The AlexandraThe Illustrated London News, vol. 43, no. 1233, p. 533.
November 28, 1863
The court in which pleas between the Crown and the subject are tried has been for many days the scene of an elaborate forensic exercitation; and though the matter in question has been a dry point of law--the construction of a single word in an Act of Parliament--public interest has been as strongly represented by a crowd of eager listeners as if some sensation trial was an hand. At least, the subject involved in the case of the Alexandra has the attraction of novelty. In itself contracted within a very narrow circumference, and affecting a right which can concern but a very limited class of persons, and under very peculiar circumstances, yet it is associated with such vast national and international interests--it bears within it the seed of such great events--that thinking men must feel that its importance cannot be over-rated. In a single phrase in a statute, which has lain rusting so long that the oldest Judge on the Bench confessed himself inexperienced and perplexed with regard to it, are comprehended questions of duty and honour, as between this nation and another, on which may depend issues of peace or war, which are viewed in this country with special consideration. Averse as Englishmen are to war for any idea, they view with particular aversion hostilities with America. They, at least, have not ceased to regard such a contest as one which would partake of an internecine character; and they have therefore borne with creditable patience all the bluster of the North and, so to speak, the feminine petulance of the South, while endeavouring consistently to observe that neutrality which they conceive to be a simple duty. In considering this subject of the Alexandra--that is, the fitting-out of ships in this country which may be used in the service of either of the American belligerents--it seems to us that the object which we in England should have solely in view is the preservation of neutrality. When eloquent lawyers have refined for days, to that issue the matter must come at last.
The gist of the question--indeed, the whole question--is contained in the seventh clause of our Foreign Enlistment Act; and
Page 534to this test all the arguments must be brought, and by it all the decisions guided, reference being always had to the manifest spirit and purport of the Act. By that seventh section certain things are declared to be illegal and to subject the doer of them to the penalties of a misdemeanour. The cause for this enactment is stated in the statute to be that such acts may be prejudicial to and tend to endanger the peace and welfare of the kingdom, and, because the laws in existence are not sufficiently effectual for preventing such acts, it is necessary to supplement them by this special enactment. If proceedings to which the seventh section appears to have been directed are calculated to have the dangerous tendency thus specified, and could not have been prevented by any provision of the existing law, it is obvious that it was the aim of the Legislature to repress this mischief by means of new and particular legislation. In this instance our common and statute law, as well as international law, were insufficient to meet a case which had arisen, and one which involved the principles and the practice of neutrality. It is this supplementary municipal law that is now on its trial; and it remains to be seen whether, creating as it does a special offence, it can be construed with sufficient clearness and definiteness to put an end to all uncertainty on points which, under the peculiar circumstances of the case, are likely to be constantly cropping up.
With all respect for the great skill and ability which have been exhibited by the advocates on both sides we venture to think that much of their labour has been practically thrown away. The real object to be attained is to explain and give a practical bearing on the facts, of the language of the section. For this purpose the defendants' counsel entered into elaborate conjectures as to what the intentions of the Legislature were; and the very singular, not to say unusual, course was adopted of referring to the Parliamentary speeches of statesmen who took part in the discussions during the passing of the Foreign Enlistment Act. In this range of argument continual reference was made to a similar measure which was passed by the United States, and to the interpretation which was put upon it by American Judges. For purposes of philosophical illustration this was all very well, but it certainly expanded the compass of the argument in a somewhat unreasonable degree. In a few words, the real matter in issue seems to be that the Crown lawyers found themselves mainly, if not altogether, on the intent with which vessels are equipped for one set of belligerents at war with another set with whom we are at peace, and the understanding between the equippers and the agents of the party for whom they are working; while, on the other hand, the case of the owners of the Alexandra is made to depend on the nature of the acts by which it is alleged that the law has been broken. Stripped of all redundancy and reduced to simple propositions, these have been the subject-matter of the lengthy arguments in the Court of Exchequer.
Even those who have paid the least attention to the case are probably aware that the section in question prohibits the knowingly being concerned or aiding in the "equipping" of any vessel, with the intent that it shall be employed in the warlike service of any foreign State against any other Power at peace with this country. In the construction of this little word "equipping," taken with its context, is the point, apparently so knotty, which is to be determined. The argument for the Crown is that, given the intent, any equipment, though not overtly warlike, and even if a ship should receive no bellicose fitting until it passed into the hands of a foreign Power, would be sufficient to bring the case within the statute. Prove the intent, and the misdemeanour is complete. Now, as far as we are able to judge, it seems to be admitted that the Alexandra was intended for sale to the Confederate States; and, that being so, what have her builders and equippers to say for themselves. They affirm that the equipment, to come within the Act, must be patently warlike, and that the intent is not to be gathered from any other than that fact. Nay, further, they even urge, and it is not denied, that a ship of war may be openly built in this country and offered for sale to any person who may choose to purchase it; and yet such a proceeding would not come within the prohibition of the Foreign Enlistment Act. But it is quite possible that in such a case, and without any actual contract with a belligerent State for the fitting out such a vessel, it may be surrounded by circumstances which might enable the Crown lawyers to come down upon it with their cry of intent, and, if they could get such evidence as would satisfy a jury, to enforce the law as it now stands. It is, we will not say easy, but possible, to suggest cases which would be equally breaches of neutrality in theory and practice with that particular Act with which we are now dealing; but that may arise from the imperfection of law; and it is no argument to say that because the law does not touch one offence it cannot or ought not to reach another which may be more specifically indicated. Every one knows that the meshes of Acts of Parliament are not always effectual to hold every fish which they were designed to entangle; but when one of the interstices is powerful to capture it should not be cast aside in deference to its more lax companions.
In considering this subject to the best of our ability, we venture to hold with the Crown, and to think that, looking, as we have already said, to the spirit and intention of the Act of Parliament, if there is sufficient evidence of the intent to convey the Alexandra, for warlike purposes, into the service of the Confederates, mere justice has been done by her seizure. The great object for which we contend quoàd the Americans in their terrible struggle is, neutrality pure and simple on the part of England--"Tros, Tyriusve," Federal or Confederate, without exactly saying "a plague on both your houses!" Let us not meddle in any way in their quarrel by comforting or assisting either of them. No doubt there is a good deal of prate about large supplies of guns and warlike stores being allowed to be sent to the Federals with impunity; but the moment a ship is built for the Confederates a partial Government interferes. But it should be remembered that in all cases of contraband of war the parties who engage in the traffic do so at their peril. The Confederates are acknowledged belligerents, and they may capture any articles contraband of war they find in British vessels destined for Northern ports, and no redress could be even asked by the losers; while the owners of vessels attempting to run the blockade of the Southern ports know exactly what they are doing. This is no question of sympathy or sentiment; it is no question of the rights or wrongs of the belligerent parties; but it is one of solemn national duty on the part of this country. If in the event the decision of the Courts should be adverse to the Crown in the case of the Alexandra--if her seizure has not been justified by existing law in the interests of strict international neutrality, we contend that what we conceive a defect in the Foreign Enlistment Act should be supplied by legislation.