subject of Her Majesty, who is responsible for his acts wherever he may be, shall, if on one side of that line which constitutes the limits of Her Majesty's dominions he delivers a commission, be guilty of misdemeanor, but if he delivers the same commission on the other side of the line, he is perfectly free, and not culpable in any way whatever. Yet so it is. It may be very sharp, but that is the offence. There is no offence, unless you prove to the letter that it is done within the jurisdiction, just as it is asserted in this information that the whole of the equipment took place within the dominions of Her Majesty. Again, one must always remember that the power of the belligerent in this case comes up to just as sharp a rule and as sharp a case as the case I have supposed. For instance, as I supposed that the ship unarmed and unequipped may pass beyond the neutral line, and then be equipped, wherever the equipment may come from, so I suppose on the other hand, and assert, that the belligerent if he is on the watch, the adverse belligerent,-may bring his ship of war up to the neutral line, and the very moment,-the very instant, the ship which is to be equipped passes that line, that very moment while it is yet unarmed and unequipped, and while it is totally incapable of any sort or kind of resistance,-the belligerent has it in his power having waited there, expecting its arrival, to arrest it when it comes, and take it while defenceless. Mr. Baron Bramwell.-If I am not mistaken, you can tell me this. I should imagine that the belligerent ship of war might make a third in the party, I have supposed, and go out with them. The 24 hours' start would not apply there. Sir Hugh Cairns.- No, because it was not a ship of war; the 24 hours' start would not apply in that case, because the ship going out unequipped is not a commissioned ship of war. Mr. Baron Bramwell.—That is according to the hypothesis? Sir Hugh Cairns.-Yes, my Lord, ex hypothesi. Therefore I am not at all prepared to suggest that your Lordships' question is not entirely to be answered in the affirmative, and that it might not become a party of three; the rival belligerent going out in the company of its two companions, and falling upon them and taking possession of both of them-taking possession of the one because she had contraband of war on board, and taking possession of the other, because it was a ship going to be equipped with those articles of contraband, and therefore being contraband. My Lords, as I have gone perhaps out of any argument which has yet been suggested on the other side, as to these extreme cases, I might take notice of an utterance which I do not think dropped from the Attorney General, but which is very commonly used, and which perhaps may find utterance in this court before the argument is over, about the intention and object in all these cases being that our ports should not be used as arsenals for one of the belligerents. Now that is a very inaccurate expression also. ARGUMENT. 1st Day. ARGUMENT. 1st Day. Lord Chief Baron.-Sir Hugh, if you are going into a new head of argument perhaps we had better stop here, as my brother Bramwell is about to retire, and it is very nearly 4 o'clock; there is a considerable want of light, and if it is not inconvenient to the bar, we shall sit to morrow at 10 o'clock precisely instead of half-past 10. Sir Hugh Cairns.-If your Lordships please. Lord Chief Baron.-I hope that is convenient to the bar. ARGUMENT-continued. SECOND DAY.-Wednesday, 18th November 1863. Sir Hugh Cairns.-My Lords, the question which I was taking ARGUMENT. leave to consider yesterday when your Lordships adjourned was, 2nd Day. whether supposing you could show in point of evidence that there being in this country a ship wholly unarmed and wholly unequipped it could be proved that there was a certain equipment and a certain armament prepared and made ready for that ship, and as it were ear-marked, set apart in some store or repository, and supposing at the same time you had conclusive and distinct evidence that there was no intention to put that equipment or armament on board in this country, but on the contrary, that the intention throughout was to put it on board out of the Queen's dominions,-whether that would be an equipment or a furnishing or a fitting out or arming of the ship within the Act of Parliament. My Lords, that was a question put by way of suggestion by Mr. Baron Brainwell, to which I was addressing myself. Now, before I part from that, in addition to what I remarked yesterday by way of argument, I would ask your Lordships to test that question in this way. Suppose that an indictment under this Act were framed under such circumstances, an indictment with reference to the arming of the ship, of course you would be obliged to allege that the person indicted did, within Her Majesty's dominions, arm a ship or vessel of such a name with the intent which is mentioned in the Act of Parliament; how would that be supported? Would it be supported by proof of this kind; not that there was any armament put on board the vessel, but that there was a particular store or repository in Her Majesty's dominions within which there had been prepared and set apart a certain armament destined for the ship; but the evidence showing at the same time that the intention was to put that armament on board, not within Her Majesty's dominions, but without? My Lords, I apprehend that the answer to that indictment would be, "That is not an arming of the ship; you " have failed in the allegation which you have made." If that is so with regard to armament, it would be so with regard to equipment, and it would be so with regard to furnishing or fitting out. In truth, let us take common language as our guide upon the subject. I allege that a man furnished a house. Is 8341. K 2nd Day. ARGUMENT. that allegation proved, in point of fact, if I show that the house has not and never had a particle of furniture in it, but that a person went and ordered furniture to be made, and had it prepared, and had it set apart in some repository with the view to furnish the house at a future time and under different circumstances? And your Lordships will observe how far the argument which I am combating would have to go, because if the argument were a sound one it would be equally an offence within the Act of Parliament to show that there had been within Her Majesty's dominions an armament or an equipment prepared for a ship which was never within Her Majesty's dominions at all; it would be equally true to aver that A. B. armed, or equipped, or furnished, or fitted out a ship. Lord Chief Baron.-Or attempted to do so. Sir Hugh Cairns.-Or attempted to do so; that is to say, if you could show that the ship being without the dominions, and never having been within them, or intended to be brought within them, A.B. had prepared or attempted to prepare a certain armament or equipment with the view to be carried out of the Queen's dominions and put on board that ship. But, my Lords, I would also observe that although it is extremely convenient and useful in endeavouring to arrive at the true construction of an Act of Parliament of this kind, to deal with a case such as I have suggested, and to consider how the law would be, your Lordships must also bear in mind that there is no suggestion and no evidence in this case (and this I undertake to show when I come to deal with the evidence as to the "Alexandra") that there was any armament or equipment, or any furniture or fitting out, other than what appeared upon the ship herself. Of course I except the matter with regard to the guns, which I told your Lordships yesterday was ultimately given up at the trial, although originally alleged by the Attorney General; but over and above that, there was no suggestion that there was any kind of armament or equipment away from the vessel, prepared for her, different from that found on board, if any was found on board. My Lords, I also should observe, in speaking of the extreme cases which were put by way of testing the construction of the Act, that I was about when the Court rose to call your Lordships' attention to a phrase very often used, and I am not sure that it has not been used in the course of this trial. Some persons who take strong views as to cases of this kind say that it is a thing not to be tolerated, that the ports of this country should be turned into arsenals or used as arsenals for one of the belligerent powers. Now, if that is properly understood, I have not the least objection to the expression. If it means that you shall not use one of our ports for the purpose of putting on board a ship a warlike equipment, I agree to the term ; but if it is intended to designate anything more than that, I entirely object to it because there is not the slightest doubt that, according to the ; 2nd Day. popular meaning of those words, the law, whether right or ARGUMENT. wrong, is such that you may practically turn our ports into arsenals for one of the belligerent powers. There is nothing whatever that I am aware of in the law of this country to prevent one of the belligerent powers, for instance, employing or using a manufactory of arms in one of our ports with the view of shipping those arms afterwards. There is not anything that I know to prevent a belligerent power having a manufactory of arms in any seaport of this kingdom, such as the Government of this country have at Woolwich, and making guns and making small fire-arms, and making shot and shells on a large and extensive scale, and afterwards putting those guns and ammunition on board a freighted ship and sending them to a foreign port, subject, of course, to the liability of being captured as contraband goods; but so far as making an arsenal, or making a manufactory of arms in our ports, or near our ports, is concerned, the law of the country is so, that it may be done, and in practice something very like it is done every day. My Lords, in the case of the American Act of Congress there were the decisions to which I took leave to call your Lordships' attention, which were available for our instruction and information as regards the law in the United States. Unfortunately, having gone through the observations which I had to make upon the construction of our English Act, I am not able to supply your Lordships with any judicial authority upon the subject of the construction of that Act in this country. The fact is, as has been stated, I believe, on both sides of this case, and I believe it is accurate so far as we know, that there never has been an instance in this country where any judicial construction has been put upon this Act of Parliament. Lord Chief Baron. My brother Martin intimated to us that he recollected perfectly well a case tried before Mr. Justice Coltman. Sir Hugh Cairns.-That was the case of a Sicilian shipGranatelli's case. Mr. Attorney General.-We have a note of the summing up in that case. I cannot say much about its authenticity, for it does not come from a source which the Courts are in the habit of looking at; but if it be accurate, it seems to have been ruled by the learned Judge upon that occasion Mr. Locke. I have it from the Times newspaper, my Lord. Mr. Baron Channell.-Lord Chelmsford was the Attorney General of the day, I think; he was in the case. Mr. Locke. There is a full report of that case in the Times newspaper of the 6th of July 1849. I do not know whether your Lordships will pay attention to a report of that kind, but it seems very accurately done, and there is the summing up of Mr. Justice Coltman. I should also tell your Lordships that Mr. Justice Maule was on the bench at the Central Criminal |