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ARGUMENT. “ intention of using or employing the said vessel as a privateer, 2nd Day.

“ but intended, when he equipped her to go to the West Indies
“ to endeavour to raise funds to prepare her for a cruize,—then the
" traverser is not guilty.” (3.) “If the jury believe that when
“ the 'Bolivar' was equipped at Baltimore and when she left
“ the United States, the equipper liad no fixed intention to employ
“ her as a privateer, but had a wish so to employ her, the fulfil-
“ ment of which wish depended on his ability to obtain funds
“ in the West Indies for the purpose of arming and preparing
“ her for war, then the traverser is not guilty.” Upon the
second and third of these instructions so claimed, the decision
was given in favour of the defendant.

Mr. Baron Pigott.--I suppose that the owner and the equipper was the same person there.

Mr. Karslake. I think he was the same person.

Mr. Baron Channell.—The Court below seem to have thought that the intention was not only necessary but absolutely requisite.

Mr. Karslake.No doubt, my Lord. In order that there may no doubt as to what the law, as it was laid down by Sir William Atherton, requires, I would ask your Lordships' attention to the end of the reply, or rather the summing up by Sir William Atherton. Your Lordships will find at page 223 of the small book the following passage : “Gentlemen, that brings us to the

great question in the case with which my learned friend next “ dealt on the evidence. I mean the question of intent, because I have stated, and admitted throughout, that unless you are “ satisfied upon the evidence produced upon the part of the “ “ Crown that there did exist the intent, and I will very much

adopt the view put forward by my learned friend as to the “ kind of person, with reference to the ship, by whom such intent “ must be entertained to fulfil the description of the intent, I “shall come to that in a moment, but unless I satisfy you that “ the intent that the vessel should be employed by the Con“ federate States is made out, and an intent existing before the “ seizure and during the construction of the vessel, I have “ stated throughout, and I repeat that the information fails.”

Therefore my learned friend assumes that which I venture to think he was bound to assume, namely, tlıat it rested upon him to show that there existed an intent on the part of somebody, who was capable of exercising and carrying out such intent, that this vessel should be used by one belligerent against another, and he says that the intent, (which he admits must be a fixed intent) existed on the part of somebody (although he fixed on no person in particular), that the vessel should be used in the service of the Confederate States. At page 238 of the little book Sir William Atherton goes a little more at length into what he considers to be the law as regards the intent. “All that “ I ask you to do is this: You will take the law, as far as it " affects your decision, of course from my Lord, the facts you “ will judge of on the evidence, no doubt availing yourselves of

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such observations on these facts as the great experience and ARGUMENT. knowledge of my Lord will suggest to him, or enable him to

2nd Day. make available to you. I ask you to give your conclusion in " this case on the evidence. If that evidence satisfies

you

that “ there did not exist the intent to which I have referred, and I "I will state at once what I intended to have stated a little earlier " that so far I agree with my learned friend, that the intent “ must be an intent of one or more having at the time the means " and opportunity of forwarding or furthering such intent by " acts. I agree that anything else called an intent, or rather « that which would be called an intent in the mind of any person “ not of this description, must be treated properly as a mere “ wish, imagination, or desire. By intent, undoubtedly, the Act means practical intent." Therefore, that is the construction

” laid down by my learned friend at that time, and I believe that my learned friend, the Attorney General, now adopts it because in moving for this rule I think I understood him to say

Mr. Attorney General.—I do not recede from that, and I could not express it better.

Mr. Karslake.--I think I understood him to say, what your Lordships will find at page 55,—“That there must be some

person party to the business who is capable of having such an intent, and who is it? For example, if a shipbuilder in England builds on speculation on his own account a ship,

intending to take it to any port in the world where he can “ find a market for it, it is obvious that he has not within Her

Majesty's dominions any intent to employ, or any power to employ the ship in the service of any belligerent power; all

his intent is to sell the ship to a purchaser somewhere or “ other; or it may be in some particular place if he can find one “ there, and nobody but himself has any control over it at the “ time. Nobody but himself has anything to do with it at “ the time. Nobody but himself under the circumstances can

determine the intent, and as he does not mean to make war in “ it himself, or does not intend that anyone else shall make

war in it, that is not struck at by the statute. But wherever

you have parties concerned in the equipping or fitting out " or furnishing, or the attempting or endeavouring to do

any of these things, either as shipbuilders, or as engineers, aiding in any way whatever in any of them where there is a principal in the matter who has the intent, and is master of

the employment, can there be any doubt whatever, that it is “ struck at by the statute ? For, instance, suppose they con

structed the vessel, meaning themselves to use their own ship “ as a privateer.” Now, therefore, I have my friend's own statement: it is necessary here to fix upon soine person or another in whoin the intent existed.

Mr. Baron Pigott.-There is no doubt, that the intent of the two parties must be used in a different sense, the intent of the controlling power may apply to the principal, but then there is

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ARGUMENT. an intent also in the person who is aiding and assisting, and he

. 2nd Day.

has no controlling power, but he has the knowledge.

Mr. Karslake.—It will be found extremely material to discover what the real meaning of “ with intent” is for the purpose of this case.

I contend that it is incumbent on those who seek to claim the forfeiture of a vessel to point out some particular person who has the control of the vessel, who was the person intending at the time the acts which are charged as wrongful acts, were done. Your Lordships have been good enough to suggest that two sorts of intent are referred to here. I do not think it will be found to be so. The intent must exist in those who are “ aiding or attempting to equip,” as well as in those who equip.

Mr. Baron Channell.-I understood the Attorney General to contend upon his moving for this rule, that there must be, not only an intent, but coupled with it some power to carry that intent into execution. But with regard to those who aid or abet then it is not necessary that they should have the power. The words are with intent or in order." No one has referred to those words yet.

Mr. Karslake.Is it not intended by the Act that any person aiding in equipping a ship shall be liable to be indicted as a misdemeanant, unless the vessel has become liable to forfeiture.

Lord Chief Baron.--That is so, no doubt, but put such a case as this : I do not imagine that any one would contend that if any of the ship's carpenters, or persons who are merely inferior workmen, but still who are aiding, assisting,, or advancing the work; that any intention on their part would be an offence against the Act, or make them liable to punishment, or incur forfeiture.

The Attorney General.-No; if that stood by itself, of course not, if there was no other intention.

Lord Chief Baron.—Even all our special pleading, and all our care about indictments upon Acts of Parliament, language is extremely imperfect, unless you carry along with the perusal of it, and the attempt to understand it, a candid and fair desire to know what it means.

Mr. Karslake.-Yes, what I want to impress upon the Court is this, that on the part of the person who is the owner or controller for the time being of the vessel, there must be that fixed intention which is mentioned in the case of the United States v. Quincy, and which is adverted to by Sir William Atherton in his speech, and that you must ascertain who is the person who has that fixed intention before you can claim the forfeiture of the vessel. It will be extremely material to bear that in mind when you find, as in this case, there are 20 or 30 persons charged with having said this or that about the vessel, and when my friend the Attorney General says, “They were all engaged

together, and therefore you must assume the intent to be what we allege it to be.” I can suppose a case where the person may

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be guilty of an intention, and yet where no forfeiture of the vessel ARGUMENT. would be incurred. I will take this case-supposing every work

2nd Day. man in Mr. Miller's yard at the time the vessel was being built was working upon the vessel with the firm belief that it was going to the Confederate States, and it turned out in evidence upon their being indicted under any one of the alternatives of this section that there was no such intent on the part of the person who had the control of the vessel. I say in that case they were not assisting with intent at all. Therefore it is most important to ascertain who is the person on whom my learned friend lays his hand, and says, This was the person who was the owner or controller of the vessel, and the person who I allege had the intent which renders the vessel liable to forfeiture; because the sole question is aye or no; is the vessel forfeited ? And that was the question to be left to the jury. It was not a question as to whether certain persons were making observations from time to time which might tend to implicate them in the event of there being an indictment against them ; but the question was really whether the Crown had satisfied the jury that there was a person who had control at the time of the vessel, who had bimself formed the fixed intention in what he did on the vessel, of using the vessel for hostile purposes in the service of the Confederate States against the Northern States of America.

Mr. Baron Bramwell.— I am sure you would not labour this point Mr. Karslake unless it was of some importance, but do I understand you to say, supposing in this case the order had been given to Fawcett and Company to build the vessel and equip her, in order that she might cruize; they might say, and truly enough, we do not care what is done with her. We shall deliver her to the person who gave the order, and who has a right to the ship. But suppose they were making her in pursuance of an order given so that she might cruize, do I understand say that the ship would not be forfeited ? Mr. Karslake.—I am not sure ; that is not this case.

Mr. Baron Bramwell.-I thought there was some tolerably clear evidence that whatever was true of those who

gave

the orders to the ship-builders was true of them.

Mr. Karslake.—No; when you come to look at the evidence your Lordship will find that they are statements made by the builders and not by those who come forward to claim the vessel, and who for the purposes of this case were admitted to be the owners, laying claim to the vessel. The statements were made by Miller, the builder, and Fawcett and Company had nothing to do with those statements.

Mr. Baron Bramwell. This is the first case of a similar description that I ever met with. I don't mean under the Foreign Enlistment Act, but the first case of the kind. As I understand it, the Crown, by information, claimed the vessel as being forfeited. A. B. comes in and says the vessel is mine, and is not forfeited for the reason alleged; but surely A. B. have no right to say, you must give no evidence except that

you to

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ARGUMENT. which is said to be evidence against me. Surely the Crown has 2nd Day.

a right to say, if we cannot make our right against any one, we are content, the ship shall be yours, but if we can show that any one has forfeited it, we have a right to do so by all ordinary means in our power.

Mr. Karslake-Yes; it may not be material who comes in for the purpose of claiming the ship. Still it is necessary that the Crown should lay their hands on some particular person in whom they assume the guilty intention existed which has rendered the ship forfeitable.

Mr. Baron Bramwell.-As I understand, it is matter of right for

anyone to come in to make the claim.

The Attorney General.—Yes; and no verification is required beyond the affidavit of the Attorney that he believes his client to be the owner at the time of the seizure.

Mr. Karslake.--It does not affect the question the least in the world. The simple issue is aye or no, is the vessel forfeited ? That is the question which is raised. Then I say that for the purpose of showing that the vessel is forfeited, it is the bounden duty of those who are making out the affirmative to show that at the time when they say the forfeiture was incurred there were some particular persons who were acting in some way or other against the provisions of the statute, who had the power of directing and controlling the movements of the vessel, and who had that guilty intention which it was necessary should exist. Supposing Mr. Bullock was saying this, or Mr. Hamilton was saying that, about this vessel, and the person in whose yard the vessel was, was saying something else about it, all that goes for nothing until you have fixed on some person who was the owner or controller of the vessel, and found that he had the guilty intention.

Mr. Baron Pigott.—If the man who had given the order for it had said it, what would you say then?

Mr. Karslake.- Was he in this country or not? I don't know where he is supposed to be.

Mr. Baron Pigott. - Supposing it was proved that A. B. gave the order and said,—“I mean it for the Confederate States.”

Mr. Kurslake. It might be evidence, but I must ask in what way the question would arise. The admission of any one person might be evidence as an admission in the event of there being an indictment against him. But I want to draw your Lordships' attention to the form in which this question is tried. The form is whether there is forfeiture or not. If there be an indictment against a person for knowingly aiding and assisting, and he chooses to say,—“I did knowingly aid and assist the person who

had the control of the vessel, and I did intend to send it out to “ commit hostilities to assist a foreign Government,”—it may be very good evidence against him personally, by his own confession upon an indictment for misdemeanor. But what I desire to insist on is this, that the first step the Crown must take, according to my construction of the section, is to fix on some one

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