Motion for Rule for New Trial. Mr. Baron Bramwell.-I should think one might take it for granted that whatever offence was in the Act was included in the information, there being 98 counts. Mr. Attorney General.-Yes, I think your Lordships may take that for granted. Lord Chief Baron. I should like to have a copy of the abstract. Mr. Attorney General.—I am afraid that I have not a copy of any abstract. Lord Chief Baron.-I could take one of the Solicitor General's. Mr. Attorney General.-I think that probably this will do, my Lord. My learned friend Mr. Jones has one. (The same was handed up to his Lordship.) My Lords, perhaps without going into too much detail, I may state in a few words that you will find in the clause of the Act these different heads, which were all taken by the information-first equipping, then furnishing, then fitting out; we did not charge arming. Lord Chief Baron.--That is the very point which I wanted to call attention to. Mr. Attorney General.—We did not charge arming. Lord Chief Baron.-I was not quite certain, but my recollection was that arming was not charged at all in the information. Mr. Attorney General.-No. Lord Chief Baron.-Nothing was charged but equipping, fitting, and furnishing. Mr. Attorney General.-Equipping, furnishing, and fitting out were charged. Mr. Baron Channell.--Each separately charged? Mr. Attorney General.-Each separately charged. Then, my Lords, attempting or endeavouring to equip, attempting or endeavouring to furnish, attempting or endeavouring to fit out, were also each separately charged; then procuring in like manner, then knowingly aiding, assisting, or being concerned in like manner, each of those in the disjunctive being made a separate offence by the statute. And, my Lords, I ask particular attention to this, because we humbly think that the learned Judge at the trial entirely overlooked the existence in the Act of Parliament of provisions against attempting, or endeavouring, or procuring, or knowingly aiding, assisting, and so on, and addressed, if not his mind, at all events his observations, entirely to the notion of a complete equipping, furnishing, or fitting out in the sense which his Lordship considered that those words ought to bear. Of course we charge in each case that these acts were done with the intent mentioned in the statute, which I apprehend will be found by your Lordships to be the gist of the offence, the prohibited intent, which is this, "with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, "province, or part of any province or people, or of any person 66 "or persons exercising, or assuming to exercise, any powers Motion for Rule "of government in or over any foreign state, colony, province, for New Trial. "or part of any province or people;" the words follow, "as 66 66 66 a transport or store ship." There is no reason to suppose that this vessel fell within these words, "or with intent to "cruise or commit hostilities against any prince, state, or potentate, &c. with whom His Majesty shall not then be at "war." That was the charge made by the information, and, my Lords, it was met by a claim put in on behalf of Messrs. Fawcett, Preston, and Company, the engineers whom I have mentioned at Liverpool, who traversed generally the whole of the information, supporting their locus standi in the manner which the Customs Consolidation Act provides for. The Act is the 16 & 17 Victoria, cap. 107., sect. 309, which provides this "That no claim nor appearance shall be permitted "to be entered to any information filed for the forfeiture of any ship or goods seized for any cause of forfeiture and re"turned into any Court, unless such claim or appearance be "made by or in the true and real name or names of the owner or proprietor of such ship or goods, describing the place of "residence and the business or profession of such owner or pro"prietor; and if such person shall reside at London, Edinburgh, "or Dublin, or within the liberties thereof, oath shall be made by "him before one of the judges of the Court into which the said ship or goods are returned, or in which such information is filed, that the said ship, boat, or goods was or were his property at "the time of the seizure; but if such person shall reside else"where" (which was this case, for in this case the claimants resided at Liverpool) " then oath shall be made by the attorney by "whom such claim or appearance shall be entered, that he has full authority from such owner to enter the same, and that to the "best of his knowledge and belief such ship or goods were at the "time of the seizure thereof the bonâ fide property of the person "in whose name such claim or appearance is entered;" so that, to give a locus standi under the statute, and to guard against merely fictitious claims by persons having no interest whatever which can be bond fide put forward or alleged. In this case an affidavit of the attorney was required, and was made—that he believed that at the time of the seizure these gentlemen were the bona fide owners. Of course it was only an affidavit to secure a locus standi in curia; it would not for any other purpose be evidence as to the circumstances, if they should become material, connected with the ownership. 66 My Lords, I now come to the evidence which was given at the trial, and I think it will be convenient, having mentioned the grounds on which I move, that I should invert the order of opening the case, and should state to your Lordships the effect of the evidence, applying it to the Act of Parliament in my own way, so as in the first instance to support that ground of my motion which rests on the verdict being against the evidence, and I will afterwards come to the direction of the learned Judge. I think Motion for Rule your Lordships will be of opinion, when you hear that direction, for New Trial. that the jury never had any opportunity whatever of giving a verdict upon the effect of the evidence, in reference to that view of the Act of Parliament upon which the Crown proceeded; it was, in fact, not left to them at all; it was left to them in a totally different way, so as to preclude the exercise of judgment by them upon what we regard as the true and the material question. I am now going to tell your Lordships what the evidence was. Now, the clause in the Act of Parliament substantially divides itself into two points, namely, that there must have been a furnishing, fitting out, or arming, or an attempt or an aiding, and in this case I should prefer taking my stand upon the words "attempt or endeavour" and "aid" and so on, because the thing was not actually completed. That being so, the evidence of course will be found to be addressed to these two material points:-first, the existence of such an attempt or endeavour, and secondly, the intent and the purpose with which it was going on,-those are the two things. If there was an attempt or endeavour to do it with the prohibited intent, the statute was violated. The evidence, therefore, of necessity had to be addressed to those two subjects; and I will now bring under your Lordships' notice, as concisely as I am able, the material portions of the evidence bearing upon those two points, and your Lordships will recollect, while I do su, that it was uncontradicted evidence,-I mean that no evidence whatever was called upon the other side; this evidence, therefore, was the only evidence upon which the jury had to form their opinion. Now I will first of all take the evidence as to the vessel, and her condition as to preparation and equipments at the time when she was seized, and afterwards the evidence as to the intent. We will take the first head first,-the evidence as to the condition, character, and state of the vessel, and preparations and equipments. Now it appeared from the evidence of the Custom-bouse officer, Mr. Morgan, who had charge of the vessel, and who seized her, that she was launched in March, that she was seized upon the 5th of April, that at the time of the seizure she was incomplete, but that she had three masts on, with lightning conductors, and portions of her machinery and other fittings actually on board, and other portions in progress. Now with regard to her character and the objects and purposes for which she was constructed and built and being fitted out, we have evidence which I will give your Lordships, as far as is necessary, in detail; but I will give the effect of it first in a few words-that she was built as and for a gunboat; that she had bulwarks and a rudder adapted only and peculiarly fit for purposes of war; that she was certainly unfit for any mercantile purpose whatever, though she might possibly have been used for a yacht; that although she had at the time when she was seized no fittings actually placed upon her to enable her to receive guns, yet it wanted only work which could be done at any time, and with the greatest facility, to adapt her to receive two or three pivot guns, which would be the proper number for her, which would sweep over her bulwarks, and Motion for Rule make her serviceable as a gunboat, for which she was meant. for New Trial. So much with regard to her character. Then with regard to the fittings Lord Chief Baron.-Will you allow me to call your attention to what a captain in the Royal Navy said of her? Mr. Attorney General.-I am going to give it to your Lordships in detail. 66 Lord Chief Baron.-He said, "She is without any of those appurtenances which indicate an intention of guns being put "on board." Mr. Attorney General.-I have already said so, my Lord; but he also said, as I shall show by the evidence immediately, that it could be done at any moment of time, and therefore, she being seized when incomplete, of course not everything would be done, and probably those things would be left to the last which were most unequivocal with regard to the determination of her character and her purposes. I wish your Lordships to see what it was that was done, what the evidence did prove upon that subject. I am going to mention one thing more. All that I have hitherto said connects itself with the structure of the vessel; but then there was further evidence going to what I apprehend is in the strictest and most appropriate sense fitting, furnishing, and equipment, as distinguished from construction, namely, evidence as to the machinery, the engines, the boiler, and other things of that description constituting part of the furniture of the vessel, thereby to enable her to go to sea, which were either actually on board or actively in progress at the time. There was also further evidence as to certain hammock nettings and stanchions, of which your Lordships shall have the detail; and there was evidence, not, perhaps, so directly and unequivocally connected with the vessel, as to the preparation of gun carriages and guns for the ship. I have told your Lordships the effect, generally, of the evidence, and I am now going to give you some of the detail of it as far as is necessary. I will, first of all, take the evidence of Mr. Barnes, an engine-driver, which, my Lords, is at pages 39 and 40. Lord Chief Baron.-Of what? Mr. Attorney General.-Of the print from the short-hand writers' notes which I hold in my hand of the evidence. Lord Chief Baron. Which we have not a copy of at all. Probably you will have the kindness to furnish it; it is not so necessary for me because I have my note. Mr. Attorney General.—It is from the short-hand writers' notes, my Lord. Lord Chief Baron.-I have never had that at all for any purpose. Mr. Attorney General. I am sorry your Lordship should not have it in your hand whilst I have it. Lord Chief Baron.-I certainly now see it for the first time. I have had nothing furnished to me but a copy of half of Sir Hugh Motion for Rule Cairns' speech, the reply of the Attorney General, and my own for New Trial. summing up. The Queen's Advocate.-I will hand up my own copy to your Lordship. Lord Chief Baron.-It is not for myself that I want it, because I have my own original notes, to which I shall adhere; but it would be desirable that my learned brothers should each of them have a copy. Mr. Attorney General.-My Lord, I am about to read from a book which has been printed by my opponents; it is their corrected copy of the short-hand notes, which I prefer reading to reading ours, which does not, of course, differ from it; but there are some passages which may have been corrected in some way by them, and I prefer taking their copy. Lord Chief Baron.-If you have the benefit of a printed book, I think you should at least give my learned brothers the benefit of it, that they may have the same advantage. Mr. Attorney General-That, my Lord, is the same book as the one which I am about to read from (a copy being handed up to the Bench). Lord Chief Baron.-Have you not the means of giving a copy to each of the Court? Mr. Attorney General.—I wish, my Lord, that we had; but with some difficulty as to identifying the paging, which I dare say is not very great (I dare say my learned friends who are with me will follow me), the other book, which is our copy, may be used in the absence of a sufficiency of our opponents' copies. Mr. Baron Pigott.-Mr. Attorney General, we had better not take your copy, which is turned down. Mr. Attorney General.—I rather intended to use myself the book which was furnished to me on the other side; it is their copy. Lord Chief Baron.-Have you no spare copies of your own edition? Mr. Attorney General.-Yes, my Lord, that is our own. Mr. Solicitor General.-We have sent for one or two copies, my Lord, and they will be here. Mr. Attorney General.-This is the evidence of Barnes; these are short passages. I am not going to trouble your Lordships with a needless detail. He was, my Lords, an engine-driver in Messrs. Miller's employment, and he states in his evidence that he had been concerned in the yard in the building of three gunboats, one called the "Oreto," of which I will say nothing, and two called the "Penguin" and the "Steady," which were built for the English Government. Mr. Baron Channell.-We understand you that having given us, as you say, your statement as to the general effect of the evidence, you are now going to analyze the evidence upon the one point first? Mr. Attorney General.-Yes, my Lord. Mr. Baron Channell.-And you will afterwards take the other evidence as it supports the other points which you make? |