am speaking of the workmen. My learned friends observed that the counsel for the Crown evidently expected to get different answers to what they did get. That is quite true. It was with difficulty that we got from those workmen the answers that we did get, and they certainly did not in their manner show any disposition whatever to tell anything that would be favorable to the case of the Crown, which they were not obliged to do. I agree that there were some witnesses to whom that observation would not apply. I am applying it only to the workmen, and I say they were workmen who gave their evidence scantily, and disappointed the Crown with respect to some questions which were asked, and what we did get out of them as to the superintendents or agents of the Confederate States was got from persons who showed no disposition to help us, or to give us favorable answers.

LORD CHIEF BARON. That would raise a very curious question about evidence, whether you are to infer that a man has proved more, because he has said less, and thereby evinced a reluctance to tell the whole truth. It rather abates from your confidence in their integrity, and that by fully as much as you gain in quantity.

Mr. ATTORNEY GENERAL. I think I was misunderstood in that. I did not intend to impute to the witnesses that they answered any question untruly, but merely that we had supposed that they would be able, and of course willing to give us rather more information than we got from them. But I have no right to suppose that they did not answer according to their recollection at the time, or absence of recollection, those questions which they did not answer favorably to the Crown. But as a matter of fact, they did state, and with no appearance of zeal, what was enough for our case, namely, they proved the continual presence and superintendence, at the construction of this ship and of her machinery, of the agents of the Confederate States.

Well, then, my lords, I say that as far as those witnesses are concerned, there is nothing whatever to discredit them. Then we come to the question with regard to Mr. Da Costa, and if Mr. Da Costa is to be believed, (and excepting that he seemed not an unwilling witness, I cannot agree that there was anything whatever to discredit him or his statement,) admissions were made to him by the builder himself, conclusive as to the destination of the ship, and the persons who had ordered her, and under whose orders she was being made, being the orders of the very same people who were constantly about her, constantly superintending her construction and more or less interfering with it. I say there was nothing whatever to detract from the credit of that person. Then it was suggested by way of explaining the superintendence that there was another ship called the Phantom, and that that ship was also for the confederate government. Nobody said that she was for the confederate government. By the evidence it appeared that she was a merchant ship. Whether or not she was intended somehow or other to be used for the purposes of the confederate government is a mere matter of speculation which I do not think it necessary to enter upon. Tessier was to command her. It was distinctly proved that she was a merchant ship, and that Tessier commanded the Bahama, which was also a merchant ship, and which carried out the arms of the Alabama. I could, if it were necessary, easily construct a theory as to what was to be done with the Phantom as well as the Bahama; but I abstain. Now, my lords, with regard to the rest of the evidence, there were Yonge and Chapman, two persons as to whom, if their character was in question, public or private, so graphically described on the late occasion here, and on the late trial by my friend, Sir Hugh Cairns, I should be placed in great difficulty, because, undoubtedly, it would be very far from my purpose to say one word in justification of those acts which my learned friend has referred to; but it was certainly a most remarkable thing, and still more remarkable to be repeated before your lordships than it would be before a jury, that my learned friend began by admitting that it was proved beyond all controversy that those persons were the agents of the Confederate States, (the agency was proved by written documents, some of which came from the custody of our opponents,) to prove whose agency only Yonge and Chapman were called; and then really all the exposure of their delinquencies was just as relevant as if on a trial for murder it became necessary to prove the delivery of a parcel or a letter, which was proved beyond the possibility of a doubt and never disputed; but in cross-examination of the witnesses, who proved some step in the delivery of that parcel or letter, they were asked the whole history of their lives, and they turned out to be ticket-of-leave men, and to have committed a great many crimes. If they were called to prove any great fact in controversy, no doubt a good deal of observation might have been made upon those who relied upon such testimony. But the way Sir Hugh Cairns turned this is the most remarkable example of his ingenuity that I ever recollect. He said, the attorney general entirely misunderstood why I said all that; why I expatiated upon the abominable conduct of those miscreants, as he called them to the jury. It was not to discredit anything they said, for I admit all that to be true; but it was to point out what they had not said, because they had not said anything about the Alexandra. He says Mr. Chapman goes to Liverpool, and goes to Trenholm and Company, pretends to be a sympathizer, and worms himself into all the secrets of the firm. There is no evidence of that. It is perfectly true that he pretended to be a sympathizer, and that,

no doubt, my learned friend was quite entitled to condemn; but that he got admitted into any of their secrets, or that he had ever an opportunity of knowing anything about the Alexandra, did not appear from anything that passed at the trial, and he was not cross-examined.

With regard to Yonge it was still more wonderful. My learned friend said he only entered into the history of Yonge, that miscreant, because he did not tell us anything about the Alexandra. But where was he from the time of the commencement of the building of the Alexandra to the end? Why, my lords, on board the Alabama, at sea. If we had proved anything about the Alexandra by Yonge and Chapman, I could well understand my friend would have said, "Do not believe what those people say;" but because we did not endeavor to prove by them any material, part of the case, and because we only used these people as necessary media for the proof of matters admitted now to be beyond dispute, for that reason the jury were to believe that the issue of this cause depended on the characters of Mr. Chapman and Mr. Clarence Randolph Yonge.

My lords, so much for that. I put Yonge and Chapman aside. Then we have Da Costa and all these different servants. Da Costa speaks of what was said to him personally on several occasions by Mr. Miller, and of what he saw and heard Mr. Welsman and Captain Tessier say and do. The servants spoke of what passed in the yard of Fawcett, Preston and Company and of Miller and Company. Mr. Miller was in court at hand-it was admitted that he was in court, but something passed whether the attorney general was right in assuming that he was sitting opposite to him-he was there, and he was not put into the box to contradict what Da Costa said, nor did Fawcett, Preston and Company, or any of those persons named on the record, all of them in constant communication at times, neither Fawcett nor any member of that firm, neither Miller nor any member of his firm, neither Fraser, Trenholm and Company nor any member of that firm, not one of them got into the box to say a word as to whether what was said by Da Costa and by the workmen was true or untrue. If it was untrue they knew it, and if it was untrue any one of those witnesses were able to contradict it; but they were not able to do so.

LORD CHIEF BARON. That really is very questionable, as to Mr. Miller at all events. Mr. ATTORNEY GENERAL. If Miller did not tell Da Costa what he stated, he might have got into the box to contradict him.

Mr. BARON BRAMWELL. The more vile a witness the easier to contradict. Mr. ATTORNEY GENERAL. It is new to me that where there is positive and direct evidence by a person who is not, in cross-examination, shown to be unworthy of credit, whatever may be said as to a certain forwardness of manner, and that he appeared to be zealous in his evidence, although I do not believe that he was so to such an extent as to demand the observations which were made upon it; yet, still, if the man was in court who could have contradicted him, who knew whether it was true or false, and did not choose to come forward, upon this state of the evidence to say that a jury could be justified in finding a verdict against the evidence, imputing perjury to all these people, I cannot understand. Now, as to its being proposed to call Miller, Miller was not a claimant on the record at all; but as to the possibility of calling every one of the defendants themselves, the point is so clear as matter of law that I think you will see that it is entirely beyond all dispute.

Now, my lords, take the foreign enlistment act, and remember the dates. That act was passed in the year 1819.

LORD CHIEF BARON. Was not Miller named in the information?

Mr. ATTORNEY GENERAL. Miller was charged, but he was not a claimant. going into the technical difference between claimant and defendant. LORD CHIEF BARON. Miller was in the information.

I am not

Mr. ATTORNEY GENERAL. Miller was one of these persons charged in the information as having done the acts from which the forfeiture resulted. He did not come forward as claiming the ownership of the vessel.

LORD CHIEF BARON. Because the vessel did not belong to him. He is in the information, and he was a party to the act.

Mr. ATTORNEY GENERAL. He was not a party to the record. The information contains merely a narrative of the causes which resulted in a forfeiture of the vessel, and if those persons, or any of them, or any persons unknown

LORD CHIEF BARON. He is charged with the offense contained in the information. Mr. ATTORNEY GENERAL. That is quite true; he is charged in the information as having committed the offense, but he is not brought here as a criminal. It is not a criminal information or proceeding.

LORD CHIEF BARON. Âll I meant to say was, it raises the question whether a person against whom the information is directed can be a witness.

Mr. ATTORNEY GENERAL. I do not think, with great deference to your lordship, that it does raise that question, although the question is one which is of easy solution, because the law, against persons being witnesses or not under the laws relating to the customs and inland revenue, merely applies to defendants.

LORD CHIEF BARON. There is no distinction in the information between those who come in to claim the vessel and those who do not.

Mr. ATTORNEY GENERAL. The information is against the ship, and the statement of the names is merely narrative. Strictly speaking, “persons unknown" are as much mentioned in the information as those who are named in it. It is merely narrative, and no person was a party to the information in any sense or form, excepting the claimants who claim the property.

But, my lords, I do not want to dwell upon that, because, if Miller had been a claimant, the case would have been just the same. At the end of the seventh section of the act of Parliament are the words under which the question arose, namely, that the seizure may take place under the forms of the laws of customs and excise, or of the laws of trade and navigation. Now, I must remind your lordship that two branches of law are referred to. It says, "That every such ship and vessel with the tackle, apparel, and furniture, together with all the materials, arms, ammunition, and stores which may belong to or be on board of such ship or vessel, may be prosecuted and condemned in the like manner and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation."

LORD CHIEF BARON. This was a proceeding under the customs and excise.

Mr. ATTORNEY GENERAL. It was not, indeed. This is not a proceeding under any law except the foreign enlistment act. The foreign enlistment act says, "That any such ship may be proceeded against," that is in rem, in like manner and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of customs and excise, or of the laws of trade and navigation.

LORD CHIEF BARON. And the proceeding is according to the mode of the customs? Mr. ATTORNEY GENERAL. Clearly so. I ask your lordship's attention to this. It does not say that this is to be deemed a proceeding under the laws of customs.

LORD CHIEF BARON. We discussed that to a certain extent the other day, and all that could be said about it is, that the proceeding is under the excise laws, although the offense is committed under the foreign enlistment act.

Mr. ATTORNEY GENERAL. Strictly speaking, if I may take the liberty of saying so, I should almost doubt, whether it was right to say that the proceeding is under the excise laws, because, in proceeding under this act, it only says, "in the like manner, and in such courts as ships or vessels may be prosecuted and condemned for any breach of the laws, made for the protection of the revenues and customs and excise." LORD CHIEF BARON. It is conducted by the same officer, and proceeds exactly in the

same way.

Mr. ATTORNEY GENERAL. That is perfectly accurate.

LORD CHIEF BARON. Then the question is whether, along with that, there do not go all the exceptions and all the provisions which belong to the excise laws.

Mr. ATTORNEY GENERAL. But let me examine that question.

LORD CHIEF BARON. It is not worth while to do so. Any parties are entitled to say, I will not put myself into the box in a case of this description; I will not condescend to give you my opinion.

Mr. ATTORNEY GENERAL. Of course, every one is entitled to say that.

LORD CHIEF BARON. It is one of the elements upon which the jury will decide. Mr. ATTORNEY GENERAL. If he does that, I think every one moving for a new trial, upon the ground of the verdict being against the weight of evidence, would be entitled to say that that is one of the elements to be taken into consideration.

LORD CHIEF BARON. Do you mean to say that therefore a new trial ought to be granted on that ground? I, for one, should hesitate before I should make that a ground for granting a new trial in a case of this sort.

Mr. ATTORNEY GENERAL. I merely say that a verdict being against the weight of evidence is a proposition proved by showing what the evidence was, and that it was all one side, although given in the presence of those who were able to have contradicted it on the most material points if they could truly have done so. I say, under this act, the procedure is to be after the manner of the laws of customs and excise, or under the laws of trade and navigation. The evidence act of the 14th and 15th Victoria, chapter 99, says distinctly in the second section that "On the trial of any issue joined, or of any matter, or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such action, suit, or other proceeding may be brought or defended, shall, except as herein after excepted, be competent and compellable to give evidence, viva voce, or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action, or other proceeding. III. But nothing herein contained shall render any person, who in any criminal proceeding is charged with the commission of any indictable offense, or any offense punishable on summary conviction, competent or compellable to give evidence for or

against himself or herself or shall render any person compellable to answer any question tending to criminate himself or herself." It is quite clear, therefore, that this gives him—until subsequent legislation takes it away-gives a defendant or a claimant in a proceeding like the present the right of giving evidence on his own behalf, although he could not be compelled to criminate himself. Did any subsequent proceeding take that away? I submit, clearly not.

LORD CHIEF BARON. I think it is hardly worth while to discuss a question which I think is of an exceedingly doubtful character, and of which I do not see the termination.

Mr. ATTORNEY GENERAL. I shall bow to your lordship's opinion if you think it is not worth while to discuss it.

LORD CHIEF BARON. If the question were to arise before me in the sittings after term, I should certainly reserve the point for the opinion of the court. I should receive the evidence as I always do if there is any difficulty about it.

Mr. ATTORNEY GENERAL. I should have thought that it was plain that the right to give evidence on his own behalf given by that act could not be taken away by such words as we find in the two subsequent acts of Parliament, namely, that the defendant shall not be a witness in substance in any case relating to the customs.* It might be most injurious to take away that right, and surely that right is not to be taken away from him by an act which speaks of proceedings under the laws relating to customs, if this is not an act properly relating to customs. It is, however, enough for me, if the matter is assumed for the present purpose in my favor. At the trial nobody suggested that it would not be competent for any of these persons to offer themselves as witnesses if they pleased.

LORD CHIEF BARON. So said the attorney general, but you are quite mistaken if you include the judge in that opinion. I did not say anything. I did not think I was called upon to say whether the attorney general was right or wrong.

Mr. ATTORNEY GENERAL. I do not mean to imply that your lordship had an opinion, which you did not express at the time one way or the other. What I meant was, that nothing passed to lead to the conclusion, either from what was said by Sir Hugh Cairns or by the late attorney general, that it was doubted on either side that Mr. Miller might have been put into the box, and also the other parties. There was no suggestion anywhere of that kind.

LORD CHIEF BARON. Excepting that not one syllable was said about it until the case was over, and it was only when the attorney general was replying that the question was raised. Sir Hugh Cairns did not tender witnesses, and he might not have tendered them, because he might have thought that they were not evidence. There was no opportunity. The question never arose at all. The point was never discussed. The opinion of no one but the opinion of the attorney general was ever made public at all.

Mr. ATTORNEY GENERAL. The thing took the only course which it possibly could have taken under the circumstances.

LORD CHIEF BARON. No. Sir Hugh Cairns might have tendered the witness, and the attorney general might have objected to him.

Mr. ATTORNEY GENERAL. Sir Hugh Cairns did not tender the witness, and did not suggest that as a reason for not tendering him. Sir Hugh Cairns suggested other and totally different reasons, reasons which he was perfectly entitled to state, and in which I entirely concur from the bottom of my heart, namely, that it was incumbent on the Crown to make out its case, and no one could call upon the defendants to put themselves or any one else into the box if the Crown had not laid before the jury sufficient evidence of its own case. Undoubtedly my friend was right in that; but he did not suggest that he entertained any doubt, that, if he had considered it expedient to put them into the box, they might not have given evidence; nor did he so reply, when the attorney general made the remark which your lordship has alluded to, and when something passed from the bench to the effect, that it was unusual for the attorney general to assume that any particular person was opposite to him in court. It was said you may assume that the gentlemen are all here, and that they might have been put into the box. Sir Hugh Cairns deliberately chose not to tender them; and I am prepared to prove, to your lordship's satisfaction, I hope, that no one could have successfully objected to their evidence if offered; because the evidence act had given them the right.

LORD CHIEF BARON. We cannot decide that now, and I think it hardly worth while to discuss it.

Mr. ATTORNEY GENERAL. I will not proceed further with it; but I think, under the circumstances, I am entitled to have it assumed in my favor that those persons who might have been tendered as witnesses, and as to whom it appears to us that they would have been competent witnesses-persons who might have contradicted the evidence given in my favor if it were not true-they did not offer to come forward into the box to give evidence for that purpose.

* 18 and 19 Vict., c. 16, s. 36, and 20 and 21 Vict., c. 62, s. 14, and vide note, p. 238, ante.

My lords, I shall conclude by very shortly referring to the point as to there being no rule for a new trial in such a case as this. It is settled by the case of Attorney General vs. Rogers, reported in the 11th Meeson and Welsby, and by another case reported in the 1st Crompton, Meeson and Roscoe, that when a jury in a penal action had found a verdict for the defendants, through a misapprehension of the law, if the court thought that there was any reason to believe that, whether by a mistake of the learned judge's direction, or through any other cause, they had been so misled, there would be a new trial. My lords, those are cases applicable to penal actions properly so called; and that rule, as far as I am aware, never yet has been extended to an information in rem of this description. The state of authority as to informations in rem, where you have not defendants to deal with but claimants coming in to claim property in possession of the Crown, seems to be this. In the books of practice, (though they are not conclusive authorities, they show what the law has been understood to be,) in Manning's Exchequer Practice, at page 180, your lordships will find the law stated thus: "A new trial will be granted where the justice of the case requires it, although the verdict be for the defendant." That is stated as applicable to informations in rem. I find in a note to Bateman's Excise Law-I will merely mention the passages without reading them—at page 66, the same thing is stated; while, on the other hand, the practice applicable to defendants in penal actions is accurately stated at page 161 in the same book. That case in Bunbury, to which my friend Mr. Mellish referred, is a case of an information in rem. It is reconcilable with the other authorities, because it relates to a different subject-matter, as to which the other authorities are totally silent. "Whether a new trial can be granted on an information of seizure, when a verdict is for the defendant." The twelfth section of the statute on which that case arose is a section which says, the goods are to be seized by the officers of the customs, and obviously to be dealt with in that way.

Now, my lords, I have concluded all the observations which I have to offer your lordships upon this case. I cannot but think that your lordships will deal in a way that will be satisfactory to the Crown and the public with this case. We are not here in an atmosphere where any argument of prejudice, either one way or the other, can prevail. The matter has been fully considered, and I have not the slightest doubt that your lordships' judgment in this case, in the way in which you will deal with it, will be entitled to, and will receive from those who may have to comment upon it hereafter, the same respect which has been justly paid to the long series (for it is a long one) of the decisions of the American courts on a similar act of theirs. I must say decisions most honorable to the country, and to the tribunals, from which they have proceeded; because that act was passed, as your lordships are aware, under circumstances of peculiar difficulty, when the irritation and the animosity resulting from the war of independence had not passed away, when the recent obligations of the United States to France were fresh in their memory, when the sympathies of the whole country ran breast high with the revolutionary party in France and against the powers of Europe who were then at war with the French republic. Under those circumstances it was that Washington caused to be introduced that act; and in every single trial that has ever taken place under it the judges of the United States have manifested a lofty and most upright determination to give full and fair effect to it, not straining it either in the direction of popular bias or prejudice, or of mercantile interest; and on the other hand, not straining it in favor of the commonwealth against the subject. We do not wish our own act to be strained in favor of the Crown against the subject; but we do desire that it shall be established by your lordships' judgment that those great and most important objects, to promote which that act was passed, will be found to have been effectually accomplished by that act, and that the great and most serious mischief which the act points out as the mischief which it was intended to remedy, may be effectually repressed by the construction which, from your lordships, that act shall righteously receive; and that the whole matter may not turn out to have been entirely misunderstood by the legislature which was engaged upon it, and a futile instrument, incapable of being successfully applied, placed in the hands of the Crown. Adjourned until to-morrow at 10 o'clock.

FIFTH DAY.-SATURDAY, November 21, 1863.

Mr. SOLICITOR GENERAL. My lords, after the full and complete, and I might almost say exhaustive argument of the learned attorney general, I feel my duty to be a light one, and I shall be enabled to shorten the observations which otherwise it might have been my duty to address to your lordships. At the same time, this, the first occasion on which the courts of this country have had to consider the foreign enlistment act, appears to me to be one of so great importance that I am induced to ask your lordships for your indulgence for a short time while I address to you some observations which appear to me to bear upon the matter.

My lords, I think it may be convenient for me to follow the order in which my learned friend Sir Hugh Cairns and the attorney general have addressed themselves to this question, and I will accordingly, in the first place, say a few words upon the principles