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ters in which the neglect of it by those subjects, or the violation of it here by foreign belligerent governments, was thought calculated to lead to a position as regards foreign nations which would endanger the peace and welfare of the kingdom. How would it endanger the peace and welfare of the kingdom? Manifestly by involving us in war, by making us practically so far parties through our subjects to belligerent operations if we allowed this country to be made the base of those operations, either for the enlistment of men or for the equipping of vessels of war, as to make it probable that other countries would not endure it, but resent it, and that so we might become involved in war. That is the mischief which the statute is manifestly intended to protect us against.

Then the second clause, as to enlistment, your lordships will find is one which prohibits any natural-born subject of the Crown anywhere, I think. from enlisting or entering himself or serving "in and on board any ship or vessel of war, or in and on board any ship or vessel used or fitted out or equipped or intended to be used for any warlike purpose in the service of, for, or under or in aid of any foreign power." It is quite manifest that, under that, the mere taking an engagement on board a vessel of any sort or description used or intended to be used for any warlike purpose is equally struck at as taking an engagement on board a vessel which is of a particular class. Then I pass over the penalties affixed to taking service in that way by the enlistment clauses, and the mode in which those penalties are to be proceeded for, and I come to the seventh clause. It is quite manifest that the enlistment of men in this country to serve in and on board any ship used for the warlike purposes of a foreign nation could not have any other tendency to involve this country in war than by leading to a breach of friendly relations with the country who suffered by that sort of enlistment. The seventh section, with which we are dealing, is, I should have thought, though rather involved and intricate in its language, most carefully expressed, so as to include every species of case which can come within the mischief, and not to enable any one to escape from the case being brought within the mischief which is sought to be prevented or the intent which is prohibited. The words are these: "If any person in any part of his Majesty's dominions shall, without the leave and license of his Majesty for that purpose first had and obtained, as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm." Now, first stopping at the words "any per son," it is quite obvious that it may or not be a subject of the Crown. When the enlistment was spoken of only natural-born subjects were prohibited from enlisting. When the procuring persons to enlist was spoken of, any person within his Majesty's dominions was prohibited from doing so, and here we have any person, whether a natural-born subject, or, like Captain Bulloch and Mr. Hamilton, a foreigner, and. à fortiori, the British government acting by its agents, they would be the persons of all others whom the act would intend to prohibit, because they are directly violating our neutrality by using our shores and our ports for such a purpose. The statute provides against any person doing any one of these things; it being in the disjunctive, it distinguishes them, and seems to be carefully worded in order to avoid the chicanery which would result from requiring some particular species of furnishing, some particular species of fitting out, some particular species of equipment, in order to make the act penal in a case in which the attempt is proved. I say that the whole gist is there, is the intent and the purpose, and that any species whatever of equipment, however innocent per se, any species whatever of furnishing, any species whatever of fitting out, whether with or without arming, is struck at by the act, by its plain words, according to their natural meaning, and are necessary, and that, I apprehend, is their object and policy, provided always that the intent and purpose is established. Now what are the words? "Equip, furnish, fit out, or arm.' If it had stopped there, of course it would not have had the effect of prevention. The statute of course aims at prevention, not at punishment when the thing is done. The statute desires to stop the thing in limine, to cause the thing not to be done, and therefore, instead of stopping at these words, it goes on "or attempt or endeavor" to do any one of these things, so that, however little progress may have been made, and in whatever imperfect condition the ship may be as to these things when she is seized, if any step has been taken which is an attempt or endeavor it is sufficient; any attempt or any endeavor to do any one of these things, provided it be a prohibited attempt, is struck at, and not only the attempt or endeavor but any one who "shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming." Now that is a clause which is remarkable, because it strikes at the case of a person within her Majesty's dominions, knowingly aiding, assisting, or being concerned in the equipment, whether or not the equipment takes place quoad alios elsewhere. Any person who does any one of these things within her Majesty's dominions offends against the act, that is to say, any one who equips, who attempts or endeavors to equip, who procures to be equipped, or who knowingly aids, assists, or is concerned in the equipping, wherever the equipment is completed, and whoever be the person by whom it is made. Then what is the intent! "With intent or in order that such ship or vessel shall be employed," not by any particular person, but "shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of

any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people as a transport or storeship," in which case of course it would not have arms at all, its equipments would be of another character; "or with intent to cruise, or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate," and so on.

My lords, I look in vain in that clause for any warrant whatever for some distinctions which have been arbitrarily imported into it by some persons who seem to think that this clause makes exceptions in favor of shipbuilders, and in favor of mercantile dealings and objects, and that if they take money for the prohibited thing, if they enter into a contract with a person to do it and are paid, it takes them out of the scope of the statute, although they attempt or endeavor, or knowingly aid, assist, or are concerned in the equipment. The statute makes no such distinction. The statute strikes every person, a shipbuilder or an engineer, like Messrs. Fawcett, Preston and Company, as much as anybody else; it strikes a person whether he does it under a contract or whether he does it without a contract, whether he does it for money or whether he does not do it for money, provided he does the prohibited thing, and that prohibited thing is either equipping, or attempting or endeavoring to equip, or knowingly aiding, assisting, or being concerned in the equipping, with a certain intent. The intent is the gist of the whole thing, and that is the thing to be proved.

Now I observe here, what I shall have occasion to show more completely hereafter, how very great is the fallacy into which it is possible to fall when dealing, without due attention to the language of the statute, with distinctions rightly laid down, in some cases as to mercantile adventures in ships of war which are not prohibited; of course there may be a mercantile adventure which is not prohibited, but it must be a mercantile adventure as to which the thing is not done with a prohibited intent of course, in order that there should be the intent that the vessel shall be so employed there must be some person party to the business who is capable of having such an intent; and who is it? For example, if a shipbuilder in England builds on speculation on his own account a ship, intending to take it to any port in the world where he can find a market for it, it is obvious that he has not within her Majesty's dominions any intent to employ or any power to employ the ship in the service of any belligerent power; all his intent is to sell the ship to a purchaser somewhere or other, or it may be in some particular place, if he can find one there, and nobody but himself has any control over it at the time. Nobody but himself has anything to do with it at the time, nobody but himself, under the circumstances, can determine the intent, and as he does not mean to make war in it himself, or does not intend that any one else shall make war in it, that is not struck at by the statute. But wherever you have parties concerned in the equipping or fitting out or furnishing, or the attempting or endeavoring to do any of these things, either as shipbuilders or as engineers, aiding in any way whatever in any of them, where there is a principal in the matter who has the intent and is master of the employment, can there be any doubt whatever that it is struck at by the statute? For instance, suppose they constructed the vessel meaning themselves to use their own ship as a privateer. That is what was put by my learned friend Sir H. Cairns in his argument at the trial, as if that was the only thing which the statute meant. That covers fitting out, because a man who is building and fitting out a ship has it in his power to make a particular thing of her. But supposing he is building her under a contract, supposing the ship is ordered by the belligerent government itself, (and that is the case to which this evidence points,) can any one possibly say that this statute does not strike at the case in which a belligerent government gives an order to a merchant in Liverpool to equip a vessel for them and to take her to sea as a ship of war of theirs? And the merchant at Liverpool knowing fully that that is the purpose for which the ship is employed, which the very character of the employment proves, is not the merchant as much guilty, is not the shipbuilder as much guilty, is not the engineer as much guilty as the agents of the confederate government who are violating the neutrality of the country in the first instance?

Now all this was totally lost sight of at the trial; nay, doctrines entirely inconsistent with it were laid down, and I say that unless your lordships are to make law instead of interpreting it, unless you are to deviate from the plain language of this statute and the natural meaning of its words for the sake of destroying its effect, for the sake of preventing it from checking and suppressing the mischief, you must say that any species of furnishing, any species of equipment, any species of fitting out, with or without arms, provided it be done with this intent, which I agree must be a fixed intent of a person capable of having the intent and assisting in that intent formed within this country, if you have that intent proved, (and you have evidence to prove it here,) this is a case which the statute strikes at, and you may as well drop the whole act out of the statute-book if it does not.

Mr. BARON BRAMWELL. Just let me tell you a difficulty which has occurred to me with reference to this act of Parliament-not at the present moment, of course. The words are, "equip, furnish, fit out, or arm with intent that such vessel shall be employed as a transport or store-ship, or with intent to cruise or commit hostilities.

The equipping therefore must be either as a transport or store-ship, or with the intent to cruise or commit hostilities. So also must be the furnishing, fitting out, or arming. It may be said that in this case there was no reasonable evidence upon which the jury could find that this vessel was equipped as a transport or store-ship, therefore you may leave those words out. Then it may be said that there was no equipment of her of such a kind that she could cruise or commit hostilities, and that therefore that part of the intent fails to be made out. Now I understand that to be a difficulty which has been felt in the construction of this act of Parliament, and I throw it out for your consideration if it has escaped you.

Mr. ATTORNEY GENERAL. I am very much obliged to your lordship. It has not escaped me; but my answer is this, that the act is intended to prevent and not to punish; steps which are being taken to that end are steps which, if taken with that intent, are as much against the act as the completion of those steps would be. It is perfectly plain that the ship was meant to be completed in some way or other; she was in course of equipping; she was in course of furnishing; she was in course of fitting out, and if the evidence was such as to show that her object and purpose was to be employed as a war ship, it is clear that she would be completed for that purpose, and that any equip ments not yet given which were necessary for that purpose would be added at one time or another, the whole being in pursuance and in completion of one and the same intent; and an authority in the United States, to which I shall have occasion to refer, at all events has distinctly laid it down that it is not at all necessary that the entire equip ment, without which the ship cannot be effectually employed upon this service, should be made in this country, provided that any part is made here.

Mr. BARON CHANNELL. Do you say that the statute points to something incomplete? Mr. ATTORNEY GENERAL. The words "attempt or endeavor" plainly point to something wich is incomplete.

LORD CHIEF BARON. Suppose the case of the building of a mere hull with the intention that it should be towed away across the Atlantic by a tug, and suppose that there was some confederate port open, which there is not, that hull being incapable in that state of being used for any purpose whether of merchandise or war, do you mean to say that that would be illegal?

Mr. ATTORNEY GENERAL. That would raise an entirely different question.
LORD CHIEF BARON. Would it be illegal?

Mr. ATTORNEY GENERAL. I will assume for a moment that it is not illegal.

LORD CHIEF BARON. I am bound to say that if it be illegal you would be entitled to your rule at once, because no doubt I meant to lay down distinctly that the mere hull of a vessel, in no condition fit for any use whatever, might be made and sold at Liverpool to anybody.

Mr. ATTORNEY GENERAL. My case does not in the least degree require that I should argue the case imagined by your lordship, which is obviously not one which is very probable and practical, would be brought within the words, "equip, furnish, fit out, or arm."

LORD CHIEF BARON. The court will adjourn for a short time. [After an interval,]

LORD CHIEF BARON. Mr. Attorney General, we have availed ourselves of the oppor tunity of the court adjourning for a short time to consider the matters which you have brought before us; and without in the least saying what the opinion of any member of the court is as to the ultimate fate of the rule, I certainly, for one, and I believe all my brothers are of the same opinion, think that what you have stated is unquestionably matter fit to be discussed. If, therefore, you are content now to take a rule to show cause why the verdict should not be set aside as being contrary to the evidence, or as not being warranted by the evidence, being contrary to the weight of it, and on the ground of misdirection on the part of myself at the trial, or on the ground that though there might be no positive misdirection, there might be such a want of information furnished to the jury as not to enable them fairly to discharge their duty-if you are contented to take a rule upon those two grounds, dividing the second into either positive misdirection or imperfect direction, you may take a rule to show cause at once.

Mr. ATTORNEY GENERAL. I thank your lordship; that is what I have been asking your lordships for, and of course, being told that I may have it, I have no more to say, LORD CHIEF BARON. Very well; take a rule to show cause.

Mr. ATTORNEY GENERAL. My lords, my learned friends remind me that it will be neces sary in drawing up the rule to state the grounds of the rule.

LORD CHIEF BARON. I hope that I am not wrong in this. I believe that you may take the rule precisely in the terms which I have announced. If you like to put it more shortly as misdirection or imperfect direction, you can do it.

Mr. ATTORNEY GENERAL. That is very satisfactory to me, my lord.

Mr. BARON CHANNELL. We understand that that will include the incomplete infor

mation.

LORD CHIEF BARON. Perhaps you had better take it in the language in which I pronounced it when I addressed you just now.

Mr. BARON PIGOTT. Misdirection enables the court to mold the meaning of that word by-and-by; misdirection is understood, but non-direction is not recognized as a ground for a rule.

Mr. ATTORNEY GENERAL. If that is so technically, of course we are quite satisfied to abide by the proper form.

Mr. BARON BRAMWELL. There can be no doubt that it must be stated wherein the misdirection consists; but surely there will be no difficulty about it; Mr. Jones will attend to that.

Mr. JONES. It is only with reference to the terms of the rule of court upon the subject. If we go into the court of error they will say, "You ought to have specified it." Mr. BARON BRAMWELL. If there should be any difficulty, I daresay that myself, or one of my learned brothers, will settle it.

LORD CHIEF BARON. I may state to you, Mr. Attorney General, that I imagined that I had taken pains, and I hoped that I had laid down the law as I understood it to be laid down by the highest possible authority, at least now, in what is called "another place;" some people call it "another place."

Mr. ATTORNEY GENERAL. Your lordship may be aware that any authority to which your lordship may be referring, is incapable of defending himself here as to what he has said in another place, or vindicating that from misinterpretation.

LORD CHIEF BARON. I thought that I was remarkably safe in taking that course. After all I may have been wrong.

Mr. ATTORNEY GENERAL. If I can divine the sentiments of any person to whom your lordship may be alluding, I may take the liberty of saying, that I understand that person to have vindicated the conduct of his own government in that other place; and at the same time to have said, that in his judgment, although it may not be infallible, the Alabama had offended against the law of the land.

[After a short interval,]

Mr. ATTORNEY GENERAL. My lords, I have received from the officer of the court an intimation which I am afraid makes it necessary for me to refer again to a subject which I thought had been disposed of. I am informed that the grounds of misdirection must be stated on the brief.

Mr. BARON BRAMWELL. Yes.

Mr. ATTORNEY GENERAL. I am quite content to state those which we conceive to be the grounds of misdirection, if that is meant.

Mr. BARON CHANNELL. The technical mode of drawing up the rule would be, that there was misdirection in this, then mentioning what you suppose to have been the misdirection; and if the court has granted you the rule on the ground of incomplete or imperfect direction, then to state the grounds of that incomplete and imperfect direction.

Mr. ATTORNEY GENERAL. We shall be at liberty to state that in our own way?
Mr. BARON CHANNELL. Yes.

LORD CHIEF BARON. Mr. Attorney General, the terms of the rule, of course, should be submitted to the court before the rule is granted. There will be no difficulty about that. I have no doubt that Mr. Jones will so frame it that either the court will assent to it, or he will assent to what the court suggests as the mode.

Mr. BARON BRAMWELL. Of course, Mr. Attorney General, as I understand, we cannot possibly allow a rule to be drawn up saying that the chief baron misdirected in this, when he says that he gave no such direction; of course we cannot do that. Mr. SOLICITOR GENERAL. There is the difficulty.

Mr. ATTORNEY GENERAL. What I had proposed was to have extracted verbatim from the short-hand writer's notes certain passages to which we should object, which probably would not be excepted to. I have made a division into six heads of the language as it stands on the short-hand writer's notes; and I should have been disposed to have placed every one of them upon the rule.

LORD CHIEF BARON. I will see Mr. Jones upon the subject if necessary.

Mr. BARON CHANNELL. There will be no difficulty about it.

Mr. SOLICITOR GENERAL. I rather understood from your lordships, if I may be allowed to say so, that in this particular case you would allow the rule of practice to be somewhat modified by a more general statement than usual.

LORD CHIEF BARON. We will see whether that can be done.

Mr. SOLICITOR GENERAL. Very well, my lord; we will try what we can do. LORD CHIEF BARON. It should be observed, and it may be quite right that I should state it in public, that when the attorney general presented to me the paper I made the instant objection to it which I have made all along.

Mr. ATTORNEY GENERAL. Yes, my lord, we are quite aware of that.

LORD CHIEF BARON. I said "I certainly did not mean this, and I do not believe that I have done it," and if the objection had been taken, as I must say I think it ought to have been, a little earlier, and if an intimation had been given to me I should have corrected it at once, and have said "Gentlemen of the jury, it is supposed that I have said so and so; I mean nothing of the kind. On my own behalf I must say that the

12 A C-VOL. V

learned attorney general now remembers that the moment the paper was put into my hands I said, 'Mr. Attorney General, that is not mine.'" At present we need only say this-I repeat that if Mr. Jones will communicate with me upon the subject I have no doubt that we shall be able to put upon the rule everything which you wish to put upon it.

Mr. ATTORNEY GENERAL. I should think so; I should wish to do it, with your lordship's permission, by taking the very terms of the short-hand writer's notes, including the final passage to which your lordship has referred, and then it would open to us the alternative view which your lordship has mentioned, namely, that even if the direction properly interpreted should be considered to be right, still it might possibly have the effect of misleading the jury.

The court then made the following rule:

In the Exchequer, Thursday the 5th day of November, 1863, between her Majesty's attorney general, informant, and Hermann James Sillem and others, claiming the Alexandra, defendants.

BY INFORMATION OF SEIZURE.

Upon the motion of Sir Roundell Palmer, knight, her Majesty's attorney general, it is ordered by the court that the said defendants do within a week after service of this rule, or a copy thereof, show cause to this court why the verdict found for the defendants upon the trial of this cause before the right honorable the lord chief baron of this court, at the sittings in Middlesex after Trinity term last, should not be set aside, and a new trial of this cause had, on the ground-1st, that the verdict was against the evidence; 2d, that the verdict was against the weight of evidence; 3d, that the learned lord chief baron did not sufficiently explain to the jury the construction and effect of the foreign enlistment act; 4th, that the learned lord chief baron did not leave to the jury the question whether the ship Alexandra was or was not intended to be employed in the service of the Confederate States to cruise or commit hostilities against the United States; 5th, that the learned lord chief baron did not leave to the jury the question whether there was any attempt or endeavor to equip, &c.; 6th, that the learned lord chief baron did not leave to the jury the question whether there was knowingly any aiding, assisting, and being concerned in the equipping, &c.; and 7th, that the learned lord chief baron misdirected the jury as to the construction and effect of the seventh section of the foreign enlistment act.

W. H. WALTON, Q. R.

TUESDAY, November 10, 1863.

Application to the court to fix a day to move to make rule for new trial herein absolute. Mr. SOLICITOR GENERAL. Would your lordships allow me to ask you if it would be convenient that the case of the Alexandra should be taken upon this day week, that is to say next Tuesday. I have been requested by the attorney general to put that question to the court.

LORD CHIEF BARON. Of course the rule has been served.

Mr. SOLICITOR GENERAL. Yes, my lord.

LORD CHIEF BARON. My impression is that the earliest possible day is that which the court would make convenient for the purpose of hearing that argument. I need not remind you, Mr. Solicitor General, that although we are happy on any occasion to receive the courtesy of the law officers of the Crown in inquiring whether a day will be convenient to the court or not, still we are in some measure bound to take the day which is mentioned by the law officers.

Mr. SOLICITOR GENERAL. Yes, my lord; at the same time I was requested to put it to your lordships whether next Tuesday would be a suitable day.

LORD CHIEF BARON. This day week?

Mr. SOLICITOR GENERAL. This day week.

LORD CHIEF BARON. Certainly.

Mr. BARON BRAMWELL. Had we not better consider this, that Wednesday is a special paper day; but I should think that when the argument was once begun we had better go on with it, had we not?

Mr. SOLICITOR GENERAL. I should think so, my lord.

LORD CHIEF BARON. From day to day?

Mr. SOLICITOR GENERAL. From day to day. I should think that that would be the better course.

Mr. BARON BRAMWELL. I think that it had better be understood by the bar, and be known that we shall not take the special paper on the Wednesday.

Mr. SOLICITOR GENERAL. It will be understood that the Alexandra case goes on from day to day?

Mr. BARON BRAMWELL. Yes; if it lasts over a day.