Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-eighth Congress, Part I

[Extracts.]

Mr. Adams to Mr. Seward.

No. 438.]

Legation of the United States, London, June 26, 1863.

Sir: By the present conveyance, copies of the newspaper report of the trial of the Alexandra, as well as of a special report made under the direction of Mr. Dudley, the consul at Liverpool, will be transmitted to you. Although the result varies little from my anticipation of it, as expressed in my No. 432, yet some of the details are unexpected, and furnished much food for reflection. The presiding judge has decided the cause, and that upon a construction of the enlistment act which leaves nothing of it, as a penal measure of prevention, but the name. Without the interposition of some new barrier Great Britain must, from this time appear as ready to furnish the means for any and every enterprise that may be undertaken, within her limits, against nations with which she professes at the same time to be under the most solemn engagements to keep the peace.

As exceptions have been taken by the government against this ruling, the case will now be carried up to the full bench. In case of their confirming it, I understand the intention to be to take an appeal to the House of Lords. Practically, therefore, no change in the relations of the parties is likely to occur for, some months. The Alexandra will remain under interdict, and there will be no relaxation of the efforts to check the progress of the steamers yet building. This will furnish a. useful delay, as well to consider the precise position in which the two countries are now placed relatively to each other, as to mature the policy which it will be deemed proper to adopt to meet the emergency.

Obviously the first idea is, that the obligations upon the two nations in regard to neutrality are not left reciprocal, as they should be. Whilst the United States execute the law enacted to make them good, Great Britain practically invalidates them by raising up a judicial construction which annuls its own statute designed to the same end. One of two consequences would seem necessarily to follow: either Great Britain must interpose a new and more effective remedy, or else the United States must withdraw theirs, at least so far as it may apply to Great Britain. If the latter country be content to abide by this arrangement, I am not quite sure that we should be the first to complain. In the long run she has quite as much to lose by lax morality on the ocean as any nation. The duty is, however, not the less incumbent to force her to accept the issue, and to place on record either her acknowledgment of her international obligations, or her release of other nations from the necessity of observance of the same towards herself.

The next point naturally relates to the consideration of proper measures to meet the difficulties that must ensue from any adverse position that may be taken by Great Britain. In the present state of feeling here among the commercial classes, it is not to be doubted that all possible facilities would be readily furnished for waging an effective and exterminating war upon our commerce from British ports. The vessels now building would be sent forth, and new ones started. All of them would be armed and manned with little further molestation. The effect would scarcely fail to be to protract the war indefinitely—perhaps even to turn the scale on the side of the rebels. The only practicable mode of deterring persons from such projects would seem to be not so much a declaration of hostile intentions as prompt preparation on the ocean to check the tendency in its commencement. It is much to be regretted that already three armed vessels are combining their operations to annoy us, and as yet, it must be confessed, with the appearance of perfect impunity. The hope of ultimately concentrating such a force as may strike a sudden and effective blow on some weak point in our coast is not yet abandoned. I fear that we may have been turning our attention too exclusively to the preparation of un-seaworthy vessels to be in a condition to face this new danger. What we now need is swift and strong ships of war on the ocean. That the Americans cannot, if they please, make these as effective in every way as any that may be constructed in this island, I should be slow to believe. The very presence of such in proper force, and commanded by competent officers, in the waters of Europe, would be more likely to be the means of preserving the peace in the contingency now apprehended than all other expedients put together. I trust that before the period shall come round for action we may be found in a condition to take it with effect.

The question proposed by Mr. Roebuck, as a test of the sense of the House of Commons on America, is assigned for the 30th instant. I understand it is yet to be modified, so as to fit the proposed minimum of resistance that can be applied to it. In the meanwhile Messrs. Roebuck and Lindsay are reported to have been to Paris, acting in the capacity of self-appointed negotiators for the co-operation of the Emperor of the French, and to have obtained some sort of favorable expression of sentiment from him. This is a new species of influence to bring to bear in England with any hope of success.

The past week has been marked by two extraordinary events in Parliament, which will not have escaped your observation. The first was the singular manner in which a debate on Poland, which had been assigned to take place in concert with the ministers, was suddenly suppressed without any assignment of a cause. The second was the exposition made of the present condition of Ireland by the Irish members.

I have the honor to be, sir, your obedient servant.

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, &c.

[Untitled]

COURT OF EXCHEQUER, June 22.

(Stitings at Nisi Prius, at Westminster, before the Lord Chief Baron and a Special Jury.)

THE SEIZURE OF THE SHIP ALEXANDRA.

The Attorney General V. Sillim and others, claiming the Alexandra.

This is an information filed by the attorney general on behalf of her Majesty against 12 persons, (including the builders of the ship,) alleging the forfeiture of the vessel Alexandra, which had been seized while lying in the Toxteth dock, Liverpool, by desire of the government, by a custom-house officer named Morgan, under the powers contained in the 7th section of the foreign enlistment act, 59th of George III, chap. 69. Although the information contains the names of 12 persons, five only appear, namely: H. Sillim, Henry Berthin Preston, Jacob Willink, David Wilson Thomas, and William Thompson, all of whom are carrying on business together at Liverpool as engineers and iron founders. The ship in question was built by Messrs. Miller & Sons, and as soon as launched was taken into the Toxteth docks, where the defendants proceeded to fit her with engines and a screw propeller. The American States have persons in their service here whose business it is to be always on the qui vive and watch over the interests of their employers. From inquiries they made, as well as from personal observation, they thought proper to make certain communications to our government, and the consequence was, that an order was given that the seizure should be made at once; and it was done accordingly. The defendants having made an affidavit that the ship was their property, they were allowed to enter an appearance and defend their claim. The case is one, from every point of view, of very great and grave importance; and although the foreign enlistment act was passed in 1819, this is the first time that a case has been brought to trial under it. The facts involved in this matter and the real issue to be tried are simple and narrow enough; but as everything will be required to be proved, the proceedings may run to a considerable length. The present proceedings involve whether, under all the circumstances, the step taken by the crown was justifiable, and the defendants amenable to the law under the section above referred to, and which runs as follows: “That if any person, within any part of the United Kingdom, or in any part of his Majesty’s dominions beyond the seas, 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 procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or if any foreign colony, province, or part of any province or people, or if 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, 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, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with whom his Majesty shall not then be at war, or shall within the United Kingdom, or any of his Majesty’s dominions, or in any settlement, colony, territory, island, or place belonging or subject to his Majesty, issue or deliver any commission for any ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, any such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indictment, be punished by fine and imprisonment, or either of them, at the discretion of the court in which such offender shall be convicted; and every such ship or vessel, with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of any such ship or vessel, shall be forfeited; and it shall be lawful for any officer of his Majesty’s customs or excise, or any officer of his Majesty’s navy, who is by law empowered to make seizures for any forfeiture incurred under any of the laws of customs or excise, or the laws of trade and navigation, to seize such ships and vessels aforesaid, and in such places and in such manner in which the officers of his Majesty’s customs or excise, and the officers of his Majesty’s navy, are empowered respectively to make seizures under the laws of customs and excise, or under the laws of trade and navigation; and that every such ship and vessel, with her tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores, which may belong to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner, and in such courts, as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation.” The information contains 98 counts, and is framed upon the above section of the statute. The 1st count charges that the claimants, &c., on the 5th of April did equip the said vessel to employ her in the service of the Confederate States of America, with intent to cruise and commit hostilities against the republic of the United States of America. The 2d charged that the claimants on the same day did equip the said vessel to employ her in the service of the Confederate States of America, with intent to cruise, &c., against the citizens of the republic of the United States of America. The 3d count charges that the claimants, &c., did equip the vessel with intent to cruise, &c., against the republic of the United States of America. 4th, that the claimants did equip the vessel with intent to cruise against the citizens of the United States of America. 5th, charges that the claimants did equip the vessel to employ her in the service of persons excercising powers of government over the Confederate States of America, with intent to cruise against the republic of the United States of America. The 6th count charges that the claimants did equip the vessel with intent to employ her in the service of persons exercising powers of government over the Confederate States of America, with intent to cruise against the citizens of the republic of the United States of America. The 7th count charges that the claimants did equip the vessel with intent to employ her in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c., to wit, against the republic of the United States of America. The 8th count charges that the claimants did equip the vessel to employ her in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c., to wit, against the citizens of the republic of the United States of America. The 9th count to the 16th count charge the same as the first eight counts, saying “furnish” instead of “equip.” The 17th count to the 24th count charge the same as the first eight counts, saying “fit out” instead of “equip.” The 25th to the 32d count charge the same as the first eight counts, saying “attempt and endeavor to equip” instead of “equip.” The 33d count to the 40th count charge the same as the first eight counts saying “attempt and endeavor to furnish” instead of “equip.” The 41st count to the 48th count charge the same as the first eight counts, saying “attempt and endeavor to fit out” instead of “equip.” 49th to 56th counts charge the same as the first eight counts, saying “did procure to be furnished” instead of “equip.” 65th to 72d counts charge the same as the first eight counts, saying “did procure to be fitted out” instead of “equip.” 73d to 80th charge the same as the first eight counts, saying “did knowingly aid, assist, and be concerned in equipping,” instead of “equip.” 81st to 88th counts charge the same as the first eight counts, saying “did knowingly aid, assist, and be concerned in furnishing,” instead of “equip.” 89th to 96th counts charge the same as the first eight counts, saying “did knowingly aid, assist, and be concerned in fitting out,” instead of “equip.” 97th count charges that the claimants did attempt to fit out the said vessel to employ her in the service of persons exercising powers of government over part of a certain foreign people, as a transport or storeship, against the republic of the United States of America. The 98th and last count charges that the claimants did equip, furnish, and fit out, and did attempt and endeavor to equip, furnish, and fit out, and did procure to be equipped, furnished, and fitted out, and did knowingly assist and be concerned in the equipping, furnishing, and fitting out of the said vessel, with intent to employ her in the service of certain foreign states and of divers persons styling themselves Confederate States of America, and of persons exercising powers of government over part of a certain foreign people, as a transport or storeship, with intent to cruise against the republic, and also against citizens of the republic of the United States of America. To these counts the claimants pleaded that the said ship or vessel, furniture, tackle, and apparel did not, nor did any or either of them, or any part thereof, become nor is the same or any or either of them, or any part thereof, forfeited for the several supposed causes, in the said information mentioned, or for any or either of them, in manner or form as by said information is charged.

The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, Q. C., and Mr. Thomas Jones, were counsel for the crown; Sir Hugh Cairns, Mr. Karslake, Q. C., Mr. Mellish, Q. C., and Mr. Kemplay, appeared for the claimants.

The attorney general, in opening the case, said the present was so far singular that, although the act of Parliament upon which it was founded had been passed so far back as 1819, and though it was true that various proceedings were commenced from time to time under that act, he was not aware until to-day that any question like the present had ever been brought to trial. This information was a proceeding on the part of the attorney general calling for the forfeiture of a vessel called the Alexandra. The act upon which the information was founded was familiarly known as the foreign enlistment act, and under this act, upon information received, the government caused the seizure of the Alexandra to be made on grounds which, if made out, would establish the forfeiture of the vessel. So soon as the seizure had been made the defendants, who trade under the style of Fawcett, Preston & Co., as engineers and iron founders, made an affidavit under the provisions of an act of Parliament, claiming the seized ship as their property, and, therefore, according to the prescribed rules, they were allowed to enter an appearance and defend their claim upon this occasion, and thereby put upon the crown, as between the crown and themselves, the burden of proving a sufficient cause to justify the seizure and affirm the forfeiture. Two acts of Parliament were passed, one in the 9th of George II, and the other in the 29th year of the same reign, both of which acts had a narrower scope than the act in question, and related only to. the enlisting of English soldiers in the ranks of foreign armies. In both of these acts such enlistment was made a felony, punishable by death. The consequence of that severe punishment was that no conviction could be obtained, and, therefore, by the foreign enlistment act not only were the provisions of the former acts extended so as to apply to the case they now had to consider—that of equipping and furnishing ships to be employed in the service of foreign governments against other countries and states at peace with the British crown—but the offence was reduced to the minor class of misdemeanor, and, instead of death being the penalty; forfeiture of the ship, and in some instances fine or imprisonment. He should mention that the present case had arisen out of hostilities which were now being carried on between the United States and certain states which were formerly willing members of the Union; he meant the Confederate States. Those being the belligerent portion out of which or with respect to which the present proceedings had arisen, he might mention that, previous to the passing of the foreign enlistment act in this country, the government of the United States of that day had devised means to the same end; for in 1794, and again in 1818, by acts of Congress, provisions were made similar to those contained in the foreign enlistment act; therefore, in passing our act of 1819 we may be said to have followed the example of the United States. In the American acts provisions were made making it a misdemeanor to be concerned in fitting out vessels much in the terms of our act, and the law in America was the same to this day. With regard to the objects of the passing of the foreign enlistment act, our two earlier acts did not seem to have contemplated the question of neutrality, but simply the direct defence of the crown. He would not say a word to them upon the importance of neutrality on the part of a state at war with neither one of the belligerents nor the other. They were aware that the sovereign of any state could not allow his forces to interfere in a pending war without thereby becoming a party to the contest—the ally of the one, and the enemy of the other. But, with regard to the subjects of foreign states, their interference with neutrality by lending aid to either of the parties did not of itself necessarily involve their sovereign whose subjects they were in the pending war. At the same time, such acts were calculated to give great umbrage to the state against whose arm they were directed. They were calculated to beget complaints, possibly recrimination, and their tendency, in fact, if not checked, was to involve the neutral sovereign, without any will or disposition of his own or his government, in the war in which his subjects, under these circumstances, thought proper to take a part. It was, therefore, not only the duty of neutral governments to provide as far as might be against this mischievous intermeddling of their own subjects with the quarrels of other states, but it was their duty as well as their interest to do so. Therefore, the policy of the act of Parliament— and that might be adverted to for a moment—could not admit of any doubt, and more especially when we regarded its possible bearing on the government of the United States, which, as he had before mentioned, had recorded upon its statute, books enactments similar to this, which would tell forcibly on this country if it were at war, and the United States neutral. Therefore, in the passing of the foreign enlistment act, we did but follow the example of the United States of America, and that brought him to what much more concerned the case, namely, the hostilities out of which the necessity, no doubt, for such an interference on the part of the crown as the present, had arisen. In June, 1861, the southern States, now familiarly known as the Confederate States, determined to recede or secede from the Union with the northern States, and a war broke out, which had now unfortunately raged for two years, involving great suffering and very great misfortune, and which conflict had extended its baneful influences much beyond the confines of the territories of the northern or of the southern States, and had involved a considerable body of the laboring population of this country in destitution and dependence upon others for their support. The war, however, having broken out, it soon became apparent that, although it was on the part of the seceding States a revolt against the government under which they had formally lived, yet the organization and the power of self-defence and carrying on of military operations, according to the regular rules of war, were such as regarded states not involved in hostilities, it was right that, although a recognition of the confederates as an independent power was out of the question, yet it was right they should be admitted by other nations within the circle of lawful belligerents—that is to say, that their forces should not be treated as pirates, nor their flag as a piratical flag. Therefore, as far as the two belligerents were concerned, on the part of this and other governments, they were so far put on a level that each was to be considered as entitled to the right of belligerents—the southern States as much as the other. It then became proper, according to the course usually adopted, that a proclamation, called a proclamation of neutrality, should be issued by the crown, with a view, in the first place, of making public the intention of the crown to preserve an honest neutrality, and, in the next place, to warn the subjects of the Queen to observe the neutrality which the sovereign had taken upon herself, and that they might not offend against the law by inadvertence or ignorance, and plunge into responsibilities and liabilities which, possibly, if they had been better informed, they might have avoided. On the 13th of May a proclamation was issued. The learned attorney general read the proclamation, which stated that Great Britain being at peace with the United States, the subjects of Great Britain were required to preserve a neutrality in the hostilities being carried on by the northern and southern States. The attorney general went on to say, as to the American war, one was a regular government, long since recognized by the government of this country, and still at amity with Great Britain. The character of the other was of a different kind, and that led him to mention that one of the objects, he thought the main object, of the foreign enlistment act being passed, was to prevent any doubt being entertained on the subject of the character of one of the belligerents being that not of a recognized government—not of a government only; it was to make it clear that aiding in equipping ships for a de facto government was to have the same effect, and induce the same punishment and result, as though the government sought to be served in military or naval operations was an established and acknowledged government. The consequence was, that, the Confederate States as belligerents having been conceded, it followed that all the provisions of the foreign enlistment act went to render assistance given to the Confederate States liable to the same punishment as if it had been given to those they opposed; he meant the government of the United States. This brought them up to May, 1861. The seizure of the Alexandra took place at Liverpool, a commercial resort, before the war, of the traders from all parts of the Union and the south. The ships of the north and the south equally and in common betook themselves to a large extent to the harbor and docks of that port, and it was natural, therefore, that on the outbreak of the war one of the belligerents, who must be in want of those requisites without which it was difficult or impossible to carry on war with effect, should try to avail themselves of the knowledge of their old acquaintances and their former connexions to obtain that which, for the purpose of war, they might require; and particularly that the Confederate States; being without a navy or any force of their own to keep the sea, should endeavor to repair that defect. During the last year and the present we had heard from time to time—it was a matter of common intelligence, and, he might say, history—that such attempts had been made; and, although they were not here to try any question relating to the Alabama, a well-known cruiser, yet it was a matter of common history now that that vessel had been procured at Liverpool; that she left that port without any armament, and subsequently obtained one on the sea, and that she then became, as she now avowedly is, one of the naval fleet of the southern States, and had certainly vindicated her right to that character by no very measured or sparing interference with commerce and the ships and with the citizens of the United States. The government of America had its agents at Liverpool; and it was to that government a matter of great moment that if any lawful interference exercised by the powers here could prevent assistance being rendered to the southern States, that interference should be exercised. Their agents at Liverpool were on the alert, inquiring and observing closely what might be going on, with a view to rendering assistance of the kind referred to. The information gained from time to time was communicated to the executive of this country, and at last, in the month of April, 1863, information being sent, which appeared to the crown to warrant the interference which took place, the Alexandra was seized as a forfeited vessel. She was lying at the time at the Toxteth dock, Liverpool. She had been launched from the building-yard of Messrs. Miller the month before. At the time of the seizure Miller’s men were on board of her. She was a vessel of no great size, being about 120 tons burden. She was strongly built of teak-wood, and was in many respects different from vessels employed in the merchant service; and it would be for the jury to say by and by, having regard to the vessel itself and its materials, whether the vessel had been fitted for the merchant service or for warlike purposes. The learned attorney general then described from a photograph the position of the ship at the time of her seizure and the appearance she presented. The attorney general went on to say the vessel had proceeded so far as to leave no reasonable doubt that the destination of the vessel, in whatever quarter of the world she was to be employed, was a warlike destination. The charge against the defendants was that the Alexandra was fitted out or equipped, or permitted to be equipped, to harass and be. hostile to the government and citizens of a state with whom her Majesty was at peace. There were many persons intimately mixed up with the seizure and forfeiture besides those who had put in their claim. Miller & Sons were the builders, and were in actual possession of the vessel up to the time of her seizure, although, the defendants had claimed her. The claimants were engineers, and supplied the vessel with engines and guns, and other materials that would be required for the completion of the vessel. There was one gentleman who had interfered in the matter, a Captain Bullock, an officer in the naval service of the Confederate States, and the evidence would go to show that he was, for particular purposes, an agent of the Confederate States. The same remark would apply to a Captain Tessier, who was in the service of Frazer & Co., merchants, at Liverpool, who were very much mixed up in the interest of the Confederate government. There was also a Mr. Hamilton, a naval officer in the Confederate States, standing in the same position as Captain Bullock. All these persons had more or less interfered with the building of the Alexandra: Assuming all the facts to be made out—and they (the jury) were to adopt the conclusion of skilled witnesses as to the destination of the vessel for warlike purposes—they would have to ask themselves whether it could be doubted that the Confederate government had an interest—an immediate interest—in the completion of the vessel. The attorney general then went into the evidence he proposed to call to prove his case, but as we have given it somewhat in detail below, it is needless to touch upon it further.

The Queen’s proclamation of neutrality, dated the 13th of May, 1861, was put in and read by Mr. Henry Pollock, the associate.

Edward Morgan was then called and examined by the solicitor general:

I am the surveyor of customs at Liverpool, and, acting under the orders of the crown, seized the ship Alexandra. I saw her on the stocks of Miller & Co., the builders. She was launched in the early part of March. I know Miller and two of the sons; William Miller is the father. Thomas Miller was active in the yard. When I seized the vessel men were engaged on board of her. They were fitting the stanchions for the hammock nettings. All three of the masts were up, and lightning conductors on each mast. Her gross tonnage was 153 tons by the new mode of admeasurement; builders’ measurement, she is about 250 tons. I stopped the workmen two or three days after the seizure.

Cross-examined by Mr. Karslake.

I acted under the orders of Mr. Price Edwards, the collector of customs. I had no communication with any other person. I never was at the office of Duncan & Co. I saw the vessel in the course of building. She was seized in the Toxteth dock, I have known Miller for years. He carries on a considerable business. The name is up on the yard, “W. C. Miller.” That, I think, is the only name up. I have seen Thomas Miller in the yard from time to time. He is about three and four and thirty. Mr. Miller is between fifty and sixty years of age. I have been in charge of the ship since. Our officers are on board, and I go from time to time. She has been visited by most of the customs surveyors. She has been an object of attraction. I have seen one shipwright examining her—I forget his name. He was there three weeks after I had seized the vessel. I have not seen him here. Dawson is his name, now you have mentioned it. I went to the vessel with Mr. Hobbs, an admiralty agent. I have not seen Captain Englefield there.

Joseph Acton, examined by Sir R. Phillimore.

I know the firm of Miller & Sons, and have been employed there as a day and night watcwhetnerhman. I commenced about fifteen months ago, and ceased to be so employed six or eight weeks ago. I remember the Alexandra being built in their yard.

Did you ever hear Miller or his sons speak of her by any name?

Sir Hugh Cairns objected whether any answer which might be given could be taken as evidence against Fawcett & Co., the defendants.

Sir R. Phillimore. Did you ever hear the Alexandra described or called by any name by Miller—I will not say, or his sons?

The attorney general. The question is put to show what her then character was.

The lord chief baron. That could be proved by other evidence.

The attorney general. We want to obtain some evidence of the use that was to have been made of her, or, rather, some evidence descriptive of her then state, and the character of her.

Sir Hugh Cairns objected to the question on the ground that any answer to it could not be evidence at this stage of the cause. Up to this moment there was no evidence of any connexion between Fawcett; Preston & Co., who claim the ship, and Mr. W. C. Miller.

The attorney general submitted, the question was admissible. The vessel being then under the dominion of Miller, any description he might give of her would be evidence as to her construction. Any declaration of the builder of the vessel ought to be received.

The solicitor general also urged that the question was admissible. Fawcett, Preston & Co. had, under the statute 16th and 17th of Victoria, chap. 107, made an affidavit claiming the vessel. Possession is primá facie evidence of ownership; Miller was in possession. There was no evidence of ownership anterior to the seizure.

Sir R. Phillimore was also heard on the same side.

Sir Hugh Cairns replied that possession was not to be taken as ownership; and, further, because the attorney general had opened that the vessel was being built for the Confederate States.

The lord chief baron thought the expressions or descriptions given by Miller could not be received for the purpose for which it had been offered With respect to the ownership, in one sense, when the vessel was in the hands of the builder, it was his actual property; but inasmuch as the defendants have claimed her, he must take it primâ facie to be true. Would a declaration by the builder be evidence against persons who might employ him? He is only employed for one purpose, and not to make admissions for Fawcett & Co.

The attorney general. I shall think it my duty to tender a bill of exceptions to your lordship’s ruling.

The lord chief baron. I will consult Baron Martin, who is here, upon the subject. I have no doubt about the matter myself.

Examination continued.

I know Fawcett, Preston & Co. I know Hamilton, and have seen him in Miller’s yard during the building of the vessel; he has been there frequently, once or twice a week. He noticed the Alexandra when he came into the yard. Mr. Bullock used to come with him, and they examined the vessel together more than once. I am not aware that they gave orders respecting her. I have heard Hamilton speak to Miller about her. I have heard Bullock also speak to Miller about her. I knew a Mr. Mann. He is a member of the firm of Fawcett & Co. I have seen him on board of the Alexandra, but never heard him give any orders about her. He would remain an hour or half and hour. I never saw him go on board any other vessel there. They came in with an order.

Cross-examined by Mr. Karslake.

I had nothing to do with building ships, but stood at the gate of the yard. I don’t know when I was discharged. It was about six weeks ago. Since I left them I have been driving a cab. I have seen a man named Barnes, and I don’t know, I swear, that he went to Maguire’s. Maguire is a detective officer. I have not been to the office of Duncan & Co. I don’t know that any one from them came to me. I saw Maguire three or four weeks after I left Miller. Many people came on business in the course of the day. I don’t know that it was Mr. Bullock who came. I know Hamilton, and have spoken to him. I have been in the police force, and I had left it about eighteen months when I went to Miller’s.

Re-examined.

I can’t say that I have ever heard the person I call Bullock called by that name. He never gave me his name. I am sure that I have seen him with Hamilton. The man I call Bullock is a little man, with dark whiskers and beard.

William Barnes, examined by Mr. Loch.

I live at Liverpool, and am an engine driver. I went into Miller’s employment four years ago. I drove the engine there. I left three months ago. I got a “sup” of drink and went away from my work. I remember the Oreto being built there. It was about sixteen months ago. She was launched there. The Penguin and the Steady, two gunboats, were built in our yard for the English government. I used to go on board and look over them. I know a gunboat when I see one. The Penguin and Steady were called gunboats. I remember the Alexandra being built there. She was like the other gunboats, only smaller. She is like the Oreto and the other gunboats. I remember Captain Tessier coming to our yard. He was the captain of the Phantom. She was built in Miller’s yard. The Alexandra was being built at the same time. Tessier looked more at the Phantom than the other. He used to walk round and look at all the vessels. I know Mr. Spiers, the overlooker of Fawcett & Co., the engineers. When Spiers came it was when we were boring out the stern posts of both the Phantom and the Alexandra for the screw shafts to work in. I saw the boilers put in the dock. I saw them afterwards on board the Alexandra in the Toxteth dock. Some of Fawcett’s boiler makers were on board. I have seen Mann there; he is a member of Fawcett’s firm.

Cross-examined by Mr. Mellish.

I had nothing to do with the ship-building department. There were four vessels in the yard—the Emperor, the Huddersfield, the Phantom, and the Alexandra.

Alexander Robinson, examined by Mr. Jones.

I am a joiner at Liverpool, and was formerly in the claimant’s employment I left two months ago. I used to make gun-carriages, with other things. I helped to make gun-carriages for three guns. They were pivot guns, one large and two smaller. A man name Carter was there. Several gentlemen used to come. I have seen a gentleman there called Mr. Hamilton, who looked at the gun-carriages. I know the boat Alexandra, and did a little work upon her for the pitch of the propeller shaft. I did that by order of the foreman of Fawcett, Preston & Co.

Cross-examined by Sir Hugh Cairns.

Fawcett & Co. are very extensive engineers, and make many engines and sometimes many guns, and have done so for many years. I left to suit myself better. I struck for higher wages. I went away without being discharged. Many visitors used to view the works.

Joseph Carter, examined by the Attorney General.

I was a joiner in the service of Fawcett & Co., but have now left it some three or four months. I wanted more wages. They were making machinery for a propeller boat. The boat was known by a number, 2,209. I have seen the Alexandra in the Toxteth dock since the seizure, and she is the same vessel that was called 2,209.

The attorney general asked, Have you heard the vessel spoken of in the workshop, where the machinery was being made, by any name other than 2,209?

This question was objected to, and the chief baron ruled that it ought not to be put.

Examination continued.

I know all the defendants. They always spoke of the vessel as 2,209. The machinery is fitted in the erecting-shop. I remember to have seen Mr. Hamilton there pretty often. I can’t say that he paid particular attention to the machinery; other machinery was being prepared there. When the Alexandra’s machinery was in progress, some guns were being prepared, and gun-carriages also. I was working at the carriages and slides. Each of these guns had a separate number. The smaller guns were rifled. I can’t swear to the numbers. 2,204 and 2,205, I think, were the numbers of the small guns. I cannot tell whether the machinery and guns were part of the same job. I have seen the Alexandra since the seizure. The largest gun on the carriage would stand about 4 feet, and the smaller about 3 feet. I know Mr. Sillim, who was frequently in the shop where the guns were being made; that is his particular line of the business. I have seen Hamilton with him, and heard Sillim say that improve meats would be made by compression screws, and Hamilton said he thought the screws would be an improvement. The rammers and sponges for the guns were made in a different shop. The carriages were difficult to make. They were made of English elm, and the slides of teak. The teak came from Miller’s yard. The carriages were not finished when I left. I know that there were some guns and, carriages supposed to be made for the Oreto; that was the talk of the men in the yard. Mr. Howarth prepared a drawing for a large gun-carriage. One carriage was raised 11 inches higher than it had been. Mr. Sillim wished it to be so. I did not hear either of them say for what vessel the gun-carriage was intended. The drawings always bear the number of the job. After I made the carriages I left the drawings in the shop.

Benjamin Hodgson, examined by the Solicitor General.

I was a clerk in the defendants’ packing office. I packed parcels of machinery, &c. I was to inquire for 2,209. I was not sent to inquire for gun-carriages. I was sent for machinery, bolts, &c, for that number. I never heard the ship spoken of by that number. Spiers desired me to take the rings ready up to Miller’s yard or to the gunboat. I took them to the yard, and left them in the stores. Some of the men were waiting to use them on board the Alexandra. A man has been waiting for them, saying, “Are those for the gunboat?” and I have replied “Yes.” I was often in the packing-room. I know Hamilton; he was often there—sometimes with Sillim, sometimes with Mann, and oftentimes alone. Hamilton examined the shot and shell. I could not hear what he said about it. I have met Hamilton coming fron Miller’s yard. Hamilton has been down in the yard of the defendants, and shortly afterwards the partners gave orders for the clincherings to be sent up to the boat at Miller’s yard. I recollect packing some small guns. There were three guns intended for the boat. Two guns were packed, to my knowledge, and sent down to the Wapping station at Liverpool. There were 16 or 17 packages. I never heard any one say for what ship they were intended. The packages were marked O. A. and O. B., with a diamond. I saw the delivery note. Sinclair, the shipper, had it in his hands. He is a laborer in the employ of the defendants. It is usual for the delivery note to be made in duplicate, some part to be filed in the defendants’ office. I never heard any partner say who or what Hamilton was. It is usual to give out a number or a name, when work is to be done. The machinery, &c, for the Alexandra was made to number 2,209. I have seen Hamilton inspecting that machinery when it was being made. I remember, the night before the siezure of the ship, that pump, buckets, &c, were to be sent, but an order came that they were not to go. When the Oreto was built I carried letters from the defendants to Frazer & Co. I went out with notes the evening before she sailed—one to Frazer & Co., and the other to the Tug Company’s office. I heard the note to the latter read. The Oreto sailed on the following day.

Cross-examined by Sir Hugh Cairns.

I was first employed as a laborer. I was discharged after the vessel was seized, for stopping away all day. Spiers said I was drunk, and told me to go.

Captain E. A. Englefield, examined by the Attorney General.

I am captain of her Majesty’s ship Majestic. I have examined the Alexandra since her seizure. She is built principally of teak; her upper works of other material. She is strongly built, certainly not for mercantile purposes. She would be usable for a yacht, and easily convertible for the purposes of war. She has accommodation for men and officers such as would be required in war. Her stowage is only sufficient for provisions for her crew, assuming a crew of 32. Her build is quite capable of being converted into a man-of-war, but when I saw her she had no appearance of preparations for guns. There would be no difficulty in adding those preparations; they could be easily added. She might be fitted with two of three pivot guns. She would probably carry three guns, differing in size. The bulwarks are not of the same description as those in the British service. With certain kinds of guns, the bulwarks would allow of being fired over.

Cross-examined by Sir H. Cairns.

The assumption of 32 for a crew was made on the rule in use in the British service. There were cabins for five officers, a captain’s cabin, and a mess place. They were not finished, but bulkheaded off, when I saw them. There was no difference between these cabins and such as would be used for a yacht.

Neil Black, examined by Mr. Locke, said:

I have been a ship-carpenter at Liverpool, these twenty or thirty years. I saw the Alexandra on the 20th of last March. I was on board and looked at her upper works, but I was then ordered ashore by Mr. Miller. A second time I went and measured her. She was about 127 feet long, and about 21½ feet across the beam. She was 240 or 250 tons, builders’ measurement. Her frame was British oak, and her planking teak; her frame not over strong, but the planking outside and inside stronger than usual. The beams were 2½ feet apart, and the hatchway 2 feet or 2½ feet wide. The bulwarks were stronger and lower than in a merchant ship. I do not consider this vessel qualified for mercantile purposes. She is adapted for war purposes—a handsome vessel, on fine lines, and capable of great speed. She is adapted for a gunboat.

Cross-examined by Mr. Mellish.

I have seen pitch-pine for war vessels; never for merchant vessels. I went on board the ship at the request of a New York captain.

John Da Costa, examined by the Queen’s advocate.

I am a shipping agent and steamboat owner. I know Messrs. Miller & Sons, and their manager. I did not know Mr. Miller, sen., before February or March, 1862, when I had a contract with him for building a tug. About that time Mr. Thomas Miller took me and Mr. Cookhill aboard the Oreto. I remember seeing their ship Emperor in Miller’s yard. The ship Phantom was alongside, and another vessel for the African coasting trade. I have seen the Alexandra there. I did not know her as anything but a gunboat. She was there on New Year’s day, 1863.

At the conclusion of this witness’s examination the court adjourned till the morning.

June 23.

The trial of this case was resumed this morning.

The lord chief baron, upon an objection being made to a question yesterday, said that he would consider the matter and give his decision this morning. His lordship proceeded to say: I have been requested to give my opinion upon a point raised on behalf of the claimants yesterday, and I had better do so at once. This is a case of seizure by the officers of the crown on the ground of forfeiture for a breach of the law enacted by the 59th of George III, cap. 19, sect. 7, commonly called the foreign enlistment act. The proceedings are similar to those which frequently come before this court of a seizure for a breach of the revenue laws. There is, however, this distinction: Generally it may be laid down that the law has never yet made a single attempt to evade the payment of tax or custom a crime. The subject-matter is forfeited, and there is often added the payment of a penalty, but there is no indictable offence. The foreign enlistment act makes a breach of its regulations in this respect an indictable offence, subject to fine and imprisonment. The same act or matter which condemns the vessel to forfeiture subjects the party to fine and imprisonment. Generally speaking, by the law of England there cannot be (as obviously there ought not to be) two trials for the same alleged offence—one to try whether the ship has been forfeited; another to try whether the parties are guilty of a misdemeanor. If the ship has been forfeited, the parties whose contract led to the forfeiture are guilty of a misdemeanor, and it is a manifest inconvenience that there should be two trials, possibly with inconsistent verdicts. In excluding the evidence of what Miller, sr., said, I considered that I was trying the guilt or innocence of the defendants on the record. I stated I would admit any evidence of an order or direction, accompanied by an explanation for what purpose it was given, but I thought mere admissions or statements made anywhere to anybody by Miller or his sons or men were not evidence against the present defendants; and if this record, with its 98 counts, raises the question of the defendants’ guilt or innocence, I should be of the same opinion still. But the attorney general contends that this record raises no question of the guilt or innocence of the defendants on the record, but merely of the propriety of the seizure. To explain this I cannot do better than to refer to the instance I gave of the declaration of a shoemaker of the purpose for which he was making a pair of shoes, which I thought, and still think, could not be given in evidence against a house-breaker who was found claiming them or using them; but the attorney general says I am not so using the evidence. I am justifying the seizure of the shoes in the hands of the shoemaker on the ground that it was unlawful to make shoes for the purpose for which he avowed he was making them, and that such shoes were liable to seizure; and if this be the true state of the case, it is a complete answer to the illustration I gave. The question is, is it so? It is remarkable that, although the statute has been in force for forty years, this is the first seizure that has been made under it. There is no judicial decision on the subject of its operation, and how far the coupling of crime with forfeiture makes any difference as to the admission or rejection of evidence. It is equally remarkable that in the long and able argument of yesterday no case in point was cited, and only one case at all, and that by the learned solicitor general. There is no doubt, in breaches of the revenue laws goods may be forfeited and seized by the acts of those who hold them, not as owners, but as agents, and possibly by acts quite opposed to the wish and instruction of the principal. Whether the 7th section of this act is so to be construed may, I think, be doubted. I thought it right, after the able and learned arguments of yesterday, taking into consideration as well the great importance of this case, to make some observations, and I have done so. I shall receive the evidence.

John De Costa recalled and examined by the Queen’s advocnte.

I had a conversation with Miller, sr., before the Emperor was launched. She was launched on the 8th of January this year.

The Queen’s advocate. You say you recollect having a conversation with Miller; was it about the Alexandra?

Witness. Yes.

The Queen’s advocate. Did he tell you what she was intended for?

Witness. On three different occasions.

Sir Hugh Cairns. I object to the question, and tender a bill of exceptions.

Examination continued.

He said she was a gunboat for the southern confederates. He said he had a contract for the Alexandra. He said, “We, conjointly with Fawcett, Preston & Co., are building this vessel for Frazer & Co., the agents for the Confederate States.” Upon other occasions he said something to the same effect. They all took place before the launching. The Alexandra, at the time the conversations occurred, was still on the stocks in Miller’s yard. They were planking her at that time. Miller was making a tug for me, and said something about taking the men off my tug to lay the blocks of a gunboat. He pointed to the blocks. I afterwards saw the Alexandra upon those blocks. He said that the gunboat was to be called the Alexandra. I asked him why she was to be called that. I said, “Is that the name of some State or city?” and he said it was one in the southern States. He said it was in unison with the Alabama and the Florida. He spoke of the Florida as the Oreto. I had a conversation with him in December, 1862. I said I thought there was a deal of copper going in a vessel of that size. He said the parties it was for did not care for expense. I remember nothing about guns. I know Captain Tessier and Mr. Wellsman. I have seen Wellsman in Miller’s yard when the Alexandra was building. Wellsman is a member of Frazer, Trenholm & Co. I have seen him giving orders to one of the men working on the Alexandra. He was always inspecting her. I have seen Tessier there more than once—frequently. He was always about superintending the gunboat. When I dealt with Miller I dealt with, as I thought, Miller & Sons, but I believe the contract was always signed by Miller himself only. The son Thomas was always in the yard, and had to do with all the vessels. There were two trial trips with the Emperor. The second trial was on the 3d of March this year, and I was on board of her. I saw Miller there, and Captain Tessier.

Question. In the presence of Miller the younger did Tessier say anything about the Oreto?

Sir H. Cairns objected that anything said by Tessier was irrelevant, and no evidence against the defendant.

The attorney general submitted that the question was proper and ought to be admitted. It was a part of the case for the crown to establish the agency of persons in Liverpool with the construction of the Alexandra, and it was proposed to show their connexion with vessels which were now cruisers in the service of the Confederate States. The Oreto was one of those vessels, and at present sailed under the confederate flag as the Florida. Statements made by the elder Miller relating to the Alexandra are admitted.

The lord chief baron decided the question could not be put.

Examination continued.

When on board the Emperor after her trial trip I was in the cabin with Miller, senior. Young Miller came down and called to his father. He said Captain Tessier wanted him. We both went on deck. Captain Tessier spoke to Miller, senior, about the Alexandra. He said——

Sir Hugh Cairns objected.

The lord chief baron ruled the conversation admissible, but took a note of the objection.

Examination continued.

Captain Tessier said he wanted the coamings of the main hatch three inches higher. Miller, senior, said he would not do it. What was done was according to the contract.

Cross-examined by Mr. Karslake.

I was born at Liverpool. My mother kept a sailors’ boarding-house. I kept it afterwards. I am a member of the Tug Company. I supply crews for vessels. I was once fined for a breach of the passenger act. I am a part owner of the tug Emperor. The Huddersfield and Phantom were lying one on each side of the Emperor. The Alexandra was ahead of the Emperor. The Emperor was laid down in August, 1862. Captain Tessier took the Phantom away from Liverpool. He was frequently on board the Phantom and the gunboat. I was more than twenty times at the yard when the vessels were building. I remember the second trip of the Emperor. I first spoke about the Alexandra to Mr. Dudley, the American consul. It was after the 3d of March. I did not afterwards go to Messrs. Duncan & Co. I have seen them since. I do not know that they are solicitors for the American consulate. I was afterwards examined by Mr. Hammill, solicitor to the customs. As I was coming out I saw Maguire, the detective, going in.

John Wilson Green examined by the Queen’s advocate:

I am a ship-builder at Liverpool. I remember about a fortnight ago being asked to look at the Alexandra. I was asked to make a report as to the purpose for which she appeared to have been built. I found on going on board that her bulwarks were formed differently from any vessel other than a vessel-of-war. The bulwarks were composed of teak plank, three inches thick inside and out. They were about two and a half feet deep. She had three masts and a propeller. She was about 276 tons, builders’ measurement. The rudder was unusually strong. I found that arrangements had been made for several hammock racks. They were for hammocks. The hatch ways were not suited for a merchant vessel. They were such as you would find in a small class man-of-war. I observed a considerable space before the boiler. It was not fitted for carrying cargo. I observed the forecastle. It was, such as you see on yachts and small vessels-of-war. There was a cooking apparatus on the forecastle, sufficient for 150 or 200 men. A common merchantman of the same size would have no such accommodation. There were also places fitted up like purser’s or medical officer’s rooms. On the starboard side of cabin there were two sleeping berths, with beds and drawers underneath. There was a small room fitted as a pantry. On the port side there was a room which did not appear to be appropriated to anything. The deck beams were closer together than is usual in merchant vessels.

The Queen’s advocate proposed to ask the witness, as an expert, for what purpose the ship seemed to be intended.

Sir H. Cairns objected.

The lord chief baron held the question inadmissible.

Cross-examined by Mr. Karslake.

My business has latterly been more in repairing than building. It is about twenty years since I built a vessel. My yard is in Boundary street, Liverpool. There have been some alterations, but few improvements, in ship-building in my time. I did not examine the build of the vessel below. The weight of the bulwarks did not add to the strength of the vessel; it rather tended to weaken her. I never built a despatch-boat. I never built a steamer for the opium trade. I never built a screw steamer at all. The rudder port is not stronger in screw steamers than in ordinary vessels. Hammocks are very rarely put up on the bulwarks. When put there they would have the effect of resisting shot. The ship was unfinished below. The fireplace was 3 feet 9 inches wide.

Re-examined.

The arrangement about hammock racks is very. unusual in merchant ships.

George Temple Chapman examined by the solicitor general:

I have no profession. I have lately come from the United States. I came to Liverpool in the middle of March. I went to see Captain Bullock. I called for the purpose at the office of Frazer & Co. I did not see Captain Bullock then. I saw one of the partners. I fed him to infer I was a secessionist. I did not communicate with him in any character. I saw in the office the English and confederate flags. They were in the front office. I. communicated with him about Bullock’s private affairs, and partly about the affairs of the confederate government. A person who passed as Clarence Yonge’s wife intrusted me with certain letters for Captain Bullock. I did not see Captain Bullock that day. The letters were delivered to me open. I called again and saw Captain Bullock. I referred to the letters.

The solicitor general proposed to ask whether Captain Bullock admitted Himself to be the person named in those letters.

Sir Hugh Cairns objected, that this interview was after the seizure, and that nothing that took place then could be evidence of what happened before the seizure; and, further, that the admission was mere hearsay.

The attorney general then proposed to put the question in this form: Did you communicate with Captain Bullock on the subject of the letters?

Witness. I did. While I was there a gentleman named Hamilton, son of the former governor of South Carolina, came in. He was formerly a lieutenant in the United States service. In 1861 he ceased to be so.

The solicitor general asked in what character Hamilton spoke to the witness.

The lord chief baron held that the question could not be put.

Sir Hugh Cairns said that he would postpone the cross-examination.

Joseph Acton was then recalled:

I was employed in Miller’s yard while the Alexandra was on the stocks. I only heard him speak of her as “the boat.”

Mr. Clarence R. Yonge:

I am a native of Georgia, United States, and was for some time paymaster on board the Alabama war steamer. I came from Wilmington, in North Carolina, in the ship Annie Childs, to Liverpool in 1862. I had been in the paymaster’s department at Savannah, a port then used as a naval station for the confederate forces. The secretary to the confederate navy was Mr. Mallory. Before I left Savannah I saw Bullock, who came away with me as far as Queenstown. Bullock acted in the confederate navy. He did not command a ship, but I acted as his secretary. I saw all the letters to him from the secretary of the confederate navy, and his replies to them. The letters were addressed to Mr. Mallory, at Richmond. I saw Mallory’s signature to letters. At Savannah Bullock directed the movements of the steamer Fingal, not a war steamer. There were three persons, John Lowe, Eugene Maffitt, and Anderson, on board the Annie Child with Bullock and myself. I had communications with Lowe when I was Bullock’s secretary. Anderson commanded the Fingal. I never heard Bullock give orders to Lowe. Lowe is now a lieutenant on board the Alabama. I saw him there. I left him there on the 25th of January last. I was on board of her. She is a vessel-of-war, sailing under the flag of the Confederate States, and commanded by Captain Semmes. I know that Lowe went out in the Oreta to Nassau. I have known him serving in the land service. I knew Maffitt before we sailed. He was acting as a volunteer at the fight at Port Royal. He then received an appointment as midshipman in the confederate navy. When he came to Liverpool with me he was in the navy. Anderson served in the naval service. He was acting midshipman in the confederate navy. Lowe, Maffitt, and Anderson were all serving in the Alabama when I left. When I arrived at Liverpool I continued my communications with Captain Bullock, and acted under his directions. He introduced me to Frazer, Tremholm & Co. Mr. Armstrong was the principal person with whom I was then in contact. Prioleau and Wellsman constitute the firm of “Frazer & Co.” I don’t recollect seeing any flags at their office. I saw Bullock at their office from time to time. I was there by his directions nearly every day. Our transactions were principally business ones. There was one room used almost entirely by Bullock and Hughes, a major of the war department of the confederate army. I used the room also. The persons who used the room were confederates. A person named Sinclair used to come backwards and forwards. He was a lieutenant in the southern navy, and I knew him in the south in that capacity. I transacted business with them.

The lord chief baron (to the attorney general.) What they did there does not appear to be of any importance. What they did elsewhere is a very different thing. Whatever may be the account this witness may give of the business transacted in that room is wholly unimportant. You must show that something came out of it—out of that room.

The attorney general. I want to direct the witness’s attention to acts done.

Examination continued.

When I got to Liverpool my appointment was not made out. I was in Liverpool from the 11th of March to the 9th of July, and I then left Liverpool in the Alabama—then called the Enrico, and sometimes spoken of as “290.” She was built by Messrs. Laird, of Birkenhead. She had no armament on board; at sea she received her armament, and hoisted the confederate flag. I sailed under the command of Captain Semmes. Other officers were brought to join the Alabama in the Batavia—Sinclair, Semmes, and Gordon. Bullock went out with the Batavia and returned with her before I left Liverpool. I acted as paymaster in the confederate navy, and made payments in that capacity. (Paper handed to the witness.) That is Bullock’s signature. This paper was given to me on board the Alabama. I had no writing. I had orders by Bullock, but not in writing, to act as paymaster at Liverpool. I made payments to confederate officers as paymaster. I made requisitions for money to Captain Bullock and he gave me an order on Frazer & Co. I delivered Bullock’s order to them, and left them there. [The attorney general called for the original document. Five orders were produced.] I had pay-rolls. They are now on board the Alabama.

One of the orders was read: “It was drawn on Frazer & Co., signed by Bullock, for £246 for officers pay.”

Examination continued.

I paid the money to officers under those orders. I paid Captains Bullock, Lowe, Anderson, Mathie, Irving, Bullock, Sinclair, Cuddy, and Hamilton. I paid them as officers in the confederate navy. I paid Hamilton as a lieutenant. Hamilton came to Liverpool after I did. I left him there when I went out in the Alabama. I have not seen him since. (A paper was put into the hand of the witness.) I received this paper from Captain Bullock on board the Alabama.

The attorney general proposed to put it in to prove that the witness was appointed paymaster.

After some discussion it was admitted and read. It was an appointment of the witness as paymaster by Captain Bullock, under the authority of the secretary of the confederate navy.

Another paper was put into the witness’s hand. This was a letter of instructions he received from Captain Bullock.

The attorney general proposed to read the letter.

Sir Hugh Cairns objected, on the ground that it was res inter alios acta.

The attorney general urged that the fact of the witness having been authorized was already admitted, and that the precise nature of his instructions was admissible on the same ground.

The lord chief baron ruled that the document could not be read.

Examination continued.

I saw many vessels captured and destroyed by the Alabama. I saw the guns on board the ship. I cannot pledge my oath as to the name of the makers upon them. Allotment tickets were made out for the wives and relatives of the crew of the Alabama. They were all signed by me. They were also signed by Captain Semmes. The Bahama was under the command of Captain Tessier. The Azupia also came out. Stores were shipped on board both for the Alabama—guns, &c. I received two gun-carriages and guns from the Bahama, as well as stores. Herring and Mrs. Parkinson are here, I believe.

Cross-examined.

I paid others and myself. I paid Mr. Clarence R. Yonge—that is, myself. I was raised in the State of Georgia, and came to England in March, 1862. I had been living in Savannah.

Mr. Karslake. You left your wife and children at Savannah?

Witness. Am I obliged to answer?

Mr. Karslake. Have you any objection?

Witness. Yes. I don’t see what my family affairs have to do with this case.

The lord chief baron. I must explain. In this, as well as every other court, it is usual to ask if people have conducted themselves in a manner which is calculated to affect their credit.

Witness. Very well. I left them there. I left my wife and child at Savannah. I never was in the confederate army. I made Bullock’s acquaintance shortly after the arrival of the Fingal. I wrote letters for Captain Bullock here—some of them, but not all. I came over with him, but was in the employment of the confederate government. I am not a spy in the employment of the federal States. (Paper handed to witness.)

Mr. Karslake. Is that your signature?

Witness. I wrote that letter.

Mr. Karslake. When in England with Bullock were you communicating all that passed to the United States government?

Witness. I was not.

Mr. Karslake. When did you first make the acquaintance of Mr. Adams, the American minister?

Witness. About March this year.

Mr. Karslake. Is it true that you gave him valuable information respecting the Alabama?

Witness. I did, after my cruise in her. I am not a secessionist now, at any rate. I received my pay in Kingston from the Alabama up to the 25th of January, 1863. I have not had confederate pay since. She had been in the port when I left her. She sailed that night.

Mr. Karslake. Did you drop overboard and go ashore?

Witness. Not exactly. I was allowed to come on shore, and did not return.

I knew it was the intention of Semmes to sail that night. I did not think the work too hot for me.

Mr. Karslake. You left and became a northerner?

Witness. Anything you choose to say. The Alabama was not watched by the United States vessels. I remained at Kingston. I did not marry a mulatto woman, who passed as my wife at Liverpool. I married a woman who now passes as my wife. She was a young widow, in whose house I had been lodging. There was a sale afterwards of nearly all her property. There was a negro boy not sold. I may have said that if we took the young nigger down to Charleston he would sell for £100 there. The nigger boy is about fourteen years of age; he is in Liverpool now. I was last there about a month ago. I arrived in Liverpool from Kingston between the 20th and 25th of March. I lived a short time at the Angel. I went away from there. I am not aware I went to New York. I left Liverpool. I left my wife money, She was not particularly destitute that I am aware of. Her mother was with her, and she has plenty of money. I came up on my own business. I had not fully made up my mind to see Mr. Adams, the American minister. I saw him after advice. I had only one statement to make, which I made to the American government at that time. I did not go to his excellency to be questioned. I had not made up my mind to leave the southern States, but to leave the Alabama. I did not come over for the purpose of giving information, but I have done so since. I have not an appointment yet in the United States service. I have been living in Lancaster and London. I met Mr. T. H. Dudley the day I called on Mr. Adams. Mr. Dudley is the American consul at Liverpool. I was in Liverpool five or six weeks ago. I have cut myself off from sources I previously possessed. There are circumstances which prevent me from remaining in England. (A letter was here handed to the witness.) I was not entirely out of means at this time, but very nearly. At the time I wrote this letter there were no circumstances which prevented me from remaining in England. When I made that statement I thought it was necessary for me to go. If it had been deemed necessary for me to return from New York to finish the work I had begun for the United States government I would have done so. If I have seen Maguire I don’t know it. I had not seen Mr. Hammill at Liverpool.

Edward Fitzmaurice examined by Mr. Locke:

I was cook on board the Alabama. When I joined her she was called the 290. About twenty men went with her from Birkenhead. I got to her by a tow-boat, and found the Alabama down channel near the Welsh coast. I went as a sailor first. I worked about the decks for two months. I was asked if I would go as steward to the officers.

The lord chief baron. What is the good of proving more about the Alabama?

Mr. Locke. The witness speaks of the course of the Alabama all through.

The attorney general. That, my lord, is the case for the crown.

Sir Hugh Cairns commenced his address to the jury, but had not concluded when the court rose.

June 24.

This case was again resumed.

The case for the crown having finished last night, Sir Hugh Cairns commenced his address to the jury on behalf of the defendants, and had not concluded when the court adjourned; but before Sir Hugh Cairns commenced his address Mr. Mellish said that he wished to have on his lordship’s note an objection that the defendants wished to take, namely, that an equipment, with intent to cruise and commence hostilities necessarily involved an arming in this country; that if the ship were to sail from this country in an unarmed state, and the intention of the parties was that she should sail in an unarmed state, that was not sailing with intent to commit hostilities within the meaning of the seventh section; and that there was no evidence in this case of an intention that she should be armed in this country.

Sir Hugh Cairns said that he had the honor of appearing for the firm of Fawcett, Preston & Co., who were merchants extensively engaged in manufacture at Liverpool. His learned friend the attorney general had remarked in his opening speech that it was singular that none of the defendants bore the names of the firm under which they traded. That was not the case, for Mr. Preston, one of the members, was still alive. It often happened that when commercial employment ended successfully the partners retired in quick succession, making room for others to come in, but the original trading name of the firm was carefully preserved. The defendants, as the jury had heard, employed about nine hundred men, and performed all kinds of work in steel and iron manufactures, not only for peaceful purposes, for they were not only manufacturers of engines for steamboats, but made guns and munitions of war, such as shot and shell, which might be seen lying about their premises. It was true that the defendants, on the 6th of April, were the owners, and the bona fide owners, of the ship Alexandra, the seizure of which formed the issue in the present case. After she had been launched she had been taken down to the Toxteth docks and there placed without the slightest attempt at concealment, and might have been seen by all the world if there had been any curiosity about the matter. She had been seized by a custom-house officer on the allegation that she had passed away from whoever might be her owner, and had become the property of the crown, because a misdemeanor had been committed. Such a seizure could only be justified if the allegation could be sustained; but if not, then the ship did not belong to the crown, and there was no justification for taking her from her owner. The crown must have had some information. It was understood that depositions had been made, on which they had acted. Spies were about, and had been at work; and if the information which they had supplied to the government had been intimated to the defendants) a very great deal of expense and trouble might have been spared, both to the crown and the defendants, for the crown would have been made aware that the proceedings were misconceived, and could not be supported. The mode of proceeding in this case was upon an information—a somewhat amusing and ironical term, because he need hardly say that voluminous as it undoubtedly was it neither gave nor conveyed any information to anybody, and perhaps that was the reason why it had got its name. It was extremely desirable to consider the opening of his learned friend the attorney general to see the nature of the case put forward by the crown. Although, as had been stated, the act had passed so long ago as 1819, it was a very significant and remarkable fact in the case that, although wars had taken place in Europe and other parts of the world, during the whole of which time we had remained neutral, the commerce of this country had not been disturbed or interfered with, yet there had not been a single complaint of any merchant or ship-owner having done anything that came within the scope of the foreign enlistment act. It had been said that the United States had their agents, who had been on the alert, and thought they had a right to complain of what was being done at Liverpool, and urged upon the crown that the foreign enlistment act should be put in force, and that had been done accordingly. This was a matter of notoriety; no one could pretend to be ignorant of that fact. There had been great anxiety on the part of the United States of America to try and see if they could stir the government of this country to meet their complaints. The law officers of the crown had possibly said, “There is no doubt we have a foreign enlistment act, but we don’t think that you have any case. However, if you think otherwise, you may come and try your case before a jury, and we will do all we can; but if you fail, don’t blame us.” He would ask the jury to consider the manner, in, which the attorney general had put the information against the defendants. He would only deal with the four charges, The first stated that there were many persons mixed up and implicated together in the proceedings, and described them; the second parties were the house of Fawcett, Preston & Co., the defendants; the third was the firm of Fraser, Trenholm & Co.; and the fourth, Captain Bullock, Captain Tessier, and Butcher. The attorney general had said that they were all mixed up together in the transaction; that these persons equipped, furnished, and fitted out the Alexandra with the intent to cruise and commit hostilities. They had done this that the vessel should be employed in the confederate navy; that this had been done to commit hostilities against the government of the United States. These were the real charges that the crown relied upon, and they said the ship in question was to be employed in the manner charged. There could be no mistake as to what the charges were. They constituted, under the foreign enlistment act, a misdemeanor against all the parties concerned. The learned judge had said that he was not trying a misdemeanor for the purpose of a criminal sentence. That was quite accurate; but the jury were to bear in mind that if the acts complained of were within the foreign enlistment act at all, they constituted a misdemeanor within that act; there was consequent upon and incident to the crime and the misdemeanor the forfeiture of the ship; but there was the crime declared by the act of Parliament. The defendants were charged with being participators in an act which was made a misdemeanor by the law of the country. The attorney general had said that he would prove that the Alexandra could be easily converted into a man-of-war, and that Captain Bullock, Captain Tessier, and Mr. Hamilton were about the building and workshops looking after the vessel, and talking about her, and interfering with her; and that he would show that those persons were acting as agents for the confederate government, and they, the jury, were asked to put together the little scraps of evidence with which the crown attempted to support its case, and say it was proved unless the defendants came into the box and explained to the crown everything which the crown might choose to require explanation of. Because the crown could not prove a case of forfeiture, because in their judgment something may look a little suspicious, they wished to throw the burden on the defendants of coming forward and proving their case. He asked the crown to prove how it was that on a bright day in Liverpool their officers walked in and seized the ship, which they had no more right to do than the jury had. He could not help contrasting what his learned friend the attorney general in opening the case had said with the doctrine he had heard from a very able expounder of the law upon the duty of the crown in cases like the present. He would read to the jury what was supposed to be the duty of the crown in putting forth the foreign enlistment act. A good deal had taken place with regard to the Alabama. The American government was very much dissatisfied that the British government did not try some parties about the Alabama. He was sure he had no idea whether any offence had or had not been, committed, but he knew perfectly well the answer which had been given in that case, and which had been laid down by one of the law advisers of the crown, his learned friend the solicitor general, in another place, and that was, “The United States have no right to complain if the act in question is enforced in the way in which English laws are usually enforced against English subjects on evidence, and not on suspicion; on facts, and not on presumption; on satisfactory testimony, and not on the mere accusations of a foreign minister or his agents. 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 was not intended to do so.” Here sat his learned friend who had laid down those sound and constitutional principles.

The solicitor general. And I adhere to every word of that.

Sir Hugh Cairns continued: He knew his learned friend too well to suppose that he would depart from that statement. He (Sir Hugh Cairns) would ask the jury to apply the opinion of one of the law officers of the crown to the opening of the attorney general when he said that he had no facts, but would prove something that would lead up to presumption. He would say a few words about the policy of the foreign enlistment act. The question in the present case was a great and important one—a much greater question than the value of the Alexandra; it was one of the gravest importance to the mercantile interests of the world. As to the proclamation of neutrality, that was made simply to inform the people that there was such an act as the foreign enlistment act, and that this country would remain neutral. It had been truly said that an unfortunate war had sprung up in America, and that we were neutral in that war, It was important that we should understand the duty of the subjects of this country, as the subjects of a neutral power, in a commercial point of view. Enlisting in the army of a belligerent was undoubtedly an offence, but, putting aside for a moment the foreign enlistment act, beyond all doubt it was the free and undisputed privilege of a neutral power, there being a war between two belligerents, to trade with either or both, to sell ships or arms and munitions of war, and every requisite for war which could be supplied. Unless that privilege be limited by act of Parliament, the subjects of a neutral power had a right to exercise it. If common rumor could be trusted, those persons who now co-operate with the crown had benefited as largely as the other parties in the American contest; at all events, they had a right to do so. The intention of the foreign enlistment act never was to fetter or impair bona fide commerce in any way. It was intended to prevent warlike expeditions leaving the ports of this country in a form in which they could do injury to belligerents, and thereby enable one of them to come here and complain that we had permitted ships fully armed to leave our ports ready to make captures. They would say, “We cannot pursue your ships into your ports; we cannot go into your ports to take out a privateer, and yet you allow privateers to go out of your ports.” That was an intelligible principle. He would say a few words about the history of the act of 1819. The Spanish colonies had revolted against the mother country, and were struggling for their independence in just the same way in which the southern States are said to be struggling now. Great interest was felt for the Spanish colonies in this country, and there was a great disposition on the part of many persons here to get up an expedition, to enlist men, and to arm ships to be sent from our ports to scour the seas in favor and support of the revolted colonies. A Sir Gregor Macgregor, a sort of commander-in-chief in this country, marshalled his men, put them on board vessels and sailed, and commenced hostilities, with very great injury to Spain. The Spanish ambassador remonstrated, saying that we were his allies, and begged a stop to be put to such warlike expeditions. He would read to the jury a few passages from Sir Archibald Alison. The learned counsel, after reading about a page of Alison, giving an account of the expedition, went on to say that the foreign enlistment act had been expressly passed to put an end to expeditions like Macgregor’s, He could not help feeling that it was worth while observing the state of the country described in a few sentences at that time by one of the greatest ministers this country ever had—the author of the foreign enlistment bill, Mr. Canning. That gentleman had had a great deal of opposition to contend against in the House of Commons; and he put the state of things in this way: “What would be the result if the house refused to arm government with the means of maintaining neutrality? Government would then possess no other power than that which they exerted two years ago, and exerted in vain. The house would do well to reflect seriously on this before they placed government in so helpless a situation. Did the honorable and learned gentleman think it would be a wholesome state of things that troops for foreign service should be parading about the streets of the metropolis without any power on the part of the government to interfere and prevent it? At that very moment such was the case in some parts of the empire, and he had little doubt that in a very short time the practice would be extended to London.” In another part of the same speech Mr. Canning had said:

“Ministers did not apply to Parliament for this aid until they had tried without effect all the means that were in their power. If they were not now vested with the requisite authority; if before the next summer the country should exhibit the scandalous and disgraceful scene of lawless bands of armed men, raised for foreign service, parading through the streets, let not ministers be blamed, for they had warned Parliament of the danger, and had called on them to prevent it.” The kind of evil, continued Sir Hugh Cairns, to be guarded against was the fitting out regular expeditions with arms and with troops in this country. Now let the jury consider the preamble of the foreign enlistment act; it said, “Whereas the enlistment or engagement of his Majesty’s subjects to serve in war in foreign countries without his Majesty’s license, and the fitting out and equipping and arming vessels by his Majesty’s subjects for warlike operations in or against the dominions or territories of a foreign prince, may be prejudicial to and tend to endanger the peace and welfare of this kingdom” This was directed against persons engaged in war on their own account; that was the essence of the offence as described in the act of Parliament. If the sovereign chose to remain neuter it was not to be tolerated that some of his subjects should carry on war themselves. The subjects had no right to interfere with the exercise of the rights of the sovereign. Carrying this view into the present case, it would give a very clear explanation of the 7th section of the act. The gist of the offence charged was that it must be committed within the United Kingdom. If the act be done by one of her Majesty’s subjects out of the United Kingdom it amounts to no offence at all; and that carried out what he had submitted, that the object of the act of 1819 was to prevent the ports of this country from becoming arsenals, out of which expeditions might issue in the way described. There was not the least prohibition in the act against building a ship or vessel, nor was a word said about selling a ship or vessel; there was nothing said that it was an offence subject to the penalty of forfeiture. The only words were those which suppose that a ship had to be built, because the words were “equip, fit out, or arm a ship or vessel.” A vessel, of course, could not be armed, &c., until built. The building of a ship was, therefore, a harmless act. Now, the rest of the section was directed against a person who was supposed to equip, fit out, or arm a vessel with the intention of cruising on his own account, and committing hostilities against a foreign nation. She must be equipped and ready armed for the purpose when she leaves this country. It was perfectly competent for any person to build a ship easily convertible into a ship-of-war, and sell that ship to any belligerent power; and the fact that the seller knew that she was to be employed as a war vessel had nothing to do with the question. He was not the person who armed and equipped the ship to cruise and commit hostilities, unless he had the intention of arming her in such a way that when she left the port she would be in a condition to commit hostilities. The 8th section of the act threw some light on the matter. That allowed foreign ships-of-war to put into our harbors for repairs, and the only restriction put upon them was that they should not have the number of their guns increased or changed, but anything else might be supplied to them short of warlike equipment. You will remember the vessels Tuscarora and Nashville, both of which had sustained damage, and were allowed to repair at Southampton, because that with which they were fitted was not a warlike equipment. The construction put upon the act by the defendant in this case, although we had not had a case in this country tried under it, had received the sanction of eminent lawyers and statesmen here from time to time, and by authorities for which those persons who promoted the present prosecution by the crown would have respect; he alluded to the authorities of the American Supreme Courts. A similar meaning had been put upon the American foreign enlistment act, the true precursor of our act. At the time when the American foreign enlistment act passed, that great and illustrious man who swayed the destinies of America—he alluded to Washington—issued ordinances to the various American ports, informing his 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—the fight was between England and France. He said the first thing in the immediate service of any of the belligerents which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or to war, was deemed lawful. If the equipments were of a doubtful character, if they would be useful to a vessel-of-war, or if they would be useful for purposes of commerce, then those equipments were to be made. Any equipment of the vessels of France in the ports of the United States, which were doubtful in their nature as being applicable to commerce or war, were considered lawful. Thus it would be seen that during the past year of the American enlistment act this construction had been put upon it by the greatest man America had ever seen. In 1830, when our cruisers fired upon the expedition at Terceira, which left our shores in vessels brought here by some refugees, and which vessels got an armament at sea, a stormy debate arose in the House of Commons about the legality of the conduct of our cruisers. It was true that these vessels did not leave our shores armed, but they had done almost the same thing, that was, sent on their guns and munitions to meet them. That was an offence against the act for which they might have been tried, and that was the defence urged for the conduct of our vessel. Mr. Huskisson was at that time in the House of Commons, and some person said in the debate that the policy of Mr. Canning would have approved what had been done with reference to these ships off Terceira. He (Sir Hugh Cairns) would now direct the attention of the jury to Mr. Huskisson’s own policy on the foreign enlistment act. The learned counsel here read Mr. Huskisson’s remarks in the house upon the affairs at Terceira, (Parliamentary Debates, New Series, Vol. 24, pages 208, 9, 10.) In page 209 Mr. Huskisson said:

“Arms may leave this country as matter of merchandise, and however strong the matter of 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.”

Although, continued Sir Hugh Cairns, there never has been a case tried where the policy of the foreign enlistment act has been brought before a court, yet minister after minister had been applied to to interfere on the principle and policy of the act. What had Mr. Canning said when applied to on behalf of the government of Turkey:

“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 offence against the act of Parliament, and I extend that to steam vessels and yachts equally.”

That was vessels being capable of being converted into ships-of-war; and if that were not so, there would be an end to the advantage which this country had in the building of ships; and the country, instead of being preserved neutral, would not be kept out of war for one year. If the subjects of this country were to be shown that their commerce was to be tampered with and harassed at the will of one or the other of the belligerent powers, the people would say “Then 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, in furtherance of what he had said, he would tell the jury of a very remarkable case that occurred in America. There was a ship called the Independenza; she had made a prize at sea about the year 1821-‘22, and the question was whether the prize was a lawful one, and a suit was instituted in the Supreme Court of the United States. It was said that the Independenza had herself broken the enlistment act. She had left port in a time of war between foreign countries, and when the United States was neutral. She left as an armed vessel to be sold, and to be transferred to one of the belligerent powers. Therefore, having so left, any prize made, it was argued, would not be a lawful capture. Mr. Justice Story, the most illustrious of all American lawyers, decided that there was no pretence for saying that the fit out for the original voyage was illegal. It was simply the sale of a commercial adventure. That was the decision of the greatest authority in law the Americans ever had. What had been done he decided was not contrary to the foreign enlistment act. He would state another case reported in Curtis’s decisions in the Supreme Court of the United States. The question was, whether a vessel called the Alfred had been fitted out as a privateer in violation of the United States enlistment act, the United States being a neutral power. The decision was in favor of the ship, and there was another case, also an American one, where the facts were the same as one stated in the earlier part of his speech, where the decision was the same. Here were two authorities from America whose minister was the instigator of the present proceedings. The enlistment act was not intended to prevent any speculation in ships. The crown must bring home to the defendants a proof, and clear proof, of an intention to take a part in the war between the conflicting parties. The evidence adduced by the crown had not only failed to prove a forfeiture, but had disproved it. There were two questions for the jury to consider: first, was the vessel equipped, fitted out, furnished, or intended to be so, so as to be ready to commit hostilities against anybody; secondly, was she equipped or fitted out with the intention that she should be employed by the Confederate States to cruise and commit hostilities against the federal States? The learned counsel then went through the evidence that had been adduced on the part of the crown, and making such comments upon the testimony of the witnesses as he thought necessary. Sir Hugh Cairns continued, saying, see to what straits the crown had been driven when their witnesses included five discharged workmen, one crimp, and two spies. The question was, what was the vessel Alexandra at the time of the seizure? Captain Inglefield had said that she was capable of being converted into a ship-of-war, but he was obliged to admit that she was without the special equipments of such a vessel. On the contrary, her fittings were of the ordinary character. George Temple Young had gone to the office of Fraser & Co. and represented to one of the partners that he was a compatriot, a secessionist, in favor of the southern cause, and with that lie upon his lips he endeavored to beguile the partner into admissions with regard to the Alexandra. He had been sent as a spy for that purpose, but, notwithstanding the imposture, he had not succeeded in eliciting anything. He now came to the great witness in the case whom the crown reserved to the last, and brought forth with some pomp and ceremony—Clarence Randall Yonge. How was he to describe that specimen of humanity, “raised,” as he had stated, in Georgia—a man who commenced his career by abandoning his wife and child in his native country; who wormed himself into the confidence of Captain Bullock became his private secretary, and had access to his papers; who was accepted as the companion of those engaged in the confederate cause, and persuaded them that he shared the feelings and patriotism which actuated them; who came over to England, where he assumed the same character, and, being received by Fraser & Co., became possessed of every secret as to those engaged in the war on the part of the southern States; who accepted a commission from his native country in her service, became an officer enrolled in her navy, and owing allegiance to her, received her pay, and distributed her money; who then became a deserter, slipping overboard on leaving the ship of which he was an officer, in order that he might, by the lying pretence of marriage, effect the ruin and plunder of her property a young widow who had the misfortune to entertain him in her house; who succeeded by that pretext to possess himself of her property and then brought her to Liverpool, where he turned her adrift, penniless in the streets; who then hurried up to London, to pour into the ear of Mr. Adams, the American minister, his tale of treachery; who had betrayed every one of his familiar friends, every one of his fellow officers in the cause of the country to which he had promised allegiance; who stood in the box before the jury and denied no crime, and blushed at no villainy, and only, indeed, seemed indignant when it was suggested that he had committed bigamy with a mulatto woman, and not a white woman, and then all his feelings of self respect recoiled, and he indignantly denied the charge? This man was put forward at the end as the climax of the case on the part of the crown, but really he was not the witness of the crown, but the witness of the minister of the United States. To Mr. Adams had Mr. Clarence Yonge told his tale, and it was he who listened to it, instead of driving from his door the miscreant who must have polluted the very air he breathed, and who handed him over to the crown to be brought before a jury of Englishmen, in order that they might hear the tale which this unmitigated villain told. Knowing the straightforward and honorable character of the attorney general, he could easily imagine how he must have loathed and recoiled from the task he performed when reading the brief of the American minister. The jury must have observed how fatal had been the course adopted by the crown in calling Yonge to prove what occurred on board the Alabama, which had nothing to do with the Alexandra, and this person’s evidence had put an end to any shadow or fragment of a case on the part of the crown which rested on other, parts of the evidence. The learned counsel concluded by saying, “You have power by your decision to paralyze the commerce and industry of our ports. You may fetter honest and straightforward ship-building in the country and drive it to a neighboring country which is quite open and willing to accept it. You have it in your power to rejoice the hearts and quicken the energies of the spies and informers who infest our dock-yards, and appear to throng the ante-chamber of the American minister. You have it in your power to do all this by finding a verdict for the crown; but, on the contrary, you have it in your power to achieve a far better and higher result. You have it in your power to show the American government—and in all courtesy, good feeling, and good fellowship—that upon one thing you are determined, and that is, to have our laws applied, not upon suspicion or presumption, but upon clear legal proof. You have it in your power to show that the neutrality we have adopted in this unfortunate war has been adopted not to hamper and destroy, but to foster and promote the development of our commerce. Above all, you have it in your power to show that just as we will not change our laws, so also we will not stretch or strain or warp our laws to suit the temper of a foreign minister, or the exigencies of a foreign state. You can do that, and I trust you will do it in this case, by returning a verdict against the crown and for the defendants.”

The attorney general made a very forcible reply on the part of the crown upon the whole case. The crown, had simply asked, taking the most lenient course that they could under the circumstances, that the ship Alexandra should be forfeited.

The lord chief baron. Is it lawful for a ship-builder to build a ship which is capable of being turned to warlike purposes, with the view of offering it for sale to a belligerent to be used against a power with which we are at peace?

The attorney general. I would rather confine my answer to this: all we allege is that the ship was built with the intention that it should enter the service of another power at war with a power with which we are at peace. We do not allege anything more than that that would create an offence.

The lord chief baron. I have no hesitation in saying that, according to all the decisions, a ship-builder has as much right to build a ship and sell it to either of the belligerent parties as the maker of gunpowder or of muskets or any other warlike implements has to sell any of those articles to the same parties. It is laid down in Kent’s Commentaries on the American Law, that it is the right of neutral subjects to supply both belligerents with arms and all munitions of war; and why should they not supply ships?

The attorney general said he did not controvert that proposition, but denied that it was raised in the present case.

At the conclusion of the attorney general’s reply, his lordship, in summing up, said, this is an information on the part of the crown for the seizure and confiscation of a vessel that was in course of preparation, but had not been completed. It is admitted that it was not armed, and the question is, whether the preparation of the vessel in its then condition was a violation of the foreign enlistment act. The information is an exceedingly long one, but the main question you will have to decide is this, whether, under the 7th section of the act of Parliament, the vessel as then prepared at the time of seizure was liable to seizure. The case you have to decide is no doubt one not merely of great importance, but really it is a momentous question, and the importance of it it is impossible to exaggerate. It is one that produces varied sentiments—sentiments of the deepest regret that such a question should have ever arisen; and I cannot help expressing the deepest, utmost anguish which one feels that such a question should have arisen by the dissension among those who are connected with us by the dearest possible ties that can bind nation to nation—a common lineage, a common language, common laws, a common literature, and, above all, by a strong desire for constitutional freedom. I, for one, protest against the doctrine that no man is to be convicted of any crime if there is any possible solution of the circumstances by any imagination of his innocence; but there must be at all times a thorough, sober persuasion and satisfaction with respect to the guilt of the party accused, and undoubtedly you must act upon proof, and not upon suspicion. With these remarks, I go at once to the statute under which these proceedings are taken. The statute was passed in 1819, and upon it no question has ever arisen in our courts of justice; but there have been expositions of a similar statute which exists in the United States. I will now read to you the opinions of some American lawyers who have contributed so greatly to make law a science, and, indeed, I may say an agreeable one. His lordship then read passages from Story and others. These gentlemen are authorities which show that when two bell gerents are carrying on war a neutral power may supply without any breach of international law, and without a breach of the foreign enlistment act, munitions of war—gunpowder, every description of arms, everything, in fact, that can be used for the destruction of human beings.

Why should ships be an exception? I am of opinion, in point of law, they are not. The foreign enlistment act was an act to prevent the enlistment or engagement of his Majesty’s subjects to serve in foreign armies, and to prevent the fitting out and equipping in his Majesty’s dominions vessels for warlike purpose without his Majesty’s license. The title of an act is not at all times an exact indication or explanation of the act, because it is generally attached after the act is passed. But in adverting to the preamble of the act I find that provision is made against the equipping, fitting out, furnishing, and arming of vessels, because it may be prejudicial to peace in his Majesty’s dominions. The question I shall put to you is, whether you think that vessel was merely in course of building to be delivered in pursuance of a contract that was perfectly lawful, or whether there was any intention, in the port of Liverpool, or any other English port, that the vessel should be fitted out, equipped, furnished, and armed for purposes of aggression. Now, surely, if Birmingham, or any other town, may supply any quantity of munitions of war of various kinds for the destruction of life, why object to ships? Why should ships alone be in themselves contraband? I asked the attorney general if a man could not make a vessel intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it, would not that be lawful? To my surprise the learned attorney general declined to give an answer to the question, which I think a grave and pertinent one. But you, gentlemen, I think, are lawyers enough to know that a man may make a vessel and offer it for sale. If a man may build a vessel for the purpose of offering it for sale to either of the belligerent parties, may he not execute an order far it? That appears to me to be a matter of course. The statute is not made to provide means of protection for belligerent powers, otherwise it would have said you shall not sell powder or guns, and you shall not sell arms; and if it had done so, all Birmingham would have been in arms against it. The object of the statute was this: that we should not; have our ports in this country made the ground of hostile movements between the vessels of two belligerent powers, which might be fitted out, furnished, and armed in those ports. The Alexandra was clearly nothing more than in the course of building. It appears that, according to Webster’s Dictionary, equipping is furnishing with arms and furnishing is given in other dictionaries as the same thing as equipping. It appears to me that if true that the Alabama sailed away from Liverpool without any arms at all as a mere ship in ballast, and that her armament was put on board at Terceira, which is not in her Majesty’s dominions, then the foreign enlistment act was not violated at all. The most important evidence is that given by Captain Inglefield, who gave a very moderate statement, and has been spoken of on both sides in the highest terms of approbation, and I think myself his evidence was very fair and candid. After reading some of the evidence, his lordship said if you think that the object was to furnish, fit out, equip and arm that vessel at Liverpool, that is a different matter; but if you think the object really was to build a ship in obedience to an order in compliance with a contract leaving those who bought it to make what use they thought fit of it, then it appears to me that the foregin enlistment act has not been broken.

The jury immediately returned a verdict for the defendants.

The attorney general tendered a bill of exceptions to the lord chief baron’s ruling.