2nd Day.

ARGUMENT. up to the time of passing the Act has not been made unlawful is declared illegal,-when to deal with ships under peculiar circumstances, is made an offence and a misdemeanor, and the forfeiture of the vessel itself is to be incurred in the event of the Act of Parliament having been infringed-I say that it is rather for your Lordships to put a limited and strict construction upon the Act than to extend it as wide as possible for the purpose of making every vessel built, or in course of building, to which circumstances of suspicion may attach, liable to the forfeiture which is claimed by the Crown. Now with regard to the ship that is declared to be liable to forfeiture under the 7th section, I think your Lordships will find, that beyond all doubt, the criticism I have made upon the section is well founded; that it is necessary not merely that the vessel should be in such a state as to be what may be called a ship, but it must be a ship which is equipped, or which there has been an attempt or endeavour to equip. I can hardly construe the language used by my learned friend when he moved for this rule, but I rather infer from what he said that he would admit for the purpose of this argument, at all events, that a vessel may be built with the intent, which is mentioned in the 7th section, and that it is not forfeitable so long as there is no equipment and no attempt to equip, and nothing done towards equipment. I am not sure whether I understood that rightly, because the language of my friend was a little guarded; but I understood him further to say that at all events after the vessel had arrived at the stage at which she could properly be called a ship, as distinguished from a mere number of planks put together, any species of equipment, however innocent, per se,-(your Lordships will find this at page 55),—“ any "species whatever of furnishing, any species whatever of fitting"out, whether with or without arming, is struck at by the Act, by its plain words, according to their natural meaning, and is necessary; and that I apprehend is their object and policy, "provided always, that the intent and purpose is established. Then I understand my friend to say this:-Once let the vessel become, in common parlance, a ship, add to that vessel the stanchion of a hammock netting, she is then equipped sufficiently for the purpose of being brought within this statute, provided that that equipment is found to have been with the intent charged by the statute.

Mr. Baron Bramwell.-That if you get clearly to the intent that that gives the equipment a distinctive character.

Mr. Baron Pigott.-First the act and then the intent.

Mr. Karslake. Or it may be first the intent and then the act, for it is immaterial which you take first. The Act declares that "if any person shall within any part of the United Kingdom, without leave or licence, equip, furnish, fit out, or arm;' or "attempt or endeavour to equip, furnish, fit out, or arm, or "procure to be equipped, furnished, fitted out, or armed, or "shall knowingly aid or assist, &c., in fitting out, &c., a vessel "with intent to cruize and commit hostilities, &c., such person

Then

2nd Day.

"shall be guilty of a misdemeanor." Now, my Lords, a question ARGUMENT. may arise, though I do not know that it is necessary to discuss it in the present case, as to what the real meaning of this section was as regards the persons liable to indictment for being engaged in fitting out a vessel for the purpose of committing hostilities. The question has been raised by the form of the indictment here, though it may not be necessary to consider it for the purposes of this rule, whether it is not necessary that the persons engaged in equipping shall themselves be intending to commit hostilities. I think when the whole of the Act is looked at, that that may very likely be found to be the real intention of the statute, there are counts to meet that view, and that may be matter to be determined hereafter. We find that the prohibition is against having a ship equipped, furnished, fitted out, or armed. Now, as regards the arming, it is admitted in this case that there was no arming at all, nor was the vessel equipped, nor furnished, nor fitted out for aggression; the utmost that can he said by my friends is this, that there was something ancipitus usus upon the vessel, which they say was intended to be thereafter used with additions for the purpose of forming part of a warlike equipment. And my friends put it that this furnished sufficient grounds, under the circumstances, for taking possession of the vessel. Beyond all doubt, the vessel was not completely furnished, fitted out, or equipped in any sense. my friend says that at all events he has now a right to allege that, if the vessel was not equipped, &c., there was an attempt or endeavour to equip, furnish, or fit out the ship with intent to cruize and commit hostilities. It becomes extremely material to ascertain who is to have the intent which must exist in order to make the vessel forfeitable, and, my Lords, on that point I would ask your Lordships' attention to the authority which has been already cited; the authority from the American Courts of the United States v. Quincy, and I will show that that decision was adopted to the fullest extent by Sir William Atherton, and must be taken to be the law applicable to this case. It is there said, "The offence consists principally in the intention," which "must be a fixed intention, not conditional or contingent, de"pendent on some future arrangements. The intention is a "question belonging exclusively to the jury to decide." That was the decision of the question as to the form in which the instruction should be given. The instructions which were claimed on the part of the defendant in that case of the "Bolivar," were as follows:-- "That if the jury believe that when the 'Bolivar' left Baltimore, and when she arrived at St. Thomas, "and during the voyage from Baltimore to St. Thomas, she was not armed or at all prepared for war, or in a condition "to commit hostilities, the verdict must be for the traverser. (2.) That if the jury believe that when the 'Bolivar' was "fitted and equipped at Baltimore, the owner and equipper "intended to go to the West Indies in search of funds with "which to arm and equip the same vessel, and had no present

"intention of using or employing the said vessel as a privateer, 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 had 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, that 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

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 "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.

k

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 anyway 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 some person or another in whom 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

ARGUMENT. an intent also in the person who is aiding and assisting, and he has no controlling power, but he has the knowledge.

2nd Day.

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