LORD CHIEF BARON. I believe that, while in this country, the person to whom you have alluded constituted himself sovereign of the order of the Green Dragon, and made knights grand crosses, and created dukes and marquises without end.

Mr. ATTORNEY GENERAL. I recollect that in those debates to which my learned friend has referred, one of the speakers (I am not quite sure whether it was not the first Lord Ripon) speaks of him as a captain whose world was his ship, and whose court was there, and whose army was there, and comprehended everything in it. He seems, no doubt, to have been a very singular personage; but it would be a very singular thing if it should be held that because the strange exploits of that personage were the immediate occasion of the passing of that act, therefore you are to cut it down to the suppression of future Sir Gregor McGregors, and future Green Dragons, and ships of war, which were to be the world to their captains. We know that these were times when there was certainly a very remarkable disposition to enlarge the construction of statutes upon very slender grounds. I think that we have long got out of that habit even with statutes not penal, and I am certainly not asking your lordships to construe a statute which names Sir Gregor McGregor only, as applying to all the rest of the world; but, on the other hand, I must protest against the doctrine that a statute which extends to all the rest of the world, is to be restrained to Sir Gregor McGregor; which is the substance of my learned friend's argument.

Now, my learned friend, Sir Hugh Cairns, said another thing, which I have already noticed, but upon which I must make a further observation, connected with these clauses. He said that these clauses have nothing to do with international obligations. I say that they have quite as much to do with international obligations as the other clauses have; because such things as were done, the levying of troops in England, organizing, drilling, and disciplining them in England, and parading them through the streets of London, with a view to invade the Spanish provinces of South America, were as much acts of proximate hostility as any equipment of ships could be; and, in fact, the case to which I referred your lordships, in Wharton's American Law, of the prosecution of Workman and Kerr for an expedition against Mexico, illustrates that. That was a case in point. Troops do not always require to go by sea. An expedition of soldiers in Canada might be organized and drilled there, and pass over the frontier. It is therefore plain that the injury may be quite as great to the foreign government with regard to men as it can be with reference to ships.

Now, my lords, I wish your lordships to observe one other thing upon the second clause before I leave it; it is an observation which we shall have constantly to repeat in the examination of this statute. The legislature had before them the American statute; they desired to make the British act an instrument of a wider scope, and not subject to the evasions and to the difficulties found in that statute; and even in this second clause we shall observe that fact; because both in the American statute of 1793 and in the American statute of 1818 your lordships will find that the second clause (I take the act of 1818) makes an exception from the enlistment clauses, and expresses it in these words: "that this act shall not be construed to extend to any subject or citizen of any foreign prince," &c., "who shall transiently be within the United States, and shall, on board of any vessel of war, letter of marque, or privateer, which at the time of its arrival within the United States was fitted and equipped as such, enlist or enter himself, or hire or retain another subject or citizen of the same foreign prince," &c., "who is transiently within the United States, to enlist or enter himself to serve such foreign prince," &c., "on board such vessel of war letter of marque, or privateer, if the United States shall then be at peace with such foreign prince," &c. Now, that is an exception which seems very reasonable in its principle, namely, in favor of persons owing a transient allegiance, who by one of their own countrymen, who is also transiently within the United States, may be enlisted to serve in the armies of their own country. I do not think that it is limited to that; but there is no such exception in the English act. We have chosen to be stricter, and have not allowed the thing to be done on any pretence whatever. Of course the penalty against serving ubicunque gentium must be limited to natural-born subjects, because we cannot legislate for other parts of the world. But when you come to the latter part of the clause, no person, whether he be here transiently or permanently, be he a citizen of this or any other country in the world, may engage any other person not only to enlist, but to go abroad from this country for the purpose of enlistment. Nothing can be stronger to show the intention of our government to cut off all the difficulties and means of evasion by words covering every case out of which evasion might rise.

My lords, I now come to the seventh clause of the English act. Now, here, the first thing which I will take the liberty of doing is, to ask your lordships to note (perhaps I may not myself have noticed every one of them) the differences which I have noticed in this and in the other clause relating to ships between the English and the American statutes. In the first place, my lords, we have throughout in the English act the disjunctive for the conjunctive; a change pregnant with purpose and with meaning. Then secondly, whereas in the American statute the word "equip" is not used in any of those portions of the act which define and describe the offense, but only incidentally

comes in for another purpose later in the clause, we have in the English statute that word "equip" used throughout. The American words are these: "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;" the word "equip" not being mentioned there. We find that the equipment is afterward mentioned but only incidentally, and for quite a different purpose; it is mentioned just at the end of clause where that is described which is to be forfeited, namely, all "stores" &c., "which may have been procured for the building and equipment thereof." I shall have something to say hereafter upon the word “building,” as it occurs there. We thought it right to cover all evasions, and I shall show your lordships in time, that, although for practical purposes it has been necessary in this discussion to rest much upon the differences in the meaning of these words, each of them is officious, and that is not mere redundancy. It was thought fit in the English statute to put in the word "equip." Then the word "furnish" is also put in throughout in the English act, though in the American statute it only comes in as defining what your lordships have sometimes called the offense in the second degree. In the principal offense it is "if any person shall fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed;" but then come the words, "or shall knowingly be concerned in the furnishing, fitting out, or arming;" "furnishing" comes in there in connexion with the "knowingly concerned." We have thought it wise to put in the word "furnishing" in every one of the clauses, as a distinct alternative.

Then, my lords, in the American statute the purpose was expressed simply and solely by the words, "with intent that;" but we, with the object of avoiding, I suppose, some evasion or quibble upon the word "intent," have added the words, "or in order." Those words," or in order," are put in obviously, as I understand it, to meet such arguments as have been advanced in this case, that builders and other tradesmen are not parties to the intent. At all events they do it "in order that," and for the purpose of avoiding quibbling of that description, the words "in order" have been introduced into this act.

The next difference, my lords, is in the interpolation, rather awkwardly done, of the words "as a transport or store-ship, or with intent." Your lordships know that those words are not in the American act. I think that we can tell, without going to Hansard for information, the history of those words; experience teaches us that words which are ill-adjusted to the grammatical construction of a clause in that way, are probably got in as an amendment in committee; and as a matter of fact, if your lordships search in the proper quarter, you will find that a person not originally friendly to the act was the author of those words. They do no harm; on the contrary, I would rather have them, because they also show that it was meant to cover every evasion. It might have been said: "The act says that we must not prepare ships which are to be used to cruise or commit hostilities, but we may land a whole army from ships which we use as transports." The act covers that. Perhaps it might be said: "No doubt the enlistment clauses will prevent our enlisting that army here; but supposing it can be enlisted in some neighboring country, say France, French ships shall bring the people to the limit of English waters, and our transports will meet them there and no harm will be done." Then there is the expression, "or store-ship." In truth almost every warlike purpose for which a ship can be employed is covered there. A ship to be useful in war, I think, must be either a ship used as a cruiser, or to commit hostilities, or else as a transport or store-ship; they put in those words to cover every possible case, and every possible warlike use.

My lords, I now come to notice the omissions in this clause, and the first which I observe is one which I think does me no harm, though I own that for the mere illustration of my argument I should have been rather glad if it had not been made. I do not think that the fact of its having been made damages my argument the least in the world; but I should have gained an additional argument in the English statute as compared with the American if it had not been made. I mean the omission of some of the words which occur at the end of the clause describing what is to be forfeited. The American clause is this: "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." Now, we will see presently what is the effect of the omission of those words in the English statute, and what is its probable reason. But let me pause for an instant, my lords, to ask your lordships to attend to the light which those words throw upon what the framers of the American act, at all events, understood to be the meaning of the language which they had previously used.

LORD CHIEF BARON. The construction of a British statute should be upon some grounds common to all the British subjects. You can hardly, I think, induce an English court to construe a British criminal law upon grounds which would not be patent to all English subjects.

Mr. ATTORNEY GENERAL. Certainly not, my lord, and I should be very much misunderstood if I were supposed to be asking your lordships to do so.

LORD CHIEF BARON. Supposing that without this comparison of the two statutes, the natural meaning of the English statute would be one thing, but that with that comparison those who are familiar with law would infer from the construction of the two acts that the British statute was intended to go further than the act of Congress; if that argument was not patent to all British subjects it would hardly be a legitimate ground of decision here.

Mr. ATTORNEY GENERAL. I use no such argument, my lord, and I should have been greatly misunderstood if I were supposed to do so. I am going to argue to your lordships that the plain meaning of the English statute is with me, and I illustrate that argument, as I think I am perfectly entitled to do, by comparing that statute with an act of another country in pari materia, which for this purpose we will suppose our legislature never saw, and showing your lordships how it covers cases which are omitted in that other statute; and I shall afterward, I think, show your lordships that if you do not wrest the words and do not tamper with the language

LORD CHIEF BARON. You are rather arguing to show that the conclusions drawn by Sir Hugh Cairns were not correct.

Mr. ATTORNEY GENERAL. Certainly, my lord, as I think I have a perfect right to do. Of course, if your lordships were to tell me that you thought differently I should at once bow; but I think it not otherwise than legitimate and useful to have the means of illustrating the argument which I shall urge upon the mere language of the English act by another act in pari materia, which differs from it, though it be not an act of this country. I quite agree, that you must ultimately decline to construe the English act with reference to the American, or to place any construction upon it which its own words do not justify, merely because it differs in some respect from an American statute. No doubt nothing could be more illegitimate than such a mode of construction, except perhaps construing it by speeches made in the House of Commons; but I think your lordships will find that the words are effectual for their purpose, and that this is brought home and point is given to the proof of it by what I say in comparing the one act with the other by way of illustration.

My lords, the observation which I was about to make upon the American statute, I agree, is not an observation which arises upon the English statute at all, which omits the word "building" entirely in its language; but I may, nevertheless, be permitted to make that observation with regard to the American statute as bearing upon this argument, as an illustration of the meaning of the language. The Americans speak the same language as we do; and it is perfectly clear that here you have an example, as good at all events as anything which can be taken out of Webster's Dictionary, or Johnson's Dictionary, of the manner in which the word "fit out" is used, and what it is understood to cover; because here we have persons speaking the language which is expounded in one of the dictionaries which I have mentioned, if there be any difference in the two languages. In one of the statutes, namely, the American, it is expressed that the offense consists in fitting out and arming, or attempting to fit out and arm, or procuring to be fitted out and armed, or knowingly being concerned, and so forth. What is to be forfeited? Among other things, "all materials which may have been procured for the building and equipment thereof." It is perfectly plain, therefore, that the words used by the framers of that act, in the language which they spoke in the earlier part of the section, were held to be sufficient to apply to a vessel in course of building, because "materials procured for the building thereof," of course could not apply to a vessel already completely built. It is only an illustration of the use and meaning of language. I shall have more illustrations of that kind to give your lordships from American sources, and, perhaps, some from English sources also; but I think this an illustration not without value.

Now the absence of similar words in our act is not any argument whatever to the contrary, for this plain reason; that by our law, as I apprehend, no materials which have been procured with a view to the use of them in building a ship become a part of or are indentified with the ship, until they have been actually in some way appropriated to her. If appropriated, they are covered by the words which we do find in the English statute, "together with all the materials," &c., "which may belong to or be on board of such ship or vessel." If she were in course of building, and supposing the language of the act to be enough to strike a ship in course of building, materials which were appropriated to her, so as, for instance, to vest them in the person to whom the hull, as it was building, belonged, would be materials belonging to the vessel, and would be covered by this forfeiture; and there is no principle or reason why any other materials should be.

Then, my lords, I will observe upon the differences in the next clause, namely, the eighth, before I proceed further in the argument. Now, in the next clause we have these two differences, which I have observed. The American statute, in its fifth section, prohibits the augmentation of the force of a ship of war coming into the United States, inter alia, "by adding to the number of the guns of such vessel, or by changing those on board of her for guns of a larger caliber." In the English act your lordships will observe that the words are "by adding to the number of the guns of such vessel,

or by changing those on board for other guns," saying nothing about their caliber; therefore you have larger words. You are not to limit it by an examination whether the guns are of a larger caliber or not. Then, lastly, the words following in that clause of the American statute are, "or by the addition thereto of any equipment solely applicable to war." It has been preferred in the English statute to use the more general expression "or by the addition of any equipment for war," so as to avoid the quibble as to whether it was solely applicable to war, or might be applied also to other things.

Your lordships recollect that Sir Hugh Cairns laid a good deal of stress upon the tenth and eleventh sections of the American statute, which relate to bonds which may be required under certain circumstances, and to the power of the President to detain ships. My lords, the tenth section deals with the case of an armed vessel, belonging wholly or in part to citizens of the United States. That is not in our act at all, and I cannot perceive how its absence from that act, or its presence in the American act, can effect me prejudicially. That was a provision applicable to a particular class of ships, which in the American statute, I apprehend, would not at all cut down or limit the previous clauses. Then the eleventh clause says "that the collectors of the customs be, and they are hereby respectively authorized and required to detain any vessel manifestly built for warlike purposes, and about to depart," under certain circumstances. Now that is important, because it shows most distinctly that a vessel which is not provided with equipments exclusively applicable to war, provided she be manifestly built for warlike purposes, a vessel which, though not armed, has a cargo consisting of arms and ammunition, is within the purview of the act, and is to be detained until certain security is given. That provision is not in our act either. I do not myself think that it much affects the question one way or the other; but as far as its bearing goes upon the construction of the American act, I do not think that it is that which my learned friend has attributed to it.

My lords, we now come to what I believe to be the ultimate point, namely, the proper meaning of the words which we have got. Now I take it first entirely upon the words as they stand, without reference to any other statute of this or any other country, and without reference at present to any authorities which may have been decided in any other country upon any act in pari materia. My lords, with regard first of all to these four words, I think that I can show that each of those words has a sense sufficiently different from the other to explain why the legislature considered it expedient to put every one of them in under the disjunctive copula. Take the word "equip" for example. I very much agree with what was said by my learned friend, Mr. Mellish, whose argument appeared to me to have only one fault, namely, extreme brevity. I should have been very glad if it had been longer; but I very much agree with what he said about that word, namely, that it is a perfectly flexible term, covering very widely whatever is done, for the purpose of preparing a ship for the service which she is to perform. I do not agree that if it is not an equipment solely applicable to that purpose, it therefore is not an equipment for that purpose; but as to its largeness and signification I do agree with him; and there is one thing which may be covered by and included in the word "equip," which we cannot find to be covered by any other word here; I mean the crew, the manning. Your lordships know, that in the French language the crew of such a vessel is called "equipage," and there can be no doubt that the word "fit out" will not include the crew. Upon that point I may mention what I find in Lord Tenterden's book upon shipping, where the fitting out and manning are distinguished; it is a passage in the eighth edition, page 134: "As the master in general appears to all the world the agent of the owners in matters relating to the usual employment of the ship, so does he also in matters relating to the means of employing the ship, the business of fitting out and victualling and manning the ship being left wholly to his management in places where the owners do not reside." There he distinguishes, and I think with accuracy, fitting out, victualling, and manning. I think, also, my lords (though I am not about to detain you by going into any proof of it,) that if your lordships should think it worth while to make a careful examination of Mr. Justice Story's judgment in the case of the Santissima Trinidad, you will there find traces of his honor having considered that the equipment of the crew was within the meaning of the American statute; but I will not lay stress upon that, because it is possible, that in the places where he uses the word "equipment" it may not be intended to be used with that object.

My lords, I have mentioned one extremity of what the word "equip "may cover. I will now mention a subject which lies at the other extremity. Take the rigging, for example-there is an example to which I will refer your lordships without dwelling upon it in the case of Frost vs. Oliver, which was tried before Lord Campbell, and which is reported in 2d Queen's Bench Reports, pages 304 and 305, in which the rigging-rope supplied for the running of the ship-is the subject, and Lord Campbell over and over again speaks of it as necessary for the equipment of the ship. So that we have those two things, so to say, at the two extremities of the term "equipment." We have manning, a thing most remote from the "furniture,” and we have rigging,

which, it may be, belongs to the category of "furniture." What else is covered by the word I will not at present say, because I shall have some authorities to refer to as bearing upon that subject; but I venture to say, in order to let your lordships know what you have to expect from me upon that point, that I demur to the proposition that "equipment" is an expression which comprehends nothing connected with the structure. I should be prepared to contend, and without much fear that your lordships would not go with me, that many things connected with and entering into the structure of a vessel are properly within the term "equipment." For instance, in the case before you, I should certainly contend that those bulwarks which we have heard of, independently of the machinery and other things, were so. And, my lords, I should say, that if we were dealing with one of those cases, which, if I did not misunderstand my learned friend Mr. Mellish's argument, he would be prepared to contend are outside the act, I mean those cases of what are called steam rams and cupola ships and iron-plated vessels, I should submit that although those things may in some sense be builder's work, and although they enter into the structure of the ship, yet if those things are not "equipment," I believe all persons who have hitherto used that word under similar circumstances have used it wrongly. However, for the present, I pass over "equipment," to return to it hereafter with the aid of authority. Perhaps before I entirely pass over it, I may mention that in the very excellent little publication which I mentioned yesterday, and not without your lordships' approbation, I see that the derivation of the word "equip" is suggested from the German or High Dutch, schip or schiff as connected with the ship. I confess that I think the derivation of the word is a little obscure. At first sight people might think it connected with ephuippia or equus. I think that Mr. Gibbs's derivation may be as likely to be right as not, but I lay no stress upon it.

I pass to the word "fit out." Now the word "fit out " I think is nomen generalissimum, and is applicable to describe the whole operation from beginning to end; and if the case required it, I should not shrink from saying that, provided you had got the necessary evidence of intent, which, under those circumstances, of course would not be easy or obvious, every single act done, as has been said, from laying the first plank for the keel to the completion of the vessel in a state fit to go to sea, is legitimately covered by the term "fit out." If the whole thing is done for a particular purpose as one act, I say that every single part of it is only a step in progress to complete the whole. My lords, in illustration of that, and bearing in mind that my argument by no means requires me to go to that extent, I will put this case

LORD CHIEF BARON. Mr. Attorney General, the present interruption arises from the necessity of providing for the business of to-morrow here. I presume that there is no probability of all the counsel on the part of the Crown concluding to-day.

Mr. ATTORNEY GENERAL. I am afraid not, my lord.

LORD CHIEF BARON. I should imagine not; we cannot expect it.

Mr. ATTORNEY GENERAL. I shall conclude to-day, no doubt, but my learned friends cannot be expected to do so.

LORD CHIEF BARON. Two members of the court, one of them being Mr. Baron Bramwell, must attend at the court of criminal appeal, which sitting, as you of course know, in respect of cases which require immediate determination, could scarcely be postponed even for so important a matter as the present. Would it, therefore, be inconvenient if the court adjourned the hearing of this matter from to-day till Monday?

Mr. ATTORNEY GENERAL. To me it would certainly not be so, my lord.

Mr. BARON BRAMWELL. I should hope that one of the other courts would find a substitute for myself, and then unless it is inconvenient to you, we could let this argument go on to-morrow. What it struck me it was desirable to know was whether it would suit you and those who are with you to proceed to-morrow.

Mr. ATTORNEY GENERAL. My lord, the solicitor general says that it would suit him to proceed to-morrow. As far as I am concerned, I must look to your lordship's own convenience, because I hope that I shall certainly conclude to-day.

Mr. SOLICITOR GENERAL. Will your lordships allow me to say a word with reference to what Mr. Baron Bramwell has said. I should be very glad to go on to-morrow if it were convenient to the court.

LORD CHIEF BARON. It is difficult to imagine a case more important than the present one; and which for the interest of every one requires as early a decision as is consistent with the importance of the case; therefore we ought not to lose a day, but where the liberty of the subject is concerned, which is the case with respect to the court of criminal appeal, it has been usual, and I think most proper, to consider that the liberty of the subject is a matter of the first importance in this country. We have sent to inquire, and I think that it would be sufficient, if we could get the assistance of any judge from either of the other courts. I have no doubt that we shall be able to obtain it, and it so, we will go on with the case to-morrow.

Mr. ATTORNEY GENERAL. My lord, I was going to illustrate what I said upon the word "fit out," which I say is nomen generalissimum capable of comprehending every individual act, provided it be all in pursuance of one intention to make a complete