informed on credible and incontestible evidence-I have a right to take it so far that the Alabama, or No. 290, as she was called, has been built for the express purpose, and is being completed with the direct intent that she shall, as soon as safely she can out of reach of British law, take on board her armament, and then immediately assume the character and proceed on the operations of a ship of war-I put it to you some time ago, supposing that to be done once, and supposing the knowledge of all that to be brought to the officers of the British government, and then supposing the same thing to happen the next day or the next week, a similar ship, a similar destination, a similar preparation, and a tender or other vessel lying outside in like manner to furnish and complete the armament; and if you suppose that such instances recurring— and if the law would be as my learned friend contends in one instance, it would be so in one thousand, or five thousand, or ten thousand-supposing those cases to be recurring from time to time, and the officers of the British government to be distinctly informed of them, and to be affected with distinct and clear notice, and yet no proceeding taken to prevent the departure of any one of those vessels from the British port—I ask you whether the provisions of this section would not be rendered entirely inoperative by reason of the easy and obvious means of evading the law almost under view of the officers and ministers of that law? I then appeal to the language of the statute. That is an observation to my lord. I find that "arming" is used as an alternative expression, and I find that it is used equally as an alternative expression, both where it is spoken of as directing an arming and where it is spoken of as endeavoring or being concerned in the arming or in the equipment of the vessel.

LORD CHIEF BARON POLLOCK. I have got the word "equip" in Webster's Dictionary: "Equip, to furnish with arms, or a complete suit of arms for military service.” Thus we say, to equip men or troops for war, to equip a body of infantry or cavalry. But the word seems to include not only arms, but clothing, baggage, utensils, tents, and so on. Then, again, the third meaning is, "To furnish with men, artillery, and munitions of war, as a ship." Hence, in common language, "to fit for sea, to furnish with whatever is necessary for a voyage."

The ATTORNEY GENERAL. My lord, I must still address your lordship on the argument of my learned friend, to which I have now arrived, on the construction which is to be put on this seventh section. My learned friend, as I understood him, contended that that raised an argument on the use of the words "or with intent to cruise or commit hostility," occurring rather low down in the section; and he contended that those words were to be disjoined from the previous expression, as to being employed in the service of a foreign power. Now, my lord, the words of this section, passing over the difference between "equipping" and "endeavoring and being concerned," and so on, point to the equipment or fitting out, in the first place; and it then describes, "with intent or in order that such ship or vessel be in the service (I may take it short) of a foreign state as a transport or storeship." Now, my learned friend contended that with the expression "storeship" the connection of the ship being employed in the service of a foreign state ended, and that those words, therefore, could only apply to the case of a storeship, and would not apply to the other case mentioned, of the intent of the use of the vessel, being that it should cruise or commit hostilities.

LORD CHIEF BARON POLLOCK. In that I own I do not agree. I think that those four words were not meant three of them to be applied to the transport, and the fourth to the vessel of war. I think they were all meant to apply to the same matters.

The ATTORNEY GENERAL. I was only going to make this observation, which would seem to my mind to be conclusive on the correctness of this view. If my learned friend's argument in this respect were well founded, then this would follow, that you would violate the act if you fitted out, to be employed in the service of a foreign state, a transport or storeship, without reference to the existence of a state of war. Therefore, a merchant or a ship-builder at Liverpool or at Plymouth, building a storeship, say, for the Portuguese or the Spanish government-governments which have no war with any other state-according to my learned friend, would violate the earlier provisions of the section. And there is this further remark, that when he comes to "intent to cruise or commit hostility," disjoining that from "being employed in the service of a foreign government," he would make it descriptive of that to punish or to repress which no act of Parliament would be required, for it would be flat and simple piracy, to be visited with the consequences of that crime on any British subject, which I think my learned friend described as "cruising on his own account." It would come to this, that you could not, without violating an act of Parliament, build a storeship for a foreign government at peace with all the world; nor would you violate this section if, in cruising and committing hostilities, you did so in the service of a belligerent state. It appears to me, upon those two grounds, that that part of the argument of my learned friend so completely fails, that I will not, especially after the intimation of your lordship's opinion, occupy more time upon it.

Then I think my learned friend referred to the eighth section, which prohibits the adding to the number of guns of vessels which are already in the service of a bellige rent state. It is, that any person who, either within the seas or in any part of her

Majesty's dominions beyond the seas, without leave or license, shall, by adding to the number of guns of the vessel, or by changing those on board for other guns, or by the addition of any equipment of war, (here is the offense,) “increase or augment the warlike force of the ship, shall be visited with the consequences of a violation of the act." Therefore, we have, in the section immediately following, a section which is properly to be considered a prohibition of increasing the warlike force of a vessel already furnished and cruising as a vessel of war. Whereas, according to my learned friend's construction, you might add in effect to the navy of either belligerent vessels of war, with the guns and munitions complete, provided only you either do not put on board a complete armament before the vessel leaves the ports of Great Britain, or provided you (as my learned friend calls it) cruise on your own account as a pirate and do not take service under any lawful flag. My learned friend (as your lordship and the jury will recollect) entered into a good deal of comment as to what had happened with reference to the discussion pro and con on the foreign enlistment act, and he sought (I suppose such must have been the intention of my learned friend) in some way to influence your lordship's decision on the meaning of the act of Parliament as it stands, by reference to discussions and observations of very eminent statesmen, my learned friend at the same time discreetly availing himself of the opinions of certain of those eminent men only; for my learned friend knows well that there was considerable diversity of opinion expressed on the subject. Now, my lord, the debates, as your lordship is well aware, which took place previous to the passing of this act were frequent. Men of the greatest parliamentary eloquence and genius took part in them on the one side and the other, and very opposite opinions were expressed, as happens when you have a debate-the opposition taking one view and the government another-very opposite opinions were put forward in the statements and in the speeches of very eminent authorities. When I tell you that the debaters on the introduction of this bill included Mr. Canning, Sir James Mackintosh, Sir William Scott, afterward Lord Stowell, Mr. Scarlett, Mr. Denman, and eminent members of the legislature of that class, I need not apprise you that if any of you, after this inquiry has come to an end, feel disposed to sit down and obtain the volume of Hansard for the year 1819, and to occupy a leisure hour or two in reading a very excellent report of very eloquent speeches in Parliament, you have the means of so entertaining and instructing yourselves; but I cannot perceive the bearing of those discussions or of the observations of those statesmen on the question which we have now to discuss. I think the case of necessity occupies and will occupy quite enough of your time and of the time of my lord to render it the duty of counsel not to engage your attention and to occupy your time in matters which are not strictly relevant; and I will therefore pass away without any more immediate or detailed comment on the observations of my learned friend by repeating the remark, that there are observations on the other side which might be cited and might be laid before you. But I think that form of answering what my learned friend has said would be unfair to you and an unfair use of the public time.

There was a subject to which my learned friend referred upon which I will simply say a word. He alluded to, and he went at some length into, the history of what is called generally the Terceira expedition. I did not myself perceive quite the bearing, even allowing the general latitude which my learned friend took of that expedition, or of the circumstances connected with it at all events, on the defendants' case. I believe the fact to be, as a matter of history, that that expedition was highly disapproved of by the government of this country, who showed their disapprobation in a very strong and not warrantable manner, according to the law of nations, for the ships of that expedition were seized in the waters of a neutral and friendly power, and therefore, so far as the views and action of the government of that day itself were concerned, they did not view that expedition in a favorable light, but rather seem to have dealt with it with a high hand-I admit as a violation of international law. Mr. Huskisson's remarks I will not further advert to; they come within the observations made as to the speeches of writers and eminent statesmen on the one side and the other. Mr. Huskisson, at the time when he made the observation to which my learned friend has referred, was the leader of the opposition in the House; and it may be pretty certain, if we could have access to the observations of the leader for the government, that we should find very opposite and very conflicting views on the matter put forward.

But now I come to the authorities which my learned friend cited, and which I mentioned just now to my lord-I mean the cases of the Independencia and the Alfred. Upon those I have to make this observation, and this only. They were founded on the American statute, but I am not aware that there is any difference material to the present consideration between the language of the statute of that country and the language of our own foreign enlistment act.

LORD CHIEF BARON. It is given by Lord Chancellor Kent in his commentaries; I think they are as nearly as possible the same.

Mr. ATTORNEY GENERAL. I think they have not got the word "or," but I have got the word "and."

8 A C-VOL. V

LORD CHIEF BARON. We lawyers sometimes read the word "or" for " and," and "and" for "or."

Mr. ATTORNEY GENERAL. Yes, my lord, no doubt in the stress of argument we do very great violence to words, but in ordinary cases, as your lordship is well aware, we, at least those who rule us, and lay down the law with authority, prescribe tó

us-

LORD CHIEF BARON. Considering that those four words are used, as I think they are, in the same sense, all of them, it must be a matter of perfect indifference whether you say "or" or "and," because if you do the one you do all, and whether it is used disjunctively or copulatively is immaterial.

Mr. ATTORNEY GENERAL. If the word "and" were used, and we were permitted to read it as "or," it would perfectly square with the observation which I am addressing your lordship. I am relieved from any difficulty of that kind, because I find the word "or" to be the word actually employed, and I resort to the general rule of construction that you are to give to the words in the act of Parliament, as to the words in any other legal instrument submitted for legal construction, their ordinary grammatical meaning, unless there be something in the context which assigns such meaning which would bring a result unjust or absurd.

My lord, I find no difficulty in dealing with this word "or" in its ordinary sense, and I find very great convenience, as I think I shall show your lordship, in adopting that ordinary view of its signification. My lord, on this point, and also on another point that was raised, namely, the absence of the completion of the vessel, that is to say, that the vessel was only in progress, and was not a completed vessel-on that, and also on the construction of the words "fit or arm, or assisting or being concerned in," and so on, I should wish to refer your lordship to a case in the Supreme Court of the United States-the United States against Quincy.

LORD CHIEF BARON. What is the book of the report?

Mr. ATTORNEY GENERAL. I shall principally read from the tenth volume of Curtis's Reports of the decisions of the Supreme Court. It begins at page 189.

SIR HUGH CAIRNS. We have got a report; I have it reported in 6th* Peters.

Mr. ATTORNEY GENERAL. It is the same case. This is a sort of digest or collection of decisions, but it is a work with the authority of one of the assistant judges of the court, and is a work of great authority.

LORD CHIEF BARON. What is the name of the case?

Mr. ATTORNEY GENERAL. The United States against Quincy. My lord, as this is the only authority which I think I shall have to trouble your lordship with, at all events in any detail, and as it really is a case throwing very considerable light upon any matters which are important in the present case, I will take the liberty of reading the judgment, which, I am happy to say, is not one of very great length.

LORD CHIEF BARON. I think in that judgment there are four findings of law by the court, and then, afterward, four others.

SIR HUGH CAIRNS. Four directions.

LORD CHIEF BARON. Four directions of law.

Mr. ATTORNEY GENERAL. As my learned friend has mentioned, the same case is reported at great length (for it contains the arguments of counsel) in the report mentioned, I mean 6th Peters, and I may find it convenient, as part of my observations to your lordship, to adopt a portion of the argument of one of the counsel, whose arguments are reported in Peters but do not appear in the book from which I am about to read the judgment, I mean the 10th volume of Curtis. My lord, the note of that case is this: "Under the third section of the act of April, 1818," (that is the American foreign enlistment act, which I mentioned,) "it is not necessary that the vessel should be armed or in a condition to commit hostility on leaving the United States."

LORD CHIEF BARON. The words of the act are "fitting or arming." I understand in the American act they are "and arming."

Mr. ATTORNEY GENERAL. It is "and."

LORD CHIEF BARON. The words in the American act are the same as ours.

Mr. ATTORNEY GENERAL. The word "and" occurs in one part of the section, and the word "or" in another.

LORD CHIEF BARON. I suppose they draw the acts of Parliament in America very much as we do in England?

Mr. ATTORNEY GENERAL. When your lordship hears this judgment, it may appear that this difference was on purpose, and not inadvertently or accidental. It is section thirteen. I have the section of the statute before me, which is dated April the 20th, 1818. It is entitled "An act in addition to the act for the punishment of certain crimes against the United States, and to repeal the acts therein mentioned."

The third section of the American act provides, "That if any person shall, within the limits of the United States, fit out or arm, and attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, and arming." Therefore, when we come to the "knowingly be concerned," we have

* Vide 6 Peters, pp. 445-469. Ed. 1832. The United States v. John D. Quincy.

the "and" changed to "or," "of any ship or vessel with intent that the said ship or vessel shall be employed in the service of any foreign prince or state, or of any colony, subjects, or people, to cruise or commit hostilities against the district, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel to the intent that she may be employed as aforesaid; every person so offending shall be deemed guilty of a misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof shall be forfeited, one-half to the use of the informer, and the other half to the use of the United States."

Now, with that section in mind, let us see what the judgment of the court was in the case of Quincy's. The note says: "Under the third section of the act, it is not necessary that the vessel should be armed or in a condition to commit hostilities on leaving the United States, in order to convict one indicted for being concerned in fitting out a vessel with intent that she should be so employed." I do not know whether your lordship has a copy of the American act or not?

LORD CHIEF BARON POLLOCK. No, I have not.

The ATTORNEY GENERAL. Would your lordship allow me to hand it up? (The act of Congress was handed to his lordship.)† Your lordship will find that in that section, as far as regards equipping, or attempting or endeavoring to equip, or procuring to equip, the words are in the conjunctive; but when you come to that which follows, namely, "the being concerned in fitting out," there the word is "or." And this decision, therefore, is upon that portion of the American statute, which, in its language, precisely agrees with the general language of our act of Parliament, the American act of Parliament making a difference as to the conjunctive or disjunctive in one particular only, our act of Parliament adopting and observing that distinction throughout. But, as your lordship will now understand, this case is an authority upon the whole of our section, (because it proceeds upon that part of the American section which agrees with the whole of ours,) that it is not necessary that the vessels should be armed or in a condition to commit hostilities on leaving the United States, in order to convict one indicted for being concerned in fitting out a vessel "with intent that she may be employed as aforesaid," when "every person so offending shall be deemed guilty." The court adjourned for a short time.

Gentlemen, I am sorry to interpose this legal argument in the course of my address, but it is difficult to avoid doing so after the course taken by my learned friend Sir Hugh Cairns. I was proceeding to read this judgment in the case of The United States rs. Quincy. It is delivered by Judge Thompson, and he states: "The indictment upon which the defendant was put upon his trial contains a number of counts to which the testimony did not apply, and which are not drawn in question. The twelfth and thirteenth are the only points to which the evidence applied, and the offense charged in each of these is substantially the same, to wit: that the said John D. Quincy, on the 31st day of December, 1828, at the district of Maryland, &c., with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolivar, otherwise called Las Damas Argentinas, with intent that such vessel should be employed in the service of a foreign people-that is to say, in the services of the United Provinces of Rio de la Plata-to commit hostilities against the subjects of a foreign prince-that is to say, against the subjects of his Imperial Majesty the constitutional Emperor and perpetual defender of Brazil, with whom the United States then were and still are at peace, against the form of the act of Congress in such case made and provided." Therefore it would appear to be really an indictment. I do not know that it would be material. An information is a public proceeding, and I apprehend that the rules of evidence would be the same. The act in question, in the sixth volume of the Laws of the United States, declares that, "if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming." And I may mention here to you, that in the present information the charge is made in the various ways, namely, "equipping or fitting out, or attempting or endeavoring, or being engaged in:" that may be taken, "to bring him within the words of the act;" it is not necessary to charge him with being knowingly concerned in fitting out and arming. The words are fitting out or arming; either will constitute the offense-that is, when you adopt the words "being concerned," then it is "being concerned in fitting out or arming." He is only charged with being knowingly concerned in the furnishing, fitting out, or arming. This case came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and on the points and questions in which the judges of the said circuit court were opposed in

*Vide 6 Peters, pp. 445-469. Ed. 1832. The United States v. John D. Quincy.

+ Vide United States foreign enlistment act, (act of Congress, c. 88. April 20, 1818,) post.

९

opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; in consideration whereof it is the opinion of this court, 1. 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; therefore, the first instruction applied for on the part of the defendant must be denied, and that on the part of the United States given. 2. That the second and third instructions asked for on the part of the defendant should also be given." That is the fourth instruction-that is, as to the Rio de la Plata, whether it was to be considered a state. In the original report in Peters, the arguments of counsel are given, as well as a full statement of the facts.

LORD CHIEF BARON POLLOCK. Is that in Peters's Report or in Curtis?

The ATTORNEY GENERAL. I was about to cite a passage from the argument of counsel to use it as my own, which is in page 451. I understand your lordship has the case in 6th Peters.

LORD CHIEF BARON POLLOCK. I have it before me now-Mr. Williams in reply.

The ATTORNEY GENERAL. Yes, my lord, " commented for the United States in support of their first prayer, that the guilty intention having been proved to have existed in the mind of the traverser in the United States, and the guilty enterprise having actually commenced there, the traverser is guilty of a violation of the third section of the act of the 20th of April, 1818, although the equipments were not completed in the United States, and although the cruise was not commenced, nor the Bolivar prepared to commence her cruise, until after her arrival in St. Thomas." LORD CHIEF BARON POLLOCK. Where is that?

The ATTORNEY GENERAL. I am reading from the arguments of Mr. Williams, the counsel, at page 451. The section in question punishes "the fitting out and arming, the attempting to fit out and arm, the procuring to be fitted out and armed;" and with the view to comprehend all who shall have any participation in disturbing the neutral relations of the United States, it punishes those "who shall be knowingly concerned in the furnishing, fitting out, or arming any ship or vessel with intent," &c. Then, in the next sentence but one, he argues, "If it be necessary for the completion of the offense that the vessel should not only be fitted out but also armed, it is manifest that this important act of Congress, required by the laws of nations, and essential to preserve the peace of this country with foreign nations, will become a dead letter; for it is not only easy to evade its provisions, but at least equally convenient to do so, by having some additional equipments, however inconsiderable, to be effected abroad. This posi tion admits that the attempt to fit out and arm, however small the progress therein, is an offense, while the complete fitting out, having a commission on board, with the most flagrant intention to privateer, is no infringement of the act. The slightest augmentation to an armed vessel is undeniably an offense under the fifth section, as it is under the eighth section. The policy and scope of this old law, so far from restraining the express terms used in this section, afford the strongest aid towards a literal construction of those terms. The twelfth and thirteenth count of this indictment, and the first prayer, are drawn in the very words of the third section of the act in question; and if these counts and this prayer are not sustained, it must be on the ground that the act ought to be interpreted differently from its obvious and literal meaning. The reason for a strained interpretation, which will have the effect of defeating and repealing this wholesome statute, will scarcely prevail with this court, and the authorities will be found to overthrow such an interpretation and to support that which is insisted on by the prosecution. The exact and faithful discharge of the duties which a neutral position imposes upon governments is among the highest and most important of all national duties. Honor and interest concur in making it especially binding on our own government." ." I will apply these terms to the British government, and while this conduct has in a very great degree promoted the prosperity of this country, it has placed the policy and character of the nation in a high and elevated position in the estimation of other powers. Then there are authorities cited. In the third circuit and Pennsylvania district a decision was made upon the words on which this indictment was drawn, and it was there decided, in the case of The United States vs. Gurnet, 2 Dall. 321, that the converting a ship from her original destination with intent to commit hostilities, or, in other words, converting a merchant ship into a vessel of war, must be decreed an original outfit, for the act would otherwise become nugatory and inoperative. It is the conversion from her peaceable use to the warlike purpose that constitutes the offense. Then it appears that the vessel to which that case referred never actually proceeded on a cruise, and yet Gurnet was convicted. Whereas he argues, "in the case at bar, the Bolivar having actually performed her cruise, and made captures of vessels and property of nations with whom the United States were at peace, no room is left for doubting the object of her outfit in the port of Baltimore." But of course it was necessary that the act should be completed within the territories of the United States, and it was therefore held that under that portion of the statute in which the word "or," and not