Page images
PDF
EPUB

6th Day.

Lord Chief Baron, for I believe to his Lordship is due the ARGUMENT. suggestion of so providing that future cases may be canvassed before the highest tribunal; so that not only this case, but any case of like importance, may be brought under the consideration of the House of Lords. The public are indebted to your Lordships for having made the rule which has had that effect.

Lord Chief Baron.—I have no doubt that the discussion which has taken place upon this motion for a new trial has been far more advantageous to the thorough understanding of the thing, and that we have been able to get to the very last point of whatever can be argued far more advantageously by a general discussion, than by argument upon the narrow ground which alone could have been presented in a bill of exeptions.

Mr. Attorney General. No doubt your Lordship is quite right. Mr. Jones. And for that I think the Attorney General has already intimated that he is very thankful to your Lordships.

Lord Chief Baron.-He need not thank me for it, because I hold that a grievous injustice would be done to me by any one who supposed that my resistance to the bill of exceptions was in the least degree disadvantageous to the Crown. I intended to present the alternative, that it would be better to move for a new trial, and take all the points, as you would get your appeal just as well.

Mr. Jones.-Your Lordship is so well able to vindicate yourself, that I need not say a word in support of what your Lordship has said; but I may point out that your Lordship has originated the course of proceeding by which either party, dissatisfied with the judgment of this Court, will be enabled to carry his case to the House of Lords, which could not have been done before the rule made by your Lordship a few days ago.

Now, my Lords, having regard to the full extent to which this discussion has gone, I believe I have occupied your time more than I ought to have done. But perhaps I may be allowed just to offer a word or two on those American cases, and it shall be only a word or two.

Mr. Baron Bramwell.-What, about Quincy's case?

Mr. Jones.-The case of the United States v. Quincy I regard as an authority for the position which I understand to be conceded by the other side, viz., that the ship need not be armed.

[ocr errors]

Now, as to the case of the Independencia," allow me here to observe that I really think there is no necessity whatever for making any extended observations upon that case. That case asserts this, that where that is not present which is here present, there is no offence, for the ground of the argument in the case of the "Independencia" is, that where there is no intention to employ the vessel except such as may be hindered by a contingency, there is, in fact, no direct or immediate intention to offend against the Act, the Act is not violated by an equipment, or even by an arming. This case amounts to nothing. It is argued, indeed, that because the Act has not provided for such a case as the case before the

ARGUMENT.

6th Day.

Court in the "Independencia," therefore the Act ought to have no operation in those cases for which it has provided. So far, therefore, as the cases of the "Santissima Trinidad" and the United States v. Quincy are concerned, I do not think that I need trouble your Lordships with any further observations. I submit to your Lordships that there exists in this case that combination of the elements of equipment and intention which constitutes the offence. I trust we have demonstrated that there is that combination, and if there be that combination, it is a combination which is prohibited, and the statute has been violated, so as to entitle the Crown to the ship.

Lord Chief Baron.-The Court will take time to consider its judgment.

[ocr errors]

IN THE COURT OF EXCHEQUER AT WESTMINSTER,
HILARY TERM, 27TH VICTORIA.

THE ATTORNEY GENERAL v. SILLEM AND OTHERS,
Claiming the Vessel " ALEXANDRA.”

Monday, 11th January 1864.

PRESENT:

THE RIGHT HON. THE LORD CHIEF BARON POLLOCK.
MR. BARON BRAMWELL.
MR. BARON CHANNELL.
MR. BARON PIGOTT.

JUDGMENT ON MOTION TO MAKE RULE NISI
FOR NEW TRIAL ABSOLUTE.

LORD CHIEF BARON.

THIS was an information against the ship " Alexandra," charg- JUDGMENT. ing that the defendants, with others, had been guilty of a violation of the Foreign Enlistment Act in respect of that vessel. The ship" Alexandra " had been built and partly rigged at Liverpool, and had been seized on the 6th of April by an officer of the customs, on the ground of a breach of the 7th section of the statute. The defendants claimed the ship, and pleaded that the ship was not forfeited. The information charged them with every possible violation of the Act as to equipping, furnishing, and fitting out, but omitted to charge anything in respect of arming. The cause was tried before me on Monday the 22nd of June, and three following days. The evidence for the Crown clearly established the warlike character of the vessel-it was not at ali adapted for commerce, but was capable of being adapted for warlike purposes-and though it might have been used as a yacht, according to the evidence of Captain Inglefield, it was in all probability intended to be used by the so-called Confederate States as a vessel of war, when adapted for that purpose by them (suitable equipments and fittings-up being furnished). And if the making, in pursuance of an agreement or order for that purpose, with intention to sell and deliver to one of the belligerents the hull of a vessel suitable for war, but unarmed, and not equipped, furnished, or fitted out with anything which enabled her to cruise or to commit hostilities, or to do any warlike act whatever, be a violation of the Foreign Enlistment Act, my direction to the jury was wrong in point of law; the verdict

JUDGMENT. ought to have been for the Crown, and there ought to be a new trial; but if the commerce of this country in ships, whether ultimately for peace or war, is to continue, and provided a ship leaves the ports of this country in no condition to cruise or to commit hostilities, though she may be of a warlike character, there has been no violation of the statute, then the verdict was right. And in substance this is the question between the Crown and the defendants, stripped of all technicalities.

The condition in which the vessel (unfinished when she was seized) was intended to leave this country was, perhaps, not perfectly clear, but there was no direct evidence that she was to be made, at Liverpool or in any other British port, fit to cruise or to commit hostilities. I told the jury, in substance, that the sale of a ship was, in my judgment, perfectly lawful, even of a ship so constructed as to be convertible into a ship of war; that the sale of arms and ammunition and every kind of warlike implement was not forbidden by any law, either international or municipal, and that I thought that a ship capable of being used for war might be made and sold, as well as sold (if made), provided she did not leave a port of this country either armed or equipped, or furnished or fitted out within the meaning of the statute; that is to say, with intent or in order to cruise or commit hostilities against a state or power with whom Her Majesty was not at war.

There was no direct evidence that the vessel was intended to be armed at any British port with intent on the part of any of the defendants, or indeed of any one, to cruise or commit hostilities, indeed there was no charge in the information on the subject of arming at all, and there was no direct evidence of any intention to equip, furnish, or fit out the ship with intent to cruise or commit hostilities according to what I think is the true meaning of the charge in the information. I, however, left the question to the jury in the terms of the Act of Parliament, and upon this direction with the evidence before them the jury found a verdict for the defendants.

In Michaelmas term the Attorney General applied for a new trial, and obtained a rule to show cause, on the ground stated in the rule, why the verdict should not be set aside and a new trial had. Cause was shown during the term, and the argument lasted six days. We have now to deliver the judgment of the different members of the Court.

It is material, I think, first to call attention to the various charges contained in the information, which consists of 98 counts. The 97th and 98th counts relate to an intent to employ the ship as a transport or store ship as well as to commit hostilities. These counts were given up at the trial by the then Attorney General. The remaining 96 counts consist of the first eight counts repeated 12 times, merely varying the offence charged. The first eight counts charge that the defendants did equip, the next that they did furnish, the next that they did fit out, and so Then all the varieties of attempting, procuring, aiding, &c., are introduced, making the total eight times 12, or 96 counts.

on.

66

The Attorney General at the trial said, "The first eight counts are those only to which any attention need be paid," not meaning to abandon the rest, but intimating that the first eight represented all the rest. I propose to state in substance what those eight counts are.

The first count charges that the defendants, without the leave, &c. did equip the vessel with intent and in order that such ship or vessel should be employed in the service of the Confederate States with intent to cruise and commit hostilities against a certain foreign state with which Her Majesty was not then at war, to wit, the republic of the United States. The second count resembles the first, but charges that hostilities were to be committed against the citizens of the foreign state. The third count charges that the defendants did equip, with intent to cruise and commit hostilities against a foreign state with which Her Majesty was not then at war. The fourth count is similar to the third, varying the description of the parties against whom hostilities were to be committed. The fifth, sixth, seventh, and eighth counts are similar to the first and second, varying only the description in the first and second counts of the belligerent parties who were affected by the conduct of the defendants. The charge, therefore, resolves itself into a charge of equipping, &c. with a certain intent, the intent being stated in two different ways, or a charge of attempting, endeavouring, &c. to equip, or procuring to be equipped, with the same two intents in different counts. If what was intended to be done would not, when done, amount to an equipping, &c. within the Act, then there would be no attempting or endeavouring, &c. contrary to the Act.

The question then arises what is the true construction of the Foreign Enlistment Act, particularly of the seventh section of that statute, upon which the information in this case is framed ; and what is the meaning of the words " equip, furnish, or fit out in that section; and also what is meant by the expression, "with "intent to cruise or commit hostilities."

It is a highly penal statute, creating a new crime or misdemeanor, making those who commit it liable to fine and imprisonment, if found guilty, and the ship, the subject of the crime, liable to forfeiture. The attempt or endeavour to commit the offence, or the procuring it to be committed, or the aiding, assisting, or being concerned in the commission of it, is each made criminal, and liable to the same punishment and forfeiture.

In order to have a comprehensive view of the whole subject, it may be useful to become acquainted with the history of the statute and of the act of the American Congress, which is said to have given rise to it. It may be useful also to learn what have been the opinions (differing, it may be observed, widely from each other), of learned jurists and of eminent statesmen, not always agreeing, on the subjects of international law, belligerent rights, and neutral duties. But none of these can furnish veen the semblance of authority for construing an English Act of Parliament, which creates for the first time an indictable offence render

JUDGMENT.

« EelmineJätka »