I find no distinct prohibition against the building of a hull or vessel, and I feel bound, therefore, to say, that by building merely, no forfeiture is incurred. But I am of opinion that any act of equipping, furnishing, or fitting out done to the hull or vessel, of whatever nature or character that act may be, if done with the prohibited intent, is expressly within the plain language, and also within the evident spirit of the statute. The intent I take to mean an intent of the principal (who has control of the ship) having directly for its object the employment of the vessel by a foreign state, and in the equipper a like intent, and with such intent a contributory equipment of some kind necessary to such employment, and it is evident that the intents need not be derived solely from the nature of the equipments, but may be proved aliunde. It may not be easy to define in all cases the exact point at which the building of the hull ends and the act of equipping or fitting out begins, but that in each case would be for a jury to decide.

I will now state some reasons for the construction at which I have arrived. I feel bound where the legislature has used different expressions having different meanings, and has coupled them with the disjunctive "or," not to treat them as if they were coupled with the copulative "and," or as merely redundant expressions, unless I am compelled by the context to do so, but to give effect to each of them so far as they will admit of it, unless I thereby find that manifest injustice or absurdity will result. I do not find that in the present case, and I therefore do suppose that the legislature attached different meanings to the several expressions. I further think it impossible to believe that the word "and" in the American statute should have been so pointedly changed to "or" by our legislature without some object.

It was argued that the four expressions are to be construed as ejusdem generis; the word "arm" being the distinctive feature. But, in my judgment, the use of so many as four different words can hardly have been meant to express precisely the same thing; and it is obvious that the words "equip, furnish," and "fit out," are used in the section, for some purposes at least, to signify something different from the word "arm." For instance, as applicable to a transport or store-ship, they are so used. Then these words being there used, as they must be, to signify peaceful equipments, it would seem a very forced construction to say that they exclude the same meaning when applied to a ship intended to commit hostilities, although that ship equally requires peaceful equipments with a transport or store-ship.

But it was urged, and more particularly by Mr. Mellish, that the several expressions may have a several effect given to them, only that their meaning should be restricted to equipments of a distinctive character, according to the nature of the ship; and therefore that a ship intended for war must have warlike equipments.

I think that this construction would in effect be introducing into the statute words that are not to be found there, which is quite as objectionable as striking out words which are there, or it would be changing the collocation of the language for the purpose of forcing its meaning; for it is not said in the statute that those equipments alone are unlawful which shall make the ship fit in all respects for its purpose, whether as a store-ship or to commit hostilities; but those equipments are unlawful which are supplied with intent that the ship shall be employed in the service of a foreign state, and then the several services in which it shall not be so employed are enumerated, the service of committing hostilities being one of them.

Again, it is admitted by the claimants' counsel that a complete equipment is not necessary to the violation of the statute, but that a partial one is sufficient, if of the distinctive kind; and further, that as regards a war ship any warlike equipment, even short of arming, is forbidden. The consequence would be that you may not put one gun carriage or gun on board without a violation of the statute, and yet by such partial warlike equipment the ship would be no more in a position to commit hostilities than she would if she was only peacefully equipped. But it seems to me that a strange result would be produced if we were to hold that the statute intended to prohibit only warlike equipments in a ship of war, founded on the words "equip with intent to commit hostilities," which was Sir Hugh Cairns's argument; for that reasoning would drive us to say that only such warlike equipments are forbidden as would enable the ship to commit hostilities, as was argued in Quincy's case. The consequence would be that this vessel might have its pivot guns on board, and yet no offense be committed against the statute, because without the cannon balls and powder her equipment would still be useless for actually committing hostilities; so that if the intention really were to go out of port equipped with a full armament, but not to receive her ammunition on board until she was out of the English waters, the seventh section would still not be violated.

Again, with reference to the necessity of distinctive equipments, I have not heard that there are any such applicable to a store-ship, except the ordinary peaceful ones which a merchant ship requires. And if the argument of distinctive equipments will not hold as to all the several ships pointed out by the statute, I do not think that I have a right to apply it arbitrarily to one class, viz., to ships equipped with intent to commit hostilities.

As regards the meaning of the several expressions, and the necessity for the use of 29 A C-VOL. V

them in the statute, it may be that the word "equip" in its largest sense would alme have sufficed; but probably an interpretation clause would have been requisite, as it certainly means different things when applied to different subject-matters. In Falconer's Marine Dictionary it is defined as "a term frequently applied to the business of fitting a ship for sea or arming her for war," and I think, therefore, the other expres sions may be regarded as in the nature of words of interpretation of the possibly ambiguous expression "equip," and meaning the same as if the words had been a prohibition of equipment, including ships' furniture of all kinds, and arms. But because the word "arm is added to the others in order fully to express a complete description of the equipments, peaceful and warlike, of a war vessel, I feel it impossible to say that I ought so to construe the section as to deprive the other expressions, to which it is superadded, of their ordinary meaning. I do not therefore in the result find any reason for this distinctive construction. In my view the prohibited intent is the main ingre dient, and any act of equipping done in furtherance of that intent will constitute the whole offense; for assuming the same intent to be present in two persons, I do not ser the difference between the agent who did put on board this ship the cooking apparatis sufficient for one hundred and fifty or two hundred men and fitted the stanchions, and the man who might have put on board a pivot gun to have played over the low balwarks when ammunition should be supplied by some one afterward. Both would acting with a common object, and the part contributed by each would equally conduc to the fulfillment of it.

Before I could come to the conclusion contended for by the claimants in the absence of plainer words to that effect, I must believe that the legislature, when enacting a forfeiture and power to arrest a vessel, meant to deprive itself of all reasonable opportunity for exercising that power, and that too when the avowed object is to prevent the vessel leaving the English port, and not merely to punish offenders by indictment afterward. Upon this restricted construction it is practically plain that the statute would be set at defiance in one of two ways, either as was done by the Alabama, whose armaments went out in another ship, or by completing the peaceful equipments first. and then putting on board the guns as the last act in port, probably occupying a few hours at most, and giving no opportunity of seizure and prevention. In fine, I see no more reason for saying that the ship must, in order to violate the statute, be so equipped in our ports with arms as to be ready to commit hostilities on leaving them, than for saying that she must be sufficiently manned also, without which she would certainly not be in such a condition. I cannot so restrict the statute by construction without feeling that I should virtually repeal it.

In arriving at my construction I do not feel pressed by Sir Hugh Cairns's argument of inconsistency in drawing so sharp a line between the building and the equipping, for the same might be said of the distinction which does exist between selling an armed vessel to a belligerent and arming one with the requisite intent under an order of the same purchaser; the line is equally sharp, and the only difference is in the place where it is to be drawn. Indeed, this argument is rather to be addressed to the lawgiver than to the expounder, if there be inconsistency in the legislation. Admitting, as I do, that there is inconsistency in the state of this law as to what is lawful and what is not. I believe nevertheless that the lesser amount of inconsistency is incurred by adhering to the ordinary meaning of the language employed as I have above construed it.

Upon this view of the statute, in my opinion, the proper direction to the jury would have been that they should first look to see whether the equippers had had the intertion which I have above mentioned, together also with the intent of the principal as explained by my brother Channell; and, secondly, whether with such intent they had done any act toward equipping, furnishing, or fitting out the ship, beyond the mere work of building the hull of the vessel, or had attempted or endeavored so to do; and I agree with the definition of the attempt which my brethren have given. But looking at the whole of the direction of the lord chief baron, (which I need not criticise at length after my brother Channell's judgment,) although his lordship does appear to have left the question of equipping, furnishing, or fitting out to the jury in the alter native, yet I think there are other passages of the summing up which are inconsistent. and which would have a tendency to mislead them. I need not recapitulate them, as my brother Channell has done so at full length, and I therefore conclude by saying that I think that the jury should have been distinctly told that the intent as before defined being established to their satisfaction, any act of equipping in furtherance of such intention would be unlawful within the meaning of the statute.

I am also further of opinion that, even if my construction of the statute be incorrect, and if it ought to be construed as Mr. Mellish contended, that is, as prohibiting only equipments of a distinctive character, yet that upon the evidence above stated there was sufficient upon which to direct the jury that the claimants had supplied distinctive equipments within that meaning of the act. The evidence to which I allude is the proof of the fitting stanchions for hammock racks and the cooking apparatus for a crew of one hundred and fifty or two hundred people to a war vessel. I do not find that

such direction was given, and I am therefore of opinion that, upon the ground of an insufficient direction, there ought to be a new trial.

On the other ground, that the verdict was against the evidence, I agree with my brother Channell, that it is unnecessary for me to decide it, as I think that the rule should be made absolute on the ground of insufficient direction.

Mr. ATTORNEY GENERAL. My lord, the court being equally divided in opinion, if it is your lordship's desire that a judgment should be given, I believe it is necessary that some arrangement should be made for that purpose, that by the consent of one of the judges who has delivered an opinion, the rule should be either discharged or made absolute, otherwise we should have no judgment at all which could be taken anywhere else.

LORD CHIEF BARON. The officer of the court, the Queen's remembrancer, says, that according to the practice you would have an appeal either way; but it would, perhaps, be better if there were an apparent judgment of the court, deciding one way or the other, in order to remove every possible doubt.

Mr. BARON PIGOTT. Then I will withdraw my judgment.

Mr. BARON CHANNELL. According to the rules which the court made on the opening of this argument, in order to assimilate this case to an ordinary civil action, when a rule for a new trial drops on the ground that the court is equally divided, there is a right of appeal.

LORD CHIEF BARON. My brother Pigott withdraws his judgment.

Mr. BARON PIGOTT. Yes.

LORD CHIEF BARON. Then the rule will be discharged.

Mr. ATTORNEY GENERAL. That is quite enough, my lord.

IN THE HOUSE OF LORDS.

Present: The Lord Chancellor, Lord Cranworth, Lord St. Leonards, Lord Wensleydale, Lord Chelmsford, and Lord Kingsdown.

BETWEEN HER MAJESTY'S ATTORNEY GENERAL, appellant, and HERMAN JAMES SILLEM AND OTHERS, claiming the Alexandra, respondents.

Decisions of the lords sitting on appeal.

FRIDAY, March 11, 1864.

LORD CHANCELLOR. My lords, this appeal depends on the question whether the rules made by the Court of Exchequer on the 4th of November, 1863, are warranted by the power contained in the twenty-sixth section of the statute of the twenty-second and twenty-third year of the Queen, commonly called the Queen's remembrancer's act. The second common law procedure act, which passed in the year 1854, contains many important enactments with reference to the jurisdiction of the superior courts of common law, and some of the most important are the provisions that create new rights of appeal. In jury trials at common law grave questions frequently arise, and are decided on motions for a new trial or on rules to enter a verdict or nonsuit; but from the decisions of the court so given there was not before the act of 1854 any right of appeal. The creation of a new right of appeal is plainly an act which requires legislative authority. The court from which the appeal is given and the court to which it is given must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the legislature to have given to either tribunal, that is, to the court of the first instance and to the court of error or appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one court and an extension of the jurisdiction of another. A power to regulate the practice of a court does not involve or imply any power to alter the extent or nature of its jurisdiction. Accordingly, it was necessary in the act of 1854, not only to give new rights of appeal, but to define and bind certain courts to entertain the appeal so given, and this is done by the thirtysixth section of the act, which declares that the court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for the purposes of the act.

The common law procedure act of 1854 was, like the act of 1852, limited to the superior courts of common law, and from the manner in which the act was expressed these words intentionally excluded that court which is called the revenue side of the court of exchequer. It required, therefore, another exercise of legislative authority to make the special provisions of the act of 1854 which had created new rights of appeal in the other courts applicable to suits as between the Crown and the subject in the court on the revenue side of the exchequer. In making the orders now in question the

barons of the court of exchequer have assumed that a discretionary power to exercise this legislative authority or not, and thereby to confer or to withhold this important benefit of new rights of appeal, has been given to them by the twenty-sixth section of the act of 1859. If the legislature has done this it has done a thing which is very irregular, and which antecedently would seem to be very improbable.

It is not reasonable to suppose that in matters affecting the taxation of the subject the legislature would abdicate its own functions, and delegate to the barons of the exchequer the power of determining at their pleasure whether in certain cases there should or should not be a right of appeal as between the subject and the Crown.

This improbability is much increased when attention is directed to the particular provisions of the statute in question, namely, the Queen's remembrancer's act. The tenth section embodies and applies (with some slight differences) to the revenue side of the court the provisions as to error and appeal contained in the forty-sixth section of the common law procedure act of 1852, and the thirty-second section of the act of 1854.

New rights of appeal are created and regulated by the twelfth, thirteenth, fourteenth, and fifteenth sections. By the sixteenth section special legislative provisions as to the examination and attendance of witnesses, together with the provisions contained in the forty-sixth, forty-seventh, forty-eighth, and forty-ninth sections of the act of 1554, are expressly extended to suits and proceedings on the revenue side of the Court of Exchequer; and in the eighteenth and nineteenth sections are contained express enactments regulating proceedings in error on the revenue side of the court, and embodying the one hundred and forty-sixth and one hundred and forty-seventh sections of the act of 1852; and by the twentieth section the power of appealing to a court of error by means of a bill of exceptions is for the first time created on the revenue side of the court.

Suits, therefore, between the Crown and the subject on the revenue side of the exchequer are by these express enactments put on the same footing with respect to proceedings in error as suits between subject and subject in the courts of common law, with the exception only of the right of appeal from interlocutory orders given by the thirty-fourth and thirty-fifth sections of the act of 1854. It is difficult to resist the impression that these last-mentioned rights of appeal were intentionally omitted by the legislature as not being expedient in revenue cases, but it is much more difficult to accept the proposition of the Crown, that these rights were left by the legislature to be conferred or not, at the pleasure of the chief baron and two or more barons of the Court of Exchequer. These improbabilities and difficulties must of course yield to any enactment expressly declaring that such is the intention of the legislature, but they are of sufficient weight to render it necessary that the language of such alleged enactment shall be clear and unequivocal, and not admit of any other reasonable construction.

With these observations we come to the construction of the twenty-sixth section of the statute. It contains two distinct powers given to the lord chief baron and two er more barons of the court.

By the first power they are authorized to make rules and orders as to the process. practice, and mode of pleading on the revenue side of the court. Here the word “praetice" is used in its common and ordinary sense, as denoting the rules that make or guide the cursus curia, and regulate the proceedings in a cause within the walls or lit its of the court itself. Under this power any rule might be laid down by the baron for the guidance of their own proceedings that did not require express legislative sanetion. By the second power conferred by the twenty-sixth section, the lord chief bara and two other barons are authorized to extend, apply, and adapt to the revenue side ary of the provisions of the common law procedure acts of 1852 and 1854, and any of the rules of pleading and practice on the plea side as may seem to them expedient for that is, for the purpose of making the "process, practice, and mode of pleading on the revenue side as nearly as may be uniform with the process, practice, and mode of pleading on the plea side."

First, it was admitted on all hands, and if not, it is clear, that the provisions in the acts of 1852 and 1854, which may be thus extended, applied, and adapted, must be prove sions relating to process, practice, and mode of dealing. Uniformity of process, praetice, and pleading on both sides of the court is the object of power, and defines its

" extent.

Secondly, it is very difficult to give to the words "process, practice, and mode of pleading," in this second power, a different meaning or extent of signification from that which they bear in the first power given by the prior part of the section.

Taking then the word "practice" as equivalent to the cursus curia, or regulations of proceedings within the court itself, the question is whether the thirty-fourth, thirtyfifth, and thirty-sixth sections of the act of 1854 can with any propriety of language be denominated provisions or rules respecting process, practice, and mode of pleading This is a question of verbal nicety depending on nice shades of meaning in a word. The thirty-fourth, thirty-fifth, and thirty-sixth sections of the act of 1854 create, asl

ave said, new rights of appeal. An appeal is the right of entering a superior court, and invoking its aid and interposition to redress the error of the court below. It eems absurd to denominate this paramount right part of the practice of the inferior ribunal. The mode of proceeding may be regulated partly by the practice of the inferior, and partly by the practice of the superior tribunal, but the appeal itself is wholly independent of these rules of practice. The right to bring an action is very distinct from the regulations that apply to the action when brought, and which constitute the practice of the court in which it is instituted. So the thirty-fourth and thirty-fifth sections of the act of 1854, which create new rights of appeal, and the thirty-sixth section, which defines and binds certain courts to receive and determine such appeals, cannot with any accuracy or propriety be termed provisions which relate to process, practice, or mode of pleading, either in the court appealed from or that to which the appeal is to be made. They are enactments creating new relations between certain courts in cases which are defined, and they are as distinct from rules of practice as international law is distinct from municipal.

On reading the rules in question which profess to have been made under the authority of the twenty-sixth section no one using the common language of lawyers would call them provisions relating to the practice of the Court of Exchequer on the revenue side. For the third rule is that the court of error, the Exchequer Chamber, and the House of Lords shall be courts of appeal for this purpose; that is, for the purpose of the appeal given by the first and second rules; and the sixth, seventh, eight, and ninth rules prescribe the duty and define the authority of these courts of appeal. These rules are so many legislative enactments purporting to create a new jurisdiction in the Court of Exchequer Chamber and House of Lords, and prescribing the mode in which such new jurisdiction shall be exercised. It is simply an incorrect use of language to call such enactments provisions respecting the process, practice, or mode of pleading in the Court of Exchequer; but, unless they can be properly and strictly so denominated, there is not in my opinion any authority to make such rules conferred by the twenty-sixth section of the Queen's remembrancer's act.

The principal argument of the attorney general was, that the words "process, practice, and mode of pleading" were equivalent to the word "procedure," and that the word “procedure" denotes the whole course of a cause, from its commencement in the court of first instance until its final adjudication in the ultimate court of appeal, and he then contends that a provision giving a new right of appeal may be properly termed a provision relating to the procedure of a cause. I cannot accept either of these two positions. The words "process, practice, and mode of pleading" are not used in the abstract, but always with reference to some court or courts, and so used they have a well understood and definite meaning. They are used in the twenty-sixth section in connection with the plea side and revenue side of the Court of Exchequer, and properly denote the proceedings in a cause on either side within the walls of that tribunal. They have no extra territorial operation; but if they receive the larger construction of the attorney general it would follow that under the twenty-sixth section the barons of the exchequer would have power to make rules as to procedure in the House of Lords, which would be absurd.

It was also urged by the attorney general that the proceeding to error is now made step in the cause, that is, a step in procedure, and if procedure be, as he contends, equivalent to process, practice, and mode of pleading, it is a step within the meaning of those words. The fallacy of this ingenious verbal argument lies, as I have already observed, in taking the word "procedure" in the abstract, and substituting it for “ process, practice, and mode of pleading, also taken abstractedly; that is, taken in a sense and manner in which they are never found in the acts in question. The words "step in the cause" are used, as is well known, for the purpose of denoting that in future it should be necssary to sue out a new writ for the purpose of entering a court of error. But it has been further contended that inasmuch as by the twentieth section of the Queen's remembrancers act the proceeding by bill of exception is extended to the revenue side, by which any error or omission in the ruling of a judge at the trial may be brought before a court of error, the giving of an appeal from the judgment of the court in banc on the same question of error in the ruling is no more than a regulation of form, and not the introduction of a new right of appeal.

But the observation is not correct in point of fact, for the bill of exceptions is to the ruling of the judge at the trial; whereas the appeal created by the thirty-fifth section of the act of 1854 is from a different judgment, viz, the decision of the court in banco. But the answer to the whole of this argument is, that although the bill of exceptions was a well-known proceeding in the courts, except on the revenue side of the exchequer, auterior to the year 1854, yet the legislature deemed it necessary to create the new rights of appeal which are given by the thirty-fourth and thirty-fifth sections of the act of 1854 by express enactments for the purpose. This argument, therefore, by bringing into immediate contrast the express mention of the proceeding by bill of exceptions, with the total silence of the legislature as to the appeals given by the thirty-fourth and thirty-fifth sections of the act of 1854, serves to confirm the conclusion, that the legis