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SECOND DAY.-Wednesday, 18th November 1863.
Sir Hugh Cairns.—My Lords, the question which I was taking Argument. leave to consider yesterday when your Lordships adjourned was,
2nd Day. whether supposing you could show in point of evidence that there being in this country a ship wholly unarmed and wholly unequipped it could be proved that there was a certain equipment and a certain armament prepared and made ready for that ship, and as it were ear-marked, set apart in some store or repository, and supposing at the same time you had conclusive and distinct evidence that there was no intention to put that equipment or armament on board in this country, but on the contrary, that the intention throughout was to put it on board out of the Queen's dominions,—whether that would be an equipment or a furnishing or a fitting out or arming of the ship within the Act of Parliament. My Lords, that was a question put by way of suggestion by Mr. Baron Brain well, to which I was addressing myself. Now, before I part from that, in addition to what I remarked yesterday by way of argument, I would ask your Lordships to test that question in this way. Suppose that an indictment under this Act were framed under such circumstances, an indictment with reference to the arming of the ship, of course you would be obliged to allege that the person indicted did, within Her Majesty's dominions, arm a ship or vessel of such a name with the intent which is mentioned in the Act of Parliament; how would that be supported ? Would it be supported by proof of this kind ; not that there was any armament put on board the vessel, but that there was a particular store or repository in Her Majesty's dominions within which there had been prepared and set apart a certain armament destined for the ship; but the evidence showing at the same time that the intention was to put that armament on board, not within Her Majesty's dominions, but without? My Lords, I apprehend that the answer to that indictment would be, “That is not an arming of the ship; yout “ have failed in the allegation which you have made.” If that is so with regard to armament, it would be so with regard to equipment, and it would be so with regard to furnishing or fitting out. In truth, let us take common language as our guide upon the subject. I allege that a man furnished a house. Is
ARGUMENT. that allegation proved, in point of fact, if I show that the house
has not and never had a particle of furniture in it, but that a 2nd Day.
person went and ordered furniture to be made, and had it prepared, and had it set apart in some repository with the view to furnish the house at a future time and under different circumstances? And your Lordships will observe how far the argument which I am combating would have to go, because if the argument were a sound one it would be equally an offence within the Act of Parliament to show that there had been within Her Majesty's dominions an armament or an equipment prepared for a ship which was never within Her Majesty's dominions at all ; it would be equally true to aver that A.B. armed, or equipped, or furnished, or fitted out a ship.
Lord Chief Baron.—Or attempted to do so.
Sir Hugh Cairns.--Or attempted to do so; that is to say, if you could show that the ship being without the dominions, and never having been within them, or intended to be brought within them, A.B. had prepared or attempted to prepare a certain armament or equipment with the view to be carried out of the Queen's dominions and put on board that ship.
But, my Lords, I would also observe that although it is extremely convenient and useful in endeavouring to arrive at the true construction of an Act of Parliament of this kind, to deal with a case such as I have suggested, and to consider how the law would be, your Lordships must also bear in mind that there is no suggestion and no evidence in this case (and this I undertake to show when I come to deal with the evidence as to the "Alexandra") that there was any armament or equipment, or any furniture or fitting out, other than what appeared upon the ship herself. Of course I except the matter with regard to the guns, which I told your Lordships yesterday was ultimately given up at the trial, although originally alleged by the Attorney General; but over and above that, there was no suggestion that there was any kind of armament or equipment away from the vessel, prepared for her, different from that found on board, if any was found on board.
My Lords, I also should observe, in speaking of the extreme cases which were put by way of testing the construction of the Act, that I was about when the Court rose to call your
Lordships' attention to a phrase very often used, and I am not sure that it has not been used in the course of this trial. Some persons who take strong views as to cases of this kind say that it is a thing not to be tolerated, that the ports of this country should be turned into arsenals or used as arsenals for one of the belligerent powers.
Now, if that is properly understood, I have not the least objection to the expression. If it means that you shall not use one of our ports for the purpose of putting on board a ship a warlike equipment, I agree to the term ; but if it is intended to designate anything more than that, I entirely object to it; because there is not the slightest doubt that, according to the popular meaning of those words, the law, whether right or ARGUMENT. wrong, is such that you may practically turn our ports into
2nd Day. arsenals for one of the belligerent powers. There is nothing whatever that I am aware of in the law of this country to prevent one of the belligerent powers, for instance, employing or using a manufactory of arms in one of our ports with the view of shipping those arms afterwards. There is not anything that I know to prevent a belligerent power having a manufactory of arms in any seaport of this kingdom, such as the Government of this country have at Woolwich, and making guns and making small fire-arms, and making shot and shells on a large and extensive scale, and afterwards putting those guns and ammunition on board a freighted ship and sending them to a foreign port, subject, of course, to the liability of being captured as contraband goods ; but so far as making an arsenal, or making a manufactory of arms in our ports, or near our ports, is concerned, the law of the country is so, that it may be done, and in practice something very like it is done every day.
My Lords, in the case of the American Act of Congress there were the decisions to which I took leave to call your Lordships' attention, which were available for our instruction and information as regards the law in the United States. Unfortunately, having gone through the observations which I had to make upon the construction of our English Act, I am not able to supply your Lordships with any judicial authority upon the subject of the construction of that Act in this country. The fact is, as has been stated, I believe, on both sides of this case, and I believe it is accurate so far as we know, that there never has been an instance in this country where any judicial construction has been put upon this Act of Parliament.
Lord Chief Baron.—My brother Martin intimated to us that he recollected perfectly well a case tried before Mr. Justice Coltman.
Sir Hugh Cairns. That was the case of a Sicilian shipGranatelli's case.
Mr. Attorney General.- We have a note of the summing up in that case.
I cannot say much about its authenticity, for it does not come from a source which the Courts are in the habit of looking at; but if it be accurate, it seems to have been ruled by the learned Judge upon that occasion Mr. Locke. I have it from the Times newspaper, my
Lord. Mr. Baron Channell.—Lord Chelmsford was the Attorney General of the day, I think; he was in the case.
Mr. Locke. — There is a full report of that case in the Times newspaper of the 6th of July 1849. I do not know whether your Lordships will pay attention to a report of that kind, but it seems very accurately done, and there is the summing up of Mr. Justice Coltman. I should also tell your Lordships that Mr. Justice Maule was on the bench at the Central Criminal
Argument. Court along with Mr. Justice Coltman upon that occasion, and 2nd Day.
there is one very important observation.
Lord Chief Baron. As far as my experience goes, the circumstance of a learned Judge being present has very little to do with his opinion about the inatter. Unless in cases of very serious importance there are seldom two Judges present in the same Court. That is for the public convenience.
Mr. Locke.—The case occupied no less than four days in being tried; and on the one side was Sir Frederick Thesiger, and on the other Sir FitzRoy Kelly, besides other counsel.
Mr. Baron Channell.—The Corporation of the City of London employ a short-hand writer ; whether they did so at that time or not I do not know.
Mr. Locke.—Yes, my Lord.
Mr. Baron Channell.— The report furnished by that shorthand writer is not a full report of the case ; that is to say, of the speeches of counsel; but all points of law ruled are taken notice of; and it is printed by some bookseller in Chancery Lane, who publishes it. It comes out quarterly or monthly, and copies of that work are sent to the Judges. Whether that practice existed at the time when the case now referred to was tried or not, I do not know; if it did, we can have a copy.
Mr. Locke.--I can tell your Lordship exactly what the practice was at that time, and as it now is. A short-hand writer is employed by the Corporation, and copies are sent to all the members of the Corporation; I do not know whether to the Judges or not.
Mr. Baron Channell. Yes, they are sent to the Judges.
Mr. Locke. That short-hand writer merely takes down the evidence; there are 110 objections by counsel taken down, nor any arguments, nor any summing up of the Judges—it is simply the evidence. I have that book, if your Lordships like to consult it; but in consequence of there being no points taken, nor any summing up, I consulted the Times newspaper as the best medium that I could adopt, and I there found a very long report, during four days, and one or two objections which were taken; one by Sir FitzRoy Kelly, which bears directly upon this question, which was overruled by Mr. Justice Coliman; and likewise the summing up of the Judge; it is not given at very great length.
Sir Hugh Cairns. —Perhaps my learned friend will allow us to see the note, valeat quantum, which he has been able to obtain.
I recollect, my Lord, proceedings which took place on the subject elsewhere.
Lord Chief Baron. It is not usual in this Court, nor, I believe, in any Court, to refer to the report of a trial in a newspaper.
Sir Hugh Cairns.—No doubt, my Lord, that would be very inconvenient, and I do not propose it at present.
Lord Chief Baron.---The only use which I can make of it is this, that my brother Martin who was present at the trial should ARGUMENT. be furnished with the newspaper report to refresh his recollec
2nd Day. tion, and if he could report to us anything which was decided, it might be useful. I think that that is the only way in which one could apply it.
Sir Hugh Cairns.— My learned friends who are with me will look at what we have got; but I was about to say that I recollect very well proceedings which took place elsewhere with regard to the ship in question, and with regard to those who had chartered her, who were gentlemen of the name of Granatelli and Prince Scalia, who were taking part in the warlike proceedings against the Government of the King of Naples over Sicily at that time; and according to my recollection of the facts which took place, there is not the least doubt (whether there were arms on board or not, I do not know) that the ship was fitted out as a ship for warlike purposes in this country. I do not think that that was ever disputed. However we shall see if any information can be had upon that case ; but the result of the trial was, that those who were accused were acquitted, and the matter then came to an end; the Crown did not take the course which they have done here of moving for a new trial.
My Lords, apart from that case, which I do not think will be found to bear at all upon the law which is here to be determined, I am not aware of any other case which has arisen, or in the course of which a judicial construction has been put in this country upon this Act of Parliament. My Lords, that is itself a very remarkable circumstance, and I will ask your Lordships to bear it in mind throughout this case. It is now 70 years since the American Act of Congress was passed ; it is upwards of 40 years since the English Act of Parliament was passed; and that is, I take leave to say, a very remarkable circumstance. Occasions must have arisen, I should say, in the United States repeatedly, and in this country also more than once, where you would have found instances of ships convertible into ships of war, built in such a way as to be easily used for ships of war, taking their origin either in a port of the United States, while a neutral power, or in ports of this country while a neutral power, and leaving those ports without warlike equipments; instances must have occurred again and again in which those ships might have been made the subject of proceedings under the Foreign Enlistment Act, if it ever had occurred to the mind of any person that proceedings could be taken in a case where you had not the warlike equipment on board the ship.
My Lords, in the absence of decision upon the subject, it is not altogether improper to refer to what we have as matter of history in this country of cases in which proceedings were not takencases which were the subject of discussion and of consideration, and in which no proceedings of the kind took place. My Lords, I took leave (and the Lord Chief Baron perhaps may have a recollection of the circumstance) to mention, in the course of the trial, a case which excited a great deal of attention in this