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JUDGMENT. part contributed by each would equally conduce to the fulfilment
Before I could come to the conclusion contended for by the claimants in the absence of plainer words to that effect, I must believe that the legislature, when enacting a forfeiture and power 10 arrest a vessel, meant to deprive itself of all reasonable opportunity for exercising that power, and that too when the avowed object is to prevent the vessel leaving the English port, and not merely to punish offenders by indictment afterwards. Upon this restricted construction it is practically plain that the statute would be set at defiance in one of two ways, either as was done by the “ Alabama,” whose armaments went out in another ship, or by completing the peaceful equipments first, and then putting on board the guns as the last act in port, probably occupying a few hours at most, and giving no opportunity of seizure and prevention. In fine, I see no more reason for saying that the ship must, in order to violate the statute, be co equipped in our ports with arms as to be ready to commit hostilities on leaving them, than for saying that she must be sufficiently manned also, without which she would certainly not be in such a condition. I cannot so restrict the statute by construction without feeling that I should virtually repeal it.
In arriving at my construction I do not feel pressed by Sir Hugh Cairns' argument of inconsistency in drawing so sharp a line between the building and the equipping, for the same might be said of the distinction which does exist between selling an armed vessel to a belligerent and arming one with the requisite intent under an order of the same purchaser; the line is equally sharp, and the only difference is in the place where it is to be drawn. Indeed, this argument is rather to be addressed to the lawgiver than to the expounder, if there be inconsistency in the legislation. Admitting, as I do, that there is inconsistency in the state of this law as to what is lawful and what is not, I believe nevertheless that the lesser amount of inconsistency is incurred by adhering to the ordinary meaning of the language employed as I have above construed it.
Upon this view of the statute, in my opinion, the proper direction to the jury would have been that they should first look to see whether the equippers had had the intention which I have above mentioned, together also with the intent of the principal as explained by my Brother Channell; and, secondly, whether with such intent they had done any act towards equipping, furnishing, or fitting out the ship, beyond the mere work of building the hull of the vessel, or had attempted or endeavoured so to do; and I agree with the definition of the attempt which my brethren have given. But looking at the whole of the direction of the Lord Chief Baron (which I need not criticise at length after my Brother Channell's judgment), although his Lordship does appear to have left the question of equipping, furnishing, or fitting out to the jury in the alternative, yet I think there are other passages of the summing up which are inconsistent, and which would have
a tendency to mislead them. I need not recapitulate them, as my Brother Channell has done so at full length, and I therefore conclude by saying that I think that the jury should have been distinctly told that the intent as before defined being established to their satisfaction, any act of equipping in furtherance of such intention would be unlawful within the meaning of the statute.
I am also further of opinion that, even if my construction of the statute be incorrect, and if it ought to be construed as Mr. Mellish contended, that is, as probibiting only equipments of a distinctive character, yet that upon the evidence above stated there was sufficient upon which to direct the jury that the claimants had supplied distinctive equipments within that meaning of the Act. The evidence to which I allude is the proof of the fitting stanchions for hammock racks and the cooking apparatus for a crew of 150 or 200 people to a war vessel. I do not find that such direction was given, and I am therefore of opinion that, upon the ground of an insufficient direction, there ought to be a new trial.
On the other ground, that the verdict was against the evidence, I agree with
Brother Channell, that it is unnecessary for me to decide it, as I think that the rule should be made absolute on the ground of insufficient direction.
Mr. Attorney General.—My Lord, the Court being equally divided in opinion, if it is your Lordship’s desire that a judgment should be given, I believe it is necessary that some arrangement should be made for that purpose, that by the consent of one of the judges who has delivered an opinion, the rule should be either discharged or made absolute, otherwise we should have no judgment at all which could be taken anywhere else.
Lord Chief Baron.—The officer of the Court,—the Queen's Remembrancer,--says, that according to the practice you would have an appeal either way; but it would, perhaps, be better if there were an apparent judgment of the Court, deciding one way or the other, in order to remove every possible doubt.
Mr. Baron Pigott.— Then I will withdraw my judgment.
Mr. Baron Channell.- According to the rules which the Court made on the opening of this argument, in order to assimilate this case to an ordinary civil action, when a rule for a new trial drops on the ground that the Court is equally divided, there is a right of appeal.
Lord Chief Baron.—My Brother Pigott withdraws his judement.
Mr. Baron Pigott.--Yes.
LRTTER from EARL RUSSELL to the LORDS OF THE TREASURY.
Foreign Office, January 31, 1862. Her Majesty being fully determined to observe the duties of neutrality during the existing hostilities between the United States and the States calling themselves “the Confederate States “ of America,” and being, moreover, resolved to prevent, as far as possible, the use of Her Majesty's harbours, ports, and coasts, and the waters within Her Majesty's territorial jurisdiction, in aid of the warlike purposes of either belligerent, has commanded me to communicate to your Lordships, for your guidance, the following rules, which are to be treated and enforced as Her Majesty's Orders and Directions.
Her Majesty is pleased further to command that these rules shall be put in force in the United Kingdom and in the Channel Islands on and after Thursday, the 6th day of February next, and in Her Majesty's territories and possessions beyond the seas six days after the day when the Governor or other chief authority of each of such territories or possessions respectively shall have notified and published the same, stating in such notification that the said rules are to be obeyed by all persons within the same territories and possessions.
I. During the continuance of the present hostilities between the Government of the United States of North America and the States calling themselves “the Confederate States of America,” or until Her Majesty shall otherwise order, no ship of war or privateer belonging to either of the belligerents shall be permitted to enter or remain in the port of Nassau, or in any other port, roadstead, or waters of the Bahama Islands, except by special leave of the Lieutenant-Governor of the Bahama Islands, or in case of stress of weather. If any such vessel should enter any such port, roadstead, or waters, by special leave or under stress of weather, the authorities of the place shall require her to put to sea as soon as possible, without permitting her to take in any supplies beyond what may be necessary for her immediate
If, at the time when this order is first notified in the Bahama Islands, there shall be any such vessel already within any port, roadstead, or waters of those Islands, the Lieutenant-Governor shall give notice to such vessel to depart, and shall require her to put to sea, within such time as he shall, under the circumstances, consider proper and reasonable. If there shall then be ships of war or privateers belonging to both the said belligerents within
Letter to Lorde of the Treasury.
Earl Russell's the territorial jurisdiction of Her Majesty, in or near the same
port, roadstead, or waters, the Lieutenant-Governor shall fix the order of time in which such vessels shall depart. No such vessel of either belligerent shall be permitted to put to sea until after the expiration of at least twenty-four hours from the time when the last preceding vessel of the other belligerent (whether the same shall be a ship of war, or privateer, or merchant ship) which shall have left the same port, roadstead, or waters, or waters adjacent thereto, shall have passed beyond the territorial juris. diction of Her Majesty.
II. During the continuance of the present hostilities between the Government of the United States of North America and the States calling themselves “the Confederate States of America,” all ships of war and privateers of either belligerent are prohibited from making use of any port or roadstead in the United Kingdom of Great Britain and Ireland, or in the Channel Islands, or in any of Her Majesty's Colonies or foreign possessions or dependencies, or of any waters subject to the territorial jurisdiction of the British Crown, as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment; and no ship of war or privateer of either belligerent shall hereafter be permitted to sail out or leave any port, roadstead, or waters subject to British jurisdiction, from which any vessel of the other belligerent (whether the same shall be a ship of war, a privateer, or a merchant ship) shall have previously departed, until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the territorial jurisdiction of Her Majesty.
III. If any ship of war or privateer of either belligerent shall, after the time when this order shall be first notified and put in force in the United Kingdom and in the Channel Islands, and in the several colonies and foreign possessions and dependencies of Her Majesty respectively, enter any port, roadstead, or waters belonging to Her Majesty, either in the United Kingdom, or in the Channel Islands, or in any of Her Majesty's colonies or foreign possessions or dependencies, such vessel shall be required to depart and to put to sea within twenty-four hours after her entrance into such port, roadstead, or waters, except in case of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew, or repairs; in either of which cases, the authorities of the port, or of the nearest port (as the case may be), shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use; and no such vessel, which may have been allowed to remain within British waters for the purpose of repair, shall continue in any such port, roadstead, or waters for a longer period than twenty-four hours after her necessary repairs shall have been completed : Provided, nevertheless, that in all cases in which there shall be any vessels (whether ships of war, privateers, or merchant ships) of both the said