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·International and It is fully competent to the shipbuilder of a neutral Municipal Law. state, according to the best authorities, to build, equip, War ships built furnish, fit out, and arm a ship on speculation, and to on speculation. sail that ship to any belligerent or other country on

sale.

May be sent to sale to the best bidder; but if having cleared out for belligerents on one belligerent state, he falls in with the vessels of the enemy, he incurs the risk of capture, and confiscation of the ship would follow precisely in the same way as with any other contraband of war captured at sea.

Building and arming for sale at home.

Building contract.

of arms.

per

If he can lawfully do this, there would seem to be but little doubt of his right to build and even arm a ship in the ports of his own country for sale to the first purchaser.

But a nicer question arises whether, assuming that he may execute a contract for the building of a ship, without being privy to the intention of the purchaser, he could under the Foreign Enlistment Act contract in like manner, and without asking any questions, for the Analogy to sale equipping and arming of the ship? Proof of the intent, however, being essential, it can hardly be held without that proof, that he is so far particeps criminis in this as to be more liable to prosecution for a misdemeanour than any merchant contracting for the supply of arms or other contraband of war, although the purchaser buying under contract with such intent might be liable. The shipbuilder would no doubt be touching very dangerously on the confines of the prohibitory act by equipping, fitting out, or arming any vessel in this country under such circumstances. So long, however, as the mere builder and trader in ships confines his operations within the scope of ordinary commercial speculations, doing nothing in the capacity of a belligerent, himself taking no part in the war, steering clear of all personal intention to do so, selling

com

Purely mercial speculations.

of

"Historicus."

ships indifferently to the one belligerent or the other, International_and Municipal Law. without any participation in their subsequent employment and reserving to himself no control over them from the time they leave his hands, it would be extremely difficult to fix him with any breach of the Foreign Enlistment Act. A very able correspondent Doctrine of the Times writing under the nom de plume of "Historicus" has happily expressed his view of the question."The Foreign Enlistment Act was not intended to, and "did not in fact, operate so as in any way to limit or "control the absolute freedom of neutral commerce. "The Enlistment Act is directed, not against the "animus vendendi, but the animus belligerendi. It pro"hibits warlike enterprises, but it does not interfere "with commercial adventure. A subject of the Crown "may sell a ship of war, or he may sell a musket, with "impunity; nay, he may even despatch it for sale to "the belligerent port. But he may not take part in "the overt act of making war upon a people with "whom his sovereign is at peace. "Foreign Enlistment Act is to prohibit a breach of "allegiance on the part of the subject against his own 'sovereign, not to prevent transactions in contraband "with the belligerent. Its object is to prohibit private "war, and not to restrain private commerce." The distinction here so admirably drawn by "Historicus" appears to have been too much lost sight of in the public discussion of this question. It throws a flood of light on the true intent and meaning of the Foreign Enlistment Act.

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The purview of the

of shipbuilder

must be free

The actions and intentions then of the shipbuilder Acts and intent must, to become criminal, go beyond the commercial transaction. It must be proved that he has ulterior

objects in view, that he is looking to something more

from "animus

belligerendi.”

International and than the profit of a business speculation, that what he Municipal Law. does in the way of building, equipping, arming, or fitting out expeditionary ships, is done by him with an undoubted animus against one of the belligerents, and in the interest of the other-in fact, that he is an aggressive partisan of the latter, and acting not in the capacity of an innocent commercial man, but with hostile intentions towards the belligerent against whom the vessel may ultimately be employed. In fact, the whole question under the 7th section of the Foreign Enlistment Act appears to turn upon proof of illegal intent.

Proof of intent by admissions of builders.

In the trial of the Alexandra case, evidence was given of admissions by the builder that he was not a stranger to the designs of the parties who employed him, that they were notoriously the agents of the Southern Confederacy, that the Alexandra was not the first ship he had built for them, that he well knew of the exploits of her predecessor the Oreto alias Florida, spoke triumphantly of her success, and prophesied that the little "gunboat" would achieve a greater celebrity; but even this evidently did not satisfy the Lord Chief Baron that the builder himself was guilty of any breach of the law in fact or intention, in the absence of proof that his actual interest and control over the ship would not cease with the completion of his contract, though as the builder of a creditable ship he might injudiciously glory in the successful results of his skill. One thing it clearly proved, viz., that the builder of the Alexandra and the Oreto exhibited much less discretion than the builder of the still more celebrated Alabama in talking about the objects and intentions of the purchasers. Perhaps it is not too much to say, that but for the incautious loquacity of the builder, the Alexandra would never have figured in the Court of Exchequer, in fact that

Municipal Luw.

without this evidence of his admissions there would have International and been no case for the court or the jury.

ficient.

If, however, evidence of intent such as this was Surmise, suspicion, &c., insufinsufficient to satisfy the learned judge or the jury, it is obvious that the idle gossip of the shipyard, the surmises of employés, floating rumours, vague suspicions, and careless observations extracted by adverse spies and partisans, in the guise of sympathisers, from the persons with whom they fall into conversation, can never be relied upon to prove that which the act requires. Yet the agents of the belligerent states, after carefully collecting all these things, dressing them up in the form of telling narratives, and laying them before the Government, complain of supineness on the part of the Executive because seizures are not made on grounds which turn out on investigation to be utterly insufficient to warrant such an interference with the liberty of the subject. As eloquently observed by the learned Solicitor-general in his speech in the House of Commons on the Alabama question, in March, 1863, "The United "States Government have no right to complain if the act "in question is enforced in the way in which English laws are usually enforced against English subjects-on evidence, and not on suspicion; on facts, and not on pre"sumption; on satisfactory testimony, and not on the

66

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mere accusations of a Foreign minister or his agents." And perhaps this discussion on proof of intent cannot be better closed than by a further quotation from the same speech:-"Two things must be proved in every 66 case to render the transaction illegal--that there has "been what the law regards as the fitting out, arming, or equipment of a ship of war, and that this was done with "the intent that the ship should be employed in the "service of a foreign belligerent."

66

International and As no other point of doubt of sufficient importance Municipal Law. to invite discussion presents itself, it now remains briefly to extract from what has preceded such propositions as are consonant with international and municipal law, and with the decisions of competent tribunals wherever they have become the subject of judicial inquiry; and to deduce from them the conclusions to which they necessarily lead.

The status

of

Great Britain

dents.

The queen's proclamation declares that the country and its inci- is at peace with the rest of the world. War subsists between the Federal and Confederate States of America. We are at peace with both. The Foreign Enlistment Act interdicts the subjects of this country, as a neutral state, from taking part with one foreign power against another with which this country is not at war.

The status of the
Confederate
States.

The offence in-
terdicted
the act.

Declaration

neutrality.

by

The political status of persons recognized as exercising or assuming to exercise the powers of government in or over any foreign state or any part thereof, constitutes a power within the words of the act, as distinctly as that of any formally acknowledged state. The Contederate States of America come precisely within that definition, and the queen's proclamation recognizes them as a belligerent power.

The interdict of the act applies to participation by the subject in warlike operations against such a power as distinctly as any acknowledged nation.

of The queen's proclamation declares for strict neutrality between the contending parties.

Position of this

country in re

belligerents.

The status of this country in relation to the Federal lation to the and Confederate States is that of neutrality, as sacredly observable between them as if they were two distinct countries.

Neutrality and non-intervention in such a case are convertible terms.

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