Gentlemen, as we are told, and told truly, that there never was a case before tried in one of these courts where the policy and construction of the foreign enlistment act has been brought under the notice of the court, surely, at all events, we may look to this, that, in 1830, a minister, Mr. Huskisson, says: "Yes, truly, there never has been a case tried, but minister after minister has been applied to to interfere on the principle and policy of the foreign enlistment act. Mr. Canning has been applied to on behalf of the government of Turkey, and what has Mr. Canning said again and again—the minister who introduced the act in question-'that unless you show me that there is the combined element of armament, so that the ship may leave this country as from an arsenal, armed and equipped and ready for war, if that combination does not take place in this country,' there is no offense under the act of Parliament;" and I extend that to steam vessels and yachts equally. That is, they are capable of being converted into vessels of war; and if that were not so there would be an end to the advantage which this country has in the building of ships, and the country, in place of being preserved neutral, would not be kept out of war for one year if you could say that those making their livelihood by such means were prevented from selling, so long as they sold equally to all comers; because you may depend on it, that, let the law be laid down as the Crown, for the sake of the United States consul, would ask it to be laid down, and you will put an end in the most summary way to one of the greatest inducements which exists to continue the subjects of this country neutral, and of the peace ; for, if you show the subjects of this country that their commerce is to be tampered with and harassed at the will of one or other of the belligerent powers, the people of this country will say: "Let us have done with neutrality, we had much better be at war; we shall escape the surveillance of the United States spies; we would rather be at war than be in the position of those whose acts are to be regulated and under the control of the United States consul."

Now, I go further. I said I would show you an authority which at all events the United States government cannot dispute, and I will tell you a very remarkable case* which occurred in America on that point. There was a ship in America called the Independencia. She had made a prize at sea somewhere about the year 1821 or 1822, and the question was whether she had made a lawful capture; and it was a suit in one of the courts, in the Supreme Court of the United States. Now, the Independencia had no right to make that prize or to make that capture, and I will tell you why. They said, the Independencia herself has broken the foreign enlistment act. She left in a time of war, when there was war between two foreign countries, and when the United States was neutral. She left a port of the United States as an armed vessel, to be sold to and transferred to one of the belligerent powers. Therefore, having so left the port, any prize made at sea would not be a lawful prize. Now, I will state what is said by an eminent judge, well known to my lord, Mr. Justice Story. The volume from which I am reading is the 7th Wheaton's Reports of the Supreme Court, page 334. Now, the story about her history is told in a sentence, and told by the learned judge. He says, in January, 1816, this Independencia "was originally built and equipped at Baltimore as a privateer, during the late war with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruised against the enemy. After the peace she was rigged as a brig and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war by her new owners, (who are inhabitants of Baltimore,) and being armed with twelve guns, constituting a part of her original armament, she was dispatched from that port, under the command of the claimant, on a voyage, ostensibly to the northwest coast, but in reality to Buenos Ayres. By the written instructions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres, if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag during the voyage. At Buenos Ayres the vessel was sold to Captain Chaytor and two other persons; and soon afterward she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres; and Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres; and had received a commission to command the vessel as a national ship, and invited the crew to enlist in the service; and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port considered the vessel as a public ship of war, and such was her avowed character and reputation." Therefore, you see the long and short of it comes to this: Buenos Ayres was at war at that time with Spain. The United States were neutral. This Independencia leaves an American port, Baltimore, belonging to American owners, built at Baltimore, fully equipped and armed. Therefore it is a stronger case than any I have suggested to you yet. But then she was sent, no doubt, in order to be sold to one of the belligerents; sent to Buenos

* Vide 7 Wheaton, pp. 283-355; ed. 1822. Case of the Santissima Trinidad and the St. Andre, seized by the vessels Independencia del Sud and the Altravida.

Ayres, under the care of the captain, who was authorized to sell her to one of the belligerents, of course, in the way in which you might sell arms to one of the belligerents. What does Mr. Justice Story say? He says: "It is apparent that, though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure; contraband indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as a good prize." That is, if one sends out guns or arms to the United States of America, the United States might capture them on the way as contraband, and it would be no offense in sending out arms. "But 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." Now, why is that? Why, of course, because the construction of the foreign enlistment act is adopted which I submitted to you—that you must find an intent on the part of the person who furnishes, fits out, and even arms the ship, to cruise and commit hostilities; and if his intent is not to cruise and commit hostilities at all, but to sell his ship as a commercial speculation, "there is nothing" (says Justice Story) "in the foreign enlistment act or in the law of nations" which prevents that being done. "It is a commercial adventure which no nation is bound to prohibit; and which only exposes the persons engaged in it to the penalty of confiscation;" that is, confiscation by being taken at sea, as a ship being contraband, not confiscation in the United States of America. "Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale-and there is nothing in the evidence before us to contradict it-there is no pretense to say that the original outfit for the voyage was illegal." Now, this is a case, I say, very much stronger than anything we have had in the present case. This is a case which never has occurred perhaps even in this country in so strong a shape. Citizens of the United States of America, while America is neutral, fitting out a ship and arming her to the teeth, and sending her to the belligerent power for the purpose of being sold, yet because the ship is not fitted out or equipped or armed with the intent of the person who is the owner and the director of the movements of the vessel to cruise and commit hostilities, but nothing but this, the sale of a commercial adventure-because that is so, (says Mr. Justice Story, the greatest authority in law which the United States perhaps ever possessed,) there is nothing illegal in that, nothing in that contrary to the foreign enlistment act, or to the law of nations. I will mention another, a very short authority, which also occurred in America.

LORD CHIEF BARON POLLOCK. You probably will not be able to finish to-day, therefore I propose to adjourn now. We probably shall be able to finish this to-morrow at a reasonable hour.

Adjourned to to-morrow at 10 o'clock.

THIRD DAY, WEDNESDAY, June 24, 1863. SIR HUGH CAIRNS. May it please your lordship; gentlemen of the jury: You will perhaps recollect that when we adjourned yesterday I had taken the liberty of calling your attention, in the absence of any decisions in this country on the subject of the foreign enlistment act, to what has been said by a most renowned statesman, Mr. Huskisson, with regard to that act, its policy and its intention, and with regard to the way in which it has been acted on by the ministers of this country up to the year 1830. I then showed you, from the decision of the Supreme Court of the United States, as given by Mr. Justice Story in the case of the Independencia, how that most eminent judge had pointed out in a case which you would suppose one of the most extreme cases you could put, namely, that of a ship of war equipped and armed and fitted out in a port of the United States, when the United States were neutral and other states at war, and that ship sent to one of the belligerent powers to be sold to and employed by that belligerent power, that inasmuch as this was merely a commercial adventure, and those who sold the ship had themselves no design to engage in war, but simply to sell that which was a necessary of war, it was a mere commercial adventure, and did not come at all within the meaning of the act of Parliament. There was another case, which occurred some years before the Independencia occurred, and which occurred during the time of the English war, at the time when Great Britain was at war with France. During that time there was a ship that was called the Alfred, and the question was whether she had been fitted out as a privateer in a port of the United States in violation of the neutrality of the United States, and the foreign enlistment act of the United States, and with a view of being engaged in the war between France and England. That case, I may mention for the information of my lord, is reported in the first volume of Curtis's Reports of the Supreme Court of the United States, at page 234.* But the whole statement of the case lies in a sentence or two, which I will take the liberty of reading to you. Gentlemen, this is what we find in the report of that case : "It is not a violation of the neutrality laws of the United States to sell a foreigner a vessel built in that country, though suited to be a privateer, and having some equip

* Vide 3 Dallas, 307.-1 Curtis, p. 234 Moodie v. The ship Alfred.

ments calculated for war but frequently used for merchant ships." The allegation in this case, as supported by the evidence, was that the privateer which took the British prize in question had been built in New York, with the express view of being employed as a privateer in case the then existing controversy between Great Britain and the United States should terminate in war; that some of her equipments were calculated for war, though they were also frequently used for merchant ships; "that the privateer was sent to Charleston, whence she was sent to a French citizen," France and England being at war at the time; "that she was carried by them to a French island, where she was completely armed and equipped, and furnished with a commission "-that is to say, she was partly equipped and partly fitted out for war in the United States; then taken to a French island, and arms put on her while there; "that she afterward sailed on a cruise, during which the prize was taken and sent to Charleston;" and the question was whether she had violated the law of America. The learned counsel for the plaintift in error 66 contended that this was an original construction or outfit of war, and that if it was tolerated as legal it would be easy by collusion to subvert the neutrality of the United States and involve the country in a war." That was the argument of the counsel who filled the position there which my learned friends the counsel for the Crown fill in this case.

Now what did the court do?

"The court, however, without hearing the opposite counsel, directed the decree to be affirmed," that is to say, they decided that there was nothing whatever illegal in the matter, and refused even to call upon the counsel on the other side to argue the question.

Now, gentlemen, there are those two authorities from America, the United States, the country whose minister it is who promotes the prosecution in England; and I appeal from his view of the law to the view taken by the Supreme Court in his own country. I said yesterday that I would give you a further instance of the view that has been taken by statesmen of this question.

LORD CHIEF BARON. Will you give me the reference to the case you last cited? SIR HUGH CAIRNS. Your lordship will find it in the first volume of Curtis's Decisions of the Supreme Court of the United States. I have a print of the whole case, which I can hand up to your lordship, if you desire it; it is Curtis's Reports in the Supreme Court; there is another set of reports in another court, which I do not refer to.

Now, gentlemen, I will show you what a statesman, and one of the most eminent statesmen in this country in much more modern times, has thought of this question, and thought of it, too, with reference to the transactions which are going on every day. I hold in my hand a public document, a communication from Earl Russell, the secretary of state for foreign affairs, to the American minister. He argues the question upon the foreign enlistment act and the law of this country, and he cites to the American minister the two cases which I have taken the liberty of laying before you, the Independencia and the Alfred. And then what does he say? He appeals to the American minister upon the authorities of his own country. He says: "It seems clear, on the principle enunciated in these authorities, that except on the ground of any proved violation of the foreign enlistment act which those cases decided had not been violated in those cases, her Majesty's government cannot interfere with commercial dealings between British subjects and the so-styled Confederate States, whether the object of those dealings be money, or contraband goods, or even ships adapted for warlike purpose." Well, now, gentlemen, that is the opinion of a minister of the Crown at the present day. But I will not stop there; I will appeal to the opinion of a legal authority in this country, as high as any we possess, not given in this case, but given in general terms. I hold in my hand a speech made in the House of Commons, in which the solicitor general says: 66 It would be a great mistake to suppose that the foreign enlistment act was meant to prohibit all commercial dealings in ships of war with belligerent countries. It would be a great mistake to suppose that. It was not intended to do so. Two things must be proved in every case to render the transaction illegal; that there has been what the law regards as the fitting out, arming and equipment of a ship of war, and that this was done with the intent that the ship should be employed in the service of a foreign belligerent. But it would be a great mistake to suppose, in general terms, that the foreign enlistment act was meant to prohibit all commercial dealings in ships of war with foreign countries." And referring to the case which has been so often referred to before you-namely, the Alabama, which, as I have said, we are not trying here, but which you have heard so much about, the solicitor general says: "Were our government wrong in not seizing the vessels, the circumstances disclosed in the case tried before Mr. Justice Story, of the Independencia, were so far exactly the same as those which occurred in the case of the Alabama, that in the absence of any further evidence, the seizure of that ship would have been altogether unwarrantable by law; she might have been legitimately built by a foreign government, and" (I pray your particular attention to these words) "though a ship of war, she might have formed a legitimate article of merchandise, even if meant for the Confederate States."

Now, gentlemen, there is a cloud of authorities, authorities of statesmen in olden

times, at least in a past generation; authorities of statesmen in the present generation; authorities of the legal advisers of the Crown at the present day, and authorities of the Supreme Court of the United States, whose minister promotes this indictment; and every one of those authorities concurs in saying that the object and intention of the foreign enlistment act was not to prevent any commercial speculation in ships, which even might be made available afterward as ships of war, and that you must have brought home to the person who is accused of a violation of the foreign enlistment act proof, and clear proof, that he was a person, or that they were persons, who intended to take, and that they took part, in the war going on between the two countries. I think that will be sufficient for the purpose of leading you to consider what the purpose of this statute was, and what is the construction put upon it, and the view taken of it from time past down to the present time. But I really do not think that, as to this case, we shall ultimately be embarrassed by any question of law upon the point, because, as I view the evidence which has been brought forward, and which I will lay before you shortly, it is beyond all doubt that in this case it is not proved by the Crown that a forfeiture has been incurred; but I think I may say that it has been disproved by the Crown that there was any ground whatever for saying that there was a forfeiture.

Now, gentlemen, I will ask your attention, as briefly as the importance of the case renders it possible; it may be done, I think, in a reasonable compass; I ask your attention to two questions upon the evidence, and what is the state of the case upon these questions? These questions I believe, will be found to exhaust everything to which it is requisite that you should turn your attention upon the evidence. The two questions which I will ask you to consider, and to which I ask you to apply the evidence, are these. In the first place, I will take the question, "Was the ship fitted out and equipped and furnished in this country, or intended to be fitted out, equipped, and furnished in such a manner as to be ready to cruise and commit hostilities?" The next question is as regards the ship, "Was it done?" The second question will be, "Was she equipped, or intended to be so, with the intent that she should be employed by the Confederate States to cruise and to commit hostilities against the federal States of America?" To those two questions I will ask your attention.

LORD CHIEF BARON. I am afraid I have not the questions exactly as you put them. SIR HUGH CAIRNS. The first question is, "Was she equipped, fitted out, or furnished in this country, or intended to be so, in such a manner as to be ready to cruise and commit hostilities at all against anybody?" The second question is, "Was she equipped, fitted out, or furnished with the intent that she should be employed by the Confederate States to cruise or to commit hostilities against the federal States?" Of course your lordship will see, and you, gentlemen of the jury, will see that these two questions will involve in them the further consideration of who it was who is said to have equipped or fitted out, or been the directing hand in equipping or fitting out the ship in question. That will naturally be involved in the discussion of this question.

LORD CHIEF BARON. I am not sure that these words do not mean pretty nearly the same thing, "equip, furnish, fit out, and arm. It has been suggested that three of them applied to one vessel, and the fourth one applied to a ship of war, I think. SIR HUGH CAIRNS. To a ship of war, my lord; that would be a question. LORD CHIEF BARON. There is one of those expressions upon which this remark may be made. I think "fit out" or "furnish,” in the French language means the same as "arm."

SIR HUGH CAIRNS. That would be a question of law upon the indictment, which I am not going to consider.

LORD CHIEF BARON. My impression is that they are all meant to signify the same thing.

SIR HUGH CAIRNS. For the purpose of my argument, and for the purpose of what I have to lay before the jury, I am quite willing to am quite willing to argue upon that assumption.

LORD CHIEF BARON. It strikes me that they are all various expressions, which meant that the vessel is put into a condition to be useful for war.

SIR HUGH CAIRNS. Quite so, my lord. I believe that will be as convenient and at the same time as accurate a mode as any other to look at the case and the evidence in the case. I am quite willing to accept your suggestion, and deal with the case on that

footing.

LORD CHIEF BARON. "Shall, without the leave of her Majesty for that purpose first had and obtained," and so on, "equip, furnish, fit out, or arm, with intent shat she shall be employed to cruise or to commit hostilities." I think that they all mean the same. I forget exactly what "armer” means; I think it means to equip a vessel.

SIR HUGH CAIRNS. If there be room for legal argument upon that point I do not desire to raise it now; it will be raised, if it is ever necessary, in another form. I will accept entirely your lordship's suggestion for the purpose of my present observations, and I will take the words "equip, fit out, furnish, or arm" as a simple ringing of the changes upon the phrases which might be used to describe a ship prepared to cruise and commit

hostilities. That would disembarrass the question for the present, at all events, of any technicalities as to the meaning of those words.

Now, gentlemen, let us look first at the evidence upon this point, the case of the ship. I confess that that is the part of the case which one has the most pleasure in dealing with, because you have to deal there with witnesses of some character and respectability. I refer to Captain Inglefield, an officer in her Majesty's navy, of whom we must all be proud; and I refer also to Mr. Green, who appears to be a very respectable man in his way; he is a repairer of or a dealer in ships at Liverpool. Those are the two witnesses upon that point. Let me remind you what Captain Inglefield said, because I suppose his evidence may be taken as having stated fairly what ought to be stated and laid before you upon this point. What did Captain Inglefield say? He said he had inspected the ship; he said she might be used as a yacht; she was easily convertible to a man-of-war; she was strong enough for that; she had accommodation for men and officers; she was quite capable of being converted to a man-of-war. There was no preparation when he saw her for fittings for guns; there was no preparation for guns. She was of sufficient strength to receive guns, but she had no appurtenances indicating that guns were intended to be put on board. She had no ring bolts on deck in which to travel the guns; indeed there would be no difficulty in adding those appurtenances; she might be used as a yacht. I agree, he said, for want of stowage room she was not a vessel prepared to carry a cargo as a merchant ship usually carries a cargo; she might be used as a yacht; she might be converted into a man-of-war; she was not a man-ofwar; she was easily convertible when he saw her; there were no appurtenances for guns, though she might be converted to receive guns.

Now, gentlemen, when we talk about the convertibility

LORD CHIEF BARON. I have not a note of the precise day or time of that.

Mr. KARSLAKE. It was on the first day, my lord.

LORD CHIEF BARON. I mean the precise day or time when he saw her.

SIR HUGH CAIRNS. Your lordship is quite accurate; he did not give the day, but he said it was after the seizure, as I understand.

Mr. ATTORNEY GENERAL. When she was in the state in which she was at the time of the seizure.

SIR HUGH CAIRNS. I am quite willing to assume that she was in the state in which she was at the time of the seizure.

Now, gentlemen, when we talk of the capability of a ship or vessel for being converted into a man-of-war or a gun-boat, we must, I think, be very careful in remembering what that means. I do not know whether you remember-I have a very lively remembrance of it—when this country was in very considerable alarm on the question of invasion a few years ago, and when there were a great many schemes afloat for the purpose of putting the country into a state of defense, an important proposal which was made and very much taken up in the House of Commons, and ventilated there by an eminent ship-builder in Liverpool, whose name has been mentioned in these discussions, and who is now a member of the House of Commons. He said: "You may be laying out your thousands and millions of money in building your boats, but I will convert all the tug-boats in the Mersey and in the Thames into gun-boats for £250 apiece, and I will do that in a week." Then the government, as I remember, took up the project and considered it, and had the tug-boats inspected by their surveyor. What was the argument that was used when the government was pleased, in the House of Commons, to adopt that proposal? The government did not say: "We do not think that that can be done; our surveyors say that it could not be done." Quite the contrary, they said: "It is so feasible a proposal, and it can be done in so short a time, a week or ten days, and it can be done at so small an expense, namely, £250 a gun-boat, that there will not be the least occasion for doing it until the exigency arises. We can do it whenever we like, and by doing it we can in that short space of time protect every one of our ports and rivers by a fleet of tug-boats, prepared and strengthened to receive a gun or two guns, and to take their places in rivers as gun-boats."

Gentlemen, that shows how easily you can deal with a question of this kind when you once take the step of talking about converting boats into anything into which they suppose a vessel can be converted. But the question is, what is she as she is in this country, when you find her where she is being built and fitted out? Is she there a vessel of which you can say: There is a vessel equipped, outfitted, and furnished and armed, prepared to cruise and commit hostilities? I say that is not proved, but it is disproved by the witness who comes forward and says: "She can be converted to another purpose, because she is not at present adequate or fit for that purpose."

But, gentlemen, I wish to call your attention to this: What were the matters to which Captain Inglefield referred, when he said that she had in her this capability of being converted into a man-of-war or a gun-boat? He referred to this: He said she has thick bulwarks, she has strong beams, she has the beams close together, and she has got her planking of a particular kind; she has got a strong rudder-post. I believe those were every one of the matters to which Captain Inglefield referred. But, gentlemen, are those equipments? Are those outfittings? Are those furnishings? Above