6th Day. ARGUMENT. Liverpool, in Hull, and elsewhere, are printed in letters as large as can be employed, and suppose that you know that there are constructing a hundred, or as many vessels as you can choose to suppose, is that a thing not calculated "to endanger the peace "and welfare of this kingdom?" Mr. Baron Bramwell.-Do you read the Act of Parliament with this sort of preamble, Mr. Jones: Whereas certain practices are likely to endanger the peace and welfare of this kingdom by causing foreign nations to make a complaint where by the law of nations they have no right to make a complaint? Mr. Jones. Where by the comity of nations they have such right. Mr. Baron Bramwell.-It is a very dangerous topic, with great respect to you, because although the policy of the Act may have been to prohibit something which no foreign nation had a right to complain of because foreign nations are not always reasonable, and therefore it was as well to give them no cause, whether reasonable or unreasonable-yet it is obvious that the policy of the Act was to prohibit it in cases where foreign nations had a right to complain: and you then go into questions of international law which I thought the Attorney General threw over. Mr. Jones.-International law does not affect my view of the matter. I say the policy of the Act was to avoid irritation, and to enable the Crown to observe the comity of nations. Mr. Baron Bramwell.—I thought the learned Attorney General had gone a long way to show that the reliance placed upon international law upon the other side was an ill founded one. Mr. Jones. What I am saying is in perfect keeping with the observations which the Attorney General made, that you are to look at things practically. Now I ask your Lordships whether it is or is not probable that irritation and annoyance are caused by allowing our ports to be turned into ship yards for the construction of ships for the Confederates? The question is answered by events. You know that it is, and independently of facts, it is surely impossible not to feel that whatever tends to make a belligerent nation look upon us as if we were acting a neutrality merely, not being really neutral, which disposes it to look upon us as only pretended neutrals, must be a source of irritation and annoyance to that nation. If you were to suppose that we have not those great advantages of constitution which we have, if you were to suppose the Crown to be despotic for the moment, there would be no doubt whatever that a belligerent might reasonably complain of a neutral nation allowing all its yards to be used for the purpose of calling into existence vessels which were intended and avowed to be intended to be used against the other belligerent. Nobody would doubt that such conduct would be a breach of comity on the part of the dispotic neutral. It is because we possess a constitution which forbids the Crown, except under conditions, to do what a despotic monarch may always do, that this Act of Parliament is passed, and was neces may sary to be passed, in order that by means of it the Crown If there be any force in the observations which I have addressed to you, your Lordships will not fail to observe that this Act would be frustrated if you were to allow any species of equipment, at all events amounting to that height of equipment which should make the vessel take the sea, that is to say, which would enable the vessel to be launched. It is not necessary for my purpose to specify or to distinguish the particular amount of equipment which would be necessary, because I submit to your Lordships that any equipment, granting the intention, would be sufficient. But surely, so far as this case is concerned, and so far as it is necessary to appeal to the construction of the Act for the purposes of this question, your Lordships will see you are relieved from difficulty on that point of the case, because in order to construe the Act it would not be necessary to go further and give a more abstract definition to it than that an equipment such as would satisfy the words of the Act would be such as would enable the vessel to take the sea. This vessel was launched. Mr. Baron Pigott.-Do you mean that after she leaves the builder's yard, then any equipment is within the terms of the Act? Mr. Jones.-I say any equipment in the builder's yard which would enable her to be launched must be an equipment within the Act; and still more, as my learned friend the Attorney General reminds me, such an equipment as would enable her to leave the port. Mr. Baron Channell.-You cannot, in construing an Act of Parliament, leave out the words that are found there. We all ARGUMENT. 6th Day. ARGUMENT. 6th Day. agree that the statute was intended to strike at the attempt or endeavour. It must 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 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 Baron.- 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 Baron.-The intent without the act is nothing, as ARGUMENT. 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 this country. 6th Day. Mr. Jones. Clearly so, my Lord. Mr. 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 say, as if 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 |