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3rd Day.

ARGUMENT. the equipment, without any reference to the arming, may be

guilty of the offence.

Mr. Karslake. That may be so, my Lord.

Lord Chief Baron.—It does not occur to my mind that there is any difficulty in it at all

. The principal person must intend to do both. If he intends only to go to Hounslow when the offence is not perfect unless he goes to Windsor, you cannot indict him for going to Hounslow.

Mr. Karslake.—. No, my Lord, and I again suggest that that would be so, though the person who is alleged to “attempt thought that the person whom he assisted meant to go to Windsor; he could not be found guilty as an accomplice, because it could not be shown that the alleged principal had committed an offence.

Mr. Baron Channell.—If you take the 3rd section of the American Act as an instance, you will find that the words are in the conjunctive when the statute deals with the principal; and when it comes to a person who may be treated to a certain extent as an accessory the word "and” is left out and the word or " is substituted.

Mr. Karslake.—Yes, my Lord, but I should have thought that the same person who might be indicted under the words of the first part for "fitting out and arming," might be indicted for " attempting to fit out" without saying “arming" at all.

Mr. Baron Channell.--As I understand it, the American decisions do not go that length. There is a case in which they decided that you might charge an attempt to fit out without charging an attempt to arm ; that was the case of Quincy, where he was concerned not as the actor, but as a kind of accessory to the principal. The words of the 3rd section of the American Act are “if any person shall, within the limits of the United States, “ fit out and arm, or attempt to fit out and arm, or procure to be “ fitted out and armed." I suppose that that is treating with the principal person ; there it is in the conjunctive; then come the words, " or shall knowingly be concerned in the furnishing,

fitting out, or arming."
Mr. Karslake.— Yes, my Lord.

Now, my Lords, the distinctions which will be found between this section and the 7th section of the Act of 59 of George III., are very obvious and manifest. I am not dwelling upon the conjunctive, “ fit out and arm," but the words are so much clearer than those to be found in the section of the English Act that there can be little difficulty in ascertaining what the real meaning of the first part of this clause was, for the purpose, at all

, events, of framing an information or an indictment. The difficulty of construing the 7th section of the Act of 59th of George the III., has occurred to my learned friends, as will be seen by the way in which this long information is frarned. The third section of the American Act is, “If any person shall, “ within the limits of the United States, fit out and arm, or

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“ attempt to fit out and arın," and so on, “any ship or vessel ARGUMENT. “ with intent that such ship or vessel shall be employed in the 3rd Day.

service of any foreign prince or state, or of any colony, “ district, or people, to cruize," and so on—the intent is that the ship shall cruize in the service of a foreign state. Many of the counts of this information follow that which is certainly the grammatical construction of the 7th section of the “ English statute, and charge the offence as being that certain

persons equipped, fitted out, and armed a ship or vessel with intent to cruize and commit hostilities;" and clearly, according to that construction of the statute, the intent is charged against the person who fits out the vessel ; and I apprehend, looking at the history of the Act, and the occasion upon which it was passed, that was really what the Legislature intended. But there is another construction which is put upon the Act by my learned friends in argument, and adopted in some counts of the information, and that is this:- That if any person shall fit out a vessel with intent, or in order that the vessel shall be enployed with intent to cruize and commit hostilities,-putting in both the intents in those counts of the information. My Lords, I do not propose to consider now which of those constructions is the correct construction. It may be that the first is the correct one; it may be that my learned friends are justified in construing the statute as being a statute in which the intent which is mentioned is an intent that the vessel shall be employed to commit hostilities, and not that the persons fitting out are themselves intending to commit hostilities in the vessel so fitted out. The first construction may be that which was intended to convey the true meaning of the Legislature.

But, my Lords, having called your Lordships' attention to what has been said by my learned friend the Attorney General as being his interpretation, namely, that, assuming the existence of a ship, any innocent equipment is within this section, I venture, on the other hand, to put the construction which has already been presented by my learned friend Sir Hugh Cairns. My learned friend the Attorney General puts the very widest construction that can by possibility be put upon the section; he denies that it is necessary that the equipment should be a warlike equipment at all. My learned friend Sir Hugh Cairns on the other hand contended that when you look at the word “equip” in connexion with the rest of this clause, it is quite obvious that the meaning of “equip” must be either, that there shall be an equipping in a warlike manner partially, or that the vessel shall be so equipped for war that she shall be ready to commit hostilities as soon as she leaves a port of this kingdom. Now, Mr. Baron Bramwell, I think, kindly suggested, in the course of Sir Hugh Cairn's address, that probably the wider construction, namely, that the equipment must be such as fits the ship for carrying on hostilities, which it is unnecessary to contend for now, may be the proper construction. I apprehend that it will not be denied that this section only applies to a case wbere war is actually going on 8341.


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Argument. between two foreign belligerents,—that it will not be said that

it was intended by this section to prohibit the sailing of armed 3rd Day.

vessels to a power which was likely to go to war and contemplated going to war with another state ; that there must be existing hostilities, and that it is only to such a case that the statute applies.

Now, if your Lordships look at what the intention is, either in the persons who fit out the vessel, or in those who deliver the vessel to be employed,—the object clearly is that the vessel shall cruize and commit hostilities. Does that mean that she shall be equipped in such a manner as to cruize and commit hostilities, or that an innocent equipment is to cause the vessel to be forfeited if the intention exists? Your Lordships have to judge between the two constructions; and while it is asserted by my learned friend that your Lordships should construe the Act by saying that the vessel must exist in the first instance, and then, supposing the existence of the vessel, any innocent equipment added to that vessel with the intent is sufficient to forfeit it; on the other hand it is suggested that, looking at the whole of this section, and the object with which the Act was passed, it is necessary either that there should be such an equipment as will enable the vessel to take the seas ready for aggression or defence, or that at all events the equipments struck at by this section must be warlike equipments, and that if they are found to be innocent equipments, then the section does not apply.

Now I do not know that I can urge anything further than has been said by my learned friend upon this subject. Your Lordships' attention has already been called to the next section of the statute, which says in so many words, as I apprehend, that you may equip a vessel of war belonging to a belligerent which seeks safety in these ports ; that you may equip her to any extent you like so long as the equipments are innocent equipments. What that section provides against is adding to her warlike equipments; and I contend it is said therefore that you are not prohibited from furnishing a vessel of war which seeks a refuge in the ports of this country with anything in the nature of equipment that she may require so long as it is of an innocent description. You may not increase her armament, it is true, but while it must be admitted on the part of the Crown that you may furnish equipment of an innocent character to a foreign belligerent war vessel it is contended at the same time that you must not build a ship and then put a lightning conductor on board, because you are superadding an innocent equipment to the hull of a vessel already constructed. My Lords, I submit that that is rather an unreasonable construction, and more unreasonable when your Lordships find the circumstances under which this Act was passed, and what, as I venture to think, the Act was intended to prohibit.

Mr. Baron Pigott.-The Act uses the words “equipment for war ” in that section.

Mr. Baron Bramwell. That is your argument, because you say that that shows that any other equipment is lawful.


3rd Day.

Mr. Karslake.-Clearly, my Lord.

Mr. Baron BramwellThe consequence therefore is, that a belligerent's own vessel of war may be equipped in every sense, provided the equipment is what you have designated as innocent.

Mr. Baron Pigott.—You may go further than that, you may include her arms, only you must not augment the arms.

Mr. Karslake. --That, probably, is so also ; it would make it all the stronger. I am glad to hear the learned Judge say that that is the construction of the statute. The words to which Mr. Baron Bramwell called attention yesterday, strengthen the construction which we put upon the Act, and show that the meaning of the Act is that a vessel shall not be so equipped as that she shall be in a condition to commit hostilities

upon leaving this country. When your Lordships look at the history of the Act, that is by no means an unreasonable conclusion. There is a prohibition upon the ship-builder to some extent (and it is for your Lordships to say to what extent) he may not

equip” a ship, but it is clear that according to law although he may not equip a ship, whatever that may mean, (I say equip for warlike purposes,) although he may not equip a ship in the ports of this country, he may in this country sell every part of a vessel, so long as the parts are not put together in this country, and he may sell all the arms and ammunition required for a ship of war, and I think that that consideration, as well as others which have been pointed to by my learned friend Sir Hugh Cairns, will have a very material influence on your Lord- . ships' minds in putting a construction upon the words of the Act.

My Lords, I say, therefore, that looking at the history of the Act and the occasion which led to the passing of it, and looking at the right of the merchant in this country to sell contraband so long as it is not in a complete state, (and when I say“ contraband” I allude to ships,) looking at the fact, that the sale of the parts of a vessel of war is not a misdemeanor, I ask your Lordships to put a reasonable construction upon the Act and to say that the equipment aimed at and prohibited must either be of such a character as that the ship shall be useful at once for aggressive purposes, or that, at all events, the equipment to be commenced must be a warlike equipment, and that my learned friends cannot successfully contend that an innocent equipment superadded to a vessel, renders that vessel liable to forfeiture.

My Lords, of course I shall hear again in the course of my learned friend the Attorney General's speech, that which was urged during the trial, and which was urged by my learned friend at the time when he moved for the rule, namely, that unless the construction which he asks your Lordships to put upon the Act be adopted this Act will be a dead letter, and may at once be blotted out of the Statute Book. I say by no means. I say that there are offences created by this Act, according to the constructtion which we put upon it, which may well be guarded against; and I say further that by our construction of the Act great evils will be provided against, although not perhaps the whole evil


ARGUMENT. which, according to my learned friend, the statute was intended 3rd Day.

to prevent. I have no doubt we shall hear again of what are called evasions of the Act. My Lords, I dispose of those socalled evasions, by saying that if a new statute creates a new offence, a person, by doing a particular act, either commits the offence or does not commit the offence, and he has a right to do, after the statute has passed, that which he had a right to do before, unless he can be clearly proved to infringe the Act by what he so does.

Lord Chief Baron.-Forgive me for suggesting that the expression "a new statute creating a new offence," does not, I think, give the fullest effect to what I apprehend is the argument which you are about to propound. The expression rather means, a new statute which makes that a crime which was perfectly lawful before.

dir. Karslake.--I am much obliged to your Lordship.

Lord Chief Baron.-A new statute may deal with something which was unlawful. There are many things which are unlawful, which are not punishable,—which are not criminal. But this is a case where that which was perfectly lawful before, is made a crime. There is no doubt, according to all the authorities, and there is not the slightest doubt now, that a neutral may furnish to a belligerent every possible description of warlike weapon or munition of war,every possible ammunition of every kind,--and I think that no one can say that until the passing of this statute there was any known distinction by the law of nations between a ship and a gun. You may now supply a gun for a ship, you may now at Birmingham, or in any other part of the kingdom where there is a foundry sufficient for the purpose, order a gun, and you may say, “This is for one of the belligerents, to be taken to one of their

ports, and put on board a certain ship to be expressly used for “ The purpose of the war which is now carried on against a power “ with whom you are at peace.”. You may do that, and I am not aware that you cannot do that with reference to a ship, but there is a doubt about it. No doubt you may now order a gun for a ship; whether you may order a ship for a gun seems to be a question. I think that the fullest effect is given to the argument which you are about to urge, as I apprehend and anticipate, by drawing attention not to the fact that the statute is creating a new offence, but something more than that -- it is making that which was perfectly lawful before in every sense a crime and a misdemeanor.

Mr. Karslake.— Yes, my Lord.

Mr. Baron Bramwell. - That is the argument on the other side.

Mr. Karslake. I was going to add this; in anticipation of an argument which will be used for the Crown, probably a great number of instances which will be suggested, by which what my learned friend chooses to consider the spirit of this Act or the language of this Act can be evaded. I dare say there are a great many cases in which it might be evaded according to my learned


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