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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 work2nd 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 himself 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 you to 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. can have no right to say, you must give no evidence except that

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ARGUMENT. Which is said to be evidence against me. Surely the Crown has 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 one has forfeited it, we have a right to do so by all ordinary means in our power.

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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. Karslake.—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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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 have 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.

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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 has 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 misdemeanor 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 argument, are you not?

Mr. Karslake.-Yes, my Lord.

Lord Chief Baron.-Then we will adjourn.

Adjourned until to-morrow at 10 o'clock.

ARGUMENT-continued.

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 arming." 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 iny 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 species of furnishing, some particular species of fitting out, "some particular species of equipment, in order to make the act " penal in a case in which the attempt is proved."

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Mr. Baron Bramwell.-Where is this, Mr. Karslake?

Mr. Karslake.-In the Attorney General's motion, my Lord.
Mr. Baron Bramwell.-But where ?

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 innocent, 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

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