part of the cargo of the Croydon. Gibbs, C. J., thought that the agreement between the owners of the Croydon and Washington, that the Croydon should deliver to the Washington, on the coast of Africa, arms and gunpowder which she had legally taken on board for trafficking on that coast, was illegal; that it was, in effect, an illegal exportation by the Washington, which had given no security, that they should be trafficked with on that coast. The effect was, that the Americans did by this contrivance get arms from this country. If such an agreement could take effect on the coast of Africa, so might it at the mouth of the river Thames, and the consequence would be, that an American would get a full loading of arms and gunpowder at the mouth of the river, and go off insured by English underwriters. And under his lordship's direction the plaintiff was non-suited." Then there was a motion to set aside the non-suit and to have a new trial, and Chief Justice Gibbs said: "The assured is carrying into effect the illegal act agreed on in this country. I have thought a great deal upon this case since I decided it, and I cannot raise to myself a doubt upon the question." His lordship was of opinion that it was in effect an illegal exportation by the Washington, by means of which contrivance the Americans got arms from this country, which, under the order in council, they had no right to do, although they only got them on the coast of Africa, and by a ship which went out as the Bahama did with the Alabama. Another case, arising out of the same facts, came from Scotland to the House of Lords in the year 1840, at a distance of thirty-seven years from the transaction, and your lordships will find that reported under the name of Stewart vs. Gibson, in the first volume of Robinson's Scotch Appeal Cases. The case begins at page 260. But I content myself with reading a short passage from page 276, which your lordships will find in the judgment of Lord Chancellor Čottenham. "With regard to the question of illegality," his lordship says, "I entertain no doubt that the Court of Session were right in pronouncing this transaction illegal upon the facts as they appear upon the papers. It is not disputed by the counsel at the bar that if we had before us a contract to do that which subsequently took place, it would be illegal. If the contract had been in so many words, that an adventure should go out, relating in part to certain articles of merchandise which might be legally taken, and in part to arms and ammunition, which by the law of the country could not be legally taken, and it was thereby agreed that in order to evade the law no part of the arms and ammunition should be carried out in the ship which was to carry out the other goods, but should be carried in another ship to a place out of the immediate power and jurisdiction of this country, and then should be transshipped into the ship carrying the merchandise, that would be a transaction illegal, in violation of British law, and a contract on which no relief could be given." Then I observe that Lord Brougham, at page 293, though in the first instance he had made some strong observations about the wickedness of slaving, says: "It is needless to remind your lordships that we have in this case nothing to do with the illegality of the slave trade; this transaction was some time before that was put down by law." Now, I cannot but think that these cases have a direct bearing upon the case before your lordships, and there are principles also laid down in a decision in America, which I will refer to presently, to a very similar effect. But I say that these cases are quite enough to show that the transaction is substantially one, whether you divide it, as my learned friend suggests it may be divided in order to be made legal here, or whether you do not so divide it. And I say, if foreign governments have either de jure a right to complain, or de facto are likely to complain, of such a transaction, they and their complaints cannot be put off by such distinctions as that of attempting to separate the transaction into its elements, and to say, "You cannot complain because one part of it took place in every sense in England, and another part was only concerted, arranged, organized, and dispatched from England, and only not carried into effect in England in order to evade some municipal law of this country." I said that there was also an American case which was worth mentioning in connection with this subject; though I cannot help thinking that too much importance has been attributed to it as an authority bearing upon the particular question which your lordships have now in hand. I allude to the case of the Gran Para, which your lordships will find reported in the seventh volume of Wheaton's Reports. I have often seen it referred to as a case having a very important bearing on the whole matter now under argument. And there are some valuable principles stated very forcibly in the judgment to which I am now about to refer your lordships. But I cannot help thinking that specifically it does not go far to rule such a case as that before your lordships, because the facts were these: The ship Irresistible was in every sense of the word built, equipped, manned, and armed within an American port, and went from that American port in a condition in which she might have committed hostilities at any moment, but with this disguise only: her armament was entered on her papers as cargo, and her crew were engaged for a limited time as a mercantile crew. She had no commission; and it was not until she got into the territory of the power she was meant to serve that the commission was given, and that the crew, having been discharged, were re-engaged to serve that power. There can be no doubt, my lords, if, in truth, there was not a real break of continuity between her subsequent employment and her original intention, that the circumstances under which

she left the United States were so clear with regard to the nature and character of her armament as not to raise a question of the precise kind before your lordships; but, still with regard to those disguises which were used, it may not be otherwise than useful to refer to what fell from the very eminent judge in that case. Your lordships will find it at page 471 of the seventh volume of Wheaton's Reports. There are various questions argued, which I am not going to trouble your lordships with, relating to this ship Irresistible. And Chief Justice Marshall, generally reputed, I believe, to be the greatest lawyer that ever presided over the American courts, said this. It was like most of their cases-a case of restitution of prize. Prize cargoes seem frequently to have come within the United States jurisdiction, although the capturing vessels did not. The Chief Justice said: "That the Irresistible was purchased, and that she sailed out of the port of Baltimore, armed and manned as a vessel of war, for the purpose of being employed as a cruiser against a nation with whom the United States were at peace, is too clear for controversy. That the arms and ammunition were cleared out as cargo cannot vary the case. Nor is it thought to be material that the men were enlisted in form, as for a common mercantile voyage. There is nothing resembling a commercial adventure in any part of the transaction. The vessel was constructed for war, and not for commerce. There was no cargo on board but what was adapted to the purposes of The crew was too numerous for a merchantman, and was sufficient for a privateer. These circumstances demonstrate the intent with which the Irresistible sailéd out of the port of Baltimore.

war.

"But she was not commissioned as a privateer, nor did she attempt to act as one, until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This court has never decided that the offense adheres to the vessel, whatever changes may have taken place, and cannot be depurated at the termination of the cruise, in preparing for which it was committed; and as the Irresistible made no prize on her passage from Baltimore to the river La Plata, it is contended that her offense was depurated there, and that the court cannot connect her subsequent cruise with the transactions of Baltimore.

"If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as this enforcement depends on the restitution of the prizes made in violation of them. Vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew, to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired. This would, indeed, be a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe."

I need not read more of it. Of course the circumstances, as I have said, were strong circumstances, and not raising the distinctions relied upon here. But I cannot help thinking that, if the circumstances were such as I have been on this part of my argument throughout

to the notion, that the whoo foreign government would listen for a single instant

and armament of the might be organized and done under arrangements having their origin here, and carried into effect from hence, merely because, forsooth, they were carried into effect, as to the final stage of them, on the other side of the three miles from the British coasts.

Now, my lords, with regard to the principles of construction which ought to be observed with regard to this statute, I need not remind your lordships of the general principles of construction with which you are all so familiar. Of course we all know of the resolutions in Haydon's case, which are referred to constantly, in Plowden. Your lordships will find at page 694 of the second volume of Dwarris on Statutes the following passage, in which the rules are laid down:

"For the sure and true interpretation of all statutes in general, be they penal or beneficial, restrictive or enlarging of the common law, four things are to be discerned and considered;

"1. What was the common law before the making of the act?

"2. What was the mischief and defect against which the common law did not provide?

"3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? and,

"4. The true reason of the remedy.

"It was then held to be the duty of the judges at all times to make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for continuance of the mischief et pro privato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico." The succeeding observations show that, of course, that is only to be done by the fair interpretation of the language of the act, of course not straining the language, so as to create a crime, as my lord has said more than once, outside of that which is properly and truly expressed, according to a sound construction of the language. But when you have words which, according to a sound construc

tion, may prevent the mischief and advance the remedy, they should be so construed. When you have words which, according to their natural meaning and sound construction, as they stand, will have the effect of putting down all subtle inventions and evasions for the continuation of the mischief, then that onght to be done. It is not that you are to wrest the language or introduce into the act what you do not find there; but you are not to suffer it to be wrested in order to diminish the remedy, and leave as much as possible of the mischief untouched, under a notion, forsooth, that that is a principle to be applied to a penal statute.

It does so happen that we have the advantage of the ruling upon this subject of an American judge in a case upon their foreign enlistment act; and I will now refer your lordships to that, because I do not think you will depart from the principle of it. It is a case which the moment it is stated explodes one fallacy of my learned friend Sir Hugh Cairns, who, pressed as he was from the bench by some questions as to the extent to which he carried his argument that this statute is limited to what was previousiy illegal by international law-you will remember Mr. Baron Bramwell tried him with one or two questions as to how far he applied it to the clauses which relate to the enlistment of men in any part of the world-my friend first said that those were matters as to which foreign governments would have a right to complain if they were not suppressed; but he afterward said, O! that part of it does not depend on international law at all, and it has no legitimate place in this statute, although it occupies four-fifths of the whole. It is not to suppress a practice prejudicial to the welfare of the kingdom, but merely to enforce the obligation of allegiance against particular individuals, according to the argument of my learned friend. Now it does so happen that the case to which I refer, which is the case of the United States vs. Workman and Kerr, and is reported in Wharton's American Criminal law, at page 905 of the third edition, arose on the enlistment clauses of their act, and not the equipment clauses. It arose out of some filibustering proceedings in Mexico, and this is the language of the learned judge, Mr. Justice Judson, who charged the jury, and it appears to have been received with approbation by the courts of that country. As in this case, the indictment in that case was a very long indictment; it contained ninety-seven counts, setting out in different forms the offenses supposed to be committed against the act. He gets rid, of course, rapidly, of the mere questions of form, and then he says this: "First of all it is an undeniable proposition that all penal statutes are to receive a strict construction. This is a penal statute, and it falls within this rule. The terms used are not to be extended beyond their natural import to fix an offense on the defendants; but this rule, on the other hand, does not require any such construction as to fritter it away and defeat its object, and annul the law itself. I will then state to you in the outset some of these essential rules, and point out their application. We are to look at the spirit, intent, and object of a law; what mischief it was intended to prevent, and in what manner the remedy is to be applied. What, then, is this law? Its great object, the all-pervading object of this law, is peace with all nations; national amity." That he could discover from the mere provisions of the act, but we have it on the face of our act in the preamble. The learned judge continues thus: "which will alone enable us to enjoy friendly intercourse and uninterrupted commerce, the great source of wealth and prosperity; in short, to prevent war, with all its sad and desolating consequences. These being the objects of this law, they are sufficiently important to arrest the attention of both court and jury, and secure to the United States and to the accused a fair and impartial trial." Then he goes on to say, that "Before the jury can convict on this indictment, it must be proved to their satisfaction that the expedition or enterprise was in its character military; or, in other words, it must have been shown by competent proof that the design, the end, the aim, and the purpose of the expedition or enterprise was some military service, some attack or invasion of another people or country, state, or colony, as a military force." Then he goes on to distinguish between what is commercial and what is military, in terms which, if there were not time to be expended on other things, I should have much satisfaction in reading to your lordships.

Now, my lords, having said so much on the general principles of construction to be applied in this case, having entered, as I have done, at some length, because I thought it important, into the question of the mischief, I now wish to take some notice in a general way, before condescending to any particulars, of the line of argument which has been addressed to your lordships, derived from the antecedent history of the matters which led to this legislation, and the particular occasion on which it was made. Now, my lords, I take the liberty of saying that it will be new to me if your lordships' judgment should give any countenance to the notion that the construction of an act of Parliament of this kind is to be limited or cut down by any previous declarations or speeches of statesmen, or members of Parliament, whether at the time of introducing it or at any other time, or by inferences drawn from any transactions of state which are no part of the legislation itself. I not only object on very obvious grounds, some of which I shall mention presently, to that as opposed to all known principles of construction, but I object for a still further reason.

LORD CHIEF BARON. I think there can be no doubt in the mind of any member of

the court that none of those matters which you are alluding to can be taken into consideration by the court when they come to expound the statute. I take it they were introduced, as some other matters have been, to put the court in possession of what may be called the history of the case. They can have no bearing whatever beyond that. Mr. ATTORNEY GENERAL. I took them entirely in that view, and, of course, no one could for a moment imagine that for the direct purpose of construction they could be used.

LORD CHIEF BARON. And I think I may add, with the sanction of all my learned brothers, that those matters, especially of foreign history, foreign decisions, and foreign acts, which the people of this country cannot be supposed to be aware of, or to have any knowledge of, and which they certainly are not bound to know, can hardly be taken into consideration when you come to expound a statute which is exceedingly penal. We must take the statute as we find it, and expound it as an Englishman ought to expound it, and without reference to any other country.

Mr. ATTORNEY GENERAL. Beyond all doubt; and the only use of referring to American decisions on the subject is simply this: that where you find them to be the decisions of judges on similar questions arising out of their own law, you give just as much weight to them as you would to the decisions of the same judges upon any other question of law, and no more. I rather imagine that that would be the view that we shall all agree in taking as to the purpose for which American decisions may be referred to; and with regard to these other matters, I was not inclined to doubt that my friend viewed them in the light your lordship mentioned, as part of the history merely; or as my friend Sir Hugh Cairns put it, that they might be referred to for the purpose of placing your lordships in the situation of the legislature, as it were, at the time the act was passed. Of course, I only wish to make such observations upon that part of the argument of my friend as shall restrict these matters to their proper province. I do not think, in point of fact, that for that purpose a reference to transactions such as were referred to, and speeches such as were referred to, is really very germane or useful; because I say that such arguments misrepresent, or at least there is great danger that they may misrepresent, the meaning relative to the subject in hand of the very speeches cited and the very transactions referred to. If a man is, for instance, in Parliament, arguing a question on the second reading of a bill, he does not go into the clauses, or the interpretation of them; but he takes a broad case, he speaks broadly of a patent obvious mischief, the strongest case he can think of that comes within the general policy. The principle of a bill is to repress that mischief and everything which may be conducive to it. He does not go into the details, but of course when you come to the details of legislation, the broad case, the flagrant invasion of the principle, will be surrounded by safeguards, such as are necessary completely to effectuate the object and policy of the act. Therefore it is very idle to say, this or that statesman spoke in such and such terms; they were very appropriate and very intelligible for the purpose for which he was speaking, but as he was not speaking with a view to construe the language of the clauses of the act, it would be most absurd to suppose that his having used that language can throw any light on the object and policy of the act. In truth, nothing was said which I should object to every member of the court reading over and over again, if it had any bearing upon the matter, because it bears out my view of the general purpose of the act, namely, that it was to vindicate our neutrality, and to prevent our being imbroiled with foreign nations by operations, as to which other countries might say: "Whatever you call them, practically they are hostile to us." I think that was the view taken of it at all times; but as I do not think that ultimately we get any particular good from that part of the argument, I do not intend to dwell upon it in addressing your lordships. But there was one argument which my friend Sir Hugh Cairns, by an ingenious device, contrived to make do duty in a more important direction, and that is what he said upon Washington's rules which preceded the enactment of the American statute. I have had on many occasions greatly to admire the ability, the ingenuity, and the courage of my learned friend; never more than on this occasion; and on this occasion in nothing more than with respect to the reference which he over and over again made to those rules of Washington, as if they had become landmarks in the law of nations, as if they had laid down some fixed principles of international law, and then that the American statute having intended to embody those principles, and our statute, to some extent, being framed on it as a precedent, therefore you are to look at those rules as embodying the principles meant to be protected and defended by those acts. What is the history of those rules of Washington? I can give it you very shortly. I will not read the passage, but I will give you the reference if you will have the goodness to make a note of page 712 of the last edition, that is, Lawrence's edition, of Wheaton's International Law. Your lordships will find in a note there, concisely stated, what I think you will also find in an exceedingly excellent pamphlet, which it is, perhaps, legitimate to mention, and which has been lately published by a gentleman well known to me, Mr. Gibbs. I really think that thehistory of the matter is so well collected there that I cannot do better than refer to it.

LORD CHIEF BARON. It is extremely useful to those who wish to look at the authorities; it collects them all together in a very convenient form.

Mr. ATTORNEY GENERAL. They are so accurately brought together that I felt myself justified in mentioning it, although ordinarily we do not mention any publication of so recent a date. My lords, the real truth of the case is this: the policy of the American cabinet with regard to the mode of maintaining its professed neutrality in the war then lately broken out between England and revolutionary France was undecided, and Washington's views fluctuated and changed from time to time. The American government were in this peculiar situation, they were not able to permit the equipment of warlike vessels in their ports equally and impartially by both belligerents, because they had a treaty with France, of which you will find the details in the publication I have mentioned, which guaranteed France against privateers being armed against France in the American ports, and against any prizes taken from the French being brought into those ports.

Now you will find, both in the chapter of Chancellor Kent's work to which my friend referred, where those rules are mentioned, and in Wheaton's International Law, and everywhere else, this to be laid down as the law of nations on the subject of the equipment of ships of war in a neutral territory; that it is perfectly competent, consistently with international law, for the neutral state to permit either party to make warlike equipments of ships, everything which is forbidden by the foreign enlistment act on any construction of it, without breach of neutrality, or without any breach of international law, provided it be equally and indifferently permitted, by the neutral country, to both parties. But the Americans were placed in a situation by their treaty with France, which disabled them from allowing to England that which France was doing. So that the effect of the treaty was this: although it seemed that international law had made some provisions for positive stipulation of exceptional advantages in favor of one belligerent, if those stipulations had been made before the war, yet there being nothing of the kind positive here, and it being merely a stipulation that the enemies of France should not equip ships of war against France in ports of the United States, it was impossible for the United States to permit France herself to equip such ships without violating the principle of neutrality, because they could not allow Great Britain to do the same. That led to the whole complication, and those rules which have been mentioned are not rules expressing, or at any time supposed to express, absolute obligations imposed by international law upon the neutral government, but they are, as Chancellor Kent says in the passage which my learned friend Sir Hugh Cairns referred to, founded on the principles of international law; which are these, that the neutral government has the absolute right to prohibit a belligerent government from carrying on any operations of that description within its territory; and having the absolute right to do that, it will fail in its duty of neutrality if it does not either prohibit it to him, or else allow it also to his adversary. Well, these rules, made by a government which could not allow it to both parties, are made in assertion of their territorial rights against both, in order to avoid partiality to one contrary to the law of nations. That is the whole and sole connection of those rules with the subject of international law. I think I will not pursue the matter further, though that connects itself with the American statute; for I may conveniently, I think, take up the history of the American statute when we begin to-morrow.

Mr. MELLISH. If your lordship will allow me, I will hand you up this copy of the decree about the Oreto.

Adjourned to to-morrow morning at ten o'clock.

FOURTH DAY.-FRIDAY, November 20, 1863. Mr. ATTORNEY GENERAL. My lords, when your lordships rose yesterday, I had been referring to a subject which was treated as of considerable importance by my learned friend, although in my opinion, when its meaning and bearing are rightly understood, it will turn out to have none; yet I do not wish to leave that undemonstrated, and therefore I will say a little more about it. I allude to the rules which were made by President Washington and by his government, on the 3d of August, 1793. They were headed, “Rules adopted by the American cabinet as to the equipment of vessels in the ports of the United States by belligerent powers, and proceedings on the conduct of the French minister." My lords, it was an act of state, a political act, which was undoubtedly in this sense connected with rules and principles of international lawthat it was warranted by those rules and principles under the circumstances in which the United States were then placed; but the notion of its being intended to be, or being in any sense whatever, an abstract declaration of the obligations and the rights of neutral states under those circumstances, is one for which there is absolutely no foundation either in history or in law.

Now, the real circumstances connected with those rules will be best understood, I