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6th Day.

Argument. agree that the statute was intended to strike at the attempt or

endeavour. It inust be an attempt or endeavour to do that which is the subject matter of the possible prohibition. May it be read thus ; if any person “shall, without the leave and licence of Her

Majesty for that purpose first had and obtained as aforesaid,

equip, furnish, fit out, or arm, or shall commence or begin to “ equip, furnish, or fit out, or arm such ship?"

Mr. Jones.-- Yes, certainly, my Lord, that is how I should venture to read it, because it would, in fact, facilitate the application of the word “attempt;" and I go along with many of the observations which I have heard concerning the attempt.

Now, my Lords, I have put before your Lordships two propositions. The first of these propositions is that equipment for the purpose of making the offence is only such equipment as is needed for the purposes of navigation, as distinguished from equipment for the purposes of war. My second proposition is that any equipment for the purposes of navigation is sufficient.

Now, my Lords, with reference to another point, viz., the extent of the equipment, a point to which great attention was paid at the trial, and which my Lord Chief Baron addressed himself to. I will divide that, if your Lordships will allow me, into two parts. 1st, as to whether the vessel must be completed, and 2nd, as to whether the vessel must be completed here, that is to say, in this United Kingdom. Now, my Lords, it surely cannot be necessary to say much upon the question as to whether the vessel must be completed. The few observations which the Attorney General made I should think disposed effectually of any difficulty arising on that head, because the Act being expressly for the purpose of prevention, and the procedure under the Act being by seizure, it would be an idle thing to say that you must wait until the vessel is actually completed. Moreover, if you are to wait till the completion, when is it completed ? when will it be completed ? That must always be a question of fact, and no reasonable construction of the Act would say that it was intended to be raised by the Act. Then, my Lords, see this other difficulty: not only would the question of completion be associated with and have to be considered with reference to the other parts of the Act, at least with those heads of argument which I have applied myself to, namely, as to the character of the armament and the extent of the equipment, but the difficulty would always arise which my learned friend Mr. Mellish seems to think there is nothing in, namely, the difficulty that if you are to wait until the vessel is equipped, of course, assuming the construction which I assign to the Act to be the true one, you necessarily, I will not say evade, but you necessarily infringe and deny the Act altogether; that is to say, you frustrate its application altogether; because if it be true that you are to wait until the vessel is completed, the vessel may go out side by side with another vessel loaded with arms, and be completed and armed after it has got out of the limits of the kingdom. When that is put as an evasion it is a fallacy. The

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6th Day.

way of putting it is not to put it as an evasion, or to enquire ARGUMENT, whether it is an evasion; but the way to put it is this,-- Is it possible to suppose, as a question of construction, that the Act can have been so framed, or that you can put on the words of the Act such a meaning as will enable a thing, so entirely in frustration of its intention, to be effected? It is an argument for the policy of the Act not being such as is assigned to it by the other side when it is said that it may be successfully evaded.

Now, my Lords, if it is necessary to wait until the vessel is completed, you may do everything which it is confessed when done is an evasion of the Act. Mr. Mellish admits you may do this. He says not only may it be completed, but you may sail

, out (I do not know if those were his words, but that is what he means) with that ship side by side with another ship, and get your armament put on board where it suits you. Well, but if that is so, not only is the Act a dead letter, but it must have been intended by the legislature to be a dead letter. And therefore it is that I say that the argument is addressed to the question of the construction of the Act; it is making the Act absolutely idle.

I now come to the question which the Lord Chief Baron has put, namely, the question of locality,--a question which I apprehend is very easily disposed of. Now, as regards the question of locality, I admit that for the purpose of this Act you must make out that the thing prohibited is done within the United Kingdom. I answer that in a word. The thing prohibited is any act of equipment. Is it not any act of equipment ? Let them answer. The question of whether it is or it is not any act of equipment brings back the question to the preceding question.

Mr. Baron Channell.—I did not understand that there was any doubt upon this point. If you are right in your former argument, that all that was done within this country would amount to an equipment, no question arises about where it is done.

Mr. Jones. That is as regards the locality. I thought the Lord Chief Baron suggested to me at first the question of locality.

Lord Chief Buron.-- My object in presenting that was to prevent the intent from being supposed to have any peculiar weight more than any other ingredients. The learned Attorney General put it yesterday to me, not for the purpose that was then under discussion, that to deny yourself is nothing, but to deny yourself with the intention of delay is. It is not the mere intent to delay; you may intend to delay as much as you like, but it must be coupled with the act which the Act of Parliament pronounces, if done with that intent, to be impolitic. Some of the argument, I shall not specify which it was, seemed to think that the intent was everything and the act nothing. Mr. Jones.--No, I do not say that.

—, Lord Chief Buron.—The intent without the act is nothing, as

Araumest. the act without the intent is nothing, and the act and the intent

are both of them nothing, unless the thing be done in a port in 6th Day.

this country

Mr. Jones. -Clearly so, my Lord.
M1. Attorney General.—Done or intended to be done.

Mr. Jones. That is the basis on which I have been addressing your Lordships.

Now, my Lords, what I have addressed to your Lordships bears exclusively on the point of misdirection. Now, my Lords, as I understand the view which at the trial was taken by my Lord, it was that the equipment must be hostile, that is to say, it must be of a warlike character, and that the ship must be completed or intended to be completed here. I humbly submit that that view is one which requires reconsideration. I am quite sure that there were very few people in the world, who, at the time when the trial took place, would pronounce themselves to be fully competent to give an opinion upon that question. But I need not dwell upon any consideration of what occurred at the trial. The question here is, What is the opinion of the Lord Chief Baron and the rest of your Lordships here now upon this most difficult, most abstruse, and most important question? In fact, I would rather prefer, if it could be so done, that your Lordships should not consider the question as a mere question of misdirection, but consider the question as applied to the facts alone, for that is the only fair and reasonable way of doing it. It is idle to say that a learned Judge is wrong in the sense of his being perversely wrong, or clearly wrong, when a mass of facts is thrown, as I may say, before the Court with which the Court has to deal, and which your Lordships see a week of argumentation is necessary to illustrate; it is utterly impossible. If any learned Judge could deal with it, I am quite sure it would be the Lord Chief Baron ; and I am persuaded that very likely the learned Attorney General, when he addressed himself to this question, drew, or intended to draw, upon the great experience, upon the great knowledge, and upon the breadth of view which my Lord is known to possess, and which it is his custom to apply to cases of very great importance, of which we have many instances in this Court. My Lords, the question is not a mere question of misdirection. The question is a question of the application of the law to the facts, a great question, and a very important one, and a question which must be decided by reference to very general considerations, and not merely to the question of what occurred in this particular case. The question ought to be looked at as if my Lord had reserved the facts for the consideration of the Court, it being utterly and absolutely impossible to deal with questions of this kind at Nisi Prius. The question is the same, I

my

Lord had reserved it for the consideration of the Court, and I am happy to know that, whatever may be the end of this case, it has led to a great amendment of the practice of the Court, which I believe is mainly due to the

say, as if

Lord Chief Baron, for I believe to his Lordship is due the ARGUMENT. suggestion of so providing that future cases may be canvassed

6th Day. before the highest tribunal ; so that not only this case, but any case of like importance, may be brought under the consideration of the House of Lords. The public are indebted to your Lordships for having made the rule which has had that effect.

Lord Chief Baron.—I have no doubt that the discussion which has taken place upon this motion for a new trial has been far more advantageous to the thorough understanding of the thing, and that we have been able to get to the very last point of whatever can be argued far more advantageously by a general discussion, than by argument upon the narrow ground which alone could have been presented in a bill of exeptions.

Mr. Attorney General.- No doubt your Lordship is quite right.

Mr. Jones.- And for that I think the Attorney General has already intimated that he is very thankful to your Lordships.

Lord Chief Buron.—He need not thank me for it, because I hold that a grievous injustice would be done to me by any one who supposed that my resistance to the bill of exceptions was in the least degree disadvantageous to the Crown. I intended to present the alternative, that it would be better to move for a new trial, and take all the points, as you would get your appeal just as well.

Mr. Jones.—Your Lordship is so well able to vindicate yourself, that I need not say a word in support of what your Lordship has said ; but I may point out that your Lordship has originated the course of proceeding by which either party, dissatisfied with the judgment of this Court, will be enabled to carry his case to the House of Lords, which could not have been done before the rule made by your Lordship a few days ago.

Now, my Lords, having regard to the full extent to which this discussion has gone, I believe I have occupied your time more than I ought to have done. But perhaps I may be allowed just to offer a word or two on those American cases, and it shall be only a word or two.

Mr. Baron Bramwell. What, about Quincy's case ?

Mr. Jones.—The case of the United States v. Quincy I regard as an authority for the position which I understand to be conceded by the other side, viz., that the ship need not be armed. Now, as to the case of the “ Independencia,” allow me

, here to observe that I really think there is no necessity whatever for making any extended observations upon that case. That case asserts this, that where that is not present which is here present, there is no offence, for the ground of the argument in the case of the “Independencia” is, that where there is no intention to employ the vessel except such as may be hindered by a contingency, there is, in fact, no direct or immediate intention to offend against the Act, the Act is not violated by an equipment, or even by an arming. This case amounts to nothing. It is argued, indeed, that because the Act has not provided for such a case as the case before the

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ARGUMENT.

6th Day.

Court in the “Independencia,” therefore the Act ought to have no operation in those cases for which it has provided. So far, therefore, as the cases of the “Santissima Trinidad” and the United States v. Quincy are concerned, I do not think that I need trouble your Lordships with any further observations. I submit to your Lordships that there exists in this case that combination of the elements of equipment and intention which constitutes the offence. I trust we have demonstrated that there is that combination, and if there be that combination, it is a combination which is prohibited, and the statute has been violated, so as to entitle the Crown to the ship.

Lord Chief Baron.--The Court will take time to consider its judgment.

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