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for the emergency, then the United States must bring into employment such private armed naval forces as the mercantile marine shall afford. British ports, domestic as well as colonial, are now open, under certain restrictions, to the visits of piratical vessels, and not only furnish them coals, provisions, and repairs, but even receive their prisoners when the enemies of the United States 'come in to obtain such relief from voyages in which they have either burned ships they have captured, or have even manned and armed them as pirates and sent them abroad as auxiliaries in the work of destruction. Can it be an occasion for either surprise or complaint that if this condition of things is to remain and receive the deliberate sanction of the British government, the navy of the United States will receive instructions to pursue these enemies into the ports which thus, in violation of the law of nations and the obligations of neutrality, become harbors for the pirates ? The President very distinctly perceives the risks and hazards which a naval conflict thus maintained will bring to the commerce and even to the peace of the two countries. But he is obliged to consider that in the case supposed, the destruction of our commerce will probably amount to a naval war waged by a portion at least of the British nation against the government and people of the United States, a war tolerated although not declared or avowed by the British government. If, through the necessary employment of all our means of national defence, such a partial war shall become a general one between the two nations, the President, thinks that the responsibility for that painful result will not fall upon the United States.
In stating thus frankly the views of this government, it is proper for me to add that it is not the President's purpose to resort to the extraordinary measures of defence to which I have referred, unless they shall be rendered necessary by a final decision of the British government that it cannot and will not interfere to restrain the hostilities which are now apprehended; nor will I allow myself to suppose that her Majesty's government will for a moment conceive that anything I have written upon this point is written in a spirit of mere demonstration; on the contrary, while the pacific and friendly disposition of her Britannic Majesty's government is fully appreciated and relied upon, it is well understood that that government is the last one in the world to yield to vehemence what cannot be conceded in equity and justice. So, on the other hand, it ought to be understood that the United States, if they could ever be presumptuous, are sufficiently chastened already by the scourge of civil war to seek peace and friendship with Great Britain and all other nations through any concession that is compatible with the permanent interests of national life and honor.
I am, sir, your
WILLIAM H. SEWARD. CHARLES FRANCIS ADAMS, Esq., &c., &c.
It will be observed that these very severe criticisms by Mr. Adams, and also by the State Department, upon the rulings of the Lord Chief Baron, were called forth by the judicial efforts to interpolate the idea of arming into the provisions of the English law which correspond to those of our own law now under consideration. This Court, I submit, with great deference, would be liable to the same criticism, if it should hold that under the clause of the third section of the act of 1818, arming was necessarily involved, in “furnishing or fitting out, with intent to cruise or commit hostilities,” or that the dictum of Mr. Justice Story, or the case of the Santissima Trinidad, is now to be considered as the accepted public law of the United States.
In November, 1863, the law officers of the Crown, assisted by the learned author of England's best treatise on international law, Dr. Phillimore, evidently stung by the comments made on the judicial usurpation of the Court of Exchequer, moved for a new trial in the case of the Alexandra on the ground of misdirection of the presiding Judge in matter of law. The Attorney-General, in making his motion, remarked that the case involved a point of very great importance, most fit for exceptions to be solemnly tendered for, in order that they might go to a Court of Error, and, if necessary, to the last Court of Appeal. A bill of exceptions was tendered to the Lord Chief Baron, which he rejected, with the following remarks from the Bench. I quote from the report of the case transınitted by Mr. Adams, our Minister in London, to the State Department, as conveying a correct statement of what was said and done.
[See Diplomatic Correspondence, 1863, part 1, p. xli.]
" I think it right to state that I see no prospect whatever of any change in the view I took as to my duty in deciding upon the bill of exceptions. A correspondence has passed between me and the late Attorney-General, which probably you may have seen ; you were not present at the whole of the trial. So far from my laying down the law, as the bill of exceptions tendered to me assumed, I took particular pains to avoid anything of the kind. I had, originally, during that argument of Sir H. Cairns, undoubtedly entertained an impression, - I called it no more, that all the expressions in that act, equipping,' fitting out,' and so on, probably meant the same thing, and were to be referred to the verbiage of an act of Parliament, just in the same way as the words “ship or vessel,' which are commonly used in statutes, and no doubt are intended to mean the same thing. But the late Attorney-General, in his address referred to a case of an American Court of Appeal to a Superior Court, where the decision below was affirmed. It was a case where the vessel was completely prepared in every respect, with the exception of being armed. When I came to sum up, I mentioned that case to the jury, and commended it so far as to say I adopted it. I left it to them, and pointed out what had apparently fallen from the counsel as to the law on the subject, and what I considered was the law. I then finally left the question to them in the alternative, using the very words of the act of Parliament. • If you think,' I said, this
vessel was armed, or equipped, or fitted out, or intended to be armed, or fitted out, or equipped, your verdict must be for the Crown. If not, it must be for the defendants.' Now, the Attorney-General presented to me a bill of exceptions, by which I was said to have told the jury that the vessel must be armed, and that if it was not armed there was no offence. I not only did not tell the jury so, but if you read the short-hand writer's notes I think you will say no person can have any doubt that I left the question as I have just stated. But probably, Mr. Attorney-General, the object you have in view may be attained by a motion without reference to a bill of exceptions. It is true no point was reserved at the trial so as to give you a right of appeal in the event of the rest of the Court concurring with me in the direction I gave to the jury. But this is a matter of so much importance, I do not know whether I can pledge the whole Court in this respect, but certainly it would be very much to be lamented, however unanimous this Court may be, if we did not give you what we have the power of doing, — an appeal to a Superior Court.”
The existing condition of things, caused by the refusal of the Chief Baron, was described to the State Department by Mr. Adams, in the following dispatch :
“It now appears that the Chief Baron declines to sign a bill of exceptions because it imputes to him certain legal declarations which he never made, and objects to him that he did not give instructions which he avers were the very ones he did give. As a consequence a technical barrier was at once raised against further operations, which proved so difficult to remove, that resort was finally had to the extraordinary step of creating a new rule for the purpose of admitting a motion on the part of the government. Thus far the new Attorney-General seems to have succeeded in forcing his way out of this Court. But he has yet some difficulties to overcome before he can get into the Exchequer Chamber, which, from the intimations made at the opening, would seem to be fully prepared to receive him."
As evidence of what the newspaper press of England thought and said of this judicial manifestation on the application to sign a bill of exceptions, Mr. Adams transmitted to the Department of State extracts from the London Globe and Traveller, of November 4, 1863. With permission of the Court, I read therefrom as follows:
(EXTRACT.) “As regards the point raised yesterday before the Court of Exchequer, we, in common with everybody else, did understand that the Lord Chief Baron had set forth in his charge to the jury that arming, equipping, furnishing, fitting out, were the mere verbiage of an act of Parliament, and that, in his opinion, these terms did all mean the same thing, namely, arming. The counsel for the crown so understood him. It is assumed that the jury so understood him. we and all the world, it seems, were in error. He tells us he did not say so, or
imply so. We are, as Mr. Justice Bramwell reminds us, bound to take the Judge's interpretation of the words in which he directed the jury. We do so; but it is the most remarkable misapprehension on the part of all those who heard and read those words that we remember ever to have met with. And here we must regret that the usual practice of framing and tendering a bill of exceptions before the jury gave their verdict was not followed. At the end of the trial, and before the verdict, the counsel for the crown expressed a wish to offer exceptions to the ruling of the Lord Chief Baron. They were told by him that it was not necessary to stand upon the usual forms, and they did not stand upon them, especially as the Lord Chief Baron said, “I will accept any bill of exceptions you may choose to tender.” But when the bill was drawn up, the Lord Chief Baron objected that it did not correctly set forth the nature of his ruling. Now, had exception been taken at the time; had the common opinion respecting the drift and bearing of that ruling been distinctly expounded, the error, into which it seems we all fell, - counsel, jury, public, could have been there and then dispelled by a simple restatement by the Judge of what he did mean to say and did say. It was even stated yesterday that the version which the then AttorneyGeneral had given at the time of the Lord Chief Baron's ruling was not contradicted. The answer was, the question is, what course can now be taken consistent with the views of the Court. This shows that an error was committed in not fixing at once the impression made by the language of the Lord Chief Baron. But the state of the matter, as disclosed by the proceedings of yesterday, is an additional reason why some unquestionable decision should be obtained on this momentous point.
“For our part, we do not pretend to lay down the law. Whatever the law is, let us know it; and if it be found incompatible with the object for which it was devised, then we can say whether we will be content with an useless statute, whether we will have any statute at all, or whether we will have an efficient one.
" It has been asked why, when guns, and ammunition, and small arms can be supplied by a neutral to a belligerent, why object to ships ?' It may be difficult to set forth convincing reasons why ships should be stopped and arms and shells allowed to go free. But to us there seems to be one plain reason. If you export to the ports of a belligerent any quantity of destructive arms and missiles, no one can furnish proof that they have been used with effect against the other belligerent. But if you export a ship, the doings of that ship can be tracked over the sea by the fires she leaves behind, or by the prizes she brings into port. You cannot charge an Armstrong gun with killing and slaying, and identify the gun with damage and slaughter. You can charge a ship with capturing prizes from a friendly power and
prove the charge. There is an identity about a ship which there is not about a gun. But we may be asked, if a fighting machine, like a ship, may be exported to strike at a friendly power, why not a battalion, or a battery, or a regiment of horse ? A ship, even without guns, is equivalent to a trained battalion without arms, or a body of artillerymen without guns, or a trained regiment of horsemen without horses. It is obviously within the power of the crown to say with whom it will and with whom it will not make war; and every act which tends to weaken that power and thwart the intention of the crown is an act which, on the assumption that we are to have a government at all, the crown should have power to prevent. We believe the sensible men of all parties take this view, and will not sanction any proceedings which restrict the power of the crown in so important a matter of state policy, or which tend to injure the maritime power of England.”
The Lord Chief Baron having thus declined peremptorily to sign the bill of exceptions, there was a dead lock, and there could not be a new trial in that mode. There was hit upon, however, the device of extending by rule, the provisions of the Common Law Procedure Act to the revenue side of the Court, so as to give an appeal in the case of the Alexandra, and on February 6th, 1864, the case came on for hearing before the Appellate Court of Errors; but the government was again foiled in its purpose to gain from this higher Court a judicial interpretation of the Enlistment Act, by the opposition of technical objections to the process. The majority of the Court dismissed the appeal, upon the ground that the Court of Exchequer had no power to extend the rule under which the case was taken before the Exchequer Chamber; and the House of Lords (April 6th, 1864) upheld the decision of the Chamber, dismissing the appeal.
Here the case ended. With what emotions our government received intelligence of this decision can be surmised from a letter from Mr. Adams to Mr. Seward, dated April 8th, 1864. [See Diplomatic Correspondence, 1864, part 1, page 585.]
" The government has been completely baffled in its honest endeavor to obtain a legal base of action against a flagrant violation of the neutrality of the kingdom, and is thrown back upon the task of commencing the work over again. There never was such a comedy performed on a grave subject in the whole history of law.”
On the argument of the rule for a new trial, the claimants' counsel contended for the doctrine of complete armed equipment as necessary to constitute the offence, and two of the Judges (the Chief Baron and Bramwell), adopted that view, but the other two (Channell and Pigott), considered that an equipment might be within the law, although not so complete in England, that the ship would be at once able to commence hostilities. They held that any equipment, however peaceful in its nature, would be an offence within the act, provided there is an intent that the vessel be used at some future time in the service of a belligerent. When the equipment is peaceful, there is a greater difficulty in proving in