to determine which of these provisions and rules (if any) it is expedient to adopt in order to produce uniformity in the proceedings on both sides of the court.

My noble and learned friend, Lord Wenslydale, says: "The words of the latter part of the section, authorizing the chief baron and barons from time to time by any rule or order to extend, apply, or adopt any of the provisions of the common law procedure acts, are quite independent of the clause authorizing the application of the rules of pleading and practice." But, with great respect, I would observe that in this portion of the section the sense is carried on from the words "and also" continuously to the end; that the whole of it must, therefore, be taken together in construction, and then it will appear that it is not to any of the provisions of the common law procedure acts absolutely that the power applies, but only to such as may seem expedient for making the process, practice, and mode of pleading on the revenue side of the court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.

We are thus brought back again to the point upon which the whole controversy turns, viz, the meaning of the word "practice" as it stands in the act. I have already endeavored to show that it cannot possibly apply to any proceeding beyond the court itself, and that therefore those sections of the common law procedure acts which relate to appeals are not within the range of the discretionary authority intended to be conferred by the legislature.

My lords, I have arrived at this conclusion with great reluctance. It is very much to be regretted that the Crown should have been deprived of the means of appealing from the decision of the Court of Exchequer upon a question of national importance. I should have been glad to find some reason for supporting the validity of the rule issued by the barons, but I can discover none.

I must, therefore, act upon the clear conviction of my own judgment, and pronounce my decided opinion in favor of the respondents.

LORD KINGSDOWN. My lords, the argument on the first question in this case as to the power of the Court of Exchequer to make the orders in question has been so entirely exhausted that it would be improper for me to go into it at any length. The reasons assigned by the majority of the judges in the Exchequer Chamber appear to me to preponderate, and the grounds on which my judgment rests are laid down more clearly than I could state them in the opinion of the Lord Chief Justice.

Previously to the Queen's remembrancers act there were, as I understand, no means of reviewing a decision of the Court of Exchequer on the revenue side except by writ of error.

Under the two acts of common law procedure of 1852 and 1854 there were on the plea side a more simple proceeding in error than by writ of error, and also the several other remedies introduced by the act of 1854. There was, further, the proceeding by bill of exceptions independently of those acts.

If all the proceedings in error and appeal applicable to the plea side of the court were considered applicable to the revenue side, there seems no reason why by the act of 1854 they should not have been extended to both sides. The same observation applies to the act of 1859. Why, if they were thought by the legislature to be all applicable, were they not all applied?

But instead of taking that course the legislature makes a careful selection of some clauses, and omits others. With reference to the particular matter now in question, it omits the appeal from the decision on a motion for a new trial, and gives, as I think in substitution for it, the proceeding by bill of exceptions.

It has been said that the same relief may be had by both those modes of proceeding, but that there are many difficulties in the latter which are not found in the former. If this be so, the Crown may have been willing to give the right of review, subject to the restrictions which those difficulties might impose, but no further; but that, contemplating the application of both remedies, the legislature should itself give the one and the least convenient, and leave it to the Court of Exchequer, at its discretion to give or withhold the other, is to me quite inconceivable. It may have used words so large as to compel us to say that this power is given; but, if the clause be capable of two constructions, I think that should be adopted which is most consistent with the probable intention to be collected from the other clauses.

When the words of the twenty-sixth section are examined, it seems to me that they neither require nor warrant the larger construction.

The clause is introduced for the purpose of enabling and directing the Court of Exchequer to make rules and orders for regulating its process, practice, and mode of pleading, with a view to the alterations introduced by the act, and to making such process, practice, and mode of pleading as nearly as may be uniform on the two sides of the court.

For this purpose, and as I understand it for this purpose only, it may extend, apply, and adapt any of the provisions of the two acts of 1852 and 1854.

Read in their ordinary meaning, as applied to proceedings in the court itself, the words are reasonable, consistent with the other provisions of the act, and in accordance

with what is found in the two acts referred to. They are consistent also with the provision that the rules may be made from time to time, and with the fact that the same words which apply to the provisions of the two acts are applied also, in the expressions immediately following, to the rules of pleading and practice on the plea side of the court. I am by no means satisfied that there is any redundancy in the language of the clause thus construed; but if there be, it is not, in my opinion, sufficient to outweigh the objections to the other construction.

What the Court of Exchequer has attempted by its orders to do is to give to two superior courts, the Exchequer Chamber and the House of Lords, jurisdiction to hear. and to impose upon them the duty of hearing an appeal against its decisions, with which, except for those orders, those courts would have neither the duty nor the right to interfere.

Can it possibly be said that this is to regulate the practice of the Courts of Exche quer? All the proceeding which leads to the other courts, when those other courts are open. all the proceeding to error, is a step in the cause, and part of the practice of the court: but whether the doors of the other courts are to be open or not, surely is not a point of practice in the inferior court.

It is said that the legislature has already given the appeal by means of a bill of exceptions, and what is now proposed to be done is only to do the same thing in a more convenient form.

But the answer to this seems to me to be, that the legislature has given no general power to the superior courts to review the decisions of the Court of Exchequer. It has prescribed certain special modes of proceeding by which this may be done, and has by necessary implication excluded others.

The law, before the orders, said "the decision of the Court of Exchequer on a motion for a new trial shall be final." The orders say it shall not be final. It is not a new mode of effecting an object which could already be attained in a different mode. There was no mode whatever then subsisting by which the decision now complained of could have been disturbed. There was a mode by which the necessity of moving for a new trial might have been prevented, but that is quite a different thing; and it is not because that mode has failed (no matter from what cause) that the Court of Exchequer can create a new jurisdiction which the legislature has not created, and in my opinion has not authorized the Court of Exchequer to create.

Having arrived at this conclusion on the first point, I think it unnecessary to say anything on the second.

Judgment.

DIE MERCURII, APRILIS 6o, 1864.

Whereas Friday, the 11th day of March last, was appointed for hearing counsel upon an appeal wherein her Majesty's attorney general is appellant, and Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, and William Thompson Mann, claiming the Alexandra, are respondents; complaining (upon a case settled and signed by the lord chief baron of the Court of Exchequer, pursuant to the provisions of "the common law procedure act," 17 and 18 Victoria, cap. 125) of a rule dated the 8th of February, 1864, made in her Majesty's Court of Exchequer Chamber in the matter of an information filed by her Majesty's attorney general on behalf of her Majesty in the Court of Exchequer against the ship Alexandra for the forfeiture of the said ship, to which information Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, and William Thompson Mann appeared, and thereupon claimed the said ship; and praying their lordships to reverse the said decision of the said court of Exchequer Chamber, and to give such judgment and direction in the premises as to this house, in their lordships' great wisdom, should seem meet; counsel were accordingly called in, and were heard as well on Friday the 11th, as Monday, the 14th, and Tuesday, the 15th days of March last, when the further consideration of the said appeal was adjourned; and whereas this day was appointed for the further con sideration of the said appeal, and due consideration being had thereof, and of what was offered on either side thereon:

It is ordered and adjudged, by the lords spiritual and temporal in Parliament assem bled, that the said rule or decision of the said Court of Exchequer Chamber, dated the 8th of February, 1864, appealed against, be, and the same is hereby, affirmed; and that the said appeal be, and the same is hereby, dismissed this house. And it is further ordered, that the appellant do pay or cause to be paid to the said respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk of the Parliaments.

Copy writ of delivery of the ship Alexandra to the claimants, issued from the Queen's Remembrancers Office of the Court of Exchequer.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith. To Edward Morgan, an officer of our customs at our

port of Liverpool, and to all other officers of our customs at that port, and to all persons having the custody, possession, or control of the vessel Alexandra, with her tackle, apparel, furniture, and materials, for us or in our behalf, and to all others whom it may concern:

Whereas you, the said Edward Morgan, have seized to our use as forfeited the said vessel Alexandra, with her tackle, apparel, furniture, and materials, which by an indenture of appraisement dated the 13th day of April, 1863, returned into our Court of Exchequer at Westminster, is appraised at the sum of £9,500, the property whereof hath been claimed by Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, and William Thompson Mann, who have entered such their claim thereto in our said court, and pleaded in discharge of the said seizure, and on a verdict of the country the said vessel Alexandra, with her furniture, tackle, apparel, and materials, was found not to have been forfeited; and by judgment signed in our said court on the 20th day of April, in the year of our Lord 1864, it was considered that the said vessel Alexandra, with her tackle, apparel, furniture, and materials, be delivered to the said Hermann James Sillem, Henry Berthon Preston, James Willink, David Wilson Thomas, and William Thompson Mann, or to their assigns: We therefore command you and each and every of you that on receipt of this our writ or notice thereof, you deliver or cause to be delivered the said vessel Alexandra, with her furniture, tackle, apparel, and materials, to the said Hermann James Sillem, Henry Berthon Preston, Jacob Willink, David Wilson Thomas, and William Thompson Mann, or to their assigns, or to the bearer of this our writ, for we will that you be thereof discharged toward us by virtue of these presents. Witness Sir Frederick Pollock, Kut., at Westminster, the 20th day of April, in the year of our Lord 1864.

In pursuance of the foregoing writ the vessel was delivered to the claimants on Monday, the 25th day of April, 1864.

APPENDIX No. XVI.

DEBATE IN THE HOUSE OF COMMONS OF FEBRUARY 23, 1864, ON THE SUBJECT OF THE SEIZURE OF THE STEAM RAMS BUILDING FOR THE

SOUTHERN CONFEDERACY.*

[From Hansard's Parliamentary Debates, vol. 173, pages 955–1021.]

HOUSE OF COMMONS, February 23, 1864.

VESSELS EL TOUSSON AND EL MONASSIA-PAPERS MOVED FOR.

Mr. SEYMOUR FITZGERALD: I rise to move an address for

"Copies of all correspondence between the various departments of her Majesty's government, or officers in her Majesty's service, and Messrs. Laird Brothers, relating to the two iron-clad vessels, the El Tousson and El Monassia, building by that firmi. and seized by order of her Majesty's government; and of any papers or correspondence that have passed between her Majesty's government and the government of the United States, or their representative, Mr. Adams, relating to the said vessels.”

Sir, I am not insensible of the delicacy of the task I have undertaken in calling the attention of the House to the circumstances which are the subject of the notice I have put upon the paper. A very few days ago, in addressing this House in reference to some events that have taken place, and the conduct pursued by the cruisers of the American government toward our merchant ships, I expressed a desire that nothing should fall from me calculated in the slighest degree to aggravate the feeling of irritation which I felt unhappily existed between the two countries. Sir, in the same spirit I shall to-night call the attention of the House to that portion of those transactions which implicate and concern the conduct of her Majesty's government. I shall serupulously avoid, except by an incidental allusion for the sake of illustrating the subject in hand, referring to the correspondence, which we all know was addressed to the minister of the United States in this country, but which he, in the exercise of discretion and good sense, which, from his first arrival amongst us, has not ceased to characterize him, thought it best not to present. I will only, in passing, make this remark upon that correspondence, that looking at the arrogant and almost insolent tone in which it was couched, if the writer had desired to find out some means of making the adoption of the policy he wished to enforce impossible, he would have exactly taken the course he did, and addressed a letter of that kind to his minister at a foreign courta letter which, in my opinion, did little credit to the diplomacy of the American govern ment, and was highly insulting to the dignity of this country. Sir, I am equally aware that the honorable and learned gentlemen whom I see opposite will meet the motion which I am about to make by the objection, that it has reference to matters which are still the subject of judicial investigation. Well, sir, I am fully aware that there is great force in that objection, but not in a case like the present; and I will tell the House why. I think that to discuss circumstances which are the subject of judicial investigation is a highly inconvenient and very often injurious proceeding; and if we were now to discuss the question, whether these vessels were rightly or wrongly seized under the foreign enlistment act, then I think there would be considerable force in the objection which my learned friend will urge against me. But, inasmuch as that is not my object, my desire being to obtain from the government papers which may show whether before that seizure took place the conduct of her Majesty's goverment was consistent with law or not, then I say the objection of my honorable and learned friend must necessarily fail, and I think the House will not refuse me the papers for which I ask.

Now, sir, it will be necessary for me, in bringing the matter before the House, shortly to refer to the history of the events connected with these steam rams. It appears from the papers which I have here, and which are the papers laid by the American government * Transmitted with dispatch No. 604, from Mr. Adams to Mr. Seward, February 25, 1864, vol. II, p. 392

before both Houses of Congress, that Mr. Adams, having learned that certain vessels of a formidable kind were being built at Birkenhead, at the yard of Messrs. Laird Brothers, addressed Earl Russell on the 11th of July, and accompanied his letter with depositions which he thought seemed to prove that those vessels were intended for the use of the Confederate States. And he not only gives, as far as he can, the fullest depositions within his reach at that time, but he urges the subject upon the notice of Earl Russell in terms the most forcible; for Mr. Adams described the building of these two rams as being regarded by the government and people of the United States as tantamount to a participation in the war by the people of Great Britain to a degree which, if not prevented, could not fail to endanger the peace of the two countries; and he gives him, as far as he can, the fullest depositions, by which Earl Russell is to determine whether it is in the power of the government to interfere or not. This communication of Mr. Adams, dated the 11th July, is followed by others on the 16th and 25th of the same month, and the 14th of August; and upon each one of these occasions Mr. Adams presents to Earl Russell additional depositions, calculated in his opinion to prove to Earl Russell that it is the duty as well as the interest of the government to stop at once the progress of these steam rams. Well, sir, these depositions are at once forwarded by Earl Russell to the proper quarter-to the law officers of the Crown-and during the whole period from the 11th July down to the 1st September, the circumstances brought under the notice of Earl Russell by Mr. Adams received the careful consideration of the law officers of the Crown, and the careful attention of the responsible advisers of the Crown. Now, the next question is, what is the result of this investigation entered into by the government, assisted by the law officers of the Crown? The result is communicated by Earl Russell to Mr. Adams in a dispatch of some length, bearing date the 1st September. I will not trouble the house with the dispatch in full, but there are portions which it will be necessary I should bring under notice. Earl Russell, after saying that he has submitted the papers during this long course of time to the law officers of the Crown, states:

"In the first place, her Majesty's government are advised that the information contained in the depositions is in a great measure mere hearsay evidence, and generally that it is not such as would show the intent and purpose necessary to make the building and fitting out of these vessels illegal under the foreign enlistment act.”

The dispatch, referring to the statement that the vessels were built for M. Bravay, of Paris, said that there was no legal evidence against M. Bravay's claim, or to show that the ships were built for an illegal purpose. The noble lord then goes on to say that the responsible agent of the customs at Liverpool affirms his belief that these vessels have not been built for the confederates, and he concludes finally by saying this:

"Under these circumstances, and having regard to the entire insufficiency of the depositions to prove any infraction of the law, her Majesty's government are advised that they cannot in any way interfere with these vessels." (Correspondence, No. 4, 1864, p. 12.)

Now, it is perfectly clear that up to that time Earl Russell had had the fullest information given to him by Mr. Adams, and that the decision of the government and law officers of the Crown was that they could not, with any respect for law, interfere with the rams building at Birkenhead. The house then will, I think, scarcely be prepared to hear that on the 4th of September, only three days afterward, the under secretary for foreign affairs, at the direction of Earl Russell, wrote to the lords commissioners of the treasury to request that these rams should be detained. What had happened in the meantime? Had any new information reached Earl Russell? Upon that, sir, again referring to this book, which gives very full information to Congress as to all that passed-information which I could have wished to have seen as fully in the possession of the House of Commons-I find that the only thing that had happened in the meantime was that Mr. Adams had again addressed Earl Russell. Of that communication, on his part, Mr. Adams gave this description. In a dispatch addressed to Mr. Seward, and dated the 3d of September, 1863, Mr. Adams wrote:

"As the case seemed doubtful, I concluded that the wisest course would be to put in one more remonstrance. Accordingly, I have taken advantage of some depositions of no great additional weight, furnished to me by Mr. Dudley and others."

Upon the face of the matter it appears, then, that having the fullest information, the law officers of the Crown decided that there was no ground to interfere; but, afterward, upon Mr. Adams presenting to Earl Russell depositions which he himself says were of no greater additional weight, Earl Russell iminediately proposes to seize and detain these steam rams. The question immediately arises, was there anything besides this additional information presented to Earl Russell's mind which caused this change of view? I will point out, presently, what was the opinion of the American government, and the statement of Mr. Adams himself, upon the subject. But the first question I wish to ask is, how it came to pass that, not having any evidence whatever, according to their own account, to seize these rams, her Majesty's government should have proceeded to detain them? I wish them to point out to me under what act of Parliament or by what authority it was done; and how it was that, having waited during the whole