SECOND DAY, TUESDAY, June 23, 1863.

LORD CHIEF BARON. I have to give my decision upon the question of evidence. I may as well, before the jury are all returned, shortly state the grounds upon which I propose to act every day. This was a case of seizure by an officer of the Crown on the ground of forfeiture for a breach of the law enacted by the 59th George III, c. 69, and it is the seventh section of that act under which the present proceeding takes place. The proceedings are similar to those which very frequently come before this court for a seizure for a breach of the revenue laws. There is, however, this distinction between the present case and those which so frequently occur in this court, that I believe I may say in general (I am not now aware of any exception) none immediately occurs to my mind. at present, although I think it is very likely that there are some matters that are made misdemeanors, or may be so in some cases; yet, generally speaking, breaches of the revenue laws in this country, that is, the evading the payment of a tax or custom, although matter for an action, is not made a misdemeanor by any law that I am aware of in this country; whereas this particular matter is in the first instance made a misdemeanor. The provision of the statute is this: "If any person within any part of the United Kingdom, or in any part of his Majesty's dominions beyond the seas, shall, without the leave and license of his Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm," and so on, or "shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming," and so on, with the intent of breaking the directions of the foreign enlistment act, "every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof upon any information or indictment, be punished by fine and imprisonment." And then it is added, "and every such ship or vessel, with the tackle, apparel, and furniture," shall be forfeited, and it shall be lawful for an officer of the customs or excise to seize the vessel, and then a proceeding against her may be prosecuted, and the vessel may be condemned in such manner as, and in such courts as ships or vessels may be prosecuted for the breach of the laws for the protection of the revenue.

This case, therefore, has the special circumstance that the act creates a misdemeanor, and it certainly places (upon that point there can be no question according to the enactment) the parties as guilty of a misdemeanor and the vessel as forfeited. Now, certainly the impression upon my mind originally was, upon the abstract which was furnished to me, that it would involve an inquiry into the guilt or innocence of the present defendants, who now appear; and it raised the question whether they had been guilty of an infraction of the foreign enlistment act. It is to be observed that precisely the same matter which condemns the vessel to forfeiture subjects the party to fine and imprisonment. Now, generally speaking, there cannot be, as I own I think obviously there ought not to be, two trials for the same alleged offense; one to try whether the ship has been forfeited, and another to try whether the parties are guilty of a misdemeanor. If the ship has been forfeited, the parties whose conduct led to the forfeiture must be held guilty of a misdemeanor, and it would be a considerable inconvenience, and a manifest inconvenience, that there should be two trials, possibly with two different verdicts; certainly it would not lead to a creditable administration of the law. We next look to the evidence of what Mr. Miller, senior, said. I certainly considered that I was trying the guilt or the innocence of the defendants upon the record. I stated I would admit any evidence of an order or direction, accompanied by an explanation for what purpose it was given, but I thought mere admissions or statements made anywhere to anybody by Mr. Miller, senior, or his sons, or his men, will be evidence against the present defendants; and if the record, with its somewhat large number of counts, raised the question of the defendants' guilt or innocence, I should be of the same opinion still.

But the attorney general contends that this raises no question, as I understand him, of the guilt or innocence of the defendants, but merely of the propriety of the seizure. Now, to explain this, I do not think I can do any better than refer to the instance that I gave of the declaration of a shoemaker, who was making a pair of shoes. The instance is humble and familiar, and may be ordinarily called, perhaps, common place, but I selected it for the purpose of bringing immediately under the cognizance of all who might hear me the precise view which I took of the matter, and what I thought was the point to be decided. I stated that, in my judgment, if the question were raised whether a party accused of housebreaking were guilty or not, you could not give in evidence a declaration of the man who made his shoes for what purpose they were made. But the attorney general says I am not so using the word. This is what I understand, Mr. Attorney, that you contend. You say I am justifying this seizure of the shoes in the hands of the shoemaker, on the ground that it was unlawful to make shoes for the purpose for which he avowed he was making them, and that such shoes were liable to seizure. If this be the true state of the case, of the facts and of the record, it is a complete answer to the illustration that I gave. The question is, is it so? Now it is somewhat remarkable that this statute has been on the law books for, I believe, forty-three years, and yet there has been no instance hitherto of any seizure, and therefore there

never can have been any decision as to the proper mode of proceeding, and whether the question takes the aspect contended for by the attorney general, which had belonging to it some matters which appeared to me to raise a little question. And it is perhaps equally remarkable that the very able argument that I heard on both sides with respect to this question of evidence was not supported by a single authority in point of law, except by the learned solicitor general, who cited the case of Woolway against Rowe, which merely decided that that which would have been evidence, the man being dead, was equally evidence the man being alive; it decided that, and it decided nothing else, and I do not find that any question arises here as to whether the party is dead or alive. The discussion does not turn upon that, and the case of Woolway vs. Rowe proceeds upon the ground that undoubtedly every statement made by the owner of landed property, and while the estate entirely belonged to him, every statement which he made during his lifetime, the tendency of which would be to cut down his estate, is evidence against those who may afterward possess it. There is no doubt about that being the law. All that Woolway vs. Rowe decided was, that being the law in respect of the declarations of a person deceased, it is equally the law with respect to a former proprietor of the estate, he being alive. But I altogether agree with what fell from Sir Hugh Cairns, that that applies exclusively to real property, and a declaration, for instance, of a former holder of a bill of exchange most clearly is not evidence against any subsequent holder. That has been decided; I cannot say over and over again, but it has been decided, and has constantly been acted upon. I believe that the same rule applies to every species of personal property; the declarations of those who once were in possession of it are not evidence against those who afterward lawfully acquire it, and who are in no way connected in point of present interest with the persons making the declaration.

But then the question arises thus: While the ship was in the possession of Miller, are Miller's declarations evidence? No doubt they are against himself, but are they declarations in respect, not of the vessel when it came into the possession of and became the property of somebody else, but of the vessel during the time of the seizure, at which time it was, no doubt, in the possession-at least under the control-of Miller? Now, from the evidence already given, I have no doubt whatever that Mr. Miller, who is a ship-builder, was building the ship for somebody else. I shall be inclined to think that he was hardly capable of committing the offense which is charged in the 7th section. I think there is considerable doubt whether a mere ship-builder is such a person, unless you show distinctly that he is in concert with those who intend ultimately to dispose of the vessel. But the rules under which evidence is received or rejected appear to me to be these: In a question of doubt, if it be a civil case, the practice, and I think the correct practice, is to receive the evidence. In a criminal case the practice is to reject the evidence if it is doubtful. But the reason of that is that in a civil case if any error be committed by the reception of evidence, it can be cured by a new trial being claimed in the ensuing year in the court above. In a criminal case, if it be before a court of assize, or a court of quarter sessions, although, no doubt, the Court of Queen's Bench in criminal cases tried in that court may grant a rule for a new trial, and ultimately make it absolute, yet, generally speaking, the law of this country does not afford the means of retrying a criminal case heard before a court of assize or a court of quarter sessions, and, therefore, the rule is to reject the evidence. However, that rule does not apply to a case like the present, where there is provided the means of tendering a bill of exceptions, which you cannot do in ordinary criminal cases; and where you have the means of applying to the court for a new trial, which most certainly may be done in the present case, secundâ causâ, secunde educitur lex, inasmuch as a new trial may be here applied for, (and a new trial certainly may,) I do not think that the rule as to criminal cases applies. And therefore, in a doubtful case I think the evidence ought to be admitted. I have consulted my brother Martin only, for I have not had an opportunity of seeing any of the other judges. He entertains considerable doubt. I think he is rather inclined to think that the evidence is admissible; and for that reason, and for the reasons I have before stated, I shall now receive the evidence and let it go to the jury with such observations as may be made upon it. I suppose, Mr. Attorney, it is the same kind of evidence that you tendered before.

Mr. ATTORNEY GENERAL. It is stronger, my lord, but of the same class; it is declarations with reference to the ship.

SIR HUGH CAIRNS. Of course we bow entirely to the conclusion your lordship has expressed, with the very clear grounds upon which it is founded; but, although we are sorry that there should be that amount of inconvenience in proceeding in this case, it will be necessary, in point of form, to reserve the question in respect of the proceeding which your lordship mentions now with respect to a bill of exceptions. Your lordship will allow us at the proper time to have the case put in that form?

LORD CHIEF BARON. You may either tender a bill of exceptions, or move the court for a new trial on the ground of misdirection.

SIR HUGH CAIRNS. I only ask your lordship to reserve the point.

LORD CHIEF BARON. I cannot reserve the point; all I can do is to take a note of it.

Mr. MELLISH. In the bill of exceptions, as I understand, it will be stated, supposing it is a question of fact for your lordship, which I presume it would be, whether Mr. Miller, upon the evidence which has been taken, was building the ship for some one else, your lordship will find as the fact (supposing it be for you) that he was building the ship for some one else. It is a very essential part of raising our question, and it must be on the bill of exceptions.

Mr. ATTORNEY GENERAL. That would depend upon the state of the evidence at the close of the case.

Mr. MELLISH. No; upon the state of the evidence at the present moment.

Mr. ATTORNEY GENERAL. We tender the question, and your lordship admits it. I think it would be very inconvenient that we should be discussing now what may be the form of the bill of exceptions.

LORD CHIEF BARON. You spoke of tendering a bill of exceptions yesterday, Mr. Attorney.

Mr. ATTORNEY GENERAL. Yes, my lord; but the ground for the bill of exceptions has passed away.

LORD CHIEF BARON. Your bill of exceptions will not be tendered, then, I suppose? Mr. ATTORNEY GENERAL. Of course not; the question is admitted. How can I, except to a ruling in my favor?

SIR HUGH CAIRNS. With reference to the other remark of the attorney general, I think your lordship will consider that the bill of exceptions with regard to the time should proceed upon the evidence at present taken, and not upon the state of the evidence at the close of the case.

Mr. ATTORNEY GENERAL. The bill of exceptions will come in in proper time.

Mr. MELLISH. I beg pardon, the bill of exceptions must be tendered before the question is answered. Bills of exceptions to the evidence, I apprehend, ought properly to be tendered before the question is answered.

LORD CHIEF BARON. Certainly.

Mr. MELLISH. Then it cannot be tendered now.

LORD CHIEF BARON. I think you had better leave that for future discussion.

Mr. MELLISH. It is taken, then, that we tender it now?

Mr. ATTORNEY GENERAL. You will tender it in such terms as you think fit, we cannot interfere with that. Your lordship's ruling would now go to admit the question, which, yesterday, after a short and not very perfect discussion, was rejected, namely, as to whether any term was used by Messrs. Miller in their yards, descriptive of the Alexandra. To prove that, we will recall that witness.

LORD CHIEF BARON. I think you have got it already; one of the witnesses was eager and anxious to say that he knew it.

Mr. ATTORNEY GENERAL. The evidence will not occupy a moment.

LORD CHIEF BARON. He called it a gunboat.

Mr. ATTORNEY GENERAL. I should not propose to recall the witnesses, but one cannot tell what kind of opposing evidence may be adduced. We go on with Mr. Da Costa at present, upon whose evidence the second discussion arose.

Mr. JOHN DA COSTA called and further examined by the QUEEN'S ADVOCATE:

SIR HUGH CAIRNS. I think your lordship was good enough to take down the exact question upon which the discussion arose.

LORD CHIEF BARON. I have it.

SIR HUGH CAIRNS. Perhaps your lordship will favor us by reading it.

LORD CHIEF BARON. The question was this, "Did Mr. Miller, senior, on that occasion say anything to you as to what the vessel was intended for ?" The evidence was, "I went to see the trial trip of the Alexandra, the second trial, on the 3d of March, 1863. I saw the first trial, but I cannot say the precise time when the second trial took place. I saw Miller, senior, on the Monday, and I saw the boat called the Emperor ;" Then the question comes, "Did Mr. Miller, senior, on that occasion, say anything to you as to what the Alexandra was intended for ?"

Mr. ATTORNEY GENERAL. I think the objection would hardly be to that preliminary question, but to that which would follow.

LORD CHIEF BARON. The natural answer to that question would be only "Yes." I should call that rather a curt and shabby answer to that; the proper answer to that, and the natural answer to that, is "Yes," he, did he said so and so.

Mr. ATTORNEY GENERAL. The next question would be the question, "What did he say ?" LORD CHIEF BARON. The witnesses do not fence in that sort of way, unless they are told to do so.

Mr. ATTORNEY GENERAL. The objection will be to the question whenever it shall come, "What did he say ???

SIR HUGH CAIRNS. If my learned friend desires the witness to answer "Yes" or "No," I will not object to this question; but if my learned friend does not do that, I take the objection now.

Mr. ATTORNEY GENERAL. No.

SIR HUGH CAIRNS. Tell him to answer "Yes" or "No."

Mr. ATTORNEY GENERAL. We ask him the question and we leave him to answer it. The QUEEN'S ADVOCATE. I think there is a slight mistake in your lordship's note with respect to the time. I do not think this conversation took place at the time of the trial trip, but at another time. Let me put it again, first of all taking it up a little earlier to make it quite clear. (To the witness.) Do you remember a short time before the Emperor was launched having a conversation with Mr. Miller, senior?—Yes. When was the Emperor launched?-On the 8th day of January.

1863-Yes.

You say you remember having a conversation with him, and now I ask you what that conversation was?

SIR HUGH CAIRNS, (to the witness.) Do not answer. My lord, that would be a question to which we object, and your lordship, perhaps, will be good enough to take note of it.

The QUEEN'S ADVOCATE. Perhaps I had better put it, Had he a conversation with you about the Alexandra ?-Several times.

Now, then, I will ask you further: You had a conversation about the Alexandra ?— Yes.

Did he, in the course of that conversation, say anything to you as to what the Alexandra was intended for ?-On three different occasions

SIR HUGH CAIRNS. My lord, we object to that question, as your lordship is aware, and we shall tender, with your lordship's permission, a bill of exceptions upon it. The QUEEN'S ADVOCATE, (to the witness.) Now, answer my question. Did he, in the course of that conversation, tell you what she was intended for?-He did. What did he say ?—He told me she was a gunboat for the southern confederacy. Did he say anything to you at that time about a contract for the Alexandra?-He did, my lord; must I give you the exact words that passed?

LORD CHIEF BARON. Give us the best of your recollection of what passed. The QUEEN'S ADVOCATE. The question is, Did he say anything to you, then, about a contract for the Alexandra?—He said, "We, conjointly with Messrs. Fawcett, Preston and Company, are building this vessel for Messrs. Fraser, Trenholm and Company." Did he say for whom ?-They were the agents for the southern confederacy. SIR HUGH CAIRNS. Did he say that?-Those are the words he said.

The QUEEN'S ADVOCATE. What did he say ?-They were the agents; in the conversation that took place he several times said so.

In the conversation that took place he said several times that they were the agents for whom?-For the southern confederacy.

Had you any other conversations with him about the Alexandra, and for whom she was intended?--Yes, certainly.

What did he say at those other times?--It was the same sort of thing.

LORD CHIEF BARON. It was to the same effect?—Yes.

The QUEEN'S ADVOCATE. Were these conversations that you are now speaking to before or after the launching?-Before the launching.

Were these conversations which you have last spoken to before or after the one you have mentioned ?-These were after.

And on several occasions you say he said the same thing?—Yes.

At these times was the Alexandra still on the stocks in Messrs. Miller's yard ?-She

was.

LORD CHIEF BARON. What progress had she made then?—At the time of this conversation or before?

At the time?—They were driving copper bolts through the timbers and planking at that time.

The QUEEN'S ADVOCATE. I think you said yesterday that he was employed in making a tug-boat for you?-Yes.

Do you remember his saying anything to you about taking away the men from your tug to lay the blocks of a gunboat?—Yes.

SIR HUGH CAIRNS. I object to that.

The QUEEN'S ADVOCATE. Did he say anything to you as the reason why he took away the man from your tug?

SIR HUGH CAIRNS. Did he take away the men?

The QUEEN'S ADVOCATE. Did he say anything to you about taking away the men from working on your tug?—Yes.

What did he say to you?

SIR HUGH CAIRNS. Before that is answered, I submit to your lordship whether this has anything to do with the Alexandra?

The QUEEN'S ADVOCATE. The answer will show.

Those men were taken away for the laying of the blocks, to lay the keel of a gunboat.

4 A C-VOL. V

At the time that he said that, did he make any gesture-did he point to anything?The block lay right close to our tug.

Did he point to them ?-He pointed; they were there, and the men at work at them. Did you afterward see any vessel upon these blocks which he pointed to ?--Yes. What vessel ?—The Alexandra that is now.

Do you remember having a conversation with Mr. Miller upon the subject of the Alexandra in November, 1862 ?—I do.

Do you remember whether he said anything about the name of the vessel on that occasion, in November, 1862 ?—He did.

What did he say?-Alexandra.

Tell me what he said.-He said that the vessel-the gunboat-was to be called the Alexandra.

Did you ask him any question why she was to be called the Alexandra ?—I did. What was the question?—I asked him, was that the name of some state or city, and he said it was.

Did he say where it was?-He said it was in the southern States; I think that was the word.

Did he say anything about its agreeing with any other name ?—He said it was in unison with the Alabama and the Florida.

Upon this point I will ask, did he ever speak of the Florida, as you call it, by any other name ?-The Oreto.

You have told us about a conversation in November, 1862. Do you remember having a conversation with him in December, 1862? Do you remember having another conversation with him in the next month ?—Yes.

Do you remember anything in that conversation being said about guns ?-I cannot say; I do not remember about the guns.

You do not remember anything being said about guns?—Not in December.

Do you remember anything being said about copper?-Yes.

What was it?—I said I thought we had a great deal of copper going on board for a vessel of that size.

What did he say ?-He said it did not matter; the parties that they were for did not care for expense.

Do you remember at any time his saying anything to you about a gun in connection with the Alexandra, or guns?-Nothing; only gunboat, that is all.

That is all you remember?—Yes.

Do you know Mr. Welsman and Captain Tessier ?-I know Captain Tessier quite well; Mr. Welsman only slightly.

Do you know him by sight; Mr. Welsman, I mean?—Yes.

Did you ever see Mr. Welsman in Mr. Miller's yard during the time when the Alexandra was building ?—I did.

LORD CHIEF BARON. Did you see Captain Tessier?

The QUEEN'S ADVOCATE. This is Mr. Welsman, my lord, that he says he saw.

To the witness: Is Mr. Welsman a member of the firm of Fraser, Trenholm & Co. ?— He is.

They are merchants at Liverpool, I believe?—Yes.

LORD CHIEF BARON. What firm ?-Messrs. Fraser, Trenholm and Company.

The QUEEN'S Advocate. Did you see him more than once?—Yes.

Did he do anything when he was there?—I saw him giving orders for one of the men to work at this boat.

That is this Alexandra you mean ?—Yes.

Did you see him doing that more than once?-The order; that was only once.

Did you see him doing anything else beside giving orders?—He was always inspecting round about.

Always inspecting, do you say -When I saw him.

Do you know Captain Tessier; I think you said you did?-Quite well.

Have you seen him there during the time the Alexandra was being built ?—Yes. More than once?-Yes.

Have you seen him there frequently?—Yes.

Have you heard him give any orders respecting the gunboat ?—I did not hear him give any orders.

Have you seen him do anything?—He was always about her superintending.

Messrs. Miller and Sons, you say, were making a tug-boat for you; when you dealt with them under what name did you deal with them; how did you deal with the Millers, as a firm or as a single person?—I always took them as Messrs. Miller and Sons.

This is the way in which you dealt with them?-I believe the contract is only signed by Mr. Miller himself.

Did you see the son in the yard ever?—Yes.

Which son was that ?-Thomas.

Was he frequently in the yard ?—Always.