of importance to decide that, "it would be a question for you to decide whether it amounted to more than a strong suspicion, or whether it was so made out to your entire satisfaction." That does not seem like the language which would be used if his lordship had meant to say, the evidence appears so clear that you will not entertain a doubt upon the subject.

LORD CHIEF BARON. I have nothing to do with that.

Mr. BARON BRAMWELL. Mr. Attorney, let me call your attention to the last sentence but one of my lord's summing up: "If you think the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then that is a sufficient matter. If you find that, find for the Crown." That assumes that all the other requisites for a verdict for the Crown were established.

Mr. ATTORNEY GENERAL. Unless, my lord, it is to be interpreted as in substance a direction which necessarily leads to an adverse conclusion to the Crown, that his lordship did not think it was requisite to go into the other points.

Mr. BARON CHANNELL. It seems to me to make a great deal of difference in your argument in what way you are to understand the words, "Gentlemen, I do not propose to put that to you," because if his lordship, in expressing himself so, meant to lead the jury to suppose that that question did not arise, then they would understand the way in which he leaves the question at last as a leaving that excludes that consideration. Mr. ATTORNEY GENERAL. I own that is the way I viewed it, and view it still, in the interpretation of those words. I think the jury would naturally so understand it, in the final words his lordship uses, although no one can say that leaving the question in the terms of the act of Parliament is not right, provided those terms have been properly explained as far as they should have been; yet when you see there was no other explanation preceding, except that which we have seen; and again, the opposition between equipping, furnishing, or fitting out, or arming the vessel at Liverpool; or, on the other hand, "If you think the object really was to build a ship in obedience to an order and in compliance with a contract, leaving it to those who bought it to make what use they thought fit of it," I think the jury would naturally suppose that the knowledge which the builder and equipper might have of the intention of the confederate government was immaterial, if their business was simply to supply an article of trade.

(Their lordships consulted.)

Mr. BARON BRAMWELL. I should think if your construction of the act is right, that there was practically a misdirection, because there is no doubt that the practical effect of the direction was that the mere equipping was not sufficient.

Mr. ATTORNEY GENERAL. That is rather my own feeling, and we had never wished to raise it in any other form.

Mr. BARON BRAMWELL. Would not that save you the trouble of minutely criticising words which are most wonderfully well reported, although not with strict verbal accuracy? I, for one, am satisfied that this word "send" should have been "sell." LORD CHIEF BARON. That is not the only inaccuracy.

Mr. ATTORNEY GENERAL. Fortunately I had come to the termination of what I was going to say; and there is only one other remark which I will make, and then leave it in your lordships' hands. I cannot help thinking that the last words of his lordship's summing up, in which the question is finally stated, might be misunderstood by the jury in this way: they might be led by them to think that they were to look at the builder, whether his object was to equip and arm, or to build in obedience to an order, and in compliance with a contract; because your lordship will observe that those last words, which are opposed to the others, could apply to the builder only; they could have nothing to do with the confederate government and their agents; leaving it as if the only material intention was that of the builder, whether the builder intended something hostile, or meant to execute the order in the way of trade. I think the jury may so have understood the words, and that it would be a natural construction of them, having regard to the other passages in the charge to which I have adverted and which I have laid so much stress upon. I am, however, satisfied with the way in which it is put from the bench; and, if my argument upon the law is right, that will, of course, be all that I desire to establish.

Now, my lords, I shall fortunately have but little to say upon the remaining part of the case. My learned friend, Mr. Mellish, is, I think, wrong in his law, as to its not being competent to the court to give a new trial in a case of this description on the ground of the verdict being against evidence. My lords, the authorities may seem to be meager, but, such as they are, they tend to show that in the cases to which they apply the rule is a somewhat arbitrary one; that is to say, that the defendant may have a new trial, but the plaintiff cannot, for that is what it amounts to.

Mr. BARON BRAMWELL. Allow me to put this question: supposing my lord was right in the question which he put to the jury, and that you are wrong in your explanation of the statute, would you still say that the verdict was against the evidence? Mr. ATTORNEY GENERAL. Yes, my lord, and I think so for this reason

Mr.BARON BRAMWELL. You think there was good evidence of an intention for warlike equipment.

Mr. ATTORNEY GENERAL. I think there was, and I will tell your lordships in a few words why.

Mr. BARON CHANNELL. Do you go the length of saying that the learned judge should have told the jury that if they believed the evidence they were bound to find for the Crown?

Mr. ATTORNEY GENERAL. No, my lord, I do not say the learned judge was bound to tell them that; but what I mean to say is this, that having regard to the manner in which in the charge the question of equipment had been treated, the jury would be naturally led to suppose that another and a different kind of proof of warlike equipment was to be expected than that which was given, and that the intention so to do must be brought home to the builder. Perhaps, my lord, it would be as well that I should make the few observations I have to make upon the evidence with respect to that. Mr. BARON BRAMWELL. I should very much like to hear them.

Mr. ATTORNEY GENERAL. There was a gunboat in course of construction. My friend, Sir Hugh Cairns, in his commentary upon the evidence, attacked the witness Da Costa for constantly calling this ship "a gunboat." He said he knew it as nothing else. It was proved by Hodgson, the packer, that Fawcett, Preston and Company, themselves, by Mr. Speers, their foreman, gave the orders to carry things to the gunboat, and that the ship was called the gunboat by them, and known by that name as much by them as it was by Da Costa, who received his information from Mr. Miller. There was no doubt, therefore, of that; the ship was a gunboat in course of construction. If the evidence of Da Costa was to be believed, and there was nothing to discredit him, Miller expressly admitted that he was building it conjointly with Fawcett, Preston and Company, under a contract with Messrs. Fraser, Trenholm and Company, as agents for the Confederate States. We proved a construction of fitments peculiarly adapted for gunboats, bulwarks peculiarly adapted for gunboats and nothing else, and nothing wanting to make it operate as a gunboat, except a pivot-plate for guns, which might be put in at any time, and as to which, I should have submitted, in the absence of any evidence to the contrary, you must infer that the work, if not interrupted by seizure, would have been completed in the way proper for a gunboat; for everything was proceeding in that direction. There was something about guns, which I agree was not traced conclusively to this ship; though it would be fit to be considered by the jury. Putting arms aside, and supposing arms not necessary to be put on board, (guns would be arms,) but putting that aside, is it seriously meant that a ship of that description, a gunboat, being built for a belligerent under his order, and constructed with bulwarks, hammock nettings, hatchways too small for cargoes, and other things peculiarly adapted for ships of war. wanting not to have its nature changed, but merely to have something added which, when finished, will make it a complete gunboat, has not everything which is necessary to give its equipments a warlike character? And is it not a conclusion of law, that the work which we found in progress would have been completed, if it had not been interrupted and stopped? Are you to say that the Crown, in all cases of this description. must wait until the works have been actually done which it is the object to prevent up to the point at which the ship is fit to receive her arms, the consequence of which will be that by craft and ingenuity, and under the cover of mists and fogs, it may well happen, especially if the law officers of the Crown require any time to consider the evidence laid before them, ships of a warlike description may get away? I cannot set anything in the nature of the thing, in the evidence in this case, or in the act of Parliament, that would make it right for a jury to assume that the character of this ship's equipment was not warlike, if that is required by the act; for I think the hammock fittings and the bulwarks were already of that character, and the whole fittings would have been completed at Liverpool if the ship had not been seized by the government. It seems to me, if more was required of a distinct warlike character for the equipment, than, according to my argument, was necessary, there was evidence here upon which, uncontradicted as it was, the jury ought to have found it.

Let me deal very shortly with the observations which my learned friend Sir Hugb Cairns made upon the effect of the evidence. He said that there were eight persons. all of them to be disbelieved, without any evidence to the contrary; four or five of them he called discharged servants, but it did not appear that they were discharged for any fault of theirs. One indeed, from a question which was put to him, it was inferred, had left for drunkenness; he denied it, and there was no evidence to the contrary. There were others who had left the service, in which they had long been engaged, in order to get an advance of wages; but there was nothing to show any malus animus; indeed, they were most reluctant witnesses for the Crown, and we would have given the world to have been on the other side, in order that we might cross-examine them.

My lords, these discharged servants, as he called them, were most unwilling witnesses. We had to wring the truth out of them like so many drops of blood.

LORD CHIEF BARON. They did not appear to be so.

Mr. ATTORNEY GENERAL. I am not speaking certainly of Da Costa. Da Costa was not an unwilling witness, and I am not speaking of either Yonge or Chapman; but I

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

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

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

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

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

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

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

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

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

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

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

Mr. ATTORNEY GENERAL. Miller was charged, but he was not a claimant. I am not going into the technical difference between claimant and defendant.

LORD CHIEF BARON. Miller was in the information.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

same way.

Mr. ATTORNEY GENERAL. That is perfectly accurate.

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

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

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

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

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

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

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