REMARKABLE TRIALS.

I.

THE CASE OF THE "ALEXANDRA."

THE ATTORNEY-GENERAL v. SILLEM AND OTHERS.

THIS case, which arose out of an alleged breach of the Foreign Enlistment Act, and was one of many instances in which the desire of commercial profit set at nought the policy of neutrality which the British Government had pledged itself to maintain between the Federal and Confederate States, then at war in America, was remarkable, not only for the issues which it involved, but for the great dis. crepancies of opinion which prevailed among the highest legal authorities, and which eventually made the long-protracted litigation abortive. It will be necessary briefly to recapitulate the history of the "Alexandra." She was built and partly rigged at Liverpool, and was seized on the 6th of April, 1863, by an officer of the Customs, on the ground of a breach of the 7th section of the Foreign Enlistment Act, 59th Geo. III. c. 69, which is intituled "An Act to prevent the enlistment or engagement of His Majesty's subjects to serve in foreign service, and the fitting out or equipping in His Majesty's dominions of vessels for warlike purposes;" and it declared, "That if any person within the United Kingdom should equip, furnish, fit out, or arm, or attempt or endeavour to equip, &c., or procure to be equipped, &c., or should knowingly aid, assist, or be concerned in the equipping, &c., with intent that such ship should be employed in the service of any foreign state, &c., as a transport or store-ship, or with intent to cruise or commit hostilities against any state, &c., with whom His Majesty should not then be at war, every person so offending should be guilty of a misdemeanour." The defendants claimed to be the owners of the " Alexandra." An information was then filed by the Attorney-General against the defendants. This information contained ninety-six counts, but in substance charging the defendants with 'furnishing," with "equipping," and with "fitting out," but not with arming the vessel. It also charged the defendants with "endeavouring, attempting, and being concerned," with the equipping, &c. To all these charges the defendants pleaded not guilty. The case came on to be tried before Lord Chief Baron Pollock and a special jury, in the Court of Exchequer at Westminster, on Monday the 22nd of June, 1863, and following days; and as much controversy arose upon the summing up of the Lord Chief Baron, it will be useful to revert to it. His lordship, in summing up, said the vessel when seized was in the course

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of building. It had not been completed. It was admitted that it was not armed, and the question was whether the condition of the vessel fell within the Foreign Enlistment Act, as to which, upon all questions of fact, the jury would exercise their own right of deciding. The counts were swelled out to a very large number, but they all came to this question :-Was this vessel, as then prepared at the time of the seizure, an object of seizure under the Act in question? The inquiry was, and must be, was a misdemeanour committed under the terms of the Act of Parliament ? If there was, and if the ship had been seized in consequence of that misdemeanour, the information was right, and the verdict must be for the Crown. If there was not (and he should presently state to them what appeared to him to be the question of fact they had to try), then the information founded upon the seizure ought to have a different termination, and their verdict ought to be for the defendants. The conviction must be upon proof, and not upon suspicion. This question upon the statute had never before arisen in the Courts, and was here for the first time, but there had been expositions of the statute by decisions in the American Courts. Mr. Chancellor Kent and Mr. Justice Storey were Americans, and they had contributed certainly more to render law a science, and to render the pursuit of it, he was almost going to say, captivating, than any writers on this side of the Atlantic for thirty or forty years past. Chancellor Kent said, in his "Commentaries," that on a certain occasion it was contended on the part of the French nation that neutral Governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent Powers, but it was satisfactorily shown on the part of the United States that neutrals might lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent Powers contraband articles, subject to the right of seizure in transitu. In the case of the Independencia," Mr. Justice Storey said, "But there is nothing in our law, or in the law of nations, that forbids our citizens from sending armed vessels as well as munitions of war to foreign parts for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation." Those authorities showed that when two belligerents were carrying on war, the subject of a neutral Power might supply to either without any breach of national law, and certainly without any breach of the Foreign Enlistment Act, all the munitions of war for the destruction of human beings who were contending together in that way. Why should ships be an exception? In his (the Chief Baron's) opinion, in point of law, they were not. Presently he should put to them the question of fact about the "Alexandra," which they would decide. His lordship then stated the title of the Foreign Enlistment Act. The title to an Act of Parliament was not part of the statute, and he believed it was generally held by all lawyers that, properly speaking, it threw no light upon it. They could not refer to the title. But the preamble, which was part of the Act, was this :- "Whereas, the fitting out and equipping of vessels for warlike operations against any foreign Power, &c., is and may be prejudicial to the peace and welfare of the community;”—and then came the seventh section. Now the question he should propose to them was this-whether they thought that this vessel was merely in the course of building, for the purpose of being delivered, in pursuance of a contract, which he owned he thought was perfectly lawful, or whether there was any intention that in the port of Liverpool, or any other English port (and there was certainly no evidence of any other), the vessel should be equipped, &c., for the purpose of aggression. That was the question. It was not said that you might not build vessels for the belligerent Power. There was nothing suggested of the kind, and clearly by the

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common law and the passages he had read, surely if from Birmingham either state might get any quantity of destructive instruments of war, and if from the various parts of the kingdom where gunpowder was made they could obtain any quantity of that destructive material, why should they not get ships? Why should ships alone be themselves contraband? If a man might build a vessel for the purpose of offering it to either of the belligerent Powers who was minded to have it, might he not execute an order for it? It seemed to him to follow as a matter of course if he might make a vessel, then to say to the United States, "I have got a capital vessel, it can easily be turned into a ship of war; will you buy it?" If that was perfectly lawful, surely it was lawful for the United States to say, "Make us a vessel of such and such description, and when you have made it send it to us." It was said, if you allow that you repeal the statute. He thought nothing of the kind. What the statute meant to provide for was, he owned he thought, by no means the protection of the belligerent Powers. The vessel was nothing more than in the course of building. He did not know what conclusion they would come to as to what service she was intended for; if that was a matter of importance it would be for them to say whether it amounted to more than a strong suspicion, or whether it would justify a verdict in that direction. But he did not propose to put that to them; the question would be, was the vessel built, or was it merely in course of building? The offence charged was "equipping," &c. Equip" was stated in Webster to mean to furnish with arms." In his opinion " equip," "furnish," "fit out," or "arm” all meant precisely the same thing. It was not necessary, perhaps, that the vessel should be armed at all points. The question was whether they thought this vessel was fitted. Was there an intention that she should be equipped, and at Liverpool? Capain Inglefield said she might have been built for a yacht, or might have been converted into a war vessel. But was there any intention to equip," &c., at Liverpool? If they thought that was the object, then that was a sufficient matter. But if they thought the object really was to build a ship in obedience to an order, and in compliance with a contract, leaving those who bought it to make what use they thought fit of it, then it appeared to him that the Foreign Enlistment Act had not been in any degree broken.

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The jury returned a verdict for the defendants. A Bill of Exceptions was tendered to the ruling of the Lord Chief Baron, but in consequence of some misunderstanding relative to its terms it was not signed. On the 5th of November the Attorney-General moved for a rule for a new trial, on the ground of misdirection by the learned judge, and also upon the ground that the verdict was against the evidence; and a rule nisi was granted. On the 17th of November the rule came on to be argued, and those arguments occupied six days. The Court took time to consider its judgment. On the 11th of January, 1864, judgment was delivered, the Lord Chief Baron and Mr. Baron Bramwell being of opinion that the rule for a new trial should be discharged, but Barons Channell and Pigott thought the rule should be made absolute. When the Court is thus equally divided, it is the practice of the junior member to retire, or withdraw his judgment, and accordingly Mr. Baron Pigott withdrew, and the judgment of the Court therefore was that the rule should be discharged. From this decision there was an appeal to the Court of Error, the Exchequer Chamber, and on the 6th of February that appeal came on for argument. Instead, however, of the case being argued upon its merits, Sir H. Cairns, who appeared for the defendants, set up an objection to the jurisdiction of the Court, which was of a purely technical nature. After recapitulating the pro

ceedings in the Courts below, the learned counsel proceeded to state his objection, which was that the Court of Exchequer had no power by law to make the rules under which the appeal had been brought. The learned counsel, in the course of an elaborate argument, observed that before the Common Law Procedure Acts were passed there could have been no pretence for such an appeal, and those Acts only applied to personal actions commencing by writ of summons, and not to revenue causes. It might be that the Court of Exchequer had power by a general order to create a new Court of Appeal, to give new rights to suitors with regard to appeal which they never had before, to order what should or should not be done by the Court of Appeal or the House of Lords, and to confer upon the House of Lords and upon the Court of Queen's Bench the powers which were proposed to be conferred by those rules; but he should like to see the authority, for he supposed no person would say that without Parliamentary authority that was a power which could have been legally exercised. He contended that the only power given by the 26th section of the Queen's Remembrancer's Act to the Court of Exchequer was to regulate the internal arrangements within the four corners of their own Court, but that it gave them no power to create new Courts; they could not go outside their own Court and give to suitors rights external to their Court, or give them power of appeal from their decision to the Privy Council, the House of Lords, or the Exchequer Chamber. After discharging their duties in hearing and disposing of a case, it escaped from them, and there was an end to their control over it. By making the rules of the 4th of November, 1863, the Court had attempted to legislate, and the provisions laid down under the guise of rules could only be justified by an Act of Parliament. Contrary to all practice in a case where the defendants had the verdict and the order of the Court discharging the rule obtained by the Crown, the Court had interfered and had given the losing party another chance by permitting him to appeal to the Court of Exchequer Chamber.

The Attorney-General, on behalf of the Crown, urged that the Court of Exchequer had only done what they were authorized to do by the Queen's Remembrancer's Act-namely, " to extend, apply, or adapt " any of the provisions of the Common Law Procedure Acts, and "any of the rules of pleading or practice" on the plea side of the Court to its Revenue side. This the Court were authorized to do by Act of Parliament; this they had done by their rules of the 4th of November, 1863, and further than this they had not attempted to proceed. The Court having listened to two lengthy and able arguments from each of the counsel, took time to consider, and on the 8th of February delivered judgment seriatim, the Lord Chief Justice of the Queen's Bench, Mr. Justice Crompton, Mr. Justice Blackburn, and Mr. Justice Mellor being of opinion that the Court had no jurisdiction to hear the appeal, and the Lord Chief Justice of the Common Pleas, Mr. Justice Williams, and Mr. Justice Willes considering that they ought to hear it. The case was then carried before the ultimate Court of Appeal, the House of Lords, the technical question of the jurisdiction of the Court of Exchequer Chamber being the point now at issue. It was again argued with great ingenuity and subtility on both sides.

The counsel for the Crown alleged in substance, that by the 26th section of the Queen's Remembrancer's Act the Barons of the Exchequer, or a majority of them, were empowered to extend, apply, and adapt various provisions of the Act of 1854, including those which grant a right of appeal on motions for new trials in suits between subject and subject, so as to confer that right on the parties to the proceeding then pending on the seizure of the “Alexandra." The general object of

the later Act being to assimilate procedure on both sides of the Exchequer, and the special intent of the 26th section being to enable the Court to carry out that object, the Attorney-General took his stand on the presumption that its provisions, properly understood, must be such as to facilitate their doing so. These provisions are two in number. The first authorizes the Barons, in very ample terms, " to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the Court," &c., as they should judge expedient for the object already specified; the second authorizes them, in the same terms, "to extend, apply, or adapt" any portions of either Common Law Procedure Act to "the revenue side of the said Court," with a view of making the "process, practice, and mode of pleading" uniform on the two sides. Both clauses of the section warrant their using these powers "from time to time." The AttorneyGeneral, therefore, argued before the House of Lords, as he had argued before the Exchequer Chamber, that the Barons had strictly complied with the second provision in giving the same kind of appeal in revenue causes as in civil actions. To do so was certainly not beyond the scope of the Act, for the Act itself created a new appeal, by way of " Bill of Exceptions." For this very reason, it could not be treated as the creation of a new right of appeal, but only as the designation of a second mode in which an appeal might be prosecuted. This was surely a part of "practice," and a part of the "practice" of the Court, for it was admitted that the cause belonged in theory to the Court before which it first came, and ultimately returned thither in fact. The act of the Barons was not an interference with the practice of any other Court, since it was no more than a permission to invoke the aid of the latter, subject to any rules of practice, &c., which might there exist. Yet, unless it were open to some objection of that kind, how could it be condemned as a transgression of the authority given in the 26th section? That section was clearly meant to incorporate prospectively such extracts from the Common Law Procedure Act as the Barons should select, other than those incorporated by previous sections, and what selection could they have made more entirely in harmony with the spirit of the Queen's Remembrancer's Act ?

To this reasoning Sir Hugh Cairns and Mr. Mellish replied by construing the words of the disputed clause with great strictness, denying in particular that "practice" would cover appeals, or that any implications, as, for instance, from the title and preamble of the Common Law Procedure Acts, were admissible at all. They dwelt much on the magnitude of the power thus claimed on behalf of the Barons, and on the improbability of its being entrusted to a bare majority to be exercised "from time to time," and therefore, as they suggested, liable to be revoked. They made the most of the distinction between motions for a new trial and Bills of Exceptions to show that a new right would thereby be called into existence, though they were compelled to make the least of the same distinction in rebutting the probability of the Legislature sanctioning the one directly, and leaving the other to be legalized at the discretion of the Barons. They urged that the competence of the latter must be limited to proceedings within their own Court, and that they could not lawfully adapt any provisions of the Common Law Procedure Act so as to affect the course of revenue proceedings beyond their immediate jurisdiction, for that these would then cease to belong to "the revenue side" of the Exchequer. Lastly, they challenged the right of the Barons to make any rules whatever that might affect the fortunes of a suit already pending.

The decision of the House of Lords on these intricate questions was given on the 6th of April, and this remarkable case once more exhibited that diversity of judicial opinion at the final appeal which had marked it through all the previous