of hostilities.

Our difference appears to be this, that they think the equipment must be intended to be completed so that the vessel when it leaves our port shall be in a condition at once to commit hostilities; whilst it seems to me that in the fair and reasonable meaning of the words used, another case is included, viz., where the equipment not being complete to that extent is yet capable of being used for war, and the intent is clear that it is to be used for war. I say that the fair and reasonable meaning of the words includes that case, and that we should judicially construe the Act to include it.

It may be said that the manner in which I have considered this case, by a minute scrutiny of the words of the Act, is a mere lawyer's method of viewing the matter—that in a case of this kind it is our duty to take a broader view-to take into our consideration the principles of international law, the duties of nation to nation, and even the opinions of great statesmen on those duties. I, for my part, have no ambition to decide cases in this Court in any other capacity than that of a lawyer. In days long past judges, I think, often invaded what we now consider the sole province of the Legislature. They interpreted statutes to include cases which they assumed to think ought to have been included; thus not merely constituting themselves legislators, but generally also legislators er post facto. That I think will never be done again. As long as Acts of Parliament are drawn as they are now, the office of construing them will be no sinecure, though we have but to interpret the law, and not to make it. If it is for the interest of the nation that the law should be other than we interpret it,if our construction of this Act of Parliament may endanger the peace of the nation,-then I say that it may be the duty of Parliament to enact a new law; but it is not our duty to look elsewhere than at the present statute for an interpretation of it.

MR. BARON PIGOTT.

THE rule for a new trial in this case has been drawn up on seven different grounds. We have, however, to consider them as practically reduced to two, and accordingly the arguments were directed to impeach the general verdict which was found for the claimants of the ship, the " Alexandra," first, upon the ground that the Lord Chief Baron had misdirected, or had insufficiently directed the jury in point of law, and, secondly, that the verdict was against the weight of evidence.

The material facts disclosed in evidence on the trial were, that the vessel, the "Alexandra," was built by Messrs. Miller, who stated that she was for Messrs. Fraser, Trenholm, and Co., agents of the Southern Confederacy; that she was launched in March, and at the time of the seizure, on the 5th of April, the defendants' workmen were variously engaged in fitting her with stanchions for hammock nettings; that her three masts were up, and had lightning conductors on them; that she was provided with a cooking apparatus sufficient for 150 or 200 people; that her build

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was apparently for a gun-boat with low bulwarks, over which pivot guns could play; and her hatches were too small for merchandise; in fact, that she was not qualified for mercantile purposes. No evidence was called for the defence. The contention upon the trial, as upon the argument before us, was that upon the true construction of the 7th section of the statute, the Foreign Enlistment Act, the evidence disclosed no illegal act done or attempted in reference to this vessel which worked its forfeiture.

The Lord Chief Baron's direction to the jury is before us at full length, and I proceed to consider the objection to its sufficiency, and the arguments which were addressed to the Court thereupon. It is clear that the construction of a statute is for the Judge, and there are no doubt many statutes which are so unambiguous in their language that it is quite sufficient to read the words to the jury without explanation or comment. A judge has a right to assume that the jury whom he is directing are persons of ordinary intelligence, and in his direction to them to treat them as such. But there are a variety of statutes of quite a different character, and which persons of intelligence, not accustomed to the consideration of the artificial language in which Acts of Parliament are fréquently framed, require to have fully and carefully explained. In such cases the duty lies upon the Judge to give the necessary explanation, and to evolve the question of fact which the jury are to decide. The statute in question is, in my opinion, clearly one of this class, and we have to see whether, upon the whole, the jury were sufficiently directed on the true meaning of the 7th section of the Enlistment Act, so that they would clearly understand the issues of fact which they had to try. In order to determine this it is necessary to ascertain the construction which the 7th section ought to bear, and I propose to examine the arguments which were addressed to the Court to guide us in our decision.

As to one class of these arguments, I felt great doubt whether they could be legitimately addressed to us for the purpose of expounding a municipal statute; and certainly I do not consider myself at liberty to look upon them in any other light, except as matters of history as to the state of our law at the date of this statute. 1 allude to the debates in Parliament, the correspondence of English and American Ministers of State, Mr. Hamilton's Rules of 1793, and the writings of modern historians.

But a second class of argument was founded on the state of international obligations as between neutral and belligerent nations, and which it was argued the Legislature, by the 7th section, intended to enforce upon the subjects of the Crown.

This argument necessarily embraced a very wide field, and no doubt those obligations are the foundation of this legislation, but, in my opinion, they are pushed too far, if urged as the necessary limit of a municipal enactment. A belligerent would have no right to complain of a neutral state so long as it is not affected by hostile acts, or until aid be in some way actually afforded to its

adversary; but the neutral state as between itself and its own subjects may find it expedient so to legislate that between the attempt to commit acts of hostility and the completion of them by their subjects, an opportunity would be afforded to arrest such completion; and where the object is a prevention of mischief, on which the peace of the country is supposed to depend, I should expect d priori that such would be the course adopted. Be this as it may, the consideration of the subject can for the present purpose be serviceable at the utmost where the language employed in legislation is in itself really ambiguous, and I think that it cannot be carried to the extent of creating an ambiguity which does not otherwise appear. It is not necessary for me to determine whether this branch of argument is otherwise well founded by a comparison of international obligations with the actual provisions of the Act, for it is admitted that, to some extent, the latter go beyond them.

A third head of argument was founded by both sides on the language and provisions of the American statute. Doubtless it had the same general object, is framed in pari materiâ, and was the forerunner of our statute. In these circumstances I see no objection to making a comparison of the language of the two, and seeing whether by their marked agreement or variance any doubtful meaning of the English legislature can be more certainly ascertained. And in the same way the authorities of the American courts may serve to guide, though not to govern, our judgments. Now with reference to the corresponding section of the American Act, as compared with the 7th section of the English Statute, it is impossible, on the most cursory glance, not to perceive that, although the former was (judging by the similarity of language) taken as the model of the latter, yet that our legislature has made very material variations from it. Of these the very prominent ones are the use in the English Statute of the disjunctive for the conjunctive, the extending of the prohibition to equipping transports or store ships, the addition of the words "or in order," to with intent," and the omission in the forfeiture clause of the materials for building the ship,-alterations which can only have been made with some object at least.

As regards the American authorities, the case of the United States v. Quincy, in 6th Peters' Reports, is most relied on by the Crown. The decision must be admitted to be open to some criticism. There was in that case certainly evidence of hostile preparations, and neither of the questions answered by the Court is exactly in point. But it does nevertheless appear from several parts of the judgment that the Court would, if necessary, have gone the length of holding, as, indeed, they say in terms, "that "the offence consists principally in the intention with which the preparations were made;" and again, "It is the material point on which the legality or criminality of the act must turn, and "decides whether the adventure is of a commercial or warlike "character." From this and other passages in the judgment I infer that they were disposed to disregard altogether the nature of the preparations.

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I pass now, however, to the head of argument addressed to us by both sides, and on which, in my opinion, the judgment of the Court must be mainly based, viz., on an examination of the statute itself, its object, preamble, and enacting language; and I own that, were it not for the great difference of opinion which seems to exist, I should not have thought it so difficult to construe as it would thence appear to be. It is a municipal Act, and is to be construed according to the ordinary import of the language employed. This was the rule of construction stated by Baron Parke in Lyde v. Barnard. The rule of construction is also clearly stated in the Sussex Peerage case, by Chief Justice Tindal; thus," If the words are in themselves precise and unambiguous, "then no more can be necessary than to expound those words in "their natural and ordinary sense; the words themselves do in "such case best declare the intention of the lawgiver." And I confess I approve, as applicable to this statute (as to the character of which I agree with the remarks made by my Brother Channell, though I say it now with deference after the Lord Chief Baron's observations) of Lord Coke's rule in Bonham's case where he says, "The good expositor makes every sentence have its operation "to suppress all the mischiefs; he gives effect to every word in "the statute; he does not construe it so that anything should be "vain and superfluous nor makes exposition against express "words."

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Bearing in mind these rules of exposition, I find that the Foreign Enlistment Act plainly recites the mischief, and the cause of it which it is designed to prevent, viz., "The fitting out and equipping and arming of vessels by Her Majesty's subjects "without Her Majesty's licence, for warlike operations, which may be prejudicial to and tend to endanger the peace and wel"fare of this kingdom." This language is tolerably plain, and I pass on to consider the enacting clause, where the mode of prevention is stated.

The language of it is varied, and as I think in some respects studiously varied from that of the preamble. There is introduced into it the additional word "furnish;" the copulative "and" is changed into the disjunctive "or," to connect the four much debated words, instead of the expression "fitting and equipping " and arming of vessels for warlike operations," which is the language of the preamble, the expression is "equipping, furnish"ing, fitting out, or arming, of any ship or vessel with intent "or in order that such ship or vessel shall be employed "in the service of any foreign prince, &c., as a transport or store ship, or with intent to cruise or commit hostilities," &c. It is agreed on all hands that the latter words, "with intent," may be taken as omitted here. The clause is also directed not only against the principal offences stated in the preamble, but also against any attempt to commit them, and also against the knowingly aiding, assisting, or being concerned in them; offences expressly, of course, mentioned for the purpose of the forfeiture. The enacting clause, therefore, is more extensive than the preamble, but I take it to be a clearrule of construction, that where

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that is the case effect must nevertheless be given to the larger JUDGMENT. words of the clause.

It would be unnecessarily lengthening my judgment if I attempted to review all the arguments on this part of the case. I shall, therefore, confine myself to noticing some of them, in the course of stating my own views. And first, I do not think that the legislature have used any apt words to prohibit the building a hull of a vessel as contradistinguished from equipping it for sea, and for other purposes. It seems to me that if such had been the intention, it would have been done plainly by the use of the word "build" before the expressions" equip," &c., and that it is impossible for a Court to guess that such might have been the meaning, as was argued by the Attorney General, from the use of so doubtful an expression as that of "fit out," rendered more doubtful for such a purpose by its collocation in the sentence, not standing even in the position which it occupies in the American statute, namely, first, but placed among expressions plainly signifying acts done on a vessel in existence. And when reference is made to the forfeiture clause, it is to be observed that neither the hull" nor the "building materials" are enumerated there; but, as before observed, the latter words which were to be found in the American Act appear to be studiously omitted, and no equivalent ones are substituted. The subject was one too prominent to have escaped the observation of the framers of the statute, and I am led therefore to infer that the legislature had reasons for not interfering with the shipbuilding trade, as such, in contradistinction to the business of equipping ships. It may have been because of its extent and importance, or the legislature may have hoped to prevent the mischief aimed at by less objectionable means, or (and I think that most probable) it may have considered that ample time would be afforded between the completion of the hull and the equipments necessary to enable it to leave the port, during which its destination being ascertained, if illegal, a seizure could be effected. Whether I am right in these suggestions or not, I find no distinct prohibition against the building of a hull or vessel, and I feel bound, therefore, to say, that by building merely, no forfeiture is incurred. But I am of opinion that any act of equipping, furnishing, or fitting out done to the hull or vessel, of whatever nature or character that act may be, if done with the prohibited intent, is expressly within the plain language, and also within the evident spirit of the statute. The intent I take to mean an intent of the principal (who has control of the ship) having directly for its object the employment of the vessel by a foreign state, and in the equipper a like intent, and with such intent a contributory equipment of some kind necessary to such employment, and it is evident that the intents need not be derived solely from the nature of the equipments, but may be proved aliunde. It may not be easy to define in all cases the exact point at which the building of the hull ends and the act of equipping or fitting out begins, but that in each case would be for a jury to decide,