ARGUMENT. Court along with Mr. Justice Coltman upon that occasion, and there is one very important observation.

2nd Day.

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 shorthand 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 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 I there 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 up 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 ARGUMENT. be furnished with the newspaper report to refresh his recollec2nd Day. tion, 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 70 years since the American Act of Congress was passed; it is upwards of 40 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.

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 takencases 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

ARGUMENT. Country, which was commonly called the Terceira affair. That occurred, I believe, about the year 1830. So far as it is necessary 2nd Day. 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 so gone 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 afterwards 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 one of 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: "It might be supposed from my right honourable friend's remarks that during the "15 years we have been at peace our neutrality had never before "been violated. Has my right honourable 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

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might summarily dispose of Lord Cochrane and those other ARGUMENT. subjects of His Majesty who were assisting the Greeks. "To its remonstrances Mr. Canning replied (and my right honourable 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 afterwards 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 afterwards armed and equipped for warlike purposes, and she 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 interrup

tion.

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 66 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 would be that which we should look to first, and would