person spoken of in the beginning of the clause was supposed to equip a vessel with the intent that she should be employed by a foreign state with the intent to commit hostilities, you would have this: a man in her Majesty's dominions equipping a vessel, not with an intention to do something, but with an intention to have that vessel employed by another party, a foreign state, with an intention in that foreign state, as to which he could have no control or knowledge, to employ the ship in a particular manner. Now I find that, in some of the counts in this information, the construction which I have submitted to your lordship has been adopted. I find that in some of the counts the allegations are that the Alexandra was fitted out by persons in this country with an intent to cruise and commit hostilities, as a matter of evidence. We will deal with that at the proper time, and upon that I shall be heard addressing the jury, under your lordship's sanction. But there are other counts in the declaration, a great number, which make wholly different allegations, which allege that certain persons in this country have equipped the ship Alexandra with the intent that she shall be employed by a foreign government, namely, the Confederate States, with the intent, the second time, to cruise and commit hostilities; that is, the persons in this country have equipped the Alexandra, not merely with a single intention, that she should be employed by the Confederate States, but with an affirmance of what the intention was that the Confederate States should do with the vessel so employed. I apprehend, as a matter of law, that will be found to be an incorrect construction of this section; and I desire, in whatever may appear to your lordship to be the most convenient way, to take those two points-the one going to the whole of the points in the information, the other going to a very large number of them-to take those two points, and to submit them to your lordship for your consideration, to be dealt with at the proper time, when your lordship may direct the jury on the points of law to arise in the case.

LORD CHIEF BARON POLLOCK. I think, Sir Hugh Cairns, the proper course would be to go on with the case now, and when the opinion of the jury is delivered, assuming that there is one count which is objectionable upon the verdict, then that count would not stand. There would then be either a motion for arrest of judgment or by arrangement. If the court thought that the count was not within the act of Parliament, a verdict of "Not guilty" could be entered.

The ATTORNEY GENERAL. I may mention, my lord, that it strikes me at present that the first point taken by Sir Hugh Cairns is on the record.

SIR HUGH CAIRNS. I agree to that.

LORD CHIEF BARON POLLOCK. In reality the whole is on the record.

SIR HUGH CAIRNS. The whole of the second point would not be quite on the record; the first would be on the record and would be an objection in arrest of judgment; and this would be on the record so far as regarded a certain number of counts. As to the other, it would be a point whether there was any evidence; as to which, of course, I shall address the jury, under your lordship's sanction.

Now, I have stated those points which are peculiarly for your lordship's consideration. Of course there will arise, in the observations which I shall have to make, certain other questions on the construction of the act of Parliament, but those will be more particularly dealt with as I venture to put them forward in my address. My learned friend suggests, and I quite accept the suggestion, that it would be convenient also if your lordship would be kind enough to take a note of our objection. It is putting the same objection in another form, that inasmuch as the intent to cruise and commit hostilities must be the intent of the persons who are engaged either in the control or in the building of the ship as proprietors and as having dominion over the ship, there is no evidence whatever in this case to go to the jury that there was any such intent.

Mr. MELLISH. What I just mentioned that your lordship would take a note of was this: We state that an equipment with intent to cruise and commit hostilities necessarily involves an arming in this country; that if the ship is to sail from this country in an unarmed state, and the intention of the parties is that she should sail in an unarmed state, that is not sailing with intent to commit hostilities within the meaning of this section, and that there is no evidence in this case of an intention that she should be armed in this country.

SIR HUGH CAIRNS. May it please your lordship, gentlemen of the jury, I have the honor to appear in this case on behalf of the firm whose names you have so often heard mentioned in the case, Fawcett, Preston and Company. Gentlemen of the jury, you have heard that this firm has been established in Liverpool for a great number of years; I think it was said for as many as forty years. I heard one of my learned friends who appears here on behalf of the Crown say that it was a very singular and remarkable thing that we had not a partner in the firm who appeared to have the name of the firm.

In point of fact, that is not quite right, because Mr. Preston, I am happy to say, is still alive, and is still a partner, though not one of the active partners in the business. But you are aware that when a firm has existed in this country for forty years, and has made a great deal of money, a great many of those who were the original partners retire from it on very pleasant terms, others succeed as continuing partners, and the

6 A C-VOL. V

name of the firm, which has become so celebrated and renowned for its character and its workmanship, is continued often when the original partners have ceased to have any part in it.

You have had already a general description of the business of this firm. We were told that they employed as many as nine hundred men on an average; that they made every kind of work which can be made in a manufactory, and work of this kind not merely for peaceful purposes, engines for steamboats, works for sugar manufactories, and cotton presses; but also that they made cannons of all kinds and descriptions. I think one of the witnesses for the Crown said that they made ordnance of every sort, and it was lying about for any person who chose to come in to buy it. They make shot and shell, and things like that upon the scale and in the manner which was described to you. The firm of Fawcett, Preston and Company, we must take it as being admitted, was, on the 6th of April in the present year, the owners of the ship Alexandra, of which you have heard so much said in the case. That is admitted as regards the date at all events; that on the 6th of the present year they were owners, and the bona fide owners of the ship. The ship at this time was lying in a dock at Liverpool, which you have heard called the Toxteth dock. Now, the Toxteth dock is one of the public docks at Liverpool; the ship was lying then in public; there was no concealment about it; any person might go to look at the ship who chose, and from first to last it appears that there was not the slightest attempt at concealment at any stage of the construction of the ship. She was lying in the Toxteth dock on the 6th April of this year; and on that day she was seized, as you have heard, by the officers of the customs, and seized upon the allegation, not that she was to be kept in safe custody until there was some investigation made with regard to her, but she was seized as forfeited, a ship that had passed away from whoever might be her owner and had become the property of the Crown, because an offense, a misdemeanor, had been committed, and, therefore, that the ship had become the property of the Crown, and had ceased to be the property of the owner.

That was the allegation, and I need not tell you, of course, that the seizure of a ship under those circumstances can only be justified if the Crown can make good to the letter the allegation which it has put forward. If it cannot, the seizure is a wrongful seizure; the ship does not belong to the Crown; and there is no justification for having take her from the owners. The course which was adopted was one which is very easily described. It was understood that the Crown, of course, would not have acted in a case of that kind without some information given. It was understood that depositions had been made, on which the officers of the Crown had acted. The request was made on the part of Messrs. Fawcett, Preston and Company, to those who represent the customs, to be allowed to see the depositions which had been made, and on which the ship had been seized. Messrs. Fawcett, Preston and Compay knew (we have seen evidence enough of it in this case) that spies were about and tolerably rife in Liverpool. They knew that those gentlemen were not the most scrupulous in the statements that might be made; and certainly they entertained the hope that they would have been informed, on behalf of the Crown, of what the nature and character of the information was upon which the seizure of the vessel had been made; and I have not the least doubt that if it had appeared advisable to furnish those gentlemen, whom I represent, with information of that kind, much of what has occurred since might have been spared; and if it had only been known on what ground the Crown proceeded, the Crown might easily have been made aware that the proceeding was entirely misconceived, and could not be supported. However, the course adopted was this: The matter has been brought on for trial in the usual way; and the first information which we have has been a document, which has been referred to; you have heard me refer to it just now in my address to my lord. The pleadings in the cause, what is called by a somewhat amusing and somewhat ironical term, the "information," because I am bound to tell you that it does not contain the least information in the world, and I suppose that this is the reason why it has got its name. This ponderous document is one consisting of ninety-two counts. The attorney general described it in his opening by words which were extremely accurate. He said that ninety-nine hundredths parts of it might be disregarded; that it was simply ringing the changes on the various words in the section of the act of Parliament, and that it did not supply any information at all on the points which were in question. We are, therefore, driven to look at the opening of the attorney general, for the purpose of seeing what is the nature of case which the Crown put forward.

Now, the attorney general says, and says very accurately, that this is the first case which has ever been brought to trial under the foreign enlistment act, although we are now in the year 1863, and the foreign enlistment act was passed in the year 1819, which is exactly forty-four years ago. Now, that is a very significant fact, and I cannot help thinking a very remarkable part in the case. There have been since 1819 a

great many wars in the world. There have been a great many wars in which happily we have not been engaged, in which the government of this country has been neuter. There have been a great many wars between nations on the continent of Europe and

nations in other parts of the world, with regard to which we have taken no part what soever; and during the whole of that time the neutrality of the country has been preserved and efficiently maintained, and all the time the commerce and the dealings of the country have not been disturbed or interfered with. There has not been a single allegation made in a court of justice, or brought to trial against any trader or merchant in this country, for having done any act within the scope and compass of the foreign enlistment act, either as to a ship or otherwise, which could be made the subject of complaint in a court of law. Now, I cannot help thinking that it will be found in this case that there is some explanation for that very remarkable circumstance; I mean the circumstance that there never has been a case brought to trial previous to the case which is now being tried before you.

Gentlemen, you have seen in this case sufficient indications from the evidence which you have already heard, that we have here the advantage not merely of the advisers of the Crown and who represent the Crown, but that behind them these proceedings, as the attorney general said very fairly and candidly, were urged on and promoted by the agents of the United States government in Liverpool. My learned friend the attorney general said that the United States had their agents there who were on the alert. They thought that they had a right to complain of what was being done at Liverpool; they applied to the Crown, and they asked the Crown to put the foreign enlistment act into operation; and the Crown has put the foreign enlistment act into operation. The advisers of the American government are here assisting, and counseling, and conducting the proceedings which are now taken before you. I do not think we can be ignorant of that; the attorney general referred to what are matters of notoriety in his opening; but there are matters of notoriety in all those affairs; we all of us know perfectly well that there has been the greatest anxiety on the part of the United States government to try whether they could strain and stretch the laws of this country, and have an indictment maintained in this country, founded upon allegations of theirs, that they conceived acts were being done in this country of which they thought they had a right to complain.

What has evidently happened is this. The law officers of the Crown have said to those who are called the agents of the United States government, "We have a foreign enlistment act; it was passed in the year 1819; there never has been an information under it; we do not in the least think that you have any evidence which can prove a case under it; but if you think otherwise, we will bring it before a jury; we will do our best; but do not be surprised if you find in the result that you are entirely mistaken, and fail in your case.” It was a very fair course to take, and it will explain the circumstance that we have now got a case of this kind, which of course is nothing different from that which has been done for years and years, ever since the foreign enlistment act was passed, and before which nobody ever thought that it was a proceeding upon which any imputation could be cast as being contrary to law. It will explain why we have never had such a complaint before, and why we now have it for the first time.

Now, gentlemen, I must ask you to consider, with a little minuteness for a moment, the way in which the attorney general puts his indictment; and I will ask you, for that purpose, to divide it into what I think will be found to be the four charges of which, in his opening and in his explanation of the indictment in this case, the accusation of the attorney general consists. In the first place he says, that in the proceedings which are complained of there were a great number of persons concerned, mixed up, and implicated together. Very vague terms are used, and they are described in this way. Taking the names from the indictment in this case, the names are these: The Messrs. Miller, who are ship-builders at Liverpool, who have a public ship-building yard, and who build ships for those who desire to have ships built. I will take the names of the firms, because it will be more convenient and will keep the matter more in your minds. The second parties are Messrs. Fawcett, Preston and Company, who, as I told you, are the parties in the case for whom I have the honor of appearing; the third parties are the firm of Fraser, Trenholm and Company; and then you have the individuals named, Captain Tessier one, Captain Bulloch another, and a person whose name I have only seen in the information, called Butcher; I will leave out Mr. Butcher. The attorney general says that all these persons were mixed up together in what he has to lay before

you.

His first charge is some sort of connection between the persons I have named. His second charge is this, that these persons, or some of them, equipped, furnished, or fitted out the Alexandra, or attempted to do it, with intent to cruise and commit hostilities in some shape or form. His third charge is that they did this with the intent that she should be employed in the confederate service; and the fourth is, that she should cruise and commit hostilities against the federal States. These I apprehend will be found to be the four propositions which go to make up the entire proposition on which the attorney general rests: first, the connection between the parties; secondly, that the Alexandra was fitted out to cruise and commit hostilities; thirdly, that she was to be employed

by the confederate government; and, fourthly, that she was to cruise and commit hostilities against the federal States.

Now, I must call your attention to this. If those charges can be sustained, we must have no misunderstanding or misapprehension as to what the effect of them is. The effect of those charges, supposing they can be sustained in point of evidence and in point of law, is that they constitute, under the foreign enlistment act, a misdemeanor against all the persons concerned. My lord said to us this morning, and said most accurately, that in point of form we are not trying, and my lord is not trying in this court a misdemeanor for the purpose of criminal sentence. That is most true and accurate; but at the same time you will bear in mind that these very acts, if they are within the foreign enlistment act at all, constitute a misdemeanor within the foregn enlistment act, a crime that is against all the persons who may be found to be concerned. No doubt there is, as incident to and as consequent upon the crime and the misdemeanor, the forfeiture of the ship; but there is the crime declared by the act of Parliament, and then the forfeiture of the ship. Now, I beg your attention to that, because I cannot help thinking that in that has been said in some parts of the occasional arguments which have taken place in your hearing, there has been rather a desire to treat this as a light matter, and to say: "There is no doubt something about misdemeanor in the act of Parliament, but we are talking of this, whether we have a right to hold the ship or not. Let the misdemeanor stand for itself and be judged of at the proper time." Gentlemen, I apprehend that that is not the course which is to be taken. The matter must not be blinked. The charge is a charge of misdemeanor. The charge and the mode of proving it must be considered by you on the footing that these acts, if they are properly described by the record, and properly proved in the evidence, would go to create and constitute a misdemeanor, and that in substance, therefore, the charge against Messrs. Fawcett, Preston and Company-for their names are in the information-the charge against them is that they were parties to and participators in an act which is made a misdemeanor and a crime according to the law of the country. I dwell on that, and I ask your particular attention to it the more for this reason, that I venture to think that a case of this kind was never spoken of in the opening before in the way in which it has been dealt with by the attorney general. Because, how did he open this case and present it to you? I am in your judgment whether I do not with substantial accuracy describe the manner in which my learned friend spoke of the case which he had to present to you. My learned friend said: "I will prove, with regard to the Alexandra, that she could very easily be turned into a ship of war. I will prove that by the evidence of skillful persons, who can speak to it." Then he said, "I will show you that these men, Captain Bulloch, Captain Tessier, and Mr. Hamilton, were seen about the yard and about the spot where this ship and her equipments were being prepared. They were occasionally looking at her, talking about her, interfering with her; and then I will show you further this, that those persons are proved on other occasions, in some way or other, to be acting for or on behalf of the Confederate States; and," says the attorney general, "it may be nothing that may be very far froin proving the case; it may be explained. I don't in the least suggest that it cannot be explained, but (says the attorney general) I will ask you to take these scraps of evidence, the fact that the Alexandra could be converted into a gunboat, and the fact that these persons, Captain Tessier, Mr. Hamilton, and Captain Bulloch, were seen in her neighborhood, interfering or interesting themselves in her and about her, and the fact that they are proved in other matters to act as agents for the Confederate States. I will ask you to put these things together and not to hold that the case is proved, but I will ask you to presume that that is sufficient as proof of the case, unless (says my learned friend) indeed Mr. Miller or Messrs. Fawcett, Preston and Company, or any other person that we choose to throw imputations against, come into the box and state their case and explain to the Crown everything which the Crown may choose to require explanation of. Unless that is done, (says the attorney general,) I ask you, the jury, to presume in my favor that certain circumstances and facts, which I agree do not in the least go to prove the case, that they will constitute a proof because they constitute a presumption," because, forsooth, the Crown choose to say, "We cannot prove the case of forfeiture; we cannot prove that an offense has been committed, but we can prove scraps and fragments here and there of things which in our judgment look a little suspicious, and we will throw, therefore, the whole burden on the other side of coming forward and proving our case." It is not our business to prove a case. come here on a charge of misdemeanor. We come here on a charge of misdemeanor leading to a forfeiture. We ask the Crown to prove how it was that on a bright day in Liverpool their officers walked in and seized the ship, which they had no more right to than you, gentleman; or I ask the Crown, or the advisers of the Crown, to prove to the letter before an English jury that they had acquired clearly and distinctly the right to make the seizure which in point of fact they did make. I could not help, when I heard the opening of my learned friend, the attorney general, contrasting what my learned friend said, for the purposes of this case, with the doctrine which I had heard elsewhere, and from a very able expounder of the law in such cases, and of the duty of the Crown in such cases. I will take leave to read to you a statement of what was

We

supposed to be the duty of the Crown in such cases. I will take leave to read to you a statement of what was supposed to be a statement of what was supposed to be the duty of the Crown in putting into force the foreign enlistment act. That statement was made by one of the officers of the Crown. An accusation was made, and I speak of that which has been referred to to-day, and referred to in court. You know a great deal has taken place with regard to the Alabama, and all that has taken place about the Alabama is a matter of common information. The American government was very much dissatisfied that the British government did not try some parties about the Alabama. I am sure I have not the least idea whether any offense was or was not committed, but I know perfectly well the answer which was given in that case, and which was laid down upon the judgment of one well competent to tell us the mode of alleging a forfeiture or proceeding under the foreign enlistment act. The adviser of the Crown to whom I have referred said: "The United States government have no right to complain if the act in question (that is, the foreign enlistment act) is enforced in the way in which English laws are usually enforced against English subjects, on evidence and not on suspicion, on facts and not on presumption ;" I pray your attention to that,—“ on facts and not on presumption;""on satisfactory testimony, and not on the mere accusations of a foreign minister or his agent ;" and if he had said "spies," it would have been nearer the truth. Now, the officer of the Crown who laid before us those sound and constitutional principles was my learned friend the solicitor general, whom we have the pleasure of seeing here.

The SOLICITOR GENERAL. And he adheres to every word of that.

SIR HUGH CAIRNS. I know my learned friend too well to suppose that he would depart from a single word of a doctrine so sound and so constitutional as what I have read; and if he were not the counsel in this case, and involved in the exigencies in which counsel are sometimes involved, I know he would not depart from it for a single moment. But I ask you to apply that to the opening of his colleague, my learned friend the attorney general, whether he is applying that part of the doctrine" on facts and not on presumptions," when he says, "I have not any facts, but I will prove something to you, and that will lead to presumption, and unless you have those who are accused of a criminal offense coming forward as witnesses, and being examined as witnesses, persons under a charge of committing a criminal offense, tendering themselves to be examined as witnesses, you will be kind enough to accept, not my facts, for I have not got them, but my presumptions, for that is all I have to offer you."

Now, gentlemen, this reference to the act of Parliament leads me to ask you to consider a subject which is one of very great interest, and upon which I think you will not be unwilling to bear with me a little while; I mean the history and the policy of this foreign enlistment act, as far as it is necessary for us to consider it on the present question. It is a great and important question; a much greater question than the value of the ship Ålexandra, because it is a question which will be found applicable not merely in the present case, but to a number of other cases which may arise in this country, and which will be found to be not only of the gravest but of the most essential importance to the mercantile interests of this country.

I ought, perhaps, just to take notice of what has been called the proclamation of neutrality in this case. It was read to you with some ceremony at the commencement of the case of the Crown, as if it had the slightest bearing on the case. We have the happiness of living in a constitutional country, with a constitutional form of government, with a sovereign who never transgresses that constitutional form of government; and I do not suppose that you will believe that the proclamation by the Queen was ever meant to lay down any law not to be found in the act of Parliament; and we find that all the proclamation did was to repeat the enactments of the foreign enlistment act, to inform the subjects of this country that there was such an act of Parliament, and that, war having sprung up, and this country remaining neutral, the provisions of that act of Parliament would have to be observed in the way in which the provisions of every other act of Parliament would have to be observed. Every subject of a country is supposed to know the laws of the country, whether they are made the subject of a proclamation or not; therefore we may put aside the. proclamation as not bearing on the case.

Now, it is said, very truly, that an unfortunate war has sprung up between the two parts of what formerly were the United States of America. It is said that we are neutrals in that war, and think it is of the greatest importance that we should understand the duty of the subjects of this country, as the subjects of a neutral country, in a commercial point of view, because we may put aside any question of our duty with reference to our enlisting in the army of the belligerents, for I do not suppose that any person before me, except perhaps a few of the witnesses, have the least idea of enlisting in the army on one side or the other. There can be no doubt that enlisting in the army of a belligerent is an offense, but I rather ask you to consider the position of things in a commercial point of view. I say, subject to my lord's correction, but with very considerable confidence, and I think I will prove it to demonstration, that, putting for a moment what is called the foreign enlistment act out of the question, put