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.
Adjourned until to-morrow at 10 o'clock.

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."

1

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 commit hostilities;" and clearly, according to that construction of the statute, 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 may equip her to any extent you like so long as the equipments are innocent 18 A C-VOL. V

equipments. What that section provides against is adding to her warlike equipments; and I contend it is said, therefore, that you are not prohibited from furnishing a vessel of war which seeks a refuge in the ports of this country with anything in the nature of equipment that she may require so long as it is of an innocent description. You may not increase her armament, it is true; but while it must be admitted on the part of the Crown that you may furnish equipment of an innocent character to a foreign belligerent war vessel, it is contended at the same time that you must not build a ship and then put a lightning-conductor on board, because you are superadding an innocent equipment to the hull of a vessel already constructed. My lords, I submit that that is rather an unreasonable construction, and more unreasonable when your lordships find the circumstances under which this act was passed, and what, as I venture to think, the act was intended to prohibit.

Mr. BARON PIGOTT. The act uses the words "equipment for war" in that section. Mr. BARON BRAMWELL. That is your argument, because you say that that shows that any other equipment is lawful.

Mr. KARSLAKE. Clearly, my lord.

Mr. BARON BRAMWELL. The consequence, therefore, is, that a belligerent's own vessel of war may be equipped in every sense, provided the equipment is what you have designated as innocent.

Mr. BARON PIGOTT. You may go further than that-you may include her arms, only you must not augment the arms.

Mr. KARSLAKE. That, probably, is so also; it would make it all the stronger. I am glad to hear the learned judge say that that is the construction of the statute. The words to which Mr. Baron Bramwell called attention yesterday, strengthen the construction which we put upon the act, and show that the meaning of the act is that a vessel shall not be so equipped as that she shall be in a condition to commit hostilities upon leaving this country. When your lordships look at the history of the act, that is by no means an unreasonable conclusion. There is a prohibition upon the ship-builder to some extent, (and it is for your lordships to say to what extent;) he may not "equip" a ship, but it is clear that according to law, although he may not equip a ship, whatever that may mean, (I say equip for warlike purposes,) although he may not equip a ship in the ports of this country, he may in this country sell every part of a vessel, so long as the parts are not put together in this country, and he may sell all the arms and ammunition required for a ship of war; and I think that that consideration, as well as others which have been pointed to by my learned friend Sir Hugh Cairns, will have a very material influence on your lordships' minds in putting a construction upon the words of the act.

My lords, I say, therefore, that looking at the history of the act and the occasion which led to the passing of it, and looking at the right of the merchant in this country to sell contraband so long as it is not in a complete state, (and when I say "contraband" I allude to ships,) looking at the fact that the sale of the parts of the vessel of war is not a misdemeanor, I ask your lordships to put a reasonable construction upon the act and to say that the equipment aimed at and prohibited must either be of such a character as that the ship shall be useful at once for aggressive purposes, or that, at all events, the equipment to be commenced must be a warlike equipment, and that my learned friends cannot successfully contend that an innocent equipment superadded to a vessel renders that vessel liable to forfeiture.

My lords, of course I shall hear again in the course of my learned friend the attorney general's speech, that which was urged during the trial, and which was urged by my learned friend at the time when he moved for the rule, namely, that, unless the construction which he asks your lordship to put upon the act be adopted, this act will be a dead letter, and may at once be blotted out of the statute book. I say by no means. I say that there are offenses created by this act, according to the construction which we put upon it, which may well be guarded against; and I say further that by our construction of the act great evils will be provided against, although not perhaps the whole evil which, according to my learned friend, the statute was intended to prevent. I have no doubt we shall hear again of what are called evasions of the act. My lords, I dispose of those so-called evasions, by saying that if a new statute creates a new offense, a person, by doing a particular act, either commits the offense or does not commit the offense, and he has a right to do, after the statute has passed, that which he had a right to do before, unless he can be clearly proved to infringe the act by what he so does.

LORD CHIEF BARON. Forgive me for suggesting that the expression "a new statute creating a new offense," does not, I think, give the fullest effect to what I apprehend is the argument which you are about to propound. The expression rather means, a new statute which makes that a crime which was perfectly lawful before.

Mr. KARSLAKE. I am much obliged to your lordship.

LORD CHIEF BARON. A. new statute may deal with something which was unlawful. There are many things which are unlawful, which are not punishable, which are not criminal; but this is a case where that which was perfectly lawful before, is made a crime. There is no doubt, according to all the authorities, and there is not the slightest

doubt now, that a neutral may furnish to a belligerent every possible description of warlike weapon or munition of war-every possible ammunition of every kind—and I think that no one can say that until the passing of this statute there was any known distinction by the law of nations between a ship and a gun. You may now supply a gun for a ship; you may now at Birmingham, or in any other part of the kingdom where there is a foundery sufficient for the purpose, order a gun, and you may say, "This is for one of the belligerents, to be taken to one of their ports, and put on board a certain ship to be expressly used for the purpose of the war which is now carried on against a power with whom you are at peace." You may do that, and I am not aware that you cannot do that with reference to a ship; but there is a doubt about it. No doubt you máy now order a gun for a ship; whether you may order a ship for a gun seems to be a question. I think that the fullest effect is given to the argument which you are about. to urge, as I apprehend and anticipate, by drawing attention not to the fact that the statute is creating a new offense, but something more than that-it is making that which was perfectly lawful before in every sense a crime and a misdemeanor. Mr. KARSLAKE. Yes, my lord..

Mr. BARON BRAMWELL. That is the argument on the other side.

Mr. KARSLAKE. I was going to add this, in anticipation of an argument which will be used for the Crown, probably a great number of instances which will be suggested, by which what my learned friend chooses to consider the spirit of this act or the langnage of this act can be evaded. I dare say there are a great many cases in which it might be evaded according to my learned friend's construction of it. It may be said that if a vessel of war belonging to the United States is four miles from the coast of England, it will be an evasion of the statute to carry out guns or other munitions to that vessel; but I do not find that the law prohibits that. There are many cases where the act of supplying contraband to one belligerent is just as likely to irritate and vex the other belligerents, as that which is struck at and prohibited by this statute.

My lords, the statute therefore was passed, as I say, with a view to prevent our subjects from fitting out and equipping warlike expeditions from our shores. According to the history and occasion of the act, and as I say, according to the preamble of the act, that was what was intended to be provided for.

Mr. BARON BRAMWELL. To prevent our ports becoming stations of hostility.

Mr. KARSLAKE. Yes, my lord. My lords, it may be that the preamble of the act carries it further than was intended; but it is for your lordships to say, in giving a reasonable construction to a penal statute, whether any equipping, however innocent, of an innocent vessel, that is to say, of a vessel not fitted for war, is prohibited by this act, or whether something more must not be done before the vessel is to be forfeited, and all the persons assisting made liable to be punished for misdemeanor.

My lords, as regards evasion of the act, I will ask your lordships, instead of taking my language upon the subject of evasion, to adopt that which will be found in a note to Wheaton's last edition on international law, the words of a very distinguished person in this country upon the subject of the evasion of this very statute. My lords, they are contained in a letter* of Lord Russell to Mr. Adams, with reference to the celebrated vessel No. 290, or the Alabama. Great remonstrances had been made upon that vessel not being seized.

Mr. BARON CHANNELL. What is the page?

Mr. KARSLAKE. Page 735, my lord.

Mr. BARON BRAMWELL. Is that the American edition?

Mr. KARSLAKE. Yes, my lord; the edition of 1863, just published. This is published n London by Sampson Low & Co., and is also published in Boston. My lords, the part which I will adopt as a part of my argument upon the subject of the evasion of municipal law is this; it is contained in a note written on the 16th of October, 1862, from Lord Russell to Mr. Adams, acknowledging the receipt of further evidence as to the gunboat Alabama: "With reference to your observations with regard to the infringement of the enlistment act, I have to remark, that it is true that the foreign enlistment act, or any other act of the same purpose, can be evaded by very subtle contrivances; but her Majesty cannot, on that account, go beyond the letter of the existing law." Now that is the view which I shall ask your lordships to take of the argument as to evasion. I shall ask your lordships to see what the crime is which is provided against by the statute, and then to see whether the facts of this case clearly make out that any such crime has been committed.

Mr. BARON BRAMWELL. Will you let me see that book?-(The same was handed to his lordship.)

Mr. KARSLAKE. Now, I stated to your lordships that I did not think it necessary in the view which I entertained, and the view entertained by my learned friend, to go into any lengthened disquisition on the evidence in order to show that the verdict was perfectly warranted by the evidence, supposing that the ruling of the learned lord chief baron was correct. My lords, if it had been necessary to do that at all, it was done by my learned friend Sir Hugh Cairns, and the evidence in the case is fully before

* See vol. I, p. 545, and vol. III, p. 56.