The equipping therefore must be either as a transport or store-ship, or with the intent to cruise or commit hostilities. So also must be the furnishing, fitting out, or arming. It may be said that in this case there was no reasonable evidence upon which the jury could find that this vessel was equipped as a transport or store-ship, therefore you may leave those words out. Then it may be said that there was no equipment of her of such a kind that she could cruise or commit hostilities, and that therefore that part of the intent fails to be made out. Now I understand that to be a difficulty which has been felt in the construction of this act of Parliament, and I throw it out for your consideration if it has escaped you.

Mr. ATTORNEY GENERAL. I am very much obliged to your lordship. It has not escaped me; but my answer is this, that the act is intended to prevent and not to punish; steps which are being taken to that end are steps which, if taken with that intent, are as much against the act as the completion of those steps would be. It is perfectly plain that the ship was meant to be completed in some way or other; she was in course of equipping; she was in course of furnishing; she was in course of fitting out, and if the evidence was such as to show that her object and purpose was to be employed as a war ship, it is clear that she would be completed for that purpose, and that any equipments not yet given which were necessary for that purpose would be added at one time or another, the whole being in pursuance and in completion of one and the same intent; and an authority in the United States, to which I shall have occasion to refer, at all events has distinctly laid it down that it is not at all necessary that the entire equipment, without which the ship cannot be effectually employed upon this service, should be made in this country, provided that any part is made here.

Mr. BARON CHANNELL. Do you say that the statute points to something incomplete? Mr. ATTORNEY GENERAL. The words "attempt or endeavor" plainly point to something wich is incomplete.

LORD CHIEF BARON. Suppose the case of the building of a mere hull with the intention that it should be towed away across the Atlantic by a tug, and suppose that there was some confederate port open, which there is not, that hull being incapable in that state of being used for any purpose whether of merchandise or war, do you mean to say that that would be illegal?

Mr. ATTORNEY GENERAL. That would raise an entirely different question.
LORD CHIEF BARON. Would it be illegal?

Mr. ATTORNEY GENERAL. I will assume for a moment that it is not illegal.

LORD CHIEF BARON. I am bound to say that if it be illegal you would be entitled to your rule at once, because no doubt I meant to lay down distinctly that the mere hull of a vessel, in no condition fit for any use whatever, might be made and sold at Liverpool to anybody.

Mr. ATTORNEY GENERAL. My case does not in the least degree require that I should argue the case imagined by your lordship, which is obviously not one which is very probable and practical, would be brought within the words, "equip, furnish, fit out,

or arm."

LORD CHIEF BARON. The court will adjourn for a short time.

[After an interval,]

LORD CHIEF BARON. Mr. Attorney General, we have availed ourselves of the opportunity of the court adjourning for a short time to consider the matters which you have brought before us; and without in the least saying what the opinion of any member of the court is as to the ultimate fate of the rule, I certainly, for one, and I believe all my brothers are of the same opinion, think that what you have stated is unquestionably matter fit to be discussed. If, therefore, you are content now to take a rule to show cause why the verdict should not be set aside as being contrary to the evidence, or as not being warranted by the evidence, being contrary to the weight of it, and on the ground of misdirection on the part of myself at the trial, or on the ground that though there might be no positive misdirection, there might be such a want of information furnished to the jury as not to enable them fairly to discharge their duty-if you are contented to take a rule upon those two grounds, dividing the second into either positive misdirection or imperfect direction, you may take a rule to show cause at once.

Mr. ATTORNEY GENERAL. I thank your lordship; that is what I have been asking your lordships for, and of course, being told that I may have it, I have no more to say. LORD CHIEF BARON. Very well; take a rule to show cause.

Mr. ATTORNEY GENERAL. My lords, my learned friends remind me that it will be necessary in drawing up the rule to state the grounds of the rule.

LORD CHIEF BARON. I hope that I am not wrong in this. I believe that you may take the rule precisely in the terms which I have announced. If you like to put it more shortly as misdirection or imperfect direction, you can do it.

Mr. ATTORNEY GENERAL. That is very satisfactory to me, my lord.

Mr. BARON CHANNELL. We understand that that will include the incomplete infor

mation.

LORD CHIEF BARON. Perhaps you had better take it in the language in which I pronounced it when I addressed you just now.

Mr. BARON PIGOTT. Misdirection enables the court to mold the meaning of that word by-and-by; misdirection is understood, but non-direction is not recognized as a ground for a rule.

Mr. ATTORNEY GENERAL. If that is so technically, of course we are quite satisfied to abide by the proper form.

Mr. BARON BRAMWELL. There can be no doubt that it must be stated wherein. the misdirection consists; but surely there will be no difficulty about it; Mr. Jones will attend to that.

Mr. JONES. It is only with reference to the terms of the rule of court upon the subject. If we go into the court of error they will say, "You ought to have specified it." Mr. BARON BRAMWELL. If there should be any difficulty, I daresay that myself, or one of my learned brothers, will settle it.

LORD CHIEF BARON. I may state to you, Mr. Attorney General, that I imagined that I had taken pains, and I hoped that I had laid down the law as I understood it to be laid down by the highest possible authority, at least now, in what is called "another place;" some people call it "another place."

Mr. ATTORNEY GENERAL. Your lordship may be aware that any authority to which your lordship may be referring, is incapable of defending himself here as to what he has said in another place, or vindicating that from misinterpretation.

LORD CHIEF BARON. I thought that I was remarkably safe in taking that course. After all I may have been wrong.

Mr. ATTORNEY GENERAL. If I can divine the sentiments of any person to whom your lordship may be alluding, I may take the liberty of saying, that I understand that person to have vindicated the conduct of his own government in that other place; and at the same time to have said, that in his judgment, although it may not be infallible, the Alabama had offended against the law of the land.

[After a short interval,]

Mr. ATTORNEY GENERAL. My lords, I have received from the officer of the court an intimation which I am afraid makes it necessary for me to refer again to a subject which I thought had been disposed of. I am informed that the grounds of misdirection must be stated on the brief.

Mr. BARON BRAMWELL. Yes.

Mr. ATTORNEY GENERAL. I am quite content to state those which we conceive to be the grounds of misdirection, if that is meant.

Mr. BARON CHANNELL. The technical mode of drawing up the rule would be, that there was misdirection in this, then mentioning what you suppose to have been the misdirection; and if the court has granted you the rule on the ground of incomplete or imperfect direction, then to state the grounds of that incomplete and imperfect direction.

Mr. ATTORNEY GENERAL. We shall be at liberty to state that in our own way?
Mr. BARON CHANNELL. Yes.

LORD CHIEF BARON. Mr. Attorney General, the terms of the rule, of course, should be submitted to the court before the rule is granted. There will be no difficulty about that. I have no doubt that Mr. Jones will so frame it that either the court will assent to it, or he will assent to what the court suggests as the mode.

Mr. BARON BRAMWELL. Of course, Mr. Attorney General, as I understand, we cannot possibly allow a rule to be drawn up saying that the chief baron misdirected in this, when he says that he gave no such direction; of course we cannot do that.

Mr. SOLICITOR GENERAL. There is the difficulty.

Mr. ATTORNEY GENERAL. What I had proposed was to have extracted verbatim from the short-hand writer's notes certain passages to which we should object, which probably would not be excepted to. I have made a division into six heads of the language as it stands on the short-hand writer's notes; and I should have been disposed to have placed every one of them upon the rule.

LORD CHIEF BARON. I will see Mr. Jones upon the subject if necessary.

Mr. BARON CHANNELL. There will be no difficulty about it.

Mr. SOLICITOR GENERAL. I rather understood from your lordships, if I may be allowed to say so, that in this particular case you would allow the rule of practice to be somewhat modified by a more general statement than usual.

LORD CHIEF BARON. We will see whether that can be done.

Mr. SOLICITOR GENERAL. Very well, my lord; we will try what we can do. LORD CHIEF BARON. It should be observed, and it may be quite right that I should state it in public, that when the attorney general presented to me the paper I made the instant objection to it which I have made all along.

Mr. ATTORNEY GENERAL. Yes, my lord, we are quite aware of that.

LORD CHIEF BARON. I said "I certainly did not mean this, and I do not believe that I have done it," and if the objection had been taken, as I must say I think it ought to have been, a little earlier, and if an intimation had been given to me I should have corrected it at once, and have said "Gentlemen of the jury, it is supposed that I have said so and so; I mean nothing of the kind. On my own behalf I must say that the

12 A C-VOL. V

learned attorney general now remembers that the moment the paper was put into my hands I said, 'Mr. Attorney General, that is not mine."". At present we need only say this-I repeat that if Mr. Jones will communicate with me upon the subject I have no doubt that we shall be able to put upon the rule everything which you wish to put upon it.

Mr. ATTORNEY GENERAL. I should think so; I should wish to do it, with your lordship's permission, by taking the very terms of the short-hand writer's notes, including the final passage to which your lordship has referred, and then it would open to us the alternative view which your lordship has mentioned, namely, that even if the direction properly interpreted should be considered to be right, still it might possibly have the effect of misleading the jury.

The court then made the following rule:

In the Exchequer, Thursday the 5th day of November, 1863, between her Majesty's attorney general, informant, and Hermann James Sillem and others, claiming the Alexandra, defendants.

BY INFORMATION OF SEIZURE.

Upon the motion of Sir Roundell Palmer, knight, her Majesty's attorney general, it is ordered by the court that the said defendants do within a week after service of this rule, or a copy thereof, show cause to this court why the verdict found for the defendants upon the trial of this cause before the right honorable the lord chief baron of this court, at the sittings in Middlesex after Trinity term last, should not be set aside, and a new trial of this cause had, on the ground-1st, that the verdict was against the evidence; 2d, that the verdict was against the weight of evidence; 3d, that the learned lord chief baron did not sufficiently explain to the jury the construction and effect of the foreign enlistment act; 4th, that the learned lord chief baron did not leave to the jury the question whether the ship Alexandra was or was not intended to be employed in the service of the Confederate States to cruise or commit hostilities against the United States; 5th, that the learned lord chief baron did not leave to the jury the question whether there was any attempt or endeavor to equip, &c.; 6th, that the learned lord chief baron did not leave to the jury the question whether there was knowingly any aiding, assisting, and being concerned in the equipping, &c.; and 7th, that the learned lord chief baron misdirected the jury as to the construction and effect of the seventh section of the foreign enlistment act.

W. H. WALTON, Q. R.

TUESDAY, November 10, 1863.

Application to the court to fix a day to move to make rule for new trial herein absolute.

Mr. SOLICITOR GENERAL. Would your lordships allow me to ask you if it would be convenient that the case of the Alexandra should be taken upon this day week, that is to say next Tuesday. I have been requested by the attorney general to put that question to the court.

LORD CHIEF BARON. Of course the rule has been served.

Mr. SOLICITOR GENERAL. Yes, my lord.

LORD CHIEF BARON. My impression is that the earliest possible day is that which the court would make convenient for the purpose of hearing that argument. I need not remind you, Mr. Solicitor General, that although we are happy on any occasion to receive the courtesy of the law officers of the Crown in inquiring whether a day will be convenient to the court or not, still we are in some measure bound to take the day which is mentioned by the law officers.

Mr. SOLICITOR GENERAL. Yes, my lord; at the same time I was requested to put it to your lordships whether next Tuesday would be a suitable day.

LORD CHIEF BARON. This day week?

Mr. SOLICITOR GENERAL. This day week.

LORD CHIEF BARON. Certainly.

Mr. BARON BRAMWELL. Had we not better consider this, that Wednesday is a special paper day; but I should think that when the argument was once begun we had better go on with it, had we not?

Mr. SOLICITOR GENERAL. I should think so, my lord.

LORD CHIEF BARON. From day to day?

Mr. SOLICITOR GENERAL. From day to day. I should think that that would be the better course.

Mr. BARON BRAMWELL. I think that it had better be understood by the bar, and be known that we shall not take the special paper on the Wednesday.

Mr. SOLICITOR GENERAL. It will be understood that the Alexandra case goes on from day to day?

Mr. BARON BRAMWELL. Yes; if it lasts over a day.

LORD CHIEF BARON. May I ask, Mr. Solicitor General, as you have mentioned the matter, whether there was a short-hand writer at the trial, both for the Crown and for the defendants?

Mr. SOLICITOR GENERAL. I believe there was, my lord. I was not then in the case. LORD CHIEF BARON. I am aware of that.

Mr. SOLICITOR GENERAL. I think so.

LORD CHIEF BARON. There is no doubt that there was a short-hand writer's note. Mr. SOLICITOR GENERAL. No doubt, my lord.

LORD CHIEF BARON. I think it right really to mention, with respect to myself, as we see mistakes made upon the matter, that there is no doubt there was a short-hand writer's note that there is no doubt about?

Mr. SOLICITOR GENERAL. No doubt whatever.

LORD CHIEF BARON. Agreed upon by both parties.

Mr. SOLICITOR GENERAL. I believe so.

LORD CHIEF BARON. And never objected by me at all; on the contrary, accepted as the faithful record of all that passed.

Mr. SOLICITOR GENERAL. Yes, my lord.

LORD CHIEF BARON. And I wish to state publicly here that I objected to the bill of exceptions in the first instance, and on the ground upon which I have continued to object to it.

Mr. SOLICITOR GENERAL. Yes, my lord.

LORD CHIEF BARON. I did so before the jury had left the box, instantly, the moment it was put into my hands, and my reason for not immediately arguing it or pointing it out was this, that there being a short-hand writer's note, I said: "Every word which has passed has been taken down, there can be no doubt as to every syllable which has been uttered in court, and therefore no mistake can be made upon the facts, they are all agreed upon, therefore there is no occasion to argue the matter now. You have tendered a bill of exceptions, but if you wish to alter it conformably to a more correct view of the facts, you can do so." That was the substance of it. It is very true that I said "I will accept any bill of exceptions;" but of course that must mean, "I will accept any bill of exceptions which is warranted by the record of the evidence." Mr. SOLICITOR GENERAL. Of course, my lord.

LORD CHIEF BARON. I wish that really to be distinctly and publicly understood and known.

Mr. SOLICITOR GENERAL. Quite so, my lord. Of course there is no misunderstanding about this, that now the rule is substituted for the bill of exceptions.

LORD CHIEF BARON. And I have no doubt, Mr. Solicitor General, that you will agree with me that there being clearly a right of appeal, the proceeding by this motion is far more beneficial to the Crown than going on the bill of exceptions alone.

Mr. SOLICITOR GENERAL. If I might give an opinion, I should say far more so, my lord.

Mr. BARON BRAMWELL. No doubt.

LORD CHIEF BARON. Unfortunately the attorney general became ill, and my communication with him ceased, but I was about to suggest the propriety of bringing the whole matter before the court, by motion, instead of going on with the bill of exceptions.

Mr. SOLICITOR GENERAL. Your lordship did make some suggestion of the kind, I think.

LORD CHIEF BARON. Yes, I believe I did.

Mr. SOLICITOR GENERAL. Your lordship did.

LORD CHIEF BARON. My memory upon the subject was appealed to. There is nothing of the sort. The record of the facts was agreed upon between us, and there is no doubt whatever that the facts were unchangeable, and have never been changed from that moment to this.

IN THE COURT OF EXCHEQUER AT WESTMINSTER-MICHAELMAS TERM, 27TH VICTORIA. Before the lord chief baron, Mr. Baron Bramwell, Mr. Baron Channell, and Mr. Baron Pigott.

THE ATTORNEY GENERAL v. SILLEM AND OTHERS, claiming the vessel Alexandra. Argument on motion to make rule nisi for new trial absolute.

FIRST DAY, TUESDAY, NOVEMBER 17, 1863.

The LORD CHIEF BARON. Mr. Attorney General, have you anything to move? Mr. ATTORNEY GENERAL. My lord, in the case of the Attorney General vs. Sillem, I believe that in point of form I ought to move to make the rule absolute.

The LORD CHIEF BARON. That you ought to do.

Mr. ATTORNEY GENERAL. I make that motion.

LORD CHIEF BARON. Sir Hugh Cairns shows cause.

Mr. ATTORNEY GENERAL. Yes, my lord.

SIR HUGH CAIRNS. My lords, before I proceed to address your lordships, I may perhaps be permitted to ask whether it is proposed by your lordships that the notes of the evidence should be read before the argument proceeds.

LORD CHIEF BARON. If you think that desirable, of course I will read the notes.

SIR HUGH CAIRNS. No, my lord, I cannot at all say that it would be what we should ask, because it will be my duty, in the course of the observations which I have to offer, to comment upon parts of the evidence, and it might perhaps lead to my reading what your lordships had already heard.

LORD CHIEF BARON. There is a published copy of what took place at the trial, which, generally speaking, is correct enough; there are some verbal inaccuracies in it, one of which I shall have occasion to point out, probably, in the course of the argument. But the learned attorney general the other day, in moving for the rule, went over a very great part of the evidence. The court, I believe, is already in possession of the case as much as if it heard the evidence. If I recollect rightly, the evidence occupied the greater part of two days, and unless you think it necessary that it should be read by the bench, that is to say, by myself, who presided at the trial, I own that I do not think that it is necessary for the argument.

SIR HUGH CAIRNS. My lord, I am quite in your lordship's hands; I do not at all suggest that it should be done.

LORD CHIEF BARON. No, I should say that we are rather in your hands; if you desire it to be read it shall be read.

SIR HUGH CAIRNS. If your lordship puts it in that way, I should say that it would be more convenient that it should not be read; but, of course, if any question should arise as to the published report to which your lordship has referred, we shall be corrected by any notes which your lordship may have upon the point.

LORD CHIEF BARON. Mr. Attorney General, you do not require the notes to be read? Mr. ATTORNEY GENERAL. No, my lord.

LORD CHIEF BARON. Have you any note of the motion?

Mr. ATTORNEY GENERAL. You lordship means of the motion which I had the honor to make?

LORD CHIEF BARON. Yes.

SIR HUGH CAIRNS. We have a short-hand writer's note of what took place on the occasion of the motion being made.

Mr. ATTORNEY GENERAL. My lord, we have in print an uncorrected and not very accurately printed document from the short-hand note. I have no doubt your lordships would readily see the inaccuracies wherever they were material.

SIR HUGH CAIRNS. My lords, I have the honor of attending your lordships in this case on behalf of the defendants, for the purpose of showing cause against a rule which has been obtained by the attorney general for a new trial, upon grounds which have been divided into seven different heads. My lords, as to some of those grounds one can have no doubt, simply looking at them, as to what the meaning of them is, and what is the argument proposed to be adduced in support of them. For example, I find that the first and second grounds upon which the rule has been obtained are these: "First, that the verdict was against the evidence; secondly, that the verdict was against the weight of evidence." Those are expressions which of course we all understand and are prepared to meet. Then I find that the fourth ground is, because "the learned lord chief baron did not leave to the jury the question whether the ship Alexandra was or was not intended to be employed in the service of the Confederate States, to cruize or commit hostilities against the United States." That, again, my lords, is a ground which definitely states what the objection is, and which can be met accordingly. So, also, with regard to the fifth and the sixth grounds, which assert "that the learned lord chief baron did not leave to the jury the question whether there was any attempt or endeavor to equip," and "that the learned lord chief baron did not leave to the jury the question whether there was knowingly any aiding, assisting, and being concerned in the equipping." My lords, all those grounds are definite. But then there remain two further grounds, which are numbered the third and the seventh, the third being "that the learned lord chief baron did not sufficiently explain to the jury the construction and effect of the foreign enlistment act," and the seventh being "that the learned lord chief baron misdirected the jury as to the construction and effect of the seventh section of the foreign enlistment act." My lords, I cannot avoid saying at the outset that those are grounds which, as I find them in the rule, I am bound to suppose are in accordance with the practice of the court; but at the same time they impose on those who, like myself, have cast upon them the duty of showing cause against a rule of this sort, a task which it is very difficult to discharge, because they inform us that after I have been heard, and my learned friends who appear with me have been heard, we are then to expect an argument of the grounds and of the nature of which we are not in any way forewarned. We are told that your lord