Imágenes de páginas
PDF
EPUB

ARGUMENT.

5th Day.

me, of a warlike character, in the sense for which my learned friends have contended. She was built so that she could not carry any cargo; she was built so that she could carry a large crew; and she was furnished, to some extent, for the purpose of carrying a large crew, which could not by any possibility be a mercantile crew. Although she was a small boat and could carry there was a cooking apparatus, among other things, for 150 or 200 men. Then, further, her decks were made of pitched pine, which, according to the evidence of one of the witnesses, Black, is not used for the decks of merchant vessels.

no cargo,

Mr. Baron Pigott.-Was the cooking apparatus in the vessel? Mr. Solicitor General.-It was in the vessel, as I understand. I shall be corrected if I am wrong.

[ocr errors]
[ocr errors]

Mr. Baron Pigott.-Whose is the evidence of that?

Mr. Solicitor General.-I can refer your Lordship to it.
Mr. Baron Bramwell.-It is at page 103.

Mr. Solicitor General.--I have it my Lord. "Let me ask you, did you observe a cooking apparatus?—Yes, there was a cooking apparatus in the forecastle, sufficient for 150 or 200 people. Was that the kind of cooking apparatus which is "usual on board merchant vessels ?-Only on board of passenger vessels; merchant vessels which are passenger vessels have as large and larger cooking apparatus, or ships which go on long voyages have as large. But a common merchantman "would not have so large an apparatus ?—No, not a small vessel "like that." If she was a passenger vessel, considering the intention, about which there is no doubt, she must have been intended, for a transport, because she was built for the Confederate States, according to their own admissions.

[ocr errors]

Then the decks are of pitched pine. Now, I observe that in page 62, Black is asked this question :-"What are the upper decks made of?-Pitched pine. Have you ever seen pitched pine used for the decks of any vessel except vessels of war?"No." Then according to the evidence of that witness there is a description of deck which is used only in vessels of war.

[ocr errors]

Then, my Lords, it is shown that there is a scuttle or hatchway so small as to be totally unfit for merchandise or for the stowing or the unstowing of merchandise, but just large enough for a man to go up and down. Then there is accommodation for a large number of seamen. Then there are bulwarks unusually thick and unusually low. My learned friend on crossexamination asked one of the witnesses, Mr. Green, whether these bulwarks might not be constructed for strength; he said, No, that they would only weaken the vessel. Their weight would, if she were intended for any other purposes but war, be a disadvantage, but those bulwarks were applicable to the resistance of shot, and it was not suggested that they were applicable to any other possible purpose. Then they were made low. Why? In order that a pivot gun might work over them. At all events, that was for the jury. There was not distinct evidence of their

being made low only for that purpose, but that at all events was
a question for the jury, whether they were not made low for
that purpose.
But at all events for their thickness no reason
could possibly be suggested except the resisting shot.

Then the rudder was larger and stronger than would be used in any merchant vessel. Then the forecastle was not fitted as a merchant vessel's forecastle ;-that is stated in the evidence of Mr. Green. Your Lordships will find that distinctly; it is at page 103,"Did you observe the forecastle ?--I observed that it was not fitted as a merchant's forecastle, but as I have seen yachts and small vessels of war."

[ocr errors]

Then there are stanchions for hammocks and hammock nettings, as I understand it (I shall be corrected if I am wrong), to be affixed to the bulwarks inside. Why? For the purpose of stopping shot. I do not think that any human being can doubt that that was the object.

[ocr errors]

Mr. Baron Channell.-One object.

Mr. Solicitor General.-One object.

Mr. Baron Channell.-There are several others.

Mr. Solicitor General.-I believe the effect of the evidence to be this. I will endeavour to cite it fairly. Such apparatus is never used, or scarcely ever used, in merchant vessels; it is sometimes used in yachts. I will come to that part of the evidence. At page 106, in the evidence of Mr. Green, who has been speaking about this matter, the Queen's Advocate says, "I "did not understand what you said about the hammock racks as to their resisting shot." Mr. Green says, "The original fixing of hammocks on the hammock racks was to resist shot "from musketry, which they will do." That is to say, when they were originally introduced; that is what he means; and it is suggested that sometimes they were placed on board yachts for the purpose of bringing the hammocks on deck, and airing them; but still nobody who applied his mind to the matter at all could doubt that hammocks were in this vessel for the purpose of making the bulwarks still stronger than before, and protecting the crew from shot. The crew, no doubt, would kneel down and fire their rifles over the bulwarks, and the pivot gun would work over the bulwarks. I do not think that any human being could doubt that intention.

Now it appears to me that every one of these equipments which I have spoken of was an equipment which you can scarcely call ancipitis usus, but was an equipment peculiarly adapted for war, showing on the face of it that it was intended for war; and it is difficult to suggest what other equipments the vessel would have had to be complete, except a plate for the guns and the guns; that was all. Of course it may be assumed that the vessel, before she went out, would have had coals, and would have been in a state to take the sea. Nobody can doubt that at all.

Lord Chief Baron.-Why should you go away from the evidence of Captain Inglefield? I observe what appears to be a

ARGUMENT.

5th Day.

5th Day.

ARGUMENT. remarkable omission of a few words in the printed copy of the short-hand writer's note. It is at page 58. The words there are, "Of what timber is she built?-Principally of teak; her upper works are of other material; the kind of wood I cannot "exactly say; but I should call her a strongly built vessel; certainly not intended for mercantile purposes, but she might "be used and is easily convertible into a man-of-war." My note is this, "She is principally teak; strongly built; certainly not "intended for merchandise; might be used as a yacht."

Mr. Attorney General.-Your Lordship's remark is quite just; the words "as a yacht" do not appear here.

The Queen's Advocate.-If your Lordship looks at the top of page 59 you will see that it is almost implied that that must have been said. Your Lordship is there reported to have used the words," He said that she might be used as a yacht."

Mr. Solicitor General.-So that we may take it that Captain Inglefield entirely negatives the notion of her being adapted in any way for a mercantile purpose; but he says that she might be used as a yacht. That would narrow her use very much, but still, I have been referring to that part of her structure, and her furnishing and fittings, which appeared to me to be scarcely ancipitis usus, but that their appearance would induce almost anybody to suppose that they were more probably, at all events, intended for war than for peace. But then there were other equipments which, according to the view which we take, it is not immaterial to mention. I may state that there was a screw propeller by way of motive power, which would be equivalent to the sails of a sailing ship, and there were the masts and the ropes, and all the tackle, and so on.

My Lords, that is the substance of the evidence. I do not wish to fatigue your Lordships by going more into detail. Now I submit that if that evidence was unanswered, coupled with very clear evidence of intention, about which I should think there would no dispute, that was a case in which the jury ought to have found a verdict for the Crown, assuming always that they believed the evidence of the witnesses; and I think you Lordships would say, that in the absence of witnesses called on the other side, there was no reason whatever for the jury not believing these witnesses. This part of the case depends chiefly on the evidence of Mr. Green, a highly respectable man, Captain Inglefield, and Mr. Black, as to the equipment and so on. the intent, that was proved by Mr. Da Costa, who deposed to what was said by Mr. Miller, and beyond all doubt Mr. Miller could have been called.

As to

Lord Chief Baron.-There is some doubt whether that evidence was properly received.

Mr. Solicitor General.-It is upon the notes, and we must deal with it as a part of the evidence.

Lord Chief Baron.-I know that. I said that I thought I should imperil the case of the Crown by refusing to admit it.

Mr. Solicitor General-My Lord, I do not desire now to

embark in that argument,-it is not necessary for my purpose. If it were, I should maintain that your Lordship was perfectly right in receiving that evidence. However, I will not discuss that question.

My Lords, I therefore submit that first, according to our view, assuming that equipments ancipitis usus may be explained by the intent, there was manifestly an equipment, and manifestly an equipment with intent that this vessel should be used in the service of the Confederate States; and that the verdict in that view, at all events, is directly contrary to the evidence. Even assuming that not to be so, I apprehend that there was evidence of equipments of a warlike character in the sense which has been defined, and that the jury ought to have found for the Crown in the absence of any evidence to contradict or explain it. Upon the whole, therefore, I submit to your Lordships that this case has not been satisfactorily tried. It is no doubt the first occasion upon which a statute of very great importance and of very great difficulty in its construction has been presented to a jury, and it is not unlikely that there should have been some misapprehension and some miscarriage. For these reasons I submit to your Lordships, that it concerns not only the Crown but the whole country, whose interests are identical with those of the Crown, that a new trial should be granted, whereby the law may be settled and vindicated.

Lord Chief Baron (to the Queen's Advocate).—We rise at three o'clock on Saturday, but we will sit till four o'clock if there is any probability that the case will be finished by that time.

The Queen's Advocate.-I am afraid, my Lord, that that would not be possible.

[Their Lordships consulted together.]

Lord Chief Baron.-We will go on with this case on Monday at 11 o'clock.

ARGUMENT.

5th Day.

ARGUMENT-continued.

ARGUMENT.

6th Day.

SIXTH DAY.-Monday, 23rd November 1863.

The Queen's Advocate.-My Lords, I am afraid that I must ask for a great measure of your indulgence, for unfortunately my voice has departed from me since I was here on Saturday, but I hope that your Lordships will have the kindness to bear with the sort of croak with which I am compelled to address you, in order that I may get through my argument.

My Lords, the discussion of this question has now occupied the time of your Lordships and the public for many days, but I do not think that any person competent to form a judgment upon the gravity of the question submitted to your Lordships' decision, and upon the possibly momentous result of that decision, will be of opinion that the length of time has been disproportioned to the importance of the subject. My Lords, it is quite true that these important results depend upon the construction of an English statute; and, my Lords, what has been often urged during the course of this discussion is equally true, namely, that this statute is now, perhaps with one exception, attempted to be put in force for the first time in this country. At all events, it is for the first time carefully and deliberately submitted to the decision of a court of justice. And, my Lords, perhaps upon that observation there naturally occurs the reflection, first, that the very circumstance of its now being so submitted for the first time would make it incumbent upon the Judge to be especially clear and distinct in the directions which he gave to the jury, and it also (if I may be permitted to say so) would furnish an excuse which every candid mind would admit for any possible misdirection or misconception of that statute, and of which the most accomplished Judge in this kingdom would not disdain to avail himself.

My Lords, although your Lordships are perfectly familiar with the rules which govern the construction of statutes, I will take the liberty of referring your Lordships to the expressions of my Lord Chief Justice Tindal in the case of the Sussex Peerage, which is in 11th Clark and Finnelly, page 143. I think, my Lords, that nowhere is there found laid down with greater precision and accuracy the rule which ought to govern the construction of an English statute.

« AnteriorContinuar »