"licence, and the fitting out and equipping and arming of vessels Motion for Rule "by His Majesty's subjects, without His Majesty's licence, for for New Trial. "warlike operations in or against the dominions or territories of

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any foreign prince, state, potentate, or persons exercising or "assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandize of any foreign prince, "state, potentate, or persons as aforesaid, or their subjects, may "be prejudicial to and tend to endanger the peace and welfare "of this kingdom." My Lords, the disjunctive word "or" which we find in the seventh clause does not occur in that preamble, but I think it is perfectly manifest that the "and" has exactly the same force there as if it were a disjunctive word, that is to say, that each of these things, if not prevented, will be prejudicial to and will tend to endanger the peace and welfare of the kingdom,-first, the enlistment or engagement of the subjects to serve in war in foreign service; 2ndly, the fitting out of vessels; 3rdly, the equipping of vessels; and 4thly, the arming of vessels. The conjunctive instead of the disjunctive form in the preamble is exactly appropriate, because all those things and every one of them is within the mischief which the statute is intended to prevent. When we come to the 7th clause, the object being to strike every one of them separatim, the conjunctive is turned into the disjunctive.

Mr. Baron Bramwell.-Clearly that is so; otherwise you must make the whole conjunctive, and then it would read that no offence would be committed unless you at the same time enlisted and fitted out a vessel, which cannot, of course, be.

Mr. Attorney General.-It cannot possibly be.

Lord Chief Baron.-All those four matters, fitting out, equipping, and so on, are, I think, to be prevented disjunctively, and unless I had so thought I ought to have stopped the prosecution at once, because there was not a count in the indictment which complained of either arming or attempting to arm.

Mr. Attorney General.-If we took it that all the words meant the same thing, of course any one word would answer the same purpose. In the preamble, however, the disjunctive "or" is made into a conjunctive, and I will show that each of the things is within the mischief, and therefore all are mentioned.

Mr. Baron Bramwell.-One is and the other is.

Mr. Attorney General.-Yes, my Lord. Then I beg your Lordships' attention to what is the mischief. The mischief is obviously what is expressed, namely, that this " may be prejudicial to and "tend to endanger the peace and welfare of this kingdom." I am sure that when my Lord comes to be reminded of a passage in his summing up, in which that view was stated, which, under the influence of the powerful arguments which he had heard, he at that time held to be the right one, of the object of the statute, he will not recognize his own words as expressing the meaning which he said he had intended to enunciate, so different is it from the language which we find in the statute. His Lordship, ac

Motion for Rule cording to the natural meaning of the words, says that the object of the statute is only to prevent collisions.

for New Trial.

Lord Chief Baron.--My impression was that the object of the statute was to prevent any hostile vessel being fitted out and equipped, so as to make a port of this country the port of discharge, the commencement of a hostile operation.

Mr. Attorney General.-I knew that your Lordship would not adhere to what I find in the short-hand writers' notes upon that subject, because what fell from your Lordship was this, that the mischief apprehended was, that there might be building in Messrs. Miller's yard a ship for the Confederates, and in Messrs. Laird's yard another for the Federals, and that on coming out they might come into collision one with the other, and produce hostility upon our waters.

Lord Chief Baron.-There can be no doubt that that was one of the mischiefs which were intended to be guarded against.

Mr. Attorney General.-I take the liberty of saying to your Lordship that I do not think that such a thing ever entered into the mind of any human being, because, so far as I am aware, it never happened before. It would not be the object of either party to get into war with this country; they would take care not to violate one of the commonest rules of international law, namely, to get outside neutral waters before commencing hostilities.

Lord Chief Baron.-I think you will find in Kent's Commentaries something to the effect which I have stated.

Mr. Attorney General.-No; nothing of the kind, I assure your Lordship.

Mr. Baron Pigott.—I think I have read something to the same effect in some other writer, that it may lead to those consequences. Lord Chief Baron.-And the fact in point of history has taken place.

Mr. Attorney General.—I do not say that it is impossible.

Lord Chief Baron. It is not only not impossible, but it is a fact. Mr. Baron Pigott.-Was not it nearly happening in the very case of the Confederate and the Federal vessels in this country? Did not we stop the one at Southampton in order that the other might have a run?

Mr. Attorney General.-What might possibly happen would be that the one might follow the other if not prevented.

Mr. Baron Pigott.-Did not we do that for fear they should come into collision within British waters?

Mr. Attorney General. They would not come into collision within British waters; one might have followed the other out of port, and for that reason a special order was made by Her Majesty in Council. That of course has nothing to do with the Foreign Enlistment Act. All I can say is this, that without saying that such a thing is not theoretically possible, yet to state that that is the object and policy of this statute as declared upon the face of it, would, I think, be taking a liberty with the law which it does not belong to any Court to do. It is plain that the object was to preserve the neutrality of this country, and to enforce it

for New Trial,

against the subjects of this country, in matters in which the neglect Motion for Rule of it by those subjects, or the violation of it here by foreign belligerent Governments, was thought calculated to lead to a position as regards foreign nations which would endanger the peace and welfare of the kingdom. How would it endanger the peace and welfare of the kingdom? Manifestly by involving us in war, by making us practically so far parties through our subjects to belligerent operations if we allowed this country to be made the base of those operations, either for the enlistment of men or for the equipping of vessels of war, as to make it probable that other countries would not endure it, but resent it, and that so we might become involved in war. That is the mischief which the statute is manifestly intended to protect us against.

Then the second clause, as to enlistment, your Lordships will find is one which prohibits any natural-born subject of the Crown anywhere, I think, from enlisting or entering himself or serving "in and on board any ship or vessel of war, or in and on board any แ ship or vessel used or fitted out or equipped or intended to be "used for any warlike purpose in the service of, for, or under or in "aid of any foreign power." It is quite manifest that, under that, the mere taking an engagement on board a vessel of any sort or description used or intended to be used for any warlike purpose is equally struck at as taking an engagement on board a vessel which is of a particular class.

Then I pass over the penalties affixed to taking service in that way by the enlistment clauses, and the mode in which those penalties are to be proceeded for, and I come to the 7th clause. It is quite manifest that the enlistment of men in this country to serve in and on board any ship used for the warlike purposes of a foreign nation could not have any other tendency to involve this country in war than by leading to a breach of friendly relations with the country who suffered by that sort of enlistment. The 7th section, with which we are dealing, is, I should have thought, though rather involved and intricate in its language, most carefully expressed, so as to include every species of case which can come within the mischief, and not to enable any one to escape from the case being brought within the mischief which is sought to be prevented or the intent which is prohibited. The words are these, "If any person in any part of His Majesty's dominions shall, "without the leave and licence of His Majesty for that purpose "first had and obtained, as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavour to equip, furnish, fit out, or arm." Now, first stopping at the words "any person," it is quite obvious that it may or not be a subject of the crown. When the enlistment was spoken of only natural-born subjects were prohibited from enlisting. When the procuring persons to enlist was spoken of, any person within His Majesty's dominions was prohibited from doing so, and here we have any person, whether a natural-born subject, or, like Captain Bulloch and Mr. Hamilton, a foreigner, and, à fortiori, the British Government acting by its agents, they would be the persons of all others whom the act

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Motion for Rule would intend to prohibit, because they are directly violating our for New Trial. neutrality by using our shores and our ports for such a purpose.

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 fo equipment, in order to make the act penal in a case in which the attempt is proved. 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 are necessary, 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 endeavour" 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 endeavour it is sufficient; any attempt or any endeavour to do any one of these things, provided it be a prohibited attempt, is struck at, and not only the attempt or endeavour but any one who "shall knowingly aid, assist, or be concerned in "the equipping, furnishing, fitting out, or arming." Now that is a clause which is remarkable, because it strikes at the case of a person within Her Majesty's dominions, knowingly aiding, assisting, or being concerned in the equipment, whether or not the equipment takes place quoad alios elsewhere. Any person who does any one of these things within Her Majesty's dominions offends against the Act, that is to say, any one who equips, who attempts or endeavours to equip, who procures to be equipped, or who knowingly aids, assists, or is concerned in the equipping, wherever the equipment is completed, and whoever be the person by whom it is made. Then what is the intent? "With intent "or in order that such ship or vessel shall be employed," not by any particular person, but "shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of "government in or over any foreign state, colony, province, or part of any province or people as a transport or storeship," in which case of course it would not have arms at all, its equipments would be of another character; "or with intent to cruize, "or commit hostilities against any prince, state, or potentate, or "against the subjects or citizens of any prince, state, or potentate," and so on.

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My Lords, I look in vain in that clause for any warrant what- Motion for Rule ever for some distinctions which have been arbitrarily imported for New Trial. into it by some persons who seem to think that this clause makes exceptions in favour of shipbuilders, and in favour of mercantile dealings and objects, and that if they take money for the prohibited thing, if they enter into a contract with a person to do it and are paid, it takes them ont of the scope of the statute, although they attempt or endeavour, or knowingly aid, assist, or are concerned in the equipment. The statute makes no such distinction. The statute strikes every person, a shipbuilder or an engineer, like Messrs. Fawcett, Preston, and Co., as much as anybody else; it strikes a person whether he does it under a contract or whether he does it without a contract, whether he does it for money or whether he does not do it for money, provided he does the prohibited thing, and that prohibited thing is either equipping, or attempting or endeavouring to equip, or knowingly aiding, assisting, or being concerned in the equipping, with a certain intent. The intent is the gist of the whole thing, and that is the thing to be proved.

Now I observe here, what I shall have occasion to show more completely hereafter, how very great is the fallacy into which it is possible to fall when dealing, without due attention to the language of the statute, with distinctions rightly laid down, in some cases as to mercantile adventures in ships of war which are not prohibited, of course there may be a mercantile adventure which is not prohibited, but it must be a mercantile adventure as to which the thing is not done with a prohibited intent of course, in order that there should be the intent that the vessel shall be so employed 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 shipbuilder 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 endeavouring to do any of these things, either as shipbuilders 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. That is what was put by my learned friend Sir H. Cairns in his argument at the trial, as if