ARGUMENT. and no person was a party to the information in any sense or form, excepting the claimants who claim the property.

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But, my Lords, I do not want to dwell upon that, because, if Miller had been a claimant, the case would have been just the same. At the end of the 7th 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 prose"cuted 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 offence 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 con"demned 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 2nd 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 con"sent 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, vivâ 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 offence, or any offence punishable on summary con"viction, competent or compellable to give evidence for or against "himself or herself or shall render any person compellable to "answer any question tending to criminate himself or herself." It is quite clear, therefore, that this gives him,-until subsequent legislation takes it away, gives a defendant or a claimant in a proceeding like the present, the right of giving evidence on his own behalf, although he could not be compelled to criminate himself. Did any subsequent proceeding take that away? I submit, clearly not. Lord Chief Baron.-I think it is hardly worth while to discuss a question which I think is of an exceedingly doubtful character, and of which I do not see the termination.

Mr. Attorney General.-I shall bow to your Lordship's opinion if you think it is not worth while to discuss it.

Lord Chief Baron.—If the question were to arise before me in the sittings after Term, I should certainly reserve the point for the opinion of the Court. I should receive the evidence as I always do if there is any difficulty about it.

ARGUMENT.

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ARGUMENT.

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Mr. Attorney General.-I should have thought that it was plain that the right to give evidence on his own behalf given by that Act could not be taken away by such words as we find in the two subsequent Acts of Parliament, namely, that the defendant shall not be a witness in substance in any case relating to the customs.* It might be most injurious to take away that right, and surely that right is not to be taken away from him by an Act which speaks of proceedings under the laws relating to customs, if this is not an Act properly relating to customs. It is, however, enough for me, if the matter is assumed for the present purpose in my favour. At the trial nobody suggested that it would not be competent for any of these persons to offer themselves as witnesses if they pleased.

Lord Chief Baron.-So said the Attorney General, but you are quite mistaken if you include the judge in that opinion. I did not say anything. I did not think I was called upon to say whether the Attorney General was right or wrong.

Mr. Attorney General.-I do not mean to imply that your Lordship had an opinion, which you did not express at the time one way or the other. What I meant was, that nothing passed to lead to the conclusion, either from what was said by Sir Hugh Cairns or by the late Attorney General, that it was doubted on either side that Mr. Miller might have been put into the box, and also the other parties. There was no suggestion any where of the kind.

Lord Chief Baron.-Excepting that not one syllable was said about it until the case was over, and it was only when the Attorney General was replying that the question was raised. Sir Hugh Cairns did not tender witnesses, and he might not have tendered them because he might have thought that they were not evidence. There was no opportunity. The question never arose at all. The point was never discussed. The opinion of no one but the opinion of the Attorney General was ever made public at all.

Mr. Attorney General.-The thing took the only course which it possibly could have taken under the circumstances.

Lord Chief Baron.-No. Sir Hugh Cairns might have tendered the witness, and the Attorney General might have objected to him.

Mr. Attorney General.-Sir Hugh Cairns did not tender the witness, and did not suggest that as a reason for not tendering him. Sir Hugh Cairns suggested other and totally different reasons, reasons which he was perfectly entitled to state, and in which I entirely concur from the bottom of my heart, namely, that it was incumbent on the Crown to make out its case, and no one could call upon the defendants to put themselves or any one else into the box, if the Crown had not laid before the jury sufficient evidence of its own case. Undoubtedly my friend was

* 18 & 19 Vict. c. 16. s. 36. and 20 & 21 Vict. c. 62. s. 14, and vide note, p. 176

ante.

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right in that; but he did not suggest that he entertained any ARGUMENT. doubt, that, if he had considered it expedient to put them into the box, they might not have given evidence; nor did he so reply, when the Attorney General made the remark which your Lordship has alluded to, and when something passed from the Bench to the effect, that it was unusual for the Attorney General to assume that any particular person was opposite to him in Court. It was said you may assume that the gentlemen are all here, and that they might have been put into the box. Sir Hugh Cairns deliberately chose not to tender them; and I am prepared to prove, to your Lordship's satisfaction, I hope, that no one could have successfully objected to their evidence, if offered; because the Evidence Act had given them the right.

Lord Chief Baron.-We cannot decide that now, and I think it hardly worth while to discuss it.

Mr. Attorney General.-I will not proceed further with it; but I think, under the circumstances, I am entitled to have it assumed in my favour that those persons who might have been tendered as witnesses, and as to whom it appears to us that they would have been competent witnesses-persons who might have contradicted the evidence given in my favour if it were not true -they did not offer to come forward into the box to give evidence for that purpose.

My Lords, I shall conclude by very shortly referring to the point as to there being no rule for a new trial in such a case as this. It is settled by the case of Attorney General v. Rogers, reported in the 11th Meeson and Welsby, and by another case reported in the 1st Crompton, Meeson and Roscoe, that when a jury in a penal action had found a verdict for the defendants, through a misapprehension of the law, if the Court thought that there was any reason to believe that, whether by a mistake of the learned Judge's direction, or through any other cause, they had been so misled, there would be a new trial. My Lords, those are cases applicable to penal actions properly so called; and that rule, as far as I am aware, never yet has been extended to an information in rem of this description. The state of authority as to informations in rem, where you have not defendants to deal with, but claimants coming in to claim property in possession of the Crown, seems to be this. In the books of Practice (though they are not conclusive authorities, they show what the law has been understood to be), in Manning's Exchequer Practice, at page 180, your Lordships will find the law stated thus:“ A new trial will be granted where the justice of the case requires "it, although the verdict be for the defendant." That is stated as applicable to informations in rem. I find in a note to Bateman's Excise Law, I will merely mention the passages without reading them, at page 66, the same thing is stated; while on the other hand the practice applicable to defendants in penal actions is accurately stated at page 161 in the same book. That case in Bunbury, to which my friend Mr. Mellish referred, is a case of an information in rem. It is reconcileable with the other

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ARGUMENT. authorities, because it relates to a different subject matter, as to which the other authorities are totally silent. "Whether a new "trial can be granted on an information of seizure, when a "verdict is for the defendant." The 12th section of the Statute on which that case arose is a section which says, the goods are to be seized by the officers of the customs, and obviously to be dealt with in that way.

Now, my Lords, I have concluded all the observations which I have to offer your Lordships upon this case. I cannot but think that your Lordships will deal, in a way that will be satisfactory to the Crown and the public, with this case. We are not here in an atmosphere where any argument of prejudice, either one way or the other, can prevail. The matter has been fully considered, and I have not the slightest doubt that your Lordships' judgment in this case, in the way in which you will deal with it, will be entitled to and will receive from those who may have to comment upon it hereafter, the same respect which has been justly paid to the long series (for it is a long one) of the decisions of the American Courts on a similar Act of theirs. I must say decisions most honorable to the country, and to the tribunals, from which they have proceeded; because that Act was passed, as your Lordships are aware, under circumstances of peculiar difficulty, when the irritation and the animosity resulting from the war of independence had not passed away, when the recent obligations of the United States to France were fresh in their memory, when the sympathies of the whole country ran breast high with the revolutionary party in France and against the powers of Europe who were then at war with the French Republic. Under those circumstances it was that Washington caused to be introduced that Act; and in every single trial that has ever taken place under it the Judges of the United States have manifested a lofty and most upright determination to give full and fair effect to it, not straining it either in the direction of popular bias or prejudice, or of mercantile interest; and on the other hand, not straining it in favour of the Commonwealth against the subject. We do not wish our own. Act to be strained in favour of the Crown against the subject but we do desire that it shall be established by your Lordships' judgment that those great and most important objects, to promote which that Act was passed, will be found to have been effectually accomplished by that Act, and that the great and most serious mischief which the Act points out as the mischief which it was intended to remedy, may be effectually repressed by the construction which, from your Lordships, that Act shall righteously receive; and that the whole matter may not turn out to have been entirely misunderstood by the Legislature which was engaged upon it, and a futile instrument, incapable of being successfully applied, placed in the hands of the Crown.

Adjourned until to-morrow at 10 o'clock.

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