practice in some cases of a belligerent having the opportunity of that waste or intervening space in which a ship might be captured or arrested. And yet it could hardly be said that a work, because it was done under the protection of neutral territory, was to be judged of in a manner different from the manner in which we should judge of a work done passing out of our territory into the high seas. I was going to submit to your lordship an example of a very sharp and hard case under the same section. Let me take the alternative about delivering commissions. "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, every such person so offending shall be deemed guilty of a misdemeanor." You may say, surely it is a most extraordinary, capricious, and whimsical thing, that a natural-born subject of her Majesty, who is responsible for his acts wherever he may be, shall, if on one side of that line which constitutes the limits of her Majesty's dominions he delivers a commission, be guilty of misdemeanor; but if he delivers the same commission on the other side of the line, he is perfectly free, and not culpable in any way whatever. Yet so it is. It may be very sharp, but that is the offense. There is no offense, unless you prove to the letter that it is done within the jurisdiction, just as it is asserted in this information that the whole of the equipment took place within the dominions of her Majesty. Again, one must always remember that the power of the belligerent in this case comes up to just as sharp a rule and as sharp a case as the case I have supposed. For instance, as I supposed that the ship unarmed and unequipped may pass beyond the neutral line, and then be equipped, wherever the equipment may come from, so I suppose, on the other hand, and assert that the belligerent, if he is on the watch-the adverse belligerent-may bring his ship of war up to the neutral line, and the very moment-the very instant-the ship which is to be equipped passes that line, that very moment, while it is yet unarmed and unequipped, and while it is totally incapable of any sort or kind of resistance, the belligerent has it in his power, having waited there, expecting its arrival, to arrest it when it comes, and take it while defenseless.

Mr. BARON BRAMWELL. If I am not mistaken, you can tell me this. I should imagine that the belligerent ship of war might make a third in the party I have supposed, and go out with them. The twenty-four hours' start would not apply there.

SIR HUGH CAIRNS. No, because it was not a ship of war; the twenty-four hours' start would not apply in that case, because the ship going out unequipped is not a commissioned ship of war.

Mr. BARON BRAMWELL. That is according to the hypothesis?

SIR HUGH CAIRNS. Yes, my lord, ex hypothesi. Therefore I am not at all prepared to suggest that your lordship's question is not entirely to be answered in the affirmative, and that it might not become a party of three; the rival belligerent going out in the company of its two companions, and falling upon them and taking possession of both of them--taking possession of the one because she had contraband of war on board, and taking possession of the other because it was a ship going to be equipped with those articles of contraband, and therefore being contraband. My lords, as I have gone perhaps out of any argument which has yet been suggested on the other side, as to these extreme cases, I might take notice of an utterance,which I do not think dropped from the attorney general, but which is very commonly used, and which perhaps may find utterance in this court before the argument is over, about the intention and object in all these cases being that our ports should not be used as arsenals for one of the belligerents. Now that is a very inaccurate expression also.

LORD CHIEF BARON. Sir Hugh, if you are going into a new head of argument perhaps we had better stop here, as my brother Bramwell is about to retire, and it is very nearly 4 o'clock; there is a considerable want of light, and if it is not inconvenient to the bar, we shall sit to-morrow at 10 o'clock precisely instead of half-past 10.

SIR HUGH CAIRNS. If your lordships please.

LORD CHIEF BARON. I hope that is convenient to the bar.

Mr. ATTORNEY GENERAL. Most convenient to all of us.

SECOND DAY—WEDNESDAY, November 18, 1863.

SIR HUGH CAIRNS. My lords, the question which I was taking leave to consider yesterday when your lordships adjourned was, whether, supposing you could show in point of evidence that there being in this country a ship wholly unarmed and wholly unequipped, it could be proved that there was a certain equipment and a certain armament prepared and made ready for that ship, and as it were ear-marked, set apart in some store or repository; and supposing at the same time you had conclusive and distinct evidence that there was no intention to put that equipment or armament on board in this country, but, on the contrary, that the intention throughout was to put it on board out of the Queen's dominions, whether that would be an equipment or a furnishing or a fitting out or arming of the ship within the act of Parliament. My lords, that was a

question put by way of suggestion by Mr. Baron Bramwell, to which I was addressing myself. Now, before I part from that, in addition to what I remarked yesterday by way of argument, I would ask your lordships to test that question in this way. Suppose that an indictment under this act were framed under such circumstances, an indictment with reference to the arming of the ship, of course you would be obliged to allege that the person indicted did, within her Majesty's dominions, arm a ship or vessel of such a name with the intent which is mentioned in the act of Parliament; how would that be supported? Would it be supported by proof of this kind; not that there was any armament put on board the vessel, but that there was a particular store or repository in her Majesty's dominions within which there had been prepared and set apart a certain armament destined for the ship; but the evidence showing at the same time that the intention was to put that armament on board, not within her Majesty's dominions, but without? My lords, I apprehend that the answer to that indictment would be, "That is not an arming of the ship; you have failed in the allegation which you have made." If that is so with regard to armament, it would be so with regard to equipment, and it would be so with regard to furnishing or fitting out. In truth, let us take common language as our guide upon the subject. I allege that a man furnished a house. Is that allegation proved, in point of fact, if I show that the house has not and never had a particle of furniture in it, but that a person went and ordered furniture to be made, and had it prepared, and had it set apart in some repository with the view to furnish the house at a future time and under different circumstances? And your lordships will observe how far the argument which I am combating would have to go, because, if the argument were a sound one, it would be equally an offense within the act of Parliament to show that there had been within her Majesty's dominions an armament or an equipment prepared for a ship which was never within her Majesty's dominions at all; it would be equally true to aver that A. B. armed, or equipped, or furnished, or fitted out a ship.

LORD CHIEF BARON. Or attempted to do so.

SIR HUGH CAIRNS. Or attempted to do so; that is to say, if you could show that the ship being without the dominions, and never having been within them, or intended to be brought within them, A. B. had prepared or attempted to prepare a certain armament or equipment with the view to be carried out of the Queen's dominions and put on board that ship.

But, my lords, I would also observe that, although it is extremely convenient and useful in endeavoring to arrive at the true construction of an act of Parliament of this kind, to deal with a case such as I have suggested, and to consider how the law would be, your lordships must also bear in mind that there is no suggestion and no evidence in this case (and this I undertake to show when I come to deal with the evidence as to the Alexandra) that there was any armament or equipment, or any furniture or fitting out, other than what appeared upon the ship herself. Of course I except the matter with regard to the guns, which I told your lordships yesterday was ultimately given up at the trial, although originally alleged by the attorney general; but over and above that, there was no suggestion that there was any kind of armament or equipment away from the vessel, prepared for her, different from that found on board, if any was found on board.

My lords, I also should observe, in speaking of the extreme cases which were put by way of testing the construction of the act, that I was about, when the court rose, to call your lordships' attention to a phrase very often used, and I am not sure that it has not been used in the course of this trial. Some persons who take strong views as to cases of this kind say that it is a thing not to be tolerated, that the ports of this country should be turned into arsenals or used as arsenals for one of the belligerent powers. Now, if that is properly understood, I have not the least objection to the expression. If it means that you shall not use one of our ports for the purpose of putting on board a ship a warlike equipment, I agree to the term; but if it is intended to designate anything more than that, I entirely object to it; because there is not the slightest doubt that, according to the popular meaning of those words, the law, whether right or wrong, is such that you may practically turn our ports into arsenals for one of the belligerent powers. There is nothing whatever that I am aware of in the law of this country to prevent one of the belligerent powers, for instance, employing or using a manufactory of arms in one of our ports with the view of shipping those arms afterward. There is not anything that I know to prevent a belligerent power having a manufactory of arms in any seaport of this kingdom, such as the government of this country have at Woolwich, and making guns and making small fire-arms, and making shot and shells on a large and extensive scale, and afterward putting those guns and ammunition on board a freighted ship and sending them to a foreign port, subject, of course, to the liability of being captured as contraband goods; but so far as making an arsenal, or making a manufactory of arms in our ports, or near our ports, is concerned, the law of the country is so that it may be done, and in practice something very like it is done every day. My lords, in the case of the American act of Congress there were the decisions to which I took leave to call `your lordships' attention, which were available for our instruction

and information as regards the law in the United States. Unfortunately, having gone through the observations which I had to make upon the construction of our English act, I am not able to supply your lordships with any judicial authority upon the subject of the construction of that act in this country. The fact is, as has been stated, I believe, on both sides of this case, and I believe it is accurate so far as we know, that there never has been an instance in this country where any judicial construction has been put upon this act of Parliament.

LORD CHIEF BARON. My brother Martin intimated to us that he recollected perfectly well a case tried before Mr. Justice Coltman.

SIR HUGH CAIRNS. That was the case of a Sicilian ship-Granatelli's case.

Mr. ATTORNEY GENERAL. We have a note of the summing up in that case. I cannot say much about its authenticity, for it does not come from a source which the courts are in the habit of looking at; but if it be accurate, it seems to have been ruled by the learned judge upon that occasion

Mr. LOCKE. I have it from the Times newspaper, my lord.

Mr. BARON CHANNELL. Lord Chelmsford was the attorney general of the day, I think; he was in the case.

Mr. LOCKE. There is a full report of that case in the Times newspaper of the 6th of July, 1849. I do not know whether your lordships will pay attention to a report of that kind, but it seems very accurately done, and there is the summing up of Mr. Justice Coltman. I should also tell your lordships that Mr. Justice Maule was on the bench at the central criminal court along with Mr. Justice Coltman upon that occasion, and there is one very important observation.

LORD CHIEF BARON. As far as my experience goes, the circumstance of a learned judge being present has very little to do with his opinion about the matter. Unless in cases of very serious importance, there are seldom two judges present in the same court. That is for the public convenience.

Mr. LOCKE. The case occupied no less than four days in being tried; and on the one side was Sir Frederick Thesiger, and on the other Sir FitzRoy Kelly, besides other counsel.

Mr. BARON CHANNELL. The corporation of the city of London employ a short-hand writer; whether they did so at that time or not I do not know.

Mr. LOCKE. Yes, my lord.

Mr. BARON CHANNELL. The report furnished by that short-hand writer is not a full report of the case; that is to say, of the speeches of counsel; but all points of law ruled are taken notice of; and it is printed by some bookseller in Chancery Lane, who publishes it. It comes out quarterly or monthly, and copies of that work are sent to the judges. Whether that practice existed at the time when the case now referred to was tried or not, I do not know; if it did, we can have a copy.

Mr. LOCKE. I can tell your lordship exactly what the practice was at that time, and as it now is. A short-hand writer is employed by the corporation, and copies are sent to all the members of the corporation; I do not know whether to the judges or not. Mr BARON CHANNELL. Yes, they are sent to the judges.

Mr. LOCKE. That short-hand writer merely takes down the evidence; there are no objections by the counsel taken down, nor any arguments, nor any summing up of the judges; it is simply the evidence. I have that book, if your lordships like to consult it; but in consequence of there being no points taken, nor any summing up, I consulted the Times newspaper as the best medium that I could adopt, and there I found a very long report, during four days, and one or two objections which were taken; one by Sir FitzRoy Kelly, which bears directly upon this question, which was overruled by Mr. Justice Coltman; and likewise the summing of the judge; it is not given at very great length.

SIR HUGH CAIRNS. Perhaps my learned friend will allow us to see the note, valeat quantum, which he has been able to obtain. I recollect, my lord, proceedings which took place on the subject elsewhere.

LORD CHIEF BARON. It is not usual in this court, nor, I believe, in any court to refer to the report of a trial in a newspaper.

SIR HUGH CAIRNS. No doubt, my lord, that would be very inconvenient, and I do not propose it at present.

LORD CHIEF BARON. The only use which I can make of it is this, that my brother Martin, who was present at the trial, should be furnished with the newspaper report to refresh his recollection, and if he could report to us anything which was decided, it might be useful. I think that that is the only way in which one could apply it.

SIR HUGH CAIRNS. My learned friends who are with me will look at what we have got; but I was about to say that I recollect very well proceedings which took place elsewhere with regard to the ship in question, and with regard to those who had chartered her, who were gentlemen of the name of Granatelli and Prince Scalia, who were taking part in the warlike proceedings against the government of the King of Naples over Sicily at that time; and according to my recollection of the facts which took place, there is not the least doubt (whether there were arms on board or not,

I do not know) that the ship was fitted out as a ship for warlike purposes in this country. I do not think that that was ever disputed. However, we shall see if any information can be had upon that case; but the result of the trial was, that those who were accused were acquitted, and the matter then came to an end; the Crown did not take the course which they have done here of moving for a new trial.

My lords, apart from that case, which I do not think will be found to bear at all upon the law which is here to be determined, I am not aware of any other case which has arisen, or in the course of which a judicial construction has been put in this country upon this act of Parliament. My lords, that is itself a very remarkable circumstance, and I will ask your lordships to bear it in mind throughout this case. It is now seventy years since the American act of Congress was passed; it is upward of forty years since the English act of Parliament was passed; and that is, I take leave to say, a very remarkable circumstance. Occasions must have arisen, I should say, in the United States repeatedly, and in this country also more than once, where you would have found instances of ships convertible into ships of war, built in such a way as to be easily used for ships of war, taking their origin either in a port of the United States, while a neutral power, or in ports of this country while a neutral power, and leaving those ports without warlike equipments; instances must have occurred again and again in which those ships might have been made the subject of proceedings under the foreign enlistment act, if it ever had occurred to the mind of any person that proceedings could be taken in a case where you had not the warlike equipment on board the ship.

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My lords, in the absence of decision upon the subject, it is not altogether improper to refer to what we have as matter of history in this country of cases in which proceedings were not taken-cases which were the subject of discussion and of consideration, and in which no proceedings of the kind took place. My lords, I took leave (and the lord chief baron perhaps may have a recollection of the circumstance) to mention, in the course of the trial, a case which excited a great deal of attention in this country, which was commonly called the Terceira affair. That occurred, I believe, about the year 1830. So far as it is necessary to mention it or refer to it now, the case was this: It was at the time at which warlike proceedings were taking place between those who supported Don Miguel and those who supported the Queen of Portugal; and in the course of those warlike proceedings there came to Plymouth, in this country, a certain number of Portuguese refugees. They got a ship, and they left Plymouth in that ship, and sailed for Terceira; and there was exported from this country to Terceira in another ship a quantity of arms and warlike equipments, ammunition, and so on; and those articles so exported from this country were subsequently transferred into the ship which had gone with the refugees from Plymouth to Terceira. The government of this country (rightly or wrongly we have not to decide) seemed very much annoyed at this, and they took a step which was greatly the subject of censure at the time, in the waters of Terceira, the waters of another power; they gave directions to our ships of war there to intercept and to fire upon one of those ships which had gone so out. The matter became the subject of great controversy in England, and on the part of the government this allegation was made. It was said on the part of the government, Suppose all that is stated to be the case-suppose that our ships did fire upon those refugees in the waters of Terceira, still while they were in this country they committed a breach of the foreign enlistment act, and made themselves liable to capture and to detention, because, although they did not put their armament on board the ship in which they left this country, they sent it out in another ship with the view and intention of afterward transferring it into their own ship and incorporating the two." Of course, if that had been the case even, it would not have justified an attack upon them in the dominions of another power, because we could not seize within the dominions of another power a ship for a breach of our own foreign enlistment act. But what I want to ask your lordships' attention to is the manner in which that doctrine was received, when it was put forward, by those who certainly were no mean authorities upon what was the power of the government in this country with regard to an act like the foreign enlistment act. Mr. Huskisson was one of the ministers who had taken a part in the passing of the foreign enlistment act, and of one the supporters of the policy of it in general, for he was a colleague of Mr. Canning. Mr. Huskisson, in his place in Parliament, as we find from the report of his speech in Vol. III of his speeches, at page 559, said this: 66 It might be supposed from my right honorable friend's remarks that during the fifteen years we have been at peace, our neutrality had never before been violated. Has my right honorable friend then forgotten the repeated complaints made by Turkey, and has he forgotten that to these complaints we constantly replied, 'We will preserve our neutrality within our dominions, but we will go no further? Turkey did not understand our explanation, and thought we might summarily dispose of Lord Cochrane and those other subjects of his Majesty who were assisting the Greeks. To its remonstrances Mr. Canning replied, (and my right honorable friend, being then a colleague of Mr. Canning, must be considered to be a party to his opinions:) 'Arms may leave this country as matter of merchandise; and however strong the general inconvenience, the law does not 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 until they have left this country, we have no right to interfere with them.' Those were the words of Mr. Canning, who extended the doctrine to steam vessels and yachts that might afterward be converted into vessels of war, and they appear quite consistent with the acknowledged law of nations." Now, my lords, this is not the mere statement of opinion of Mr. Huskisson. If it were, of course it would be entitled to respect, and nothing more. This is the statement of a public act done by a minister of this country in the administration of the affairs of this country and in the dealings between this country and foreign powers. This is a statement made by a person who had been a minister at the time of which he spoke, of a complaint which had been made by Turkey at the time when Lord Cochrane was engaged in one of those expeditions in which, in his early life, he was engaged. Turkey complained that that was being done. Turkey complained of the export of arms, and ships leaving the country, though not armed; and the answer stated by Mr. Huskisson to have been made by Mr. Canning is this: "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 until they have left this country, we have no right to interfere with them." Now, those clearly were cases where, if the doctrine now to be put forward had been considered to be the true exposition of this act of Parliament, there would have been a right to interfere on the part of the government, and we may presume that proceedings would have been taken to prosecute those ships.

My lords, so much for that, which is one of the instances which we have of the opinion of those who had, if they thought fit, to put in force this act of Parliament. I now come to two instances much more modern and coming close to the present time; I mean those cases which have been mentioned already in the course of this trial, and mentioned on the occasion of the moving of the rule before your lordships, namely, the cases of the Oreto and the Alabama. I will take leave to say, in the first place, that I hope my learned friends who appear here on the part of the Crown will not suppose that I am going to do anything so foolish as to frame any argument ad hominem, with reference to anything which they may have said or done upon the subject, from the circumstance that they now appear here as counsel for the Crown. I wish to speak of the cases of the Oreto and the Alabama as if those cases had occurred twenty years ago, and were simply matters of history; and if I refer to the words of individuals at all, I wish to refer to them merely as indicating the course of action which was taken with reference to those ships upon this act of Parliament. I desire to frame no other argument than that. The cases themselves have now become matters of history. We find the whole record of the proceedings with regard to them already printed in the new edition of Mr. Wheaton's book on International Law. The case of the Oreto was simply this. She was a ship built in Liverpool. She left Liverpool unarmed, and without any warlike equipments. She was afterward armed and equipped for warlike purposes, and became in the result a ship in the employment of one of the belligerent powers, the confederate government.

LORD CHIEF BARON. Where do those facts appear, so that the court can take judicial cognizance of them ?

SIR HUGH CAIRNS. My lord, they appear in the evidence, in this case, of one of the witnesses whose evidence I shall have to refer to. One of the witnesses states that he was on board one of the ships himself, and he speaks of his knowledge with regard to the other.

Mr. ATTORNEY GENERAL. If, my lords, it be material, (I do not know whether my learned friend will be pleased to hear it or not,) I may mention, though any judgment which may have been formed in those cases by the advisers of the Crown is utterly immaterial to your lordships as a matter of law, that the advisers of the Crown were of opinion that there was evidence to establish an intention.

SIR HUGH CAIRNS. My learned friend is now arguing the case.
Mr. ATTORNEY GENERAL. You stated what you put as the facts.

SIR HUGH CAIRNS. I am stating the matter upon my own authority; if it is not supported by the evidence, or by materials to which I can legitimately refer, my learned friend will have an opportunity of controverting it; but my learned friend is now arguing the case.

Mr. ATTORNEY GENERAL. My learned friend is stating what he calls a historical fact.

SIR HUGH CAIRNS. I object to my learned friend's interruption.

Mr. ATTORNEY GENERAL. I object to the statement of what is not in the record for the purpose of this argument.

LORD CHIEF BARON. I must say that I have some doubt whether much light can be thrown upon the subject which we are discussing by anything which belongs to the Oreto or the Alabama.

SIR HUGH CAIRNS. I will state to your lordships exactly the view which I wish to present of those cases, and the use which I desire to make of them. Of course, if we had judicial decisions here to refer to upon the construction of the act of Parliament, they

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