with intent that they should be employed in committing hostilities against any powers with whom the United States were at peace. Different degrees of criminality will necessarily attach to persons thus engaged. Hence the great latitude given to the courts in affixing the punishment, namely, a fine of not more than $10,000 and impris onment not more than three years. We are accordingly of opinion that it is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed or in a condition to commit hostilities, in order to find the defendant guilty of the offense charged in the indictment." Then, my lords, if that is so, that the vessel need not be in a condition to cruise and commit hostilities, which some of my learned friends have contended for, and which would require the interpolation of words into the statute which are not there, how must she be equipped? That is the question. Now it is contended that the equipment, though not amounting to an actual arming, so that the vessel may be in a condition to commit hostilities, still must be an equipment, as I understand my learned friends, of a warlike character, not ancipitis usus, but of a warlike character. Now, as I before observed, I can quite understand what you mean by "arm," but there is a good deal of difficulty in understanding precisely what you mean by "equipment of a warlike character.”

Mr. BARON BRAMWELL. Allow me to ask you, which seems to be a question of considerable consequence, is this case of Quincy a case in point? You see that what the judge, Mr. Justice Thompson, there says, is this: "That it is not necessary that the jury should believe or find that the Bolivar, when she left Baltimore and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed, or in a condition to commit hostilities, in order to find the defendant guilty," but then they had previously determined that the accessory or subsidiary offender, if we may so call him, might be guilty where he had done less than it was necessary that the principal offender should be guilty of doing; they do not, therefore, determine that if the principal offender, the actual equipper, the man charged with equipping and furnishing, had been indicted, it would not have been necessary that the Bolivar should have been armed.

Mr. SOLICTOR GENERAL. No.

Mr. BARON BRAMWELL. If that is so, is it a case in point upon this particular information?

Mr. SOLICITOR GENERAL. My answer to that is, that it is in point because it is decided upon those words in the American act, which are the same as ours, and in the disjunetive. The words in the American act upon which this case was decided are, "attempt to furnish, fit out, or arm;" our words are, "furnish, fit out, or arm." Therefore, I say it is an authority, non constat, that if the principal had been tried in the American courts they would have held that it was enough. Why? Because the words differ; it would have been "fit out and arm."

Mr. BARON CHANNELL. They decided it as a matter of pleading, a very unimportant point connected with the rest of the decision; so far as this point goes they decided that the indictment in point of form was good; that whereas the indictment was levelled against the subordinate actor, as against him it used the very words of the statute, and that that was sufficient.

LORD CHIEF BARON. But for the purpose of constituting the offense two acts are necessary; if any one assists in doing the one, knowing that the other will be done also, or even possibly without that, if any one assists in the one, he will be indictable for assisting in that one. The American authority seems to be an authority only for this, that wherever the offense consists of two parts, and the assisting of the offender is itself an offense; if you assist in the one you assist in the other; you assist him as to the entire completion of the offense, because he cannot do the whole unless he does that; it is not necessary that you should assist him in both.

Mr. BARON PIGOTT. That supposes that fitting out simply is an offense. Mr. SOLICITOR GENERAL. Distinct from arming. But the material part of the case is this, that they distinguish between "fit out" and "arm." If "fit out" " and arm mean the same thing, there would have been no opening for the distinction, but they say that Quincy may have been guilty of fitting out, although there was no arming. Mr. BARON BRAMWELL. Although he did not arm.

Mr. SOLICITOR GENERAL. Yes, although he did not arm, and although he did not assist to arm. They say that fitting out and arming are two different things, and that fitting out means something else than arming, and it is impossible to say that that must not have been here decided. They deal with the facts, and they say it is not necessary that the vessel should be in a condition to commit hostilities.

Mr. BARON CHANNELL. You are meeting the argument of the other side, that the equipment, however far it had proceeded, must have been a warlike preparation.

Mr. SOLICITOR GENERAL. Yes; I went back for a moment to Quincy's case in conse quence of Mr. Baron Bramwell referring to it. I use the case of Quincy, as going distinetly to this, that the vessel need not be so far equipped as to be fit to be employed in hostile operations.

Mr. BARON BRAMWELL. I think Quincy's case is of great importance, not so much on account of its own value as on account of the inordinate value that has been put upon it elsewhere, which is, I think, utterly disproportioned to its true value.

Mr. SOLICITOR GENERAL. It may be; it is not for me to say how far the court will be bound by that case. I should be sorry to rest my argument upon that case; I have good ground without it. I merely use the case as an illustration of my argument; but I think the case cannot be put lower than this; it holds that "fit out" and "arm" do not mean the same thing; that "fit out" means something less than "arm."

Mr. BARON BRAMWELL. I think it would inevitably be so. I have felt considerable difficulty in this case from a want of knowledge almost of what a ship of war is; but I conceive that a vessel might be fitted out so as to be in a condition to commit hostilities without being properly armed. Suppose, for instance, she had a large crew on board, and she had a large quantity of muskets and cutlasses.

Mr. SOLICITOR GENERAL. Yes; or she might be fitted out to cruise for a voyage of observation against the enemy. The words are, "cruise or commit hostilities." She might be fitted out to cruise without any arms, perhaps, against the enemy; she might carry a large crew supplied with rifles, and so might be extremely effective against an enemy, and especially against an uncivilized enemy, although there were no guns on board her.

Mr. BARON BRAMWELL. In Quincy's case it was laid down "that if the jury believe that when the Bolivar was fitted out 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 said 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 defendant is not guilty." Then apply that reasoning to this case. If the jury believe that when the Alexandra was fitted aud equipped at Liverpool the builder and equipper intended to take her to the Azores, and deliver her to the confederate government, in order that they might arm and equip the vessel, but the builder and equipper had no present intention of using or employing the vessel as a privateer, but intended her, when equipped, to go to the Azores, to endeavor to hand her over to the confederate government, then the defendant is not guilty.

Mr. SOLICITOR GENERAL. Your lordship sees that in that case the equipper was the person who had the control over her, and was to use her as a privateer; she was not ordered by any foreign government-he was the person to use her.

It may be as well for me to say a word or two more upon the question of intention. The court appears there to have considered that inasmuch as the equipper, having the sole control over her, had not made up his mind at Baltimore whether he would use her as a privateer or not, his mind being in this state, "If I can get funds on my arrival at St. Thomas, I will use her as a privateer; if not, I will go on a commercial voyage," they say there was an absence of the mens rea at Baltimore when the vessel started, and that it was not a present intention-perhaps the more accurate language might be, that it was not a fixed and absolute intention to employ her as a privateer, but a speculation that she might be so employed. "I may or I may not employ the vessel on a hostile cruise," was what Quincy thought; that I apprehend is the explanation of that case; but if the vessel had been ordered by the agent of a foreign government with a clear and fixed intention to use her as a cruiser, that would have made all the difference.

LORD CHIEF BARON. Do you not see what a loop-hole that leaves?

Mr SOLICITOR GENERAL. It does. I agree to that, and I am not quite sure that we who are not bound by those cases should quite assent to the doctrine they lay down, We must all recollect that these are the decisions of a neutral-a nation whose normal state has been neutral. I am not quite sure that we, whose normal state has been belligerent, should quite agree to those decisions.

LORD CHIEF BARON. Our normal state is not belligerent.

Mr. SOLICITOR GENERAL. It has been; I hope it will not be; we have been concerned in most of the great continental wars.

LORD CHIEF BARON. Great Britain has been at peace during half of my lifetime. Mr. SOLICITOR GENERAL. I am speaking of before that. In most of the great naval wars we have had something to do. I do not say all. The Americans as a rule have been neutral; they have considered themselves as a neutral nation, whose policy it has been to preserve their neutrality and avoid war as far as possible. Their distance from Europe has enabled them to do that; we, on the contrary, have been drawn into European wars, and most of our international law has rather been laid down from the belligerent point of view. All our prize law, all the decisions of Lord Stowell, are the decisions of a belligerent, and the greater part of the international law we have contributed to make has been contributed by us as belligerents.

LORD CHIEF BARON. Some of our decisions very likely have what painters call a "glazing" of a belligerent character.

Mr. ATTORNEY GENERAL. Yes, and the others may have a glazing of neutrality. I

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am far from saying that we should be bound or inclined, supposing we were belligerents to allow the foreign enlistment act to be frittered away by another country, as was allowed in the case of Quincy, and in the case of the Santissima Trinidad. Mr. BARON BRAWWELL. Was Quincy convicted?

Mr. SOLICITOR GENERAL. He was acquitted on the facts, (Guinett was convicted,) the jury, no doubt, believing that he had no present intention.

This brings me back for a moment to the question of intention. I am not going to add to the observations I have made upon that point, except this, that the intention must be a fixed and decided one; that is according to the American authorities; it must not be what is called a contingent intention, which is, strictly speaking, no intention at all. That explains Quincy's case, and it also explains the case of the Santissima Trinidad. The case of the Santissima Trinidad, which has been quoted very much out of doors as a case permitting any ship of war to be equipped under a contract with a belligerent, is a case which, it appears to me, has led to very great misapprehension, and it may be convenient for me here to say a word or two with respect to that case. That case is in 7th Wheaton, and the judgment of Mr. Justice Story is at page 334, and it is also printed in the appendix to the report of the trial. The facts of that case are stated very shortly. I am now referring to it to illustrate what I have to say upon the subject of intention. There a vessel sailed from Baltimore undoubtedly equipped, and armed and manned. and she was sent by the owner to Buenos Ayres, with instructions to the captain to sell her if he could get a good price for her, and I suppose not to sell her if he did not. She was sold to the government of Buenos Ayres, who commissioned her as a privateer. She subsequently returned into the American port, where she augmented her force, not by the way by adding any guns, but merely by taking in spars and stores, and enlisting some men; and the judgment of the court, as your lordships are aware, was adverse to the vessel on the ground of the augmen tation of her force; that is to say, the prize she had made was restored; therefore what is said by Mr. Justice Story upon the subject of her first equipment was not necessary to the decision of the case. LORD CHIEF BARON. It was not necessary to the decision, but that makes no difference, because you may refer to it merely on the personal authority of the writer; and then there is no distinction between what is ad rem for the purpose of the judgment, and what is not. Where you refer to an authority in our own law, it is not unusual, and no doubt it is a very proper remark to make where it is applicable. "This is merely obiter dictum; it was not necessary for the judgment that the judge should say that," and it may be taken as accurately describing what passes in the mind of the judge when he is giving judgment. It must be presumed that as to those matters which are absolutely necessary to the judgment, and upon which the decision is founded, the judge takes great care, the highest possible care; but as to other remarks that are made, not for the purpose of the decision, but as illustration, it may be presumed that he draws from the resources of his own mind, but without the same extreme accuracy of attention which he would give to those matters which are the very foundation of the judgment he is pronouncing.

At

Mr. SOLICITOR GENERAL. No doubt that is so. I am very far from seeking to undervalue the high authority of Mr. Justice Story. I merely make the remark that the statement referred to was not absolutely necessary for the decision of the case. the same time it decides, no doubt, one point of the case; I admit that. What he says at page 340 of Wheaton's report is this, "The question as to the original illegal armament and outfit of the Independencia may be dimissed in a few words. It is apparent that, though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure; contraband indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as a good prize, and for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws or in the law of nations that forbids." He must mean in the sense which Mr. Baron Bramwell put upon it, because he has just said it was traffic prohibited by the law of nations, which, at first sight, seems a little inconsistent. "But there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. Supposing therefore the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretense to say that the original outfit on the voyage was illegal, or that a capture made after the sale was, for that cause alone, invalid." Now this passage has led to more misapprehension than almost any passage which has been quoted from any American writer, and this has done duty in all the newspapers, as your lordships are aware, again and again. I apprehend the meaning of the passage to be merely this, there must be the mens rea, there must be a guilty intention, at the time the vessel leaves the American port. The person who equipped the Independencia had not such an intention; at all events not a fixed intention; because ire

sent out the vessel, certainly not to commit hostilities on its road, but to Buenos Ayres, to get a price for it; and if the master could not get a good price for it he was not to sell it. Therefore, there was no definite intention on the part of the equipper; that is the explanation of the case. There was no sufficient proof of mens rea. But suppose it had appeared that the vessel had been ordered by the Buenos Ayres government, there would have been mens rea on the part of that government or its agents that would have forfeited the vessel quite independently of any question what the equipper did or did not intend; but if he had furnished the vessel under such an order, it would have been considered that he did intend also. I can very well suppose that this passage may be misunderstood by persons not applying their minds to the case. It is very natural to say, if a man sends a ship to Buenos Ayres to sell it, why should not he build it to order? That makes all the difference. If he builds it to order, the party ordering has the mens rea, which forfeits the vessel. These cases undoubtedly go some way to open a door to evasions of the act; we cannot conceal that from ourselves, and I am far from saying that we should be bound by them.

LORD CHIEF BARON. Yon say it was to be taken to Buenos Ayres to get a good price. Suppose a man were to make a vessel of war, and to arm her, and were to send her out merely with a crew adequate to sail her with these directions, "Take her if you can to such a port, (suppose it were some port either in the northern or southern States,) and get what price you can for it." Suppose he sells her to one particular belligerent power, not to either, would that be a commercial or warlike transaction?

Mr. SOLICITOR GENERAL. That is the case of the Independencia.

LORD CHIEF BARON. It is not quite that case; she was to be sold to anybody.
Mr. SOLICITOR GENERAL. No; to be sent to Buenos Ayres and sold there.

LORD CHIEF BARON. If he could get a good price for it. Suppose he was told to take it to the northern States and sell it for what he could get.

Mr. SOLICITOR GENERAL. I should not think that would make any difference; probably not.

LORD CHIEF BARON. Yes, because when the owner sent it to be sold to the northern States, he must perfectly well have known that they would use it for hostilities against the South.

Mr. SOLICITOR GENERAL. He could not possibly tell whether they would buy it or

not.

LORD CHIEF BARON. There could not be any doubt as to the purpose for which it was to be used; if a man took a vessel of war flagrante bello, to one of the belligerents to be sold to them, to say he did not absolutely know that they would use it, would be absurd.

Mr. BARON PIGOTT. In all probability the jury would have found that that was an idle pretense.

Mr. SOLICITOR GENERAL. The question is, the intention.

LORD CHIEF BARON. It would be sold in order that it might be used if they liked it. Mr. SOLICITOR GENERAL. I should think the direction to the jury would be, do you believe he had a fixed intention?

LORD CHIEF BARON. The word "fixed" is not in the act.

Mr. SOLICITOR GENERAL. I only use it because it is used in the case of Quincy.
Mr. BARON PIGOTT. You had better say "intention."

Mr. SOLICITOR GENERAL. I only used it because it is used in that case. Did he intend that it should be employed by the foreign belligerent power, and then the jury would say whether he had that intent or not; but I believe the meaning of Mr. Justice Story to be, that in this particular case there was not sufficient proof of intention to come within the meaning of the foreign enlistment act. That I apprehend to be the scope of the case, and no more, and I should be very sorry to extend that case; it appears to me to have gone rather far, I confess.

Mr. BARON BRAMWELL. It is a case rather against you; you do not cite it in your favor.

Mr. SOLICITOR GENERAL. No, my lord; I am citing it as the strongest case that has been used for the opposite view. I am endeavoring to explain it upon this ground, that upon the particular circumstances of that case the court thought there was not sufficient proof of a guilty intention, but I should be sorry to see that doctrine extended, and if the same case arose in these courts it might be a question whether the doctrine would be carried so far; but I was going to observe upon this case that it would be perfectly clear, I apprehend, that if the ship had been ordered by the Buenos Ayres government the offense would have been complete, and the ship would have been forfeited. I cannot doubt that for a single moment. I have observed upon this case for the purpose of endeavoring to show the precise extent to which it goes, and drawing the line beyond which it does not go. The cases of Quincy and the Santissima Trinidad upon the subject of intent, I apprehend, established this doctrine, applicable to the particular facts in those cases, that there must be a positive intention and not merely a wish, not merely a speculation that the ship may possibly be used for a hostile purpose. And let me illustrate it in this way. One or two illustrations have been put by the lord chief baron which may be used as pertinent to the case.

Mr. BARON BRAMWELL. I cannot help calling your attention to what Mr. Justice Story says here in speaking of the Altravida. He says: "Here, then, is complete evidence from the testimony introduced by the claimant himself, of an illegal outfit of the Altravida, and an enlistment of her crew within our waters for the purposes of war."

Mr. SOLICITOR GENERAL. That was when she came back, when her force was augmented; and upon that she was condemned.

Mr. BARON BRAMWELL. What I meant was that he seemed to consider that that was a necessary thing to make the contract illegal, that it should be "for the purposes of war."

Mr. SOLICITOR GENERAL. It might be, my lord, under the words "equip " and "arm." Your lordship sees, I think, how this case arose. The vessel was no doubt originally equipped and armed, and sent from Baltimore to Buenos Ayres with the instructions which I have mentioned; she was not condemned on that ground, but she returned to America, and there she received some equipments, but not of a warlike character, no more guns. She took out her guns, and put them in again, but she received some other equipments and she got some men for her tender, and upon those grounds she was condemned; she was condemned by Mr. Justice Story on the ground that her warlike force was augmented, but he says: "With respect to the first voyage I do not condemn her upon that ground, because there was not, as I suggest, sufficient proof of intention on the part of the owners to employ her in warlike service at the time she left America." That, I apprehend, is the whole scope and effect of the case; but if, on the other hand, she had been ordered by a foreign government, unquestionably she would have been condemned for her original outfit. Then, my lord, I might illustrate this case of Quincy by a case which was suggested by his lordship. Suppose we were to enact that if a man fits a skeleton key for the purpose of its being employed by a burglar in housebreaking; suppose he makes the key without any communication with the burglar at all, and merely sends it for sale in the event of his getting a good price for it, it may be said in his favor, you do not prove a guilty intention; but if the burglar orders it, then it is forfeited at once, or if the maker supplies it to order, it is forfeited both on the ground of the mens rea on the part of the burglar and of himself. So if he makes it to a certain extent, but is not quite certain whether he will finish it or not. That, I think, is Quincy's case. He goes to a certain point, and he says: I have not quite made up my mind whether I will finish it for the purpose of using it in this unlawful trade, or for use in some honest trade. You give him the benefit of the doubt; there is a locus peritentia if he has not formed a decided intention. That, I apprehend, is the explanation of those two cases. I have reverted to that point for a moment in consequence of a remark which fell from Mr. Baron Bramwell with reference to the object and intention, and with that branch of the argument I have now done; there must be a fixed intertion, and not a mere wish or desire, or calculation of possibilty.

Mr. BARON CHANNELL. There must be something which is intention.

Mr. SOLICITOR GENERAL. Yes, as distinguished from what is not intention; that really is the proper way of putting it; a mere speculation is not intention, and the Independencia was sent on speculation. If a man builds a ship and sends it abroad upon mere speculation, that is not such an intention as, according to the American courts, has been held to be enough.

Mr. BARON CHANNELL. The attorney general, in summing up, distinctly puts that to the jury.

Mr. SOLICITOR GENERAL. Yes, my lord. And one word with respect to the mischief contemplated by the act. It is not very likely, when you come to practice, that people will very often build or equip ships upon mere speculation, without any communication with foreign governments; they run a great risk in doing it; they run the risk of detection, and they run the risk of the vessel being stopped on the sea, which is a risk far greater than that applicable to arms and ammunition. Then they run the risk of when built, the vessel not suiting or not fetching a proper price; so that practically. when you come to consider the mischiefs to be guarded against, it seems to me rather a remote mischief that builders should build ships upon speculation; but the real mis chief to be guarded against is that which is likely to happen, namely, a foreign government, or their agents ordering vessels, and vessels being built to their order. That is what has happened here, no doubt, and when my learned friend said that the foreign enlistment act had not been enforced in this country before, my answer is, that when it was passed it was supposed to be effectual, and that our citizens have not violated the provisions of the act, so far as we know, until now, and therefore if the present proceeding is new, that is because the offense is new which gives rise to it.

Now, my lords, I revert to that part of the case upon which I was speaking before, namely, what must be done in pursuance of the intention. The act says, a person is to "equip, furnish, fit out, or arm." I had got so far as this, and I do not wish to go over the same ground again; it is conceded that a vessel need not be so far equipped as to be in a condition to commit hostilities. I have said as much as I mean to say upon that, in other words, that it is not necessary for the ship to be armed. Then, my lords,