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 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 forcastle-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."

Then there 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.

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 endeavor 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 of 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 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 yacht" do not appear here.

as a

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 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 scracely 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. 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 be 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 your lordships would say that, in the absence of witnesses called on the other side, * See page 58. See page 60. See page 33.

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. As to 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.

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.

SIXTH DAY, Monday, November 23, 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.

LORD CHIEF BARON. What was the statute then in question?

The QUEEN'S ADVOCATE. It was the royal marriage act, my lord. His lordship says: "My lords, the only rule for the construction of acts of Parliament is that they

should be construed according to the intent of the Parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law-giver. But if any doubt arises from the terms employed by the legislature, it has always been held a safe mean of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the act and the mischiefs which they intended to redress."

My lords, I derive another proposition of law, (familiar, I dare say, also to your lordships, but which, rather for my own guidance, I wish to mention at this time,) as it appears to me applicable to the construction of this particular statute, from Bacon's Abridgment, title "Statute," the second part of the "Rules to be observed in the construction of a statute;" it is in volume 7.

LORD CHIEF BARON. In Bacon's Abridgment, title "Statute," there is a particular rule given for the construction of penal statutes, and the rule which you have been laying down, and the rule which the attorney general insisted upon with reference to advancing the remedy to meet the mischief, does not at all apply, and never has been applied in this country, to the case of a statute creating a crime.

The QUEEN'S ADVOCATE. With permission, my lord, I was about to come to that in

a moment.

Mr. BARON BRAMWELL. Mr. Justice Crompton says that he never knew a golden rule which was worth anything at all.

The QUEEN'S ADVOCATE. My lord, I am sorry for that, because it would seem that there could never be any science of the law at all.

Mr. BARON BRAMWELL. Nay, I beg your pardon; that is a very different thing. That is not the only case in which there is good sense in what Mr. Justice Crompton has said; but I think it is impossible to do more than to say that you must bring an honest mind to the interpretation of the statute.

The QUEEN'S ADVOCATE. Yes, my lord; but there are certain rules which have been acted upon in these cases. The words in Bacon's Abridgment which I was about to read are the following: "A statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant." ́Now, I shall take the liberty of drawing your lordships' attention to the special application of that rule, if it be a good rule, to this statute. And your lordships will find, when we come to consider the words "equip, furnish, fit out, or arm," that if this be a sound canon of construction, it will have a great bearing upon the exposition of that part of the statute.

LORD CHIEF BARON. Then it is very remarkable that the attorney general at the trial did not address either to me or to the jury one syllable as to any distinction between those terms. The prosecution on the part of the Crown is apparently upon the footing that although there may be a distinction it is not worth telling the judge or the jury what it is. That is a fact.

The QUEEN'S ADVOCATE. I am sure that your lordship would not require me or expect me to enter into any discussion of the discretion which the late attorney general exercised upon that occasion. I must leave that to your lordship's own opinion. I can only say this, and I am bound to say so humbly

LORD CHIEF BARON. I take it for granted that the case was conducted on the part of the Crown after full consultation with the present attorney general, then the solicitor general, who was in court the whole time; and from the beginning to the end of the case the attorney general never intimated the slightest difference between "equip" and "furnish" and "fit out." He said not one word about it. If, therefore, that is to affect the construction of the statute, it is now presented to us for the first time, at least in this argument.

The QUEEN'S ADVOCATE. My lord, the question of the late attorney general's mode of conducting the case has been often discussed during this debate, and I should be very loth to enter into it again; but I think I am bound to say that really our opinion was that he did conduct the case with very great ability and perspicuity. I am sure that your lordships will be of opinion that there is no reason why I should not address my argument, even if your lordships were to hear it for the first time, if it be worth hearing at all, and why I should not submit it to your lordships' attention. My lords, I therefore say that the particular passage which I have read as to each word having its meaning, and as to there being a canon of construction which forbids you to argue that the legislature dealt in a superfluous expression unless you are compelled to do so, has a great bearing upon the construction of this act.

Then the lord chief baron reminds me, as has been often said during the course of this discussion, that this is a penal statute, and therefore his lordship seems to think that neither the authority cited by the attorney general nor that cited by myself has a bearing when the peculiarity of the statute is considered. Now, I beg to draw your lordships' attention to the opinion expressed upon this point by a most eminent judge,

not indeed a judge of this country, but by a judge whose opinion nobody need be ashamed of following; I mean the opinion of Chief Justice Marshall, in the United States, and I quote from the fifth volume of Wheaton, page 95. The case is that of The United States against Wittberge, and he is there construing a criminal statute, with which I need not trouble your lordships. He is citing a statute respecting manslaughter upon the high seas, and he says: "The rule that penal laws are to be construed strictly is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative. and not in the judicial department. It is the legislature, not the court, which is to define a crime and to ordain its punishment." Then there follow these words: "It is said that, notwithstanding this rule, the intention of the law-maker must govern the construction of penal as well as of other statutes. This is true; but this is not a new independent rule which subverts the old; it is a modification of the ancient maxim, and it amounts to this, that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute, to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend." Now, my lords, by that canon of construction I should be quite willing that this case should be tried.

Mr. BARON BRAMWELL. It seems to me, with great respect, that that is very little more than saying that you are not to misconstrue the laws.

The QUEEN'S ADVOCATE. I suppose, my lord, that every canon of construction would ultimately resolve itself into that.

Mr. BARON BRAMWELL. It seems to me scarcely to be in words more than an elaborate statement that you are not to misconstrue them because they are penal laws.

The QUEEN'S ADVOCATE. That you are not to narrow the meaning out of a mistaken tenderness to the individual, so as to defeat the public policy of the act.

My lords, with respect to the application of the rule to this particular statute I have one other authority. I will ask your lordships to allow me to read a passage from Mr. Justice Story's judgment in the case of the Gran Para, which will be found in 5th Curtis's Reports, at page 304. I need not trouble your lordships with the whole of the case, as I am only reading it for the maxim which it contains. He says, speaking of the Irresistible, sailing out of the port of Baltimore, "She was not commissioned as a privateer, nor did she attempt to act as one until she reached the river La Plata, when a commission was obtained, and the crew re-enlisted. This court has never decided that the offense adheres to the vessel whatever changes may have taken place, and cannot be deposited at the termination of the cruise in preparing for which it was committed; and as the Irresistible made no prize on her passage from Baltimore to the river La Plata, it is contended that her offense was deposited there, and that the court cannot connect her subsequent cruise with the transactions of Baltimore." Now upon this it appears to me that Mr. Justice Story's words are well worthy of attention: "If this were to be admitted in such a case as this, the laws for the preservation of our neutrality would be completely eluded, so far as their enforcement depends on the restitution of prizes made in violation of them; vessels completely fitted in our ports for military operations need only sail to a belligerent port, and there, after obtaining a commission, go through the ceremony of discharging and re-enlisting their crew to become perfectly legitimate cruisers, purified from every taint contracted at the place where all their real force and capacity for annoyance was acquired." Then follow these words: "This would indeed be a fraudulent neutrality, disgraceful to our own government, and of which no nation would be the dupe."

Then, my lords, the question immediately arises, what was the real object of this statute? and your lordships cannot have failed to observe the very different objects which, during the course of the speeches addressed to your lordships, have been assigned for this statute. Now, my lords, it is perhaps worthy of observation, that in the original speech which my learned friend Sir Hugh Cairns made in this case, not indeed directly addressed to the jury, but addressed to the judge in the presence of the jury, he expressed himself in the following language; this is at page 142* of the book; this was stated to my lord before he turned round to address the jury; it is about twelve or fourteen lines down the page: "The equipment is supposed to be with the intent that 'the ship or vessel should be employed in the service of a foreign state' 'as a transport or store-ship,' and in order to make up the idea indicated in those words your lordship will observe that the vessel must be employed by a 'foreign state,' and the purpose for which the foreign state is to employ her is as a transport or storeship; and the latter words showing for what purposes, against any other prince or foreign state. But then, having got to the end of the clause which spoke of the 'transport or store-ship,' we commence with a new clause in the alternative, 'or with intent to cruise or commit hostilities against any prince.' The question is, to what is that last clause, 'or with intent to cruise or commit hostilities,' to be referred? I

* See page 80, line 37.

6

apprehend, on every principle of construction, that clause must be referred and carried back to the words 'ship or vessel,' and must be read as an alternative to the other clause, which likewise begins with the words 'with intent.' So that, as your lordship will see, there is an alternative supposed by the act of Parliament, equipping and arming any ship or vessel with either of two intents, and we must accurately discriminate what those two alternative intents are. The one of the two alternative intents is the one I have already read and spoken of, that the ship should be employed in the service of a foreign state as a transport or store-ship; the other alternative intended is," (I pray your lordships' attention to these words,) "that she should be equipped with intent to cruise or commit hostilities; and the whole is overridden by the introductory words, that there is to be some person; the words are, if any person,' within her Majesty's dominions who is supposed to equip and arm a ship or vessel with one or other of these two intents. You must have a person; you must have him within her Majesty's dominions; you must have him equipping, furnishing, fitting out, or arming (whatever that may mean we will consider afterward) a ship or vessel, and you must have him doing so with one of two intentions. Then follow these words: "The other is the alternative intention, that she shall cruise and commit hostilities, with no reference there to whether she is or is not to be employed in foreign service." LORD CHIEF BARON. I think you need hardly press the question at all. I believe that we were all satisfied that the correction of this part of Sir Hugh Cairns's address by the learned attorney general was quite right, and that this clearly does not require any comment at all.

Mr. BARON BRAMWELL. That would be a prohibition of piracy simply, would it not? The QUEEN'S ADVOCATE. Yes, my lord.

Mr. BARON BRAMWELL. For ships to cruise not in the service of any state would be piracy, would it not?

The QUEEN'S ADVOCATE. Yes, my lord, and therefore I was contending that this construction of the act was manifestly an incorrect construction. My lords, the use which I was about to make of the citation was this, that this was an argument, so to speak, addressed to his lordship in the presence of the jury, who shortly afterward decided the case; and I must take the liberty of saying that I very greatly doubt whether the jury were fully convinced that this argument had nothing whatever to do with the case, which now appears to be admitted to be the fact. I very much doubt whether the jury's minds were entirely free from the notion that possibly this act was directed against privateering.

LORD CHIEF BARON. I rather think you will find that the learned attorney general who had an opportunity of addressing the jury, and of removing all error from their minds, thought it hardly worth while to notice this fact.

The QUEEN'S ADVOCATE. That may certainly be the case, my lord; but, as a matter of fact, I was mentioning that this particular construction was put upon the act at that time, (what effect it might have had upon the jury I do not know,) and I was dealing with the fact for two purposes; first, to mention to your lordships that fact; and secondly, to show the difficulties which those who contend for the claimants in this case have been put to during the course of the argument in order to, what I must call, after all that has been said, evade the plain meaning and words of the statute.

Mr. KARSLAKE. Might I call your lordships' attention to this fact? At page 211,* of the small book, when the learned attorney general was commenting upon that construction which had been put by my learned friend Sir Hugh Cairns, the Lord Chief Baron said that he did not agree with that expression, and there was an end of that argument-"In that I own I do not agree."

LORD CHIEF BARON. I wish that you would use the same edition as we have. You say that it is at page 211; what is it that you are referring to?

Mr. KARSLAKE. I was mentioning, my lord, that when the learned attorney general was replying and commenting upon the construction which Sir Hugh Cairns put, your lordship said that you did not agree in that construction, and there was an end of the argument upon that matter.

Mr. KEMPLAY. It is at page 201 of the large book.

The QUEEN'S ADVOCATE. My lord, I have no doubt that that is so.

Mr. BARON BRAMWELL. Will you allow me to cite a book by an author who, I regret to say, is no longer living, I mean Mr. Sedgwick, an American writer on statutory and constitutional law. He there makes this remark with respect to penal statutes: "But the rule that statutes of this class are to be construed strictly is far from being a rigid or unbending one, or rather it has been in modern times so modified or explained away as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative meaning expressed in the enactment, the courts refusing on the one hand to extend the punishment to cases not clearly embraced in them, and on the other hand equally refusing, by any forced and nice construction, to exonerate parties clearly within their scope.' That is at page 326. He cites a great number of authorities for that statement. This is the author of the book upon damages.

*See page 112.