will take leave to make to it shall be of a very limited character. Now, my lords, what we know as matter of history upon this point is this: The American act of Congress was passed in the beginning of the year 1794-the occurrences which led to its being passed took place in the year 1793. Your lordships recollect that the French republic was constituted early in the year 1793. One of the first acts which the French republic did was to send a minister to the United States of America-a minister whose name was Genet. One of the first things which he did when he went to America was to promote, or, I should say, to institute the equipment of privateers in American ports to cruise against and capture English vessels, the French republic having declared war against England. At this time the government of the United States was neutral, not only in that contest, but was at peace with all the world; and it was no doubt one leading feature in the policy of the great man who then presided over the destinies of America, to remain neutral in all contests as far as he possibly could, and to reap the advantages which a commercial country might naturally expect to reap from a state of neutrality in the midst of war. Accordingly the American government considered the acts which were taking place under the direction of Monsieur Genet, and they endeavored to ascertain how far those acts could be put a stop to, upon principles of international law, and if they could not be put a stop to upon principles of international law, to ascertain how far municipal law should be called in aid, and constituted for the purpose.

My lords, there are two or three references to matters of history which will bring us conveniently to the consideration of the American act of Congress. In the correspondence of one of the American ministers of the day, Jefferson, I refer to a book which is entitled “Jefferson's Memoirs and Correspondence," in the third volume, at page 242, Mr. Jefferson, writing to Monsieur Genet, the French minister, refers to this subject in this way-the date of this is the 5th of June, 1793, it is before the American act of Congress was introduced-he says: "In a conversation which I had afterward the honor of holding with you, I observed that one of those armed vessels, the Citizen Genet, had come into this port with a prize, (that is, into the port of Philadelphia,) that the President had thereupon taken the case into further consideration, and after mature consultation and deliberation, was of opinion that the arming and equipping vessels in the ports of the United States to cruise against nations with whom they were at peace, was incompatible with the territorial sovereignty of the United States; that it made them instrumental to the annoyance of those nations, and thereby tended to compromit their peace; and that he thought it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the country, that the armed vessels of this description should depart from the ports of the United States."

My lords, we have a letter from Washington, just about this time, to one of his ministers, which shows us what was working in his mind, and what led afterward to the rules which his government framed. It is a letter to Mr. Hamilton, the Secretary of the Treasury-it is printed in Sparks's Collection of the Writings of Washington, the tenth volume, at page 345. He says, writing about the same date, a few days before or after, to Mr. Hamilton: "Dear Sir: As I perceive there has been some misconception respecting the building of vessels in our ports, which vessels may be converted into armed ones, and as I understand from the attorney general that there is to be a meeting to-day or to-morrow of the gentlemen on another occasion, I wish to have that part of your circular letter which respects this matter reconsidered by them before it goes out. I am not disposed to adopt any measure which may check ship-building in this country, nor am I satisfied that we should too promptly adopt measures in the first instance that are not indispensably necessary. To take fair and supportable ground I conceive to be our best policy, and it is all that can be required of us by the powers at war, leaving the rest to be managed according to circumstances, and the advantages to be derived from them."

My lords, the matter having originated in that way, Congress was meeting at the time, and before any act was introduced into Congress the circular letter, referred to in this letter, was settled and sent out to the various collectors of customs in America. That circular letter contains certain rules to which I shall call your lordships' attention, and then I shall show your lordships (because this is what makes these references material) by the authorities of international writers that those rules are referred to as containing a true exposition of international law.

My lords, in the collection of American State Papers, the first volume, at page 45, we have the circular as finally settled, signed by Mr. Hamilton, the Secretary of the Treasury, and containing a series of rules. Now, what the circular says to the collectors of customs is this: I will not read it all, but I will read those parts of it which seem to me to bear upon this point. It says: "No armed vessel which has been or shall be originally fitted out in any port of the United States by either of the parties at war is henceforth to have asylum in any district of the United States. If any such armed vessel shall appear within your district, she is immediately to be notified to the governor and attorney of the district, which is also to be done with respect to any prize that such armed vessel may bring or send in. At foot is a list of such armed

vessels of the above description as have hitherto come to the knowledge of the executive. The purchasing in, and exporting from the United States, by way of merchandise, any articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war, and is not to be interfered with. If our own citizens undertake to carry them to any of those parties, they will be abandoned to the penalties which the laws of war authorize." (those penalties being, of course, seizure and forfeiture.) Then, lower down: "In case any vessel shall be found in the act of contravening any of the rules or principles which are the ground of this instruction, she is to be refused a clearance till she shall have complied with what the governor shall have decided in reference to her. Care, however, is to be taken in this not unreasonably or unnecessarily to embarrass trade, or to vex any of the parties concerned. In order that contraventions may be the better ascertained, it is desired that the officer who shall first go on board any vessel arriving within your district shall make an accurate survey of her then condition as to military equipment, to be forthwith reported to you, and that prior to her clearance a like survey be made, so that any transgression of the rules laid down may be ascertained." That was the point to which attention was to be directed. A vessel might come, a vessel might go; the survey which was to be applied by way of test to her condition when she departed as differing from that which it was when she came in was as to military equipment. Then, my lords, come the rules, which are very remarkable. They are eight in number. It will not be necessary for me to read them all. The first is this: "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." The second rule is this: "Equipment of merchant vessels by either of the belligerent parties in the ports of the United States, purely for the accommodation of them as such, is deemed lawful." Then the third rule is this: "Equipments in the ports of the United States of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful." Then an exception is entailed upon that, referring to a French treaty, with regard to certain prizes taken from France, which does not bear upon the question at all, and I do not read it. Therefore, this third rule deals with the case of vessels of war in the strictest sense of the term, as to the destination and object of which there could be no doubt, in the immediate service of the government of any of the belligerents. If the equipments are of that nature that they would be applicable either to commerce or to war, although the destination and character of the vessel are perfectly well known, still, if they are ambiguous in their nature, they are to be deemed lawful. Then the fourth rule is this: "Equipments in the ports of the United States by any of the parties at war with France of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful," with the same exception with regard to certain prizes, which relates to the particular treaty which the United States had with France at the time, and which does not bear at all upon the general question. Then the fifth rule is: "Equipments of any of the vessels of France in the ports of the United States which are doubtful in their nature, as being applicable to commerce or war, are deemed lawful." Then, my lords, comes the sixth rule, which was simply the re-enactment of a clause of the treaty which the United States had with France, which was of a very peculiar kind at that time, and we find that a great deal of controversy arose upon it between the ministers and Monsieur Genet. It appeared that France had, in her then existing treaty with the United States, a provision that the United States were not to open their ports to any privateer, or any vessel intended as a privateer, against France in any war which might take place; and, therefore, the sixth rule provided, not upon the principle of international law, but upon the principles of the particular treaty: "Equipments of every kind in the ports of the United States of privateers of the powers at war with France are deemed unlawful." That it related to the treaty is apparent upon the face of it. It is not a general clause, applicable to privateers of any belligerent, but applies to the privateers of those particular powers at war with France, imposing upon France itself, though a belligerent, no correlative obligation. Then the seventh rule is: "Equipments of vessels in the ports of the United States which are of a nature solely adapted to war are deemed unlawful.”

The result, therefore, of the whole is this, that laying down what was then conceived (we shall see whether rightly or wrongly) to be the rule of international law in the case which the United States were looking to, where there were two belligerent powers, these provisions were made, in the first place complying with the requirements of the treaty which the United States had with one of the powers, but over and above that, providing for a test to be applied in every case, whether you were dealing with a ship clearly a vessel of war, or whether you were dealing with a ship as to which you did not know whether it was meant for war or for commerce, and as to which there might be a dispute. The rules were made for one case, and the other, whether the equipments, which it was attempted and proposed to acquire in a port of the United States, were

those which were solely applicable for war, or those which were doubtful and ambignous in their character, and which would serve either for war or for purposes not warlike. It is said, if the equipments are solely applicable for war we shall prevent them; if they are those which, although applicable for war, still are not applicable solely to war, but might be supplied to any ship in order to make it a perfect ship; they are lawful and are not to be prohibited.

Then, my lord, having, in the course of year 1793, before Congress met, laid down those rules, Congress met at the close of the year. I will not delay your lordships by reading the message to Congress of Washington, which explains what he had done and how he had been led into laying down those rules by the acts of Genet, the French minister, and how he called upon Congress to give effect to what he had done by legislation. That may be presumed to be the course that would be naturally followed. And I now bring your lordships to the consideration of the American act which was passed under those circumstances by Congress, and which will be found at page 21 of the appendix to the printed book of the report of the trial. The date of the act there given is the year 1818.

Mr. BARON CHANNELL. That was the amended act?

SIR HUGH CAIRNS. Yes, my lord, the amended act, and which, for the purpose of the present discussion, may be taken to be the same as the act of 1794. My learned friend, who has the original, will observe if I found any argument upon it which does not occur upon the orignal. I believe, for any purpose of comment which I have to make, the acts will be found to be exactly the same. It does not appear that there is any preamble to this. I believe it is not customary for acts of the States to have preambles, and I am not at all sure that it is not a better plan than our own. I may say that this act, just like our own, is divided into clauses with regard to the army, and clauses with regard to the navy. The earlier clauses have reference to the army, but it will be proper for me, for one or two purposes, to refer to them. Your lordships observe that the first act does not, with regard to enlistment, deal generally with all persons who might be within the jurisdiction of the States; but it only deals with citizens of the United States. An observation upon this point was made by the attorney general, and I think under a misconception with regard to the object of the act, which is very plain. Of course by the municipal law, though there may be the circumstance that a foreigner may be within the jurisdiction, the municipal government has no right to interfere with the actions of that foreigner as regards enlistment, there is no reason why he should not enlist where he pleased. The municipal state, though it has jurisdiction over every one within its limits, has only jurisdiction with regard to that which savors of the allegiance of its citizens or natural-born subjects. The act is framed upon that principle.

LORD CHIEF BARON. The act of Congress you are referring to contemplates an offense or crime of a citizen of the United States within the territory or jurisdiction thereof; not so our own act.

SIR HUGH CAIRNS. Not so our own. I take leave to think that our own in that respect is founded upon much truer principles, because it is obvious that that is exactly the extent of authority which a state has over its own subjects. A state, with regard to its own subjects who owe allegiance to it, has a right to say, "You shall not in any part of the world accept employment in the military force of another power without the consent of your own sovereign."

LORD CHIEF BARON. Therefore the ninth section of our own act makes punishable such an offense when committed out of the kingdom.

SIR HUGH CAIRNS. No doubt. The first section is this: "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 is finable. Then, my lords, comes the second section, which divides itself into two parts, first by way of general enactment, and then by way of qualification, "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, shall be fined not exceeding one thousand dollars, and be imprisoned not exceeding three years: Prorided, 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, &c., which, at the time of its arrival within the Uniied States, was fitted out 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, 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;" bringing it, therefore, up very much to the same as the first, qualifying it not perhaps quite so widely, but preventing its applying to any one not owing permanent allegiance to the United States.

The more important sections are those which follow. The third, which agrees to a certain extent with the seventh section of the English act, as it now stands, is this, "If any person shall within the limits of the United States"-and there I pause to observe that I think our American brethren wrote better English in this respect than we didthey put the "shall" in its proper place, whereas, per incuriam, in our own act it has slipped out of the place where it ought to be found-" If any person shall within the limits of the United States fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, district, or people, to 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 employed as aforesaid, every person so offending shall be deemed guilty of a high misdeameanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years." Then there is a provision with regard to the forfeiture of the ship. There are some very peculiar words in the framing of that clause. It is a very singular thing, though it is not at all necessary that I should derive any argument from it one way or the other, that the words in the first part of that clause are conjunctive, "fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed; whereas, when we come to the question of being concerned in the furnishing, it is "the furnishing, fitting out, or arming of any ship or vessel."

That has been a subject of controversy in America, and at a proper time I will show your lordships what has been decided upon that in America; I only observe upon it now to show how very singularly these acts are framed. Another thing is very singular that when we come to the word "concerned," another term is introduced which is not found in the earlier part of the sentence, viz., "furnishing." In the early part of the sentence it is "fit out and arm." Then you have, "procure to be fitted out and armed;" then you have, "be concerned in the furnishing, fitting out, or arming." Whether that makes any enlargement of the offense or not I do not stop to consider. I only point out these things to your lordships' attention at present. All I would say npon the construction of this section, passing by those nice criticisms as to "ands" and "ors," is this: if this section means this-You shall not, within the United States, fit out a ship as a ship of war, intending her to be employed by one belligerent against anotherthen I say that exactly tallies with the rules laid down by Washington and affirmed, as I will show your lordships, by international law writers, because I apprehend the meaning of that in the more enlarged terms would be this-you shall not fit out a ship as a ship of war; that is, you shall not fit out a ship with any of those distinctive fittings, with any of those distinctive matters of equipment, which are not ambiguous, which may not serve for other purposes beside use in a ship of war-you shall not fit out a ship of war with distinctive fittings or equipments, which can be of use or available in no ship except in a ship of war. That would exactly tally with the rules laid down by the American government upon the subject beforehand.

I will now ask your lordships to go to the next section for the present purpose; the section relates to a matter which will not come in controversy here, but I will read it: "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 arined, 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 cruize or commit hostilities upon the citizens of the United States, or their property, or shall take the command of, or enter on board of any such ship or vessel, for the intent aforesaid, or shall purchase any interest in any such ship or vessel, with a view to share in the profits thereof, such person so offending shall be deemed guilty of a high misdemeanor," that is, to commit hostilities upon citizens of the United States, which is a wholly different matter. The attorney general reminds me accurately that that fourth section was not to be found in the act or 1794, but it was introduced for the first time into the act of 1818. This is not a section dealing with the question of international law at all, it is dealing with the case of what I may call piracy or burglary, or whatever the term may be.

LORD CHIEF BARON. It is sort of treason against the United States, you know. SIR HUGH CAIRNS. It is one citizen committing hostilities upon another. LORD CHIEF BARON. You are here distinguishing the act against which the statute is leveled and the attempt to do the act.

SIR HUGH CAIRNS. No, I do not at present; I will deal with that as a separate

question. I do not desire to embarass the argument I am now submitting to your lordships by the minor argument of what may be an attempt to do a particular act. I desire to follow out the principal act itself.

LORD CHIEF BARON. You will come to that by and by.

SIR HUGH CAIRNS. Yes.

LORD CHIEF BARON. It seems to me to be extremely inportant, before you inquire what is meant by attempting to do a thing, and assisting, and endeavoring, and procuring, and so on, to do a thing, first to get a most distinct notion of what it is that you are not to do.

SIR HUGH CAIRNS. Just so; it is with that view I am asking your lordship's attention to these matters.

LORD CHIEF BARON. Considerable confusion has arisen, and much of what is said to be the confusion of the act arises from confounding the act that is not to be done with the expressions used in forbidding an attempt to do it.

SIR HUGH CAIRNS. Just so, and I may take leave to say, by way of anticipation, it will be found if we can once arrive at a clear and distinct understanding of what I may call the principal act prohibited, five minutes consideration will scatter all the rubbish that has been talked-I do not use the expression with reference to anything which has fallen from my learned friends, but I mean the rubbish talked out of doors-about attempts and endeavors, and commencements and assistances, which altogether assumes that every one of those things creates a new offense, different in character and form from the principal offense, whereas every one of them must range itself under the principal offense-they cannot go any higher than the principal offense can go. The fifth section seems to me, with reference to our investigation of what is the principal offense, of very great importance. It is at page 24:* "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, 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" (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 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." Observe what a flood of light this pours upon the whole legislation, and how completely this legislation agrees with those rules preceding it, which I called your lordships' attention to. Here you are dealing with a case of afship as to the destination and object of which there is no possible doubt. She is a ship with letters of marque, or a privateer, or a national ship of war, there can be no doubt about what she is to do; no doubt about the end for which she is created; no doubt about why she is found on the sea, and why is it she comes into a port. All those things are matters not left to speculation or inquiry, or to investigation by suspicion, or by proof, or in any other way; it is assumed there that you have to deal with a ship of war, either belonging to, or at all events in the interest of one of the belligerent parties. She comes into a port of the United States. Is it unlawful to equip her? Nothing of the kind; it is unlawful to augment her armed force by adding to the guns, by changing them for larger or other guns, but if there be any equipment (and we all know there is abundance of equipment) not applicable solely for warlike purposes, she is quite at liberty to have that equipment, she is quite at liberty to be supplied with it; she may come in and get it and sail away, and no person is entitled to interfere; in other words, the very thing prescribed by the rule laid down by Washington is to be attended to, you are to look at the character of the equipment, and, just as the former section said, you are not to equip a ship as a ship of war, by which I understand it to mean, you are not to equip a ship with the distinctive features of an equipment which is solely applicable for war, so, where you have a ship admittedly a ship of war to deal with, you may equip her, but you may not equip her with an equipment which is solely applicable

to war.

Then we have still, my lords, some very important additional light on the latter clanses of the statute. I pass over the sixth and seventh, the marginal notes of which sufficiently explain them. Setting on foot within the United States any military expedition against a friendly power" is illegal, and the district courts are to have cognizance of complaints. Then by the eighth section the President may employ the forces or the militia for suppressing such expeditions. That does not seem to have been thought necessary in the English act of Parliament, I suppose it is because our common law would amply supply that power. By the ninth section, the President may employ

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* See page 145.