it be clearly understood that you move on the ground of misdirection, and that the bill of exceptions is abandoned.

Mr. ATTORNEY GENERAL. Yes, my lord.

Mr. BARON BRAMWELL. Let it further be understood, if you please, that we must take my lord's report of what he directed, and act upon that.

Mr. ATTORNEY GENERAL. That I understood also.

Mr. BARON BRAMWELL. And further, supposing that upon the ground of the verdict being unsatisfactory for any reason, we in our discretion grant or refuse the rule, no appeal will be from it under the rules which we announced yesterday.

Mr. ATTORNEY GENERAL. Unless your lordships think fit to grant one.

Mr. BARON BRAMWELL. Nay, there is no appeal except upon a matter of law. If we should be of opinion that there was no misdirection, but that nevertheless the jury may have acted upon some wrong opinion, and grant a new trial upon that ground, it would not be competent to the defendant to appeal. On the other hand, if we should be of a different opinion, and refuse the rule, and you should desire to take the opinion of the court of error upon that question, it would not be open to you to do so. I wish to state for my own part, and I believe I may say for my lord and my brethren, that it is desirable that those three matters should be clearly understood, namely, that you abandon your bill of exceptions, that we take my lord's report of the direction, and there is no appeal from our decision by either side, except upon a matter of law.

Mr. ATTORNEY GENERAL. I am entirely bound by that. Of course, when I speak of misdirection, your lordships will understand me to include in that both of these propositions, which I perceive from the books have been grounds upon which new trials have been granted in various cases, namely, the omission to give a proper direction, and also such a direction which in one sense might have been justified, but which, as it was given, had a tendency to mislead, and my have misled, the jury.

Now, my lords, I will first state to your lordships the way in which the question arose. The information was filed by the Crown after the seizure which had taken place in the yard of Messrs. Miller and Sons, or Mr. Miller, of Liverpool, who is a ship-builder there; the information was filed upon the 25th of May. There were ninety-eight counts in that information, the great number being rendered necessary by the rather complicated structure of the clause in the act of Parliament upon which it was founded. In substance it charged the persons whom I am going to mention, and other persons unknown, with various acts against the seventh section of the foreign enlistment act. The persons, my lord, so charged upon the face of the record were these, the members of the firm of Miller and Sons, or what was supposed to be that firm, (I believe it turned out and was stated in the evidence that Mr. Miller carried on business alone,) who were the builders of the vessel, and in whose yard she was when she was seized-in whose actual possession was she when she was seized, the firm of Fawcett and Company, who are, I believe, manufacturers of machinery at Liverpool, who came forward as the claimants, and said that the vessel was theirs, the firm of Fraser, Trenholm and Company, whom we proved, as your lordships will find by the evidence, to be the general agents for the business of the Confederate States (so called) of America at Liverpool, a person named James Bulloch, or Captain Bulloch, who was a special agent of those States at Liverpool for their belligerent business, and a person named Tessier, also employed in that business. Those two individuals, Bulloch and Tessier, and those three firms, Miller and Sons, Fawcett and Company, and Fraser, Trenholm and Company, with other persons unknown, were all charged in every count of the information with the different acts in violation of the foreign enlistment act which were alleged.

Now the separate counts, my lords, were founded upon the language of the seventh section, to which I will just shortly refer your lordships at the outset, not offering any argument upon it at present, but merely that its structure should be observed. The seventh section of the foreign enlistment act 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" in the disjunctive.

LORD CHIEF BARON. Have you an abstract of the information?

Mr. ATTORNEY GENERAL. I have, my lord; but I am afraid that it is in a shape not very ready accessible to your lordship.

LORD CHIEF BARON. It will answer my purpose; there was one handed up to me,

which I have somehow mislaid.

Mr. BARON BRAMWELL. I should think one might take it for granted that whatever offense was in the act was included in the information, there being ninety-eight counts. Mr. ATTORNEY GENERAL. Yes, I think your lordships may take that for granted. LORD CHIEF BARON. I should like to have a copy of the abstract.

Mr. ATTORNEY GENERAL. I am afraid that I have not a copy of any abstract.

LORD CHIEF BARON. I could take one of the solicitor general's.

Mr. SOLICITOR GENERAL. I have not a separate abstract.

LORD CHIEF BARON. Has any gentleman one.

Mr. ATTORNEY GENERAL. I think that probably this will do, my lord. My learned

friend Mr. Jones has one. (The same was handed up to his lordship.) My lords, perhaps without going into too much detail, I may state in a few words that you will find in the clause of the act these different heads, which were all taken by the informationfirst equipping, then furnishing, then fitting out; we did not charge arming.

LORD CHIEF BARON. That is the very point which I wanted to call attention to. Mr. ATTORNEY GENERAL. We did not charge arming.

LORD CHIEF BARON. I was not quite certain, but my recollection was that arming was not charged at all in the information.

Mr. ATTORNEY GENERAL. No.

LORD CHIEF BARON. Nothing was charged but equipping, fitting, and furnishing.
Mr. ATTORNEY GENERAL. Equipping, furnishing, and fitting out were charged.
Mr. BARON CHANNELL. Each separately charged?

Mr. ATTORNEY GENERAL. Each separately charged. Then, my lords, attempting or endeavoring to equip, attempting or endeavoring to furnish, attempting or endeavoring to fit out, were also each separately charged; then procuring in like manner, then knowingly aiding, assisting, or being concerned in like manner, each of those in the disjunctive being made a separate offense by the statue. And, my lords, I ask particular attention to this, because we humbly think that the learned judge at the trial entirely overlooked the existence in the act of Parliament of provisions against attempting, or endeavoring, or procuring, or knowingly aiding, assisting, and so on, and addressed, if not his mind, at all events his observations, entirely to the notion of a complete equipping, furnishing, or fitting out in the sense which his lordship considered that those words ought to bear. Of course we charge in each case that these acts were done with the intent mentioned in the statute, which I apprehend will be found by your lordships to be the gist of the offense, the prohibited, intent, which is this "with intent or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people;" the words follow, "as a transport or store-ship." There is no reason to suppose that this vessel fell within these words, " or with intent to cruise or commit hostilities against any prince, state, or potentate, &c., with whom his Majesty shall not then be at war." That was the charge made by the information, and, my lords, it was met by a claim put in on behalf of Messrs. Fawcett, Preston and Company, the engineers whom I have mentioned at Liverpool, who traversed generally the whole of the information, supporting their locus standi in the manner which the customs consolidation act provides for. The act is the 16 and 17 Victoria, cap. 107, section 309, which provides this: "That no claim nor appearance shall be permitted to be entered to any information filed for the forfeiture of any ship or goods seized for any cause of forfeiture and returned into any court, unless such claim or appearance be made by or in the true and real name or names of the owner or proprietor of such ship or goods, describing the place of residence and the business or profession of such owner or proprietor; and if such person shall reside at London, Edinburgh, or Dublin, or within the liberties thereof, oath shall be made by him before one of the judges of the court into which the said ship or goods are returned, or in which such information is filed, that the said ship, boat, or goods was or were his property at the time of the seizure; but if such person shall reside elsewhere," (which was this case, for in this case the claimants resided at Liverpool,)" then oath shall be made by the attorney by whom such claim or appearance shall be entered, that he has full authority from such owner to enter the same, and that to the best of his knowledge and belief such ship or goods were at the time of the seizure thereof the bona fide property of the person in whose name such claim or appearance is entered;" so that, to give a locus standi under the statute, and to guard against merely fictitious claims by persons having no interest whatever which can be bona fide put forward or alleged. In this case an affidavit of the attorney was required, and was made-that he believed that at the time of the seizure these gentlemen were the bona fide owners. Of course it was only an affidavit to secure a locus standi in curia; it would not for any other purpose be evidence as to the circumstances, if they should become material, connected with the ownership.

My lords, I now come to the evidence which was given at the trial, and I think it will be convenient, having mentioned the grounds on which I move, that I should invert the order of opening the case, and should state to your lordships the effect of the evidence, applying it to the act of Parliament in my own way, so as in the first instance to support that ground of my motion which rests on the verdict being against the evidence, and I will afterwards come to the direction of the learned judge. I think your lordships will be of opinion, when you hear that direction, that the jury never had any opportunity whatever of giving a verdict upon the effect of the evidence, in reference to that view of the act of Parliament upon which the Crown proceeded; it was, in fact, not left to them at all; it was left to them in a totally different way, so as to preclude the exercise of judgment by them upon what we regard as the true and the material question. I am now going to tell your lordships what the evidence was.

Now, the clause in the act of Parliament substantially divides itself into two points namely, that there must have been a furnishing, fitting out, or arming, or an attempt or an aiding, and in this case I should prefer taking my stand upon the words "attempt or endeavor" and "aid" and so on, because the thing was not actually completed. That being so, the evidence of course will be found to be addressed to these two material points: first, the existence of such an attempt or endeavor, and secondly, the intent and the purpose with which it was going on, those are the two things. If there was an attempt or endeavor to do it with the prohibited intent, the statute was violated. The evidence, therefore, of necessity had to be addressed to those two subjects; and I will now bring under your lordships' notice, as concisely as I am able, the material portions of the evidence bearing upon those two points, and your lordships will recollect, while I do so, that it was uncontradicted evidence-I mean that no evidence whatever was called upon the other side; this evidence, therefore, was the only evidence upon which the jury had to form their opinion.

Now I will first of all take the evidence as to the vessel, and her condition as to prearation and equipments at the time when she was seized, and afterward the evidence as to the intent. We will take the first head first-the evidence as to the condition, character, and state of the vessel, and preparations and equipments. Now it appeared from the evidence of the custom-house officer, Mr. Morgan, who had charge of the vessel, and who seized her, that she was launched in March, that she was seized upon the 5th of April, that at the time of the seizure she was incomplete, but that she had three masts on, with lightning conductors, and portions of her machinery and other fittings actually on board, and other portions in progress. Now with regard to her character and the objects and purposes for which she was constructed and built and being fitted out, we have evidence which I will give your lordships, as far as is necessary, in detail; but I will give the effect of it first in a few words-that she was built as and for a gunboat; that she had bulwarks and a rudder adapted only and peculiarly fit for purposes of war; that she was certainly unfit for any mercantile purpose whatever, though she might possibly have been used for a yacht; that although she had at the time when she was seized no fittings actually placed upon her to enable her to receive guns, yet it wanted only work which could be done at any time, and with the greatest facility, to adapt her to receive two or three pivot guns, which would be the proper number for her, which would sweep over her bulwarks and make her serviceable as a gunboat, for which she was meant. So much with regard to her character. Then with regard to the fittings

LORD CHIEF BARON. Will you allow me to call your attention to what a captain in the royal navy said of her?

Mr. ATTORNEY GENERAL. I am going to give it to your lordships in detail.

LORD CHIEF BARON. He said, "She is without any of those appurtenances which indicate an intention of guns being put on board."

Mr. ATTORNEY GENERAL. I have already said so, my lord; but he also said, as I shall show by the evidence immediately, that it could be done at any moment of time, and therefore, she being seized when incomplete, of course not everything would be done, and probably those things would be left to the last which were most unequivocal with regard to the determination of her character and her purposes. I wish your lordships to see what it was that was done, what the evidence did prove upon that subject. I am going to mention one thing more. All that I have hitherto said connects itself with the structure of the vessel; but then there was further evidence going to what I apprehend is in the strictest and most appropriate sense fitting, furnishing, and equipment, as distinguished from construction, namely, evidence as to the machinery, the engines, the boiler, and other things of that description constituting part of the furniture of the vessel, thereby to enable her to go to sea, which were either actually on board or actively in progress at the time. There was also further evidence as to certain hammock nettings and stanchions, of which your lordships shall have the detail; and there was evidence, not, perhaps, so directly and unequivocally connected with the vessel, as to the preparation of gun-carriages and guns for the ship.

I have told your lordships the effect, generally, of the evidence, and I am now going to give you some of the details of it as far as is necessary. I will, first of all, take the evidence of Mr. Barnes, an engine driver, which, my lords, is at pages 39 and 40. LORD CHIEF BARON. Of what?

Mr. ATTORNEY GENERAL. Of the print from the short-hand writers' notes which I hold in my hand of the evidence.

LORD CHIEF BARON. Which we have not a copy of at all. Probably you will have the kindness to furnish it; it is not so necessary for me because I have my notes. Mr. ATTORNEY GENERAL. It is from the short-hand writers' notes, my lord. LORD CHIEF BARON. I have never had that at all for any purpose.

Mr. ATTORNEY GENERAL. I am sorry your lordship should not have it in your hand

while I have it.

LORD CHIEF BARON. I certainly now see it for the first time. I have bad nothing

furnished to me but a copy of half of Sir Hugh Cairns's speech, the reply of the attorney general, and my own summing up.

The QUEEN'S ADVOCATE. I will hand up my own copy to your lordship.

LORD CHIEF RARON. It is not for myself that I want it, because I have my own original notes, to which I shall adhere; but it would be desirable that my learned brothers should each of them have a copy.

Mr. ATTORNEY GENERAL. My lord, I am about to read from a book which has been printed by my opponents; it is their corrected copy of the short-hand notes, which I prefer reading to reading ours, which does not, of course, differ from it; but there are some passages which may have been corrected in some way by them, and I prefer taking their copy.

LORD CHIEF BARON. If you have the benefit of a printed book I think you should at least give my learned brothers the benefit of it, that they may have the same advantage. Mr. ATTORNEY GENERAL. That, my lord, is the same book as the one which I am about to read from, (a copy being handed up to the bench.)

LORD CHIEF BARON. Have you not the means of giving a copy to each of the court? Mr. ATTORNEY GENERAL. I wish, my lord, that we had; but with some difficulty as to identifying the paging, which I dare say is not very great, (I dare say my learned friends who are with me will follow me,) the other book, which is our copy, may be used in the absence of a sufficiency of our opponents' copies.

Mr. BARON PIGOTT. Mr. Attorney General, we had better not take your copy, which is turned down.

Mr. ATTORNEY GENERAL. I rather intended to use myself the book which was furnished to me on the other side; it is their copy.

LORD CHIEF BARON. Have you no spare copies of your own edition?

Mr. ATTORNEY GENERAL. Yes, my lord, that is our own.

Mr. SOLICITOR GENERAL. We have sent for one or two copies, my lord, and they will be here.

Mr. ATTORNEY GENERAL. This is the evidence of Barnes; these are short passages. I am not going to trouble your lordships with a needless detail. He was, my lords, an engine driver in Messrs. Millers' employment, and he states in his evidence that he bad been concerned in the yard in the building of three gun-boats, one called the Oreto, of which I shall say nothing, and two called the Penguin and the Steady, which were built for the English government.

Mr. BARON CHANNELL. We understand you that having given us, as you say, your statement as to the general effect of the evidence, you are now going to analyze the evidence upon the one point first?

Mr. ATTORNEY GENERAL. Yes, my lord.

Mr. BARON CHANNELL. And you will afterward take the other evidence as it supports the other points which you make?

Mr. ATTORNEY GENERAL. Just so. He speaks, my lord, of having in the yard of Messrs. Miller been concerned as their servant in the building of three gun-boats, two of which were built for the English government, called the Penguin and the Steady, and the third was called the Oreto, a boat of which I will say nothing, though most people have heard of her. At the bottom of my page 39 he is asked this

The QUEEN'S ADVOCATE. It is page 37* in the other copy, (the official copy.) Mr. ATTORNEY GENERAL. "Do you recollect a screw steamer called the Alexandra being built there?-Yes," he frequently went over her. "What is she like?-She is like the other gun-boats, only smaller. Is she like the Oreto?-Yes, she is like her, only smaller. Like the Oreto, the Penguin, and the Steady, only smaller?-Yes, only smaller." That is what Mr. Barnes said at page 39 and at page 40.

Mr. SOLICITOR GENERAL. I have found another copy of the larger book; it is the same as Mr. Baron Pigott has, I think. (The same was handed up to their lordships.) Mr. ATTORNEY GENERAL. I do not think I need trouble your lordships with anything else which Barnes said.

Then comes Hodgson, a packer in the service of the claimants, Messrs. Fawcett and Company, who were making the machinery, and in page 54 of the smaller book, and in page 51t of the other, he proves this, that he received orders in the yard of the claimants, Messrs. Fawcett and Company, to take the machinery, clenches, and bolts, which he identifies as made for this vessel, to the gun-boat. This was his evidence upon the subject; he is asked, "Did he," (that is, Mr. Speers, the manager or foreman of Messrs. Fawcett and Company's works,) "give you any orders?—Yes. What were the orders?— To see if the things were ready, and to take them if they were ready, as the men were waiting for them in the yard. To take them where ?-To take them up to Mr. Miller's yard, or to the boat. Or to where ?-To the gun-boat. Those," he adds, were the words of Mr. Speers, as far as I remember. SIR HUGH CAIRNS.-As far as you recollect?-Yes." Then he is asked, "Where did you take them in consequence of that order?-I took them to the yard, and left them in the stores of Miller's yard. What became of them afterwards?-The men would be waiting to use them when I got there. What ship was it?-The ship now called the Alexandra. Was the Alexandra in the † See page 29.

* See page 21.

66

stocks at the time?-Yes. You saw the things in consequence of that order taken to the Alexandra?-Yes, the men have been waiting for them, and when I have taken them they have said, 'Are those for the gun-boats?" and I have said 'Yes.'" That is the evidence of the packer. Now, your lordships recollect that this packer Hodgson is the servant of Fawcett and Company, the claimants, who are making the machinery. The ship is identified not only by the evidence which I have read, but also by the number 2,209, by which she was known by the packer of Messrs. Fawcett and Company.

Then we have two persons who are very conversant with ship-building business, and the captain in the navy, to whom my lord has referred. The two persons to whom I allude are Mr. Black, a ship carpenter, a very intelligent witness, and Mr. Green, a ship-builder. I will take what Mr. Black says about the bulwarks, at the bottom of page 65 of my book.

The QUEEN'S ADVOCATE. It is at page 62* of the other.

Mr. ATTORNEY GENERAL. He mentions several things respecting the strength of the frame, and so on. But I will take him up where he speaks about the bulwarks. “Did you examine the bulwarks?-Yes. Did anything strike you with regard to the bul warks; were they the bulwarks of a merchant vessel?-No. For what reason were they not?-From their extraordinary strength. Did you mark anything with respect to their height?-Their height is about two and a half feet. Is that high or low ?-It might do with regard to height for a merchant vessel, but it is generally higher for a merchant vessel." That is, as I understand, that a merchant vessel generally has higher bulwarks. "But you say that the bulwarks were stronger than are used in a merchant vessel? Yes. And likewise lower?-Yes. What are the upper decks made of?-Pitched pine. Have you ever seen pitched pine used for the decks of any vessel except vessels of war?-No. You never have ?-No, except they are between decks. Do you consider this vessel altogether unadapted to mercantile purpose?-It is not qualified for mercantile purposes."-Then the form of the question is altered. "For what is she adapted?— She is adapted for war purposes. What is her appearance?-A very fine appearance, she looks a handsome piece of architecture, very fine lines, capable of great speed according to the power of machinery. ___What kind of war vessel should you say she has been built for? SIR HUGH CAIRNS.-He says she is adapted for,' not 'built for.'" The answer is "for a gun-boat."

Then at page 107, I think, comes Mr. Green.

The QUEEN'S ADVOCATE. It is at page 102 of the other book; he is examined twice. Mr. ATTORNEY GENERAL. He was a ship-builder of many years' experience at Liverpool; he examined the ship, he is asked "How was she built?-I found her bulwarks differently formed from any merchant vessel or any other vessel than a vessel of war." Then he is asked to go on with the description; he says, "The bulwarks, to which I first alluded as being different from any other vessel but a ship of war, were composed of very thick planks, three inches thick inside and out. LORD CHIEF BARON.-What was it?-It was teak. The QUEEN'S ADVOCATE.-What was the thickness?-The inside and the outside planks were three inches thick in the lower part, and two and a half inches thick in the upper part, and they were about two and one-half feet deep. That would be from the deck to the top. Do I understand from you that that is an unusual thickness for a merchant vessel?-Yes." He says that she had three masts, and a propeller under water. He gives her dimensions; it is not a large ship of the kind. "Did you observe her rudder?-The rudder was very strong, and a very thick-formed rudder, unusually so. Was it thicker and stronger than would be used for a merchant vessel!It was." Then he comes to the hammock racks, which I will observe upon presently. I will pass it over now, because that I think belongs to the furniture rather than to the

structure.

Then I think that I may go to page 111 in his cross-examination.
The QUEEN'S ADVOCATE. It is at page 105 in the other book.

Mr. ATTORNEY GENERAL. He is asked this.

LORD CHIEF BARON. Who is this?

Mr. ATTORNEY GENERAL. Mr. Green. "Just one word about the bulwarks of this vessel; you say they are peculiarly strong?—I do. Does your knowledge enable you to tell me whether in a vessel of that construction it is necessary to have the bulwarks strong to strengthen it-They have nothing to do with the strength, it has rather a tendency to weaken the vessel than to strengthen her. Did you examine the build of the vessel below?-I did not examine her very distinctly below. Was she in the water at the time you saw her?-In the water. Will you tell me as a ship-builder whether it is not a fact, that bringing up the bulwarks with additional strength added to the strength of the vessel?-No, it did not, it weakened her; it was an unnecessary weight unless for resistance of shot." I think that that is all upon that subject.

Then comes Captain Inglefield, to whom my lord has referred; his evidence in my book is at page 61.

The QUEEN'S ADVOCATE. It is at page 58|| in the other copy.

Mr. ATTORNEY GENERAL. He was a witness whom everybody agreed in appreciating very highly, and I will, therefore, read his evidence, which is not long, pretty nearly

* See page 35.

† See page 57.

See page 59.

See page 33.