth, and having exported, in another vessel, arms and cquii^ments, transferring them to their own vessel when at sea, Sir Hugh re- marked that our Government were then very annoyed at the transaction, and gave directions to shi[)s of war to intercept the vessels and fire on them, whicli was done in the waters of Terceira. Mr. Huskisson, in his place in Parliament, a Minister who had taken a part in the ])assing of the Act, and was, indeed, a colleague of Mr. Canning's, said on that occasion : — " It might be supposed from my right lion, friend'a remarks that " during the fifteen years wo liuve been at peace ouriieutrality had " never before been viohited. Has niy right hon, friend forgotten " the repeated comjilaints made by Turkey, and has ho forgotten " that to these C(nnplaints we constantly replied, ' We will pre- " serve our neutrality within our dominions, but we will go no "further'? Turkey did not understand our ex])lanation, and " thought we might summarily dispose of Lord Cochrane and " those other subjects of his IMajesty who were assisting the " Greeks. To its remonstrances Mr. Canning rejjlied (and my " right hon. friend being then a colluiguc of Mr. Canning niiibt I, .SI' Tin: iiKAiUNc Liiruui': tiiI': rui.L louur. 43 " l)u coiiHiilorud to bo a party tu liis opinioiiH), ' AriiiH luuy luiivo this " ' country an a matter of iiturcliandiHc, and however strong the "' g»M»oriil inconvenience, the law does not interfiiro to stop them. " ' It in only when the elements of ariaainents are combined that they '• ' come within the purvieu of the law, and if that covihination " ' dots not take place iint'd they have left this country we have no " * riyht to interfere with them.'' Those were the words of Mr. " Ciiniilng, who extended the doctrine to steam-vessels and yachts '' tliat might afterwards he converted into vessels of war, and they " appear quite conaiHtent with the acknowledged law of nations." Thcso cases, then, said Sir Hugh, of the Terceira iiffair and Lord Cocliranc's interference in the Greek rt'hellion, are just those instances in which, liad the doctrines now put forward been then held, the (li)vernment would have had the right to interfere, and to prosecute to conviction the offenders. Sir Hugh then referred to the cases of the Oreto and Alabama, and taking that of the Ordo first, said : — ■ 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 npon the view taken of the construction of the Act of Parliament. " The Oreto,'' saya tlie Solicitor-General (Sir Koundell Palmer) in Parliament upon the 11th of Marcli in this year, " was made the subject ot due " repi'csentation only once before she left this country, becauso she " sailed from Liverpool on the 22nd of March, clandestinely, as " did the Alabama, and it was only on thsit same day that a con- " versation 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 " coinniunicated to our Government was given by ]\lr. Adams. He " btuted a CiUic which clearly called for iiupury. The Commis- i 44 FUlil'IGN ENLISTMENT ACTS. " sioncrs of Customs were directed to make an inquiry ; they did *' so, and on the 22iid of February they reported that circuiii- •' stances 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 rumours and suspicions. No further representation was " made, and the Oreto sailed on the 22nd of March. What " then happened ? The circumstances of her departure, and the " contemporaneous representation made by Mr. Adams to our " Government, made it jtrobable that she was really intended for " the Confederate States, and that our officers had been imposed " upon. Still the case was not clear ; ;here 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 appeai'ance of " a delivery of stores, which appeared to be munitions of war " into the Oreto while in oiir waters, althoiigh the case M^as " 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 1 She was tried and acquitted, the evidence not " being sufficient." Now ray observations upon that are these. Here is a state- ment that the Oreto left Liverpool ; that at the time when she left Liverpool she had no wai-Uke equipment on board, but of course, from tha 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, w here she had been said to be going originally. The circumstances were supposed to be '.III! THE IIEAUINli BEFOIJK THE FULL f'OUlM\ 45 fe i sufficiently clear to justify a case made that she was going to he employed by the Confederate powers. What is the course taken ? Do they say, the mere fact that she was able to sail away from T.iverpool — 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 1 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 pro- ceedings against the Oreto was that, short of something that could be called a warlike prei)aration, they could not institute proceed- ings 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 Ist of July the Commissioners made their report to " Lord Russell. They said it was evident tho 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 1 The circumstances dis- " closed 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 abs( ice 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, thotigh a ship of war, she might have formed a legitimate . SI I { r. i 46 FOREICN ENLISTMKNT ACTS. ;!: " article of mei'cliandise, 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 1 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 (l)erhaps not conclusive, but still evidence sufficient 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 move than that, she did not receive anything which oould 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 i)lainer still, because after this statement of the course pursued with regard to the Alabama was made, and before the seizure of the Alexandra took l)lace, 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, 1 find that this statement was also made with regard to the Alabama. The Prime Minister, a fortnight after the st:itement which I have already road, said this— I refer to the 170th vi)laiiie of the Parliamentarij Debates, and to the deb.ito of the 27th of Maroh, 18G3 :— " I have myself THE IIEARIXn r.EFOllE THE FULL COUT^T. 47 " 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 con- sidered the authi . ? an Act of Parliament of this kind, that a ship not fitted Olu. .» .oii 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 coudition is not such as is pointed at by the Act of Parliament. Sir Hugh tlien, after reference to the admission of failure on the part of the Attorney-General to con- nect the guns, assumed to be for the Alexandra, with that ship, went into the evidence depended on by the Crown, that part relating to the intent. He again referred to the case of the TJnited States v. (^ainci/, where — 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 be made according to the Act within the limits of the United States, and that the intention, which must be a fixed one, not ojn- (litional or contingent, should be formed before she left the United States. The intention belongs exclusively to the jury to decide. Tt was the material point on which the Ingality or criminality ^i I.- 48 ronRTON EXLTSTMKXT Af'TS. must tun and decided, whether the adventure was of a commercial or warlike character. N< said Sir Hugh, I will show the view taken of the intent in t' • present case by the Attorney General at the trial. He said the intent must be an intent of one or more, having at the time the means and opportunity of forwarding or furthering such intention by acta. By intent undoubtedly the Act means practical intent. It was for the Crown to make out their case. We maintained at the trial that th« evidence did not support their case. We challenged the credit and credibility of the witnesses examined on the trial, and we had good cause for doing so. The learued counsel went through the evidence generally in the whole case, arguing that it had failed ia every particular. Sir Hugh then went at some length into t^ie evi- dence given by the several witnesses at the trial as well as into the character of that evidence, contend- ing that the major part of it was extremely unsatis- factory, 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 to prove their case with a reasonable certainty. The question of intent was one for the jury, and if they arrived at the conclusion that the intent had not been made out, they were clearly warranted in giving the verdict they had. Sir Hugh then came to the point of the direction of the Lord Chief Baron. From that direction he deduced four propositions : — 1st. That to build a ship as distinguished from ecpiipping, fitting out, furnishing, or arming one, is not an offence under the Act. 2nd. That the Ah.vamh'a was not armed, and that THE HEARING BEFORE THE FULL COURT. 49 it was for the jury to say whether she was equipped, &c., or intended so to be, within the Queen's dominions. 3rdly. That the equipment, &c., must be of a warhke character; and 4tlil3? That it was for the jury to say Avhether tliey coiiLjidered there was any intention to employ the ship to cruize or commit hostihties at all. Sir Hugh then in support of his first proposition quoted the Lord Chief Baron and his charge, who after referring to " Story and Kent," says : — These geutlemen are authorities which show that where two belligerent? are carrying on war the subject of a neutral power may supply to either, withoiit 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 de'-.(;riptiou 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 1 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 pi'esent occasion. It is clear that his Lordship speaks of ships being built, as distinguished from whatever might be meant by equipping, fur- nishinjf, fitting out, and arming. His Lordship says in another jiart 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 E S*' ■; r w ' I 50 I'OKI'KiN KXLISTMKXT ACTS. " said that you rnny not biiilrl ships for the belligorent power " There is iiotliiiig sugg* stod of the kind, and clearly, l>y the •' common law and by tl.f ssages 1 have read to you, surely, if " fiom IJirmingham v'iit, jr otate 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 c*" 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 witli 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 i)roi)er time. His l>ordship, after remarking that he had looked into Webster's " A merican 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 mount by equijjping. ' Furnish ' is given in " every dicti(mary as the same thing as ' equip.' To tit out is to " furnish and supply— as to lit out a privateer ; and I own that " my opinion is that equip, furnish, fit out, or arm, all mean pre- " cisely tiie same thing." There cannot be the slightest doubt that in one sense those four words do mean the same tiling— that is, no person could doubt for a moment that to equiji would include all equipments, and also that equipment 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, ])erhaps, " necessary tliat the vessel shoiduilt and sold to thciCzar being complained of by the Minister of Sweden. Trevor and Parker gave the same o])ini()n in 1713. Tliere (said IMr. Kiirslakc) your TiOrdshipH 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. IJl' tlien said — I want to impi'ess uj)on the Court that on the part of the person who is the owner or conti'oUer for the time being of the vessel, there tnust bo that fixed intention which is mentioned in the case of the " United States v. Qiiincey," and that you must ascertain who is the person who has that fixed intention before you can claim the forfeiture of the 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 abotit the vessel, the Attorney-General saying, " They were all engaged " togctlier, therefore you must assume the intent to be what we " alleged it to be." The Crown must lay hands on some particular person in whom they assume the guilty intention existed which has ren- dered the ship a 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 authoiities. Mr. Karslake then went into the meaning to be attached to the words " equip, furnish, fit out, or " arm." He asked the Court to accejit the construction put upon the section by Sir Hugh Cairns. The learned counsel finished his Tin; IIKAKIN*; UEFUKJ': TllK lUl-I, (UUUT. 55 jirgiiinent by urging tlmt, the direction given by the learned Lord (,'lii»'f r>Hron was a right view of the statute ; that the verdict was ri<,'ht, and tlie j\iry could not have arrived at any other conclusion than they had ; and that the verdict for all the reasons that had lieen brought forward ought not to bo disturbed. Mr. IMellihh, Q.C, followed on the same side. After some introductory observations, ho 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 pur})osea, 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, ai.d to deliver it to the belligerent either here or elsewhere in an unarmed state. The Imilding 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 1 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 jirevent any belligerent providing himself with ships from the jiorts of this country, it seemed extraordinary that they did not in ]ilain 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 unneces- sary 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. T I 56 roKKhIN KNMSTMKXT ACI'S. 11^ Tho Altoi'noy-(iuii(;ral then commenced his argu- ments nnd said : — I will first 'like tlio firgiinient of my learnod friend, Sir Hugh Cairns, niid state to you what T 1kiv(> |)ut down as the difFereut heads of it. First, he says that tho probahlo effect of the statute is to bo dotenuincd <> priori by tho rules of inter- national law. Usually wi: approach the question of the con- struction of a statute by a careful examination of its language and its provisions. If there were a desire to warp the minds of a Court, and withdraw the att«uition of the judges from the language of the provisions of a statute, I could imagine no better method of conducting the ai'gumcnt than in the first instance to enter into able and ingenuous d priori disquisitions as to what may bo the i)robable object of a statute of that description, to refer to some other test than the ordinary one of legal construction, and then go into its history — for that was my learned friend's next point after laying down the probable object. Then, secondly, he says, the history of American and English legislation on the subject confirms this view ; and, when speaking of the history of the legislation, he took a very unusually wide and discursive scope of argument. It is not common in courts of law to hear Parlia- mentary debat<-s I'ansacked, and the speeches of this and that statesman, acMicssed to a deliberative assembly either when a Bill was introduced or under discussion, at other times referred to for the purpose of laying down rides a priori as to what were the objects of the statute, and to what rules of interpretation it is to be squared and accommodated ; that, also, was a course and order of argument to my mind strongly indicative of conscious weak- ness. Then, my learned friend came, thirdly, to the provisions of the statute itself. According to him, tho provisions, rightly inter- preted, confirm the view which he has advanced. They do not reach any case of a ship buUt within the realm for whatever jiurpose, with whatever intent, if her equipments, so far as they are completed, or are meant to be completed, within the realm are ancipitis unus, and not of a distinctive warlike character. Then iiii: iii:,\in\(i HHKonr; tiim i'iii,l (oikt. \m tutiith proposition wafl with roferonco to nuthority. Ho reviewed tho authoritio» in Ainerioa which lio considerod to go to the Hanie point, and ho ret'orred to tlie abHcnco of authorities in Knghind m nogativfdy tondiiig tho same way. Then ho jiistifiod tho ruling of tho Lord C'liiof JBiiron, and of courwo the verdict of tho jury. I puipuae to meet tliat ari,'unient, and ncccHsarily, in onUu' to do it us 1 shouhl dosiro, 1 must follow tho order in which it was prenented, though T have already told your Lordships I ('•) not think it the legitimate ordcu* in which to examine a (juestion of this deHcripti(m ; for I apprehend if, within the four corners of the statute, you get the means of a proper interpretation, you have nothing to do with all those extraneous matters on which my learned friend, Sir Hugh Cuirns, endeavoured to base the wliole or the main part of his argument. Still, my Lords, as I must not assume that within tho four corners of tho statute there may not be that which introduces all or some part of those considerations, and us I know I have to deal with an antagonist of the utmost ability, I of course will pay that deference to his argument that is due to it, and I will endeavour to follow it in the order in which it is stated. My friend read from a report of my motions for this rule as follows : — " It was plain that the object was to preserve the neutrality of " this country, and to enforce it against tho subjects of this country " in matters in which the neglect of it by those subjects :: 'ihe " violation of it here by foreign belligerent Governmentij was " thought calculated to lead to a position as regards foreign " nations which would endanger the peace and weliare of the " kingdom." Your Lordships will perceive that I referred then to the preamble, and grounded my view of the language of it upon that which is within the statute itself. JMy friend's interpretation of this was, in substance, that the object was to enforce the per- formance of international duties ; then he went on to say that therefore international rules would be found to be probably the key to our municipal legislation and to prescribe its limits. Not . t il 58 FuKEiGN i:nlistmi;nt acts. in '■ t.f. ■■ only in 110 such doctiiiic to be found in this passage of luy speech, but it is a doctrine aguinst which 1 have had occasion most strongly to pi-utest in a 8|ieech which 1 made elsewhere; and though I feel deeply the honour })aid to me in referring to anything which has fallen from me elsewhere, yet I cannot help tliinkiiig that it would have been better, and somewhat more consonant with the usual way in which cases are discussed, if anything said in a totally diilerent assembly, and for a totally different purpose, by me, whether right or wrong, had not been referred to in this argument ; but since it has been^said that there was ronie inconsistency between what I said in March and the duty I am disohai'ging now, I take the liberty to say there was no such inconsistency, and that no one who endeavoured with any degree of care to underst.Mid the words which I addressed to that other assembly, feebly spoken as they might be in the defence of the honour and dignity of my country in another place, would see that the whole argument of that speech was to establish the dix'cctly contradictory j)roposition to that of my learned friend on this occasion, and to say that the Foreign Enlistment Act was a mere matter of municipal law ; that it was not the exponent and expression of any antecedent international obligations which we owed to any other foreign Government ; that a foreign Govern ment had a i-ight to expect from us the enforcement of that Act, but only as a municipal Act, and not upon international prin- ciples ; and that the same authority which enacted it might, if it tliought wise and fit, abolish and repeal it, and that no foreign Government whatever would have a right to complain of it if it did, and that which the Foreign lilnlistment Act prohibited was not, according to antecedent rules of international law, a subject of complaint as between Government and Government recognised by established rules, however likely it might be to become a subject of complaint owing to the varying circumstances of politics in different countries. That might be a right or wrong proposi- tion. 1 shall show your Lordships from authorities that that was a true and correct proposition according to the best American Tin: llEAli'LNU BEFOKE THE FULL COUUT. 59 writers, and according to tlie decisions in their courts ; but certainly that is a projiosition diametrically contrary to the fundamental proposition of my learned friend's argument, who says you are to squai-e the interpretation of this statute by what lie assumes to have been the obligation of this country to belligerent Powers. I say there was no such obligation, and that it is a total misinterpretation of the municipal law to say that thei*e was any State in the world which, according to the settled and established principles of international law, could have required this country to prohibit those things which were prohibited under that statute. I may be right or wrong in that, but certainly I am not inconsistent. I may say here, in order that I may not be obliged to advert again to a subject to which I advert at all unwillingly, that any one who reads my speech will find that in it, rightly or wrongly, it was stated to be the opinion of the advisers of the Crown that the Alabama had offended against this Act of I'ai'liament, and should and would have been detained had she not prematurely escaped ; and further, there was a statement of ojjinion which the speaker at all events entertained, of the con- duct of those merchants who made themselves parties to such acts in violation of the law of their own country, calculated, if not to involve the British Government in hostile relations, at least to disturb the amicable intercourse between this country and other Powers. Therefore I am not doing that which I hope no man in niy position would do — endeavouring to obtain a verdict of forfeiture against a subject upon grounds of law which were not honestly and sincerely believed to be just and sufficient by the Government bringing forward those grounds. Most fallible those who entertain tliat opinion may be ; your Lordships are the judges of that. "We have not been guilty — I have not been guilty, in the position in which I stand, nor was my j)redecessor, of an act so unworthy of the office we fill, as to bring forward a case of this description, except on grounds which we ourselves believed to be sufficient. The learned Attorney-General then proposed to go into an examination of the rules of International Law, which had been ': ■ ■ I !:1: m pft^ GO foi:kic;n enlistment acts. ^4| i.i U ll,^ij;|- used by the other side as a guide to the interpretation of the statute. They had referred to doctrines laid down by different international writers as to the right of subjects of a neutral State to carry on a trade with either one or other of both belligerents. It was said that the interpretation of the statute must be approached with the hypothesis that it was intended not to interfere with that right primd facia. Then it was said there was a rule which pro- vided for the inviolability of the neutral territory by any proximate or immediate act of war on the part of a belligerent, or the sub- jects of the neutral State instigated by a belligerent. For this the case of the " Twee Gebroeders," in 3rd EobinsorCs Admirally Cases, had been quoted. That case was an illustration of the settled principles that it would be wrong for two cruisers to engage each other in neutral waters ; that it would be equally wrong when an action had been commenced beyond neutral waters to prosecute it by chasing into neutral waters, and equally wrong to lie in wait and commence operations in neutral waters ; and that, therefore, that inviolability of the neutral territory from immediate or proxi- mate acts of war was the second principle ; and the corollary to be drawn from that was, that certain rules might be laid down as ai.plicable to ships of this kind. Now, continued the Attorney- General, uiy friend, having referred to those two rules of inter- national law, lu'occeded to declare from them his own corollary, and in order to do him justice perhaps it might be as well if I refer to his own language. He said, " What would be the con- " elusion which we naturally si uld draw from these rules as to " the course which municipal legislation might be expected to " take ?" Then he speaks of the definition of the line outside the dominions of a State, and speaks of the three-mile rule, and then he says, " Then we find that, according to the rules of international " law, it is allowable to a neutral State, and to the subjects of a " neutral State, to carry and deliver outside that line or inside it " any of those articles which are called contraband of war,— guns, " ammunition, ships, or any other article which may be supposed. " International law also holds that you might bring a ship to the TlIK Jl EARING BEFOKE THE FULL COURT. 61 outside of that boundary, wherever it is drawn ; that you might carry from the neutral State guns and ammunition and warlike supplies of every kind, and deliver them into the ship outside the boundary, subject to t!ie right of capture ; the other bel- ligerent, if so disposed .and so able, might irtercept the supplies, might capture the ship, and might seize the articles as con- traband ; but, subject to that, the act might be done without any offence against the princij)les of international law. But then, on the other hand, international law says you must not originate on the neutral tei'ritory any proximate act of war ; you must not issue out of the neutral territory with a ship which shall be prepared to commit ho.stilities." And then a little afterwards he goes on to say : — " The belligerent would say to the neutral Power, ' Now we ' must have an understanding about this. You say that your ' neutral territory is to be inviolate ; I agree to that. I have ' no right to go inside your territory and cut out a ship which I ' see ariuing and preparing there to commit hostilities. I cannot ' violate your territory. If I went into one of your harbours to ' do that you would object to it, and would prevent it, and in an ' international point of view I could not claim a right to do it.' But then the belligerent would say, ' You, on your part, must ' take care that what passes out of your territory shall pass out in ' such a state as that I shall have a fair chance of capturing or ' dealing (if I am entitled to capture or to deal with it) with that * which comes outside of your territory -without its having occupied ' itself within your territory by preparing itself for aggression ' upon me ; so that, when it comes out of your territory, it shall ' not come out as a ship which I have to cope with as a ship of ' war, but as an article of property which might, if it could ' escape my watchful care, find its way into the port or the ' possession of another belligerent, but as to which I, in my ' turn, have a right to the chance of capturing it and taking it ' before it could commence hostilities against me.' That would be a very natural course for a belligerent to take, and very ■:1 02 roh'EtCIN KNLISTAIKM' A( TS. *r- ' ■*"! " natural languagt- for a belligerent to hold ; and it is language " the sense and wisdom of which it .? impossible to dispute. " Therefore, my Lorus, 1 should say, a nncri, that what we should " expect to be the course of municipal le^*" siation upon the subject " would be some legislation which would guard against that evil " which I have endeavoured to point out, and which, by way of " restraint upon the subjects of the neutral Power, would prevent " its subjects doing that of which, in ihe language that I have " endeavoured to convey, the belligerent might complaiu." That is all extremely ingenious, but without foundation on the principles of international law. It may be true that the belligerent would couiiilaiu whenever he was stiffering danger or damage from operations of that kind, against which the Foreign Enlistment Act is directed, if they were carried on under the observation of the Government openly in the neutral country. All that fine distinc- tion about the crossing the neutral line is purely imagination of my learned friend's mind, and he wanted to invent a rule of international law to square with the theory of the Act, and at the same time to take off the edge of some practical arguments against his general conclusion. I have a very short answer to make to all this. The American authorities that you will hear of, and other authorities too, all say that, municipal liquidation ajjart, a ship comi)letely armed and equipped may be sold within the neutral territory, atid that the belligerent has no right by any settled rule or principle of international law to complain of it. For the pur- pose of this distinction, what difference in the world is there between a ship constructed here and a ship sold here ? Why, suppose a ship reaJy-made, made as a mercantile speculation by the buildex', that I believe is a case not touched in any way by the Foreign Enlistment Act. Whether it be or not is not the present question. But jmtting the Act of Parliament and the numicipal legislation out of the question, if this rule of interna- tional law, which my friend invented in order to make the two things in his argument fit together, existed, it is perfectly plain that no ship ready armed and equipped could be delivered within lii I ^•m&g. -.i TlIM IIHAlMNCi IJHFORE THE FULL COUUT. G3 tli :• neutral waters, bo that she might pass out ready for action if she met the enemy on the sea, without giving a right of reclama- tion to the foreign Government. Is tliat the doctrine of American writers ? I will refer your Lordships to a short passage in Wheaton's " History of the Law of Nations," New York Ist edition, in which he treats the proposition as one only to be spoken of with contempt. He is there si)eaking of a controversy hetween lwo Italian jurists, Lempradi and Galignani. One of them, Lempradi, he regards as a person of some reputation and learning, while the other is a person of whom he thinks very lightly indeed. I believe we find tlie very point touched on : — " Lempradi then proceeds to consider an idle question raised " by Galignani, whether the conventional law of nations, inter- " dieting trade with the enemy in articles contraband of war, " extends to the sale of the same articles within the neutral terri- " tory. Galignani pretends that it does, and that a ship, for " example, built and armed for war in a neutral j)ort cannot be " there lawfully sold to a belligerent. Lempradi takes a great " deal of superfluous pains to fortify, both by reason and an appeal " to the authority of treaties and precec'ing public jurists, his own " opinion that the transportation to the enemy of contraband " articles of war is prohibited, but that the sale of such articles " witliin the territory of the neutral country is perfectly lawful." No one can read that passage without seeing what the cuthor's view of the distinction would be. It can make no difference for the purpose of the distinction whether a ship ready-made is sold, or whether she is manufactured and delivered unJer an order. So tar as that goes, I endorse what the Lord Chief Baron said at the trial, that it could make no difference whether there was a sale of a thing ready-made without a previous, contract, or a delivery undei a contract. If no legislation made a difference there would be none. The truth is, there is no connection whatever between my learned friend's premises in this part of the case and his con- clusion. His two rules of international law are quite sound as far as they go, but they do not conduct you to the conclusion that feti K' ) G4 KOllHIGN KXLISTMKXT ACTS. I • there is an obligatioii auU^cedently to tu'inicipal legislation, upon any neutral country, to jjrcjliibit that paiu of tho trade of its sub- jects wliicli, whatever coiistructiow you ni ly put upon this a't., is prohiiVitcd by the Foreign EnliHtnient Act. N(jw, my Ijords, I am about to read you what I lieurd myself - viz., that it f'lllows that, because a party m-iy sell a vt r-nel wliioii it was sail! may be sold even unarn-ed, aocovding to the authority of Story, 80 1.0 may even execute an order given by oiit of the belligerent parties lor a similar vessel ; and then follows thn passage : — " Now, the learned countjel contending addressed themselves "very much to this view ol ;',,'\ matter, but it was said, 'But if " ' you aih)w this yon reT>fci:.l the staiute.' Gentlemen, I think " nothing of the kimi. What that statute meant to provide for " was, T own I think, by no means the protection of the belligo ■' rent Power." With that, my Livds, T fully agree. I think upon the face of the -tatute it was perfectly plain that it was the peace and welfare of this, roalm that the statute was made to provide for, and no person cdv- take exception to that. " I do not think this protection entered into the heads of those " who framed this statute, otherwise they would have said, You " sh.iU not sell gunpowder, you shall not sell guns." This illustration seems to me to have had the unfortunate effect of repreRenting as it wore a complete view of the object of the statute, — that which, to say the least, would be a view only of some incidental inconvenience which the statute might help to meet. His Lordship says : — " The object of the statute was this : — We will not have our " ports in this country subject to possibly hostile movements ; " you shall not be fitting ii[) at one dock a vessel equipped and " ready, not being completely armed, but ready to go to sea, and " at another dock close by be fitting up another vessel, and equip- " ping it in the same way, which might come into hostile commu- "nication immediately, possibly before they left the port. It riiK IlKAIfINC I'-HroKK TIIK ITT,!, i nllM'. g:> " s.oiild l»o very wrong if tlioy did an, bnt it is a possiltility. Now " urtii then it has happened, and that has been the ocoasiou of this "stU'ce." i'lio Loud CiiiiiK Bauon. — There is un error there, because it is fjuito plain from the summing uj) thi't that was not the occasion of the statute. It was one of the occasions that uiight give rise to it. The Attorney-Genekal. — No doubt, my Lord, whatever about your intention, but no one cou'd read the passage without being sati.sfied that your Lordship thought the only object of tlie statute was to j)reveut within British waters those acts which may be culled direct, or, as my friends call them, proximate acts of hostility. The whole tendency of the passage was to mislead, leading to this, that there was no reason why shijts should not be in a different position from other contraband. The preamble speaks of the enlistment or engagement of His Majesty's subjects to " serve in war," and of the equi]>ping and fitting out and arming of vessels "for warlike operations in or against the dominions or territories of any foreign prince," or " against the ships, goods, or merchandise of any foreign prince, or his subjects," as prejudicial to and tending to endanger the peace of the kingdom. The statute follows out that preamble in the second section, prohibiting the enlistment, ttc, •' of any natural-born subject of the Crown." When we take the subject of enlistment we find that there are no proximate acts of war v ithin or without the territory aimed at ; on the contrary, it deals with the enlistment of natural-born subjects anywhere. Now, upon the equipment of vessels I say that, upon the face of the preamble and clauses taken together, a mis- chief as large as words can describe is pointed at as not sufficiently prevented by existing laws — namely, a danger to the peace and welfare of this kingdom, and there is a danger which is supposed may arise from acts of the subjects of the British Crown beyond British territory. Tlio Attorney-GcTieral then quoted *' Bynkers- ■'fi 4. ill V ()() r(.i;i;ii;\ i:m.i>tmi;nt A'Ts. 11 ;f chocck," cjij). !', on llic (jin^stioii of ('(HilrjiluuHl ; also llic (^luvii's jn'oclaiiiation ol' Mny, 18()1 ; and tlicii, ill s|>eakinti: of llic dillrrciicc belwct'ii sliips and ordinary coutraliaud, says : — Let in('ai)]ily atost wliicli one lias seen fi-oquontly suggested as to wlu'Uier an adventure is a eouiineroial or a warlike one — that an act of this description is directed against warlike and not against mercantile adventiirei-s. A man who carries them across the seas ho])ing to rnn a lilnckade, or to deliver into the belligerent country, heing a neutral, is obviously engaged in merely a com- mercial adventure. Tt does not become a warlike operathm until, as expressed in a speech of RFr. Canning's, the elements of arma- ment are combined in the country at which she is intended to arrive. But this ship is quite a different thing. The elements of armament are combined in her whether she is on the high seas or in a neutral country, as the case may be, and she is herself when she takes the water, to a very great extent, a contraband made up, a combination made up, as Lord Stowell expressed it — a com- bination of elements of armament. But there is another thing which makfS the one adventure commercial. The i)erson who is concerned, the neutral carrier, is trading with his own goods for his own profit, and till he delivers them to the market to which they are about being taken, there is no person concerned in that transaction, except a person whose purpose can be commercial only. But if the foreign Government, by its agents, order ships of war to be constructed in a neutral country, and turn private dock- yards of neutral merchants, in a neutral country, into its own dockyards, it is clear that its adventure is warlike from the first. That CJovPvnment is the principal in the transaction. It causes these sh i)S to be made and equipped, and for it they are built and equipped, and it has no purpose or object whatever of a com- mercial kind. It is [.nrely and simply a warlike operation on the part of that Government— viz., to acquire and launch from that I'oint of departure ships to be used as instruments of war. m niK iii;ai;in'<; itKKoh'K i'Iik \'\'\a. nwu'v. ()7 Tho Attorncy-Gonerul tlieii entci'cil into the (|ucs- lion of tlio (lestination of a ship, and quoted cases ill support of his arjLJiinicnt, and then said : — Now, upon the question of coiiHtruction I need not remind you of the principles witli which you are so familiar. When you have words which, according to a sound construction, may prevent the iiii.schief and advance the remedy they should be so construed, 'riierc is an American case on this subject, " The United States r. Workman and Carr " (llorton's " American Criminal Law "), a case on the enlistment clauses of their Act, and not the equipment clause. The indictment, singularly enough, contained ninety-seven counts, setting forth the various offences supposed to have been committed against the Act. The Attorney-General read this case, which seemed to go on all-fours with the cases already cited, and tho Attorney-General then said that it would be new to him if the Court gave countenance to the notion that the construction of :\n Act of Parliament was to be limited or cut down by any previous declarations or speeches of statesmen or member of I'arliament, whether at the timo of introducing it or at any other time. ^I^he Attorney-General tlien referred to the " rules " of Washington, and said : — I do not mean to argue whether or not arming and equipping are to go together there, but at all events " 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." That is the first rule. Then the next rule permits tho equipment of merchant vessels ; that is lawful. The third rxile, I think, clearly speaks of the equipment of vessels already in existence, and in the service of the Govern- ment ; not vessels to be brought into existence by opei'ations within the United States, but vessels existing already in the immediate sei'vice of the Government. "Equipments in the ports J' i- (;s roiiLK.N i:.\listmj:nt acts. i ,i " of tliu ITiiiteil States tif vessels of war in t!io iiuiiiediato Hovvico " of tlio (lovenuncut of any of tlic l)elliyereiit i)artit'H, which if " (lone to otlior ve.sselrt wouM ho of a (h»nl)tfiil nature, as l)eiiig " aiiplieahlo either to conmiercc or war, are deemed lawful," whii^li, in fact, is merely the ordinary huspitality shown by all eouniri.'s in the worhl to all ships of Vr'ar (which f will observe upon when I come to throvided with equip- ments exclusively ai)plicaV)le to war, provided she be manifestly built for warlike purposes — a vessel which, though not arni' \ has a cargo consisting of arms and ammunition — is within the purview of the Act, and is to be detained until certain security is given. That provision is not in our Act either. T do not myself think Tin; fii;aimn<; iiki'oim; tiik m [,i, (orirr. ('>!> tliiit it much ijircets tlio rovcd to havo beou en'octually iicconiiilished by that Act, and that iliat f,'r(.'at and most Hcrious mischief which tho Act )>oints out as tlic mischief which it was iiiton k 1' ; 'i . v ;• . ! S! H I: I I "J? 1 » ■:i iit'^ *'i 72 foki;i(;n knli.stmkni acts. what is to )te clone in puiHmnc^ of that isitent. Now, first, with roapoct to the ititent — who may form the intent ? No doubt, the intent must he formed by somelxxly who has some control over the vessel. There may l>e two descriptions of intent, both within the meaning of this statute. The first description would be the intent of a foroigu belligerent or his agent to eini)loy a vessel to cruize and commit hostilities. The aecond intent would be that of a ])erson who equipped her in order that she might be so employed — and I cannot helj> thinking that the words " in order that" were introduced to meet that second intent, for it might be said, by way of what I should venture to call a quibble, the equipjier may jiot intend that she shall be employed, because he has no control over her afttr she le^' es his hands. I dare say, as a matter of liistory, an argument of that sort was put forward, and then the Legislature said, for the purpose of meeting that, we will put in the words " in order that." That, I think, is the probable explana- tion of the words "in order that" being inserted. Now, with respect to the first class of intention to which I was referring — namely, the intention of a belligerent or his agent to em]>loy the vessel hostilely : if he procures her to be equipped, even although the equipper does not know of the intention, I apprehend there can be no qiiestion at all that that would forfeit the vessel ; it would not be necost-ary to contend that in this case, but I apprehend it would be so according to the strict construction of the Act. The object is lu-evention ; the object is the prevention, if possible, of any vessel issuing out of this country as the basis of hostilities, and I apprehend thiit that would be the true construction, and that the vessel would be forfeited independently of any intention at all of the equipper, the intention being in the person ordering the vessel and having control over its ultimate destination to employ her in hostile oi)erations ; and if that be so, for a moment adverting to the evidence, there can be, I think, no question that this vessel would have been forfeited upon that ground here. However, this is rather aniicipatliig. Then, secondly, with respect to the equipper, I apprehend that 1 " the oquipprr e-. I ■ n fl ! I in I oxcc])tioii to it tlmt liad liccii taken by the Attonic)-- Geiieial, and conclnded in tlieso words : — On tiiose grounds, therefore, 1 Hubiiiit to your Lordships that tlic verdict was against evidence, and 1 will not latigue you with any further observations. 1 do submit, and with conlidenco, that this case has not been satisfactorily tried. It is, no doubt, the first occasion ujiun which a statute of very great importance, of con- siderable dilliculty in the construction, has been presented to :i jury ; i*^ is, therefore^, not unlikely that there may have been some misai)prehension and some miscarriage as to the construction to be given to the Acu. I submit to your Lordships that, as in the iutei-ests of the Crown and the interots of this country, which are ouc, the Avhole of the population of the kingdom have a deep interest in having the law settled, iu having the law vindicated, th(!ro should be a new trial. In the course of the argument (and wo have put it in thus in order to avoid a lengthened discussion), the Lord Chief IJaroii said that he would ctdl attention to the exceptions that were taken by the Crown, the first of which was handed up to him as soon as the case was over ; — " I. Tliat if the vessel was in a course of building, for the pur- " pose of being delivered in execution of a contract to build, the " statute was not violated. " 2. That if the vessel was not intended to be finished, equipped, " furnished, or litLed with a warlike armament at Liverpool, no " violation. " 3. The l, ((tl i;T. i o " Confederate States to commit hostilities against the United " States, the statute wan n(jt violated. " That if the vosael was not intended to be equipped, furnisheil, " or fitted with a >varlike armament within the realm, the statute " was not violated. " That it is immaterial that the ])ersons engaged in executing '■ such conti-act or order knew that the vessel was to be employed «' by the Confederate States against the United States. " That, in the 7th section of the Act, 'enuip,' ■ furnish,' and ' fit " * out and arm ' all mean the same thing." The Queen's Advocate then followed, and, after a lew opening' remarks, said : — Although your Lordships are familiar with the rules which govern the coiisti-uction of statutes, still I must I'cfer you to the expressions of the late Lord Chief Justice Tindal in the case of the Sussex Peerage. I think that nowhere is there found laid down with greater precision and accuracy the rule which ought to goveiii an English statute. The construction was upon the Royal Marriage Act, and his Lordship says ; — "The only rule for the construction of Acts of Parlian,-,' ■ is " that they should be construed according to the intent of the •' Parliament which passed the Act. If tlie words of the statute " are in themselves precise and unambiguous, then no more can be " necessary than to cxpoiind those words in their natural and " ordinary sense. The words them:=ielves alone do in such cases best " declare the intention of the law given. But if any doubt arises " from the tei'ras employed by the Legislature, it has always been " held a safe means of collecting the intention to call in aid the " ground and cause of making the statute, and to have recourse to " the preamble, which, according to Chief Justice Dyer, is a key " to o]>en the minds of the makers of the Act and the mischiefs " which ihey intended to redress." The learned QrKEN's Advocate then went into an analysis of Sir Hugh Caims's argument upun the construction of the statute ; ill 70 i'(ii;i:i(;n i;nlistmi:nt acts. it.. I I' I f -' Ik. Ill ' i I-' and as tlin same tliinfj had been done by the Attorney and Solicitor CJoiieral, we iiinst neoesHurily jiass over the greater part of it. The tiueen'H Advocate said that Mr. JNIcllish argued that the obiect of the statute was to prevent an insult to this country, and added that international legislation waits, like municipal legis- lation doc , till the mischief has happened. There lie joined issue with Mr. "ATellish. It was a forgetfulness of the great peculiarity of the ataii.te which ran through the whole of the argument on the othe" .^ide. The statute was a preventive one, and, so far from wiiiliiig till the mischief had happened, it, by a machinery entirely its own, directed partly against the individual whom it divides into two classes, the principal actor and the subordinate actor, and i)artly against the instrument of the individual, the ship itself, endeavours to prevent the evil from being committed, and it gave the Crown the i lunou.se power of ^eizi.ig the vessel as ipso facto forfeited by the particular act of either of those individuals. The IjUUU CiiiKF i>Aiiox. — It should be observed that a considerable part of the enactment is unnecessary. For instance, when it is pionoanoed to be a misdemeanour to do a certain act, by the coramou law if a matter is created a misdemeanour it is a misdemeanour to attempt to do it, to begin to do it, or to aid or assist in doing it. That part of the statute with respect to aiding, assisting, endeavouring, and so on, was not necessary, but it was necessary to j/ut those words in in order to create the forfeiture. The Qukkn's Advocate said that ho was not going to entertain their Lordships, as had been done by the other side, with extracts from J\Ir. Canning's .speeches anil from those of other members of Parliament who took part in the debates upon the Foreign Enlistment Act. The Lord Chief Baron. — I own that it strikes me that speech(>3 in Parliament and historical statements l>y a very eminent historian — Alison's History, for instance, — and some of those other matters it is difficult to stop in an argument to set out which a defendant in a case may thiid< ncccsyary to state, but that I Tin; i'r,Ai;i\<; hhfouk tiif-: fili, cocut. tl nio(ie of dealing with u legal question sliould be aduiiuistered with a vciT sparing hand. Now, my Lords, T think that I am entitled, although they do occur in a Parliamentary form, to read to your Lordships tho expressions of the Judge of the High Court of Admiralty when he .sat in Parliament, and when he was no less a man than my Lord Stowcll, because what he said was on I'ising iu his place as the .hulge of the High Court of Admiralty, and holding a U3utral jwsition : — " There could be no solecism more injurious to itself or more *' mischievous in its consequences than to argue that the subjects " of the State had a right to act amicably or hostilely with refer- " once tc other countries without the interposition of tho State '• itself. It was hardly necessary to press these considerations, " because all the ai-guments which he had heard upon the subject " had fully admitted that it was the right of States, and of States " only, to determine whether they wotild continue neutral or " whether they would assume a belligerent attitude ; that they " liad the power of preventing their subje(;ts from being belligerent " if they agreed to it." There is also language which I would, without mentioning where it comes from, make ])art of my speech : — " When ships were employed in the service of any Power what- " soever without a licence from the British Government, such an " enactment as this was required by every principle of justice ; for " when the State says, * We will have nothing to do w ith the " ' war waged between two separate Powers,' and the subjects in " opposition to that say, ' We will, however, interfere in it,' surely " the House would see the necessity of enacting some penal statute " to prevent them from doing so, unless, indeed, it was to be " contended that the State, and the subjects who composed that " State, might take distinct and opposite sides in the quarrel." Now, my Lords, these arguments and those citations I really do think have a direct bearing upon this part of the case, because tliey go in aid of my proposition that the real object of this statute ,K, , i 78 •nl;|;n,\ lAl.lsTMI'NT MTn. !! '!! 1% h ■%'■ 1 ■- i'< 1- , £1-' i flv i was to (iiiiiMc tlio Crown to ol)Roive not ;i iioiiuiifil, Imt a rcul iind ]ir!icticiil noutralily in tlioKO cases ; it was to jilaco tlio Crown in a position in wliicli it might have an answer to foreign States when tlioy said, " Out of your harbours coine all these privateers, aud " all these armies of men come out of your country." It was to enable the Crown not to i)unish, but to j»revent such proceeding t.ikiug pl:'i 0, and thereby, in plain English, to enable this country to remain at peace. Ai'tui' dwelling much on tlio meaning to be placed lit word equipment, he referred to several books lor ill;' purpose, and, amongst others, to Burn's " Naxal and IVlilitary Technical Dictionary of ihc Fi'cnch Language." Under the title of (^'(/iiqnnrnf is there given ai-mament, manning, accoutrements, stores for the voyage ; .and under the title equlpppr is given to <>(iuip, fit out, arm, provide and fur- nish, provide with necessaries or stores, supply stock, &c. T1ui learned Queen's Advocate then remarked upon the evidence, and cited h^ome autlioi'ities, from which he read extracts, and concluded his aro-ument bv saying that, for all the reasons which had been urged upon the Court, the verdict must be deen.ed unsatis- factory, and the rule for a new trial ought to be made absolute. Air. Locke and Mr. T. Jones then followed on the same side, in great measure reiterating the argu- ments of their colleagues. The Court took tinu' to consi^kT judgment. riii: \i;i.i \ii:m'.s I'oi; a m:\v Ti;i.\i,. 70 CHAPTMR VII. J?KMA1:> in open- ing to (lie difficulties he incurred in eticountering X'- 80 1"ohi:i(:n knijstmknt acts. r. M W Ml 5 V 1 1 '1 ; ri 1 Hi' ! \- .U ,'), I: ni'irnmrnts fVoiii (lie otliei' sidcMjftlu^ luitiire of wliicli he wiis tliLMi iniiiifoi'iiied. Other than lie miglitwell liave sliniiik from sucli a challenge, su])[)orte(l as the ])roseeuli()n wtis liy such talent as is })0sscssed by Sir 11. Palniei", IMi*. Collier, and tlie Queen's Advo- cate. ]?ut Sir Hugh was quite equal to the occasion, and div^ested of much of their importance the past and ])ossil)ly future arguments of the prosecution. He su])[)urted by copious references to English and American precedent, and by quotations IVoni the Parliamentary speeches of the actual framers of the Act, his view of the construction to be placed upon that Act, and of the nature of the intent aimed at therein, as also of what equipment was really pro- hibited, and what was allowed. The " Keel" argu- ment of the Attorney-General he completely de- molished, as also the assertion of that learned gentleman that it had never entered into the minds of judges or writers on international law to provide for the possibility of the ships of two belligerents fitting in our ports, and commencing hostilities before quitting our jurisdiction. The prosecution, in spite of their advantageous position, did not much advance their case by the fresh argument they introduced. The speech of the Attorney-General was imdoubtedly a brilliant effort, and supported as it was by the talents of the Soheitor -General and the Queen's Advocate, lent an ap})arent superiority of weight to Till, AKdr.Mr.NTs I'nl; A NliW TIM \I.. SI the tlie side of the prosecution. But that superiority was more apparent tlian real. There must have liu'ked in the mind of the Attorney- General the knowledge that he was engaged in the most un- popular of prosecutions. With his case backed up by witnesse; many and the most important of whom wei*e utterly incredible, having withdrawn the ques- tion of armament fi'om his counts, and depending indeed for the reversal of the verdict upon purely technical points, he found fault with Sir H. Cairns for embarking on the history of the statute, and for referring at such length to the speeches of those in Parliament who had assisted at the framing and passing of the Act, though compelled to admit that " there was that within the four corners of the statute " which embodies all or some part of these considera- " tions." But the Queen's Advocate in his argument lather supported the views cf Sir Hugh than those of the Attorney- General on this point of reference to the history of the Act and the language of its framers, for he quoted Chief Justice Tindal as saying, " that " in cases where any doubt arises from the terms '* employed by the Legislature it has always been held " a safe means of collecting the intention to call in aid " the ground and cause of making the statute," and this obviously could not be done without reference to its history. The Attorney -General also in the discus- sion that ensued prior to the hearing for a new u if , 1') ■ n\ w^ 82 FuKKiuN i;nlimmi:nt acts. ( '; H i,l if trial was very strong? against tho Chief Baron for havirifr asserted that in his opinion the terms equip, Ht out, furnish, or arm were all of ono meaning, and were indeed a speeirnen of the verbiage which is generally to be four.d in Acts of Parliament. It will be remembered that the Chief Baron supported his opinion by a refereace to Webster's Dictionary, where he found, he said, that to equip meant to furnish with amis, and that furnishing was given in other dictionaries as the same thing as equipping. The Queen's Advocate supported this very definition by a reference to Burn's " Naval and Military Techni- cal Dictionary of the T oncli Language," where ho found under the tit]-, of C'lulpnoenty — armament, man- ning, accoutrementii, .'stores for the voyage; and under the title of equippevy — to equip, fit out, arm, provide, and furnish. Thus in two very important points we find the prosecution in the person of the Queen's Advocate differing from the Attorney-Gene- ral, the leading prosecutor, and supporting state- ments and the mode of procedure of the Lord Chief Baron and Sir H. Cairns. The prosecution were also very strong against the defendants in asserting that they, for the sake of pri- vate gains, incurred the risk of putting the Govern- ment in difficulties with a foreign State. But does not such accusation a])ply with equal force to those in Birmingham and other places who liave made m u"»' THK AnOUMENTS FOR A NEW TIMAL. 83 lar^'C sums by the sale of ^uns, rifles, and munitions of war ? Does it not a[)ply with even f^reater force to those mail compuiiios who have allowed their vessels to be the means of carrying such supplies of contraband into the very ports of the Fcloi ' ' But are such animadversions at all meri* a o different branches of our trade called in ■ i ? Does any man in the country, who in the ordinary course of his trade and avocation sells to either belli- gerent that will buy, instruments of destruction, be t liey ships or muskets, necessarily deserve such accu- sation ? How did Mr. Huskisson speak of such trade and the attempts to stop it but by saying, " Of " what use is our skill in huild'mg ships and in making ** munitions of war, if to sell them to either hellig event " is a violation of neutrality ? " And if for the first time in the history of England or America it is for- bidden to sell ships to belligerents, then in all fair- ness the prohibition must be extended to arms, and indeed to any material of war justly described as con- traband ; and then who could fail to see the endless restrictions and annoyances to our trade that would inevitably ensue, and which would, as has been before remarked, render our position as neutrals nearly as harassing and unprofitable as when actually belli- gerents ? I think, or review of the arguments of the Attor- ney-General, it must be admitted that the learned ci 2 I' m. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l^|2£ |2.5 1-25 11 U ||.6 =s^=i II ll-= — Hill ^ 6" ► w /} ^' ^ J> Photographic Sciences Corporation 33 WiST MAIN STMET WEBSTER, N.Y. 145S0 (716)S7a.«03 '*-l'.' .M I gentleman attempted to prove too much. Knowing well the difficulties against which he had to contend in proceeding upon what at the best is a very doubt- ful statute, with a verdict against him unanimous and immediate, and with a most unpopular cause in hand, he sought to fortify his position by asserting that not only was the Alexandra an infringement of the Act, but that even had the mere keel of a ship been laid down which might or might not be suitable to a ship of war, that very keel could under the Act be seized and forfeited, though the 7th section, on which he prosecuces, distinctly says that " any person " equipping or attempting to equip any vessel is guilty " of misdemeanour;" thus, as Sir H. Cairns puts it, clearly presuming the existence of a ship to be e(|uipped. And in all precedents bearing on this case there were most certainly vessels in existence prior to the offence of equipment which was alleged against them. There is, moreover, no case in Eng- lish or American courts where the building of a vessel is called in question, and no case where the selling of a ship has been pronounced illegal or call- ing for the forfeiture of such ship and its tackle. Again, I think it was evident that the prosecution, in depending so much on the fittings of the Alex- andra, such as hammock-nettings, strong bulwarks, and ports, attempted to override that important rule of Washington's, wliich was that " all fittings of a I'ii ;M THE ARGUMENTS FOR A NEW TRIAL. 85 % " doubtful nature, ancipitis usuSi such as could be " applied to either commerce or war, were lawful." Our merchant vessels frequently carry a couple of guns, hammock-nettings, &c. And therefore these things, even if satisfactorily proved to exist, did not constitute conclusive proof of warlike equipment, and therefore of hostile intent. In concluding the remarks on the trial, I particu- larly beg the attention of readers to the chapter on " Precedents," in which I think it will be seen that every important case in the courts of America bears out the reasoning and arguments of the Lord Chief Baron and Sir H. Cairns, and consequently renders most arbitrary and excessive the restrictions that the arguments of the prosecution, if acted upon, would effect against the trade and position of a large and important branch of the subjects of the Crown. ,<.,v. tr..,; •I'l 8G ruRElGN KXLISSTMENT ACTS. hU Wi:^ CHAPTER VIII. THE JUDGMENT OP THE FULL COUUT. ^h PONDEROUS as were the arguments of Judge and Counsel on the trial, and at the hearing before the full court, those of the learned Barons in their final decision were even more weighty and of more conspicuous lucidity than those formerly de- livered. It seems to be acknowledged that the present is a case in which information of a decided nature on certain points of law has been the result of procrastinating judgment ; but that we have at length obtained that sound and definite opinion which, though it does not represent the unanimous dicta of the four Judges of the Exchequer Court, least puts us in possession of every phase of ixio action described as illegal by the prosecution, and of the statute on which they proceeded. Wh have now the deliberate and matured opinion of the impartial judge, where we had previously but the warm and partially interested arguments of the advocate. These opinions are however given at such length as to be altogether beyond the limits of a pamphlet ; and I can therefore but make a few scanty comments thereon. It will be seen that the Chief Baron, in 5| THE JUDGMENT OF THE FULL COURT. 87 deciding against the rule for a new trial, abated no tittle of what he had previously advanced and laid down. Far from weakening what he had formerly asserted as his belief of what was the law under the statute, by any retractation or modification of what he had then said, he rather strengthened his past argu- ments by the importation of fresh doctrines in their defence. He reiterated his opinion that, ** provided " a ship leave this country in no condition to commit " hostilities, though she may be of a warlike charac- " ter, there is no violation of the Act." He declaimed afresh against "a loose or elastic interpretation of a " criminal statute, to serve a special but a temporary " purpose ; " and denounced the appeal made by the Attorney- General to the Court, on the ground ol consequences that mighu ensue upon a verdict of acquittal, " as doctrines which ought not to have " been presented at all ; " and added that " he was " inclined to doubt the soundness of any proposition " that required such a style of argument for its sup- " port, and that international law would be of little use " if it did not govern the conduct of strong nations as " well as weak ones." He pronounced with confidence that it is lawful to build ships of war, and that "the ** object of the statute was not to prevent the building " of ships by British shipbuilders for one of two bel- *' ligerents ; but to preserve the ports of the country *' from being made ports of hostile equipment against .* 88 F:t|;KIpt, "We will preserve our neutrality within our dominions, but we will not go further." He has himself said that the purview of the Foreign Enlistment Act is to prohibit a breach of allegiance on the part of the subject against his own sovereign, not to prevent transactions in contraband with the belligerent. He has laid down as law under the Act, that " a subject of the Crown may sell a ship of war, as he may sell a musket, to either belligerent, with impunity ; nay, he may even despatch it for sale to a belligerent port." He also establishes, from Mr. Kuskisson's exposition of the Act, two very important priciples — first, that the Act was a municipal statute; and, secondly, that the authors of the Act were not so absurd and illogical as to have forbidden the sale of an armed and equipped vessel, while they did not forbid the sale of a park of artillery. And, by the way, I find that the United States Government asserted in 1855 that " their Act of Congress prohibiting foreign enlistment was a matter of domestic or municipal right, as to which foreign governments had no right to inquire." Clearly the quotations from the book of " Histori- cus " show how inconsistent is the wish to remon- strate in any shape with the Confederate Government on the plea of a violation of our Foreign Enlistment Act. If, as " Historicus " argues, it is lawful to sell a ship of war to the Confederate Government, how I ]04 FOREIGN ENLISTMENT ACTS. /; \ I 1 ! > in. :fl would he have that Government become possessed of that ship ? If the sale by the neutral is lawful, surely the purchase by the belligerent is equally law- ful. And, again, if the sale is lawful, is there any proof of offence against either international or municipal law in the order contained in the Con- federate despatches ? Is there a word that could convict Mr. Laird of any intention of participating in hostilities ? Do they not expressly speak of a contract, an ordinary business matter, and, as far as the shipbuilder is concerned, a mere question of sale and purchase ? Are not all the letters of a business character ? True, one points to the neces- sity of avoiding the interference of European governments ; but this, in my opinion, is a proof of their wisdom in anticipating the desperate efforts the Federals would make to prevent them from becoming possessed of such formidable vessels, rather than an acknowledgment that they contemplated a violation, of a wilful nature, of our laws. *' Historicus," recognising the true position of the statute as municipal, says also, "It is the interest of Englishmen and the duty of the English Govern- ment to see that the law, while it is a law, is enforced against all persons who seek to violate or evade it, whether they be within or without the realm." I would ask what success a counsel would expect in prosecuting a person " without the realm " for THE LETTERS OP " H[ST0RICU8. a 105 violating an act levied specially and solely against those " within the realm " ? But this course of procedure, absurd as it may seem, is the one actually urged by " Historicus " in his later writings. The position he is in is undeniably this — Mr. Laird may lawfully sell an armed ship to the Confederates, and the Confederates may as lawfully buy that ship. They send their order to an agent in this country, and Mr. Laird executes that order. But at the same time Mr. Laird, it would appear, is guilty of a violation of the Foreign Enlistment Act, and the Confederate Government is equally guilty ; but, as ** Historicus " is conscious that the law as it exists would present considerable difficulty in the prosecu- tion of Mr. Laird, he would prefer the abandonment of such a prosecution and substitute in its place remonstrance, and, if necessary, forcible reprisals against the Confederate Government. Knowing well that our subject has the means and abilities to protect himself from any attempted misconstruction of the law, he advocates the adoption of brute force against that Government already struggling under almost superhuman difficulties, and which has no status upon which it could defend itself against our accusations. Previous to the conversion of " Historicus " to Northern " proclivities," his arguments were of the highest order of legal reasoning. His own opinions !•! ]0G roUElliN MNUSTMKNT ACTS. iir iii were intruded ])ut sparsely, and liia book was valu- able for the sole fact that it was a compilation in the most convenient and interesting form of the jndg- Hienta, opinions, and precedents, which were golden in their worth fi'om their well-known high authority and evident bearing on the case in point. It was in the admirable selection of cases ad rem, rather than in his treatment of the several phases of this Ameri- can difficulty, that the excellence of his earlier letters consisted. I know not whether the second edition of his writings is to be laid before the public in the shape of a book, but sure I am that if that should be done, there will be a sad contrast between his earlier and more recent volumes. Law formed the essence of the one ; self-opinionated effusions will, in the main, form the contents of the other. In his pub- lished book lie has taken all possible pains to impress upon the public that the object and aim of the authors of the Foreign Enlistment Act were to pre- vent overt acts of war on the part of his Majesty's subjects against foreign States at peace with us ; that they had no intention of preventing the traffic in contraband between the neutral and belligerent ; and that, with a wisdom which foresaw that ships might be as valuable to one belligerent as munitions of war to the other, they had no wish that the law slionld forbid the building and sale of ships of war while it allowed the manufacture and sale of a park TIIK LKTTKKS OF " HISTOKICUS. t> 107 of artillery. Now, however, in place of references to the highest authorities available, he gives us his own opinions ; and to such a certainty of the forfeiture of these rams and the conviction of their builders 1ms he in his own mind brought himself, that at the least he must expect, when the case is called for trial, that the defendants will, on their own account and on that of the Confederate Government, plead guilty, and confess to a wilful violation of our statute. The matter is so plain, ho says, that ** no good lawyer or man of common sense can have any reasonable doubts." And this is now the opinion of *' Historicus," who has occupied many columns of the Ti7nes in elaborate efforts to prove that Mr. Laird may sell ships of war to the Confederate Government. I leave the public to judge whether my charge of inconsistency against him is not fairly established. But this volatile writer himself complains of being "misunderstood and misrepre- sented." He has been unfortunate enough on a previous occasion to have been equally " misunder- stood." In the matter of reprisals against the Con- federate Government which he advocated, he had to explain that he did not intend such precipitate action as might at first sight appear. On this occasion, however, he has done more, and has thought fit to alter altogether the sense of the passage he alleges to have been misrepresented. This chief charge of 108 fOREION ENLISTMENT AOTH. m iiiconsifltoncy against liim was that, whoroas in his book ho has always lioUl tho Foreign Enlistment Act as municipal, and has cxtracttMl from authorita- tive expositions of that Act that under it tho sale of a ship of war to a belligerent is perfectly legal, and that, moreover, ** the one belligerent could claim no rights under that statute as agaitist the other bel- ligerent, but that our position towards both was one of imperfect obligation only," ho now in his present writings asserts that the Federals have just grounds of complaint and dissatisfaction against us for not having sooner enforced our Foreign Enlistment Act ; that that Act has been probably violated by Mr. Laird, but certainly by the Confederate Govern- ment ; and that though it might be difficult to prove the offence against the former, it vvould be much more susceptible of proof agaiiist tho latter. Let me here quote his own words : — There can be no two opinions as to the difficulty and danger of the questions arising o\it of the violation of our neutrality alleged to V 3 meditated by the Government of the Confederate States in breach of our Foreign Enliatn.ent Act. That Foreign Enlistment Act is a municipal law, and a breach of that law is r, matter primarily concerning oui-selves, and ta;; offending person or State. Now, no government will permit any person or persons, whether they be a subject or a foreign State, to violate its laws with impunity. Yet the procuri.i^ of the construction and equipment of a vessel of war in this a^nn y by a belligerent State is a far more Tin; i.inTEUs or ** iihtuhicus." 109 audacioui uud mijichievouti iusult to uur Iaws iLau tkooe I bave Htated. We have diHtinctly furbiddi)i) yon ' '> equip ov procure to be equipped in this country sliipH for the pur[)O80 ui' coaimiltin(i^ hoHtilitieii agaiiiut a State with which we are at peace. Ynu know our lawtt, and if you Hoek to viohito them we will hold you roaponsiblo, lud tuako you answer for the oflence. Ther » pass ^'os fi'om the recent letters of " His- torif'is " 8llo^v, I think, beyond all reasonable con- tradiction, that he distinctly considers the Confede- rate Government as amenable to our laws in general, and to the Foreign P]nlistment Act in particular. T3ut to come to the actual quotation which he accuses me of *' misunderstanding and misrepresenting." After giving certain extracts from the Foreign En- listment Act, he proceeds to say, "It is the better opinion that this act is rather a municipal law than an edict passed in obedience to an international obligation. I mention this to show that I recognise its true position. It is the interest of EngHshmen and the duty of the English Government to see that this law, while it remains a law, is enforced against all persons who seek to violate or evade it, whether they be within or without the realm." I distinctly asserted that he assumed the violation of the Foreign Enlistment Act by the Confederate Government : where is my misunderstanding ? I said that he would untorce this municipal law against the Confederate States : where is my misrepresenta- 110 FOREIGN EXIJSTMFA'T AfT.^. -»| m^ m I 'I ' tion ? True, in his letter he sees fit to qualify that doctrine by substituting the law for this law; but where one expression is but a mere truism, the other is the very essen^j of that inconsistency which I have endeavoured to point out — viz., that of applying a statute confessedly mimicipal against a foreign State, or against persons without the realm. His reminder '* to those who embark in such enterprises that there is such an offence known to the law as a conspiracy to commit a misdemeanour," is very impressive. After threatening those without the realm, as well as those within it, with merciless pur- suit and punishment under a municipal statute, ho would now, for " strategic reasons," fall back on that law which makes conspiracy to commit a misde- meanour an offence punishable, but only then on proof and within our jurisdiction. Having aban- doned the prosecution of Mr. Laird under the Foreign Enlistment Act, " on account of the legal difficulties by which the criminal procedure is sur- rounded," and having proposed instead that we should treat the Confederate Government as persons violating our Foreign Enlistment Act, he would now withdraw even that mode of proceeding, and attempt the punishment of Mr. Laird, or the Confederate Government, or both, under that law which he says makes a conspiracy to commit a misdemeanour an illegal act. So that our Foreign Enlistment Act, THE LETTEBS OF ** HISTORIC US. jj 111 wliich has been twisted into every possible construc- tion, is now declared not to hold in the present emergency, and a fresh law altogether invoked to his aid in his generous wish to procure at all hazards the conviction of Mr. Laird, and the consequent for- feiture of the ships. But, further, says '* Historicus," it is equally the interest and duty of a government to protect its laws from attacks directed against them from without." A very obvious duty this ; but a very different undertaking from that urged by him in his previous letter — viz., that we should enforce a statute specially addressed to those within our jurisdiction, against a government and people who are, as a matter of course, without that juris- diction. " Historicus " again brings forward his example of the smugglers, and asks whether, if we found a foreign government in league with them, we should content ourselves with merely proceeding against the smugglers in the Court of Exchequer. I must a second time draw attention to the unfairness of placing smugglers, known lawbreakers and des- peradoes, in the same category as shipbuilders who, like the Messrs. Laird, may be under the imputation of a desire to violate our laws, but against whom nothing is as yet proved. The very existence of the smuggler depends on his cheating our laws ; while the Messrs. Laird are at present guilty of nothing more than pursuing their ordinary and legitimate 12 FOREIGN ENLISTMENT ACTS. occupation. I must also remark that though we might not possibly content ourselves with proceeding against these smugglers, we certainly should not put in action in such a case against the foreign govern- ment any law or statute expressly made for the con- trolling of our own subjects. "Historicus " has said, in his book, " that the mere sale of an armed ship is in itself no evidence of hostile intent against a foreign Power ; but that the manning of a ship for war purposes, and with a war crew, would be a much more cogent circumstance to lead to the inference of such an intent." In the case of M. Genet, as in that of the Irresistible ^ also referred to by " Historicus," we find that the ships were fully armed, and manned with a war crew. Therefore, I think I am justified in saying that there was more cogent evidence in these cases than in the present ; where neither have the ships been armed, in the ordinary acceptation of the word, nor have they as yet been manned with a war crew. In the American precedents quoted, there was that combi- nation of armament which Mr. Canning especially described as being the actual offence against the Act. But in Mr. Laird's case the only witness against him is the bare hull of a ship of war. " Historicus " has slurred over the case of the Santisshna Trinidad^ merely saying that it has been often cited. So it has, and by himself in his book when his object was THK I.iriTEKS <»F " II ISTOKK IS." ll;i 3ugh we oceeding i not put govem- the con- that the evidence but that d with a mstance In the 'Me, also he ships T crew. at there ti in the armed, Dr have In the combi- pecially he Act. ist him ricus " inidad, So it ct was to show that the authors of that Act, in America, considered it no actual offence that a ship of war I hi nei should leave American ports, so long as tiie did not themselves contemplate hostilities. And let us specially remember that these Ameri- can cases now cited are not instances of the con- demnation of the vessels themselves, but are trials in the American courts as to the validity of captures made by them. In our case, we shall have to try the question of the original ships themselves, whicli is a matter of a far more important nature, involving the most delicate adjustments of the law. Mr. Lindsay put some very searching (juestions for the consideration of " Historicns," who " thinks he can answer them shortly and satisfactorily." I beg particular attention to this answer, for on it is based the whole question of what his present view of the law is, and which I assert and will prove is diametrically opposed to his previously published o})inions. He answ^ers : — 1. An English merchant may manufacture cannon and all the munitions of war for a belligerent, because there is no law to pi'event it. 2. An English shipbiiilrler may not equij) a vessel of war or a transport for a belligerent, because tliere hai)pens to be an English Act of Parliament which expressly prohibits his so doing. 3. The English Government do not interfere with the first class of transactions because they have no authority to do so ; they stop the second because it istheirbusiiuss to enforce tlielaw. v\s reuards the first answer, it i!iidouI)tc(nv is a i 111 roUKIGN ENLISTMENT ACTS. fair reply to the second question of Mr. Lindsay, but it is a manifest sliirking of the third question of that gentleman, wlio wants to know why, if by law a cutler or cannon-founder may send " sabres and muskets to New York, a shipbuilder may not send a steam-ram to Mobile ? " " Historicus," doubtless, remembers that there was a proclamation by the Queen, on the 13th of May, 1861, denouncing as illegal the carrying of munitions of war to the belligerent ports, and with that edict before him how could he reconcile to himself the wicked inconsis- tency which exists in allowing one subject to break the known law in favour of the Federals, while extreme measures of sevei'ity are deliberately and insultingly carried out against another subject on the mere suspicion of a violation of a statute con- sidered by many, at the best, as of very doubtful l)eai-ing on the alleged offence, and which has already l)een interpreted by one judge and jury as distinctly permitting that very act for which the Messrs. Laird liave been thus dealt with ? But now for the second answer of " Historicus." Will it be credited that it is from the man who has written thus P " Historicus," p. 1 69 :— To equip and arm a vessel of war within the United Kingdom is not j)e)' se an offence agaii.st the statute. Page 171. — Secondly, it shows that the authors of the Foreign Enlistment Act were not so absurd and illogical aa to have i'orhiilden the cqui)ti>ing and arming oi' a bIuii for sale, whilst TlIK T-iriTEKS t)F " ITIS'JOHHTS." 115 they did not torbid tlio making mid selling of a park of artillery. It will be seen that this dcxjtrine, laid down on the conjoint authority of Canning and Jluskisson, is identical with that established in the case of the Santisainia Trinidad, and it is both law and common sense, which are not so seldom coupled together as ignorant persons are apt to suppose. And again, p. 168 : — The Foreign Enlistment Act is directed, not against the animus vendendi, but the ' I V 1 if" j ^' iir 11C> nnuiinN i;\i,isTMrAT acts. f'orlli ? And are not the remarks as to a perversion of tlu^ law receiving now tln-ougli the pen of the writer of them himself a most signal realisation ? In the third portion of his answer •' Historicus " says the reason for non-interference in the first class of transactions, that of dealing in warlike munitions, is the lack of anthority. Here again he avoids noticing that anthority which was put in motion to draw attention to the illegality of that which is of daily occurrence — viz., the conveying in our very mail-packets contraband to the belligerent port of New York. And he says they stop the second class of transactions, that in which the Messrs. Laird are concerned, because it is their business to enforce the law. " It is the duty of the English Government," says " Historicus," " to enforce the law against all those who seek to violate it." Let this duty be impartially carried out, then ; if the law is against armed ships quitting these shores for the South, let them be detained, but in conjunction with the arrest of the export of arms and other munitions of war in our mail-packets to the North. But without this joint action it would be, as I showed in an earlier letter, most unjust at this stage of the war to pro- hibit to the one only, what has been for three years of war allowed freely to both belligerents. Side by side in the Mersey lie these " rams " and our mail- steamers, both in a legal sense liable to capture by *-- THE LKTTERS OF " IllSTORICUS." 117 a belligerent, the one as being contraband in itself, and the other for having contraband on board. The belligerents have thns equal grounds of *' com- plaint and dissatisfaction " against us for making our ports those of departure for such articles of contraband ; or, at all events, if the North may^call upon us to enforce our laws against the South for an alleged infraction of our Foreign Enlistment Act in the matter of equipping ships, so the South may dictate to us to see the same law enforced against the North in the matter of their instigating our subjects to carry to their ports arras and munitions of war. f*'- i^^ 118 ioiii:i(i> i;m,i.st.mi:n'I' a(vi's. CHAPTER. X. COX('r,in»lNlJ IJEMARKS. i I^EW can witness the prosecution of a large and - liiglily respectable firm without evincing strong feelings of sympathy in their behalf. Had that firm been notoriously guilty of open infractions of ordi- nary comnionjjlace laws, men would have viewed with satisfaction their trial and condemnation. But that men of influence and position like the defen- dants in the Alemndr't case and the Messrs. Laird should have their yards invaded by police and military, and should themselves be arraigned on the informations of the vilest of spies and informers, were facts sufficient to arouse the in- dignation of many and the sympathies of most of their counti-ymen. Above all, that they should be the first in this country to be prosecuted under that Act, which on all sides is said to be at the best but doubtful, raised a further degree of consideration for them. This was again increased when it became evident that the prosecutions were pressed upon the Government by a clique whose only pretensions to any importance in England consisted in the fact that they retained some appearance of consistency and CONCLU I)iN(i |{ EM A U K S. 110 coherency, by hoisting the colours of those glorious men of old, Buxton, Brougham, Wilberforco, and others, and who by assuming the title of the Emancipation Society attempted under that title to appropriate to themselves that hard-earned repu- tation which had so worthily been attained hj their predecessors. That they have not succeeded is too plainly shown by the cold indifference exhibited towards them by Lord Brougham and the descen- dants of those very leaders, Buxton and Wilberfoi'ce. These latter, in their speeches and writings, have clearly denounced the existing Society as altogether unworthy of being allowed the title of successors of the original heroes of anti-slavery. Wliilst the founders of such a really noble cause gave their best intellects to the sole object of furthering the manumission of slaves in our dominions, these suc- cessors, having no such aim left them, have certainly devoted some small efforts to the extinction of slavery in a foreign State ; but having allowed these efforts of late years to subside, they have only revived tliem when their originally sacred cause has become submerged in attempts to support the so-called freedom of the black at the expense of the white population, who received the institution of slavery as a forced legacy from England. That Society, which originated in the pure fount of real liumanity, lias degenerated into a political cli(iue, tl I V 120 I'oKKKiN rAl.lSl'MKNr ACTS. which exists at the present inoinent ])ut to support, iiiider the pretence of Aholitiouisni, tlic most Ijuteful and barefaced attempt at siil)jngation, nay, as l)()hily asserted by certain Abolition leaders, even an exter- mination — " (ireek fire for the masses, Hell fire for the leaders." 'fhat such a society so constituted, and witli such ends in view, slioidd be taking the initiative iu a<;'o;ression against sound and respected subjects of the Crown, speaks volumes as to the animus of the j)resent prosecution. Our Govern- ment may be the nominal ])rosecutors, but Brown- low, Ward Beecher, and their English dupes and partisans , are the instigators. Such facts will be well weighed by English juries, who will without fail give the benefit of 'he doubt, if doubt exists, to those who in the ordinaiy course of their daily trade are rendered lijible to such assaults at such hands. The Navy of England, both military and mercantile, and our trade in sliipping, arc too popular and too closely connected with our dearest interests to be wilfully sacrificed to the demands of sucli men as these, now doing their best to procure the downfiill of the most vital portion of our mival interests, and who, in all that concerns their native country, are invariably found to take that view o[)p()sed to the general good of this land and its best institutions. As this Society and its adlicreiitsj from a nuxcd intention of good and Iri CONCLUDING UEMAHKS. 121 M]>|)()rt, hiiterul ■i boldly II oxtcr- firo lor stituted, nng tlio Dapected s to tlio Goveni- ] Br own - ipes and di juries, >c doubt, L-y courso to sucli and, both slupping, with our d to the ing their lost vital u all that ibly found ood of this :)ciety and p,-ood and evil, and from mingled ideas of morbid philanthropy, and the assistance of the Yankee attempt at sub- jugation of a great and high-spirited people, are stealthily working for the furtherance of those ends, they are supported by a certain set of politicians in this country, who use every effort and miss no opportunity to vilify everything English, and to la\ul with fulsome adulation everything American. We have, moreover, a Government, who, dependent in great measure for their existence upon the support of the Radical portion of our representatives, are com- pelled to keep in view their constant conciliation. This may explain a passage notable for its rashness in a speech lately uttered by one of their body. Mr. Layard, in addressing his constituents a short time since, put a question and provided an answer which, if founded on actual law, should lay to rest all further doubt of the righteousness of the prosecution of our shipbuilders. " Why," he said, " it is asked, may we sell muskets to belligerents whilst we may not sell ships ? Because," said he, " the one is allowed, but the other is forbidden by law." I venture to challenge Mr. Layard to reveal that law in the Statute Book of England containing such prohibition. If such law is extant there can be no further need of discussion : let the Attorney- General produce it, and there is an end to the case. If this, moreover, is so, why in the ninety-eight counts K ffe, in \2'2 FuUMION KNLlSTMKSr .\*"l'>. m ■ p ■ ! l.-ii I, 'I it against tho Altxandra ia thoiv nut ono to stiK^iiitizc llio sale of tho ship us iinlawriil r If the sale is ilU'^al, wliy waste so much time in attcinptinf^ to provo tlio (upiipiniMit and intent? Why are not all eftoi'ts concentrated with a view to prove sale and destination? If the sale is unlawful un(h>r our statute, and that statute is an admitted copy of the American model, how can it be explainetl that the Supreme Court of the United States declares in the ease of tho Tnnldad, that "there is no law pre- venting* their citizens sellinpf ships of war to l»(.'lligereiits ?" If om* statute forbids the sale of a ship to a belligerent, how is it that '* Ilistoricus," who has ventilated the subject iu every possible form, has arrived at tho deliberate conclusion, viz.: " That from the authoritative expositions of the Act by Cannhig- and Huskisson, a subject nuiy sell a ship of war, as he uiay sell a musket, to a belligerent ? " How was it that Lord Palmerston stated in tho House "that he believed, had he sto])ped the Alalnuna the Government would have been liable for damages ? " Earl Russell has, " after anxious consideration of the question with his colleagues, decided that it must be shown that the owners intend to employ in a hostile way the said ships." This decision is in exact ac- cordance with the rule of Washington and the judg- ments of the Supreme Court of the United States. It is also the identical order issued to the Collectors ■ I CONr;i,l'l)lNO KKMARKS. 123 of Customs at the United States ports, '* tluit they sliall detain no vessels, thf)ugh manifestly intended for warlike purposes, whore the owners give security tliat thoy (theowniu's) do not intend using them in a manner hostile to those at peace with the United ►States." The more the matter is debated in our courts and "out of doors" the better founded will become the suspicion that Earl Russell, the respon- sible Foreign Minister of our Government, having at first made a stand upon grounds of existing law, iustice, and precedent, has, at the eleventh hour, unhappily for the independence of himself, his Government, and his country, seen fit to knuckle under, not to the firm and dignified remonstrances of a foreign ambassador, not to honourable, openly expressed demands of an indignant people, but to the cowardly and underhand pressure brought to bear upon him by the miserable remnant of what Avas once a great and glorious band of honest Aboli- tionists, and by that section of politicians in this country who seek to elevate everything American, or rather Yankee, upon the ruins of British Institu- tions. Sure I am, that ere long the scanty veil of hypocrisy will be torn from the brows of these men. Those thoroughly honest though rough sentiments of our English citizens of all classes, which, though tardy in coming to the surface, are certainly ever existing with us, will then be developed, and, as we 124 FOREIGN ENLISTMENT ACTS. have always experienced, will produce such a reaction as will carry all before them ; and then will be duly appreciated the services of those who are now as- sisting in the laudable and manly attempt at crushing the weak, subjugating the brave, and exterminating the helpless, — and all tIJs for the merest idea I :^!-if ! <