1

make, arm, and

sell ships.

International and purchaser, so long as he, personally, is no party to the Municipal Law. equipping, furnishing, fitting-out, or arming of such ship, in the United Kingdom, for the purpose of aggression, or, in other words, with the intent on his part to commit hostilities against a friendly state. To avoid the possibility of mistake as to his meaning, his lordship repeated this opinion in the following terse and arguA neutral may mentative words:"A man may make a vessel, nay, more, he may make a vessel and arm it, and then "offer it for sale. So Storey lays down. But if a (6 man may make a vessel, may build a vessel, for the "purpose of offering to either of the belligerent parties "who is minded to have it, may he not execute an order "for it? Because it seems to me to follow as a matter "of course, if I may make a vessel, and then say to the "United States, I have got a capital vessel, it can easily "be turned into a ship of war; of course I have not "made it a ship of war at present, will you buy it? "That is perfectly lawful. Well, if that is lawful, surely it is lawful in the United States to say-] -Make us a vessel of such a description, and when you have "made it, send it to us." In this view of the case, the

of the Alabama lawful.

66

Building and sale building and sale to the Confederates of the Alabama which has achieved so great a notoriety by her depredations on the commerce of the Federals, although constructed according to contract with every possible adaptation to warlike purposes, short of actual armament in this country, was perfectly lawful, and should the judgment of the Lord Chief Baron be affirmed, the Government will have reason to congratulate itself upon the escape of that vessel from the meditated seizure, the orders for which arrived too late; and the country may rejoice in having avoided the heavy damages and * Attorney-general v. Sillim and Others-Direction to the jury.

costs which such a seizure would have involved. Nor International_and Municipal Law. can the United States complain with any justifiable reason of a decision in such exact conformity with the judgments of their own courts.

of Americans.

In order to the proper discussion of this question, it is necessary not only to review with care the provisions of the Foreign Enlistment Act, but to consider the object of that statute so far as its true intent and meaning can be gathered from the context. It may, in the Inimical views opinion of some persons, appear the more important because rumours have reached this country, that if the decision of the Lord Chief Baron should be affirmed, it will be considered by the inveterate spirits of the great Republic tantamount to a declaration of war between this country and the United States.

United States.

It can hardly be conceived that such a monstrous Inconsistency of proposition could be entertained by the government of an enlightened country, whose legal tribunals have deservedly elicited the approbation of civilized nations, for their impartial administration of the laws. But it is impossible to say into what follies an overwhelming democracy may drift, where passion and prejudice so far usurp the place of reason as to present to the world the spectacle of a people, boasting of greater liberty and freedom than any other country under the face of the sun, tamely submitting, in order to gratify a revengeful feeling, to a tyrannical suspension of constitutional right and privileges, against the slightest infraction of which in this land of loyalty and love of order the people would rise to a man.

im

partiality of

It is, however, idle to speculate on possibilities like Inflexible these. Were even such a consequence as war, in the British judges. event of a decision adverse to the Federal states, imminent, nay certain, it would not warp the judgment or

An

Jury might err.

International and influence the decision of those learned functionaries, Municipal Law. whose duty it is to expound the law. That inflexible impartiality which has secured for the judicial bench of this country a profound respect amounting almost to veneration, will never be found wanting in our courts unguided of law. It is possible that a jury, were it left for them to decide, might be unintentionally biassed by prepossessions or prejudice. A jury of Cobdens, enamoured of everything American, might be induced to construe the law with severity against the British shipbuilder; whilst a panel consisting of men captivated by the chivalrous courage and patient endurance of a people fighting for freedom and liberty, might unconsciously incline towards that course which would best serve the latter. But the verdict already pronounced in the case of the Alexandra, turning as it did upon a question of law, was given by the jury under the direction of a Law the safe-judge who, when the solemn duty of addressing that jury devolved upon him, did not approach the question without evident emotion. His desire to maintain the most friendly relations with America, is obvious from the remarks with which he prefaced his charge to the jury:

Direction
Judge

guard.

of

as

a

to

"The case," said he, "you have to decide on the "present occasion is no doubt one not merely of great "importance, but really is a momentous question. It "is a question the importance of which it is impossible

66

to exaggerate, and which one approaches with varied "sentiments. One certainly is a feeling of the deepest regret that such a question should ever have arisen ; "and I cannot help expressing the deepest, almost "anguish, that one feels, that such a question should

have arisen by dissensions amongst those who are connected with us by the dearest possible ties that

"bind nation to nation-a common lineage, a common International and Municipal Law. "language, common laws, and a common literature, "and above all, I say above all these, a strong desire "for constitutional freedom."

Lord Chief

Strongly as the learned judge might deprecate any Impartiality of course which could tend to excite hostile feelings in Baron. the United States towards this country, no consideration of this kind could induce him to swerve from the observance of that stern impartiality which sheds so much lustre on the judicial bench. Right or wrong in his conclusion, no fear of consequences, no timid anticipation of ulterior results, no sentimental feeling in favour of the one side or the other, could induce him, as the interpreter of the law, to lead the jury to a conclusion adverse to his honest convictions. It is the province of parliament to make laws, it is the duty of the judge to administer and, in cases of doubt, to expound them; and whenever the case again comes before the court, the same principles of honour and justice will pervade the deliberations and govern the decision of the judges: and whether, after the exhaustion of the argument on the point reserved, the ruling of the Lord Chief Baron be reversed or confirmed, the purity of the ermine will remain unsullied. Whatever the result, it will be the duty of all parties to bow to it with respect.

Enlist. Act.

But to proceed. The object of the Foreign Enlist- Object of Foreign ment Act, as appears by its title, is two-fold-To prevent the enlistment of British subjects to serve in foreign service; and to prevent the fitting-out, equipping, and arming of vessels, by British subjects, without the license of the sovereign. It is the latter that demands more especial attention at this

moment.

D

Preamble.

International and The preamble recites that the enlistment of British Municipal Law. subjects to serve in foreign service without license, and the fitting-out, equipping, and arming of vessels by British subjects without license for warlike operations in or against foreign powers, "may be prejudicial to, "and tend to endanger, the peace and welfare of this "kingdom."

Enlistment pro

hibited.

Detention of

ships with re

Section 2 (given at length in the queen's proclamation, vide Appendix, p. 85) constitutes the offence of enlistment, or procurement of British subjects to enlist to serve in foreign service, military or naval, without a license, a misdemeanour.

Section 3 grants certain exemptions now obsolete.

Section 4 prescribes the mode of procedure before justices.

Section 5 authorizes the detention of ships, in the cruits on board. British dominions, having persons on board who have enlisted to serve in foreign service, upon proof by affidavit of such enlistment.

Pecuniary

penalty on master, &c.

Interdict equipment,

of

Section 6 imposes upon the master or owner of any ships knowingly taking on board, in British dominions, persons who have enlisted to serve in foreign service, a penalty of £50 in respect of each such person.

Section 7 (given at length in the proclamation, &c., of ships. Appendix, p. 87) deems persons engaged in the British dominions, without license, in the equipping, furnishing, fitting-out, or arming of ships, to be employed in foreign service against any other foreign state with whom this country is not at war, guilty of misdemeanour, punishable by fine or imprisonment, and renders the ship liable to forfeiture.

mentation of

Interdict of augaug Section 8 (quoted at length in proclamation, Appenequipment. dix, p. 89) imposes similar punishment upon persons in the British dominions augmenting the warlike force of