that all these facts are made known to the government of the United States, and that they are invited, for nothing more could occur than invitation, to act upon the subject. With respect to the idea of one government acting in pressure upon another, it may be very well for an eloquent advocate, like my learned friend Sir Hugh Cairns, to suggest or insinuate such a matter; but to those who have any knowledge of the relations and the manner of conducting relations between governments, it is perfectly well known, and does not admit of any doubt, that beyond a representation or request no foreign government dares to go in its communications with another in such cases. Well, I put that case, and I ask whether an interference of the British minister or the British consul such as I have mentioned would not only be warranted, but, with respect to their own country, would be a fair discharge of his duty? What is there in the present case that shows, or what foundation is there for imagining or suggesting to you, that anything beyond those limits has been done on the part of the American consul or the American minister? The American consul is stationed at Liverpool; he is on the spot; he is the person who, if he were not, (I have used the expression before, and I will repeat it,) I say, if he were not on the alert in the interest and for the sake of his own country with respect to matters of this kind, would not be doing his duty; he is in a position in which, if such proceedings were going on, they would be very likely to come to his knowledge; he is very likely to have the means of knowing the persons of those who may still rank as his own countrymen. The knowledge of the American consul is likely to be such as would give him facilities and advantages with respect to the knowledge of persons and the knowledge of the proceedings of persons visiting that port, members at the present moment of either the northern or the southern States. And when my learned friend suggested that the United States urged these proceedings, and put it to you as if I had made any such statement in my opening address, he made a mistake. I made no such statement. I said, and I said advisedly, because I thought it ought to be known, that the Crown has nothing to keep back or conceal; that the information which was deemed by those who advised the Crown important and sufficient for the purpose was furnished from the hands of the American consul at Liverpool, and was treated in the ordinary and proper manner-that is to say, it was laid before those who advised the Crown, upon the advice of whom the seizure was made; and there begins and there ends-I will not venture to call it the connection, for connection it is not-there begins, I say, and there ends, as far as the Crown is concerned, the action of the American government, either on the part of the consul or on the part of the minister in London. This information being supplied to the Crown, to suppose that in these proceedings the government have been influenced by the American government, or any officer of the American government, is as pure a piece of imagination as the imaginary report of which my learned friend has spoken, thinking, I suppose, at the moment, that he was jocose, and not meaning you to take it seriously. I say it is just as imaginary and just as much without foundation as the imaginary report which my learned friend asked you, I presume in jest, to suppose that an officer of the Crown might have presented to the government. My learned friend says, I can imagine this statement laid before the law officers of the Crown, and I can imagine their saying, Why, there is no case here; there is no substantial proof; you must fail if you go into court; but the American government are urgent, and they ask you to see what can be done; and therefore you may as well seize the ship and file an information, and see what comes of it. Gentlemen, my lord the chief baron has himself been a distinguished officer of the Crown, and I am quite sure I shall have his support when I say that, unless you are to treat this as meant in a purely jocular sense, my learned friend has imagined that which is not merely unlikely, but simply impossible; and he knows it; and I will to that only add, that if such a proceeding as between this government and its advisers were possible, and were to occur, it would be one which ought to consign to disgrace the law officers who so advised the Crown, and ought to banish from office with ignominy the minister who adopted or listened to such advice. I am afraid I may be giving too much importance to these observations, but it is impossible to tell beforehand what weight may be put on any observation made by so grave and learned a personage as my learned friend Sir Hugh Cairns. I therefore repeat, that if this was not intended as a jocular imagination, not perhaps very clearly developed, there is nothing in it to which you could be expected to pay any attention whatever.

I now come to a series of observations of my learned friend, a good many of which, I think the greater part of which, must have been intended, or should probably have been addressed to the learned judge. My learned friend urged a great many legal topics, no doubt, in the hearing of the chief baron, but also in your hearing, and apparently directed to you, which bore exclusively upon questions of construction of the statute and other matters of law; but as my learned friend took that course, I have no option but to follow him through his observations. I will, however, ask the attention of my lord the chief baron upon those points to which I shall have to advert, and which may rather be matters of law. With respect to the matters of fact I am sure I shall have your attention, gentlemen, and before I sit down I will endeavor separately and distinctly to lay before you the actual state and proofs of the facts disconnected

with matters of law; as to which last-mentioned matters you will take the direction of the chief baron, and with the discussion of which you will not therefore have to disturb your minds. My learned friend, among other matters of law, said, and it is not for me to controvert the proposition, that it was perfectly lawful for the subject of a neutral state to sell a ship, complete in her equipment, in all respects fit for warlike purposes, to a belligerent. Now, gentlemen, there would have been a great deal of force in that if my learned friend had been able to suggest (what, if it be the fact, he could easily prove) that this vessel, the Alexandra, was intended to be offered for sale as a contingency, which offer might or might not have been accepted by any belligerent, or any one of those two belligerents; but on the face of it the evidence, which was uncontradicted, shows that there was no such object or purpose as the construction of a vessel of war with a view to offering it for sale, or to obtain a purchaser from either of the belligerents. The intent would be there that the vessel should be equipped with intent to be offered for sale, and if a belligerent purchaser could be got, then to sell it to that belligerent purchaser; that would be the intent in the case supposed, whereas the intent alleged, and which must be proved to your satisfaction in this case, is an intent that the vessel when completed should not be sold, but should at once proceed to be employed in the service of one of those belligerents, I mean the Confederate States; therefore I at once dispose of the observation of my learned friend on the legality of a sale, by observing that we have no proof or even suggestion of an intention; and therefore, except for the purpose of leading your minds to conclusions foreign to the case, I do not really see

LORD CHIEF BARON. Do you admit that a ship-builder could sell a vessel to either of the belligerent parties?

Mr. ATTORNEY GENERAL. I say that there was no intention to sell.

LORD CHIEF BARON. But do you admit that it would be lawful for a ship-builder to build a ship for general purposes and then sell it to either of the belligerent parties? Mr. ATTORNEY GENERAL. If there were no intent in the course of equipping, or furnishing, or fitting out the ship; if there were no formed or decided intent that the vessel should enter into the service of either of the belligerents, without saying affirmatively that that might come under other considerations, I say the case would not be that which is contemplated under this statute.

LORD CHIEF BARON. I am asking with a view to obtain some information as to what your opinion of the law is. I ask you whether, in your opinion, it is lawful for a shipbuilder to build a vessel which may have a warlike aspect, a vessel capable of being turned into a warlike vessel, whether it is lawful for a ship-builder to build such a vessel, with a view to offer it for sale indifferently to one or other of the belligerent parties?

Mr. ATTORNEY GENERAL. I would rather confine my answer to this, that I do contend that any intent by a builder of a vessel other than that which we charge here, namely, the intent that it should enter into the service of a foreign power at war with another and at peace with the British government-I say I do not allege that any intent short of that would create an offense under this act.

LORD CHIEF BARON. I have of course no power to enforce an answer to the question I have put to you if you decline to give it.

Mr. ATTORNEY GENERAL. My object in not wishing to bind myself to any conclusive answer is this, that as it appears to me, the facts and circumstances of the present case give no rise at all

LORD CHIEF BARON. I am not quite sure of the facts because you did not give me an answer; if you give an answer, I should put another question, and then you might perhaps see that it was perhaps very germane to the inquiry. I have no hesitation in saying that, according to all the authorities and all the decisions that we can get at, a ship-builder has as much right to build a ship and to sell it as a maker of gun-powder has a right to sell it to any belligerent parties, or the maker of any sort of cannon or muskets, or pistols, or anything else. It is laid down in Kent's Commentaries on American Law that it is the right of neutral subjects to supply both belligerents with with arms, gunpowder, and all munitions of war; to which I add, why not ships?

Mr. ATTORNEY GENERAL. I do not controvert the proposition, nor do I controvert the doctrine laid down in the two cases of the Independencia and the ship Alfred, which is the case in 1st Curtis which was cited this morning. And the note is, that it is not a violation of the neutrality laws of the United States to sell to a foreigner a vessel built in this country which may be completely equipped for war, but which is frequently used for merchant purposes. The Independencia is a fuller case. That was a case in which a ship was fully equipped and ready for immediate warlike purposes, but there was no formed intent that she should enter into the service of any belligerent power, the intent being that she should take her chance of finding a customer in some belligerent or other.

LORD CHIEF BARON. Apparently, then, you concur in what I state?

Mr. ATTORNEY GENERAL. I do not deny those authorities, but I distinguish them very much indeed from this case. I say that they have no bearing on the present

case. The present case I put forward, as it was put forward at the onset, as being a case in which a particular intent is discovered to have existed, and I prove

LORD CHIEF BARON. The act does not say that it is unlawful to build a vessel with that intent.

Mr. ATTORNEY GENERAL. I shall come to my learned friend's observations on these various points in their order. I have taken a careful note of the argument of my learned friend, and I will not pass over any material part of it, and that is one of the subjects to which I shall have to advert.

The next contention of my learned friend was this, that to bring the case within the statute the vessel described in the seventh section must be a fully armed vessel issuing out of a port. Now I cannot, of course, agree to that argument, or adopt that view of the section of the statute, because it is upon the surface of the statement in the first sentence which I addressed to the jury that this was not an armed vessel. The whole history of the matter is now before the jury. Of course, there was never any idea of suggesting that the vessel was armed. I will come hereafter to the arms that were probably intended to be put on board her by-and-by, but at the time of the seizure the vessel was in the state which I described, built for warlike purposes, and for those only, but not having received any armament on board. Now, addressing myself to this point, I have no doubt your lordship has observed that those various words (and they are numerous) which are used in the statute, such as "equipped," “furnished," "fitted out," "armed," and so on, are used not conjunctively, but alternately.

LORD CHIEF BARON. They are used conjunctively in the preamble and disjunctively in the enacting clauses.

The ATTORNEY GENERAL. Yes, my lord; and I shall show your lordship good authority that the true construction, as I understand it, whatever may be the language of the preamble, is disjunctive. It is used disjunctively.

LORD CHIEF BARON POLLOCK. Certainly my present impression is that they all mean precisely the same thing, "that it is not lawful to equip, furnish, or to fit out or to arm" for a particular purpose with a particular intent, and that there is no distinction for this purpose. That to equip a ship of war you must furnish it with arms. Furnishing it, imports arming in the French language; using that very expression, "to arm." I apprehend that all these words mean substantially the same thing, whether you call it "equip," or "furnish," or "fitting out," or "arming," is commonly applied thus, it is said that a vessel is fitted out in such a basin-meaning it is fitted out for useful purposes.

The ATTORNEY GENERAL. My lord, there are other material words to which I will call your lordship's attention. It is not only a violation of this section that a person shall equip, or fit out, or arm, or furnish, but if he shall attempt or endeavor to do so, or shall procure the thing to be done, or shall knowingly assist or be concerned in aiding with the intent. Therefore any one of those, or the endeavor, or being concerned in the attempt to do any one of those, as I submit to your lordship clearly on the terms of this section, would bring the case within its operation. That would be a matter for your lordship's direction to the jury.

But if one might, in addressing the jury, advert to the consequence of such a construction being adopted, it would be very easy to show that if it were to be adopted on authority the foreign enlistment act would be a dead letter, and might as well be thrown into the fire or repealed, indeed, rather than be kept in the statute book inoperative as it would then be, because we do not need to draw, as my learned friend did in some cases, upon a vivid imagination. We have, as a matter of evidence before us in the case, the history of the Alabama, and that is a very instructive comment on the results of such a construction as my learned friend contended for in this respect of the foreign enlistment act. He says that to constitute a violation of this section the vessel must be armed. Now, then, what would be the consequence? I quite agree that whatever the offense, it must be committed within the dominions of her Majesty in order to be cognizant by English tribunals. What would be the consequence of this construction? We do not need to draw on imagination, because we have the example of the Alabama staring us in the face. My learned friend stands on the word "armed." As long, therefore, as you stop short of arming, according to this argument, the executive cannot interfere. The vessel cannot be seized. The carrying out of an obvious intention of hostility toward a friendly state cannot be prevented. Now, then, take the case of the Alabama. We are not told precisely, nor is it material, in what particular state of preparation that vessel was when she left her moorings at Birkenhead, opposite to Liverpool, but we know that she was not armed. We know, in point of fact, that she obtained her armament at Terceira, but Terceira is, for the purpose of the present observation, merely a place out of the Queen's dominions. She would have obtained her armament equally well out of the Queen's dominions if there had been a tender lying with that armament in the Irish channel, four miles say from the nearest point of the English coast, and of course an equal or greater distance from the Irish coast. Now suppose that to have occurred, the British government to be

informed on credible and incontestible evidence-I have a right to take it so far that the Alabama, or No. 290, as she was called, has been built for the express purpose, and is being completed with the direct intent that she shall, as soon as safely she can out of reach of British law, take on board her armament, and then immediately assume the character and proceed on the operations of a ship of war-I put it to you some time ago, supposing that to be done once, and supposing the knowledge of all that to be brought to the officers of the British government, and then supposing the same thing to happen the next day or the next week, a similar ship, a similar destination, a similar preparation, and a tender or other vessel lying outside in like manner to furnish and complete the armament; and if you suppose that such instances recurringand if the law would be as my learned friend contends in one instance, it would be so in one thousand, or five thousand, or ten thousand-supposing those cases to be recurring from time to time, and the officers of the British government to be distinctly informed of them, and to be affected with distinct and clear notice, and yet no proceeding taken to prevent the departure of any one of those vessels from the British port-I ask you whether the provisions of this section would not be rendered entirely inoperative by reason of the easy and obvious means of evading the law almost under view of the officers and ministers of that law? I then appeal to the language of the statute. That is an observation to my lord. I find that "arming" is used as an alternative expression, and I find that it is used equally as an alternative expression, both where it is spoken of as directing an arming and where it is spoken of as endeavoring or being concerned in the arming or in the equipment of the vessel.

LORD CHIEF BARON POLLOCK. I have got the word "equip" in Webster's Dictionary: "Equip, to furnish with arms, or a complete suit of arms for military service." Thus we say, to equip men or troops for war, to equip a body of infantry or cavalry. But the word seems to include not only arms, but clothing, baggage, utensils, tents, and so on. Then, again, the third meaning is, "To furnish with men, artillery, and munitions of war, as a ship." Hence, in common language, “to fit for sea, to furnish with whatever is necessary for a voyage."

The ATTORNEY GENERAL. My lord, I must still address your lordship on the argument of my learned friend, to which I have now arrived, on the construction which is to be put on this seventh section. My learned friend, as I understood him, contended that that raised an argument on the use of the words "or with intent to cruise or com mit hostility," occurring rather low down in the section; and he contended that those words were to be disjoined from the previous expression, as to being employed in the service of a foreign power. Now, my lord, the words of this section, passing over the difference between "equipping" and "endeavoring and being concerned," and so on, point to the equipment or fitting out, in the first place; and it then describes, "with intent or in order that such ship or vessel be in the service (I may take it short) of a foreign state as a transport or storeship." Now, my learned friend contended that with the expression "storeship" the connection of the ship being employed in the service of a foreign state ended, and that those words, therefore, could only apply to the case of a storeship, and would not apply to the other case mentioned, of the intent of the use of the vessel, being that it should cruise or commit hostilities.

LORD CHIEF BARON POLLOCK. In that I own I do not agree. I think that those four words were not meant three of them to be applied to the transport, and the fourth to the vessel of war. I think they were all meant to apply to the same matters.

The ATTORNEY GENERAL. I was only going to make this observation, which would seem to my mind to be conclusive on the correctness of this view. If my learned friend's argument in this respect were well founded, then this would follow, that you would violate the act if you fitted out, to be employed in the service of a foreign state, a transport or storeship, without reference to the existence of a state of war. Therefore, a merchant or a ship-builder at Liverpool or at. Plymouth, building a storeship, say, for the Portuguese or the Spanish government-governments which have no war with any other state-according to my learned friend, would violate the earlier provisions of the section. And there is this further remark, that when he comes to "intent to cruise or commit hostility," disjoining that from "being employed in the service of a foreign government," he would make it descriptive of that to punish or to repress which no act of Parliament would be required, for it would be flat and simple piracy, to be visited with the consequences of that crime on any British subject, which I think my learned friend described as "cruising on his own account." It would come to this, that you could not, without violating an act of Parliament, build a storeship for a foreign government at peace with all the world; nor would you violate this section if, in cruising and committing hostilities, you did so in the service of a belligerent state. It appears to me, upon those two grounds, that that part of the argument of my learned friend so completely fails, that I will not, especially after the intimation of your lordship's opinion, occupy more time upon it.

Then I think my learned friend referred to the eighth section, which prohibits the adding to the number of guns of vessels which are already in the service of a bellige rent state. It is, that any person who, either within the seas or in any part of her

Majesty's dominions beyond the seas, without leave or license, shall, by adding to the number of guns of the vessel, or by changing those on board for other guns, or by the addition of any equipment of war, (here is the offense,) "increase or augment the warlike force of the ship, shall be visited with the consequences of a violation of the act.” Therefore, we have, in the section immediately following, a section which is properly to be considered a prohibition of increasing the warlike force of a vessel already furnished and cruising as a vessel of war. Whereas, according to my learned friend's construction, you might add in effect to the navy of either belligerent vessels of war, with the guns and munitions complete, provided only you either do not put on board a complete armament before the vessel leaves the ports of Great Britain, or provided you (as my learned friend calls it) cruise on your own account as a pirate and do not take service under any lawful flag. My learned friend (as your lordship and the jury will recollect) entered into a good deal of comment as to what had happened with reference to the discussion pro and con on the foreign enlistment act, and he sought (I suppose such must have been the intention of my learned friend) in some way to influence your lordship's decision on the meaning of the act of Parliament as it stands, by reference to discussions and observations of very eminent statesmen, my learned friend at the same time discreetly availing himself of the opinions of certain of those eminent men only; for my learned friend knows well that there was considerable diversity of opinion expressed on the subject. Now, my lord, the debates, as your lordship is well aware, which took place previous to the passing of this act were frequent. Men of the greatest parliamentary eloquence and genius took part in them on the one side and the other, and very opposite opinions were expressed, as happens when you have a debate-the opposition taking one view and the government another-very opposite opinions were put forward in the statements and in the speeches of very eminent authorities. When I tell you that the debaters on the introduction of this bill included Mr. Canning, Sir James Mackintosh, Sir William Scott, afterward Lord Stowell, Mr. Scarlett, Mr. Denman, and eminent members of the legislature of that class, I need not apprise you that if any of you, after this inquiry has come to an end, feel disposed to sit down and obtain the volume of Hansard for the year 1819, and to occupy a leisure hour or two in reading a very excellent report of very eloquent speeches in Parliament, you have the means of so entertaining and instructing yourselves; but I cannot perceive the bearing of those discussions or of the observations of those statesmen on the question which we have now to discuss. I think the case of necessity occupies and will occupy quite enough of your time and of the time of my lord to render it the duty of counsel not to engage your attention and to occupy your time in matters which are not strictly relevant; and I will therefore pass away without any more immediate or detailed comment on the observations of my learned friend by repeating the remark, that there are observations on the other side which might be cited and might be laid before you. But I think that form of answering what my learned friend has said would be unfair to you and an unfair use of the public time.

There was a subject to which my learned friend referred upon which I will simply say a word. He alluded to, and he went at some length into, the history of what is called generally the Terceira expedition. I did not myself perceive quite the bearing, even allowing the general latitude which my learned friend took of that expedition, or of the circumstances connected with it at all events, on the defendants' case. I believe the fact to be, as a matter of history, that that expedition was highly disapproved of by the government of this country, who showed their disapprobation in a very strong and not warrantable manner, according to the law of nations, for the ships of that expedition were seized in the waters of a neutral and friendly power, and therefore, so far as the views and action of the government of that day itself were concerned, they did not view that expedition in a favorable light, but rather seem to have dealt with it with a high hand-I admit as a violation of international law. Mr. Huskisson's remarks I will not further advert to; they come within the observations made as to the speeches of writers and eminent statesmen on the one side and the other. Mr. Huskisson, at the time when he made the observation to which my learned friend has referred, was the leader of the opposition in the House; and it may be pretty certain, if we could have access to the observations of the leader for the government, that we should find very opposite and very conflicting views on the matter put forward.

But now I come to the authorities which my learned friend cited, and which I mentioned just now to my lord-I mean the cases of the Independencia and the Alfred. Upon those I have to make this observation, and this only. They were founded on the American statute, but I am not aware that there is any difference material to the present consideration between the language of the statute of that country and the language of our own foreign enlistment act.

LORD CHIEF BARON. It is given by Lord Chancellor Kent in his commentaries; I think they are as nearly as possible the same.

Mr. ATTORNEY GENERAL. I think they have not got the word "or," but I have got the word "and."

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