IN THE COURT OF EXCHEQUER AT WESTMINSTER,

MICHAELMAS TERM, 27TH VIctoria.

BEFORE THE RIGHT HON.

THE LORD CHIEF BARON POLLOCK,

MR. BARON BRAM WELL, MR. BARON CHANNELL,
AND MR. BARON PIGOTT.

THE ATTORNEY GENERAL v. SILLEM AND OTHERS
Claiming the Vessel "ALEXANDRA.”

ARGUMENT ON APPLICATION FOR LEAVE TO MOVE
FOR NEW TRIAL AFTER THE EXPIRATION OF
THE FIRST FOUR DAYS OF TERM.

Tuesday, 3rd November 1863.

for New Trial

Lord Chief Baron.—Mr. Attorney General, the ordinary practice Application for of the Court is to take the peremptory paper the first thing on the Leave to Move second day of Term, but I presume that you are in attendance on after first Four the business of Her Majesty, and you are therefore entitled to Days of Term. pre-audience. If you have anything to move, the Court will

hear you.
Mr. Attorney General.-I thank your Lordship. My Lord, I
have come here to apply to your Lordships not at present to go
into any
motion which will involve any lengthened argument or
discussion, but I come to ask your Lordships to give me a longer
than the ordinary time of four days for the purpose of making, if
it should become eventually necessary, a motion for a new trial in
the case of the Attorney General v. Sillem, which was tried
before the Summer Assizes before the Lord Chief Baron con-
cerning the forfeiture of the ship "Alexandra." It will be in
his Lordship's recollection, and indeed it is known to everybody,
that upon that occasion his Lordship laid down the views which
he thought ought to govern the jury as for the construction of
the Act of Parliament commonly called the Foreign Enlistment
Act. His Lordship did so in a manner which we thought was
perfectly clear and intelligible to all persons who heard it. There
was no difference whatever in the understanding of his Lordship's
ruling on the part of the counsel for the Crown, and we have no
reason to suppose that it was viewed otherwise by the counsel for
the claimants, or generally understood in any other sense than
that in which we viewed it. At the end of the trial, and before
the verdict, we proposed in the usual manner and complying with
form to offer exceptions to that ruling. We were told, however,
that it was not at all necessary to stand upon form. His Lord-
ship said, "I will accept any bill of exceptions you wish to tender."

for New Trial

Application for And accordingly after the verdict, but not before, a note hastily Leave to Move written down at the time of the points or the principal points after first Four which we understood to be laid down was handed in, and then it Days of Term. was said by his Lordship that we were not to be bound by what passed on that occasion; that time might be taken and that the thing would be settled. My Lords, of course we were in hopes that there would be no difficulty at all in settling a bill of exceptions. It is a point of very great importance, and most fit to be raised solemnly by exceptions so that it may go to the Court of Error, and if it should be necessary to the last Court of Appeal. We are most anxious that it should be so raised and so determined, and we have no reason to doubt that the other side are equally so. But hitherto there have been difficulties in arriving at any form of exceptions, which we can rely upon as certain to receive the signature of his Lordship. We hope that those difficulties will be overcome. We are in communication at the present time with the counsel on the other side, who have in their possession the form of exceptions which we now propose to endeavour to tender, and we trust that an agreement may be arrived at between ourselves and the opposite counsel, or if that should not happen that his Lordship upon being applied to at Chambers in the usual way will be able to settle such a form of bill of exceptions as will raise the real question to be determined in a manner which will be satisfactory to both parties and useful to the public, and we infinitely prefer

Lord Chief Baron.—Mr. Attorney General, I think it right to state that I myself see no prospect whatever of any change in the view which I have taken as to what is my duty in signing the bill of exceptions. The correspondence between me and the late learned Attorney General probably you may have seen. Mr. Attorney General.-Yes, my Lord.

Lord Chief Baron.-But you were not present at the whole of the trial, and, so far from my laying down the law, as the bill of exceptions tendered to me assumes, I took particular pains to avoid doing anything of the kind. I had originally, during the course of Sir Hugh Cairns' argument, undoubtedly entertained an impression (I call it no more) that all the expressions of equipping, arming, fitting," and so on, probably meant the same thing, and were to be referred to the verbiage of an Act of Parliament, as you commonly find a thing called "ship or

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vessel," the statute no doubt in that case meaning precisely the same thing by the one and the other. But in the course of his address to the jury, the late Attorney General mentioned a case the name of which I do not recollect. I think it is in 5th Curtis, or the 5th volume of some Reports. I could refer to it, but it is not desirable now to take up the time by doing so, and that was a decision in an American Court, with an appeal to the Supreme Court, where the decision below was affirmed, and it was a case where the vessel was completely prepared in every other respect, but that she was not armed. When I came to sum up I mentioned that case to the jury, commended it so far as to say that

for New Trial

I adopted it, and left it to them, and pointed out that what Application for formerly apparently might have been inferred from what had Leave to Move dropped from me in the course of the address of counsel was not after first Four what I told them was the law; and I finally left the question to Days of Term. them in the alternative, using the very words of the Act of Parliament, "If you think that this vessel was armed or equipped or "fitted out, or was intended to be armed or fitted out or equipped, "then your verdict must be for the Crown; if not, for the de"fendant." Now, the Attorney General presented to me a bill of exceptions, by which I purported to tell the jury that the vessel must be armed, and that if it was not armed there was no offence. I not only did not so tell the jury, but if you read the short-hand writer's notes which were furnished to me, I think no person can have any doubt but that I left the question as I am now stating. But, Mr. Attorney General, probably all the object which you have in view may be obtained by your moving without reference to the bill of exceptions at all. It is true that there was no point reserved at the trial, so as to give you a right of appeal in the event of the rest of this Court concurring with me in the direction which I gave to the jury. But this is a matter of so much importance that I do not know whether I can pledge the Court, but certainly it would be, I think, very much to be regretted, however unanimous this Court might be, if we did not give you, which we have the power of doing, a right of appeal to the Superior Court.

Mr. Attorney General.-I understand that your Lordships have no power by the Act of Parliament, unless there be a difference of opinion. I understand that you have no power at all.

Lord Chief Baron.-Mr. Attorney General, that is not so. Mr. Attorney General.-No, my Lord, I misunderstood what my learned friend Mr. Jones said to me.

Lord Chief Baron.-We have the power of granting you an appeal, and I must say, as far as I am concerned, that however unanimous the Court may be, and however strong the opinion, if you wish to have an appeal, certainly my voice would be in favour of giving you that. It would not then be a privilege, it would be an indulgence.

Mr. Attorney General.—I am much obliged to your Lordship. Lord Chief Baron.—The questions concerned are so important that I think we ought to do so; but I do not know whether the other members of the Court take the same view.

Mr. Baron Bramwell.-I understand the difficulty to be this, that the Common Law Procedure Act does not apply to a proceeding of this nature.

Mr. Attorney General.-Yes, my Lord.

Mr. Baron Bramwell.-This Act of Parliament, which, to a certain extent, assimilated Crown proceedings to civil actions, does not comprehend the case of an appeal from making absolute or discharging a rule.

Mr. Attorney General.—That is what we apprehend, my Lord.

Application for Leave to Move for New Trial after first Four

Mr. Baron Bramwell.-Whether that is so or not is open to some doubt.

Mr. Attorney General.-My learned friend Mr. Jones has conDays of Term. sidered that point carefully (I cannot say that I have), and he is very strongly under that apprehension that the Act of Parliament does not reach the case.

Mr. Baron Bramwell.—There has been a case argued here, the case of a writ of intrusion by the Crown, and the point has been slightly considered, but not at all argued at the Bar, whether, if there was a difference of opinion upon the Bench, such as would entitle a dissatisfied party in an ordinary civil action to appeal, the words of the Act are large enough to reach such a case.

Mr. Attorney General-Of course it would be extremely important that that point should be very carefully considered before the suggestion, which has been so kindly thrown out, was acted upon. No doubt I fully understand that your Lordships would be quite willing, if you had the power so to exercise it.

Mr. Baron Channell.-Yes.

Mr. Attorney General.-At the same time, if your Lordships have not the power, of course no amount of goodwill on your part could enable you to do so.

Mr. Baron Bramwell-Mr. Attorney General, what has occurred to me as a difficulty in the course which you suggest is this. You are apprehensive that the Lord Chief Baron may decline to sign a bill of exceptions in the form in which you think he ought to sign it. But then if you come and move for a new trial on the ground that he directed the jury in conformity with your notion of his direction, and he reports to us that he did not so direct, of course we should grant no rule for a new trial on that ground; so that there seems to me to be this sort of difficulty, that, if my Lord will not sign a bill of exceptions in the form in which you require it, on the ground that he did not so direct the jury, neither should we entertain an application for a new trial on that ground.

Mr. Attorney General.—I do not know, my Lords, but we have the litera scripta here, and I was not aware that even a learned judge was able to interpret his own words upon a question of new trial in a sense different from their plain meaning.

Mr. Baron Bramwell.-According to my experience (and important as this case may be 1 do not think that we ought to deviate from it) the invariable practice is to take the report of the learned judge as to the direction which he gave to the jury.

Mr. Attorney General.—I should be bound by the practice, no doubt.

Lord Chief Baron.-I have read the short-hand writer's notes.
Mr. Attorney General.-So have I, my Lord.

Lord Chief Baron. -The inquiry with respect to the direction to the jury is not whether something was said in the course of the trial from which somebody may infer something else, but what was the point left to the jury? Now, this is the summing up. After stating some of the evidence, I think that of a captain in the

Royal Navy, I go on thus: "The question is, was there any Application for "intention that in the port of Liverpool, or in any other port, she Leave to Move "should be, in the language of the Act of Parliament, either for New Trial equipped, furnished, fitted out, or armed with the intention of Days of Term. "taking part in any contest."

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Mr. Attorney General.-Yes my Lord; but your Lordship had told the jury before what those words meant, and had placed your interpretation upon the Act of Parliament.

Lord Chief Baron. Mr. Attorney General I must entirely deny that; unfortunately you were not here the whole of the time. Mr. Attorney General.-I was here during the whole of the summing-up, my Lord, every word of it.

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Lord Chief Baron.-That may be. "That there was a know"ledge that very likely she would be so applied there can be no "doubt, as there is when persons send powder. I take it for "granted that there are agents on both sides, one openly buying every munition of war and openly carrying it away, the others buying wherever they can." "If you think the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then that " is a sufficient matter. But if you think the object really was "to build a ship in obedience to an order, and in compliance "with a contract, leaving it to those who bought it to make what "use they thought fit of it, then it appears to me that the Foreign "Enlistment Act has not been in any degree broken. I leave you to find your verdict, unless you wish me to read the "evidence over to you." They did not wish to hear the evidence, and they found a verdict for the defendants.

Mr. Attorney General. Of course your Lordship is very well aware that that is the conclusion of a long summing-up of which we have a note, and your Lordship said, after we had made the observations which we did subsequently to the verdict, "Mr. "Attorney General, I will not bind you to what passes on the "present occasion, there cannot be any doubt now. I cannot "alter the thing, and I have no doubt that you have a very 66 accurate note of what I have said."

Lord Chief Baron.-Yes.

Mr. Attorney General.—And immediately before that, my Lord, I said, and your Lordship made no observation to the contrary, "Your Lordship said the words were the same-that every one "of the words required a warlike armament at Liverpool-that "is the point."

Lord Chief Baron. That, Mr. Attorney General, you will find was distinctly explained in the course of the summing-up. I will read you the passage.

Mr. Attorney General.—I have the passage, my Lord, and have read it.

Lord Chief Baron.-It was calling the jury's attention to the finding in the case to which I have alluded, and adopting it as the law for the present, though I must say that personally I do not entirely agree with it, and if it had to be re-argued in the Courts of this country it would not be found to be correct.