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(5). In the fifth place (to come to the head of fitting out ships, and maritime neutrality purely), the British Foreign-Enlistment Act, as a neutral measure, has the clear superiority over our own in forbidding the fitting-out, &c., of any " transport or store-ship" for belligerent use; a prohibition never contained in the American statute, and which would have materially narrowed that right of engaging in the carrying-trade of European wars (whether by chartering or selling vessels to the belligerents), which our Government so strenuously contended for at the period of the Crimean war, under the administration of President Pierce. Can General Banks point to any thing in the American revision of 1818, so "criminally restraining the rights of nations at peace for the benefit of those at war," as this provision of the British act? And would he consider that England meant to favor the perpetuation of [her own] supremacy on the sea," by such a self-denying ordinance as this?

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It does not blunt the point of my questions at all, that this clause of transport or storeship" came into the British act at the hands of Sir James Mackintosh, its opponent, and with a hostile intent to the legislation [in order to put the SouthAmerican colonists on a par with Spain, as noticed by Sir R. P. Collier, the Solicitor-General, at the "Alexandra " law-trial, Rep., p. 425]; the fact still remains, that the words are there as a part of the existing statute, and in substantial conflict with General Banks's new proposition (sec. 10 of his Bill), declaring that "nothing in this act contained shall be so construed as to prevent citizens of the United States from selling vessels, ships, or steamers . . to inhabitants of other countries, or to governments not at war with the United States." Does not the selling or chartering a transport or storeship to a belligerent service (for which the General would contend totis viribus) almost necessarily presuppose some degree of "fitting-out," or "attempting to fit out," or "being concerned in the fitting-out," of the commercial carrier, which is struck at and reached by the British statute as it now stands? (6). In the sixth place, the British statute contains those much-belabored words, "equip, furnish, fit out, or arm ;” while our own only denounces "the fitting-out and arming" a ship of

war for belligerent uses, -a distinction between "or" and "and" which saved us from having Laird's iron-clads let loose against us in September, 1863; since, as all who have studied that dark crisis in our English relations will well remember, it was only the terms of the British act forbidding Laird from "equipping, furnishing, fitting out, or arming," or "attempting to equip, &c., . . . or arm," short of arming, which enabled the Palmerston ministry to take the decisive step of laying hands on the Confederate rams, the "El Tousson" and the "El Monassir," before they had got into that state of arming which Laird's legal advisers deemed within the bounds of impunity.

Now, I notice in General Banks's Bill, that, unmindful of the pitfalls disclosed by the "Alexandra" trial in England, and by the case of United States v. Quincy in our own Supreme Court, he proposes to fall below the level of British neutrality again, and only make the fitting-out culpable when consummated into full arming. Sec. 3 of his Bill reads,

"If any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or shall knowingly be concerned in the fitting-out and arming of any ship," &c., he shall be punished," &c.

And this provision, if hereafter enacted into a law, will, I am sorry to say, amount to an effective repeal of "or," and substitute "and" for "or" in the only place where obtains in this clause of our statute.

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Whether this change of our own law of 1818 is the result of deliberate purpose, or only a piece of carelessness on the part of the chairman and his committee, jointly with the House of Representatives, I am unable to determine. I can only imagine with what amazement the proposed alteration will be read by English judges and lawyers who have been concerned in the Alexandra" and "Pampero" trials, where these two conjunctions, "and" and "or," played such a conspicuous part in the discussions.. To explain their significant effect, I may remark, in passing, for the benefit of those who have not examined the subject, that a country may as well have no neutrality laws at all on the subject of fitting out ships for the use of belligerents,

as to compel its executive to wait till the outfitting vessel has taken on board its armament before authorizing the seizure. It was the salvation of our neutrality statute of 1794, and again of that of 1818, that, in the clause of "knowingly being concerned in the furnishing, fitting-out, OR arming," there came in this blessed "or," in place of the previous "and," which had coupled together "fitting out" and "arming" in the earlier sentences. So that, in Guinet's trial in 1795 (2 Dall. Rep., p. 321), and again in Quincy's case (6 Peters Rep., p. 445), where the point was not raised till as late a day as 1832, and then on behalf of the defendant by Mr. Wirt, who had been Attorney-General of the United States, the Government were able to hold on upon the defendants, and establish for themselves two of their best precedents of neutrality, wholly by force of this little particle "or" in the statute.

Did General Banks and his committee mean to treat these learned discussions with contempt; or, when he drafted his new statute, was he purposely codifying Chief-Baron Pollock's famous dictum, that "equip, furnish, fit out, or arm, all mean precisely the same thing"?1

(7). Seventhly, The British Foreign-Enlistment Act is more comprehensive than our own, in using after the clauses "equip," &c., "or attempt to equip," &c., the phraseology " with intent,

1 In speaking of Guinet's and Quincy's cases, as I have above, I am not unmindful that these two decisions have been severely criticised in the English and Scotch courts; and that Baron Bramwell in the English Court of Exchequer asserts with great positiveness, that Quincy's case was wrongly decided." ("Alexandra" Law Hearing, p. 547.) Now, while agreeing to the position, that, on scientific grounds, an attempt ought not to be construed on stricter principles than the complete offence itself, I must yet contend, that the ruling against Quincy is fully borne out by the literal prescription of the statute. "Ita scripta est lex" seems to me a perfect answer to any argument drawn from the relation of principal and accessory, or based upon the theoretical idea of what the statute-makers ought to have prescribed. But will not the learned Baron agree, that it is quite as commendable and judicial to enforce the literal fulfilment of a positive statute, though unscientifically constructed, as to openly “evade" the object of the law-within his own admission - by insisting that its distinctive terms have no meaning? - [See Baron Bramwell's denunciation of what he calls a quibble" during the law-hearing of the " Alexandra case (p. 100), and his subsequent adoption of the same quibble " "in solemn judgment; all the while confessing that he was "evading" the statute, pp. 548, 549.]

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or in order, that such ship be employed," &c. Our statute stops short with "with intent;" while the British, by adding "in order that," helps simplify a troublesome question of whose the intent must be, — whether the equipper's, or the belligerent state's, for whose use the vessel is equipping. This distinction was also largely discussed in the "Alexandra" and "Pampero" cases; and Baron Pigott, of the English Exchequer Court, from whom we got the best declaration of neutral law that the English courts have afforded during the late rebellion, has noticed the superiority of the British statute over our own in this particular. ("Alexandra" Law Hearing, p. 565, &c.) Did General Banks and the House of Representatives mean to turn their backs on this friendly light; or did they prefer darkness to light in this instance again, in leaving the old phraseology of the American act to stand as it is?

(8). Eighthly, The British statute has a wider scope than the American, and so seems more effectively neutral, in using after the words "colony, province," &c., the terms, "or of any persons exercising, or assuming to exercise, any powers of government," &c. The Government of Jefferson Davis and his associates, for example, both in the "Alexandra" and the Pampero" proceedings, was set forth under these terms of the Foreign-Enlistment Act; the English and Scotch pleaders not considering it safe to rely upon any such designation of the Confederate authorities as would be afforded by the phraseology of the American statute, "colony, district, or people; or rather the corresponding phraseology of the British act, colony, province, or part of any province, or people." Possibly in these pleadings the Crown lawyers were over-cautious; but the American legislator, in reviewing them, might well have had the doubt suggested to his mind, whether Canning and his official associates were scaling down from the strictness of the American law, when they added to "colony, province, or part of any province or people," the cumulative expressions, "or of any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people." At any rate, considering that the British lawyers and lawgivers have given us

such a hint about the best mode of describing Jefferson Davis & Company in legal proceedings, would it not have been well for our legislators to have made a note of it for future judicial use?

Before passing from this common section of the two statutes, I believe that I ought to call attention to the keen point made in the Scotch Court of Exchequer, in the discussion of the Pampero" case, by Lord Curriehill, an acute member of that court, that the American statute contains no prohibition at all against privateering; all its penalties, in his view, being directed against fitting out and equipping ships of war for the public service of foreign belligerent powers. The language which gives rise to this suggestion is, "If any person shall fit out, &c., any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince," &c. Now, as the captain of a privateer, the learned judge argues, cruises for his own gain, and not in obedience to the orders of the power that commissions him, he cannot be said to cruise" in the service" of that power ("Pampero" Case, p. 193).

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The British statute departs from the American in this particular in providing what at first seems an improvement upon the American act that it shall be penal for any person "to equip any ship or vessel with intent or in order that such vessel shall be employed in the service of any foreign prince,

or with intent to cruise or commit hostilities against any prince. . . with whom His Majesty shall not then be at war. Lord Curriehill attempted to satisfy himself out of this apparent divergence from the American statute, that the British legislators meant to provide against privateering under a commission, letter of marque, &c.; but, after reasoning out the matter with great intentness (pp. 194-7), he is driven to the conclusion, that, as the cruising with a hostile intent is a necessary ingredient, at all events, of the prohibited act of the statute, the first category of being employed in the service of the foreign prince overrides both distinctive provisions; and so, that the British act, like the American, leaves the coast clear for fitting out unneutral privateers for belligerents; in short,