have done something which was comprised within some of the words which had been read.

His LORDSHIP. Of course.

Mr. Temple asked then, had the defendants hired these men? They were at the time already hired, retained, and engaged. They were under the obligation of the articles they had signed. One of them, the last of them examined, he believed, had said that when he applied to the defendants he told them that when he left the ship he had been told the purser's notes would be sent to request the defendants to give him the means of returning, and that, therefore, he had called upon them. There was nothing done beyond advancing money, which was already due to the men, and sending them back to the employment in which they were engaged by the obligation of the articles, which were still in full force. Suppose the men had been hired by some one whom the defendants had never seen, in a distant part of the kingdom, say Portsmouth, but being natives of Liverpool had come to see their friends, and the defendants had advanced the money would that have been a hiring in the sense here intended?

His lordship said the last of the men called, the steward, had said that when he went to the defendants he had said all he wanted was the means to return to the ship, and that nothing more than that was furnished by means of the defendants. They found the means to enable him to go back, not to enlist or engage, but to be employed, and the words of the section were "to be so enlisted, engaged, or employed."

Mr. Temple submitted that that meant they must procure them in the first instance to go, in order that they might be engaged to be employed. It had reference to the engagement.

His LORDSHIP. Certainly, I could not stop the case upon that point. I will give you an opportunity, in case the verdict is adverse, to move for a new trial when the time comes. But with regard to the first point, if they procure persons to go, or with the intent to be engaged, if that is the intention with which they procure them to go

abroad.

Mr. Temple submitted that there was no evidence to this effect.

His lordship said yes, although the men did not intend, the defendants procured them to go with the intent that they should be enlisted, unless it could be contended that there must be a corresponding intent in the minds of the persons who were got to embark. It struck him on the first blush that if there was an intent on the part of the persons procuring them to go, that when they had gone they would be enlisted, that was what constituted the offense. He thought the better way would be that the case should go to the jury, and if there was a conviction the defendants should be brought up for judgment, and the learned counsel would have ample opportunity of raising these points. The only question at present to be considered was whether the facts were to be taken as they then appeared upon the evidence.

Mr. TEMPLE. And the effect of the fact, my lord, which may be partly a question for the jury.

His LORDSHIP. Any point you like to take to the jury do.

Mr. BRETT. Does your lordship think we had better not go into the argument?
His LORDSHIP. Yes, I think so.

Mr. BRETT. Your lordship knows I take the same points as my learned friend.
His lordship assented.

Mr. Brett observed that the early part of the section referred to natural-born subjects of the Crown, but that in the portion of the section which had been quoted the words were changed from "natural-born subjects" to "any person whatever;" and for this reason the limitation was added "within the United Kingdom of Great Britain and Ireland, or in any part of his Majesty's dominions elsewhere."

His lordship said that if the section were interpreted in the manner suggested, a man would have nothing to do but to get a number of persons on board a steamer, take them out for a trip, and engage or enlist while they were beyond the limited distance from land, and the act of Parliament would be a dead letter. His own impression, at present, subject to the arguments, was that a British ship being for all other purposes part of the British dominions.

Mr. Mellish said it was important to see that at the time in question this was not a British ship on the high seas, but a British ship within the French dominions. It was actually in a port of France, and although a British ship might be for many purposes the Queen's dominions upon the high seas, it could not be so under those circumstances. The attorney general said there was no evidence that she was in the port.

Mr. MELLISH. They all said the officers interfered with them; they were within three miles.

The ATTORNEY GENERAL. There is no evidence of that.

Mr. MELLISH. There is no evidence that she was beyond three miles, and it is for you to prove it. Your lordship knows it is some question whether the distance is that to which a gun will fire, and whether it is not enlarged by the great distance to which cannon will now reach.

The attorney general suggested that although the indictment stated that the men

were hired from the 25th of March, the hiring, if on board the vessel, would be included.

Mr. Mellish said every count of the indictment stated that the offense took place on the 25th of March, within her Majesty's dominions, "to wit, at Liverpool, in the county of Lancaster."

His LORDSHIP, (to the attorney general.) Then, on that point it is clear you must fail.

The attorney general suggested that his lordship had power to amend the indictment; and if it would be for the ends of justice, it was for his lordship to say whether that should be done or not.

His LORDSHIP. Have I the power to amend?

The attorney general believed his lordship had power to amend in all misdemeanors. Mr. TEMPLE. Not for the purpose of making a new and different offense.

Mr. BRETT. The grand jury have found the bill.

His LORDSHIP. I have the power to amend for the purpose of trying whether it was committed at Liverpool, but I cannot find a new indictment. It is one thing to do it in Liverpool, and another to do it here.

The ATTORNEY GENERAL. I am only bound to call your lordship's attention to it. Whatever intimation your lordship gives me I am content.

His LORDSHIP. I should be usurping the province of the grand jury.

Mr. TEMPLE proceeded to address the jury on behalf of the defendant, Mr. Jones. He said one question for their consideration was whether the evidence satisfied them that when the defendants engaged these men to go to Greenock, having signed articles for the purpose of being shipped on a voyage to China, they did so with the intention of taking them to Brest for the purpose of being employed in the service of the confederates. His learned friend, the attorney general, had to satisfy them of that; because, if Mr. Jones was engaged in the proper pursuit of his profession in engaging men to serve on board an English ship for English purposes, and if, after he had engaged the crew, the ship was sold to a foreigner, and Mr. Jones merely went out, upon this change of destination, for the purpose of giving up the ship to the purchaser-if these, and these only, were his motives, he was not guilty of the intent contemplated by the statute. He certainly had not hired the men in Liverpool, or in any part of her Majesty's dominions, to serve in the service of the confederates. It was for the prosecution to show that, although in point of fact these men had been hired by Mr. Jones for the purpose of proceeding in the Japan to China, in the service of an English owner, his intention was, at the time when he hired them, to take them to a place to be engaged for another and a different purpose, contrary to the act of Parliament. What evidence was there of that? Were the circumstances that had been stated by the witnesses consistent with his perfect innocence? If they were as consistent with perfect innocence as with guilt, all reasonable men would conclude that Mr. Jones had acted from an innocent motive. It was one of his misfortunes-one under which he might possibly suffer if the good sense and discrimination of the jury did not come to his relief-that while the witnesses for the prosecution could state all they thought proper, he, the only person who could contradict them, could not be examined. Mr. Jones left the Japan at Greenock, and there was no evidence that the ammunition put on board at Brest was taken out under his care. He asked the jury to suppose that after the Japan sailed from Greenock for China, Mr. Bold had sold the vessel to some foreigner, who arranged to take possession of her off Brest; that Mr. Bold had then asked Mr. Jones to go out and give up possession, and bring home the sailors who had been engaged for the voyage to China; that at Brest Mr. Maury had met Mr. Jones and represented himself to be the purchaser, and that Mr. Jones had gone out with Mr. Maury simply to give up possession of the ship-what, in that case, had he to do with what was being carried in the steamer in which he and Mr. Maury went? If these had been the real circumstances of the case, there was not a single thing which the evidence showed him to have done that was inconsistent with his innocence. Captain Maury told the crew that those who liked to go with him might do so, and that such as wanted to return might return, and Mr. Jones was there with the steamer to take them back. According to Glassbrook, Mr. Jones had agreed to take the bounty money which some of the men had obtained and give it to their families, but that was no offense. Connolly and Stanley said that Mr. Jones had advised Connolly to go with the ship. But did the jury believe this? Mr. Jones was at the mercy of these men. All those who had come back had been laid hold of by the American consul, and Mr. Jones was not able to bring anybody there to contradict these men. Were these witnesses credible? Three of these men had been induced to go to Mr. Maguire, a detective, and the fourth had been handed over by the American consul at Havre to the American consul at Liverpool. What was the business of a detective? Was it to find out whether crime had been committed or not? No; but to establish the crime, whether it had been committed or not. Here the American consul told the detective officer he wanted to get evidence against Jones and Highatt, and to have them convicted; but he had no evidence, and desired him to look about for it.

He could imagine Mr. Maguire thinking, thereupon, that he would get hold of some of the men who happened to come over; that he would hold out inducements to them which should lead them into a sort of go-between espionage system that might possibly establish what was wanted, or that he knew enough of human nature to be aware that, his system failing, he could induce the men to invent what did not exist. It had become necessary to prove something more than that Mr. Jones had walked about the decks of the Japan; and consequently the jury had heard more from the witnesses. As to the second occasion, when the men were booked in Liverpool, he apprehended that his lordship would require the jury to say whether the defendants had given money to procure the men to be employed on board the vessel in the confederate service.

The ATTORNEY GENERAL. That is expressly mentioned in the statute, "whether any enlisting money, pay, or reward shall have been actually given or received, or not.” His lordship said the question was whether the defendant had procured the men to go abroad for the purpose of being employed.

Mr. TEMPLE repeated to the jury the argument previously urged on this part of the case, and stated that the whole circumstances were such as would show that the defendants cared nothing where the men were going, and that therefore they could have no such intent as was charged against them.

Mr. BRETT addressed the jury on behalf of Mr. Highatt. He denounced in the strongest terms the means which had been taken in the employment of detectives to watch the defendants' office, to get up the case for the prosecution, and urged upon the jury the danger of trusting evidence so obtained. He said the question whether the defendants had hired the men in Liverpool previous to their being taken to Greenock with the intention of their being taken to sea or to Brest, there to be enlisted in the confederate service, divides itself into two. First. Did Mr. Highatt at that time know that the vessel was to be transferred to the confederate government? The defendants were ship-store dealers, and Mr. Bold was a ship-owner, but there was no joint ownership or partnership between Mr. Bold and the defendants as to ships. He contended that the evidence showed nothing in the conduct of Mr. Highatt at all inconsistent with the view that the ship was going to China. The evidence did not tell them whether Mr. Bold was absent from Liverpool at the time in question. The ship was not like a man-of-war or unlike a merchant vessel. There was no proof that the men had been asked to join the confederate ship until they were at Brest, and the whole case appears to show that the aim of the defendants had been simply to deliver the ship, and that the idea of enlisting men had never crossed anybody's mind until Captain Maury arrived on board the vessel. As to the second occasion were they prepared to find a person guilty of transgressing the law for advancing money to a person with the knowledge that he was to be employed by the confederates? If so, supposing Captain Semmes, while in England, should want to go to Charleston, any one who lent him money for the passage, or gave him a passage to Nassau, giving him the chance to run the blockade, would be guilty of this offense.

The attorney general in replying upon the case adverted to the comments which had been made by the defendants' counsel upon the prosecution. It was true that Mr. Jones, being under a criminal charge, was like any other person in the same position, unable to give evidence in his own behalf, and whether the provision of the law in this respect was wise or not was not a question for discussion in that place; but although this was sometimes an inconvenience to a defendant, it was often a great convenience, and it was possible that if Mr. Jones could have given evidence he might, in cross-examination, have been obliged to admit the truth, which would not have been agreeable to him. As to the system of espionage to which the defense had alluded, it was true that great vigilance had been exercised on behalf of the northern States, to see that none of the subjects of this country did act contrary to the neutrality which this country was bound to maintain, and prejudicially to the interests of those States, and he thought small blame was due to them for their efforts to prevent England from being made the base of warlike operations. Englishmen would do the same under similar circumstances, and would be wanting in their duty to themselves and their country if they did not use the greatest vigilance to see that a neutral country was not violated for belligerent purposes. If the confederate government had consuls here, (which could not be, the confederacy not being a recognized State,) he would be much surprised if they did not act as the federal consul had done in this instance. He defended the detectives from the attack made upon them by Mr. Brett. If the suggestion of the defense that the Japan had left the Clyde bona fide bound for China, and Mr. Jones had afterward gone on board merely to deliver her, at Mr. Bold's request, to the purchaser, why had not Mr. Bold been called to prove that such was the fact? He could easily have done so, and would have relieved his friends from all peril by prov ing that they had done only what any merchant would be proud to do, but he was not there, and the suggestion was not established. It was droll; it was almost puerile to set up such a suggestion without establishing it. If it had been true the Japan would have been on her way to China, and Mr. Jones's errand would have been the wildest

1

goose chase, but on the contrary she went round to Brest, and the jury had only to conjecture where the vessel came from by which Mr. Jones reached her, and how they came to meet when and where they did. Why did the men go, as had been proved, to Messrs. Jones & Company's office? Messrs. Jones & Co. were not shipping agents, yet they had engaged seamen, given them advance notes, undertaken to pay their wages, taken care of their kits, paid their fares, giving them cards, taken them to Greenock, put them on board the ship, and afterward, curiously enough, met them with stores off the French coast, when there was no doubt the vessel was to become a privateer. It was true that men who broke their allegiance to those whom they have sworn to serve were deserving of a certain amount of opprobrium, but the defendants were not in a position to reflect upon the witnesses who had done this, because they were themselves charged with having violated their allegiance to their own country. As to their conduct on the second occasion, what object had the defendants in giving the men money if not that they might be again employed in warlike operations? He (the learned counsel) had an important duty to perform. It was the interest of this country to maintain its neutrality, and the bounden duty of the government to check all attempts to break that neutrality. He trusted he might not be transgressing his duty when he entreated the jury to discard all reasons of sympathy which one could not help knowing existed in this country on the one side, and in some cases on the other, from their minds, and to do their duty fairly and impartially, leaving the future to settle itself. God forbid that by any act of theirs it should go forth to the world that England would not maintain its laws and its neutrality, but would allow those who had violated the laws to go free and unscathed. It was the interest of us all that was at stake, and he appealed to them if they were satisfied with the evidence to say so, trusting to the result that by so doing they might attain peace perhaps over the whole world.

The lord chief justice then summed up the case. They had first to decide whether the defendants or either of them had procured these persons to go and embark at this port for the purpose of being entered or engaged in the confederate service. There was no doubt that Matthews, Stanley, and Glassbrook did enter themselves and enlist on board the steamer which was immediately afterward employed as a war steamer in the confederate service for the purpose of waging war against the northern States of America; and there seemed to be very little doubt that both the defendants had to do with the men's leaving the port of Liverpool for the purpose of joining the Japan, afterward called the Georgia. These men were applied to, three of the four signed articles at the Sailors' Home, and although it was not known exactly what passed on that occasion, it was plain that the men immediately afterward betook themselves to the office of the defendants, where they received numbers, &c., directions what they were to do as regarded the mode in which they were to join the ship. The defendant (Highatt) was present and called over the numbers. When the men went on board the Greenock steamer they found either there or at Greenock the kits they had left at the defendants' office. Mr. Jones saw them on board the Japan, at Greenock, and afterward they were joined by a small steamer, as the jury had heard. Now came the question, whether the defendants had procured the men to be engaged in war against a country toward which this country was bound to maintain a strict neutrality. No doubt it was possible that the defendants might have been under the delusion that the ship was engaged for a voyage to China. It was for the jury to say whether they believed that to have been the case. If they believed the witnesses, Connolly and Glassbrook, the defendant Jones could not have been of that opinion, because he was on board the small steamer which was an important agent in the transaction, and when he found out what the vessel really was he manifested no surprise or horror. It was true that the jury had to rely upon the evidence of men who had turned traitors to the people they were sworn to serve and who had since played the spy upon the persons who, as they alleged, had engaged them. But, on the other hand, there was no attempt to show them that, on the day when these men signed articles at Brest, Mr. Jones was not on board, and if he was on board it was difficult to suppose he could have got there with the innocent intention described by the defense. It seems strange that if they were acting as agents for Mr. Bold, they did not now call upon him to come into court and state that they were innocently employed and perfectly unconscious that the vessel was intended to go on a warlike expedition, although sometimes it was an inconvenience and a hardship that a man-charged as the defendants were could not be called to give his own evidence; sometimes it was a vast convenience to persons accused that they could not be called, because if they were they would be constrained to admit, unless they committed perjury, that the truth was on the other side, but it was a misconception to say that the evidence in this case rested solely on the word of those witnesses. The bounty money which they said they obtained and handed to Mr. Jones, was received by their wives, and that was the strongest possible confirmation of the supposition that it was so handed to Mr. Jones. There was nothing about £10 bounty money in the articles for the voyage to China. Then the money was paid by Mr. Highatt, and if he knew nothing of the transaction why did he pay it? Did not this

A

fact throw a light back? And could they doubt that he, like his partner who went in the steam tug to the Japan, had sent these men aboard for the purpose of being afterward enlisted in the confederate service? If the jury doubted this the defendants ought to have the benefit of the doubt; but even the jury were bound to act upon their conviction. It was natural that they should hesitate before placing a man who occupied so respectable a position, in the position of having been convicted of having violated the law, but they were bound to guard the law and see that it was not broken. The act of Parliament under which this prosecution was conducted was a very important one, without which the neutrality of the country could not be maintained or might be seriously jeopardized. They ought not to deal lightly with such a case as this if the evidence satisfied them that the defendants ought to be convicted of the charge. If they believed the witnesses independently of the corroborative circumstances, the case would appear to be made out. As to the second part of the case, if the jury thought the money paid by Mr. Highatt to Matthews after the men returned was only wages, that part of the charge would not appear to have been made out, but if they thought it was to enable Matthews to get back to resume his service, they must find for the prosecution. Whatever was their verdict certain points of law would be raised, but those were reserved.

The jury retired to deliberate, and after some time returned into court. The foreman said they found both prisoners guilty, and a verdict of guilty was entered against defendant Jones upon all the counts except those which related to Matthews, and against the defendant Highatt upon all the counts.

His lordship ordered the defendants to enter into their own recognizances to appear for judgment when called upon; each of them, himself, in £500, with two sureties in £100 each.

Subsequently, his lordship said he had taken a note that there was no evidence on the part of the prosecution that the men who shipped had the intention of serving in the confederate service, but merely of the intention on the part of the defendants. If it was necessary to constitute the offense on the part of the defendants that there should be intent on the part of those embarking, as well as on the part of those who procured them to be embarked, the defendants would be entitled to a verdict.

[From the London Times of Thursday, November 24, 1864.*]

COURT OF QUEEN'S BENCH, Westminster, November 23. Sittings in Banco, before the Lord Chief Justice, Mr. Justice Crompton, and Mr. Justice Shee.

The Queen vs. Jones and another.

This was an indictment against two persons, named Jones and Highatt, for breaches of the foreign enlistment act, by procuring persons to be enlisted at Liverpool in the confederate service. The Alexandra case related to the equipment clauses of the statutes; this case relates to the enlistment clauses. The title of the act (59 George III, chap. 69) is "An act to prevent the enlisting or engagement of his Majesty's subjects to serve in a foreign service, and the fitting out or equipping, in his Majesty's dominions, vessels for warlike purposes, without his Majesty's license." Then the preamble runs thus:

"Whereas the enlistment or engagement of his Majesty's subjects to serve in war in foreign service without his Majesty's license, and the fitting out and equipping and arming vessels by his Majesty's subjects without his Majesty's license, for warlike operations in or against the dominions or territories of a foreign prince, state, &c., or persons exercising or assuming to exercise the powers of government in any foreign country, province, or part of any province, &c., may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same," &c. And then the first section proceeds to enact: "That if any natural-born subject of his Majesty, his heirs, &c., without the leave and license of his Majesty, signified by order in council or by proclamation, shall take or accept, or shall agree to take or accept, any military commission, or shall enter into the military service of the foreign state, &c., or shall go to the foreign country, &c., with an intent or in order to enlist or enter himself to serve, or with intent to serve, in any warlike or military operation whatever, whether by land or by sea, in the service of, or for or under or in aid of any foreign prince, state, &c., or as an officer or a soldier, or in any other military capacity, or as an officer or sailor, or marine, in any ship or vessel, &c., he shall be guilty of a misdemeanor." And then the clause proceeds: "that if any person whatever, in the United Kingdom of Great Britain and Ireland, or any part ☛ransmitted with dispatch from Mr. Adams to Mr. Seward, No. 819, November 25, 1864, Vol. II, p. 468.