Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-eighth Congress, Part I
Mr. Adams to Mr. Seward.
Sir: I have the honor to transmit copies of the Morning Post which contain reports of the proceedings thus far, in the court of exchequer, on the case of the Alexandra, on the question of an appeal from the ruling of the chief baron, at the trial held last spring. It now appears that the chief Baron declines to sign a bill of exceptions because it imputes to him certain legal declarations which he never made, and objects to him that he did not give instructions which he avers were the very ones he did give. As a consequence, a technical barrier was at once raised against further operations, which proved so difficult to remove, that resort was finally had to the extraordinary step of creating a new rule for the purpose of admitting a motion on the part of the government. Thus far the new attorney general seems to have succeeded in forcing his way out of this court. But he has yet some further difficulties to overcome before he can get into the exchequer chamber which, from the intimations made at the opening, would seem to be fully prepared to receive him.
* * * * * *
I am now rather hopeful of a better final result than I was in the spring. There has been a marked alteration in the tone of the leading newspapers, which will not fail to produce its effect on the classes which they reach. A copy of the Globe of the 4th instant, containing a leader on the subject, is herewith transmitted.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
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COURT OF EXCHEQUER.—Nov. 3.
Sittings in Banco in Michaelmas Term.—Before Lord Chief Baron Pollock, and Barons Bramwell, Channell, and Pigott.
The lord chief baron, on taking his seat on the bench, said: The ordinary practice is to take, first of all, the peremptory paper in the first two days of term; but, Mr. Attorney General, as I presume you are in attendance on the business of her Majesty, you are entitled to pre-audience.
THE ATTORNEY GENERAL vs. SILLIM.—THE CASE OF THE ALEXANDRA.
The attorney general. My lord, I came here to apply to your lordships not at present to go into any motion which will involve any lengthened discussion or argument, but to give me longer than the ordinary time appointed to us for the purpose of making, if it should become eventually necessary, a motion for a new trial in the case of the “Attorney General vs. Sillim,” which was tried before your lordship at the last sittings after term, and concerned the forfeiture of the ship Alexandra. It will be in your lordship’s recollection that your lordship on that occasion laid down the views which you thought ought to govern the jury as to the construction of the foreign enlistment act. Your lordship did so in a manner which we thought perfectly clear and intelligible to all persons. There was no difference whatever in the understanding of your lordship’s ruling on the part of the counsel for the crown, and we have no reason to suppose it [Page XLI] was otherwise as regards the counsel for the defendants, or that it was generally understood in any other sense than that in which we understood it. At the end of the trial we expressed a wish to offer, in the usual manner and form, exceptions to that ruling, and we were told that it was not necessary at all to stand upon form. His lordship said, “I will accept any bill of exceptions you wish to tender,” and accordingly after the verdict we wrote out the principal points which we understood he had laid down; but his lordship said we were not to he bound by what passed on that occasion, and that the matter could be easily settled. Of course we were in hope that there would be no difficulty at all in consenting to a bill of exceptions. The case involved a point of very great importance, most fit for exceptions to the solemnly tendered for, in order that it might go to a court of error, and, if necessary, to the last court of appeal. We are most anxious that the question should be so raised and determined, and we have no reason to doubt that the other side is equally so, but hitherto there have been difficulties in arriving at any form of exception which we can rely upon as certain to receive the signature of his lordship. We hope that these difficulties may be overcome. We are in communication with the counsel on the other side, who have in their possession the form of exceptions we propose, and we trust that an agreement in writing may be arrived at with them; or if that should not happen, that his lordship, on being applied to at chambers in the usual manner, will be able to settle such a form of bill of exceptions as will raise the real question, to be determined in a way satisfactory to both parties and useful to the public.
The lord chief baron. I think it right to state that I see no prospect whatever of any change in the view I took as to my duty in deciding upon the bill of exceptions. A correspondence has passed between me and the late attorney general, which probably you may have seen; you were not present at the whole of the trial. So far from my laying down the law, as the bill of exceptions tendered to me assumed, I took particular pains to avoid anything of the kind. I had originally during that argument of Sir H. Cairns undoubtedly entertained an impression—I called it no more—that all the expressions in that act, “equipping,” “fitting out,” and so on, probably meant the same thing, and were to be referred to the verbiage of an act of Parliament, just in the same way as the words “ship or vessel,” which are commonly used in statutes, and no doubt are intended to mean the same thing. But the late attorney general, in his address, referred to a case of an American court with an appeal to a superior court, where the decision below was affirmed. It was a case where the vessel was completely prepared in every respect with the exception of being armed. When I came to sum up, I mentioned that case to the jury, and commended it so far as to say I adopted it. I left it to them, and pointed out what had apparently fallen from the counsel as to the law on the subject, not what I considered was the law. I then finally left the question to them in the alternative, using the very words of the act of Parliament. “If you think,” I said, “this vessel was armed, or equipped, or fitted out, or intended to be armed, or fitted out, or equipped, your verdict must be for the crown. If not, it must be for the defendants.” Now, the attorney general presented to me a bill of exceptions by which I was said to have told the jury that the vessel must be armed, and that if it was not armed there was no offence. I not only did not tell the jury so, but if you read the shorthand writer’s notes, I think you will say no person can have any doubt that I left the question as I have just stated. But probably, Mr. Attorney General, the object you have in view may be attained by a motion without reference to a bill of exceptions. It is true no point was reserved at the trial so as to give you a right of appeal in the event of the rest of the court concurring with me in the direction I gave to the jury. But this is a matter of so much importance—I do not know whether I can pledge the whole court in this respect—but certainly it would be very much to be lamented, however unanimous [Page XLII] this court might be, if we did not give you what we have the power of doing—an appeal to a superior court.
The attorney general. I understand you have no power by act of Parliament to give an appeal unless there be a difference of opinion among your lordships.
The lord chief baron. That is not so.
The attorney general said he had misunderstood his learned friend, Mr. Jones, on that point.
The lord chief baron. We have the power of granting an appeal, and I must say, as far as I am concerned—however unanimous and strong the court may be upon the point of law—if you wish an appeal you will certainly have my voice in favor of granting it.
Mr. Baron Bramwell. I understand the difficulty to be that the common law procedure act does not apply to a case of this kind.
The attorney general. Mr. Jones has carefully considered the matter, and he is strongly of opinion that the act does not meet the case.
Mr. Baron Bramwell. You are apprehensive that the lord chief baron will decline to sign the bill of exceptions in the form in which you have tendered it, and if you move for a new trial on the ground that he directed the jury wrongly, and he reports that he did not so direct them, of course we could not grant a rule for a new trial under those circumstances. That is the sort of difficulty in which you are placed.
The attorney general. We have merely in the bill of exceptions adopted the litera scripta which we have here. I am not aware that even a learned judge is able to interpret his own words, in an application for a new trial, in a sense, different from that which they really mean.
Mr. Baron Bramwell. We ought not to depart from the ordinary practice of taking the judge’s interpretation of the words in which he directed the jury.
The lord chief baron. I will read the shorthand writer’s notes as to what I left to the jury. “The question is,” I said, “was there any intention in the port of Liverpool, or any other port, that the ship should be, in the language of the act of Parliament, equipped, fitted out, or armed, with the object of taking part in any contest.” I also said, “If you think that the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then there is sufficient matter for your consideration; but if you think the object really was to build a vessel in obedience to orders and in compliance with a contract, leaving it to those who bought it to make what use they thought fit of it, then it appears to me that the foreign enlistment act has not in any degree been broken. I leave you to find that by your verdict.”
The attorney general said his lordship stated, at the conclusion of the trial, that he would not bind the attorney general to what passed on that occasion; that he could not alter the thing then, but that he had no doubt the learned gentleman had a very accurate note of what he had said. His lordship did not contradict the version which his learned friend gave at that time of his direction to the jury.
The lord chief baron. The question, however, now is, what course can we take consistent with the rules of the court. If you wish to move for a new trial on the ground that the jury ought not to have found the verdict they did, the court will entertain that application; but if you mean to reserve to yourself the power of making a motion for a new trial on a point of law, having tendered a bill of exceptions containing that or some other point, I do not think the court would consent to that course.
The attorney general. My application is now simply to have the time for moving for a new trial enlarged, so that both sides may agree as to what your lordships said to the jury as to the interpretation of the statute. We believe [Page XLIII] that the jury returned a verdict upon your lordship’s interpretation of the statute.
The lord chief baron. Nothing of the kind occurred.
The attorney general. Then both sides are under a misapprehension, and it is their common wish to raise the point by a bill of exceptions if possible. We ask you to enlarge the time for moving beyond the four days; and if, in the mean time, we do not get your lordship’s signature to the bill of exceptions, I will move for a new trial.
Mr. Baron Bramwell. We have no power under the act to allow more than four days, except by your making the motion for a new trial, and then adjourning it, but that would not answer your purpose.
The attorney general said this was the second day allowed for moving, and by the fourth they would consider whether the case could be brought under the common law procedure act.
It was then understood that the case should be mentioned again before the four days expired.
EXCHEQUER CHAMBER.—Nov. 3.
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Sittings in error.
THE ALEXANDRA CASE.
The judges sat in the court of exchequer this morning for the purpose of appointing the days for sittings in error in the exchequer chamber.
Lord Chief Justice Erle said the court had appointed the following days: For errors from the Queen’s bench, Thursday, the 26th, and Friday, the 27th November; for errors from the common pleas, Saturday, the 28th November, and Monday, the 30th; and for errors from the exchequer, Tuesday, 1st December, and Wednesday, 2d December. His lordship added, that with regard to the errors from the exchequer, the arrangement was conditional, and was subject to any alteration which might be necessary for the interests of public justice. There was one case (the case of the Alexandra,) which he believed would probably go to the exchequer chamber, which was of very great public importance. If more time happened to be required for that case the court would be glad to give it, and also to make arrangements for having it heard before a full court.
The attorney general said it was the desire of both parties to take the case to the exchequer chamber, but as the lord chief baron has declined to sign a bill of exceptions raising the question involved in it that might not happen.
Lord Chief Justice Erle. We, however, wish it to be understood that we reserve to ourselves the right to make any fresh arrangement.
Their lordships then rose.
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COURT OF EXCHEQUER.—Nov. 4.
Sittings in Banco.—Before Lord Chief Baron Pollock, and Barons Bramwell, Channell, and Pigott.
THE ATTORNEY GENERAL vs. SILLIM.—THE CASE OF THE ALEXANDRA.
The attorney general (with whom was the solicitor general and Mr. T. Jones) said he attended their lordships this morning, in consequence of a suggestion thrown out by them yesterday, which had received the careful attention of the [Page XLIV] counsel for the crown. They found that it was in their lordships’ power, if they thought fit to exercise it, by an act to be done this day, to so apply the common law procedure act as to give an appeal in a case of this description on the revenue side of the court. The 26th section of the Queen’s remembrancer, act 22 and 23 Vic, said it should be lawful for the lord chief baron and two or more barons of the exchequer, from time to time, to make rules and orders as to process, practice, and pleading on the revenue side of the court, as might seem to them necessary, and also by such rules and orders to adopt any of the provisions of the common law procedure act, and any rules of pleading and practice on the plea side to the revenue side of the court, as might seem to them expedient for making the process, &c, on both sides, as nearly as might be, uniform. The learned counsel said he thought that their lordships could under that section make an order which would meet the present case.
The lord chief baron. Why cannot your motion be made to-morrow, or, indeed, at any time?
The attorney general said it occurred to him that it might possibly be too late to-morrow.
The lord chief baron. I am inclined to think that under that section the court could make such an order, as you suggest, at any time.
Mr. Baron Bramwell said the revenue rules made under the section in question were originally proposed in the Queen’s remembrancer’s office, and he had himself a good deal to do with them. The omission of the right of appeal in revenue cases was intentional on the part of those who prepared the rules, who thought it was not expedient to give such power. He was, however, not aware of the omission at the time, as his attention was not called to it, but he now thought that what was a good rule in an ordinary civil case must also be a good rule in cases on the revenue side of the court. If, however, they thought such a rule should be inserted, they should not adopt it without consideration and on the spur of the moment, lest in doing so they might reverse something which had been previously done by the court.
The attorney general said it had, of course, been his duty to consider whether any public inconvenience would arise in other cases by making such a rule, and his strong impression was that there was not, and that the rule was very desirable.
The lord chief baron. I quite agree with you, and on the present occasion I should be disposed to concur in any mode, short of a violation of principle, which would give effect to your desire for an appeal. I own, after the experience I have had in this court, that I see no reason why there should not be an appeal in a revenue case, as in other cases. At all events, there ought to be power in the court to grant an appeal if applied for, and they thought fit it should be given.
Mr. Baron Pigott entirely concurred in the view taken by his lordship, which he thought consonant with the spirit of modern legislation, which gave the petition of right and costs against the crown.
The lord chief baron said, as the court entirely concurred in the view of the learned counsel, he thought the better course would be for the court to adjourn earlier than usual, for the purpose of seeing whether the rule should be made. As his learned brother said, the matter ought not to be decided in a hurry; and if the learned counsel attended to-morrow morning, they would tell him whether the alteration in the rules would be made. He presumed that if they granted the application, the attorney general would simply move for a new trial on all the grounds which might occur to him.
The attorney general. If your lordships make the rule proposed, no doubt I shall do so.
The lord chief baron. I think that would be the better course to adopt, because it will enable you to make every objection which can reasonably be urged to what passed at the trial, and to whatever it may be thought had misled the jury.
[Page XLV]The attorney general. I am much obliged to your lordship.
The lord chief baron. Unfortunately I was in communication with the late attorney general alone on this subject, and with no other law officer of the crown; and if he had not resigned, I had some intention of suggesting to him the propriety of abandoning the bill of exceptions, and moving on any point which he thought presented a fair ground for a motion. Now that the impediment is likely to be removed, and a revenue case placed on the same footing as any other proceeding, undoubtedly a motion for a new trial would be far better than a bill of exceptions which covers various old technicalities, which under a better and more enlightened system may be got rid of.
The court then deferred their decision until to-morrow morning, when, if they made the alteration proposed, it was understood the attorney general would make a motion for a new trial raising all the points in the case.
IN RE ALFRED LEIGH, AN ATTORNEY.
When this case was called on—
Mr. J. A. Russel said he appeared on the part of the person who had obtained the rule, and he understood that no cause would be shown on the other side. He then asked the court to make the rule absolute, calling upon the attorney to answer the matters in the affidavit, and in default to issue an attachment, and to strike him off the rolls.
Rule absolute accordingly.
THE ALEXANDRA.
The learned barons retired from the court shortly before 3 o’clock, and after being absent a short time, again took their seats on the bench, when Mr. Walton, the senior master of the court and the Queen’s remembrancer, read, by the direction of the chief baron, a new rule which they had framed under the 22d and 23d Vict., c. 21, sec. 26, extending the provisions of the common law procedure act to the revenue side of the court, so as to give an appeal in revenue cases. This will meet the case of the Alexandra, and enable the crown to obtain the appeal which the attorney general has sought.
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COURT OF EXCHEQUER.—Nov. 5.
Sittings in Banco.—Before Lord Chief Baron Pollock and Barons Bramwell, Channell, d Pigott.
THE ATTORNEY GENERAL VS. SILLIM AND OTHERS.—THE SEIZURE OP THE ALEXANDRA.
At the sitting of the court this morning there was an unusually large attendance of the bar and of the public.
The attorney general said that in the case of the Alexandra, which was an information arising out of the seizure of the ship Alexandra on the 5th of April last, by the crown, for the violation of the foreign enlistment act, he had humbly to move their lordships for a rule to show cause why there should not be a new trial on the ground of misdirection by the learned judge, and also on the ground that the verdict was against the evidence.
Mr. Baron Bramwell. In order that there may be no mistake, let it be clearly understood that you move on the ground of the verdict being against the evidence and misdirection, and that the bill of exceptions is abandoned.
[Page XLVI]The attorney general. Yes.
Mr. Baron Bramwell. Let it be further understood that we must take my lord’s report of his direction to the jury.
The attorney general. I understand that, my lord.
Mr. Baron Bramwell. And further, supposing that for any reason we, in our discretion, grant or refuse a rule, let it be understood that no appeal will lie from us under the rule we pronounced yesterday.
The attorney general. Unless your lordships think fit to grant one.
Mr. Baron Bramwell. Nay, there will be no appeal, except on a matter of law. If we should be of opinion that there was no misdirection, but, nevertheless, that the jury acted upon some wrong opinion, and we grant a new trial on that ground, it would not be competent for the defendants to appeal. On the other hand, if we should be of a different opinion and refuse a rule, and you desire to take the opinion of the exchequer chamber on the question, it would not be open to you to do so. I wish for my part, and I believe I express the feeling of the rest of the court, that these three matters should be clearly understood, viz: first, that the bill of exceptions was abandoned; secondly, that the court would take his lordship’s report of his direction to the jury; and thirdly, that there would be no appeal from their decision by either side, except on a matter of law.
The attorney general said that when he spoke of misdirection he must be understood to include in that the omission to give a proper direction, and also giving a direction which might in one sense be justified, but had a tendency to mislead and might have misled the jury. The learned gentleman then stated that the information was filed by the crown on the 25th of May last, on the seizure of the vessel, which took place in the yard of Messrs. Miller & Son, shipbuilders at Liverpool. There were ninety-eight counts in the information, that number being rendered necessary by the rather complicated structure of the clause of the act of Parliament on which the information was founded. In substance, it charged the persons whom he would mention with various acts against a certain section of the foreign enlistment act. The persons charged in the record were these: the members of the firm of Miller & Sons, the builders of the vessel, and in whose yard she was when she was seized; the firm of Fawcett & Co., manufacturers of machinery at Liverpool, who came forward as the claimants of the vessel; the firm of Frazer, Trenholm & Co., who were proved to be the general agents for the business of the confederate States, at Liverpool; a person named Captain Bullock, the special agent for the business of those States; and a person named Tessier, who was also employed in that business. Those persons, together with others not known, were charged in every count of the information with different acts in violation of the foreign enlistment act. The separate counts were founded on the language of the seventh section, which was directed against the “equipping, furnishing, fitting out, or arming” of a ship or vessel, or attempting to do so, with the intent of employing such ship or vessel in the belligerent service of a foreign people or state against persons with whom her Majesty was not at war. The learned counsel then pointed out that the words “equipping,” “furnishing,” &c, were employed in the disjunctive sense, and observed that the crown did not charge “arming” in the information.
The lord chief baron said his impression was that arming was not charged, but he was not quite certain upon the point.
The attorney general said that “equipping,” “furnishing,” and “fitting out” were separately charged; and in like manner were separately charged the “attempting” and “endeavoring” to equip, furnish, and fit out, and the “procuring” and “knowingly aiding, assisting, or being concerned in the equipping, furnishing, or fitting out of a vessel,” which were all distinct and separate offences under the statute. The learned counsel then said that when their lordships came to hear the summing up, he thought they would be of opinion that the jury had no opportunity whatever of giving a verdict on the effect of the [Page XLVII] evidence in reference to the view of the act which was taken by the crown. In fact, the case was left to them so as to preclude their judgment on the true question to be determined. The case divided itself substantially into two points— the equipping, furnishing, and fitting out; and secondly, the attempting to do so with the intent of employing the ship in the manner against which the act was directed; and upon both those points the evidence given on the part of the crown was wholly uncontradicted. The learned judge, in his direction to the jury, seemed to have overlooked the provisions as to attempting and endeavoring, and addressed himself to the complete equipment and fitting out in the sense which his lordship considered those words ought to bear. The seventh clause substantially divided itself into two points—the equipping, furnishing, fitting out or arming, and the attempting and endeavoring with intent, &c; and upon both these points the material evidence at the trial was uncontradicted. He would first refer to the evidence as to the character and condition of the vessel, and the preparations and equipments on the 5th April, when she was seized. The custom-house officer, Morgan, said she was incomplete, but had three masts up, with lightning conductors, as well as her machinery and other fittings on board. There was also evidence to prove that she was built as and for a gunboat; that she had bulwarks and a rudder adapted to and peculiarly fit for the purposes of war; that she was unfit for any mercantile purpose whatever; and that though she might possibly be used for a yacht, and had no fittings actually placed on board to enable her to receive guns, yet she could with the greatest facility be adapted to receive two or three pivot guns—the proper number— which would sweep over her bulwarks and make her serviceable as a gunboat. So much with respect to the character of the vessel. Then as to the fitting out, equipping, and furnishing, there was further evidence to show that the machinery, engine, and boiler, were either on board or in progress of being put, and that there were preparations for hammock nettings and guns and gun carriages. Barnes, an engine driver in the employment of Messrs. Miller, said he had been concerned in the yard in building three gunboats—the Oreto, the Penguin, and the Steady—which were for the government. He also said he recollected the screw steamer Alexandra, and she was like the other gunboats, only smaller. Then there was Mr. Spears, foreman to claimants of; the vessel, who received orders to take the machinery to the gunboat. Black, a ship carpenter, and Green, a shipbuilder, gave evidence showing that the bulwarks of the Alexandra were not those of a merchant vessel, on account of their extraordinary strength, and that they would be useless except for a ship-of-war. They further stated that she had pitch-pine decks, a wood which was chiefly used for war-vessels. Again, there was Captain Engledue, who said the Alexandra had only stowage room sufficient for her crew, supposing it to consist of 32 men; that she was not fit for mercantile purposes, and could be easily adapted to the uses of a war-vessel. That was the evidence as to the construction of the ship, and he would now turn to that part of the case which related to the fitting out, furnishing, and equipping, as distinct from the structure. He submitted that it was utterly unimportant whether those equipments were of a warlike character or not, and that if he proved she was intended for warlike purposes, any equipment whatever for such purposes was sufficient to constitute a violation of the statute. He thought that a great fallacy had run through the arguments, and that any kind or description of fitting out or furnishing was against the statute, provided always the intent and purpose was proved. The learned counsel then read extracts from the evidence of different witnesses, with reference to the equipments, &c, which he contended were essentially of a warlike character, and to the cotemporaneous preparation under the superintendence of Messrs. Fawcett, the claimants of the vessel, of gun-carriages just of the kind which it would be natural and safe to place on board the ship. He next passed to the evidence as to the intent and purpose, and argued that the clause clearly and distinctly laid down [Page XLVIII] that any species whatsoever of furnishing, fitting out, or equipping was against the act if it was with intent or in order that the ship should be employed in the belligerent service of a foreign people or state against persons with whom her Majesty was not at war. He then said it had been proved in a manner beyond the possibility of a doubt, and was wholly uncontradicted, that these things were done under the superintendence and with the interference of persons who were proved to have been the agents of the Confederate States for the purposes of their war service. There was Captain Bullock, who was specially sent to this country to organize the means of carrying on the war on the seas as servant and officer of the Confederate States; there was Mr. Hamilton, another servant and officer of those States, who was obviously employed for a like purpose; and there was the firm of Frazer, Trenholm & Co., who were named in the information as interfering with the construction of the ship by their agent, and at whose office was the seat of the agency of the Confederate States who conducted their pecuniary business, and through whom they ordered their paymaster to pay the persons who were employed on board the Alabama and the other war-ships which they had constructed in this country. Then there was the active superintendence of Captain Tessier over the work-people in both Miller’s yard and Fawcett’s works; and in addition, the direct admission of Miller, the builder, that the vessel was being built for the Confederate States, under contract entered into with Frazer, Trenholm & Co., and was to be employed in the service of those States. The learned counsel then referred to the evidence of Clarence Randolph Young, acting assistant paymaster of the Confederate States navy, who deposed that he made payments in Liverpool to persons in the service of those States; that he derived his authority from Captain Bullock, commander of the Confederate States navy; that he made requisitions to Captain Bullock for the amounts of money he required, and that the captain gave him orders upon Messrs. Frazer, Trenholm & Co., from whom he received checks. This witness was severely cross-examined, and it appeared that his morality was not quite unimpeachable, but his evidence was confirmed by documentary and other evidence, which could not be gainsaid. It seemed that while at Liverpool he formed a connexion with and married a black woman, and afterwards deserted her under circumstances which could not be justified. This woman had a black boy, and the man Young, who said he was “raised” in Georgia, suggested that a little money might be made by selling the black boy, and that he might be sold. It was very far from his intention, as had been alleged by the lord chief baron of the late attorney general, to attempt to whitewash Clarence Randolph Young, but he spoke of his evidence as it bore upon the res gestae of the case, and as it was corroborated by the litera scripta and the documentary evidence, to which no objection at the time was made. In England we were accustomed to liberty, and did not sell either white or black men, but the witness Young came from a country where that was common, and a man bred in an atmosphere of slavery, and engaged in the service of burning and destroying merchant vessels on the wide ocean, was not likely to feel as we did, or to be a man of very tender feelings. In the Confederate States this man would have been a perfectly good witness notwithstanding his black boy, for in that country they did not allow either a black boy or a black man or woman to enter the witness-box, whatever might be the extent of the evil complained of. All the remarks made about him were mere claptrap, and had no bearing on the question as to the agency of Bullock, which he was called solely to prove. The eloquent vituperation of Sir H. Cairns was, therefore, perfectly irrelevant and beside the mark, and did not tend to discredit the testimony of Young. The learned counsel next examined the evidence of Chapman, who went to the office, of Frazer, Trenholm and Co. under false colors, pretending to have southern sympathies, whereas he was in favor of the northern States—a course which he did not for a moment justify; but this witness, he said, proved certain transactions with Bullock and others which had [Page XLIX] not been disputed, and which proved that they were agents for the belligerent service of the Confederate States. After referring to other witnesses he contended, that upon this uncontradicted state of things, unless explained by their having been improperly directed, the jury could not but find a verdict for the crown. When, however, he came to read the summing up, the matter was made perfectly plain, because the jury had no option but to find as they did, whereas the evidence clearly entitled the crown to a verdict. The learned counsel then dwelt upon the object and provisions of the foreign enlistment act and its application to the present case.
The lord chief baron said one of the objects of the act was to prevent any hostile vessel being fitted out so as to make a port of this country the point of discharge.
The attorney general did not think that was the view of the lord chief baron, as shown by the short-hand writer’s notes. His lordship seemed to imply that a vessel might be constructed in one yard for the federals, and another in a different yard for the confederates, and that as soon as they got out they might come in collision and endanger the public peace.
The lord chief baron. That might be one of the mischiefs which would arise.
The attorney general thought that such a thing never entered the mind of any human being.
The lord chief baron. It is not only not impossible, but it is a fact—it is true.
Mr. Baron Pigott. Did not this happen at Southampton, where a federal and confederate vessel met, and where one was detained by us for several hours to prevent it overtaking the other?
The attorney general said that occurrence had nothing to do with the foreign enlistment act. The statute aimed at prevention; its object was to stop these things in limine, and not to punish them when done; and therefore the act said that any attempt to do any of these things was a violation of its provisions. Unless their lordships sat there to make laws, they must say that any ships fitting out for warlike purposes, the intent being proved, came within the act. This was a case which the 7th section directly touched, and if it were ruled otherwise they might as well at once strike the act out of the statute-book.
At this stage of the proceedings their lordships adjourned; and upon their return,
The lord chief baron said the court had availed themselves of the adjournment to consider the matters which the attorney general had brought before them, and without in the least saying what the opinion of any member of the court was as to the ultimate fate of the rule; they all thought that what he had stated was unquestionably matter fit to be discussed. If the learned gentlemen were content, therefore, to take a rule to show cause why the verdict should not be set aside as contrary to evidence, or as not being warranted by the evidence, and on the ground of misdirection by the judge at the trial, or on the ground that though there might be no positive misdirection, there was a want of information furnished to the jury to enable them to discharge their duty fairly—if he were content to take a rule on those two grounds, dividing the second ground into positive misdirection or imperfect misdirection, he might take a rule to show cause at once.
The attorney general. I thank your lordship. That is what I have been asking your lordship for, and I have no more to say.
The lord chief baron. I may state that I took pains to lay down the law as I understood it to have been laid down by the highest possible authority in another place.
The attorney general. Any such authority is incapable of vindicating himself here.
The lord chief baron. I thought I was remarkably safe in taking that course, but I may have been mistaken.
Rule nisi granted.
[Untitled]
Whatever may be the upshot of the questions arising under the foreign enlistment act, there is one thing that all must desire. We mean a full and solemn interpretation by the highest judicial authorities of the real intent and effective operation of the statute. Is it or is it not a dead letter? Can any one, either for the sake of profit, or for the gratification of personal sympathies, or with a view of bringing about a state of ill-feeling, if not war, between this country and another, drive a coach and six through this unlucky act of Parliament every month in the year, and every day in the week? For many years it has been supposed that there was a statute in existence which would enable the government to prevent private persons from thwarting state policy. It now appears that great doubts are entertained on this head. Attempts, some of them successful, have been made to evade the act. Doubts are thrown on the powers of the government, and while no one alleges any moral doubt respecting the actual evasion of the statute, many set up legal doubts. Under these circumstances it is of the highest moment that the questions raised and the full scope of the act should be determined by the highest available judicial tribunal. As the matters in dispute are pending, we wish to express no opinion whatever on the merits of the particular questions at issue in a particular case. But we do feel that, for the sake of the national welfare, no mere technical obstacles of any sort should be allowed to obstruct a final and complete examination of the whole law. We ought to know how far the law officers of the crown can rely on the means placed by the legislature at their disposal to give effect to the intention with which those means were sanctioned—namely, the preservation in the hands of the government of the direction of the national policy.
As regards the point raised yesterday before the court of exchequer, we, in common with everybody else, did understand that the lord chief baron had set forth in his charge to the jury that arming, equipping, furnishing, fitting out, were the mere verbiage of an act of Parliament, and that, in his opinion, these terms did all mean the same thing, namely, arming. The counsel for the crown so understood him. It is assumed that the jury so understood him. They and we and all the world, it seems, were in error. He tells us he did not say so, or imply so. We are, as Mr. Justice Bramwell reminds us, bound to take the judge’s interpretation of the words in which he directed the jury. We do so; but it is the most remarkable misapprehension on the part of all those who heard and read those words that we remember ever to have met with. And here we must regret that the usual practice of framing and tendering a bill of exceptions before the jury gave their verdict was not followed. At the end of the trial, and before the verdict, the counsel for the crown expressed a wish to offer exceptions to the ruling of the lord chief baron. They were told by him that it was not necessary to stand upon the usual forms, and they did not stand upon them, especially as the lord chief baron said, “I will accept any bill of exceptions you may choose to tender.” But when the bill was drawn up, the lord chief baron objected that it did not correctly set forth the nature of his ruling. Now, had exception been taken at the time; had the common opinion respecting the drift and bearing of that ruling been distinctly expounded, the error, into which it seems we all fell—counsel, jury, public—could have been there and then dispelled by a simple restatement by the judge of what he did mean to say and did say. It was even stated yesterday that the version which the then attorney general had given at the time of the lord chief baron’s ruling was not contradicted. The answer was—the question is, what course can now be taken consistent with the views of the court. This shows that an error was committed in not fixing at once the impression made by the language of the lord chief baron. But the state of the matter, as disclosed by the proceedings of yesterday, is an [Page LI] additional reason why some unquestionable decision should be obtained on this momentous point.
For our parts, we do not pretend to lay down the law. Whatever the law is, let us know it; and if it be found incompatible with the object for which it was devised, then we can say whether we will be content with an useless statute, whether we will have any statute at all, or whether we will have an efficient one.
It has been asked why, when guns and amunition and small arms can be supplied by a neutral to a belligerent, “why object to ships?” It may be difficult to set forth convincing reasons why ships should be stopped and arms and shells allowed to go free. But to us there seems to be one plain reason. If you export to the ports of a belligerent any quantity of destructive arms and missiles, no one can furnish proof that they have been used with effect against the other belligerent. But if you export a ship, the doings of that ship can be tracked over the sea by the fires she leaves behind, or by the prizes she brings into port. You cannot charge an Armstrong gun with killing and slaying, and identify the gun with damage and slaughter. You can charge a ship with capturing prizes from a friendly power, and prove the charge. There is an identity about a ship which there is not about a gun. But we may be asked, if a fighting machine, like a ship, may be exported to strike at a friendly power, why not a battalion, or a battery, or a regiment of horse? A ship, even without guns, is equivalent to a trained battalion without arms, or a body of artillerymen without guns, or a trained regiment of horsemen without horses. It is obviously within the power of the crown to say with whom it will and with whom it will not make war; and every act which tends to weaken that power and thwart the intention of the crown is an act which, on the assumption that we are to have a government at all, the crown should have power to prevent. We believe the sensible men of all parties take this view, and will not sanction any proceedings which restrict the power of the crown in so important a matter of state policy, or which tend to injure the maritime power of England.