Now, my lords, if it is necessary to wait until the vessel is completed, you may do everything which it is confessed when done is an evasion of the act. Mr. Mellish admits you may do this. He says not only may it be completed, but yon may sail out (I do not know if those were his words, but that is what he means) with that ship side by side with another ship, and get your armament put on board where it suits you. Well, but if that is so, not only is the act a dead letter, but it must have been intended by the legislature to be a dead letter. And therefore it is that I say that the argument is addressed to the question of the construction of the act; it is making the act absolutely idle.

I now come to the question which the Lord Chief Baron has put, namely, the question of locality, a question which I apprehend is very easily disposed of. Now, as regards the question of locality, I admit that for the purpose of this act you must make out that the thing prohibited is done within the United Kingdom. I answer that in a word. The thing prohibited is any act of equipment. Is it not any act of equipment? Let them answer. The question of whether it is or it is not any act of equipment brings back the question to the preceding question.

Mr. BARON CHANNELL. I did not understand that there was any doubt upon this point. If you are right in your former argument, that all that was done within this country would amount to an equipment, no question arises about where it is done. Mr. JONES. That is as regards the locality. I thought the Lord Chief Baron suggested to me at first the question of locality.

LORD CHIEF BARON. My object in presenting that was to prevent the intent from being supposed to have any peculiar weight more than any other ingredients. The learned attorney general put it yesterday to me, not for the purpose that was then under discussion, that to deny yourself is nothing, but to deny yourself with the inten tion of delay is. It is not the mere intent to delay; you may intend to delay as much as you like, but it must be coupled with the act which the act of Parliament pronounces, if done with that intent, to be impolitic. Some of the argument, I shall not specify which it was, seemed to think that the intent was everything and the act nothing.

Mr. JONES. No, I do not say that.

LORD CHIEF BARON. The intent without the act is nothing, as the act without the intent is nothing, and the act and the intent are both of them nothing, unless the thing be done in a port in this country.

Mr. JONES. Clearly so, my lord.

Mr. ATTORNEY GENERAL. Done or intended to be done.

Mr. JONES. That is the basis on which I have been addressing your lordships. Now, my lords, what I have addressed to your lordships bears exclusively on the point of misdirection. Now, my lords, as I understand the view which at the trial was taken by my lord, it was that the equipment must be hostile, that is to say, it must be of a warlike character, and that the ship must be completed or intended to be com pleted here. I humbly submit that that view is one which requires reconsideration. I am quite sure that there were very few people in the world, who, at the time when the trial took place, would pronounce themselves to be fully competent to give an opinion upon that question. But I need not dwell upon any consideration of what occurred at the trial. The question here is, What is the opinion of the Lord Chief Baron and the rest of your lordships here now upon this most difficult, most abstruse. and most important question? In fact, I would rather prefer, if it could be so done, that your lordships should not consider the question as a mere question of misdirection, but consider the question as applied to the facts alone, for that is the only fair and reasonable way of doing it. It is idle to say that a learned judge is wrong in the sense of his being perversely wrong, or clearly wrong, when a mass of facts is thrown, as I may say, before the court with which the court has to deal, and which your loniships see a week of argumentation is necessary to illustrate; it is utterly impossible. If any learned judge could deal with it, I am quite sure it would be the Lord Chief Baron; and I am persuaded that very likely the learned attorney general, when be addressed himself to this question, drew, or intended to draw, upon the great experi ence, upon the great knowledge, and upon the breadth of view which my lord is known to possess, and which it is his custom to apply to cases of very great importance, of which we have many instances in this court. My lords, the question is not a mere question of misdirection. The question is a question of the application of the law to the facts, a great question, and ́a very important one, and a question which must be decided by reference to very general considerations, and not merely to the question of what occurred in this particular case. The question ought to be looked at as if my lord had reserved the facts for the consideration of the court, it being utterly and absolutely impossible to deal with questions of this kind at nisi prius. The question is the same, I say, as if my lord had reserved it for the consideration of the court, and I am happy to know that, whatever may be the end of this case, it has led to a great amendment of the practice of the court, which I believe is mainly due to the Lon Chief Baron, for I believe to his lordship is due the 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 exceptions.

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 rs. 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.

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 offense, 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 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 es. 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 offense. 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.

IN THE COURT OF EXCHEQUER AT WESTMINSTER-HILARY TERM, 27TH VICTORIA. Present: The Right Hon. the Lord Chief Baron Pollock, Mr. Baron Bramwell, Mr. Baron Channell, Mr. Baron Pigott.

THE ATTORNEY GENERAL v. SILLEM AND OTHERS, claiming the vessel Alexandra.

Judgment on motion to make rule nisi for new trial absolute.

MONDAY, January 11, 1864.

LORD CHIEF BARON. This was an information against the ship Alexandra, charging 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 seventh 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 22d of June, and three following days. The evidence for the Crown clearly established the warlike character of the vessel-it was not at all 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 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 canse, on the ground stated in the rule, why the verdict should not be set aside and a new trial bad. 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 ninety-eight counts. The ninety-seventh and ninetyeighth 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 ninety-six counts consist of the first eight counts repeated twelve times, merely varying the offense 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 on. Then all the varieties of attempting, procuring, aiding, &c., are introduced, making the total eight times twelve or ninety-six counts. 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 ser vice 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 eight 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, endeavoring, &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 endeavoring, &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 of the crime, liable to forfeiture. The attempt or endeavor to commit the offense, 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 even the semblance of authority for construing an English act of Parliament, which creates for the first time an indictable offense, rendering the party found guilty of it liable to fine and imprisonment, and his property liable to forfeiture; and it should be borne in mind that the property is not forfeited unless the crime has been committed. I, perhaps, may here remark that neither on the trial nor during the argument has any one suggested by name who has committed the crime, what he did in committing the crime, or what are the acts and who are the persons by whose conduct a ship of the value of the Alexandra has become forfeited and seized by the Crown. If the statute in terms reasonably plain and clear makes what the defendants have done a punishable offense within the statute, we want not the assistance which may be derived from what eminent statesmen have said, or learned jurists have written on international law or belligerent rights; we want not the decisions of American courts to see whether the case before us is within the statute; but no opinions of jurists, no decisions of foreign courts will enable us, or ought to induce us, to declare if the act be not within the words of the statute that the scope and object, the spirit and intention of the statute include the case before us, though it be not plainly and clearly expressed by the legislature. We have had in this country no court of criminal equity since the Star Chamber was abolished, as Lord Campbell called it, in a case which was tried before him, viz., "The Emperor of Austria vs. Day," which is to be found in the 30th Law Journal, (Chancery, 706.)

Mr. Justice Blackstone well lays down the rule in the first volume of his Commentaries, page 92—“The freedom of our constitution will not permit that in criminal cases a power should be lodged in any judge to construe the law otherwise than according to the letter." Our institutions were never more safe in my opinion than at the present moment, but we cannot afford at any time to lose any of the grounds of our security, and no calamity would be greater than to introduce a lax or elastic interpretation of a criminal statute to serve a special but a temporary purpose. And here I may notice, in order to dispose of it, the argument of the attorney general, about construing a statute, even a penal statute, so as to suppress the mischief and advance the remedy. He cited Plowden and the resolutions in Heydon's case, 3d Reports, page 18. But all the penal statutes alluded to there, and in all the places where that doctrine is to be met with, are statutes which create some disability or forfeiture, none of them are statutes creating a crime, and I think it is altogether a mistake to apply the resolutions in Heydon's case to a criminal statute which creates a new offense.

The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is: What is the true construction of a statute? If I were asked whether there be any difference left between a criminal statute and any other statute not creating a crime, I should say that in a criminal statute you must be quite sure that the offense charged is within the letter of the law. No doubt there are some other cases to which the statute is to be applied, unless you are quite sure of the contrary, namely, that the case is not within the law.

As to this particular statute having for its object prevention, and not punishment, which was pressed upon our attention more than once, that is not a matter peculiar to this statute. I apprehend that this statute has that object in common with all other criminal statutes that were ever passed, which are all intended not to punish guilt, but to prevent crime. And as to the recital that the existing law was not sufficient, to which our attention was particularly called, I presume that that recital really belongs also to every statute of every sort, whether mentioned in it or not; for if the law be sufficient, the statute is a piece of superfluous legislation.

So also I think that we have nothing to do with the political consequences of our decision, or the dissatisfaction which it may create in any quarter anywhere; and I

cannot help expressing my regret, not unmixed with some surprise, that the learned attorney general has more than once adverted to the consequences that may arise from our holding that what the defendants have done is not contrary to our municipal law. That it is not contrary to the law of nations he has distinctly stated, and indeed made it the subject of an argument, (in another place, as I think they call it,) "that other countries have no right to complain of it as a violation of the law of nations." On the first day of his argument he pointed out how the supply of ships would work practically between a powerful country and a weak one, and he imagined (I am quoting his very words) "this country at war with France, and the dock-yards in Sweden supplying, fitting out, and equipping vessels of war for France;" and he suggested that we might say, as he says we always have done in the course of our bistory, "We will not endure it; and if this goes on we will rather go to war with you than let war be carried on practically against us from your shores, under pretense of neutrality. That we should do that with a weak power like Sweden," the attorney general asks, "can any human being entertain a doubt?" He then goes on to suggest that a great power, like the United States, would adopt the same views, would look broadly at the practical mischief, would care nothing for Vattel, Grotius, or Puffendorf, and would say, "It is in substance as noxious as war, and we will not endure it."

I must say I doubt whether such views and such doctrines ought to be presented to us at all. I am sure that they will not influence our judgment, and I am inclined to suspect the soundness of any proposition of law which requires such a style of argument to support it. Indeed, I may add that international law would be of very little use if it were not to govern the conduct of strong nations as well as of weak ones. I would rather state the passage in the attorney general's own words, because I should be very sorry to misunderstand or to misquote anything that fell from him. He says: "Can any one doubt that that is the way in which such a state of things would work practically as between a powerful country and a weak one?" Then he imagines the case of Sweden, and then he says: "That we should do that with a weak power, like Sweden, can any human being entertain a doubt?" I venture to entertain a doubt and to express a hope that this country would not sully its high character by adopting toward a weak state a line of conduct which it would not think prudent or politic toward a stronger one. I certainly had thought that the object of international law was, among other things, to state and define what acts, what conduct of any state would justify war being made upon it by another state. But the attorney general seems to think that if one nation be strong and another weak, the strong one will make war on the weak, though it has no violation of international law to allege against it and to complain of, but merely some inconvenience arising from the neutral state continuing its commercial relations with another power, with whom it has been accustomed for a long time to maintain them.

Again, on the second day the attorney general said: "The peace and welfare of the kingdom, perhaps of the world, is declared by the legislature to depend" upon this matter. When his attention was called to this from the bench, he said that perhaps he was going too far in saying "the peace of the world,” and no doubt he was, for there is not any declaration by the legislature about "the peace of the world” at all, and the expression "peace and welfare of this kingdom," which no doubt is in the preamble, I believe relates, as far as “peace" is concerned, only to that tranquillity which is in the care of the magistracy, and has nothing whatever to do with the relations of peace or war with respect to other countries.

At the end of his address (no doubt conspicuous for its ability) he stated the grounds on which our decision ought to rest, in a manner perfectly unexceptionable; and I wish that the whole of his argument had corresponded with the dignified and eloquent manner in which it was concluded.

So also I think we have nothing to do with the question as to which construction of the clause is most for the interest of this country as a great maritime power. It is degrading the discussion to make it in any degree turn upon a question of advantage or benefit to be gained or lost; and on such a subject we might turn out to be quite mistaken. In the present enlightened state of the civilized world, it may turn out that that doctrine and those principles are to be preferred which would make us prosperous in peace rather than those which would make us successful in war.

In construing the statute it is our duty to ascertain the true legal meaning of the words used by the legislature, and to collect the intention from the language of the statute itself, either the preamble or the enactments, and not to make out the intention from some other sources of information, and then construe the words of the statute so as to meet the assumed intention; and this appears to me to be the mistake of the counsel on the part of the Crown. They say, here is a powerful State complaining that what you are doing is as bad as war; and saying we will not endure it; and then they say, the welfare and peace of this country require that the act should be so construed as to silence that complaint. But we cannot and ought not, even if the matter before us seemed to be within the mischief which it is supposed the statute was meant to remedy, to deal with it as a crime unless it be plainly and without doubt included in