allege it to be." I can suppose a case where the person may be guilty of an intention, and yet where no forfeiture of the vessel would be incurred. I will take this casesupposing every workman in Mr. Miller's yard at the time the vessel was being built was working upon the vessel with the firm belief that it was going to the Confederate States, and it turned out in evidence, upon their being indicted under any one of the alternatives of this section, that there was no such intent on the part of the person who had the control of the vessel. I say in that case they were not assisting with intent at all. Therefore it is most important to ascertain who is the person on whom my learned friend lays his hand, and says, This was the person who was the owner or controller of the vessel, and the person who I allege had the intent which renders the vessel liable to forfeiture, because the sole question is aye or no; is the vessel forfeited? And that was the question to be left to the jury. It was not a question as to whether certain persons were making observations from time to time which might tend to implicate them in the event of there being an indictment against them; but the question was really whether the Crown had satisfied the jury that there was a person who had the control at the time of the vessel, who had himself formed the fixed intention in what he did on the vessel of using the vessel for hostile purposes in the service of the Confederate States against the northern States of America. Mr. BARON BRAMWELL. I am sure you would not labor this point, Mr. Karslake, unless it was of some importance; but do I understand you to say, supposing in this case the order had been given to Fawcett and Company to build the vessel and equip her, in order that she might cruise; they might say, and truly enough, we do not care what is done with her. We shall deliver her to the person who gave the order, and who has a right to the ship. But suppose they were making her in pursuance of an order given so that she might cruise, do I understand you to say that the ship would not be forfeited? Mr. KARSLAKE. I am not sure; that is not this case. Mr. BARON BRAMWELL. I thought there was some tolerably clear evidence that whatever was true of those who gave the orders to the ship-builders was true of them. Mr. KARSLAKE. No; when you come to look at the evidence your lordship will find that they are statements made by the builders and not by those who come forward to claim the vessel, and who for the purposes of this case were admitted to be the owners, laying claim to the vessel. The statements were made by Miller, the builder, and Fawcett and Company had nothing to do with those statements. Mr. BARON BRAMWELL. This is the first case of a similar description that I ever met with. I don't mean under the foreign enlistment act, but the first case of the kind. As I understand it, the Crown, by information, claimed the vessel as being forfeited. A B comes in and says the vessel is mine, and is not forfeited for the reason alleged; but surely A B can have no right to say, You must give no evidence except that which is said to be evidence against me. Surely the Crown has a right to say, if we cannot make our right against any one, we are content, the ship shall be yours; but if we can show that any one has forfeited it, we have a right to do so by all ordinary means in our power. Mr. KARSLAKE. Yes; it may not be material who comes in for the purpose of claiming the ship. Still it is necessary that the Crown should lay their hands on some particular person in whom they assume the guilty intention existed which has rendered the ship forfeitable. Mr. BARON BRAMWELL. As I understand, it is matter of right for any one to come in to make the claim. The ATTORNEY GENERAL. Yes; and no verification is required beyond the affidavit of the attorney that he believes his client to be the owner at the time of the seizure. Mr. KARSLAKE. It does not affect the question the least in the world. The simple issue is aye or no, is the vessel forfeited? That is the question which is raised. Then I say that for the purpose of showing that the vessel is forfeited, it is the bounden duty of those who are making out the affirmative to show that at the time when they say the forfeiture was incurred there were some particular persons who were acting in some way or other against the provisions of the statute, who had the power of directing and controlling the movements of the vessel, and who had that guilty intention which it was necessary should exist. Supposing Mr. Bullock was saying this, or Mr. Hamilton was saying that, about this vessel, and the person in whose yard the vessel was, was saying something else about it; all that goes for nothing until you have fixed on some person who was the owner or controller of the vessel, and found that he had the guilty intention. Mr. BARON PIGOTT. If the man who had given the order for it had said it, what would you say then? Mr. KARSLAKE. Was he in this country or not? I don't know where he is supposed to be. Mr.. BARON PIGOTT. Supposing it was proved that A B gave the order and said: “I mean it for the Confederate States." Mr. KAKSLAKE. It might be evidence; but I must ask in what way the question would rise. The admission of any one person might be evidence as an admission in the event of there being an indictment against him. But I want to draw your lordships' attention to the form in which this question is tried. The form is whether there is forfeiture or not. If there be an indictment against any person for knowingly aiding and assisting, and he chooses to say, "I did knowingly aid and assist the person who had the control of the vessel, and I did intend to send it out to commit hostilities to assist a foreign government," it may be very good evidence against him personally, by his own confession upon an indictment for misdemeanor. But what I desire to insist on is this, that the first step the Crown must take, according to my construction of the section, is to fix on some one who, at the time they allege that the forfeiture was incurred, was the person who had the absolute control over the vessel, and then to show that in his mind that guilty intention existed which renders the vessel liable to forfeiture. That I say is involved in the question of intent; because when you find here the words, "with intent to cruise or commit hostilities," it seems to me obvious that looking at the person who is to intend, as defined by the authority which has been cited, and as admitted by my friend, the first step in the case of the Crown is to ascertain the person or persons, who, having the control of the vessel, had formed this fixed intent, and then to show that that intent was formed under such circumstances as that the vessel was liable to forfeiture. Therefore, my lords, the first question to be decided in this case, before we go into the question at all as to whether there was any fitting or equipping of the vessel, will be as to the true construction to be put upon this section as regards the intent in a proceeding of such a description as this, where the forfeiture of the vessel is claimed. And I say if the vessel had been fully equipped and armed that it would be important to look first at the question of the intent, because, however fully equipped or armed the ship might be, unless the intent was shown to exist, the Crown could make no case. In order to ascertain whether the intent existed, the first inquiry to be made was, who was the person who was capable of intending, within the meaning of the authorities on the subject, at the time of the forfeiture? Mr. BARON BRAMWELL. Let us understand. Ship ordered to be built. Orderer intending, when he has got it in his possession, to commence hostilities with it against the act of Parliament; builders knowing it to be for that purpose. Mr. KARSLAKE. The case your lordship puts may happen. Mr. BARON BRAMWELL. There is the intent, and the intent in either of those minds would do. That would be sufficient would it not? Mr. KARSLAKE. Yes, shown as a matter of fact, that there is intent in the person who has control. Mr. BARON PIGOTT. How can you get at the intent except by the acts? Mr. KARSLAKE. That is what I want to contend against in this case. It is not because Miller, or somebody in his yard, says "this is my intent," that that statement is to fix guilt on the person who alone has the power of intending. Some one must be fixed upon as being the person who has the power of intending. Mr. BARON BRAMWELL. I should say that if the defendant could properly have got into the witness-box, and said that he stipulated that they should not have the vessel unless they gave a guarantee against its being used for the Confederate States, that then he would have negatived the assertion if there be any intent within the act of Parliament. Mr. KARSLAKE. Yes, my lord, that would be so. But, my lords, I contend that it is not necessary that any one should negative the intent until the Crown has pointed out the person in whom the intent existed; and in reading these words "with intent," it is necessary, for the purpose of showing that the offense is complete, so far as the intention is concerned, and it is the duty of those who claim the forfeiture of the vessel to point out clearly and distinctly the person by whose "intent," construed as it is in the case of the United States vs Quincy, by whose guilty intent it is that the ship became forfeited. Because I say that, unless that intent on the part of such a person is proved to exist in the first instance, no attempt can be proved, and no person can knowingly aid or assist; all the attempts and the aiding and assisting spoken of in the section must be attempts to carry out a design formed by a person who has the power of forming the design; that is, in other words, a person who has such control over the vessel that he himself can send it on any expedition he likes, it being found that the expedition on which he intends to send it is one of those expeditions prohibited by the seventh section of the statute. If reliance is placed on that part of the section which says that a ship may be forfeited, and a misdemeanor incurred by an attempt, it becomes necessary to show that there is some person, either the person who has control, or some other person acting in furtherance of the design of that person, who is, with the intention of carrying out that design, doing something toward placing the ship in an armed condition. The next words, "knowingly aid or assist," require no explanation, because it is obvious from the introduction of the word "knowingly." that it is intended that any person who is working about the vessel, unless acting in furtherance of the design of the owner or controller of the vessel, is not guilty of a misdemeanor or doing an act which may lead to the forfeiture of the vessel. Then, my lords, having made that comment on the intent provided for by the act, we then come to the consideration of what the meaning of these words "equip, furnish, fit out, or arm" is. What is the meaning to be put upon those words? LORD CHIEF BARON. You are going to another branch of your argument, are you not? Mr. KARSLAKE. Yes, my lord. LORD CHIEF BARON. Then we will adjourn. THIRD DAY.-THURSDAY, November 19, 1863. Mr. KARSLAKE. My lords, I commented yesterday upon the language of the seventh section of the foreign enlistment act, so far as the intent was concerned, and I had taken that part of the section before proceeding to discuss the question as to the meaning of the words "equipping, furnishing, fitting out, or arming." Now, before discussing the meaning of those words, it will be convenient to call attention very briefly to what I believe is the construction, as far as I can ascertain it, which was put upon that language by the late attorney general in the conduct of the cause, and also by my learned friend the attorney general in moving for the rule. It will be convenient to read the definition* which the learned attorney general, in moving for the rule, gave of the word "equipping," in the seventh section of the act. I take the word "equipping" as the ruling word of this sentence. Now, the learned attorney general said, "The statute provides against any person doing any one of these things, it being in the disjunctive; it distinguishes them, and seems to be carefully worded in order to avoid the chicanery which would result from requiring some particular species of furnishing, some particular species of fitting out, some particular species of equipment, in order to make the act penal in a case in which the attempt is proved." Mr. BARON BRAMWELL. Where is this, Mr. Karslake? Mr. KARSLAKE. In the attorney general's motion, my lord. Mr. BARON BRAMWELL. But where? Mr. ATTORNEY GENERAL. At the top of page 56.* I believe that this print has never been corrected; but your lordships will easily perceive where errors occur. Mr. KARSLAKE. What I am reading from seems to be correct. "I say that the whole gist there is the intent and the purpose, and that any species whatever of equipment, however innocent, per se, any species whatever of furnishing, any species whatever of fitting out, whether with or without arming, is struck at by the act, by its plain words, according to their natural meaning, (and that, I apprehend is their object and policy,) provided always that the intent and purpose is established. Now what are the words-Equip, furnish, fit out, or arm.' If it had stopped there of course it would not have had the effect of prevention. The statute of course aims at prevention, not at punishment when the thing is done. The statute desires to stop the thing in limine, to cause the thing not to be done; and therefore, instead of stopping at these words it goes on, or attempt or endeavor' to do any one of these things; so that however little progress may have been made, and in whatever imperfect condition the ship may be as to these things, when she is seized, if any step has been taken which is an attempt or endeavor to do any one of these things, provided it be a prohibited attempt, it is struck at; and not only the attempt or endeavor, but any one who shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming." My lords, I believe that in reading these words I have represented correctly the view which the learned attorney general presented to the court, and which I suppose he will again present to the court in arguing this rule. I do not know whether my learned friend will admit (because great caution was observed both by my learned friend and by the late attorney general upon that subject) that the sale of the hull of a vessel with no equipment at all, but simply the hull of a vessel, intended to be used, when complete, in the service of one of two belligerents, would be an infringement of the act, supposing the intent existed. I shall argue that it is not; and that for the purpose of making out an offense under this act, by equipping, or fitting out, it is necessary that there shall be, first of all, that in existence which may be called a ship or vessel, and then that that ship or vessel shall be equipped. My learned friend says that the equipment superadded to the ship or vessel may be an innocent equipment, and that an innocent equipment will render the ship liable to forfeiture; whereas, on the other hand, we say that the equipment which is to be superadded to the vessel does not mean an innocent equipment at all, but means something of a warlike character. Now, my lords, to take an instance, one that seems to have been relied upon at the trial, and it may be a convenient instance by which to test the construction put upon the case by my learned friend. Mr. Barnes or Mr. Morgan-I cannot be quite certain which of the witnesses it was-after being asked about the stanchions for the hammock nettings, was asked a question as to whether the vessel had a lightning-con*See page 174. ductor-that will answer my purpose as well as any other equipment or any other matter which it is suggested was to be used as an equipment for the vessel. My learned friend's contention is this, that up to a certain point you may go on building the vessel whatever the intent may be, (at least I assume it to be so,) but that the moment you do that which, as distinguished from building a vessel, is found by the jury to be an equipment of the vessel, although it may be reasonably found in vessels of every class and description, yet if it be an equipment, and the intention still continues to exist, the vessel is forfeited. The QUEEN'S ADVOCATE. What you have referred to was in Mr. Morgan's evidence. Mr. KARSLAKE. The argument is that the lightning-conductor added to the hull of the vessel enables the Crown at once to seize the vessel as forfeited, because there is something in the nature of an innocent equipment on board that vessel. Now, my lords, will the words of the act bear that construction? I call your lordships' attention to this more particularly now, because it will be material with reference to the summing up of the learned chief baron, and the charge which is now made of omission in the summing up. If your lordships look through the notes of the trial, it will be found that throughout the trial the question raised on the part of the Crown, as against that raised on the part of the claimants, was whether an equipment, even an innocent equipment, was or was not sufficient to forfeit the vessel, it being alleged on the part of the Crown that it was so; whereas it was alleged on the part of the claimants that as long as they fitted the vessel without putting on board equipments of a warlike character, no forfeiture was incurred. Now, the clause, as your lordships see, although it may have been suggested by the clause in the American act, certainly is not copied from that clause. The words relating to transports are not found in the American clause at all; the collocation of the words is different, and the words themselves of the American clause are in many respects very different indeed from those which are found in this clause. Mr. BARON CHANNELL. In the American act it is "and" instead of "or ?” Mr. KARSLAKE. Yes, my lord; and afterward the word "or" is found in the clause of that act; and it is suggested that you may frame an indictment against an aider and abettor for fitting out without saying "arming," and that that indictment would be good, although if you indicted the principal under the American act you must say arming and fitting," or else it would be bad, a somewhat strange conclusion. LORD CHIEF BARON. If you consider it I think you will see that a man who takes a part and assists in doing a part which is necessary to the whole may possibly have nothing to do with the other part. Take a familiar instance: Suppose it were an offense to travel from London to Windsor, or to make any attempt, or to assist anybody in doing so; a man who assisted a person to travel from London to Hounslow might be accused of that which is part of the journey, he having nothing upon earth to do with the other part. That makes the matter intelligible in the view which I take of it. If it is an offense to equip and arm, and a certain person, who may for this purpose be called the principal, intends to equip and arm, anybody who assists him in the equipment, without any reference to the arming, may be guilty of the offense. Mr. KARSLAKE. That may be so, my lord. LORD CHIEF BARON. It does not occur to my mind that there is any difficulty in it at all. The principal person must intend to do both. If he intends only to go to Hounslow when the offense is not perfect unless he goes to Windsor, you cannot indict him for going to Hounslow. Mr. KARSLAKE. No, my lord; and I again suggest that that would be so, though the person who is alleged to "attempt" thought that the person whom he assisted meant to go to Windsor; he could not be found guilty as an accomplice, because it could not be shown that the alleged principal had committed an offense. Mr. BARON CHANNELL. If you take the third section of the American act as an instance you will find that the words are in the conjunctive when the statute deals with the principal; and when it comes to a person who may be treated to a certain extent as an accessory, the word "and" is left out, and the word "or" is substituted. Mr. KARSLAKE. Yes, my lord; but I should have thought that the same person who might be indicted under the words of the first part for "fitting out and arming," might be indicted for "attempting to fit out," without saying "arming" at all. Mr. BARON CHANNELL. As I understand it, the American decisions do not go that length. There is a case in which they decided that you might charge an attempt to fit out without charging an attempt to arm; that was the case of Quincy, where he was concerned, not as the actor, but as a kind of accessory to the principal. The words of the third section of the American act are: "If any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed." I suppose that that is treating with the principal person; there it is in the conjunctive; then come the words "or shall knowingly be concerned in the furnishing, fitting out, or arming." Mr. KARSLAKE. Yes, my lord. Now, my lords, the distinctions which will be found between this section and the seventh section of the act of 59 of George III are very obvious and manifest. I am not dwelling upon the conjunctive "fit out and arm," but the words are so much clearer than those to be found in the section of the English act that there can be little difficulty in ascertaining what the real meaning of the first part of this clause was, for the purpose, at all events, of framing an information or an indictment. The difficulty of construing the seventh section of the act of 59 of George the III has occurred to my learned friends, as will be seen by the way in which this long information is framed. The third section of the American act is: "If any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm," and so on, "any ship or vessel with intent that such ship or vessel shall be employed in the service of any foreign prince, or state, or of any colony, district, or people, to cruise,” and so on; the intent is that the ship shall cruise in the service of a foreign state. Many of the counts of this information follow that which is certainly the grammatical construction of the seventh section of the English statute, and charge the offense as being that certain "persons equipped, fitted out, and armed a ship or vessel with intent to cruise and com mit hostilities;" and clearly, according to that construction of the statnte, the intent is charged against the person who fits out the vessel; and I apprehend, looking at the history of the act, and the occasion upon which it was passed, that was really what the legislature intended. But there is another construction which is put upon the act by my learned friends in argument and adopted in some counts of the information, and that is this: That if any person shall fit out a vessel with intent or in order that the vessel shall be employed with intent to cruise and commit hostilities; putting in both the intents in those counts of the information. My lords, I do not propose to consider now which of those constructions is the correct construction. It may be that the first is the correct one; it may be that my learned friends are justified in construing the statute as being a statute in which the intent which is mentioned is an intent that the vessel shall be employed to commit hostilities, and not that the persons fitting out are themselves intending to commit hostilities in the vessel so fitted out. The first construction may be that which was intended to convey the true meaning of the legislature. But, my lords, having called your lordships' attention to what has been said by my learned friend the attorney general as being his interpretation, namely, that, assuming the existence of a ship, any innocent equipment is within this section, I venture, on the other hand, to put the construction which has already been presented by my learned friend Sir Hugh Cairns. My learned friend the attorney general puts the very widest construction that can by possibility be put upon the section; he denies that it is necessary that the equipment should be a warlike equipment at all. My learned friend Sir Hugh Cairns, on the other hand, contended that when you look at the word "equip" in connection with the rest of this clause, it is quite obvious that the meaning of "equip" must be either that there shall be an equipping in a warlike manner partially, or that the vessel shall be so equipped for war that she shall be ready to commit hostilities as soon as she leaves a port of this kingdom. Now, Mr. Baron Bramwell, I think, kindly suggested, in the course of Sir Hugh Cairns's address, that probably the wider construction, namely, that the equipment must be such as fits the ship for carrying on hostilities, which it is unnecessary to contend for now, may be the proper construction. I apprehend that it will not be denied that this section only applies to a case where war is actually going on between two foreign belligerents; that it will not be said that it was intended by this section to prohibit the sailing of armed vessels to a power which was likely to go to war, and contemplated going to war, with another state; that there must be existing hostilities, and that it is only to such a case that the statute applies. Now, if your lordships look at what the intention is, either in the persons who fit out the vessel, or in those who deliver the vessel to be employed, the object clearly is that the vessel shall cruise and commit hostilities. Does that mean that she shall be equipped in such a manner as to cruise and commit hostilities, or that an innocent equipment is to cause the vessel to be forfeited if the intention exists? Your lordships have to judge between the two constructions; and while it is asserted by my learned friend that your lordships should construe the act by saying that the vessel must exist in the first instance, and then, supposing the existence of the vessel, any innocent equipment added to that vessel with the intent is sufficient to forfeit it, on the other hand, it is suggested that, looking at the whole of this section, and the object with which the act was passed, it is necessary either that there should be such an equipment as will enable the vessel to take the seas ready for aggression or defense, or that, at all events, the equipments struck at by this section must be warlike equipments, and that if they are found to be innocent equipments, then the section does not apply. Now, I do not know that I can urge anything further than has been said by my learned friend upon this subject. Your lordships' attention has already been called to the next section of the statute, which says in so many words, as I apprehend, that you may equip a vessel of war belonging to a belligerent which seeks safety in these ports; that you inay equip her to any extent you like so long as the equipments are innocent 18 A C-VOL. V |