because these gentlemen were. I submit to your lordships that this evidence is certainly receivable, and that it would nullify altogether the statute, if the contrary should be held.

The QUEEN'S ADVOCATE. Your lordship will permit me to make a very few observations in support of the proposition I ventured to state shortly to your lordship before, that the fact of these proceedings being in rem distinguishes the case from any precedent.

The LORD CHIEF BARON. Now I understand what you meant.

The QUEEN'S ADVOCATE. That is what I meant certainly. "Brevis esse laboro, obscurus fio," was very much the case. Your lordship will allow me to make a few observations that may contribute to throw light upon the case which is now before your lordship. Let me ask this question: Suppose this vessel had been equipped, furnished, fitted out, and armed for the illegal purpose mentioned in this act, before Messrs. Fawcett and Preston became possessed of her, can anybody doubt that she would be forfeited to the Crown? She would have been forfeited to the Crown before Messrs. Fawcett and Preston took possession of her.

The LORD CHIEF BARON. Yes.

The QUEEN'S ADVOCATE. And how can the title of the Crown be divested by the fact that she was sold with a bad title to Messrs. Fawcett and Preston afterward, which would have been the case? And yet a decision which shut out the means of showing that she had de facto been forfeited to the Crown would be tantamount to giving a title to Messrs. Fawcett and Preston. May I also ask, my lord, supposing this case was to be looked at before the statute of Victoria, chap. 107. Supposing chap. 107 had not passed, would not the issue, divested of technicalities, plainly be this; as under the 59 Geo. III, c. 69, sec. 7, it is "res," this vessel had been forfeited to the Crown-that would have been the question and the fact; a subsequent statute has enabled a particular person in making a particular affidavit to contest that that question could not shut out any evidence which would otherwise have been receivable. My lord, there is an analogy, I do not say it is exact, (it is not,) but there is an analogy which those who practice in the prize court are quite familiar with. The claimant in the prize court may be a totally different person from that person whose evidence condemns the vessel. The question I would really submit is, has any act been done to this vessel by any person which under the provisions of this statute has forfeited it to the Crown? And if that has not been the case are not we, who appear for the Crown, entitled to show that by the declarations of the persons who have done that act whereby the ship has been forfeited, they are not practically and substantially, and for all the purposes of justice, the real defendants, though another person may be the claimant, in order that the question may be raised before the court? My lord, I am sure your lordship would be averse to put any construction upon this estate which would really rob it entirely of its efficacy; because, my lord, it is perfectly clear from what the solicitor general has said—and I will not travel over that ground again; I should not only be putting water into his wine-it is perfectly clear that any person might come forward— almost any person, certainly before the statute, anybody without any fear of any penalty might come forward-the very person perhaps who was least interested in the vessel might have come forward, and by his coming forward have prevented the only evidence which could have condemned the vessel being laid before your lordship. I really do think, my lord, that for these reasons, regard being had to the peculiar nature of the proceedings, none of the precedents which your lordship has stated would be militated against, by admitting the evidence of the person whom we charge as being the owner at the time the vessel was forfeited.

Mr. LOCKE. My lord, I wish to make one or two observations in this case. Your lordship asked what the issue was. Now I humbly submit to your lordship that the issue is, have not these persons who are named in the information

The LORD CHIEF BARON. Including the present defendants and others.

Mr. LOCKE. Done to the Alexandra any of the acts which are expressed here, namely, equipped, fitted out, or procured to be fitted out, any one of these things alleged in the information with the intent of equipping that vessel against the federal States, which were at peace with this country?

That, I submit to your lordship, is the issue in the case, and if your lordship will look at the first count in the information, it will be quite sufficient. It is not necessary to look into any reason, because they merely vary as to the acts as they appear in the seventh section of the act of Parliament, and likewise vary as to the names they give to the federal States and the Confederate States. But in the first count in the information there is quite sufficient for my purpose to point out the view which I take of this case. Now that information directly states that these persons, naming them all, the two Millers appearing as the two first, did equip this vessel with the intent which is made illegal in the act of Parliament. Very well, I submit to your lordship that they become all of them defendants by being so charged in the first count in the information. Then I ask how can these parties from a certain number of these defendants coming forward and saying "the vessel belongs to us," get rid of the liability of

the other defendants who are charged with these acts, which if they have committed those acts, has given the Crown the title to forfeiture? My lord, if the question were as to the proprietorship of the parties who make the claim, and if that were made the only issue that your lordship had to try, they ought to begin, they ought to establish their right to the vessel, and whether they have a right or not is perfectly immaterial. This vessel, I take it, might belong to the most innocent persons, and yet if it were used for the purpose and with the intent of attacking the federal States, if it were fitted up by anybody for that purpose, I take it, my lord, upon the seventh section of the act of Parliament, that that vessel would become forfeited. And therefore, my lord, if that be so, and if it be shown by the evidence that Messrs. Miller and Company and other persons were acting together or acting singly with reference to this vessel, if it be shown that there was a community of interest among them, so that they were acting together for one common object; then I submit to your lordship that any statement by Messrs. Miller, although it might not be evidence probably against any one of the other persons in the transaction, still, if they are defendants in this inquiry, is evidence against themselves; and if in the result it should be shown, by the evidence of the Crown, that any of these persons, (it is not necessary to prove that they all did it,) but that any one of these persons equipped this vessel for the purpose alleged in the information, then the Crown would have had a right to forfeit the vessel. The issue, as I submit to your lordship, is whether or not this vessel was equipped by any of these parties with the intent alleged in the information; and if that is made out, without reference to the ownership or without reference to their combining together, or any question of that kind, the issue is made out that the vessel was equipped for that purpose, and therefore she ought to have been forfeited. I submit, my lord, that looking at it in that point of view, it is quite immaterial to consider what were the claims of these parties to the vessel; because whoever it might belong to, still, if it is to be used for that purpose, the vessel is forfeited.

Mr. JONES. I will ask your lordship's permission to add one remark, which is that it is not asserted that this vessel is the property of Messrs. Fawcett, Preston and Company. It is no part of the issue whose property it is, therefore I apprehend the question is open to the defendant upon the evidence, unless it should appear to your lordship that upon the evidence as it stands it is probable it was not the property of Messrs. Miller and Company at the time these declarations are spoken of; it is for your lordship to determine whether, in so far as ownership is concerned, it ought not to be determined at once as a matter of fact, either by your lordship or in whatever way your lordship may choose to have it determined, in whose ownership it was at the time of the declaration. SIR HUGH CAIRNS. My lord, I cannot at all feel any regret that this question has been by your lordship allowed to be reopened; because I cannot help thinking that the more it is considered, upon the surer and more perfect grounds, the more your lordship's original view will be confirmed, and the arguments of my learned friends, I think, when they are examined, will not in any way be found to displace that view. There are one or two matters which we may get rid of at once and for all in order that we may not embarrass this question; the first is this question on the affidavit as to property.

The LORD CHIEF BARON. The affidavit, it seems to me, with great deference to the learned solicitor general, has really nothing to do with this argument. The affidavit is the condition upon which a party is allowed to come in, when he has come in there is an end of any comment about the affidavit. There he is; the question is, what is to be tried? It may have been very unwise to have made the provision for coming in, but when he is in there is an end of the affidavit; I have nothing to do with it at all. SIR HUGH CAIRNS. And the affidavit is conclusive as to the fact averred in it, viz: that at the time of the seizure the Crown is willing to admit, (whether it is wise or unwise I have nothing to say to it,) that certain persons who have made the affidavit or in whose behalf the affidavit is made were the bona fide owners.

The ATTORNEY GENERAL. We do not admit that; there is no question of ownership raised, but for the purpose of contesting the title of the Crown to the forfeiture. The LORD CHIEF BARON. They are let in to contest.

The ATTORNEY GENERAL. Just so, my lord.

SIR HUGH CAIRNS. I will read my learned friend's own statement. The affidavit as to Messrs. Fawcett & Co.'s ownership "must be taken to be true."

The ATTORNEY GENERAL. So the statute says.

SIR HUGH CAIRNS. So the statute says: and I desire to say nothing more, therefore, as regards the state of the seizure. For all the purposes of this proceeding, whether it is wise or unwise, I say again I care not; the legislature is content to say Messrs. Fawcett, Preston and Company are to be considered the true and bona fide owners. Now, my lord, let us consider for a moment what is the meaning of the phrase which is used in law, that this is a proceeding in rem. I apprehend that the meaning of it, and the only meaning, is this: that when judgment passes it is a judgment conclusive as to the status of the ship in question; it is a judgment which leads to certain incidents. It cannot be contested or differed from in any other proceeding. But as regards the mode

of trial, which is what your lordship has now to deal with. I say that is a perfectly different matter. The trial is a trial inter partes; it is a trial in which they are defendants, and they are called defendants on the record; they are admitted to plead, and they have pleaded, and the record before your lordship is a record containing the plea of the defendants; and therefore I apprehend the mode and form of trial must go on just in the way in which any trial goes on in a case in which there is a plaintiff on the one side and defendants on the other. And I will pray your lordship to be so good for a moment, as to observe first what the consequence of the argument on the other side is. Why, the consequence obviously is this, that all the Crown would have to do, in order to attain the end which is now contended for, would be to put into the information a large number of names, including the names of persons as to whom the Crown was perfectly sure that any admission that they desired might be got from some of them, to put in the names of all those persons and to say: "Now, we will open our case. We do not care who is supposed to be the bona fide owner or the defendant in the case; we will prove to you that Mr. John Smith in the street on such a day made such a declaration to some person or other." Turn to the information; you will find the name of John Smith in the information; therefore that is evidence (let the jury attach what weight to it they like) to show that John Smith made an admission, and if so it is evidence to be used on the record between these parties. Now, my lord, I apprehend that the very consequence to which the argument would go shows how intolerable the argument is, for I pray your lordship to observe that the whole of these names in the information are laid under a videlicet. It is not incumbent upon the attorney general to prove his case with regard to any one of these single names. Moreover, the information goes on to say that not only does it make this statement with regard to the persons named in it, but with regard to various other persons at present unknown to the attorney general. Therefore, according to my learned friend's argument, it is not the admission of Mr. Miller, it is not the admission of Mr. Prioleau, it is not the admission of one person or another; it is the admission of any person they like in the whole world that they would be competent to bring forward here and say, "We have alleged in our information that various other persons combined with Mr. Miller and these persons, and we give you the admission of any person we choose to give for the purpose." Now, my lord, I apprehend that the whole theory of admission in law proceeds upon this. The admissibility of admissions depends upon the persons who are the parties to the record, and if a person is a defendant on the record he cannot complain of this, that an admission that he has made out of the court is given against him, because he cannot dispute his own admission; and the purpose for which the admission is put in evidence is simply to dispense with the proof as against a person who, from his position on the record, is not able to dispute the statement which is so made. But I apprehend that the whole confusion on the part of the Crown is this, that they have confused the question of acts done with the question of admissions made. I will accept, for the sake of argument, this proposition, that my learned friends can give evidence of any act done by that individual, leaving the question to be considered how far the doing of that act will have a particular effect under the act of parliament or otherwise. But I affirm, and I affirm with confidence, that they cannot give evidence of statements made, of sayings said by that individual. Those are quite different matters. If that individual knows anything, he may be glad to state what he knows; but what he said in conversation I say cannot be used as evidence against any person except himself. If he is on the record, if he is here as a defendant, able to conduct his case, and to prove or to disprove the allegations against him, then, as a short cut, the Crown may prove what he said out of court because he is on the record and cannot estop it. But I say, as against a third person, you cannot give any evidence as to what that person said. And I pray your lordship to observe further what the consequence would be of the question which has been put by my learned friends being answered. Is the question which they have put an inquiry as to what Miller said about his own acts? I do not admit that, even if it was, that would be admissible; but the question which they put is this: What did Miller say about what the ship was intended for? which, of course, would go not merely to what he intended the ship for, but what other persons intended the ship for. And your lordship will remember how the evidence already stands in this case. My learned friend the attorney general has opened, and the proof so far has been attempted to be directed in accordance with his opening, to show that Messrs. Fawcett, Preston and Compauy at this very time, when the ship was in the yard of Miller, were directing and interfering with regard to her, and had a control over her entirely consistent with the evidence which they have given that they were the true owners. Therefore, the evidence which is attempted to be used in the shape of some statement to have been made or supposed to have been made by Miller is evidence not as to what the intention of Miller was, but by the very form of the question, it is what was intended with regard to the ship? which would be not merely what Miller intended but what any one concerned with the ship did intend. But I put it on shorter and simpler ground, and, as it seems to me entirely satisfactorily that it is of the essence of the admissibility of the declaration made by a person who is not a witness

in the cause, that the person should be a party to the cause, so that any admission made by him would be evidence. If it is not so, if the question is to prove some fact of something done to the ship, that must be proved as a fact done and cannot be proved, because some other person said it was done.

The LORD CHIEF BARON. I propose now to state what occurs to me upon the subject, in order that any other light may be thrown upon it to-morrow morning which the case admits of. It is very much to be lamented that this is the first time that the foreign enlistment act, which was passed, I think, some forty-five years ago, has ever been brought in question in a court of justice. And in looking at the foreign enlistment act, which mixes up some proceedings which may be taken in the case of a breach of the revenue laws, there is this remarkable thing about it; I believe I am right in saying that, generally speaking, smuggling has never been made a crime. There may be some offenses against the revenue which are misdemeanors, and some which are felonies; but ordinarily the cases which have come before this court are not a trial of an offense at all, and it may be that this is not. The learned attorney general or solicitor general has not pointed it out; but in this case the 7th section of the 59th Geo. III declares that not only the ship shall be forfeited, but 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 or imprisonment. And I know it appeared to me when I first took up the record (I took up only the abstract of it; I had not the least idea that it extended to this voluminous parchment) I imagined I was, among other things, trying whether the present defendants who came in and claimed the ship, avowed it was theirs, and asserted it upon their trial, were guilty of a misdemeanor by what they had done. And certainly I was disposed to try this case as I would any other for an offense, applying to it all the rules of evidence that belong to the criminal law, and certainly many others-applying this rule, that no man can be made guilty of any crime whatever by the admission of some other person that he, that other person, was guilty. But the case has this peculiar aspect about it: There is apparently mixed up with proceedings which are in the nature of proceedings in this court, in matters of revenue, a charge of misdemeanor. Now, with respect to what fell from Mr. Locke about Miller's being mentioned in the information, and, therefore, that what is evidence against them is to be received as evidence against the others, I hold that certainly not to be very valid reasoning.

Mr. LOCKE. I said against Miller himself.

The LORD CHIEF BARON. But he is not here to be tried. Miller is not here. The jury are not charged with any question whether Miller is guilty or not; therefore, as far as that ground goes, it ought to be precluded. But then I understand the way in which the learned Queen's advocate put it is this, "Yes, but Miller's admission is evidence to show that in a proceeding in rem against a ship the ship is forfeited." Well, I do not feel quite clear. It certainly is to be lamented that we are here without any precedent under the act of Parliament at all; and I do not imagine that the act of Parliament at all intended to introduce the strict administration of the revenue laws, with all that belongs to them, in a case where an inquiry is to take place, whether a party has been guilty of a crime or not. I imagine all the rules by which persons charged with crime are protected; and justice is, I believe, in this country most satisfactorily administered under those rules, and I do not imagine it is intended to deprive them of the benefit of them, by putting this question of seizing a vessel into this act of Parliament. This view was particularly pressed on me by the Queen's advocate. The question may be here not whether any person has been guilty in the least degree, but whether the vessel was properly seized. Then that would only raise this question. There is no doubt that with respect to all matters of revenue, whoever takes goods and endeavors to break the revenue laws with those goods, occasions the forfeiture of those goods, and it is no question whose they are. If a man takes any tobacco and tries to carry it where he has no right to carry it, according to revenue laws, it is thereby forfeited. I cannot step in and say "I am the owner." But query whether that applies to the case of the foreign enlistment act-whether the man whose property the ship is not, by anything he says or does, can make it liable to forfeiture.

And I still adhere to this, that the evidence I ought to look at is this, not so much whose is the property, as whether, under all the circumstances of this case, supposing this ship to be the property of the defendants, that is, of the persons who really appear and claim it, whether then any conduct of the other parties giving the appearance of assisting persons in a war with those with whom we are in amity, can afford ground for the forfeiture of the ship. As it is now nearly four o'clock, and it is so near the hour of adjournment, I propose to adjourn, and to get the assistance of my learned brothers, and see whether this evidence is admissible or not. Certainly, considered as a question of trying an indictment for crime, I should be of opinion that if I received the evidence I should endanger the verdict; but I think the proceedings would be altogether fruitless if I were to reject or admit evidence improperly.

The ATTORNEY GENERAL. My lord, we should not have tendered it in that case. Adjourned till to-morrow.

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 1 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