1 the leave and licence of his Majesty for that purpose, first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavour to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, State, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign State, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign State, &c., as a transport or storeship, or with intent to cruise or commit hostilities against any prince, &c., or against the subjects of any prince, &c., or against the persons exercising or assuming to exercise the powers of government in, &c., or against the inhabitants of any foreign colony, &c., with whom his Majesty shall not then be at war; or shall within 1 the United Kingdom, or any of his Majesty's dominions, or in any settlement, colony, territory, island, or place, belonging to or subject to his Majesty, issue or deliver any commission for any ship or vessel to the intent that such ship or vessel shall be employed as aforesaid, every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the Court in which such offender shall be convicted; and every such ship or vessel with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of any such ship or vessel shall be forfeited." Provisions authorising officers of Customs to seize such vessels follow, and the section further enacts, that "every such ship or vessel, with the tackle, &c., together with all the materials, &c., may be prosecuted and condemned in like manner, and in such Courts as ships and vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation." Section 8, which was frequently referred to in the arguments on the case, declares "that if any person in any part of the United Kingdom of Great Britain and Ireland, or in any part of his Majesty's dominions beyond the seas, without the leave and licence of his Majesty first had and obtained for that purpose as aforesaid, shall, by adding to the number of the guns of such vessel, or by changing those on board for other guns, or by the addition of any equipment for war, increase or augment, or procure to be increased or augmented, or shall knowingly be concerned in increasing or augmenting the warlike force of any ship or vessel of war, or cruiser, or other armed vessel, + which at the time of her arrival in any part of the United Kingdom, or any of his Majesty's dominions, was a ship of war, cruiser, or armed vessel in the service of any foreign prince, State, &c., every such person so offending shall be deemed guilty of a misdemeanor," &c. The vessel, "Alexandra," which was a screw steamer, was seized by the Crown at Liverpool, after her engines had been placed on board, and while her rigging was being fitted, on the ground that she was to be employed in the service of the Confederate States of America and subsequently an information was filed on behalf of the Crown, framed under the 7th section of the Act, against W. C. Miller, T. Miller, K. Preolean and J. T. Welsman [both of the firm of Frazer & Co.], E. Tessier, J. Bullock, M. Butcher, H. J. Sillim, E. B. Preston, J. Willmott, T. W. Thomas, and W. Thompson. The information contained ninety-eight counts. The 1st count charged, that the above persons with others unknown, before the making of the seizure, without any leave or licence of her Majesty for that purpose, did equip the vessel with intent that such vessel should be employed in the service of certain foreign states, styling themselves the Confederate States of America, with intent to cruise or commit hostilities against a certain foreign state with which her Majesty was not then at war, to wit, the Republic of the United States of America, contrary to the statute, whereby, and by force of the statute, the said vessel, together, with her tackle, apparel, and furniture, became and were forfeited. The 2nd count charged, that the same persons, &c., on the same day, did equip the said vessel with intent that she should be employed in the service of the Confederate States of America, with intent to cruise, &c., against the citizens of the Republic of the United States of America. The 3rd count charged, that the same persons, &c., did equip the said vessel with intent to cruise, &c., against the Republic of the United States of America. The 4th count charged, that the same persons, &c., did equip the said vessel with intent to cruise, &c., against citizens of the United States of America. The 5th count charged, that the same persons, &c., did equip the said vessel with intent that she should be employed in the service of persons exercising powers of government over the Confederate States of America, with intent to cruise, &c., against the Republic of the United States of America. The 6th count charged that the same persons, &c., did equip the said vessel with intent to employ her in the service of persons exercising powers of government over the Confederate States of America, with intent to cruise, &c. against the citizens of the Republic of the United States of America. The 7th count charged that the same persons, &c., did equip the said vessel with intent that she should be employed in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c., against the Republic of the United States of America. The 8th count charged that the same persons, &c., did equip the said vessel with intent that she should be employed in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c. against citizens of the Republic of the United States of America. The counts from the 9th to the 16th charged the same as the first eight, substituting the word "furnish" for the word "equip." The counts from the 17th to the 24th charged the same as the first eight, substituting the words "fit out" for "equip." The counts from the 25th to the 32nd charged the same as the first eight, substituting the words "attempt and endeavour to equip" for "equip." The counts from the 33rd to the 40th charged the same as the first eight, substituting the words "attempt and endeavour to furnish" for " equip." The counts from the 41st to the 48th charged the same as the first eight, substituting the words "attempt and endeavour to fit out" for "equip." The counts from the 49th to the 56th charged the same as the first eight, substituting the words "procure to be equipped" for "equip." The counts from the 57th to the 64th charged the same as the first eight, substituting the words "procure to be furnished" for "equip." The counts from the 65th to the 72nd charged the same as the first eight, substituting the words "procure to be fitted out" for "equip." The counts from the 73rd to the 80th charged the same as the first, substituting the words "knowingly aid, assist, and be concerned in equipping," for "equip." The counts from the 81st to the 88th charged the same as the first eight counts, substituting the words "knowingly aid, assist, and be concerned in furnishing," for " equip." The counts from the 89th to the 96th charged the same as the first eight counts, substituting the words "knowingly aid, assist, and be concerned in fitting out," for "equip." The 97th count charged that the same persons, &c., did attempt to fit out the said vessel to employ her in the service of persons exercising powers of government over part of a certain foreign people, as a transport or storeship, against the Republic of the United States of America. rate States of America, and of persons exercising powers of government over part of a certain foreign people, as a transport or storeship, with intent to cruise, &c. against the Republic of the United States of America, and also against the citizens of the Republic of the United States of America. To this information, Sillim, Preston, Willmott, Wilson, P. & W. Thompson appeared, and pleaded "that the said ship or vessel, furniture, tackle, and apparel, did not, nor did any or either of them, or any part thereof, become, nor is the same, or any or either of them, or any part thereof, forfeited for the several supposed causes in the said information mentioned, or for any or either of them, in manner or form as by the said information is charged." The case was tried before Pollock, C.B., at the Middlesex sittings after Trinity Term, 1863, when it appeared that the vessel when seized was in the possession of W. & P. Miller, the builders, and that the firms of Fawcett, Preston, & Co. [represented by Preston], the engineers, claimed her as owners. It was stated, on behalf of the Crown, by the then Attorney-General (Sir W. Atherton) that the character of the vessel was warlike, and that during her construction the builders and engineers were in such communication with the defendants Bullock, Tessier, Frazer & Co., as to leave no doubt that the vessel was meant for the service of the Confederate States, whose agents the last-mentioned persons were. Evidence was then given, to show first that the ship was built for a warlike purpose, and secondly that she was meant for the Confederate States. On the first of these two points, Mr. Green, a ship-builder, who had seen the ship since seizure, gave evidence that her bulwarks were formed differently from those of any vessel except a vessel of war. That the rudder was unusually strong, and that arrangements had been made for several hammock-racks for hammocks, which were unusual in merchant-vessels. That some of these racks were placed on the bulwarks, where they were never put but to resist shot. That the hatchways were not such as were suited for a merchant vessel, but such as would be found on board a small class man-of-war. That there was a considerable space before the boiler not fitted for carrying cargo. That the forecastle was such as would be found on board yachts or small vessels of war. That there was a cooking apparatus for 150 or 200 men, which would not be required in a merchant vessel. That there were places fitted up like purser's and medical officers' rooms. That the deck-beams were closer together than was usual in merchant vessels. The 98th count charged that the claimants did equip, furnish, and fit out, and did attempt and endeavour to equip, furnish, and fit out, and did procure Captain Englefield, of the Royal Navy, who had to be equipped, furnished, and fitted out, and did also examined the vessel since her seizure, stated that knowingly assist and be concerned in the equipping, she was strongly built, certainly not for mercantile furnishing, and fitting out of the said vessel, with in- purposes. That she would be usable as a yacht, and tent to employ her in the service of certain foreign easily convertible for the purposes of war. That she States and of divers persons styling themselves Confede- had accommodation for men and officers, such as would be required in war. That her stowage was only sufficient for provisions for her crew, assuming her crew to be thirty-two. That her build was quite capable of being converted into that of a man-of-war; but when he saw her, she had no preparations for guns. That there would be no difficulty in adding such preparations. She might be fitted with two or three pivot guns. She would probably carry three guns differing in size. The bulwarks were not of the same description as those in the British service. That with certain kinds of guns her bulwarks would allow of being fired over. That there was no difference between her cabins and such as would be used in a yacht. A ship-carpenter gave evidence that he had seen the "Alexandra," and that her bulwarks were stronger and lower than in a merchant ship, and that he did not consider the vessel qualified for mercantile purposes, but that she was adapted for purposes of war. That she was adapted for a gun-boat. Evidence was also given, that guns and gun-carriages were being prepared for the "Alexandra," but it appeared that there were other vessels building in the defendant's [Miller's] yard, for which the cannon might have been intended, and the Crown failed to show that they were meant for the vessel seized. It was also proved that the "Alabama," a well-known Confederate cruiser, had been built in the yard of another builder at Birkenhead, and sailed in ballast without her armament, which she received at sea, and at once hoisted the Confederate flag. To prove that the vessel was meant for use by the Confederate States, evidence was given that Tessier and Bullock were in the service of those States, and that Frazer & Co. acted as the agents of the Confederate Government. That one of this firm with Tessier, Bullock, and Hamilton, an officer in the Confederate service, were frequently in the yard looking at the vessel, and consulting the builder about her, and that one of the Millers had stated that she was intended for a gun-boat to be employed in the Confederate service. No evidence was given for the defence. POLLOCK, C. B., directed the jury on the construction of the Foreign Enlistment Act as follows: After quoting some American authorities on international law his Lordship said,—“These authorities show that when two belligerents are carrying on war, a neutral power may supply without any breach of international law, and without a breach of the Foreign Enlistment Act, munitions of war-gunpowder, every description of arms or munitions of war. Why should ships be an exception? I am of opinion, in point of law, they are not. The Foreign Enlistment Act, was an Act to prevent the enlistment or engagement of his Majesty's subjects to serve in foreign armies, and to prevent the fitting out and equipping in his Majesty's dominions vessels for warlike purpose, with out his Majesty's licence. be made against the equipping, fitting out, furnishing, and arming vessels, because it may be prejudicial to peace in his Majesty's dominions. The question I shall put to you is, whether you think that vessel was merely in course of building, to be delivered in pursuance of a contract which, as I explain it to you, would be perfectly lawful, or whether there was any intention that in the port of Liverpool, or any other English port, the vessel should be fitted out, equipped, furnished, or armed for purposes of war? If a man may supply any quantity of munitions of war to a belligerent, why not ships? Why should ships alone be an exception ? "I asked the Attorney-General, if a man could not make a vessel, intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it; would not that be lawful? "To my surprise, the learned Attorney-General declined to give an answer to that question. But I think it clear that a man may so make a vessel, and offer it for sale. If a man may build a vessel for the purpose of offering it for sale to either of the belligerent parties, may he not execute an order for it? That appears to me to be a matter of course. The statute is not made to provide means of protection for belligerent powers, otherwise it would have said you shall not sell powder or guns, and you shall not sell arms, and if it had done so all Birmingham would have been in arms against it. The object of the statute was this: that we should not have our ports in this country made the ground of hostile movements between the vessels of two belligerent powers, which might be fitted out, furnished, and armed in those ports. The 'Alexandra' was clearly nothing more than in course of building. It appears that according to Webster's Dictionary, equipping is furnishing with arms, and furnishing is given in other dictionaries as the same thing as equipping. It appears to me that if true that the 'Alabama' sailed away from Liverpool without any arms at all, as a mere ship in ballast, and that her armament was put on board at a place which is not in her Majesty's dominions, then the Foreign Enlistment Act was not violated at all. "The question is for you, what was the object with which the vessel was being built? With that view, consider the evidence: especially the most important evidence-that given by Captain Englefield. If you think that the object was to furnish, fit out, equip, or arm that vessel at Liverpool, that is an offence within the Act; but if you think the object merely was to build a ship in obedience to an order, or in compliance with a contract, leaving those who bought it to make what use they thought fit of it, then it appears to me that the Foreign Enlistment Act has not been broken.” The jury returned a verdict for the defendants. The Attorney-General tendered a bill of exceptions to the Lord Chief Baron's ruling, which his Lordship refused to sign, on the ground that it did not correctly "The preamble of the Act shows that provision is to state his summing up and direction to the jury. Subsequently, on the 4th of November, Michaelmas Term, 1863, the Attorney-General [Sir R. Palmer, Sir W. Atherton having retired from the office in consequence of ill-health] stated, that he intended to move for a new trial, and requested the Court to make a rule under the 22 & 23 Vict. c. 21, s. 26, applying the provisions of the Common Law Procedure Act as to appeals, to cases on the revenue side of the Court. The Court considered that such a rule was required, and accordingly, on the same day, made a rule under the above statute, assimilating the practice as to appeals in revenue cases to that in other cases under the Common Law Procedure Act. 5 Nov. 1863. 4th. That the learned Lord Chief Baron did not leave to the jury the question, whether the ship, "Alexandra," was or was not intended to be employed in the service of the Confederate States, to cruize and commit hostilities against the United States. 5th. That the learned Lord Chief Baron did not leave to the jury the question, whether there was any attempt or endeavour to equip, &c. 6th. That the learned Lord Chief Baron did not leave to the jury the question, whether there was knowingly any aiding, assisting, or being concerned in the equipping, &c.; and 7th. That the learned Lord Chief Baron misdirected the jury as to the construction and effect of The Attorney-General now moved for a rule nisi for the 7th section of the Foreign Enlistment Act. a new trial. There was uncontradicted evidence that a ship, which was being built and constructed to be used as a gun-boat, was in course of equipment and fitting out; and that the persons named in the information were aiding and abetting, or attempting and endeavouring to equip, furnish, and fit her out, to the intent and for the purpose that she should be employed by the Confederate States, and had the jury not been misdirected, they must have found for the Crown. The object of the statute was to enable the Crown to enforce against the subject that neutrality which it professed as a government, whereas, the inference from the language of the Lord Chief Baron is, that he considered the object of the Act to be, only to prevent collisions in British waters between vessels built for two belligerents. Besides this, his Lordship has put an erroneous construction on the words "equip, furnish, fit out, or arm," as used in the statute. The whole point of the offence is the intent and purpose, and any species whatever of "equipment, &c.," however innocent per se, is struck at by the plain words of the Act, provided the intent and purpose are established. [POLLOCK, C.B.-Suppose the case of building a mere hull, with the intention that it should be towed across the Atlantic by a tug to some Confederate port, that hull being incapable in that state of being used for any purpose of merchandise, or war, would that be illegal?] My case does not require me to argue that such a proceeding would be brought within the words "equip, furnish, fit out, or arm. PER CURIAM.-You may take a rule to show cause. The grounds for having a new trial, stated in the rule, were : 17 Nov. 1863. Sir H. Cairns, Karslake, Q.C., Mellish, Q. C., and Kemplay now showed cause against the rule. Sir H. Cairns.-The issue raised in the present case is whether the ship "Alexandra," her tackle, furniture, &c., are forfeited to the Crown under the Foreign Enlistment Act. In order to determine this question it is necessary carefully to consider the 7th section of that Act, on which the Crown founds its claim. When this has been disposed of, it will be necessary to deal with the alleged misdirection. In order properly to ascertain the meaning to be given to the Foreign Enlistment Act, the history of the statute and the policy of the Legislature on the subject must be looked to. In the first place the preamble should be considered, which states the object for which the Act was passed. (Here he read the preamble.) It is said there that the acts described "may be prejudicial to the peace and welfare of the kingdom, and that the laws in force are not sufficient for preventing the same." The object of the statute, therefore, clearly is to preserve the neutrality of this country, and to prevent us from becoming, through our subjects, parties to belligerent operations, either by allowing the enlistment of men or the equipping of vessels of war within this kingdom. This is the principal object of the Act as stated by the Attorney-General on behalf of the Crown. In the event of a war between two belligerents, this country being neutral, we have certain duties to perform by international law. Our neglect of those duties would give a belligerent a just ground of complaint against us, and therefore it was, as the AttorneyGeneral has said, that the Crown asked for and obtained from the Legislature powers for restraining those acts which, if not prevented, might become the 1st. That the verdict was against the evidence. 2nd. That the verdict was against the weight of cause of a war between ourselves and one of the evidence. 3rd. That the learned Lord Chief Baron did not sufficiently explain to the jury the construction and effect of the Foreign Enlistment Act. belligerents. It is, therefore, necessary to consider what is the extent and amount of international duty which one or both belligerents might call upon us to observe, and which, if not observed, would be a cause of complaint against us. This will give us the key to and the same doctrine has been laid down by Lord our own municipal legislation on the subject. The rules of international law on this subject are those which relate to the conduct in war of the subjects of a neutral power, not to the conduct of a neutral government; for a neutral government, as is well known, is not at liberty to perform any act which would in itself be assistance to either of the belligerents. There are on this subject two rules of international law which are fortunately very clear and definite. The first is, that the subjects of a neutral power in time of war may supply either belligerent with all those things which are termed contraband of war. For this there exists the authority of Chancellor Kent, 1 Kent's Com. marg. pag. 142, where the following doctrine is laid down :—“It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality on the neutral sovereign himself. It was contended on the part of the French nation in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown on the part of the United States, that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has never been explicitly declared by the judical authorities of this country. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.” Stowell in a case referred to by Chancellor Kent, The Twee Gebrueders, 3 Rob. Ad. Rep. 162. In that case, a belligerent vessel, lying within three miles of a neutral territory, sent her boats out beyond the neutral limit to make a capture, which they effected. Lord Stowell held that a proximate act of war had originated in neutral territory, and that the capture was invalid. The rules, therefore, of international law on this subject are clear. The law of nations defines a line round the dominion of a neutral state, outside the land and up to which municipal jurisdiction extends, and beyond which it ceases. Subjects of a neutral state may convey and deliver outside of that line any of the articles termed contraband of war, guns, ammunition, ships, or other such things; they may even take guns, &c., from the neutral state to a belligerent vessel outside the boundary line, subject to the right of capture; but it is not allowed by international law to originate on the neutral territory any proximate act of war, for instance, to issue out of the neutral territory with a ship prepared to commit hostilities. It is not allowed to arm a vessel within a neutral territory, and to sally out prepared to commit hostilities the moment the line limiting the neutral territory is passed. Such an act as this would give a belligerent a just ground of complaint. Such being the rule of international law on this subject, it is natural to expect that municipal legislation will follow the law of nations, and will give power to a government to restrain its subjects from committing those acts which would give a just ground of complaint to a belligerent. To ascertain the course of municipal legislation on this subject, it becomes necessary to examine the history of our statute; and for this purpose we may with advantage refer to the course of American legislation The same rule is laid down by Mr. Justice Story in on this matter, inasmuch as it is matter of history tha the case of The Santissima Trinidada [sometimes called the case of The Independencia], 7 Wheaton's Supreme Court Reports, 283. That learned Judge says (p. 340),-"There is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure, which only exposes the persons engaged in it to the penalty of confiscation." This rule, then, is perfectly clear. The second rule on the subject is this, that the territory of a neutral power must be kept absolutely inviolate from anything which may be termed a proximate or immediate act of war, and the neutral government will have a right to complain if the inviolability thus defined of the neutral territory is infringed by the belligerent directly, or by one of its own subjects at the instiga- | tion of the belligerent. This rule will also be found in 1 Kent's Com., marg. pp. 118, 120; the object of the legislation in this country was to follow the course of the American legislation : 5 Canning's Speeches, 50. The first American Act was passed 1794, but it ha been preceded by a circular letter sent round by the then President (Washington) to the collectors of customs at the American ports. This letter will b found in the American State Papers, vol. i. p. 45. The object of it was to prevent the fitting out and equipment of armed vessels for belligerents in the harbours of the United States. 3 Jefferson's Memoirs and Correspondence, 242, and it contained on this subject certain rules which have been referred to by statesmen as containing a correct statement of the duty of a neutral with regard to these matters: Canning's Speeches, cited above; 1 Kent's Com., marg. pag. 122. These rules merely apply to ships equipped for war. A Foreign Enlistment Act was passed by Congress in the next year (1794); and the history of this enact |