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ARGUMENT-continued.

FIFTH DAY,-Saturday, 21st November 1863.

Mr. Solicitor General.-My Lords, after the full and complete, and I might almost say, exhaustive argument of the learned Attorney General, I feel my duty to be a light one, and I shall be enabled to shorten the observations which otherwise it might have been my duty to address to your Lordships. At the same time, this, the first occasion on which the Courts of this country have had to consider the Foreign Enlistment Act, appears to me to be one of so great importance that I am induced to ask your Lordships for your indulgence for a short time while I address to you some observations which appear to me to bear upon the matter.

My Lords, I think it may be convenient for me to follow the order in which my learned friend Sir Hugh Cairns and the Attorney General have addressed themselves to this question, and I will accordingly, in the first place, say a few words upon the principles of international law which appear to me to be applicable to it independently of any statute. I will next consider the construction of the Foreign Enlistment Act, and then I will apply myself to the questions of misdirection and the verdict being against the evidence.

My Lords, the scope and tendency of the argument of my learned friend Sir Hugh Cairns appeared to be this; he, in the first place sought to narrow as far as he could the application of the principles of international law which relate to this question. Having so far narrowed that application, he sought to cut down the American Foreign Enlistment Act, in order to square it to those narrowed proportions; and then, thirdly, he endeavoured to show that the English Act had no wider operation than the American Aćt. I shall contend in the first place that the principles of international law applicable to this question have not been quite accurately stated by my learned friend, but that they have a wider scope than he admitted; next, that the American Act went beyond any international law applicable to the subject; and, thirdly, that our Act went beyond the American Act.

My Lords, my learned friend Sir Hugh Cairns began by stating two propositions of international law which appeared to

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ARGUMENT. him to bear upon this question, and to be the only principles which did bear upon it. The first he stated in this way,-he said the subjects of neutrals are at liberty to supply any articles contraband of war to a belligerent. Secondly, he said the territory of a neutral power is inviolate from any proximate or immediate act of war. I am stating those propositions I think in his own words. Now, my Lords, with respect to the first of those propositions, my learned friend began by conceding that for a neutral Government to supply to a belligerent contraband of war was a violation of neutrality, an unneutral, in other words, a hostile act, but he said the subjects of a neutral are at liberty to do so. If my learned friend meant no more than this, that the subjects of a neutral are allowed to supply contraband of war to a belligerent without involving their Government in hostilities, or without compromising the neutrality of their Government, and further that the neutral Government is not bound by any duty, whether of perfect or imperfect obligation to the co-belligerent, to prevent this traffic, or punish those who carry it on, I agree with him. But my learned friend went beyond that, he proceeded to contend that the supply of those articles of contraband by the neutral subject was in no respect, to use his expression, contra bonos mores, that it was not in any respect a delictum, that it was not opposed to any principle of international law, but that it was entirely lawful and right. Upon this question I take the liberty of, to some extent at all events, differing from my learned friend. And I will call the attention of your Lordships to the manner in which Mr. Duer, a writer who was referred to in the course of the Attorney General's argument, treats this question, because his argument upon this subject appears to me to be very clear and cogent.

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Lord Chief Baron.-What volume and page?

Mr. Solicitor General.-The first volume, my Lord, page 750. He says, "It has been alleged, that the conduct of a neutral, who engages in a trade that by the law of nations subjects his property to capture and confiscation, is not illegal; that he has a "perfect and lawful right to engage in the trade, and the belligerent, a right equally perfect and lawful, to seize and confis"cate the property so employed. But the grounds on which this allegation is made are not easy to be discerned. It is, indeed, supported to some extent by the vague language of Vattel ; "but the observations of this not very accurate or profound "writer will be found, when examined, to be inconsistent and "self-contradictory. While he affirms that a neutral merchant

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may lawfully prosecute a trade with the belligerent country in "articles contraband of war, he admits that a nation at war, from "a regard to its own welfare and safety, has an absolute right "to seize and confiscate all supplies of this nature destined to the use of its enemies; and yet he overlooks the inevitable conse

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5th Day.

quence, that if these proceedings of the belligerent are necessary ARGUMENT. measures of self-defence, the conduct of the neutral in furnishing "the war supplies is, in its nature, an act of positive, though in"direct hostility; that it is, therefore, a plain violation of neutral duty, and that it is the illegality of the trade, as involving this offence, that can alone justify the penalty by which it is sought "to be restrained. Were the trade lawful, although the belligerent might be allowed, from a regard to his own safety, to intercept warlike supplies destined to the use of his enemy, he "would be bound to pay their value and satisfy their freight, "for thus the injury to himself would be prevented, and the " rights of the neutral be preserved. In confiscating the goods "and the freight, and in some cases the ship, the belligerent "treats the neutral owners as enemies; and, unless on principle, he has the right to consider them as such, their own "Government would be bound to listen to their complaints, "and redress their wrongs." This appears to me to be cogent, I confess. Unless they are rightfully treated as enemies, the "condemnation of their property, instead of being lawful, would "be an act of violence and a cause of war. I am not aware that "the observations of Vattel are sustained by any other writer on public law; and a single remark of Sir William Scott, that has already been given, contains in itself a full reply. It is "found in his observation that there are no conflicting rights between nations at peace; and this observation, although "applied by him to the single case of a resistance to search, may "be applied, with equal truth, to every case of a violation of "neutral duty.” That contains the statement of his argument.

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Mr. Baron Bramwell.-I confess it seems to me that that is a very elaborate dealing with words, because the proposition may be laid down that it is unlawful in the sense that the party who commits the act is subject to the punishment of capture and confiscation; it is not unlawful beyond that. You do not treat him as a pirate; you do not treat him as a prisoner of war. It is perfectly lawful for a man to enlist in the service of a foreign country, and it is perfectly lawful to shoot him. Those are not conflicting rights. What is meant is that there is no other illegality in the enlistment than this, that it subjects the man to be shot. It seems to me, with great submission, that those good folks, if they thought of the use of the words they were dealing with, never could make the mistake they do.

Mr. Solicitor General.-There is this distinction between the way in which you deal with a man violating a blockade or a man carrying contraband, and a man who is doing what is perfectly right. For example, take the case of a neutral shipowner carrying enemy's goods, not contraband; if you take a neutral ship carrying enemy's goods, not contraband, you take the goods out and you pay the owner the freight. You have a right to take out the goods because it is necessary for your own purposes as a belligerent.

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Lord Chief Baron.-That is to damage the enemy.

Mr. Solicitor General.-Yes, but inasmuch as the neutral owner has not done wrong, you do not injure him in any way, you pay him the freight. If he, the neutral owner, commits a wrong against the law of nations, you seize and confiscate his goods.

Lord Chief Baron.-You never punish him, you neither imprison him, nor shoot him, nor try him by a court-martial, or in any other Court.

Mr. Solicitor General.-That is so.

Lord Chief Baron.-It used to be the same with respect to offences against the revenue laws of this country. Originally the revenue laws of this country never punished except by fine and forfeiture.

Mr. Solicitor General.-That is so. Upon this question your Lordship accurately stated the law yesterday, if I may be permitted to say so. The law of this country so far recognizes the law of nations, that it will not enforce a contract which is based upon an intended violation of international law; but the law of this country does not recognize the law of nations so far as this that what is an offence against the law of nations, is an offence against our criminal law, and I venture to think that is a sound distinction. I will not follow that subject to any greater length, because it, is not necessary to my argument. It was touched upon yesterday, and the matter appears to me to be not unworthy of consideration. I will pass from it in a very few moments, but I will observe that this supposed right, according to international law, of the subject of a neutral state to export contraband to the enemy is the same as his right to break a blockade; there is no way of punishing him unless you catch him in the act; it is not a violation of our criminal law at all events; but still the courts have said, and those cases are referred to by Mr. Duer, that if it appears that a captain of a ship knowing of a blockade intends to violate it, the contract of insurance will not be enforced, because the act of the master of the ship is a breach of international law. That I apprehend to be the principle of our law, and that was the principle upon which the cases referred to by the learned Attorney General yesterday were decided; and I take that as the doctrine that may be considered to be now settled in Westminster Hall. That was the principle on which the case of De Wutz v. Hendricks was decided, where a contract founded upon the raising of a loan for subjects in arms against a government in amity with our own was held not to be capable of being enforced in this country. It was not a criminal offence, but an offence against the law of nations, and therefore the courts of this country would not lend themselves to the enforcement of it. I may observe that the language of Lord Stowell in several cases is entirely opposed to the view that a neutral sending contraband or trying to break a blockade is really committing no offence against international law. In the case of the "Imima," reported in the 3rd volume of Robinson, page 168, Lord

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Stowell says, "The rule respecting contraband is always understood ARGUMENT. "to be that the articles must be taken in delicto." That is the 5th Day. term he uses. And then again, in 5th Robinson, in the case of the "Richmond," at page 331, he speaks of a contraband dealing in ships. He says, “Here was an avowed intention of going to sell a ship to a belligerent, which in time of war is at least a very suspicious act, and to do a great deal more, to sell a ship which the neutral owner knew to be peculiarly adapted for purposes " of war, and with a declared expectation that it would be hos"tilely employed against this country. It cannot surely, under "any point of view, but be considered as a very hostile act, to

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be carrying a supply of a most powerful instrument of mischief, " of contraband ready made up, to the enemy for hostile use, and "intended for that use by the seller, and with an avowed knowledge that it would be so applied."

Lord Chief Baron.-Provisions are considered now as contraband.

Mr. Solicitor General.-In some cases they are; it depends upon the intention and the destination; and coals under some circumstances would be contraband, and under others not. The question of contraband or no contraband is exceedingly difficult when you come to apply it to the facts; but I apprehend that the intention and object is generally the test with respect to articles ancipitis usus, as far as contraband is concerned. I may have a word to say afterwards with reference to that.

Lord Chief Buron.-Many of those laws were made by the strong, by those who could enforce them, and therefore the weak were obliged to acquiesce.

Mr. Solicitor General.-No doubt.

Lord Chief Baron.-And they come into the "omnibus," as the Attorney General says; they get into the "omnibus" because they are obliged to do so.

Mr. Solicitor General.-And the omnes are all those who are strong enough to enforce what they call their rights.

Lord Chief Baron.-Against those who are compelled by force to acquiesce.

Mr. Solicitor General.-Yes, I believe that is so, my Lord. I pass from this subject with the remark that it appears to me not an accurate expression to say that a neutral merchant supplying contraband, whether consisting of ships, or arms and ammunition, is not violating any principle of international law. I apprehend that he does commit an offence against international law, but he does not commit an offence against the criminal law of this country, and I conceive that this country is not bound, under any obligation to other countries, to punish him. In that sense only I accept my learned friend's proposition, and I mean to press this argument no further than this, that this contraband trade in arms and ammunition and in ships of war, which Lord Stowell characterizes as a peculiarly malignant description of trade, is not that description of trade which it appears to me ought to meet with any peculiar tenderness on the part of the 8341.

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