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IN THE COURT OF EXCHEQUER AT WESTMINSTER,

HILARY TERM, 27TH VICTORIA.

THE ATTORNEY GENERAL v. SILLEN AND OTHERS,

Claiming the Vessel “ ALEXANDRA."

Monday, 11th January 1864.

PRESENT:
The Right Hon. THE LORD CHIEF BARON POLLOCK.

MR. BARON BRAMWELL.
MR. BARON CHANNELL.
MR. BARON PIGOTT,

JUDGMENT ON MOTION TO MAKE RULE NISI

FOR NEW TRIAL ABSOLUTE.

LORD CHIEF BARON. This was an information against the ship “ Alexandra,” charg- JUDGMENT. ing that the defendants, with others, had been guilty of a violation of the Foreign Enlistment Act in respect of that vessel. The ship “ Alexandra” had been built and partly rigged at Liverpool, and had been seized on the 6th of April by an officer of the customs, on the ground of a breach of the 7th section of the statute. The defendants claimed the ship, and pleaded that the ship was not forfeited. The information charged them with every possible violation of the Act as to equipping, furnishing, and fitting out, but omitted to charge anything in respect of arming. The cause was tried before me on Monday the 22nd of June, and three following days. The evidence for the Crown clearly established the warlike character of the vessel—it was not at ali adapted for commerce, but was capable of being adapted for warlike purposes—and though it might have been used as a yacht, according to the evidence of Captain Inglefield, it was in all probability intended to be used by the so-called Confederate States as a vessel of war, when adapted for that purpose by them (suitable equipments and fittings-up being furnished).' And if the making, in pursuance of an agreement or order for that purpose, with intention to sell and deliver to one of the belligerents the hull of a vessel suitable for war, but unarmed, and not equipped, furnished, or fitted out with anything which enabled her to cruise or to commit hostilities, or to do any warlike act whatever, be a violation of the Foreign Enlistment Act, my direction to the jury was wrong in point of law; the verdict

JUDGMENT. ought to have been for the Crown, and there ought to be a new

.

trial ; but if the commerce of this country in ships, whether ultimately for peace or war, is to continue, and provided a ship leaves the ports of this country in no condition to cruise or to commit hostilities, though she may be of a warlike character, there has been no violation of the statute, then the verdict was right. And in substance this is the question between the Crown and the defendants, stripped of all technicalities.

The condition in which the vessel (unfinished when she was seized) was intended to leave this country was, perhaps, not perfecily clear, but there was no direct evidence that she was to be made, at Liverpool or in any other British port, fit to cruise or to commit hostilities. I told the jury, in substance, that the sale of a ship was, in my judgment, perfectly lawful, even of a ship so constructed as to be convertible into a ship of war; that the sale of arms and ammunition and every kind of warlike implement was not forbidden by any law, either international or municipal, and that I thought that a ship capable of being used for war might be made and sold, as well as sold (if made), provided she did not leave a port of this country either armed or equipped, or furnished or fitted out within the meaning of the statute; that is to say, with intent or in order to cruise or commit hostilities against a state or power with whom Her Majesty was not at war.

There was no direct evidence that the vessel was intended to be armed at any British port with intent on the part of any of the defendants, or indeed of any one, to cruise or commit hostilities, indeed there was no charge in the information on the subject of arming at all, and there was no direct evidence of any intention to equip, furnish, or fit out the ship with intent to cruise or commit hostilities according to what I think is the true meaning of the charge in the information. I, however, left the question to the jury in the terms of the Act of Parliament, and upon this direction with the evidence before them the jury found a verdict for the defendants.

In Michaelmas term the Attorney General applied for a new trial, and obtained a rule to show cause, on the ground stated in the rule, why the verdict should not be set aside and a new trial had. Cause was shown during the term, and the argument lasted six days. We have now to deliver the judgment of the different members of the Court.

It is material, I think, first to call attention to the various charges contained in the information, which consists of 98 counts.

The 97th and 98th counts relate to an intent tu employ the ship as a transport or store ship as well as to commit hostilities. These counts were given up at the trial by the then Attorney General. The remaining 96 counts consist of the first cight counts repeated 12 times, merely varying the offence charged. The first cight counts charge that the defendants did equip, the next that they did furnish, the next that they did fit out, and so

Then all the varieties of attempting, procuring, aiding, &c., are introduced, making the total eight times 12, or 96 counts.

on.

JUDGMENT.

The Attorney General at the trial said, “ The first eight counts

are those only to which any attention need be paid,” not meaning to abandon the rest, but intimating that the first eight represented all the rest. I propose to stale in substance what those eight counts are.

The first count charges that the defendants, without the leave, &c. did equip the vessel with intent and in order that such ship or vessel should be employed in the service of the Confederale States with intent to cruise and commit hostilities against a certain foreign state with which Her Majesty was not then at war, to wit, the republic of the United States. The second count resembles the first, but charges that hostilities were to be committed against the citizens of the foreign state. The third count charges that the defendants did equip, with intent to cruise and commit hostilities against a foreign state with which Her Majesty was not then at war.

The fourth count is similar to the third, varying the description of the partics against whom hostilities were to be committed. The fifth, sixth, seventh, and eighth counts are similar to the first and second, varying only the description in the first and second counts of the belligerent parties who were affected by the conduct of the defendants. The charge, therefore, resolves itself into a charge of equipping, &c. with a certain intent, thic intent being stated in two different ways, or a charge of attempting, endeavouring, &c. to equip, or procuring to be equipped, with the same two intents in different counts. If what was intended to be done would not, when done, amount to an equipping, &c. within the Act, then there would be no attempting or endeavouring, &c. contrary to the Act.

The question then arises what is the true construction of the Foreign Enlistment Act, particularly of the seventh section of that statute, upon which the information in this case is framed; and what is the meaning of the words “ equip, furnishi, or fit out in that section ; and also what is meant by the expression), “ with “ intent to cruise or commit hostilities." It is a

highly penal statute, creating a new crime or misdemeanor, making those who commit it liable to fine and imprisonment, if found guilty, and the ship, the subject of the crime, liable to forfeiture. The attempt or endeavour to commit the offence, or the procuring it to be committed, or the aiding, assisting, or being concerned in the commission of it, is each made criminal, and liable to the same punishment and forfeiture.

In order to have a comprehensive view of the whole subject, it

may be useful to become acquainted with the history of the statute and of the act of the American Congress, which is said to have given rise to it. It may be useful also to learn what have been the opinions (Jiffering, it may be observed, widely from each other), of learned jurists and of eminent statesmen, not always agreeing, on the subjects of international law, belligerent righis, and neutral duties. But none of these can furnish veen the semblance of authority for construing an English Act of Parliament, which creates for the first time an indictable offence render

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Judgment. ing the party found guilty of it liable to fine and imprisonment,

and his property liable to forfeiture; and it should be borne in mind that the property is not forfeited unless the crime has been committed. I, perhaps, may here remark that neither on the trial nor during the argument, has any one suggested by name who has committed the crime, what he did in committing the crime, or what are the acts and who are the persons by whose conduct a ship of the value of the “ Alexandra,” has become forfeited and seized by the Crown. If the statute in terms reasonably plain and clear makes what the Defendants have done a punishable offence within the statute, we want not the assistance which may be derived from what eminent statesmen have said, or learned jurists have written on international law or belligerent rights; we want not the decisions of American courts to see whether the case before us is within the statuite; but no opinions of jurists, no decisions of foreign courts will enable us, or ought to induce us, to declare if the act be not within the words of the statute that the scope and object, the spirit and intention of the statute include the case before us, though it be not plainly and clearly expressed by the legislature. We have had in this country no Court of Criminal Equity since the Star Chamber was abolished, as Lord Campbell called it, in a case which was tried before him, viz., “ The Emperor of Austria v. Day,” which is to be found in the 30th Law Journal (Chancery, 706).

Mr. Justice Blackstone well lays down the rule in the 1st volume of his Commentaries, page 92,-“ The freedom of our “ constitution will not permit that in criminal cases a power “ should be lodged in any Judge to construe the law otherwise “ than according to the letter.” Our institutions were never more safe in my opinion than at the present moment, but we cannot afford at any time to lose any of the grounds of our security, and no calamity would be greater than to introduce a lax or elastic interpretation of a criminal statute to serve a special but a temporary purpose.

And here I may notice, in order to dispose of it, the argument of the Attorney General, about construing a statute, even a penal statute, so as to suppress the mischief and advance the remedy. He cited Plowden and the Resolutions in Heydon's case, 3rd Reports, page 18. But all the penal statutes alluded to there, and in all the places where that doctrine is to be met with, are statutes which create some disability or forfeiture, none of them are statutes creating a crime, and I think it is altogether a mistake to apply the Resolutions in Heydon's case to a criminal statute which creates a new offence.

The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is: What is the true construction of a statute? If I were asked whether there be any difference left between a criminal statute and any other statute not creating a crime, I should

say

that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. No doubt there are some other cases to which the statute is to be applied,

JUDGMENT.

unless you are quite sure of the contrary, namely that the case is not within the law.

As to this particular statute having for its object prevention, and not punishment, which was pressed upon our attention more than once, that is not a matter peculiar to this statute. I apprehend that this statute has that object in common with all other criminal statutes that were ever passed, which are all intended not to punish guilt, but to prevent crime. And as to the recital that the existing law was not sufficient, to which our attention was particularly called, I presume that that recital really belongs also to every statute of every sort, whether mentioned in it or not, for, if the law be sufficient, the statute is a piece of superfluous legislation.

So also, I think that we have nothing to do with the political consequences of our decision or the dissatisfaction which it may create in any quarter anywhere, and I cannot help expressing my regret, not unmixed with some surprise, that the learned Attorney General has more than once adverted to the consequences that may arise from our holding that what the defendants have done is not contrary to our municipal law. That it is not contrary to the law of nations he has distinctly stated, and indeed made it the subject of an argument in another place, as I think they call it), "that other countries “ have no right to complain of it as a violation of the law of “ nations.” On the first day of his argument, he pointed out how the supply of ships would work practically between a powerful country and a weak one, and he imagined (I am quoting his very words) “ this country at war with France, and the dockyards in “ Sweden supplying, fitting out, and equipping vessels of war for France," and he suggested that we might say, as he says we always have done in the course of our history, “ We will not “ endure it, and if this goes on we will rather

to war with

you " than let war be carried on practically against us from your “ shores, under pretence of neutrality. That we should do that “ with a weak power like Sweden,” the Attorney General asks,

human being entertain a doubt ?" He then goes on to suggest that a great power, like the United States, would adopt the same views, would look broadly at the practical mischief, would care nothing for Vattel, Grotius, or Puffendorf, and would say, “It is in substance as noxious as war, and we will not endure

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I must say I doubt whether such views and such doctrines ought to be presented to us at all. I am sure that they will not influence our judgment, and I am inclined to suspect the soundness of any proposition of law which requires such a style of argument to support it. Indeed I may add that international law would be of very little use, if it were not to govern the conduct of strong nations as well as of weak ones. I would rather state the passage in the Attorney General's own words, because I should be very sorry to misunderstand or to misquote anything that fell from him. He says, “ Can any one doubt that that is the way in which such a

8341.

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