PARLIAMENTARY AND JUDICIAL APPENDIX TO CLAIMS AGAINST GREAT BRITAIN. APPENDIX No. XV. OFFICIAL REPORTS OF THE ALEXANDRA TRIAL BEFORE A JURY, AND ON APPEAL TO THE COURT OF EXCHEQUER AND THE HOUSE OF LORDS. IN THE HOUSE OF LORDS. The ATTORNEY GENERAL, appellant, and SILLEM AND OTHERS, claiming the vessel Alexandra, seized under the foreign enlistment act, (59 George III, chapter 69,) respondents. Report of the trial before the right honorable the Lord Chief Baron and a special jury. With an appendix. Counsel for the Crown: The Attorney General, Sir Wm. Atherton, knight; the Solicitor General, Sir Roundell Palmer, knight; the Queen's Advocate, Sir Rob. Josh. Phillimore, knight, Q. C., D. C. L.; Mr. Locke, Q. C.; Mr. T. Jones. Counsel for the claimants: Sir Hugh 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 & Co.,) London. Agents for Messrs. Fletcher & Hull, Liverpool. FIRST DAY, MONDAY, June 22, 1863. Eight special jurymen only having answered, a tales was prayed. The ATTORNEY GENERAL: May it please your lordship; gentlemen of the jury, I shall have to ask, and I am sure I shall obtain, your careful attention to the observations with which I shall have to introduce this case to your notice. The case is so far a singular case, that although the act of Parliament upon which it is founded passed so long ago as the year 1819, and although it is true that various proceedings have been commenced from time to time, similar to the present, under that act, I am not aware that until to-day any case of the kind has been actually brought to trial; and therefore it is a case of a class with which neither you nor other gentlemen who are in the habit of serving on juries have any very great familiarity. Gentlemen, you will find that this information is a proceeding on the part of the attorney general claiming the forfeiture of a vessel called the Alexandra. The act under which the information is brought is familiarly known as "The foreign enlistment act," the title of which is "An act to prevent the enlisting or engagement of his Majesty's subjects to serve in foreign service, and the fitting out or equipping in his Majesty's dominions vessels for warlike purposes, without his Majesty's license; "* and under this act, upon information received by the government in * Vide British foreign enlistment act, (59 Geo. 3, c. 69,) post. the month of April last, seizure was made of the vessel whose name I have mentioned to you, the Alexandra; a seizure on grounds which, if established, will make out_the forfeiture of the vessel. Now the seizure having been made, certain gentlemen at Liverpool, for I should state that the seizure was made in Liverpool, certain gentlemen there, five in number, whose names will be given to you, who carry on the business of iron founders, under the name of Fawcett, Preston & Company, made an affidavit that at the time of seizure the vessel in question was their property, and thereupon, according to the prescribed rules, they were permitted to enter an appearance to defend, as they do to-day, thereby putting upon the Crown, as between the Crown and themselves, the burden of proving a sufficient cause under the act of Parliament which would justify the seizure and affirm the forfeiture. That act was passed at a time when hostilities were actually in operation between Spain, the mother country, and her revolted colonies in South America. And that act, I may mention, repealed two previous statutes, one the 9th of George II, and another, the 29th of the same reign, which acts, however, had a narrower scope than the act in question, as they related only to the enlisting of soldiers to serve in the armies of other powers. They had this difference also, that under each of those acts the offense that the act created or affirmed was made a felony, and the punishment was death. The consequence of the severe punishment was, or was supposed to be, that in truth no conviction could possibly be obtained under the acts, and therefore by the foreign enlistment act, not only were the provisions of the former acts extended so as to apply to the case you will now have to consider, that of equipping and furnishing ships to be employed in the service of foreign governments against other states at peace with the English Crown, but the offense was reduced to the minor class of misdemeanor, and the punishment, instead of being capital, was that attaching to offenses of a less grave character, namely, the forfeiture of the ship, and in some instances fine and imprisonment. I should mention (and perhaps I am the more justified in doing so, inasmuch as the present proceeding has originated out of the hostilities which unfortunately now, and for some time past, have been carried on between the government of the United States and certain States formerly willing members of the Union, I mean the States that are now called the Confederate States) that previous to the passing of the foreign enlistment act in this country, the government of the United States of that day had applied themselves to the consideration and the devising of a legislative provision on the same subject. For in 1794, by an act of Congress, and in 1818 again, by another act of Congress,* revising and re-enacting and extending the former, provisions were made similar to those contained in the foreign enlistment act of this country. There fore, in passing our act of 1819 we may be said to have followed the example set by the United States, and especially as under the act of Congress provision was made making it a misdemeanor to be concerned in fitting out vessels, much in the terms of the English foreign enlistment act, and the law of America is the same to this day. With respect to the object of the passing of the foreign enlistment act, the two earlier acts do not appear to have had in view the same object. It appears particularly to have been contemplated by the framers of the foreign enlistment act to enforce the observance of neutrality in the event of war between states with each of whom this country might happen to be in friendly relations. Such being the object of the foreign enlistment act, the earlier acts seem not to have contemplated that at all, or at all events, if at all, very indirectly; and they seem rather to have had in view the direct defense of the Crown, at that time not very well assured to the line in which it then was, and in which, happily, it has since continued-rather an object of self-defense than with a view to the preservation and the enforcement of the duties of neutrality. Now I am sure I need not say a word about the importance of observing neutrality on the part of a state being at war with neither one belligerent nor the other. You are aware that the sovereign of any state cannot directly, by his own forces, interfere in a pending war without himself thereby becoming a party to the contest, the ally of the one and the enemy of the other. But, with reference to the subjects of neutral states, their interference in violation of the duties of neutrality by lending aid to the one of the belligerent parties or to the other, I say such interference does not of itself or necessarily involve the sovereign whose subjects they are in the pending war. At the same time such acts are calculated of course to give great umbrage to the belligerent state against whom or against whose arms they are directed; they are calculated to bring on complaints, possibly recrimination, and their tendency in fact, if not checked, is to involve the neutral sovereign without any will or disposition of his own, or his government, in the war in which his subjects under those circumstances improperly seek to take a part. It is therefore not only the duty of the neutral government or governments to provide, as far as may be, against this mischievous intermeddling of their own subjects in the quarrels of those states; not only is it their duty to do so, but for the reasons I have mentioned it is manifestly and highly their interest to take that course. And, therefore, the policy of the act, and one may advert to that for a moment, the policy of the foreign enlistment act cannot admit of any doubt, *Vide United States foreign enlistment act, (act of Congress, c. 88,) post. more especially when we regard it in its possible bearing on the government of the United States, which, as I have before mentioned, has not only recorded upon its own statute book enactments similar to this, which would tell forcibly on this country in the event of their being a belligerent, and the United States being a neutral, and having regard also to the circumstance that I have previously mentioned, that really, with reference to this enactment, we did but follow the example that had been set us by the government of the United States. And that brings me to what much more concerns the case, namely, the hostilities out of which the necessity for such an interference on the part of the Crown as the present has arisen. Gentlemen, you will remember, in the year 1861, certain States, now familiarly known as the Confederate States or the Southern States, which had previously for a long time, without any attempt, or, at least, any forcible attempt, to sunder the Union, formed part of the aggregate States called the United States, determined to recede, or to secede, as it has been called, from the other portions of the States which are familiarly called the Northern States, although we are bound to recognize them as the United States of America, not having recognized the independence of the seceding States; and, therefore, our relations are with the government precisely as they would have been had the secession never occurred. However, in that year the States to which I have referred determined to secede from the Union; their endeavors to carry that out and to assert their right to secede ended, as you are well aware, in a war between the government of the United States and the Southern or Confederate States, as, for convenience, we may call them during this inquiry. The war broke out which is now raging, and which has raged for considerably more than two years, which, as you are aware, has involved both parties to the war in very great sufferings and very great misfortune, which one does not at present see the end of, and which unfortunately has extended its baneful influence much beyond the confines of the territories either of the Northern or Southern States, and, as you are well aware, has involved a considerable portion of the laboring population of this country in destitution, and dependence upon others for their support. The war, however, having broken out, it soon became apparent that, although it was on the part of the seceded States what might be called a revolt against the government under which they had previously lived, and to which they had previously submitted, yet the organization and the power, and the means of self-defense, and the carrying on of military operations according to the regular and recognized rules of war-obviously all these conditions-attached to the seceded States, and therefore, as regarded other States not embarked in the hostilities, it was right, although a recognition of the Confederate States as an independent power was quite out of the question, yet it was right that they should be admitted by other nations within the circle of lawful belligerents, that is to say, that their forces should not be treated as pirates, or their flag as a piratical flag. Therefore, so far as the two belligerents were concerned, on the part of this government and the other European governments, they were so far put upon a level as that each was to be considered as entitled to the rights of a belligerent-these States just as much as the others were. That conclusion being taken, it then became proper, according to a course usually adopted and most convenient in the case of war raging between other states, that a proclamation, called a proclamation of neutrality, should be issued by the Crown, with a view, in the first place, of declaring and making public the intention of the Crown to observe an honest neutrality, and in the next place, for the purpose of warning the subjects of the Crown in the various parts of the Queen's dominions, or elsewhere, of their duty to observe the neutrality which their sovereign had taken upon herself to observe, and of preventing their falling by inadvertence or by ignorance of the law into the responsibilities and liabilities which, possibly, if they were better informed, they might seek to avoid. Therefore, on the 13th May, in the year 1861, the proclamation* to which I have alluded was issued. That proclamation begins by stating, "We are happily at peace with all sovereigns, powers, and states, and whereas hostilities have unhappily commenced between the governments, &c.," and then a proclamation is issued, which commands all the Queen's subjects to observe a strict neutrality. It then calls attention to certain provisions, the most material provisions, I think, of the foreign enlistment act, and conveys a warning to the Queen's subjects not to violate the understood provisions of international law, and apprises them that, in the event of their breaking either the municipal law, which is that which the foreign enlistment act declares, or the law of nations independent of the municipal law, they will be left to the consequences, of course penal consequences, in the courts of this country for the violation of the municipal law, and to the penalties attached by international law to the infraction of international obligations as distinct from municipal. I should mention, as we are now brought to the consideration of the character of the two belligerents-oné a regular government recognized long since by the Crown of this country, and still in amity with the government of Great Britain, the other wholly unrecognized—that one of the objects, and, I think, the main object, of the foreign enlistment act being passed, was to prevent any doubt being entertained on the subject of the character of one of the * Vide Queen's proclamation of neutrality, May 13, 1861, post. x |