636
THE NEW ZEALAND GAZETTE.

Though this decision turns upon the 7th section of
the Act 59 George III., cap. 69, which is now
repealed, it seems equally to illustrate the 30th
section of the new Act 33 and 34 Vict., cap. 90,
which I transmitted to you in my Circular Despatch
of the 10th of August.

You will communicate this judgment to the Judge
of the Vice-Admiralty Court in the Colony under
your Government.

I have, &c.,
KIMBERLEY.

The Officer Administering
the Government of New Zealand.

Judgment of the Lords of the Judicial Committee of
the Privy Council on the Appeal of Our Sovereign
Lady the Queen v. James Carlin (ship "Salva-
dor"), from the Vice-Admiralty Court of the
Bahamas; delivered 28th June, 1870.

LORD CAIRNS.
Present:
SIR JAMES W. COLVILLE.
THE JUDGE OF THE HIGH COURT OF ADMIRALTY.
SIR JOSEPH NAPIER.

THIS is an appeal from the decision of the Vice-
Admiralty Court of the Bahamas, upon an informa-
tion filed on behalf of the Crown before that Court
under the Foreign Enlistment Act, with regard to
the ship "Salvador," and seeking her confiscation.

The clause in the Foreign Enlistment Act which
has to be considered is the seventh. It has fre-
quently been remarked that the interpretation of
that clause is attended with some difficulty, mainly
owing to the great quantity of words which are
used in the clause; but endeavouring for the mo-
ment to set aside the verbiage of the clause, it is
obvious that, in order to constitute an offence under
it, five propositions must be established. In the
first place, the ship, which in other respects is
found to be acting within the meaning of the
clause, must be acting without the leave and license
of the Sovereign of this country. That is the first
element of the charge under the clause. The
second is this, the ship must be equipped, furnished,
fitted out or armed, or there must be a procuring
or an attempt or endeavour to equip, furnish, fit
out, or arm the ship. The third is, that the
equipping, furnishing, fitting out, or arming of the
ship must be done with the intent or in order that
the ship or vessel shall be employed in the service
of some "foreign prince, state, or potentate, or some
foreign colony, province, or part of any province or
people, or of any person or persons exercising or
assuming to exercise any powers of Government in
or over any foreign state, colony, province, or part of
any province or people."

Then the fourth element in the charge is this, there
must be an intent to employ the ship in one of two
capacities, either " as a transport or storeship against
any prince, state, or potentate;" or "with intent to
cruise or commit hostilities against any prince, state,
or potentate." I pause for the purpose of observing
that the words are not very happily chosen which
represent her as being employed "as a transport or
store-ship against any prince, state, or potentate;"
but it is clear, open as the words may be to criticism,
that the intent is that the ship should be employed
in one of the two capacities I have mentioned, and
not only so, but employed "against," that is, in the
way of aggression against, some foreign prince, poten-
tate, or state. This should be done, as I have already
said, against some prince, state, or potentate, "or
against the subjects or citizens of any prince, state,
or potentate, or against the persons exercising or
assuming to exercise the powers of government in
any colony, province, or part of any province or
country, or against the inhabitants of any foreign
colony, province, or part of any province or country."
And the fifth element is, that this foreign state or
potentate, and so on, should be one with whom the
Sovereign of this country should not then be at war.

Those are the five elements which go to make up
the whole charge under the seventh clause.

Now, with regard to the first which I have men-
tioned, the absence of leave and licence on the part
of Her Majesty, no question arises.

With regard to the second, namely, that there
must be an equipping, furnishing, fitting up, or
arming, or a procuring, or an attempt to do so, no
question can arise in this case when we read the
evidence of Mr. Dumaresq, the Receiver-General and
Treasurer of the Island, who states the condition in
which he found the ship, and the preparations made
on board of her, which seem to their Lordships to
amount to a fitting-out or arming, or an attempt to
do so, within the meaning of this clause. The
learned Judge of the Vice-Admiralty Court seems
to have entertained no doubt himself upon this part
of the case.

I pass over the third element which I mentioned,
for the moment, in order to say that upon the
fourth and fifth heads to which I have referred
there can also be no doubt entertained, as it seems
to their Lordships; and here, again, no doubt was
entertained by the learned Judge of the Court
below. It is quite clear that the ship was intended
to be used as a transport or store-ship against a
prince, state, or potentate with whom Her Majesty
is not now at war. She was to be used obviously
as a transport or store-ship for the purpose of con-
veying to Cuba men and materials; and in that
way to do the duty of a transport ship, and so to
inflict injury upon the Spanish Government, who at
that time were, and are now, the lawful authority
having the dominion over Cuba. Here, again, no
doubt was entertained by the learned Judge in
the Court below, and no doubt could be enter-
tained by any one who looks at the evidence of
Mr. Dumaresq, to which I have already adverted,
and also the evidence of Mr. Butler, at page 24,
both of whom state what the report was which
was made to themselves by Carlin, the master of
this vessel, as to her conduct when she went
to the Coast of Cuba,-how she landed all the men
she had on board, plainly for the purpose of taking
part in the insurrection which was going on in
Cuba,-how they abandoned the ship when they saw
a Spanish ship of war in sight,-how they were pre-
pared to set fire to their ship if the Spanish ship
approached them, and how afterwards, when they
found that they were unnoticed, they took possession
of the "Salvador" again, and brought her back to
Nassau.

That leaves uncovered only the third element of
charge in this clause, and it is upon that alone that
the learned Judge of the Vice-Admiralty Court
entertained any doubt.

The third element is, that the ship must be em-
ployed in this way in the service of some "foreign
prince, state, or potentate, or of any foreign colony,
province, or part of any province or people, or of
any person or persons exercising or assuming to
exercise any powers of government in or over any
foreign state, colony, province, or part of any pro-
vince or people. It is to be observed that this part
of the section is in the alternative. The ship may be
employed in the service of a foreign prince, state, or
potentate, or foreign state, colony, province, or part
of any province or people; that is to say, if you find
any consolidated body in the foreign state, whether