a date prior to that of the first authority which was cited by Sir Hugh Cairns, namely, the resolutions or rules which were come to in 1793, and to show that before that time the question had been considered here, and that that considered opinion had been given by her Majesty's judges upon the subject. My lords, for the first time, in the year 1794, the American government passed an act of Congress for the purpose of making certain provisions as regards the equipment of ships, and I am not going to trouble your lordships with the history of those resolutions that were come to and the rules that were laid down, because your lordships have the rules before you, and can see what, according to the view entertained by eminent men at that time, was considered to be the extent of the prohibition, and what were the rights of neutrals in supplying ships and equipments to belligerents. Now, my lord, it was not thought worth while in England to interfere in any way by statute until the year when this act was passed, at least so far as ships were concerned, and although this is now called the foreign enlistment act, certainly so far as ships, which are mentioned in the seventh section, are concerned, it is a most inappropriate title, because there is no question that it has retained the name of the foreign enlistment act from the circumstance that by it a slight alteration of existing law as regards subjects entering the service of foreign powers was then made, and that these sections as to ships found their way into that act of Parliament under circumstances which have been referred to by my learned friend, Sir Hugh Cairns. Now, my lords, what were those circumstances? Because it is not immaterial to see what gave rise to the necessity for municipal legislation on this subject. Undoubtedly, when one looks at the debate which has been referred to it will be found that by far the most important consideration at that time was the amendment of the law as to foreign enlistment. But, then, it was thought expedient also to put a stop to that practice which was existing in this country at the time when this act was passed, namely, of expeditions being organized by the subjects of this country, who sailed from its shores in the ships fitted out here for the purpose of taking part with one or other of the belligerents. It was under those circumstances that, when the foreign enlistment act of 1819 was passed, these new sections, providing against the equipment of vessels, were included in it; and, my lords, I think that any body who reads the preamble of the act, without going further, without looking at the section which has been so much commented upon, would say that, beyond all doubt, so far as the preamble discloses the object of the act, the main purpose was to prevent his Majesty's subjects from engaging in war on their own account; because we find that the first part of the preamble relates to the enlisting by any persons of her Maj esty's subjects; and the second part of the preamble clearly refers, or appears to refer, to the arming of vessels by her Majesty's subjects for the purpose themselves of carrying on warlike operations. It says: "Whereas the enlistment" (that is, as I understand, by any one) "or engagement of his Majesty's subjects to serve in war, in foreign service, without his Majesty's license, and the fitting out and equipping and arming of vessels by his Majesty's subjects without his Majesty's license, for warlike operations in or against the dominions or territories of any foreign prince, state, potentate, or per sons exercising, or assuming to exercise, the powers of government in or over any for eign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign prince, state, potentate, or persons as aforesaid, subjects, may be prejudicial to, and tend to endanger the peace and welfare of this kingdom."

or

their

Now, my lords, as far as the former foreign enlistment acts were concerned, namely, the act of the 29th of George the Second, and the 5th George the Third, and so far as this act in dealing with enlistment is concerned, the main purpose is to prohibit the subjects of the Crown from taking service under foreign powers. The acts are directed to the purposes of keeping those subjects within their own allegiance, and of preventing them giving up that allegiance by entering into foreign armies. But when we come to the sections relating to the equipment of vessels, I think you will find that they have been framed with reference to those rules of the law of nations which have been laid down, and which have been recognized in this country, and which were perfectly well known as being the law of nations existing at the time the act passed. Let me call your lordships' attention to some considerations as to what was permitted in the year 119 at the time of this act of Parliament passing, and without enumerating all the things that might be done by a ship-builder in this country, it is sufficient to say that my friends who argue on the other side will not deny that it was quite open to a shipbuilder in this country in the year 1819, and it is now open to him to sell a vessel fully equipped and armed, under a contract and as a commercial transaction, to a belligerent, that ship sailing perfectly complete and armed from these shores, and I say, that that was a case which might have occurred, and which, probably, did occur before the time that this act passed, and which advisedly has not been interfered with by the act now under your lordships' consideration. Moreover there were many other cases which my learned friend, Sir Hugh Cairns, has adverted to, in which ship-builders in this country or any other country, according to the law as declared by Washington, had a perfect right to enter into commercial transactions as regards ships, although beyond all doubt

by so entering into those commercial transactions they might strengthen the hands of the belligerents, and might cause a considerable degree of irritation in the minds of one or the other of the powers engaged in war. But that was not intended to be prohibited by this statute, and that which did lead to the passing of the statute was, beyond all doubt, this: that ships of war were, in the year 1819, being fitted out and armed and manned by British subjects, and were sailing from these shores for the purpose of taking part in hostile expeditions against other states. It is under these circumstances that the act was passed. It would certainly appear that the object of the statute as declared by the preamble was to prevent his Majesty's subjects from themselves taking part in warlike operations, in vessels fitted out by them and sailing from our ports. Of course I do not contend that the preamble of the statute may not be explained, controlled, or enlarged by the language which one finds in the subsequent sections, and I shall have occasion to consider what the real meaning of the language of those subsequent sections is, but undoubtedly in approaching the consideration of the question, it is absolutely necessary to find out and discover, to some extent at all events, what the law allowed the subjects of a neutral power to do, before we ascertain what the object of this act was, and what they were to be restrained from doing by the seventh section of the act. Now, when we come to the seventh section of the act, we find that words are used there which are not found in the preamble; and I only notice this because Mr. Baron Bramwell seems to have considered that there was some weight to be attached to the word "furnishing," found in the seventh section, which carries it beyond the words "equipping," "fitting out," or "arming," which are also to be found in that section. My lords, in the American act, which it was said was the precedent for this act, you will find that there was no preamble at all to assist in guiding the consideration of what really was intended to be prevented. The words found in the third section of the act of Congress, which is said to be the precedent for the act of 1819, the only words are "fit out and arm, or attempt to fit out and arm, or procure," and so on, or "knowingly aid and assist in arming any private ship or vessel of war or privateer, 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 or commit hostilities against the subjects, citizens, or property," and so on. My lords, the seventh section is not, therefore, an accurate copy of that section. Now, since this statute has passed, as my friends admit, and as is proved by the American authorities, as well as by the authorities which are found in Kent's and other works which my learned friend has cited, it is still allowable for the subjects of this kingdom to fit out and arm, that is, complete, arm, and equip a vessel, which they may send to a foreign belligerent, asking that foreign belligerent when the ship reaches either his ports or any port out of the United Kingdom, to purchase that vessel, the ship-builder knowing as a moral certainty at the time he so equips and arms her and sends her from these shores that the vessel will be purchased, and be used when purchased, for the purpose of carrying on hostilities. However, that is not forbidden by this statute. There is another case that might have occurred, and possibly has occurred during the very war now going on, and it would not be a prohibited transaction in any sense; you may send out a vessel, or even deliver a vessel in this country fully armed if the intention of the party receiving be not at once to commence hostilities, but to use the vessel as a model for the purpose of fitting up ships of war in his own country or elsewhere, in order that those ships may be used by the belligerents for the purpose of hostilities, and that is not prohibited by the statute. The legislature were no doubt prohibiting that which might be done at the time to some extent, and the question will be for your lordships to determine to what extent the undoubted right which the ship-builder in this country had of supplying, as contraband of war, ships of war to foreign belligerents, has been interfered with by the restriction put upon him by this act. As regards guns, cannon, shot, gunpowder, and other munitions of war there is no prohibition by statute, and those contraband articles may still be sold and carried, subject to confiscation, to a foreign belligerent. There is a restriction to some extent put on the ship-builder, and it is a restriction which had not been imposed on other persons carrying on business in other branches of trade, such as in guns, and my learned friend, the attorney general, asks, as I understand in this case, that, instead of your lordships putting a strict and narrow construction upon this statute, which is a highly penal statute, the widest possible construction shall be put upon it, and that the moment anything is done which, in its nature, tends in any way to render a ship adaptable oven to the purposes of war, that that ship shall be at once forfeited in consequence of its being equipped within the meaning of this seventh section. My lords, the question was put by my lord to the late learned attorney general, Sir William Atherton, who conducted this case at the trial during his reply to the jury, whether it was or was not an offense at the present moment according to his construction of the act for a ship-builder to build a ship which had no equipment of a warlike character of any sort or kind, intending at the time that he built that ship that it should be afterward used for warlike purposes. But although my lord pressed the then learned attorney general to give him his view on the subject, Sir William Atherton expressly refused to do so, and as I understand my friend the attorney

general, he declines to give any opinion on that subject, although the same question was put to him in the course of his motion for this rule. I shall assume, however, that, supposing the hull of a vessel, which is capable of being used for warlike purposes, after it has been made complete and has been equipped and fitted out, is sent from this country to a belligerent with the view of its being used for such purposes, but is towed away as a mere hull, inasmuch as there is no prohibition of such an act to be found in this statute, that the act of sending away a vessel in that stage of construction is not unlawful. I say that it is contemplated that there should be something more than a vessel which is to be the subject of forfeiture. It must be a vessel in a particular state and stage of completeness; that is, not simply the hull of a ship, but a vessel furnished, equipped, fitted out, or armed, which is to be the subject of forfeiture under the seventh section. Then, if the law be as I have ventured to state it to your lordships, that a ship-builder has still a right, in common with other merchants in this country, to supply the contraband article in which he deals up to a certain point, the question is as to where your lordships will draw the the line, and whether your lordships are to give to the statute the extremely wide and sweeping interpretation which the attorney general suggests, or whether the more limited construction which we seek to put upon it is the true construction to be placed upon this act of Parliament. And when your lordships consider that question, I venture to say that it is more consistent with the rules of construction adopted by this court and of other courts of law where a new offense is created by act of Parliament, where a particular branch of commerce which up to the time of passing the act has not been made unlawful is declared illegal-when to deal with ships under peculiar circumstances is made an offense and a misdemeanor, and the forfeiture of the vessel itself is to be incurred in the event of the act of Parlia ment having been infringed-I say that it is rather for your lordships to put a limited and strict construction upon the act than to extend it as wide as possible for the pur pose of making every vessel built, or in course of building, to which circumstances of suspicion may attach, liable to the forfeiture which is claimed by the Crown. Now with regard to the ship that is declared to be liable to forfeiture under the seventh section, I think your lordships will find, that beyond all doubt the criticism I have made upon the section is well founded; that it is necessary not merely that the vessel should be in such a state as to be what may be called a ship, but it must be a ship which is equipped, or which there has been an attempt or endeavor to equip. I can hardly construe the language used by my learned friend when he moved for this rule, but I rather infer from what he said that he would admit for the purpose of this argument, at all events, that a vessel may be built with the intent which is mentioned in the seventh section, and that it is not forfeitable so long as there is no equipment and no attempt to equip, and nothing done toward equipment. I am not sure whether I understood that rightly, because the language of my friend was a little guarded; but I understood him further to say that at all events after the vessel had arrived at the stage at which she could properly be called a ship, as distinguished from a mere number of planks put together, any species of equipment, however innocent per se-(your lordships will find this at page 55*)-"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 is necessary; and that I appre hend is their object and policy, provided, always, that the intent and purpose established." Then I understand my friend to say this: Once let the vessel become, in common parlance, a ship, add to that vessel the stanchion of a hammock netting, she is then equipped sufficiently for the purpose of being brought within this statute, provided that that equipment is found to have been with the intent charged by the

statute.

Mr. BARON BRAMWELL. That if you get clearly to the intent, that that gives the equipment a distinctive character.

Mr. BARON PIGOTT. First the act and then the intent.

Mr. KARSLAKE. Or it may be first the intent and then the act, for it is immaterial which you take first. The act declares that "if any person shall within any part of the United Kingdom, without leave or license, equip, furnish, fit out, or arm," or "attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid or assist, &c., in fitting out, &c., a vessel with intent to cruise and commit hostilities, &c., such person shall be guilty of a misdemeanor." Now, my lords, a question may arise, though I do not know that it is necessary to discuss it in the present case, as to what the real meaning of this section was as regards the persons liable to indictment for being engaged in fitting out a vessel for the purpose of committing hostilities. The question has been raised by the form of the indictment here, though it may not be necessary to consider it for the purposes of this rule, whether it is not necessary that the persons engaged in equipping shall themselves be intending to commit hostilities. I think when the whole of the act is looked at, that that may very likely be found to be the real intention of the statute; there are counts to meet that view, and that may be matter to be determined hereafter. We

See page 174.

find that the prohibition is against having a ship equipped, furnished, fitted out, or armed. Now, as regards the arming, it is admitted in this case that there was no arming at all, nor was the vessel equipped, nor furnished, nor fitted out for aggression; the utmost that can be said by my friends is this, that there was something ancipitus usus upon the vessel, which they say was intended to be thereafter used with additions for the purpose of forming part of a warlike equipment. And my friends put it that this furnished sufficient grounds, under the circumstances, for taking possession of the vessel. Beyond all doubt, the vessel was not completely furnished, fitted out, or equipped in any sense. Then my friend says that at all events he has now a right to allege that, if the vessel was not equipped, &c., there was an attempt or endeavor to equip, furnish, or fit out the ship with intent to cruise and commit hostilities. It becomes extremely material to ascertain who is to have the intent which must exist in order to make the vessel forfeitable; and, my lords, on that point I would ask your lordships' attention to the authority which has been already cited, the authority from the American courts of the United States vs. Quincy, and I will show that that decision was adopted to the fullest extent by Sir William Atherton, and must be taken to be the law applicable to this case. It is there said, "The offense consists principally in the intention," which "must be a fixed intention, not conditional or contingent, dependent on some future arrangements. The intention is a question belonging exclusively to the jury to decide." That was the decision of the question as to the form in which the instruction should be given. The instructions which were claimed on the part of the defendant in that case of the Bolivar were as follows: "That if the jury believe that when the Bolivar left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, she was not armed or at all prepared for war, or in a condition to commit hostilities, the verdict must be for the traverser. (2.) That if the jury believe that when the Bolivar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds with which to arm and equip the same vessel, and had no present intention of using or employing the said vessel as a privateer, but intended, when he equipped her to go to the West Indies, to endeavor to raise funds to prepare her for a cruise-then the traverser is not guilty." (3.) "If the jury believe that when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfillment of which wish depended on his ability to obtain funds in the West Indies for the purpose of arming and preparing her for war, then the traverser is not guilty." Upon the second and third of these instructions so claimed, the decision was given in favor of the defendant.

Mr. BARON PIGOTT. I suppose that the owner and the equipper was the same person there.

Mr. KARSLAKE. I think he was the same person.

Mr. BARON CHANNELL. The court below seem to have thought that the intention was not only necessary but absolutely requisite.

Mr. KARSLAKE. No doubt, my lord. In order that there may be no doubt as to what the law, as it was laid down by Sir William Atherton, requires, I would ask your lordships' attention to the end of the reply, or rather the summing up by Sir William Atherton. Your lordships will find at page 223,* of the small book, the following passage: "Gentlemen, that brings us to the great question in the case with which my learned friend next dealt on the evidence. I mean the question of intent, because I have stated, and admitted throughout, that unless you are satisfied upon the evidence produced upon the part of the Crown that there did exist the intent-and I will very much adopt the view put forward by my learned friend as to the kind of person, with reference to the ship, by whom such intent must be entertained to fulfill the description of the intent; I shall come to that in a moment-but unless I satisfy you that the intent that the vessel should be employed by the Confederate States is made out, and an intent existing before the seizure and during the construction of the vessel, I have stated throughout, and I repeat, that the information fails."

Therefore my learned friend assumes that which I venture to think he was bound to assume, namely, that it rested upon him to show that there existed an intent on the part of somebody, who was capable of exercising and carrying out such intent, that this vessel should be used by one belligerent against another, and he says that the intent (which he admits must be a fixed intent) existed on the part of somebody (although he fixed on no person in particular) that the vessel should be used in the service of the Confederate States. At page 238,t of the little book, Sir William Atherton goes a little more at length into what he considers to be the law as regards the intent: "All that I ask you to do is this: You will take the law, as far as it affects your decision, of course from my lord; the facts you will judge of on the evidence, no doubt availing yourselves of such observations on these facts as the great experience and knowledge of my lord will suggest to him, or enable him to make available to you. I ask you to give your conclusion in this case on the evidence, and I will state at once what I intended to have stated a little earlier that so far agree with my learned friend, that See page 126.

*See page 118.

the intent must be an intent of one or more having at the time the means and oppertunity of forwarding or furthering such intent by acts. I agree that anything else called an intent, or rather that which would be called an intent in the mind of any person not of this description, must be treated properly as a mere wish, imagination, or desire. By intent, undoubtedly, the act means practical intent." Therefore, that is the construction laid down by my learned friend at that time, and I believe that my learned friend, the attorney general, now adopts it, because in moving for this rule I think I understood him to say

Mr. ATTORNEY GENERAL. I do not recede from that, and I could not express it better. Mr. KARSLAKE. I think I understood him to say, what your lordships will find at page 55,* "That there must be some person party to the business who is capable of having such an intent, and who is it? For example, if a ship-builder in England builds on speculation on his own account a ship, intending to take it to any port in the world where he can find a market for it, it is obvious that he has not within her Majesty's dominions any intent to employ, or any power to employ, the ship in the service of any belligerent power; all his intent is to sell the ship to a purchaser somewhere or other; or it may be in some particular place, if he can find one there, and nobody but himself has any control over it at the time. Nobody but himself has anything to do with it at the time. Nobody but himself under the circumstances can determine the intent. and, as he does not mean to make war in it himself, or does not intend that any one else shall make war in it, that is not struck at by the statute. But wherever you have parties concerned in the equipping or fitting out or furnishing, or the attempting or endeavoring to do any of these things, either as ship-builders or as engineers, aiding in any way whatever in any of them where there is a principal in the matter who has the intent, and is master of the employment, can there be any doubt whatever that it is struck at by the statute? For instance, suppose they constructed the vessel meaning themselves to use their own ship as a privateer." Now, therefore, I have my friend's own statement: it is necessary here to fix upon some person or another in whom the intent existed.

Mr. BARON PIGOTT. There is no doubt that the intent of the two parties must be used in a different sense; the intent of the controlling power may apply to the principal; but then there is an intent also in the person who is aiding and assisting, and he has no controlling power, but he has the knowledge.

Mr. KARSLAKE. It will be found extremely material to discover what the real meaning of "with intent" is for the purpose of this case. I contend that it is incumbent on those who seek to claim the forfeiture of a vessel to point out some particular person who has the control of the vessel, who was the person intending at the time the acts, which are charged as wrongful acts, were done. Your lordships have been good enough to suggest that two sorts of intent are referred to here. I do not think it will be found to be so. The intent must exist in those who are," aiding or attempting to equip," as well as in those who equip.

Mr. BARON CHANNELL. I understood the attorney general to contend, upon his moving for this rule, that there must be, not only an intent, but coupled with it some power to carry that intent into execution. But with regard to those who aid or abet, then it is not necessary that they should have the power. The words are "with intent or in order." No one has referred to those words yet.

Mr. KARSLAKE. Is it not intended by the act that any person aiding in equipping a ship shall be liable to be indicted as a misdemeanant, unless the vessel has become liable to forfeiture?

LORD CHIEF BARON. That is so, no doubt; but put such a case as this: I do not imagine that any one would contend that if any of the ship's carpenters, or persons who are merely inferior workmen, but still who are aiding, assisting, or advancing the work, that any intention on their part would be an offense against the act, or make them liable to punishment, or incur forfeiture.

The ATTORNEY GENERAL. No; if that stood by itself, of course not, if there was no other intention.

LORD CHIEF BARON. Even all our special pleading, and all our care about indictments upon acts of Parliament, language is extremely imperfect, unless you carry along with the perusal of it, and the attempt to understand it, a candid and fair desire to know

what it means.

Mr. KARSLAKE. Yes, what I want to impress upon the court is this, that on the part of the person who is the owner or controller for the time being of the vessel, there must be that fixed intention which is mentioned in the case of the United States s Quincy, and which is adverted to by Sir William Atherton in his speech; and that you must ascertain who is the person who has that fixed intention, before you can claim the forfeiture of the vessel. It will be extremely material to bear that in mind when you find, as in this case, there are twenty or thirty persons charged with having said this or that about the vessel, and when my friend the attorney general says, "They were all engaged together, and therefore you must assume the intent to be what we

*See page 175.