take munitions of war or soldiers on board their private ships for transportation; and, although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of international neutrality, nor of themselves implicate the Government.
Perhaps it may not be out of place here to notice the charge of the Lord Chief Baron
of the Exchequer to the jury in the case of the Alexandra
, a vessel of one hundred twenty tons, under construction at Liverpool
for our government.
The case came on for trial on June 22, 1863, in the Court of Exchequer
, sitting at nisi prius
, before the Lord Chief Baron
and a special jury.
After it had been summed up, the Lord Chief Baron
This is an information on the part of the Crown for the seizure and confiscation of a vessel that was in the course of preparation but had not been completed.
It is admitted that it was not armed, and the question is, whether the preparation of the vessel in its then condition was a violation of the Foreign Enlistment Act. The main question you will have to decide is this: Whether, under the seventh section of the act of Parliament, the vessel, as then prepared at the time of seizure, was liable to seizure?
The statute was passed in 1819, and upon it no question has ever arisen in our courts of justice; but there have been expositions of a similar statute which exists in the United States.
I will now read to you the opinions of some American lawyers who have contributed so greatly to make law a science.
[His lordship then read a passage from Story and others.] These gentlemen are authorities which show that, when two belligerents are carrying on a war, a neutral power may supply, without any breach of international law and without a breach of the Foreign Enlistment Act, munitions of war—gunpowder, every description of arms, in fact, that can be used for the destruction of human beings.
Why should ships be an exception?
I am of opinion, in point of law, they are not. The Foreign Enlistment Act was an act to prevent the enlistment or engagement of his Majesty's subjects to serve in foreign armies, and to prevent the fitting out and equipping in his Majesty's dominions vessels for warlike purposes without his Majesty's license.
The title of an act is not at all times an exact indication or explanation of the act, because it is generally attached after the act is passed.
But, in adverting to the preamble of the act, I find that provision is made against the equipping, fitting out, furnishing, and arming of vessels, because it may be prejudicial to the peace of his Majesty's dominions.
The question I shall put to you is, Whether you think that vessel was merely in a course of building to be delivered in pursuance of a contract that was perfectly lawful, or whether there was any intention in the port of Liverpool, or any other English port, that the vessel should be fitted out, equipped, furnished, and armed for purposes of aggression.
Now, surely, if Birmingham, or any other town, may supply any quantity of munitions of war of various kinds for the destruction of life, why object to ships?
Why should ships alone be in themselves contraband?
I asked the Attorney-General if a man could not make a vessel intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it, would not that be lawful?
To my surprise, the learned Attorney-General declined to give an answer to the question, which I think a grave and pertinent one.
But you, gentlemen, I think, are lawyers enough to