Page images
PDF
EPUB

JUDGMENT.

state of things would work practically as between a powerful country and a weak one ?” Then he imagines the case of Sweden, and then he says, “ That we should do that with a weak

power, like Sweden, can any human being entertain a doubt ?” I venture to entertain a doubt and to express a hope that this country would not sully its high character by adopting towards a weak state a line of conduct which it would not think prudent or politic towards a stronger one. I certainly had thought that the object of international law was, among other things, to state and define what acts, what conduct of any state, would justify war being made upon it by another state. But the Attorney General seems to think, that if one nation be strong and another weak, the strong one will make war on the weak though it has no violation of international law to allege against it and to complain of, but merely some inconvenience arising from the neutral state continuing its commercial relations with another power, with whom it has been accustomed for a long time to maintain them.

Again, on the second day, the Attorney General said : “ The

peace and welfare of the kingdom, perhaps of the world, is de“ clared by the legislature to depend” upon this matter. When his attention was called to this from the Bench, he said, that perhaps he was going too far in saying “the peace of the world,” and no doubt he was, for there is not any declaration by the legislature about the peace of the worldat all, and the expression

peace and welfare of this kingdom,” which no doubt is in the preamble, I believe relates, as far as “peace" is concerned, only

” to that tranquillity which is in the care of the magistracy, and has nothing whatever to do with the relations of peace or war with respect to other countries.

At the end of his address (no doubt conspicuous for its ability) he stated the grounds on which our decision ought to rest, in a manner perfectly unexceptionable; and I wish that the whole of his argument had corresponded with the dignified and eloquent manner in which it was concluded.

So also I think we have nothing to do with the question as to which construction of the clause is most for the interest of this country as a great maritime power. It is degrading the discussion to make it in any degree turn upon a question of advantage or benefit to be gained or lost; and on such a subject we might turn out to be quite mistaken. In the present enlightened state of the civilized world, it may turn out that that doctrine and those principles are to be preferred which would make us prosperous in peace rather than those which would make us successful

66

in war.

In construing the statute it is our duty to ascertain the true legal meaning of the words used by the legislature and to collect the intention from the language of the statute itself, either the preamble or the enactments, and not to make out the intention from some other sources of information and then construe the words of the statute so as to meet the assumed intention; and this appears to me to be the mistake of the counsel on the part of the Crown. They say, Here is a powerful etate complaining that JUDGMENT. what you are doing is as bad as war, and saying We will not endure it; and then they say, The welfare and peace of this country require that the Act should be so construed as to silence that complaint. But we cannot and ought not, even if the matter before us seemed to be within the mischief which it is supposed the statute was meant to remedy, to deal with it as a crime unless it be plainly and without doubt included in the language used by the legislature. In my judgment it is not within the letter of the statute, nor within the spirit, nor was it at all contemplated by those who framed the law.

The danger of travelling out of the statute itself and looking elsewhere for the object of the legislature in passing it, may be illustrated by the wide difference of opinion between the late Attorney General and the present Attorney General upon this very point. The late Attorney General in opening the case to the jury said, “ It appears particularly to have been contem“ plated by the framers of the Foreign Enlistment Act to “ enforce the observance of neutrality in the event of war," which I certainly understand to mean, to compel a compliance with the duties of neutrality, as expounded by international law. But the present Attorney General, in the beginning of his argument in support of the Rule, took quite an opposite view, but I own I think a much more correct one, and said that the whole argument of his speech (in that other place which has been alluded to), was to establish “ the directly contradictory pro“ position, and his language is this," I say that there were no “ such obligations, and that it is a total misinterpretation of the “ municipal law to say that there was any state in the world “ which, according to the settled and established principles of “ international law, could have required this country to prohibit " those things which were prohibited under that statute,” meaning the Foreign Enlistment Act. And even with respect to the

Alabama,” he intimates that though there had been a breach of the municipal law, there had been, and I think he is quite correct in this,) no violation of international law, or anything of which a belligerent at peace with this country had a right to complain.

In endeavouring to discover the true construction of the 7th clause of the statute, the first matter to be attended to is no doubt the actual language of the clause itself as introduced by the preamble; 2ndly, the words or expressions which obviously are by design omitted; and, 3rdly, the connexion of the 7th clause with other clauses in the same statute, and the conclusions which on comparison with other clauses may reasonably and obviously be drawn--I do not mean to exclude other considerations, but these appear to me to be the most obvious and the safest.

The learned Attorney General, with apparent effect, asked Why do you try to explain a statute by words which are not to be found in it? 'it is dangerous to adopt such a course.

On the first impression the objection seems not at all unreasonable ; but the answer, on a very little consideration, is quite obvious. In

JUDGMENT. order to know what a statute does mean, it is one important step

to know what it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean, must be consistent and in harmony with what it is clear that it does not mean. What it forbids must be consistent with what it permits. The 7th section contains the words “equip, furnish, fit out, and arm,” but does not contain the word “build,” and I think no one can doubt that that word was purposely omitted from the Act of Congress and from our own statute.

I am not surprised that the Attorney General was desirous of preventing this mode of investigation, because it leads in my judgment irresistibly to this conclusion, that whatever might be done in the way of mere building before the statute, may now be done notwithstanding the statute. In common honesty and candour it cannot be suggested that the legislature meant to suppress the mere building of ships for a belligerent (as it were by a side wind), and to suppress their trade without exciting their alarm I think, therefore, I may pronounce with confidence that it is Jawful now to build ships, and even to build ships for war. The slipbuilders of this country for above a century have built ships for almost every nation on the earth, some for warlike purposes, and some for commercial. Ship-building is one of the most considerable of our industrial and commercial pursuits. Building ships is not prohibited, even building ships for war is not prohibited, provided they be not "equipped, furnished, fitted out, or armedin our ports, with either of the intents stated in the 7th section, and the words “ equip, furnish, fit out, or arm” with the intent stated in the 7th section ought to be construed (if they can be so construed) so as to leave the commercial interest of shipbuilders untouched. If the comparison of the 7th section with other sections in the Act makes a certain proposition clear and undoubted, the Act must be construed accordingly, and ought to be so construed as to make it a consistent and harmonious whole. If after all it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail. I cannot understand how in the same breath it can be admitted that the question is far from being free from difficulty, and yet a construction is called for to create a crime and embarrass an important branch of British industry.

A comparison of the 7th section with the 2nd leads me to a conclusion quite different from that at which the learned Attorney General arrived. With respect to the 2nd section, it did not escape him that the offence created by the 2nd section is in a natural born British subject an offence everywhere, in the realm or out of it. To use his own expression, “ the net is thrown as “ wide as the entire world,” and enlistment anywhere is the matter forbidden. Not so the 7th section; the acts forbidden by the 7th section are forbidden to Her Majesty's subjects in Her Majesty's dominions only, elsewhere they are no offence at all; and the Attorney General failed to draw the conclusion which to

a

my mind is irresistible, namely, that neither the act nor the JUDGMENT. intention is so much the object of the legislation as the place ; it is the place a British port here or abroad) which is made sacred. Let the shipbuilder, though a British subject, take his capital and materials elsewhere, and he may build what ship he pleases, and arm it and equip it as he likes, for the use of any belligerent not at war with this country; and with whatever intention he is actuated, if he commits no act of hostility, he neither violates international law nor commits any breach of the Foreign Enlistment Act. The great object of the statute, therefore, was not to prevent the building of ships by British shipbuilders for one of two belligerents, with neither of whom we were at war, but to preserve the ports of this country from being made ports of hostile equipment against a friendly belligerent; it was not in any way to fetter the commerce of this country or the trade of shipbuilding beyond what was necessary for that purpose.

If it were important to prevent ships from being equipped, furnished, fitted out, or armed with the intents mentioned in the 7th section, by British subjects, it might have been made the subject of universal prohibition, as far as British subjects were concerned, as easily as enlistment, but the prohibition does not go beyond the ports of the British dominions.

Again, a comparison between the 7th section and the 8th throws also some light on the meaning of the words used in the 7th section, and on the object with which it was framed. The 8th section of the British statule makes it à misdemeanor to add to the number of guns or to change them for others, or by the addition of any equipment for war to increase the warlike force of avy ship or vessel of war, or cruiser, or other armed vessel, which at the time of her arrival in any port of the United Kingdom was in the service of any foreign prince or government, or of any person or persons exercising or assuming to exercise any powers of government. In short it forbids any one in this country to increase the warlike force of any vessel of war or armed vessel not belonging to the sovereign of this country. In this it differs from the corresponding clause in the Act of Congress (which is the 5th) which forbids the increase of warlike armament to a ship of war only when it is for a state at war with a state or people with whom the United States are at peace. But in this country the increase of the warlike armament of any foreign ship of war is not permitted at all. Whether it belongs to a state at peace or at war with those with whom we are not at war, is no question; our ports are not to be disturbed by a warlike armament at all. But then everything or anything else may be done for the purpose of mere navigation ; any sea damage to the ship or tackle may be repaired. If a vessel be capable of repair, she may be

, equipped, furnished, and fitted out; if a steamer, she may

be supplied with coals, in order that she may reach a port of her own country in safety. One conclusion clearly to be drawn from this is, that whereas in the United States foreign vessels, vessels

a

a

JUDGMENT. of war, of one belligerent were not allowed to increase their war

like force if the United States were at peace with the other belligerent, in the British dominions a foreign vessel of war is not allowed to increase its warlike force at all under any circumstances. The one may be ascribed to some doctrine of neutrality; the other to a wish to preserve the peace of the British ports, and not to allow them to be made places of warlike equipment for foreign vessels at all.

But there is another result more worthy of observation. It is, I presume, conceded that a Federal vessel of war, damaged by storm, may put into an English port, and may refit and repair so far as is necessary to make it again navigable in order to reach its own country. The 8th section of the statute by implication permits all that does not forbid. A Federal vessel of war coming into our ports would be allowed no doubt to repair sea damage and to supply lost stores, in order to reach some other port; but the shipbuilder in our port would be equipping, furnishing, and fitting out that vessel knowing that the commander might cruise and commit hostilities against the so-called Confederate States. But does the shipbuilder commit a misdemeanor ? Certainly not. Or is the vessel forfeited ? Certainly not. If the argu

? ment for the prosecution be well founded, and the construction of the statute by the counsel for the Crown be correct, the shipbuilder who repaired any damage to a vessel of war belonging to either of the belligerents would be liable to a prosecution as much as any of the present defendants.

I now come to the 7th section itself, and to the terms in which the statute enacts that persons doing certain acts with a certain intent shall be deemed guilty of a misdemeanor. It is necessary carefully to separate the act itself from any attempt or endeavour lo commit it, and to simplify the inquiry as to how the statute should be construed. I will take, as ihe information does, one of the prohibited matters, "equip,” for instance, and examine that alone, without reference to the others, and without reference to attempting, procuring, aiding, assisting, &c. The clause would then run thus,—“If any person within any part of Her Majesty's “ dominions, in the United Kingdom or beyond the seas, without 6 the leave and licence of Her Majesty, shall equip any ship or “ vessel with intent, or in order that such ship or vessel shall be

employed in the service of any foreign state or government as

a transport or store ship, or with intent to cruise or commit “ hostilities against any state or government with whom Her “ Majesty shall not then be at war, every such person so offending “ shall be deemed guilty of a misdemeanor.” Two questions obviously arise upon the construction of these expressions,—1st. Whose intention is it which is meant by the Act; and, 2ndly, What is the meaning of the word “equip?It is difficult to make out what was the intention of those who framed this clause, as to the manner in which it should be broken up into parts, and then be put together so as to present all the alternatives contemplated. Probably, I think one may say certainly, it could not

« EelmineJätka »