tilities, he being the judge and the arbiter and determiner whether he will or will not cruise and commit hostilities. And you must have further this: the ship armed, or equipped, or fitted out in such a way as will make her such a ship, as well at the time she leaves this country, for that is the point, be competent and able to cruise and commit hostilities. Because, I say it with confidence, that it is, upon the history of this act of Parliament, entirely open to any person to build a ship in this way, to sell that ship, even and though she may be competent to be converted into a ship of war, to either of the belligerent powers; and the circumstance that he might know that after she was sold to the belligerent power she might be used in a particular way has nothing to say to it. He is not the person who arms and equips the ship to cruise and commit hostilities unless he has the intention of arming her in such a way as that when she leaves the port she will be in a state to cruise and commit hostilities.

Now, gentlemen, before I leave the act of Parliament I ought to fortify this argument by that which seems to me to reflect very much upon it. And here I will beg my lord's attention also to what I am going to submit, namely, the eighth section, because you have another section upon which you have not heard a word yet, which is not included in any of the counts of this indictment, but which seems to me to show in the clearest manner the object and intention of the act of Parliament. The eighth section deals in the case of actual ships of war about which there is no doubt at all, ships of war coming into harbors in this country, and wanting something in the shape of equipment, an addition to their inventories or their stores. It deals therefore with the case of a ship of a foreign country coming to do repairs in our own country.

Does it say that a ship of that kind that comes to one of our harbors shall have nothing furnished to her? No equipment furnished, no supplies furnished to it? Nothing of the kind. The only thing that it says is this: A ship of war coming into one of our harbors shall not have in our harbors the number of its guns increased, or the guns changed, smaller for larger, or an equipment for war furnished; not an ordinary equipment, but an equipment for war, leaving it nearly, therefore, at the will of any one in this country, with regard to the national ship of war of a belligerent state which comes into one of our harbors, to supply that ship with an equipment, with means of repairing sea damage, with masts and sails, provided you do not supply her guns, or warlike equipment, which of course would mean something in the nature of guns, or gun slides, and so on. We have heard how that clause has been acted on, because you will remember that very early in this unfortunate American contest there came a ship into the harbor of Southampton-I really forget whether she belonged to the southern navy or to the northern-I mean the Tuscarora. There were some of each. There was the Tuscarora, and there was another ship, the Nashville. One or other, or both, had sustained sea damage. They were allowed to repair and refit in the harbor of Southampton, because that with which they were repaired or refitted was not a warlike equipment, was not an increase or alteration of guns, and was, therefore, perfectly legal and perfectly harmless within the foreign enlistment act.

But I will not stop there, because I will show you that this which I submit has been the construction of the act of Parliament and the meaning and the object of it, although we have not had in this country a case tried under this act of Parliament; has been the meaning attached to the act of Parliament by the statesmen and lawyers of this country from time to time, and by authorities to which those who promote the present proceeding of the Crown will have respect. I mean the authorities of the American courts. A similar meaning has been affixed to the American foreign enlistment act, which, you will remember, the attorney general told you was passed at two different intervals in the United States, and which might be taken to be the precursor and the model or exemplar of our act of Parliament. There is a very remarkable thing, which I find in one of the American state papers, which I will refer to here, upon the subject, merely to show you the footing on which this doctrine has been put In America. At the very time when the first American enlistment act was passed, the great and illustrious man who then swayed the destinies of America, I mean Washington, was the President; and he had ordinances issued to the various ports in America, informing their own officers what things were lawful and what were unlawful with regard to the equipment of vessels, there being at that time a war in which America took no part. Now, I will just read you in a few sentences the instructions issued by Washington to the officers of the outports. In the first place he says this: "Equipments in the ports of the United States of vessels of war," that is the first thing, "in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or to war, are deemed lawful." There is no harm in that. If the equipments are of a doubtful character, if they would be useful to a vessel of war, if they would be useful also for purposes of commerce, then, if they are useful to a vessel of war, those equipments may be made. Then, further: "Equipments in the ports of the United States by any of the parties at war with France of vessels fitted for merchandise and war, whether with or without commissions, which are doubtful in their nature, as being applicable either to commerce or war, are deemed lawful." Aud in like manner,

"Equipments of any of the vessels of France in the ports of the United States, which are doubtful in their nature, as being applicable to commerce or war, are deemed lawful."

Therefore we have, in the very first year when the American enlistment act passed, this construction put upon it by the greatest man America ever saw, Washington. You have him pronouncing that which is deemed unlawful as simply putting on board munitions or arms of war, and anything which may serve the twofold purpose, and which is useful to either purpose, is perfectly harmless.

But it does not stop there, because I will show you authorities which come much nearer home, and which are even much clearer than that. I will tell you what happened in this country in 1830, which was at a time much nearer the foreign enlistment act, and when there were many men alive who had taken part in the foreign enlistment act. In 1830 the war in Portugal was going on, the civil war between Don Miguel and the former Queen of Portugal. There were a great many parties in this country who were opposed to Don Miguel, and there were certain persons who were supposed to be very much in his favor. There came to the shores of this country, I think Plymouth, some refugees from Portugal, and they had some ships there, and they lived at Plymouth, and ultimately they sailed from Plymouth in their ship. They had no arms in their ship, but it turned out that they had sent their arms to one of the Azores, Terceira, in some other vessel, and they intended, no doubt, when they got there, to take their arms on board their own vessel.

There was an attempt made to stop them sailing from this country, but they were allowed to sail. But when it was found that they were at Terceira, and that they were going to land there, (Terceira at that time being in possession of Don Miguel,) some of our cruisers fired on them and intercepted them. A very stormy debate took place in the House of Commons as to whether our cruisers were justified in doing this. I will tell you for what purpose I am mentioning it. It was said then on the part of the government, "Well, but we have a right to stop these vessels off Terceira, because it is quite true they did not go away from the shore of England in an armed vessel, but they did the same thing; they sent their armament before them, and they sent to take it up, and that was clearly an offense within the foreign enlistment act." They might have been tried for it; and that was the defense made for all the cruisers firing on them off Terceira. At that time the House of Commons had the benefit of the advice and assistance of a very eminent man, Mr. Huskisson. He had been the colleague of Mr. Canning at the time the foreign enlistment act was passed. Some person said in the debate that the policy of Mr. Canning would have approved of what was done with reference to those ships off Terceira. It is to Mr. Huskisson's own policy in the foreign enlistment act that I now want to call your attention. Now, what Mr. Huskisson said was this: He said he was induced to trouble the House by the reference that had been made to Mr. Canning and Mr. Canning's views on the enlistment act. He said: "It might be supposed from his right honorable friend's (Sir Robert Peel's) remarks that during the fifteen years we had been at peace our neutrality had never been violated. Had he forgotten, then, the repeated complaints made by Turkey, and had he forgotten that to those complaints we had constantly replied: "We will preserve our neutrality within our dominions, but we will go no further.' Turkey did not understand our explanation, and thought we might summarily dispose of Lord Cochrane and those other subjects of his Majesty who were assisting the Greeks. To its remonstrances Mr. Canning replied, and his right honorable friend, being then a colleague of Mr. Canning, must be considered a party to his opinions: Ships may leave this country as matter of merchandise, and, however strong the general inconvenience, the law cannot interfere to stop them. It is only when the elements of armaments are combined that they come within the purview of the law; and if that combination does not take place till they have left this country, we have no right to interfere with them.' Those were the words of Mr. Canning, who extended the doctrine to steam vessels and yachts that might afterward be converted into vessels of war; and that appeared quite consistent with the acknowledged law of nations. When his right honorable friend placed so much reliance on the authority of Mr. Canning, he could only account for his having overlooked this remarkable passage by his perceiving that it contained a complete contradiction of the doctrine laid down by his right honorable friend. His right honorable friend made it a part of his case that the elements of armament were not combined when the refugees left our shores for Terceira, and, according to the opinion of Mr. Canning, therefore, the government had no right to interfere with them." And further on Mr. Huskisson proceeds to say: "He would tell his right honorable friend that if he acted on this doctrine and pursued such a policy, he would not keep for ten months, much less ten years, this country out of war. At the very moment he was speaking arms and clothing were about to be sent out of this country to belligerents. Were they to be stopped, or were they to be followed and brought back? He believed the answer would be, No; and if it were Yes, of what use, he would ask, would be our skill in building ships, manufacturing arms, and preparing instruments of war, if wrongly to sell them to all belligerents were a breach of neutrality."

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 plaintiff in error "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: "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