But I meant, gentlemen, as I said then, if I had got an affirmative answer to that question, to put another. If any man may build a vessel for the purpose of offering it to either of the belligerent powers who is minded to have it, may he not execute an order for it? Because it seems to me to follow as a matter of course, if I may make a vessel and then say to the United States, "I have got a capital vessel, it can easily be turned into a ship of war; of course I have not made it a ship of war at present; will you buy it?"-if that is perfectly lawful, surely it is lawful for the United States to say: "Make us a vessel of such and such description, and when you have made it send it to us." Now the learned counsel certainly addressed themselves very much to this view of the matter. It was said, But if you allow this you repeal the statute. Gentlemen, I think nothing of the kind. What that statute meant to provide for was, I own, I think, by no means the protection of the belligerent powers. I do not think their protection entered into the heads of those who framed this statute. Otherwise they would have said: You shall not sell gunpowder-you shall not sell guns. There are places that now and then explode in different parts of the kingdom, and which would have complained very heartily if they had said: You shall not sell gunpowderyou shall not sell arms. Why, all Birmingham would have been in arms. But the object of this statute was this: We will not have our ports in this country subject to possibly hostile movements; you shall not be fitting up 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 equipping it in the same way, which might come into hostile communication immediately, possibly before they left the port. It would be very wrong if they did so, but it is a possibility. Now and then it has happened, and that has been the occasion of this statute.

Well, if that be so, let us see what is the condition of this vessel. The vessel was clearly nothing more than in course of building. I do not know what conclusion you would come to as to what service she was intended for. If it became a matter of importance to decide that, it would be a question for you to decide whether it amounted to more than a strong suspicion, or whether it was so made out to your entire satisfaction as to justify a verdict in that direction. But, gentlemen, I do not propose to put that to you; nor do I think it worth while to follow the learned attorney general through the whitewashing of Clarence Randolph Yonge; because, after all, what he proved seems to me to have the least possible connection with, or effect upon, the real question in this case; which I take to be this: Was the vessel built, or was it merely in course of building?

Now, gentlemen, I present the matter to you in another point of view. The offense against which this information is directed, is the "equipping, furnishing, fitting out, or arming." Gentlemen, I have looked, so that I might not go wrong, (as we have the advantage of having it here,) at Webster's American Dictionary, a work of the greatest learning, research, and ability. No one can complain that I refer to that. It appears there that to "equip" is to "furnish with arms.” In the case of a ship especially, it is "to furnish and complete with arms." That is what is meant by "equipping." "Furnish" is given in every dictionary as the same thing as "equip." "To fit out," is "to furnish and supply," as to fit out a privateer. And I own that my opinion is, that "equip," "furnish,' "fit out," or "arm," all mean precisely the same thing. I do not mean to say that it is absolutely necessary, (and I think that the learned attorney general is right in that;) it is not perhaps necessary that the vessel should be armed at all points; though it may be that the case cited from 6th Peters's Reports by the learned attorney general, somewhat late in the day, is a case where the jury found that the vessel was actually fitted out. They found so most properly, for she actually sailed away with the captain, who afterwards turned her into a privateer, and she went away in a great measure fitted. The jury found that she was fitted. The question is whether you think that this vessel was fitted. Armed she certainly was not, but was there an intention that she should be furnished, fitted or equipped at Liverpool? Because, gentlemen, I must say it seems to me that the Alabama sailed away from Liverpool without any arms at all; merely a ship in ballast, unfurnished, unequipped, unprepared, and her arms were put in at Terceira, not a port in her Majesty's dominions. The foreign enlistment act is no more violated by that than by any other indifferent matter that might happen about a boat of any kind whatever. Now, gentlemen, I do not know whether you desire me to go over the evidence.

The JURY. Quite unnecessary; quite unnecessary.

LORD CHIEF BARON. I think the most important evidence given is that of the Commander Inglefield, of whom both sides have spoken in the highest terms of approbation and respect. Captain Inglefield said this: "I am captain of her Majesty's ship Ma-, jestic, at Liverpool. I have examined the Alexandra. The examination took place subsequent to the seizure. She is principally teak, strongly built; certainly not intended for merchandise." I do not think it has ever been pretended that she was intended for merchandise. "Might be used as a yacht; easily converted into a vessel of war. " And, gentlemen, certainly I was pleased to observe the candor and fairness with which a man like Captain Inglefield spoke of the matter. Everybody else who 9 A C-VOL. V

came (so far as I remember) had to be cross-examined before they said anything about its being fit for a yacht. Captain Inglefield said it was probably as fit for a yacht as any vessel ever built-"easily convertible into a vessel of war, and her strength is sufficient for that purpose; she has complete accomodation for men and officers; as to stowage, she has only stowage sufficient for her crew, suppose her crew to be thirtytwo men; she is capable of being converted into a man-of-war; but there are no guns or preparations for that; she is without any of those appurtenances which indicate any indication of guns being put on board; she might have two or three guns; probably she would carry three of various size; the bulwarks would be low in a man-of-war; these bulwarks were low, but not of the same description I have seen." Then he is cross-examined: "The vessel was fitted for a yacht; not capable of being used for merchandise, not room for cargo; there is no difference between its entries and those for a yacht. In short, what he makes out is, that she might have been built for a yacht or might have been built as a vessel capable of being convertible into a war vessel. But the question is: Was there any intention that in the port of Liverpool, or in any other port, she should be, in the language of the act of Parliament, either "equipped, furnished, fitted out, or armed" with the intention of taking part in any contest? That there was a knowledge that very likely she would be so applied, there can be no doubt, as there is when persons send powder. I take it for granted that there are agents on both sides. One openly buying every munition of war, (and they have a right to do it, and the subjects of this country have a right to sell to them,) and openly carrying them away; the others buying wherever they can, and probably endeavoring to break the blockade, or to smuggle in some way or other the same description of manitions of war. Gentlemen, if you think the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then that is a sufficient matter. But if you think the object really was to build a ship in obedience to an order, and in compliance with a contract, leaving it to those who bought it to make what use they thought fit of it, then it ap pears to me that the foreign enlistment act has not been in any degree broken. I leave you to find your verdict, unless you wish me to read the evidence over to you. The JURY. No, we do not wish that, my lord.

ATTORNEY GENERAL. Before the jury give their verdict, perhaps your lordship would give us an opportunity of tendering a bill of exceptions to a portion of your lordship's ruling.

LORD CHIEF BARON. I will except any bill of exceptions you wish to tender. ATTORNEY GENERAL. Strictly speaking, it must be done before the verdict is given. SIR HUGH CAIRNS. Anything in point of form we will dispense with. The convenient way would be to do it afterward, I suppose, from the notes of charge. The jury considered their verdict for a short time.

The ASSOCIATE. Have you agreed to your verdict, gentlemen?

The FOREMAN. Yes.

The ASSOCIATE. How do you find?

The FOREMAN. For the defendants.

The ASSOCIATE. You find a verdict for the claimants?

The FOREMAN. A verdict for the defendants.

The ATTORNEY GENERAL. Would your lordship allow me to hand up a very brief note, so that there may be no mistake? (handing a paper to his lordship.)

SIR HUGH CAIRNS. Perhaps your lordship will let us have a copy of it?

LORD CHIEF BARON. It need not be done now. You may wish to put it in some other shape. There will be no mistake about it.

The ATTORNEY GENERAL. I was only anxious that we should quite understand what your lordship has ruled and laid down to the jury. That is very shortly stated.

LORD CHIEF BARON. I have no doubt that there is a very good note taken of what I have said. You have got here," that the vessel was not intended to be fitted." It should be, "that the vessel was in course of building, for the purpose of performing the contract, and that there was no intention that she should be equipped or furnished, or armed, or fitted out at Liverpool.

The SOLICITOR GENERAL. That was not what your lordship said.

LORD CHIEF BARON. Certainly it was.

The ATTORNEY GENERAL. I understood your lordship to say that if the building was in fulfillment of a contract.

LORD CHIEF BARON. And it was not intended that she should be equipped, fitted out, and furnished, and so on, at Liverpool.

The ATTORNEY GENERAL. Then there are the other points, my lord.

LORD CHIEF BARON. Every question I put to the jury, I put in the language of the act of Parliament, that if it was not intended that she should be “equipped, furnished, fitted out, or armed" at Liverpool. I took special care of that.

The ATTORNEY GENERAL. I think that is the point.

LORD CHIEF BARON. No, you have got here that if the vessel was not intended to be furnished.

The ATTORNEY GENERAL. No, my lord, it is "furnished or fitted out."

That every

The SOLICITOR GENERAL. Your lordship said the words were the same. one of the words required a warlike armament at Liverpool. That is the point. LORD CHIEF BARON. Mr. Attorney General, I will not bind you to what passes at the present occasion. There cannot be any doubt now. I cannot alter the thing, and I have no doubt that you have a very accurate note of what I have said.

The ATTORNEY GENERAL. I only wish that we should have your lordship's concurrence now, while the matter is fresh in your lordship's recollection.

LORD CHIEF BARON. It cannot be a question of recollection. Depend upon it there is an accurate note taken of what I have said.

The ATTORNEY GENERAL. Will your lordship allow me to send in a full note from the best materials that we can get?

LORD CHIEF BARON. Certainly.

APPENDIX.

Information containing the first eight counts, and abstract of remainder.-Vide page 7 of report.

IN THE EXCHEQUER.

The twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three.

MIDDLESEX, to wit:

Sir William Atherton, knight, attorney general of our lady the Queen, who prosecutes for her Majesty in this behalf, informs the court that heretofore and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the fifth day of April, in the year of our Lord one thousand eight hundred and sixty-three, to wit, at Rateliff, in the county of Middlesex, a certain officer of her Majesty's customs, to wit, Edward Morgan, then by law empowered so to do, did seize and arrest to the use of her Majesty as forfeited a certain ship or vessel called the Alexandra, together with the furniture, tackle, and apparel belonging to and on board the said ship or vessel.

First count.-For that certain persons, to wit, William Cowley Miller, Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before the twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the fifth day of April, in the year of our Lord one thousand eight hundred and sixtythree, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel with intent and in order that such ship or vessel should be employed in the service of certain foreign States, styling themselves the Confederate States of America, with intent to cruise and commit hostilities against a certain foreign state, with which her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Second count.-And also for that certain persons, to wit, William Cowley Miller, Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twentyfifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel, with intent and in order that such ship or vessel should be employed in the service of certain foreign States, styling themselves the Confederate States of America, with intent to cruise and commit hostilities against citizens of a certain foreign state, with whom and with which respectively her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, citizens of the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by

force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Third count.-And also for that certain persons, to wit, William Cowley Miller, Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel, with intent to cruise and commit hostilities against a certain foreign state, with which her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Fourth count.-And also for that certain persons, to wit, William Cowley Miller, Thomas Kuhn Priolean, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year, last aforesaid, within a certain part of the United Kingdom, to wit, at Ratcliff, in the county of Middlesex, without the leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel, with intent to cruise and commit hostilities against citizens of a certain foreign state, with whom and with which respectively her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, citizens of the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Fifth count. And also for that certain persons, to wit, William Cowley Miller, Thomas Miller, Charles Kuhu Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillen, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel, with intent and in order that such ship or vessel should be employed in the service of divers and very many persons exercising the powers of government in and over certain foreign states styling themselves the Confederate States of America, with intent to cruise and commit hostilities against a certain foreign state, with which her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Sixth count. And also for that certain persons, to wit, William Cowley Miller, Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel, with intent and in order that such ship or vessel should be employed in the service of divers and very many persons exercising the powers of government in and over certain foreign States styling themselves the Confederate States of America, with intent to cruise and commit hostilities against citizens of a certain foreign state, with whom and with which

respectively her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, citizens of the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Seventh count.-And also for that certain persons, to wit, William Cowley Miller, and Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bulloch, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before this twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Rateliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel with intent and in order that such ship or vessel should be employed in the, service of divers and very many persons exercising the powers of government over part of a certain foreign people, to wit, part of the people of the United States of America, with intent to cruise and commit hostilities against a certain foreign state, with which her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided, the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Eighth count.-And also for that certain persons, to wit, William Cowley Miller, and Thomas Miller, Charles Kuhn Prioleau, James Thomas Welsman, Eugene Tessier, James Bullock, Matthew Butcher, Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, William Thompson Mann, and divers and very many other persons whose names are to the said attorney general at present unknown, heretofore and before the making of the said seizure, and after the third day of July, in the year of our Lord one thousand eight hundred and nineteen, and before the twenty-fifth day of May, in the year of our Lord one thousand eight hundred and sixty-three, to wit, on the day and year last aforesaid, within a certain part of the United Kingdom, to wit, Ratcliff, in the county of Middlesex, without any leave or license of her Majesty for that purpose first had and obtained, did equip the said ship or vessel with intent and in order that such ship or vessel should be employed in the service of divers and very many persons exercising the powers of government over part of a certain foreign people, to wit, part of the people of the United States of America, with intent to cruise and commit hostilities against citizens of a certain foreign state, with whom and with which respectively her Majesty was not then, to wit, on the day and year last aforesaid, at war, to wit, citizens of the republic of the United States of America, contrary to the form of the statute in such case made and provided, whereby and by force of the statute in that case made and provided the said ship or vessel, together with the said tackle, apparel, and furniture, became and was forfeited.

Ninth count, same as first count, substituting “did furnish for "did equip."
Tenth count, same as second count, substituting "did furnish" for "did equip."
Eleventh count, same as third count, substituting "did furnish" for "did equip."
Twelfth count, same as fourth count, substituting "did furnish" for "did equip."
Thirteenth count, same as fifth count, substituting "did furnish" for "did equip."
Fourteenth count, same as sixth count, substituting "did furnish" for "did equip.”
Fifteenth count, same as seventh count, substituting "did furnish" for "did equip."
Sixteenth count, same as eighth count, substituting "did furnish" for "did equip."
Seventeenth count, same as first count, substituting “did fit out " for “did equip.'
Eighteenth count, same as second count, substituting "did fit out" for "did equip."
Nineteenth count, same as third count, substituting "did fit out" for "did equip.'
Twentieth count, same as fourth count, substituting "did fit out " for "did equip."
Twenty-first count, same as fifth count, substituting "did fit out" for "did equip."
Twenty-second count, same as sixth count, substituting “did fit out” for “did equip.”
Twenty-third count, same as seventh count, substituting "did fit out " for "did equip."
Twenty-fourth count, same as eighth count, substituting "did fit out" for did

equip."

Twenty-fifth count, same as first count, substituting “did attempt and endeavor to equip" for "did equip."

Twenty-sixth count, same as second count, substituting "did attempt and endeavor to equip" for "did equip."

Twenty-seventh count, same as third count, substituting "did attempt and endeavor to equip" for "did equip."

Twenty-eighth count, same as fourth count, substituting "did attempt and endeavor to equip" for "did equip."