vessels out of their ports. It aims at preventing the citizens themselves from committing hostilities against foreign powers at peace with the United States, but leaves them at perfect liberty to sell the vessel to one of the belligerents, and provided hostilities are not committed by the citizens of the United States, there is no breach of the law. The accompanying remark of the learned judge which immediately follows, proves that the attorney-general is endeavoring to enforce against British ship-builders a principle which the Supreme Court of the United States altogether repudiates as applicable to citizens of the United States. If our statute was passed to give the United States and other countries the same advantage that their act of Congress gave to us, there may be a reciprocity in words, but there is no reciprocity in reality and in construction if the argument for the prosecution is to prevail. Mr. Justice Thompson says, "All the latitude necessary for commercial purposes is given to our citizens, and they are restrained only from such acts as are calculated to involve the country in war," which I understand to mean that the citizens of the United States have a right to build what ships they please, and dispose of them as they please, provided they do not themselves take part in the war, and the ships are not employed by them to commit hostilities. And what pretense is there for giving to our foreign-enlistment act, with respect to shipbuilding, a construction totally different from that which the act of Congress bears, according to the judgment of the American judges themselves in their Supreme Court?

There is, indeed, a difference of expression between the act of Congress and our statute-they have merely the words "with intent;" we have "with intent or in order." The attorney-general says that he supposes that the words "in order" were added to avoid some evasion or quibble. I believe that they were added to leave no doubt as to the meaning; the expression "in order" is explained in Todd's Johnson to signify "means to an end," and Jeremy Taylor, Tillotson, and Swift are quoted as authorities; the passage from Swift is, "One man pursues power in order to wealth"-that is, power is the "means," wealth is "the end." And the seventh section forbids equipping a ship or vessel as a "means" to "the end" of cruising, or committing hostilities. In all common sense and understanding, if the nature of the equipment has no reference whatever to the commission of hostilities, it cannot be the "means to that end," and there is no breach of the statute by that sort of equipment. Webster's American Dictionary gives precisely the same explanation of the words "in order." And this leads me to remark that even the word "intent" alone, and without "in order," which is put in, as I think, to explain it, and give it the true meaning which an English lawyer would assign, ought not to lead to a different conclusion. The at

torney-general seems to think that if there be an intent, and if any. [63] thing*of whatever kind be done in pursuance of it, that is sufficient.

With great respect for the opinion of so eminent a lawyer, in my judgment that is not sufficient. If a statute simply made it a felony to attempt to kill any human being, or to conspire to do so, an attempt by means of witchcraft, or a conspiracy to kill by means of charms and incantations, would not be an offense within such a statute. The poverty of language compels one to say "an attempt to kill by means of witchcraft," but such an attempt is really no attempt at all to kill. It is true the sin or wickedness may be as great as an attempt or conspiracy by competent means; but human laws are made not to punish sin, but to prevent crime and mischief.

I am, therefore, of opinion, that the seventh section should be con

strued as if the words were "if any person," in the places mentioned, "shall, without the leave, &c., equip, as a means, any ship or vessel to the end that such ship shall cruise or commit hostilities;" and so read, if after all the equipping or furnishing or fitting out the ship is incapable of cruising or committing hostilities, there has been no such equipping, &c., as the statute was intended to prevent.

And this brings me to the meaning of the words "equip, furnish, fit out," and "arm," for they must all be considered together; and the question is not so much what did the legislature mean, as what is the meaning of what they have said-of the words they have used. A clause, admitted to be awkwardly framed, by no means free from difficulty, and of considerable doubt, was scarcely worth the very minute criticism and comparison which it has received; but on the part of the prosecution it is contended that the seventh clause was meant to put ships constructed for war or adapted to war upon a footing different from any other munitions of war; to leave cannon of every description, arms of all sorts, gunpowder, and shot, and shell, to be freely supplied to either belligerent, but that no ship or vessel of a warlike character in any respect was to be furnished to a belligerent with whom this country was not at war. If this had been the object of our legislature, it might have been accomplished by the simplest possible piece of legislation; it might have been expressed in language so clear that no human being could entertain a doubt about it, instead of the awkward, difficult, and doubtful clause which it is admitted, on the part of the attorney and solicitor-general, we have to deal with. It cannot be suggested that the object was to conceal from the ship-builders the ultimate effect of the clause, and to prevent a clamor on the part of the builders of ships that they were interfered with in a way which the casters of cannon and the makers of gunpowder were not. There is not a syllable in the act of Parliament, nor in anything connected with it, nor in any cotemporary proclamation, speech, or publication of any kind professing to put ships on a footing different from any other implement of war; and it was admitted most distinctly by the attorney-general, and I think correctly enough, that there was no foundation for any such distinction in international law. But what is the ground of this distinction between cannon, ammunition, and other articles of that description, and ships? I think it was insisted upon entirely without any sufficient foundation. The attorney-general says, as I understand him, that as far as international law is concerned, there is no distinction between them, and that the distinction arises from our municipal law. He entirely agrees with me upon the subject, except as far as the municipal law makes a difference. His expression is, "I entirely subscribe to what fell from the lord chief baron at the trial, that it could make no difference whether there was a sale of a thing ready made without a previous contract, or a delivery under a contract." No doubt, he says, that would be so if no legislation made a difference, and he considers that the foreign enlistment act made that difference, and his reason is a singular one. He says that Her Majesty has the power, whenever she pleases, to prohibit every other species of contraband trade, but that she has no power to deal with a ship, so that ships. are left out, to be dealt with under the foreign enlistment act. The present statute forbidding the exportation of arms, ammunition, and so on, is the 16th and 17th Vict., passed in 1853, founded on a statute, the 3d and 4th Wm. IV, cap. 52, passed in 1833. I cannot find in the index. to the statutes any earlier one. So that the construction of the foreign enlistment act passed in 1819 is apparently made to turn upon an act passed in 1833.

The result of the argument on the part of the Crown seems to be this: A ship-builder may build a ship altogether of a warlike character, and may arm it completely with the latest and most mischievous invention for the destruction of human beings, and may then sell it to one of two belligerents, with a perfect fitness for immediate cruising, and ready to commit hostilities the instant it is beyond the boundary of neutral terri tory, provided there was no previous contract or agreement for it. But if there be any contract or agreement for it, it cannot be made to order with the slightest warlike character about it, though this be part of the accustomed and usual trade of this country, and though the ship leaves our shores a mere hull utterly incapable of cruising or committing hostilities, and, as far as war is concerned, as innocent and harmless as the mere timber would be of which it is built. The means of evasion which this furnishes is obvious. A signal, a word, a gesture may convey an order wholly incapable of being proved. It is unnecessary to dwell upon this; it is at once perfectly obvious; and the real difference between a crime and an act of commerce may, in point of evidence, entirely disappear. To use an expression borrowed from one familiar in Westminster Hall about a coach and six, a whole fleet of ships might sail through such an act of Parliament as this, if this be the meaning of it; and we are to believe that our legislators exhausted all their wisdom in settling the language of the seventh clause, and had none remaining to perceive the enormous loop-hole which they had left.

Again, a British subject may buy a vessel of war rejected by our navy, fit it up and arm it, and sail with it to a port of either belligerent to sell it; but if either belligerent should, by an agent, purchase it at a public sale by auction, he cannot put a mast into it, or hoist a sail to reach his own country; but an armed vessel of either belligerent may come into our ports and obtain whatever mere naval but not warlike stores she may require, so as to enable that ship to reach some other port. Observe, coming into a port completely armed, he may refit and repair; but being altogether unarmed, he cannot put up a mast or a sail merely to take that vessel across the ocean. I cannot believe that the sound construction of an act of Parliament passed within fifty years of the present time can by possibility lead to such an amount of inconsistency and absurdity, and, I may add, injustice, as is involved in the construction

which we are asked with so much earnestness to put upon this [64] statute. It seems to me to amount almost to that degree of

what is said to be repugnant to common sense which ought, according to the golden rule, to defeat the effect, even if the words conveyed the meaning, which they certainly do not.

In my judgment, the act was not framed in order to make any difference between ships of war, and guns, ammunition, and other implements of war, but to prevent our shores from being made the points of departure of hostile expeditions commissioned and equipped to commit hostilities against a belligerent not at war with us. The seventh section, therefore, forbids the issuing or delivering a commission as well as equipping in order to commit hostilities; for without a commission any act of hos tility would be a clear and undoubted act of piracy, and there was no occasion for a new law against piracy. To suppose that the legislature left to British ship-builders the power and right to build ships for war, as before the statute, but that they meant by the words "equip, furnish, and fit up," to forbid them from sailing away, however harmless and innocent of war their condition might be, is, I think, an unworthy imputation on the good faith of those who made the law. There can be no doubt they did not mean to permit a ship or vessel to go away armed,

for they have said so distinctly; but "arming" admits of many degrees, and a doubt may arise, if the word "arm" alone had been used, what degree of arming would constitute the offense. But the degree is settled and determined by taking the whole sentence: the ship is not to be equipped, &c., in order to cruise or commit hostilities; if the equipment amounts to that, the law is broken; if it does not, no offense has been committed.

With respect to the rule, I am of opinion that none of the grounds upon which it was moved ought to prevail, and that the rule ought to be discharged.

Mr. BARON BRAMWELL. The law that governs this case is a written law, an act of Parliament, which we must apply according to the true meaning of the words used in it. We must not extend it to anything not within the natural meaning of those words, but within the mischief, or supposed mischief, intended to be prevented, nor must we refuse to apply it to what is within that natural meaning, because not or supposed not to be within the mischief.

In this, as in other cases of doubtful meaning, it is legitimate to resolve that doubt by ascertaining the general scope and object of the enactment. And, accordingly, international law has been referred to, certain propositions have been laid down in that necessarily vagué science, and it has been argued that the act was passed merely to enable the Crown to enforce the observance of that law by its subjects, and so it has been sought to find its meaning. But it is clear to me that the statute prohibits some things which are not, and I strongly incline to think permits some things that are, prohibited by international law. In the result, I concur with the learned attorney-general, that the question which we have to answer cannot be solved by treating the statute as a mere enforcement of international law.

Again, it may be a legitimate mode of determining the meaning of a doubtful document to place those who have to expound it in the situation of those who made it; and so, perhaps, history may be referred to to show what facts existed, bringing about a statute, and what matters influenced men's minds when it was made. But we know that in our legislation an argument may be used in support of the principle of a bill which is consistent with particular provisions of great variety; and we know that in all legislation, where it is intended to prohibit a thing, it may be necessary to prohibit others under color of doing which the thing intended to be prohibited may be done. This, therefore, affords no certain clue to the meaning of this enactment; nor would ascertaining the objects of the authors of the American act, from the provisions of which in our act there is a purposed difference.

It becomes necessary, then, minutely to scrutinize the words of our statute, and interpret them with such assistance, if any, as can be got extra its four corners. Now, it is no doubt a penal statute, but I think it ought to be construed as laid down by the late Mr. Sedgwick in his book on statutory and constitutional law. He says, at p. 326: "But the rule that statutes of this class are to be considered strictly is far from being a rigid or unbending one; or rather, it has in modern times been so modified and explained away as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent, as expressed in the enactment; the courts refusing, on the one hand, to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope;" a passage in which good

sense, force, and propriety of language are equally conspicuous; and which is amply borne out by the authorities, English and American, which he cites. And I must here record the well-founded remark of the attorney-general to the effect, that whereas, formerly, statutes being extended equitably, as it was called, beyond their natural meaning, penal statutes were exempt from such extension; now that such liberties are not taken with statutes, there is no reason for construing penal statutes on such different principles as were formerly applied. Nor, I confess, can I think that the interests of the ship-building, or any other trade, are so concerned in this matter as to afford an arguiment in favor of the defendant's construction.

I now come to the very words of this much-debated section seven. I leave out all which are needless to the matter in hand. I am satisfied that the words "equip," "furnish," and "fit-out," are not limited to transports and store-ships. The rule which interprets "reddendo singula singulis" cannot apply here; because all the words "equip," "furnish," and "fit-out," are sensible in reference to vessels intended to cruise or commit hostilities. The section reads thus: "If any person within any part of the United Kingdom shall equip, furnish, fit-out, or arm any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, as a transport or store-ship, or with intent to cruise or commit hostilities," &c. Now we have to ascertain the meaning. On the part of the Crown it is said, that if there is an intent that the ship shall be employed in the service of any foreign [65] *prince, with intent to cruise or commit hostilities, any equipment with that intent is sufficient, however unfit to accomplish such intent; that the rigging, victualling, manning, and other parts of equipment are lawful or not according to the intent with which the ship will be used by those for whom they are done. This is said to be according to the very words of the statute. Supposing it to be so, it seems to me that the difficulty is only shifted; that the question remains and becomes this: What is the meaning of the words "with intent or in order that such ship shall be employed in the service of any foreign prince with intent to cruise or commit hostilities?" Does the expression mean with intent or in order that by means of such equipment she may cruise or commit hostilities, that she shall be in a condition for proximate hostilities, so that the port which she leaves will be a "station of hostilities?" or does it mean, as contended by the Crown, that an intent is within the statute, where the equipment is in order that she may be employed in the service of a foreign prince, though further acts on his part are necessary to enable her to cruise or commit hostilities?

I think that this is a correct statement of the question, and it seems to me that it must be answered adversely to the Crown's contention. I think that the fair and natural meaning of the words is, that the equip ment must be fit for cruising or the commission of hostilities. The word "intent" before to "cruise or commit hostilities," seems put there on purpose to show this. But I dislike relying on a single word. Let it then be rejected, and the statute reads thus: "If any person shall equip any ship with intent or in order that such ship shall be employed in the service of any foreign prince to cruise or commit hostilities." Now what would be the meaning if the words were, if any person shall equip any ship with intent or in order that such ship shall cruise or commit hostilities in the service of any foreign prince?" Surely that would require an equipment suited for such cruising. Do those words differ from the following: "If any person shall equip any ship with intent or