1863. ATTORNEY- with intent to cruise against the citizens of the United States of America. The 5th, charged that the claimants purpose. As in The Gas Light Company v. Turner, 6 B. N. C. 324, where the lease was executed by both parties for the express purpose of carrying out the illegal purpose; or Ritchie v. Smith, 6 C. B. 475, where from the agreement itself it was apparent that the parties contemplated the breach of the law, and the reward the plaintiff was to receive was partly for facilitating the unlawful purpose. Thus, again, in De Begnis v. Armistead, 10 Bing. 110, money paid for the express purpose of carrying out the illegal object was held to be irrecoverable by reason of illegality; and so as to money paid for dresses for the very purpose of their being used in an unlicensed theatre. So that the ratio decidendo seems to be, knowingly assisting in the illegal purpose; and the definition of that seems to be, doing something which could only have that effect. According to the principle of these cases, if the offence were merely the equipping, then, although the merely building a vessel, knowing that it would be, hereafter, and out of the country, equipped by a belligerent, would have been no offence, nor have affected the owner or builder with the illegal object, yet the building it so as that it might be equipped, or the attempting so to build it, would be at common law enough to affect the owner or builder with the illegality, so as to preclude their recovery of the price. Looking at the statute by the light of that principle, and looking also at the mischief, and looking at the avowed policy and scope of the statute of prevention, and at the words employed, "knowingly assisting to equip in order to, &c.," the question is, whether, if there was evidence to show that the vessel was being built for a belligerent, (with or without any precedent contract,) in such a way as that its owners and builders must have known it was being fitted or made fit for equipment, and so as that, without any further fitting out, or any alteration or addition, it could at once receive guns on board, whether that would not be knowingly assisting to equip. As to which it may be observed, that it is obvious the act contemplated seizure before any arms or ammunition were on board, and the seizure also of materials, for it expressly provides that it may be seized, "with all the materials, arms and ammunition" which may belong to her, whether or not on board. And to wait until the last ounce of powder was on board, and the ship just sailing, would be to wait too long, added to which the guns and ammunition might not be put on board in an English port at all, but at sea; and that could not be unless the ship were so built and fitted as to be ready for reception of guns; and the strict point, therefore, appears to be, whether parties, who are engaged in so building a vessel as that it would be able so to receive equipment, and but for whose so building it it would not receive it, are not knowingly assisting or concerned in the equip did equip the vessel to employ her in the service of persons exercising powers of government over Confederate States of America, with intent to cruise against the Republic of the United States of America. The 6th count charged that the claimants did equip the vessel with intent to employ her in the service of persons exercising powers of government over the Confederate States of America, with intent to cruise against the citizens of the Republic of the United States of America. The 7th count charged that the claimants did equip the vessel with intent to employ her in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c., to wit, against the Republic of the United States of America. The 8th count charged that the claimants did equip the vessel to employ her in the service of persons exercising powers of government over part of a certain foreign people, with intent to cruise, &c., to wit, against citizens of the Republic of the United States of America. The 9th count to the 16th count charged the same as the first eight counts, saying, "furnish," instead of "equip." The 17th count to the 24th count charged the same as the first eight counts, saying, "fit out," instead of 'equip." The 25th count to the 32nd count charged the same as the first eight counts, saying, "attempt and endeavour to equip," instead of "equip." The 33rd count to the 40th count charged the same as the first eight counts, saying, "attempt and endeavour to furnish," instead of equip." The 41st count to the 48th count charged the same as the first eight counts, saying, "attempt and endeavour to fit out," instead of "equip." The 49th count to the 56th count charged the same as the first eight counts, saying, " did procure to be furnished," instead of "equip." ping of the vessel? As the learned LORD CHIEF BARON gave no specific directions on that point, it must be presumed that he thought the evidence did not raise the point, or that it was not the case of the 1863. ATTORNEY- v. SILLIM and Others. 1863. ATTORNEY GENERAL บ. SILLIM and Others. The 65th count to 72nd count charged the same as the first eight counts, saying, "did procure to be fitted out," instead of "equip." The 73rd count to the 80th count charged the same as the first eight counts, saying "did knowingly aid, assist and be concerned in equipping" instead of "equip," with intent that she should be employed in the service, &c., with intent to cruise, &c., ut supra. The 81st count to the 88th count charged the same as the first eight counts, saying, "did knowingly aid, assist and be concerned in furnishing," instead of "equip." The 89th count to the 96th count charged the same as the first eight counts, saying, "did knowingly aid, assist and be concerned in fitting out," instead of "equip." The 97th count charged that the claimants did attempt to fit out the said vessel to employ her in the service of persons exercising powers of government over part of a certain foreign people as a transport or storeship against the Republic of the United States of America. The 98th and last count charged that the claimants did equip, furnish and fit out, and did attempt and endeavour to equip, furnish and fit out, and did procure to be equipped, furnished and fitted out, and did knowingly assist and be concerned in the equipping, furnishing and fitting out of the said vessel, with intent to employ her in the service of certain foreign states and of divers persons styling themselves Confederate States of America, and of persons exercising powers of government over part of a certain foreign people, as a transport or storeship, with intent to cruise against the Republic, and also against citizens of the Republic of the United States of America. To these counts the claimants pleaded that the said ship or vessel, furniture, tackle and apparel, did not, nor did any or either of them, or any part thereof, become nor is the same or any or either of them, or any part thereof, forfeited for the several supposed causes in the said information mentioned, or for any or either of them in manner or form as by the said information is charged. Sir W. Atherton, A.-G., Sir R. Palmer, S.-G., Sir R. Phillimore, Q.A., Locke, Q.C., and Thomas Jones, for the Crown. Sir Hugh Cairns, Karslake, Q.C., Mellish, QC., and Kemplay, for the claimants. Although the information contained the names of twelve persons, five only appeared, namely, Sillim, Preston (as Fawcett, Preston & Co.), Jacob Willink, David Wilson Thomas and William Thompson. Sir W. Atherton, A. G., in stating the case for the Crown, said that the vessel was in the possession of Millers, the builders, when seized, and Fawcett, Preston & Co., the engineers, had claimed her as owners. The case for the Crown was, that she was built in many respects differently from vessels employed in the merchant service; and it would be for the jury to say whether, having regard to the vessel itself and its materials, the vessel had been fitted for the merchant service or for warlike purposes. The building of the vessel had proceeded so far as to leave no reasonable doubt that her destination was warlike. The charge against the defendants was, that the Alexandra was so built as to be fitted to be equipped, or attempted to be equipped, for hostile use against the government and citizens of a State with whom her Majesty was at peace. It would be proved that such was the character of the vessel, and that the builders and engineers were in such communication with the co-defendants Bullock, Tessier, and Frazer & Co., agents of the Confederate States, as to leave no doubt that the vessel was meant for them. Adverting to the case of the Alabama, a well-known Confederate cruiser, he said it was a matter of common history, now, that that vessel had been procured at Liverpool, that she left that port without any armament, and subsequently obtained one on the sea. And it would be proved (a) that the Oreto, or Florida, another same yard for the belligerent Power, —would have raised, if objected to, (a) This head of evidence,-the building of other gun-boats at the 1863. ATTORNEY- v. SILLIM and Others. 1863. ATTORNEY- v. SILLIM and Others. Confederate cruiser, had been built by the defendants, and that the vessel now in question was built in a similar manner. In June, 1861, war broke out between the Government of the United States and several of the Southern States of the Union, called the Confederate States, who had been recognized by the British Government as belligerents. a rather nice question as to the admissibility of evidence of previous offences of the same kind committed by defendants, or some of the defendants, on an indictment. Here it will be observed several of the defendants (Bullock, &c.) were proved to have been connected with the Alabama, and Millers and Prestons were not, while Millers were shown to have been connected with the Oreto and Prestons were not. No doubt, as against Bullock, &c., the evidence as to the Alabama would be admissible, as showing a design to aid the Confederates, and an agency for them, in pursuance of which the Alexandra might be supposed to be ordered. And supposing evidence of a common design in the present instance,-evidence admissible against one might be admissible against others. As to the admissibility against a defendant of evidence of former attempts or offences of the same kind, ordinarily it must relate to the same person or property; as attempts to shoot the same person, or burn the same person's property; Voke, R. & R. 53; R. v. Dossett, 2 C. & K. 306; R. v. Geering, 18 L. J., M. C. 215, cited in R. v. Garner, post, (Midland Circuit). But the instances of coining or forging are more analogous to R. v. the present; and, in the common case of uttering forged coin, it can be shown that there were such utterings on former occasions, as evidence of guilty knowledge, otherwise if a different party, on a subsequent occasion. (Per LORD CAMPBELL, C. J., R. v. Oddy, 20 L. J., M. C. 198.) The rule which has prevailed in the case of indictments for uttering forged notesof allowing evidence to be given of the uttering of forged notes to different persons-has gone to great lengths. Ibid. Vide Prescott v. Flinn, 9 Bing. 23. As to the admissibility of such evidence against the other defendants, that would seem to depend, as in the case of conspiracy, on the evidence of a common design; R. v. Blake, 6 Q. B. Rep. 126, cited in notes to Dickson v. Combermere, ante, p. 571. And, in the present case, that would appear to turn upon the build and make of the vessel, and the knowledge that must have conveyed as to her real destination, and the design for warlike equipment. This, as it was the main question in the case (vide ante, p. 655), so seems to be that on which all questions of evidence which arose in the course of the case must really turn. Et vide Clapham v. Langton, ante, p. 626. |