A French Ship of War captured in the English Channel a Prussian Ship as prize of war. A prize crew under a French naval Officer was put on board. The prize Ship being driven by stress of weather into the Downs, anchored within British waters, and after lying there two days the French Consul at Dover engaged an English Steam-tug, then lying in the Downs, to tow the captured Ship from British waters to a port of the Captors and under such agreement the Tug towed the prize to Dunkirk Roads. In a suit instituted on behalf of the Crown for condemnation of the Tug for violation of the Foreign Enlistment Act of 1870 (33 and 34 Viet. c. 90), the Judge of the Court of Admiralty held, that no offence had been committed under that Statute, as the Steam-tug was not employed in the military or naval service of France, as declared by the 8th section of the Act, and dismissed the suit, condemning the Crown in costs. On appeal, Held, by the Judicial Committee (reversing such decree), that the engagement by the Owners of the Tug for the express purpose of towing the detached prize crew, its Prisoners and prize Vessel, speedily and safely to French waters, where the Prisoners and prize would be taken charge of by the French authorities, and the prize crew set free, was dispatching a Ship, within the meaning of sect. 8 of the Foreign Enlistment Act of 1870, for the purpose of taking part in the naval service of a belligerent, and condemned the Tug as a forfeiture to the Crown.
Whether a Court of Admiralty has power, under the Foreign Enlistment Act, 1870, to condemn the Crown in costs, Quaere.
James LJ said: ‘No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair common-sense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument.’
James LJ
[1872] UKLawRpPC 6, (1871-1873) LR 4 PC 184
Commonlii
Foreign Enlistment Act 1870
England and Wales
Citing:
Appeal from – The Gauntlet (No 2) (Dyke v Elliott) AdCt 2-Aug-1871
During the late war between the North German Confederation and France, a Prussian merchant vessel was captured in the English Channel, as prize of war, by a ship in the service of the government of France. A prize crew, under the command of an . .
Cited by:
Cited – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 September 2021; Ref: scu.653249
