THE ALEXANDRA. N OTWITHSTANDING the decision arrived at, there is very
much in the recent proceedings with reference to the Alexandra which even those who are most desirous that our neutrality should be vindicated may regard with satis- faction. In the first place, this is not the decision of a jury—that Messrs. Fawcett and Co. were not building the Alexandra for the Government of the Con- federate States. Considering the character of some of the witnesses for the Crown, and the weakness—the necessary weakness—of the proof of the intention of the builders, it would not have been remarkable if the jury had refused to draw that conclusion. Men of the class of special jurors are naturally prone to look with disfavour on any attempt even of the Legislature to limit the freedom of trade. State prosecutions, too, be they for what they may, have always in this country been regarded with suspicion. And although we do not doubt that the jurors would have endea- voured to do their duty, it would always have been in the power of the United States to attribute their verdict to that prepossession in favour of the Confederates which it is as idle to deny as it would be criminal to defend. This, however, cannot now be said. If the law was correctly laid down by the Chief Baron (and the jury were bound to take it from him), there can be no doubt that the defendants were entitled -to a verdict. In the next place, it is creditable to the judge that, taking a strong view of the construction of the statute, he did not hesitate to take the responsibility on himself. The result is that the Attorney-General has tendered a bill of exceptions, and the correctness of the Chief Baron's ruling will be considered by the Exchequer Chamber, a Court con- sisting of all the judges of the Queen's Bench and Common Pleas. Their decision as to the true construction of the Foreign Enlistment Act will be regarded with a deference which the opinion of no one judge, however experienced, can be expected to command, even in this country.
But before criticizing the ruling of the Chief Baron, we desire to say a few words on the character of the evidence. The Crown had to establish two propositions-1. That Bullock and others were perpetually interfering with the building of the Alexandra ; 2. That they were agents of the Confederate Government. Now a good deal was said, and properly said, by Sir Hugh Cairns, in the interest of his clients, about the character of the two American witnesses. It was argued that they were unworthy of credit, and, without question, their testimony was insufficient to establish anything of which there could be a reasonable doubt. But what were they called to prove ? That Bullock, Hamilton, and others were agents of the Confederate Government, and that alone. Was there any man on the jury, or is there any man in this country, who is not already convinced of it ? is it not matter of notoriety ? Does not every newspaper in the Southern States admit it? Just suppose that in an action it were necessary to prove that the person who resided in this country under the name of Prince Louis Bonaparte is the person who now rules France as the Emperor Napoleon III.—would it be proper for a jury to disbelieve the witness called to prove this, even if he were shown to be a man who had previously committed perjury? Certainly not. The character of a witness is only material as a means of testing the truth of his statements, and when the statements are merely matters of public notoriety, but which must be formally proved, anybody may, and, therefore, ought to be believed. Besides, the connection between a revo- lutionary Government and its agents can hardly ever be esta- blished except by a spy or a renegade. We are equally clear that the evidence of the English wit- nesses, which was not seriously discredited, was sufficient to raise a presumption that the Alexandra was being built for the Confederate agents. Of course the property in the vessel remained in the contractors. It would not pass to the buyer until she was completed, and he had accepted her as being such a vessel as he had contracted for. But no builder would have allowed the agents of the Confederate States to overlook the building of this vessel, and suggest improvements in her in the way they did, unless he was under a contract to deliver her to them when finally approved of. To this it is replied, " Oh ! but that is a mere presumption, and the Crown must prove its case." Every lawyer, however, knows that where the evidence raises a fair and reasonable presumption the jury is bound to act on it, unless the defendant rebuts it by positive testimony. Even in a criminal prosecution, if the Crown proves that a watch was stolen by somebody, and that a short time after the robbery that watch was in the possession of the prisoner, the jury are directed to conclude that he stole it, unless he proves that he did not. There is no conclusive proof in the matter. The thief may have dropped it, and an innocent man have picked it up, which is, indeed, the story commonly set up. But juries rightly hold, as common sense holds, that there is no reasonable probability that a man should be honestly in possession of stolen property soon after it is stolen, and be unable to show how he came by it. Now, the presumption the Crown asked the jury to draw in the case of the Alexandra is really just of this kind. It was shown that the Confederate agents and the builders had acted just as if there were a con- tract. And the defendants, who alone could give positive evidence on the point, and whose oath that there was no such contract would have put the Attorney-General out of court, carefully keep out of the witness-box. The evidence inevi- tably leads to a certain conclusion, unless positive proof to the contrary is given, and the defendants having it in their power to supply it withhold it. It is that which makes it clear as the day that the conclusion, which before was highly probable, is not only probable, but the truth. Ifjuries were not to act on such presumptions the business of life could not be carried on.
The Chief Baron, however, distinctly laid it down that even if the defendants were under a contract with the Confederate Government, it was no ground of forfeiture. "If," said he, "a man may build a vessel for the purpose of offering it for sale to either of the belligerent parties, may he not execute an. order for it ? That appears to me to be a matter of course." We are very well aware with what deference it becomes us to speak on such a subject and in opposition to such an authority, but it does appear to us that, so far from being a matter of course, the difference between the two cases put is precisely the difference between legality and illegality. What is the cause of forfeiture according to the Act of Parliament ? Han), person equips, or attempts to equip, or knowingly aids in equipping any vessel, with intent that such vessel shall be em- ployed in the service of any state, with intent to commit hostilities against a state with whom Her Majesty is not at war, the vessel is to be forfeited. For the moment, let us confine our attention to the "intent." Can it be said that if the person equipping the vessel is under a binding contract to deliver her to one of the belligerents, he has no intent that she shall be employed in his service ? The fallacy of the Chief Baron's proposition rests in the phrase, "Either of the belligerent parties." The reason why, in that ease, the Act is lawful, is not because the builder may sell to either, but because he may sell to neither. He has it in his power to sell the vessel to a belligerent, it is true, but he has it equally in his power to sell to some state or person who is not a belligerent at all. Intention is a settled purpose of the mind, and so long as a man has the option to employ a vessel as he pleases he cannot be said, whatever purposes or schemes may have occurred to him, to have an intention to employ her in any particular manner. But as soon as he has entered into a contract from which he cannot escape, a contract binding him to deliver the vessel to one of the belligerents when completed and approved of, it does seem that if language has any mean- ing at all he has a settled purpose, or an intent that she shall be employed in the service of that belligerent. And what will be the result of the Chief Baron's ruling ? That no vessel can ever be forfeited until she is out of the bands of the builder and delivered to the agents of the belligerents— which, of course, will never be done till she is at sea,—and thus the Act will be made a dead letter. If this were the meaning of the Legislature, is it not obvious that its language would have been to "equip with intent to employ such vessel." The words actually used, "with intent that she shall be em- ployed," seem intended to meet this very case—a contractor equipping under a contract with a belligerent. There is another point on which the Chief Baron's ruling seems still more untenable. He held that there must be an actual arming of the vessel, or an attempt to arm her in this country. The words of the statute are "equip, furnish, fit out, or arm ; " but his Lordship seems to have looked out the word " equip " in " Webster's Dictionary," and to have found that one of the meanings given is "to furnish with arms." There- fore, argued he, equipping is the same thing as arming ; and "furnish, fit out," are mere equivalents for "equip," so they both also mew, arming; and then (this seems the inevitable con- clusion) the sLaiarte reads "arming, arming, arming, or arming," and there is no offence unless the vessel is to be actually armed in this country. And in conformity with this view, he said that the fitting out of the Alabama in this country was no infringement of the statute, because her armament was not put on board her till she arrived at Terceira. Now, it will not be denied that words in an Act of Parliament which are not technical—which are not a lawyer's words of art—are to be taken in their ordinary every-day meaning, and the ordinary every-day meaning of words is a subject on which any educated man is as good a judge as even a Chief Baron. The etymology of the word is doubtful. If it is de- rived from the medireval Latin " eschipare " (which seems the more probable derivation), it means, according to Ducange, to furnish with " scaphae,' which in the vernacular is es- quifs,' "—to funeish, that is to say, with boats,—and thence, because that is the completion of a vessel's furnishing, to furnish completely. Webster, the Chief Baron's own authority, says that it means "properly to dress, to habit." Others derive it from " ephippiare," to furnish a horse with trappings. But Whatever be its etymology, it is un- questionably now used simply in the sense of "to furnish." The Chief Baron will have some difficulty in persuading people that when Burke talked of the equipment of a play- house, he made any allusion to cannon and gunpowder, or that when Addison said that country people equipped themselves "in a ridiculous habit" which they fancied "the height of the mode," be meant that they walked about armed to the teeth. Indeed, taking this view of the statute, holding that when the Legislature said "equip or arm," it meant just the same as if it had said "equip and arm," it is difficult to see why he did not stop the case at the conclusion of the evi- dence, for the Attorney-General did not contend that he had proved an intention to arm the vessel in this country.
In conclusion, we would say that we can quite sympathize with those who think this Act should never have been passed. Whether it would not have been better to say to belligerents, we, as individuals, shall sell to whom we please, and build for whom we please, and enlist under whom we please, and you must do the best you can to defend yourselves, we at least will not be your sheriffs' officers," is a question on which there may, doubtless, be two opinions. But we have always expected Americans to do this service for us, and if we mean to hang back now let it be done openly by the repeal of the statute. An Act of Parliament ought not to be defied by juries or frittered away by a judicial explanation. No doubt the Chief Baron is far above the suspicion of conscious partiality, but little good is gained by treating judges as if they were above the common frailties of human nature. And we shall not shrink from saying that this ruling seems to us so erroneous, that we are driven to the conclusion that he has not been able in this case to free his mind from the bias incidental to his known political leanings. We say it with unfeigned deference, but we think this judgment cannot stand.
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