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who, at the time they allege that the forfeiture was incurred, was ARGUMENT. the person who had the absolute control over the vessel, and then
2nd Day. to show that in his mind that guilty intention existed which renders the vessel liable to forfeiture. That I say is involved in the question of intent; because when you find here the words, “ with intent to cruise or commit hostilities,” it seems to me obvious that, looking at the person who is to intend, as defined by the authority which has been cited, and as admitted by my friend, the first step in the case of the Crown is to ascertain the person or persons, who, having the control of the vessel, had formed this fixed intent, and then to show that that intent was formed under such circumstances as that the vessel was liable to forfeiture. Therefore, my Lords, the first question to be decided in this case, before we go into the question at all as to whether there was any fitting or equipping of the vessel, will be as to the true construction to be put upon this section as regards the intent in a proceeding of such a description as this, where the forfeiture of the vessel is claimed. And I say if the vessel had been fully equipped and armed that it would be important to look first at the question of the intent, because, however fully equipped or armed the ship might be, unless the intent was shown to exist, the Crown could make no case. In order to ascertain whether the intent existed, the first inquiry to be made was, who was the person who was capable of intending, within the meaning of the authorities on the subject, at the time of the forfeiture ?
Mr. Baron Bramwell.—Let us understand. Ship ordered to be built. Orderer intending, when he has got it in his possession, to commence hostilities with it against the Act of Parliament; builders knowing it to be for that purpose.
Mr. Karslake. The case your Lordship puts may happen.
Mr. Baron Bramwell. There is the intent, and the intent in either of those minds would do. That would be sufficient would it not?
Mr. Karslake.-Yes, shown as a matter of fact, that there is intent in the person who has control.
Mr. Baron Pigott.--How can you get at the intent except by the acts ?
Mr. Karslake. --That is what I want to contend against in this case. It is not because Miller, or somebody in his yard, says “ this is my intent,” that that statement is to fix guilt on the person who alone has the power of intending. Some one must be fixed upon as being the person who has the power of intending
Mr. Baron Bramwell.— I should say that if the defendant could properly bave got into the witness-box, and said that he stipulated that they should not have the vessel unless they gave a guarantee against its being used for the Confederate States, that then he would have negatived the assertion if there be any intent within the Act of Parliament.
Mr. Karslake.—Yes, my Lord, that would be so. But, my Lords, I contend that it is not necessary that any one should negative the intent until the Crown bas pointed out the person in whom the intent existed ; and in reading these words * with intent,” it is necessary, for the purpose of showing that the offence is complete, so far as the intention is concerned, and it is the duty of those who claim the forfeiture of the vessel to point out clearly and distinctly the person by whose "intent," construed as it is in the case of the United States v. Quincy, by whose guilty intent it is that the ship became forfeited. Because I say that, unless that intent on the part of such a person is proved to exist in the first instance, no attempt can be proved, and no person can knowingly aid or assist; all the attempts and the aiding and assisting spoken of in the section must be attempts to carry out a design formed by a person who has the power of forming the design ; that is, in other words, a person who has such control over the vessel that he himself can send it on any expedition he likes, it being found that the expedition on which he intends to send it is one of those expeditions prohibited by the 7th section of the statute. If reliance is placed on that part of the section which says, that a ship may be forfeited, and a misde. meanor incurred by an attempt, it becomes necessary to show that there is some person, either the person who has control, or some other person acting in furtherance of the design of that person, who is, with the intention of carrying out that design, doing something towards placing the ship in an armed condition. The next words “knowingly aid or assist,” require no explanation, because it is obvious from the introduction of the word “ knowingly,” that it is intended that any person who is working about the vessel, unless acting in furtherance of the design of the owner or controller of the vessel, is not guilty of a misdemeanor or doing an act which may lead to the forfeiture of the vessel.
Then, my Lords, having made that comment on the intent provided for by the Act, we then come to the consideration of what the meaning of these words "equip, furnish, fit out, or arm” is. What is the meaning to be put upon those words?
Lord Chief Baron.—You are going to another branch of your
Adjourned until to-morrow at 10 o'clock.
THIRD DAY.-Thursday, 19th November 1863.
Mr. Karslake.—My Lords, I commented yesterday upon the language of the 7th section of the Foreign Enlistment Act, so far as the intent was concerned, and I had taken that part of the section before proceeding to discuss the question as to the meaning of the words “equipping, furnishing, fitting out, or arning." Now, before discussing the meaning of those words, it will be convenient to call attention very briefly to what I believe is the construction, as far as I can ascertain it, which was put upon that language by the late Attorney General in the conduct of the cause, and also by ny learned friend the Attorney General in moving for the rule. It will be convenient to read the definition, which the learned Attorney General, in moving for the rule, gave of the word "equipping,” in the 7th section of the Act. I take the word “equipping” as the ruling word of this sentence. Now the learned Attorney General said, The
statute provides against any person doing any one of these
things, it being in the disjunctive; it distinguishes them, " and seems to be carefully worded in order to avoid the
chicanery which would result from requiring some particular
Mr. Attorney General.—At the top of page 56. I believe that this print has never been corrected, but your Lordships will easily perceive where errors occur.
Mr. Karslake.-- What I am reading from seems to be correct. " I say that the whole gist there, is the intent and the purpose, " and that any species whatever of equipment, however inno“ cent, per se, 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 that, I apprehend is their object " and policy,) provided always that the intent and purpose
“ is established. Now what are the words ?— Equip, furnish, “ 'fit out, or arm.' If it had stopped there of course it would
not have had the effect of prevention. The statute of course “ aims at prevention, not at punishment when the thing is “ done. The statute desires to stop the thing in limine, to cause “ the thing not to be done; and therefore, instead of stopping at “ these words it goes on, 'or attempt or endeavour' to do any “ one of these things; so that however little progress may have “ been made, and in whatever imperfect condition the ship may “ be as to these things, when she is seized, if any step has been “ taken which is an attempt or endeavour to do any one of these
things, provided it be à prohibited attempt, it is struck at; " and not only the attempt or endeavour, but any one who
shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming.'” My Lords, I believe that in reading these words I have represented correctly the view which the learned Attorney General presented to the Court, and which I suppose he will again present to the Court in arguing this rule. I do not know whether
I do not know whether my learned friend will admit, (because great caution was observed both by my learned friend and by the late Attorney General upon that subject,) that the sale of the hull of a vessel with no equipment at all, but simply the hull of a vessel, intended to be used when complete, in the service of one of two belligerents, would be an infringement of the Act, supposing the intent existed. I shall argue that it is not ; and that for the purpose of making out an offence under this Act, by equipping, or fitting out, it is necessary that there shall be first of all, that in existence which may be called a ship or vessel, and then that that ship or vessel shall be equipped. My learned friend says that the equipment superadded to the ship or vessel may be an innocent equipment, and that an innocent equipment will render the ship liable to forfeiture ; whereas, on the other hand, we say that the equipment which is to be superadded to the vessel does not mean an innocent equipment at all, but means something of a warlike character.
Now, my Lords, to take an instance, one that seems to have been relied upon at the trial, and it may be a convenient instance by which to test the construction put upon the case by my learned friend. Mr. Barnes or Mr. Morgan,–I cannot be quite certain which of the witnesses it was, after being asked about the stanchions for the hammock nettings, was asked a question as to whether the vessel had a lightning conductorthat will answer my purpose as well as any other equipment or any other matter which it is suggested was to be used as an equipment for the vessel. My learned friend's contention is this, that up to a certain point you may go on building the vessel whatever the intent may be (at least I assume it to be so) but that the moment you do that which, as distinguished from building a vessel, is found by the jury to be an equipment of the vessel,
although it may be reasonably found in vessels of every class ARGUMENT. and description, yet if it be an equipment, and the intention still
3rd Day. continues to exist, the vessel is forfeited.
The Queen's Advocate.- What you have referred to was in Mr. Morgan's evidence.
Mr. Karslake.—The argument is that the lightning conductor added to the hull of the vessel enables the Crown at once to seize the vessel as forfeited, because there is something in the nature of an innocent equipment on board that vessel.
Now, my Lords, will the words of the Act bear that construction? I call your Lordships' attention to this more particularly now, because it will be material with reference to the summing up of the learned Chief Baron, and the charge which is now made of omission in the summing up. If your Lordships look through the notes of the trial, it will be found that throughout the trial the question raised on the part of the Crown as against that raised on the part of the claimants, was whether an equipment, even an innocent equipment, was or was not sufficient to forfeit the vessel, it being alleged on the part of the Crown that it was so ; whereas it was alleged on the part of the claimants that as long as they fitted the vessel without putting on board equipments of a warlike character, no forfeiture was incurred.
Now, the clause, as your Lordships see, although it may have been suggested by the clause in the American Act certainly is not copied from that clause. The words relating to transports are not found in the American clause at all; the collocation of the words is different, and the words themselves of the American clause are in many respects very different indeed froin those which are found in this clause. Mr. Baron Channell.- In the American Act it is "and" in
” stead of "or?”
Mr. Karslake.-Yes, my Lord; and afterwards the word “ or” is found in the clause of that Act; and it is suggested that you may frame an indictment against an aider and abetter for fitting out without saying “arming,” and that that indictment would be good, although if you indicted the principal under the American Act you must say “arming and fitting,” or else it would be bad,—a somewhat strange conclusion.
Lord Chief Baron. If you consider it, I think you will see that a man who takes a part and assists in doing a part which is necessary to the whole, may possibly have nothing to do with the other part. Take a familiar instance :-Suppose it were an offence to travel from London to Windsor, or to make any attempt, or to assist anybody in doing so; a man wbo assisted a person to travel from London to Hounslow might be accused of that which is part of the journey, he having nothing upon earth to do with the other part. That makes the matter intelligible in the view which I take of it. If it is an offence to equip and arm, and a certain person, who may for this purpose be called the principal, intends to equip and arm, anybody who assists him in