Lord Ormidale.-The intention of whom? Mr. Gifford.-The intention of those who built the Pampero; I don't care who they were. The Pampero is the thing I am attacking. I don't care who did it. I am not asking for a penalty against any individual. That I might have done, and I might then have been required to connect the individual with the act. Even suppose it had been an accusation against individuals, surely I would be entitled to get models by whomsoever made, leaving me to prove at the trial the connexion of the parties with these models. It is not necessary in requiring notes, or documents, or bludgeons in a Crown trial, that before I get them I shall connect them with the panel. I must do that at the trial, or they will go for nothing. So here, if I get the models, I must prove at the trial that the vessel is fitted up according to these models. Suppose I were to find a model with the name Pampero or Canton upon it, with guns out at its port-holes, with all the equipments of a man-of-war, and the Confederate flag at the mast-head, would that not be good evidence in this case, because I cannot tell who made it? I may recover it in the hands of one of the defenders; I may recover it in the hands of the shipwright or the foreman, or the parties engaged in making it; and is it any objection to my recovering it that I don't say in the specification who made the model? Surely not. I must connect it in some way at the trial with the ship, but I undertake to do that; and I submit that nothing in this specification is more relevant or pertinent to the purpose for which the specification is asked than the models, and drawings, and sketches, and plans of the vessel in question. My friend's second objection is as to the 'intended' fittings and furnishings. My answer to that is, that the question to be proved at the trial is intent, and if I prove that these are her intended fittings, I go a great way to prove the intent with which she is fitted out. Lord Ormidale.-According to a certain view that may be taken of the Statute. 1 Mr. Gifford.-Yes. Suppose one of her fittings were guns, and I find them marked with the word Pampero, is not that a piece of evidence with reference to the intent with which the ship was fitted out? Suppose I prove that she has port-holes, I may get in somebody's yard in Glasgow the ropes by which the guns are to be attached to the ring-bolts? I connect these with the vessel, and the warlike character of her is made out, looking at the port-hole in the ship, the ring-bolt in the deck, and the rope to be attached to them to keep the cannon in its place. Surely these are of the essence of the case so far as intent is concerned. As to the objection to Art. 9, I have answered that already. I don't think we have anything to do in this action in rem with the question by whom. It is not necessary for the Crown to bring home guilt to any individual. There is no conclusion for punishment or a penalty against any individual. It is an action against the ship, and against the ship alone; and accordingly the objection as to by whom, or to whom, or how they were used, is not hujus loci. Mr. Clark.-Would you object to put it,' All orders, memoranda, or correspondence, or copies of all orders, memoranda, or corre'spondence in regard to the said ship or vessel, or the construction thereof, or of any of her equipments, fittings, or furnishings?' and I will take a joint diligence with you to recover these. Mr. Gifford.-I think we had better not have a joint diligence. But I don't object to my friend moving for the correspondence in the largest way; I don't think I will object to that. Art. 10 my friend has no objection to, except that it should be failing principals, and that I have already spoken to. As to Art. 11, if I have been successful in showing that I am entitled to get the drawings of intended equipments, I am surely entitled to get equipments already prepared and intended for the vessel, so far as not already seized. Of course the demand is limited to the equipments and furnishings of this particular vessel. I cannot get the equipments of any other vessel, and it will be a complete answer to any demand for equipments, fittings, or furnishings, that they don't belong to this ship. But if I am entitled to show the intent with which the ship is fitted out, I am surely entitled to get, it may be in some adjoining yard, or in some other place, her fittings and furnishings. Lord Ormidale.-All these Arts., 8, 9, 10, and 11, bear express reference to the ship in question, and whether they may be evidence at the trial is another matter altogether; probably a good deal will be necessary on the part of the prosecution to make them evidence at the trial; but in this matter of diligence to recover writings, I don't see that there is any such clear objection to these articles as can be maintained at present. Mr. Clark. Then your Lordship will grant us a joint diligence as regards Art. 9. Lord Ormidale.-I suppose there is no objection to that. Lord Örmidale.-On both sides all questions of confidentiality are of course reserved if anything of that kind should arise. I suppose models made on the order of professional gentlemen for the purposes of this trial will not fall under the diligence on either side. Mr. Clark.-I will not press any motion for a joint diligence now. The Lord Ordinary pronounced interlocutors fixing the day of trial, and granting the diligence, against both of which the defenders reclaimed. The Interlocutors, Specification, and Reclaiming Note will be found in the Appendix. Adjourned. INNER HOUSE-FIRST DIVISION. Wednesday, 2d March 1864. Mr. Clark.-I appear for the reclaimers, the owners of the shipPampero.' The present proceedings commenced by the seizure of that vessel under the 7th clause of the Foreign Enlistment Act, and that was followed by an Information filed on the part of the Lord Advocate, for the purpose of obtaining a decree to the effect that the ship had been forfeited under the 7th section of that Act. A claim was then lodged by Messrs. Fleming and others, maintaining that no forfeiture had been incurred, and that the facts stated in the several counts of the Information were not so stated as to set forth the offences under the Statute by reason of which a forfeiture had been incurred. The defenders maintained, at considerable length, before the Lord Ordinary, that the counts were not relevant or well laid under the Statute, and we asked his Lordship to determine that question as one which ought to be determined before any inquiry took place, and as a question which could not be raised, so far as we knew, in any form except in the form in which it is now raised before the trial. His Lordship pronounced an interlocutor appointing a certain day for trying the matters put in issue by said Information.' In short, his Lordship has held the different counts as issues raised for trial. We are all the more surprised at the course which his Lordship has taken, because he does not say that the pleas which we have raised are bad in themselves; and I think your Lordships will notice, with some surprise, that the Lord Ordinary says:-'So 'far as the Lord Ordinary can judge at present, the defenders will 'not be precluded, merely by the case being appointed to be tried, 'from afterwards availing themselves of any plea in law and relevancy which is in itself well-founded; but as the Lord Ordinary cannot prejudge any matter whatever, so he can give no assurance on the subject. It may therefore be that we have excellent pleas in relevancy and law against the sufficiency of the Information, and yet we may be cut out from stating these pleas at some future stage of the case. It is therefore all the more important that we should now, under this Reclaiming Note, bring distinctly under your Lordships' notice the pleas which we maintain against the relevancy of the different counts, and that we should have them definitively disposed of. The Information consists of 98 counts; but from the Abstract of it you will see that, so far as the purposes of this argument are concerned, there are only ten counts which need be considered, viz., the first eight and the 97th and 98th. The counts, from the 9th to the 96th, both inclusive, are mere variations upon the first eight, and therefore the first eight may be taken as representing substantially all the others of the 96. Before referring to these counts, I think it will conduce to clearness that I should bring under your Lordships' notice, in the first The place, the terms of the Act under which these counts profess to be libelled, I mean the Foreign Enlistment Act, 59 Geo. III. c. 69. The Act proceeds on the narrative- Whereas the enlistment or 'engagement of his Majesty's subjects to serve in war in foreign. service, without his Majesty's licence, and the fitting out and equipping and arming of vessels by his Majesty's subjects without 'his Majesty's licence, for warlike operations in and against the 'dominions or territories of any foreign prince, state, potentate, or person exercising, or assuming to exercise, the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any 'foreign prince, state, potentate, or persons as aforesaid, or their 'subjects, may be prejudicial to, and tend to endanger the peace and welfare of this kingdom,' &c. This is the preamble of the Statute, directed against the enlistment or engagement of his Majesty's subjects to serve in war in foreign service without his Majesty's licence, and directed against the fitting out and equipping and arming of vessels by his Majesty's subjects for the purpose of being used in war against a foreign state. The second section deals exclusively with enlistment. The third, fourth, fifth, and sixth regulate matters of procedure; and the seventh is the section on which this Information is founded-(Reads seventh section). clause contains so many alternatives that I shall read part of it again, leaving out a number of the words which I think merely tend to confuse: If any person within any part of the United Kingdom shall, 'without the leave and licence of his Majesty for that purpose first had as aforesaid, equip any ship or vessel with intent or in order that 'such ship or vessel shall be employed in the service of any foreign 'prince as a transport or store-ship, or with intent to cruise or commit hostilities against any prince, state, or potentate, &c., such person shall be guilty of a misdemeanour.' The offence or offences under the Statute are contained in these words, the equipping of any ship or vessel with intent or in order that such ship shall be em'ployed in the service of any foreign prince as a transport or storeship, or with intent to cruise or commit hostilities against any prince, state, or potentate;' and according to the reading which the owners of the ship put upon this Statute, there are two distinct offences under it, 1st, the equipping of any ship or vessel with intent that such ship or vessel shall be employed as a transport or store-ship against a foreign state; and, 2d, equipping any ship or vessel with intent to cruise or commit hostilities against any foreign state. These seem to me the two offences which the Statute creates, ---the equipping with intent to employ as a transport ship, and the equipping with intent to cruise and commit hostilities against a foreign state; or in other words, I think the two expressions, with 'intent,' which occur twice in the clause, must both, according to ordinary construction, be referred to the words equip, furnish, fit out, or arm. I shall now bring under your Lordships' notice the terms of the ten counts in the Information, which will disclose the character of all the rest-Reads 1st count). Throwing out the language which is properly there, but which obscures the meaning of it, the charge is this, that Messrs. Fleming and others did equip the said ship or vessel with intent and in order that such ship or vessel should be employed in the service of the Confederate States of America, with intent to cruise and commit hostilities against the United States; and that charge consists not of libelling one intent, but of libelling cumulatively the two intents which are specified in the Statute. It is a charge that they did equip the vessel with intent that it should be employed in the service of the Confederate States, with intent to cruise and commit hostilities, and therefore, instead of the Information being so framed, on the footing that there are two crimes under the 7th clause of the Act, it is so libelled as to combine the two intents set forth in the Act, and by that combination to create one crime, which it seems to me perfectly incompetent for the Crown to do; because they are libelling under this count a crime or misdemeanour which is not within the Statute at all. The 2d count is exactly the same as the 1st, except that it is stated to be against the citizens of the Republic. The 3d count charges that the owners did equip the said ship or vessel with intent to cruise and commit hostilities against a foreign state, viz., the Republic of the United States of America; and so far as regards the objection that I am now stating, that seems to be a count which is well stated under the Statute. I shall consider whether there is any other objection to it subsequently, but as regards the objection which I am now making, it is well stated, because the words with intent to cruise' are made to refer to the equipment of the vessel. The 4th count is the same as the 3d, with the variation of citizens, and the 5th, 6th, 7th and 8th are the same as the 1st count, altering the name of the foreign state in whose employment the ship was to be, and the name of the foreign state against whom it was to be employed. In the whole of these eight counts, for the purposes of my present argument, I may say there are just two offences charged. In the first place, there is charged the equipment of the vessel with intent that it should be employed in the service of the Confederate States, with intent to cruise and commit hostilities against the United States; and, 2d, the equipping of the vessel with intent to cruise and commit hostilities against the United States. The first is a charge which libels cumulatively the two intents set forth under the Statute; the second is the equipping of the said ship or vessel with intent to cruise and commit hostilities,-the intent to cruise and commit hostilities being directly referred to the equipping of the vessel in the one case, but not in the other. It may be right to say, further, that the 9th to the 96th counts are all framed upon the same model as those eight to which I have already referred. There are 72 of these 96 counts which charge what I call the first offence charged under the Information, and there are 24 which charge the second offence. There are 72 which charge the two intents libelled in the 1st count, and there are 24 which charge, in the form of the 3d count, one intent only, namely, equipping with intent to cruise and commit hostilities against the United States-(Reads 97th count). That seems to be charged in the manner in which |