Act of Congress with notes, (extracted from Dunlop's Digest of the General Laws of the United States. Ed. 1856.)—(Vide Report pp. 4 and 115.)

CHAPTER 88.

AN ACT* in addition to the " Act for the punishment of certain crimes against the United States,” and to repeal the acts therein mentioned. [April 20, 1818.]

That if any citizen of the United States shall, within the territory or jurisdiction thereof, accept and exercise a commission to serve a foreign prince, state, colony, district, or people in war, by land or by sea, against any prince, state, colony, district, or people with whom the United States are at peace, the person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and shall be imprisoned not exceeding three years.

SEC. 2. That if any person shall, within the territory or jurisdiction of the United States, enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman on board of any vessel of war, letter of marque, or privateer, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding one thousand dollars, and be imprisoned not exceeding three years: Provided, That this act shall not be construed to extend to any subject or citizen of any foreign prince, state, colony, district, or people, who shall transiently be within the United States, and shall, on board of any vessel of war, letter of marque, or privateer, which, at the time of its arrival within the United States, was fitted and equipped as such, enlist or enter himself, or hire or retain another subject or citizen of the same foreign prince, state, colony, district, or people,ț who is transiently within the United States, to enlist or enter himself to serve such foreign prince, state, colony, district, or people on board such vessel of war, letter of marque, or privateer, if the United States shall then be at peace with such foreign prince, state, colony, district, or people.

SEC. 3. That if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people** with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid, every person so

*This act re-enacts the acts of 1794, ch. 50, 1797, ch. 58, and of 1817, ch. 58, with some addition, and by adding the words "colony, district, or people." (7 Wheat., 489. The Gran Para.)

The object of the laws was to put an end to the slave trade, and to prevent the introduction of slaves from foreign countries. (11 Peters, 73, United States vs. The ship Garonne, United States vs. Skiddy.) Slaves of Louisiana taken by their owners to France in 1835, and brought back with their own consent, is not a case within the acts. (11 Peters, 73, United States vs. Skiddy.)

The intent must be a fixed one, and not contingent, and formed within the United States, and before the vessel leaves the United States. (4 Peters, 445, 466, United States vs. Quincy, 3 Dal., 307, Moodie vs. The Alfred.)

The law does not prohibit the sailing of armed vessels belonging to our citizens, out of our ports, on bond, &c., that they will not be employed to commit hostilities against powers at peace with us. (6 Peters, 466, Johnson, J.)

The indictment charged the fitting out of the Bolivar with intent that she should be employed in the service of a foreign people, that is to say, in the service of the United Provinces of Rio de la Plata; held, that although the United Provinces were recognized by the United States, that the charge, under the innuendo, was sufficiently laid. (6 Peters, 445, 467, United States vs. Quincy.)

An effort to fit out will satisfy the law. (6 Peters, 445-464.)

The vessel was fitted out and repaired at Baltimore, and with some warlike munitions on bond given, sailed for St. Thomas, where she was fully armed and cruised under a Buenos Ayrean commission. This was held to be an attempt. (6 Peters, 445, United States v. Quincy.)

§ Either will constitute the offense. (6 Peters, 445, 464, United States vs. Quincy. It is not necessary to charge the fitting and arming.

The owner is liable under the act, if he authorized and superintended the fitting and armning, without being personally present.

It is not essential that the fitment should have been completed. It is not necessary that even equip ment of a slave voyage should have been taken on board in the port of the United States. In this cass part of the equipment of the General Winder for a slaving voyage was shipped on another vessel for St. Thomas, and then transshipped to the General Winder,

The particulars of the fitting out need not be set out in the indictment; they are minute acts, incapable of exact specification, 473 475.

The indictment should allege that the vessel was built, fitted, &c., within the jurisdiction of the United States, 476, 477, and “with intent to employ the vessel" in the slave trade; and alleging that "the intent" was that the vessel should be employed in the slave trade," was not suflicient, 476. (14 Wheat., 460, United States vs. Gooding.)

|| Although the arms and ammunition were cleared as cargo, and the men enlisted as for a mercantile voyage. (7 Wheat., 471, 486. The Gran Para.)

That is, a government acknowledged by the United States. (6 Peters, 467.)

** Note, † Sec. 2.

offending shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years; and every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited, one-half to the use of the informer, and the other half to the use of the United States.

SEC. 4. That if any citizen or citizens of the United States shall, without the limits thereof, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly aid or be concerned in the furnishing, fitting out, or arming any private ship or vessel of war, or privateer, with intent that such ship or vessel shall be employed to cruise or commit hostilities upon the citizens of the United States, or their property, or shall take the command of, or enter on board of any such ship or vessel for the intent aforesaid, or shall purchase any interest in any such ship or vessel, with a view to share in the profits thereof, such person so offending shall be deemed guilty of high misdemeanor, and fined not more than ten thousand dollars, and imprisoned not more than ten years; and the trial for such offense, if committed without the limits of the United States, shall be in the district in which the offender shall be apprehended or first brought.

SEC. 5. That 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 foreign prince, or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince, or state, colony, district, or people, the same being at war with any foreign prince, or state, or of any colony, district, or people with whom the United States are at peace, by adding to the number of the guns of such vessel, or by changing those on board of her for guns of a larger caliber, or by the addition thereto of any equipment solely applicable to war, every person so offending shall be deemed guilty of a high misdemeanor, shall be fined not more than one thousand dollars, and be imprisoned not more than one year.

SEC. 6. That if any person shall, within the territory or jurisdiction of the United States, begin or set on foot, or provide or prepare the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince, or state, or of any colony, district, or people with whom the United States are [at] peace, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years.

SEC. 7. That the district courts shall take cognizance of complaints, by whomsoever instituted, in cases of capture made within the waters of the United States, or within a marine league of the coasts or shores thereof.

SEC. 8. That in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States, as before defined, and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, in every such case it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or jurisdiction of the United States, against the territories or dominions of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace.

SEC. 9. That it shall be lawful for the President of the United States, or such person as he shall empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be necessary to compel any foreign ship or vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, they ought not to remain within the United States.

SEC. 10. That the owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into bond to the United States, with sufficient sureties, prior to clearing out the 10 A C-VOL. V

same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign province or state, or of any colony, district, or people with whom the United States are at peace.

SEC. 11. That the collectors of the customs be, and they are hereby, respectively, authorized and required to detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board or other circumstances shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section of this act.

SEC. 12. That the act passed on the 5th day of June, 1794, entitled "An act in addition to the act for the punishment of certain crimes against the United States," continued in force, for a limited time, by the act of the 2d of March, 1797, and perpetuated by the act passed on the 24th of April, 1800, and the act passed on the 14th day of June, 1797, entitled "An act to prevent citizens of the United States from privateering against nations in amity with, or against the citizens of, the United States," and the act passed the 3d day of March, 1817, entitled "An act more effectually to preserve the neutral relations of the United States," be, and the same are hereby, severally repealed: Provided, nevertheless, That persons having heretofore offended against any of the acts aforesaid may be prosecuted, convicted, and punished as if the same were not repealed; and no forfeiture heretofore incurred by a violation of any of the acts aforesaid shall be affected by such repeal.

SEC. 13. That nothing in the foregoing act shall be construed to prevent the prosecution or punishment of treason, or any piracy defined by the laws of the United States.

Case of Moodie vs. the Ship Alfred, see 3 Dallas, 307.-1 Curtis's Decisions of Supreme Court of the United States, p. 234.-(Vide Report, Page 92.)

Case of the Santissima Trinidad and the St. Andre, seized by the vessels Independencia del Sud and the Altravida, see 7 Wheaton's Report of the Supreme Court of the United States, pp. 283, 355, Ed. 1822.-(See Report p. 91.)

Case of the United States vs. John D. Quincy, see 6 Peters, pp. 445, 469, Ed. 1832.—(Vide Report page 114.)

IN THE COURT OF EXCHEQUER AT WESTMINSTER-MICHAELMAS TERM, 27TH VICTORIA.

Before the right honorable, the Lord Chief Baron Pollock, Mr. Baron Bramwell, Mr. Baron Channell, and Mr. Baron Pigott.

THE ATTORNEY GENERAL v. SILLEM AND OTHERS, claiming the Vessel Alexandra. Argument on application for leave to move for new trial after the expiration of the first four days of term,

Report of the arguments on the application of the attorney general for leave to move for a new trial after the first four days of term, resulting in a rule nisi to show cause why a new trial should not be had, and the arguments thereon, together with the judgment of the court.* Counsel for the Crown: The Attorney General, Sir ROUNDELL PALMER, Knight; The Solicitor General, Sir ROBERT PORRETT COLLIER, Knight; The Queen's Advocate, Sir ROB. JOSH. PHILLIMORE, Knight, Q.C., D.C.L.; Mr. LOCKE, Q.C., M.P.; Mr. T. JONES. Counsel for the Claimants: SIR HUGH MCCALMONT CAIRNS, Knight, Q.C.; Mr. KARSLAKE, Q.C.; Mr. MELLISH, Q.C.; Mr. KEMPLAY.

Solicitor for the Crown: Mr. F. J. HAMEL, Solicitor for her Majesty's Customs. Solicitors for the Claimants: Mr. E. L. ROWCLIFFE, (GREGORY, ROWCLIFFE and Co.,) London, agents for Messrs. FLETCHER and HULL, Liverpool.

TUESDAY, November 3, 1863.

LORD CHIEF BARON. Mr. Attorney General, the ordinary practice of the court is to take the peremptory paper the first thing on the second day of term, but I presume that you are in attendance on the business of her Majesty, and you are therefore entitled to pre-audience. If you have anything to move, the court will hear you.

Mr. ATTORNY GENERAL. I thank your lordship. My lord, I have come here to apply to your lordships not at present to go into any motion which will involve any lengthened argument or discussion, but I come to ask your lordships to give me a longer than the ordinary time of four days for the purpose of making, if it should become eventually necessary, a motion for a new trial in the case of the Attorney General vs. Sillem, which was tried before the summer assizes, before the lord chief baron, concerning the forfeiture of the ship Alexandra. It will be in his lordship's recollection, and indeed it is known to everybody, that upon that occasion his lordship laid down the views which he thought ought to govern the jury as for the construction of the act of Parliament commonly called the foreign enlistment act. His lordship did so in a manner which we thought was perfectly clear and intelligible to all persons who heard it. There was no difference whatever in the understanding of his lordship's ruling on the part of the counsel for the Crown, and we have no reason to suppose that it was viewed otherwise by the counsel for the claimants, or generally understood in any other sense than that in which we viewed it. At the end of the trial, and before the verdict, we proposed in the usual manner and complying with form to offer exceptions to that ruling. We were told, however, that it was not at all necessary to stand upon form. His lordship said, "I will accept any bill of exceptions you wish to tender." And accordingly, after the verdict, but not before, a note hastily written down at the time of the points or the principal points which we understood to be laid down was handed in, and then it was said by his lordship that we were not to be bound by what passed on that occasion; that time might be taken and that the thing would be settled. My lords, of course we were in hopes that there would be no difficulty at all in settling a bill of exceptions. It is a point of very great importance, and most fit to be raised solemnly by exceptions, so that it may go to the court of error, and if it should be necessary, to the last court of appeal. We are most anxious that it should be so raised and so determined, and we have no reason to doubt that the other side are equally so. But hitherto there have been difficulties in arriving at any form of exceptions which we can rely upon as certain to receive the signature of your lordship. We hope that those difficulties will be overcome. We are in communication at the present time with the counsel on the other side, who have in their possession the form of exceptions which we now propose to endeavor to tender, and we trust that an agreement may be arrived at between ourselves and the opposite counsel, or if that should not happen, that his lordship upon being applied to at chambers in the usual way will be able to settle such a form of bill of exceptions as will raise the real question to be determined in a manner which will be satisfactory to both parties and useful to the public, and we infinitely prefer— LORD CHIEF BARON. Mr. Attorney General, I think it right to state that I myself see *NOTE.-To render intelligible the frequent reference made by counsel to the reports of the trial, it may be observed that two copies have been printed, the one for the Crown containing an appendix and termed by counsel the larger copy, and the other for the claimants termed by counsel the smaller copy. There is no substantial difference between the two reports, the variance consisting chiefly of clerical inaccuracies for the most part rectified in the larger book.

no prospect whatever of any change in the view which I have taken as to what is my duty in signing the bill of exceptions. The correspondence between me and the late learned attorney general probably you may have seen.

Mr. ATTORNEY GENERAL. Yes, my lord.

LORD CHIEF BARON. But you were not present at the whole of the trial, and, so far from my laying down the law, as the bill of exceptions tendered to me assumes, I took particular pains to avoid doing anything of the kind. I had originally, during the course of Sir Hugh Cairns's argument, undoubtedly entertained an impression (I call it no more) that all the expressions of “equipping, arming, fitting," and so on, probably meant the same thing, and were to be referred to the verbiage of an act of Parliament, as you commonly find a thing called "ship or vessel," the statute no doubt in that case meaning precisely the same thing by the one and the other. But in the course of his address to the jury, the late attorney general mentioned a case the name of which I do not recollect. I think it is in 5th Curtis, or the 5th volume of some reports. I could refer to it, but it is not desirable now to take up the time by doing so, and that was a decision in an American court, with an appeal to the Supreme Court, where the decision below was affirmed, and it was a case where the vessel was completely prepared in every other respect, but that she was not armed. When I came to sum up I mentioned that case to the jury, commended it so far as to say that I adopted it, and left it to them, and pointed out that what formerly apparently might have been inferred from what had dropped from me in the course of the address of counsel was not what I told them was the law; and I finally left the question to them in the alternative, using the very words of the act of Parliament, "If you think that this vessel was armed or equipped or fitted out, or was intended to be armed or fitted out or equip ped, then your verdict must be for the Crown; if not, for the defendant." Now, the attorney general presented to me a bill of exceptions, by which I purported to tell the jury that the vessel must be armed, and that if it was not armed there was no offense. I not only did not so tell the jury, but if you read the short-hand writer's notes which were furnished to me, I think no person can have any doubt but that I left the question as I am now stating. But, Mr. Attorney General, probably all the object which you have in view may be obtained by your moving without reference to the bill of excep tions at all. It is true that there was no point reserved at the trial, so as to give you a right of appeal in the event of the rest of this court concurring with me in the direc tion which I gave to the jury. But this is a matter of so much importance that I do not know whether I can pledge the court, but certainly it would be, I think, very much to be regretted, however unanimous this court might be, if we did not give you, which we have the power of doing, a right of appeal to the superior court.

Mr. ATTORNEY GENERAL. I understand that your lordships have no power by the act of Parliament, unless there be a difference of opinion. I understand that you have no power at all.

LORD CHIEF BARON. Mr. Attorney General, that is not so.

Mr. ATTORNEY GENERAL. No, my lord; I misunderstood what my learned friend, Mr. Jones, said to me.

LORD CHIEF BARON. We have the power of granting you an appeal, and I must say, as far as I am concerned, that however unanimous the court may be, and however strong the opinion, if you wish to have an appeal, certainly my voice would be in favor of giving you that. It would not then be a privilege, it would be an indulgence. Mr. ATTORNEY GENERAL. I am much obliged to your lordship.

LORD CHIEF BARON. The questions concerned are so important that I think we ought to do so; but I do not know whether the other members of the court take the same view.

Mr. BARON BRAMWELL. I understand the difficulty to be this, that the common-law procedure act does not apply to a proceeding of this nature.

Mr. ATTORNEY GENERAL. Yes, my lord.

Mr. BARON BRAMWELL. This act of Parliament, which, to a certain extent, assimilated Crown proceedings to civil actions, does not comprehend the case of an appeal from making absolute or discharging a rule.

Mr. ATTORNEY GENERAL. That is what we apprehend, my lord.

Mr. BARON BRAMWELL. Whether that is so or not is open to some doubt.

Mr. ATTORNEY GENERAL. My learned friend, Mr. Jones, has considered that point carefully, (I cannot say that I have,) and he is very strongly under that apprehension that the act of Parliament does not reach the case.

Mr. BARON BRAMWELL. There has been a case argued here, the case of a writ of intrusion by the Crown, and the point has been slightly considered, but not at all argued at the bar, whether, if there was a difference of opinion upon the bench, such as would entitle a dissatisfied party in an ordinary civil action to appeal, the words of the act are large enough to reach such a case.

Mr. ATTORNEY GENERAL. Of course it would be extremely important that that point should be carefully considered before the suggestion, which has been so kindly thrown