my mind is irresistible, namely, that neither the act nor the 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 statute makes it a 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 any 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 JUDGMENT. JUDGMENT. of war, of one belligerent were not allowed to increase their warlike 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 it 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 argument 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 to commit it, and to simplify the inquiry as to how the statute should be construed. I will take, as the 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 "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 66 66 mean that "with intent and in order that such ship or vessel "should be employed in the service of any foreign prince, state," &c. as a transport or store ship" should stand alone without some subsequent matter being added, for that would make it a misdemeanor to furnish a transport or store ship to any foreign prince, &c. without any regard to his being at peace or war with any state or government with whom the sovereign of this country should not then be at war. It is probable that the words "against any foreign prince, state," &c., should follow the word "storeship;" and then the effect of the clause would be to make it a misdemeanor to equip a ship or vessel as a storeship with intent and in order that such ship should be employed in the service of any foreign prince, &c., as a transport or storeship against any prince, state, &c., with whom our sovereign should not then be at war, or with intent to cruise and commit hostilities against any such prince, state, or potentate; and some 24 of the 98 counts are founded upon this view of the section. Or the alternative may be, "as a transport or storeship, or with intent to cruise or commit hostilities," &c.; and then the effect of the clause would be to make it a misdemeanor to equip a ship with intent or in order that she might be employed by one belligerent as a transport or with intent to cruise or commit hostilities against the other. It is certainly to be regretted that the wisdom and sagacity which the Attorney General discovers in adjusting the verbal differences between our statute and the prior Act of Congress, were not exercised in baffling the enemy of the Bill, who, by levelling it at transports and store ships, as well as ships of actual war, has thrown the whole clause into great confusion, which I presume it is suggested that he meant to do by speaking of him as "not originally a friend to the Bill," and as having made the alteration "in Committee." But neither this Court nor any other Court can construe any statute, and least of all a criminal statute, by what counsel are pleased to suggest, were alterations made in committee by a Member of Parliament, who was "no friend to the Bill," even though the Journals of the House should give no sanction to the proposition. This is not one of the modes of discovering the meaning of an Act of Parliament recommended by Plowden, or sanctioned by Lord Coke or Blackstone. Where two intents are mentioned, and they are put in the alternative, thus, an intent to do such a thing, or an intent to do another, the obvious and the grammatical mode of reading the clause would be to make the two intentions the alternatives-but most of the counts in the information (about 72) combine the two intents together, and in effect turn "or" into "and," and charge the defendants with " equipping," &c., the ship, with intent that the ship should be employed in the service of one belligerent with intent to cruise and commit hostilities against the other belligerent, with which Her Majesty was not then at war. If this mode of reading the 7th section. be not correct, 72 of the counts are improperly framed, and the JUDGMENT. JUDGMENT. statute does not warrant their making any such charge. But, "occupation and livelihood of some of them. To suppress those Why, I would ask, should not this view of the subject of industrial pursuits apply to ships and shipbuilders in England? In America it apparently does apply. The second answer relates to ships, but Mr. Jefferson does not say anything in disapprobation of a mere supply of ships, even ships of war. What he says is this, "But the practice of commissioning, equipping, and manning "vessels in our ports to cruise on any of the belligerent parties "is entirely disapproved, and the government will take effective 66 measures to prevent it," and accordingly the 3rd section of the Act of Congress is directed against fitting out and arming, and also against commissioning. The 7th section of our Act is directed against equipping, furnishing, fitting out, or arming, and also against commissioning. But there is not a single syllable against shipbuilding, or selling, or making for sale, ships, even of a warlike character. So with respect to the law and the construction of the American Act of Congress. The judgment delivered by Mr. Justice Thompson in the United States, in the case of "The United States v. Quincy," gives to the citizens of the United States a right to send armed vessels out of their ports It aims at preventing the citizens themselves from committing hostilities against foreign powers at peace with the United States, but leaves them at perfect liberty to sell the vessel to one of the belligerents, and provided hostilities are not committed by the citizens of the United States there is no breach of the law. The accompanying remark of the learned Judge which immediately follows, proves that the Attorney General is endeavouring to enforce against British shipbuilders a principle which the Supreme Court of the United States altogether repudiates as applicable to citizens of the United States. If our statute was passed to give to the United States and other countries the same advantage that their Act of Congress gave to us, there may be a reciprocity in words, but there is no reciprocity in reality and in construction if the argument for the prosecution is to prevail. Mr. Justice Thompson says, "All the "latitude recessary for commercial purposes is given to our "citizens, and they are restrained only from such acts as are "calculated to involve the country in war," which I understand to mean that, the citizens of the United States have a right to build what ships they please, and dispose of them as they please, provided they do not themselves take part in the war, and the ships are not employed by them to commit hostilities. And what pretence is there for giving to our Foreign Enlistment Act, with respect to shipbuilding, a construction totally different from that which the Act of Congress bears, according to the judgment of the American judges themselves in their Supreme Court? 66 There is indeed, a difference of expression between the Act of Congress and our statute,-they have merely the words "with "intent," we have "with intent or in order." The Attorney General says that he supposes that the words "in order" were added to avoid some evasion or quibble. I believe that they were added to leave no doubt as to the meaning; the expression" in order" is explained in Todd's Johnson to signify means to an end," and Jeremy Taylor, Tillotson, and Swift are quoted as authorities-the passage from Swift is, "One "man pursues power in order to wealth"-that is, power is the "means," wealth is "the end." And the 7th section forbids equipping a ship or vessel as a "means" to "the "end" of cruising, or committing hostilities. In all common sense and understanding, if the nature of the equipment has no reference whatever to the commission of hostilities, it cannot be the "means "to that end," and there is no breach of the statute by that sort of equipment. Webster's American Dictionary gives precisely the same explanation of the words "in order." And this leads me to remark that even the word "intent" alone, and without "in order" which is put in, as, I think, to explain it and give it the true meaning which an English lawyer would assign, ought not to lead to a different conclusion, The Attorney General seems to think that if there be an intent, and if anything of whatever kind be done in pursuance of it, that is sufficient JUDGMENT. |