Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress
Mr. Adams to Mr. Seward
Sir: I have received from Mr. Dudley, the consul at Liverpool, reports of the proceedings had at that place in regard to the detention of the ship Great Western, by order of the British government, on the allegation of some violation of the provisions of the enlistment act. It is obvious that this difficulty has been raised by the rebel agents, their attorneys and sympathizers, simply to try to make an offset to their own notorious operations, I do not myself perceive any just foundation for the interposition. No communication has yet come to me from the Foreign Office. A protest has been drawn up before the consul by the commander of the ship. All the papers will probably be sent to you from his office at Liverpool. I have advised that course to be taken, not deeming any action on my part expedient until all the facts shall have come under the President’s consideration, and his wishes communicated in formal instructions.
The proceedings against Messrs. Jones and Highatt, for enlisting seamen for the rebels at Liverpool, have terminated in a verdict pro forma, with a nominal [Page 2] penalty, to which the parties consented. I transmit a copy of the Times containing a report. The distrust of the law officers of their ability to enforce the statute seems to me to amount to timidity, for I do not suspect any want of disposition,
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward Secretary of State, Washington, D. C.
[Untitled]
Sittings in Banco, before the Lord Chief Justice, Mr. Justice Crompton, and Mr. Justice Shee.
THE QUEEN VS. JONES AND ANOTHER.
This was an indictment against two persons, named Jones and Highatt, for breaches of the foreign enlistment act, by procuring persons to be enlisted at Liverpool in the confederate service. The “Alexandra” case related to the equipment clauses of the statute; this case relates to the enlistment clauses. The title of the act (59 George III, chap. 69) is “An act to prevent the enlisting or engagement of his Majesty’s subjects to serve in a foreign service, and the fitting out or equipping, in his Majesty’s dominions, vessels for warlike purposes, without his Majesty’s license.” Then the preamble runs thus :
“Whereas the enlistment or engagement of his Majesty’s subjects to serve in war in foreign service without his Majesty’s license, and the fitting out and equipping and arming vessels by his Majesty’s subjects without his Majesty’s license, for warlike operations in or against the dominions or territories of a foreign prince, state, &c., or persons exercising or assuming to exercise the powers of government in any foreign country, province, or part of any province, &c., may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same,” &c. And then the first section proceeds to enact:
“That if any natural-born subject of his Majesty, his heirs, &c., without the leave and license of his Majesty, signified by order in council or by proclamation, shall take or accept, or shall agree to take or accept, any military commission, or shall enter into the military service of the foreign state, &c., or shall go to the foreign country, &c., with an intent or in order to enlist or enter himself to serve, or with intent to serve, in any warlike or military operation whatever, whether by land or by sea, in the service of, or for or under or in aid of any foreign prince, state, &c, or as an officer or a soldier, or in any other military capacity, or as an officer or sailor, or marine, in any ship or vessel, &c., he shall be guilty of a misdemeanor.” And then the clause proceeds: “that if any person whatever, in the United Kingdom of Great Britain and Ireland, or any part of his Majesty’s dominions elsewhere, &c., shall hire, retain, engage, or procure, or shall attempt or endeavor to hire, retain, engage, or procure any person or persons whatever to enlist, or enter or engage to enlist, or to serve or to be employed in any such service or employment as aforesaid, as an officer, soldier, sailor, or marine, either in land or sea service, for or under or in aid of any foreign prince, state,. &c, or to go or to agree to go or embark from any part of his Majesty’s dominions for the purpose or with the intent to be so enlisted, entered, engaged or employed as aforesaid, whether any enlisting money, pay, or reward shall have been or shall be actually given or received, or not; in any or either of such cases every person so offending shall be deemed guilty of a misdemeanor,” &c.
The indictment contained 51 counts. The 1st count charged that the defendants, “on the 25th day of March, A. D. 1863, within the United Kingdom of Great Britain and Ireland, to wit, at the parish of Liverpool, in the county of Lancaster, unlawfully and wilfully did hire, retain, engage, and procure one John Stanley to enlist as a sailor in sea service for, under, and in aid of certain persons exercising the powers of government in a certain foreign country; that is to say, for, under, and in aid of the Confederate States of America, against the form of the statute,” &c. The 2d count was a repetition of the 1st count, except that the description of the foreign power was as follows: “For, under, and in aid of certain persons assuming to exercise the powers of government in a certain foreign country; that is to say, for, under, and in aid of the Confederate States of America.” The 3d count was also a repetition of the 1st count, with the variation, “for, under, and in aid of certain foreign States styling themselves the Confederate States of America.” The 4th, 5th, and 6th counts charged that the defendants did hire, retain, engage, and procure Stanley “to enter and engage to enlist as a sailor in sea service for,” &c., (the description of the foreign power being varied, as in the first three counts.) The 7th, 8th, and 9th counts charged that the defendants did here retain, engage, and procure Stanley “to go and embark from a certain part of her Majesty’s dominions, to wit, from the port of Liverpool, in the county aforesaid, for the purpose and with intent to be enlisted as a sailor in sea service for,” &c., (the description of the foreign [Page 3] power being varied, as in the first three counts.) The 10th, 11th, and 12th counts charged that the defendants did hire, retain, engage, and procure Stanley “to serve and be employed in warlike operations by sea, in the service of and for, under,” &c., (description of the foreign powder varied as before.) The 13th, 14th, and 15th counts charged that the defendants did hire, retain, engage and procure Stanley “to go and embark from a certain part of her Majesty’s dominions, to wit, from the port of Liverpool, in the county aforesaid, in order and with intent to serve and be employed in warlike operations by sea, in the service of and for,” &c., (description of the foreign power varied as before.) Then followed 15 like counts as to the hiring, &c., of Benjamin Conolly, and 15 like counts as to the hiring of Francis Glass-brook. The 46th, 47th, and 48th counts related to the hiring, &c., of one Thomas Matthews, and corresponded to the 13th, 14th, and 15th counts. The last three counts charged that the defendants did “attempt and endeavor to hire, retain, engage, and procure the said Thomas Matthews to go,” &c, (as in the three preceding counts.) This indictment was afterwards removed into the court of Queen’s Bench, and the defendants pleaded “not guilty,” and the case came on to be tried at the last assizes at Liverpool before the lord chief justice and a special jury. The facts proved were as follows: The defendants were partners in the firm of Jones & Co., ship-store dealers in Liverpool; a third partner was Thomas Bold. In the beginning of 1863 an iron steamer was building in the Clyde, which on the 20th of March was registered by the name of the Japan, with the name of Thomas Bold, of Liverpool, as sole owner. This register remained unaltered until the 23d of June, 1863, when it was closed, in consequence of information from the owner (by letter of that date) that the vessel had been transferred to foreigners. About the 24th of March, Stanley, Glassbrook and Conolly were induced by a Captain Hedgecock to sign articles at the Sailors’ Home, Liverpool, to serve in the Japan on a voyage from the Clyde to Singapore and home—Stanley as a cooper, Glassbrook as an able-bodied seaman, and Conolly as a boy. Hedgecock was to be captain. On signing the articles, which was done in the ordinary way before a shipping master, they were told by Hedgecock to apply at the office of Jones & Co. for further directions. They did so accordingly; got advance-notes, (one of which was also cashed at the office by the defendant Highat,) and received directions to be at the passenger boat leaving for Greenock on the next evening, the 25th of March. The next evening they embarked, the defendant Highat superintending; apparently—but of this there was no positive evidence he had engaged and prepaid their passage. Their clothes had also been conveyed from the office to the steamboat. On arriving at Greenock they were transferred into a tug-boat, and thence on board the Japan. According to the evidence of one of the witnesses, the defendant Jones was on board the tug-boat superintending the transfer, &c. The Japan remained in the Clyde a few days completing for sea, and then quitted, under the command of Captain Hedgecock, whether nominally for a trial trip or upon her voyage to India did not appear. In point of fact, however, she proceeded into the British Channel, where she was fallen in with by a small steamer, which the Japan took in tow, and the two vessels then proceeded together to the French coast and anchored off Brest. At nightfall the Japan hauled alongside the small steamer and received from her guns, ammunition, &c. On board the small steamer was the defendant Jones, apparently taking some part in the disembarcation of the stores. The next day Captain Maury came on board the Japan, dressed himself in the uniform of the Confederate Sates navy, called all the hands aft and addressed them. He said “the ship was about to enter the confederate service, and to be called the Georgia; would they volunteer ?” This was said in the presence of the defendant Jones, and in the enlisting, which subsequently followed, he was by Captain Maury’s side persuading the men to enlist, taking their bounty for them, &c. Stanley, Glassbrook, Conolly, and others enlisted to serve for two years; others, however, refused, and returned to England in the small steamer, as also did the defendant Jones. Shortly afterwards the ship hoisted the confederate flag, and under the name of the Georgia, made a voyage to the Cape of Good Hope, destroyed several vessels carrying the federal flag, and in October, 1863, returned to Cherbourg, whence Stanley, Glassbrook, and Conolly returned to Liverpool. Meanwhile their wives had received their bounty, and also regular monthly money, at Jones & Co.’s office, and to this office the men applied for means to return to the Georgia. Shortly, however, after such application they entered into communication with the North American consul, and thenceforward acted, the result, of which was the present prosecution. The consul paid them wages and subsistence up to the date of the prosecution of the defendants before the magistrates in January, 1864; from that time they received the like weekly money from the solicitor to the Crown. The case as to Matthews was somewhat different. He had shipped on board the Japan at Greenock, had enlisted at Brest, and returned to Cherbourg, by which time a considerable sum was due to him as wages; he then came on leave to Liverpool, and when there applied to Jones & Co. for means to return to the ship.
By the defendant Highat’s instructions he went down to the Havre packet-boat at Liverpool, and there received from the defendant’s clerk £3, with which, in fact, his passage was paid to Havre. On arrival, however, at Havre he quarrelled with the boatswain of the Georgia, and in consequence never rejoined the ship. The above facts were proved by the evidence of Stanley, Glassbrook, Conolly, and Matthews. A certified copy of the ship’s register was put in (see 17th and 18th of Victoria, cap. 104, sec. 107) to prove the ownership of the Japan, the identity of which with the vessel therein described was proved by the witness. [Page 4] Glassbrook. The partnership of Thomas Bold with the defendants was proved by the manager of the bank at Liverpool. A Queen’s printer’s copy of the Queen’s proclamation of neutrality, 13th May, 1861, was also put in to prove the fact of war, “of certain States styling themselves Confederate States, &c,” which recites: “Whereas we are happily at peace with all sovereigns, powers, and states; and whereas hostilities have unhappily commenced between the government of the United States of America and certain States styling themselves the Confederate States of America.” At the close of the case for the prosecution the counsel for the defendant submitted that there was no case, inasmuch as there was no proof of intent on the part of the persons hired to enter into the foreign service at the time when they were engaged by the defendants in this country. The point was reserved, and the lord chief justice, in summing up, said he should ask the jury to determine by their verdict whether the defendants, or either of them, procured the persons mentioned in the indictment, or either or any of them, to go and embark from this port for the purpose of being enlisted, entered, or engaged in the confederate service. There was no doubt that all the four persons engaged did enter and enlist on board a steamer, which was immediately afterwards employed as a war steamer for the purpose of engaging in war against the northern States of America; and there seemed to be very little doubt that the defendants, both of them, had to do with those men leaving the port of Liverpool for the purpose of joining the ship. The question for consideration was, whether the defendants who procured the witnesses to embark at Liverpool did so for the purpose of their being enlisted and employed in the service of the Confederate States as a belligerent country, with whom this country was at peace, and towards whom this country was bound to observe strict neutrality. The jury found a verdict for the Crown. The verdict was then entered against the defendant Highat on all the counts, and against the defendant Jones upon all the counts, except the last six. The defendants were required to enter into recognizances of £500 each, with two sureties of £100 each, to appear and receive judgment.
They now accordingly appeared in court, and the attorney general, the solicitor general, and Mr. Edward James, Q. C, (who, as attorney general for the county palatine, had conducted the prosecution,) with Mr. Hannen and Mr. Vernon Lushington, appeared on the part of the Crown; Mr. Temple, Q. C, and Mr. Baylis appeared for the defendant Jones; Mr. Brett, Q. C, and Mr. Mellish, Q. C, appeared for the defendant Highat.
Notice had been given to the Crown, on the part of the defendants, that it was intended to move for a new trial, upon grounds set forth in the notice. The chief points intended to be raised on behalf of the defendants were, that notwithstanding the finding of the jury that the defendants had procured the men to leave this country with an intention on the part of the defendants that the men should be induced at sea to enlist in the confederate navy, yet the verdict ought to have been entered for the defendants, because the case was not within the statute, inasmuch as there was no purpose or intent on the part of the men so to enlist when they quitted this country; and that the judgment ought to be arrested, because the indictment only stated that the men were to be enlisted to serve as sailors, and did not go on to allege that the service was to be on board a ship or vessel of war.
On the case being called,
Mr. Temple, Q. C, rose and addressed the court in these terms: If your lordships see no objection to the course we propose to pursue, we believe there need be no further discussion of this case. We understand that the attorney general, under the circumstances of this case, will not press for a greater sentence or judgment than that judgment should be entered that each defendant shall pay a fine of £50. That being so, if your lordships see rio objection, the defendants will submit to such a judgment without further discussion.
The Lord Chief Justice. Provided it be understood that the law has been vindicated, the court will not object, if the Crown consent to that course. We presume that the counsel for the Crown have fully considered the case, and are satisfied that this is the proper course to pursue.
The Attorney General. Of course, we have gone fully into the case, and not only this, but the other cases which have arisen under the act. The government have not thought that it would be proper to press for a severe sentence in this the first case of the kind which has arisen. They have not thought it right to carry out the law in the other cases at all harshly, considering that they arose at a time when the law was not well understood; and they have not deemed it right to pursue a different course in this case. They therefore assent to the course proposed to be taken.
The Lord Chief Justice. Then be it so. The verdict will stand, and a judgment will be entered against each defendant for a fine of £50. But let it be distinctly understood that the law have been vindicated, and that the court are fully sensible of the importance and necessity of upholding it; and that in any future case of the kind which may arise a more severe punishment may be inflicted.
Judgment was accordingly entered that each defendant pay to the Crown a fine of £50