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ARGUMENT.

4th Day.

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 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

* 18 & 19 Vict, c. 16. s. 36, and 20 & 21 Vict. c. 62. s. 146, and vide note, p. 176 ante.

Ath Day. reply, when the Attorney General made the remark which your Lordship bas 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 bad 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 4th Day.

“ 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 bad 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.

ARGUMENT—continued.

FIFTH DAY,-Saturday, 21st November 1863.

5th Day.

ARGUMENT Mr. Solicitor General.—My Lords, after the full and complete, Argument. and I might almost say, exhaustive argument of the learned Attorney General, I feel my duty to be a light one, and I shall be enabled to shorten the observations which otherwise it might have been my duty to address to your Lordships. At the same time, this, the first occasion on which the Courts of this country have had to consider the Foreign Enlistment Act, appears to me to be one of so great importance that I am induced to ask your Lordships for your indulgence for a short time while I address to you some observations which appear to me to bear upon

the matter. My Lords, I think it may be convenient for me to follow the order in which my learned friend Sir Hugh Cairns and the Attorney General have addressed themselves to this question, and I will accordingly, in the first place, say a few words upon the principles of international law which appear to me to be applicable to it independently of any statute. I will next consider the construction of the Foreign Enlistment Act, and then I will apply myself to the questions of misdirection and the verdict being against the evidence.

My Lords, the scope and tendency of the argument of my learned friend Sir Hugh Cairns appeared to be this ; he, in the first place sought to narrow as far as he could the application of the principles of international law which relate to this question. Having so far narrowed that application, he sought to cut down the American Foreign Enlistment Act, in order to square it to those narrowed proportions; and then, thirdly, he endeavoured to show that the English Act had no wider operation than the American Act. I shall contend in the first place that the principles of international law applicable to this question have not been quite accurately stated by my learned friend, but that they have a wider scope than he admitted; next, that the American Act went beyond any international law applicable to the subject; and, thirdly, that our Act went beyond the American Act.

My Lords, my learned friend Sir Hugh Cairns began by stating two propositions of international law which appeared to

ARGUMENT. him to bear upon this question, and to be the only principles

which did bear upon it. The first he stated in this way,—he 5th Day.

said the subjects of neutrals are at liberty to supply any articles contraband of war to a belligerent. Secondly, he said the territory of a neutral power is inviolate from any proximate or immediate act of war. I am stating those propositions I think in his own words. Now, my Lords, with respect to the first of those propositions, my learned friend began by conceding that for a neutral Government to supply to a belligerent contraband of war was a violation of neutrality, an unneutral, in other words, a hostile act, but he said the subjects of a neutral are at liberty to do so. If my learned friend meant no more than this, that the subjects of a neutral are allowed to supply contraband of war to a belligerent without involving their Government in hostilities, or without compromising the neutrality of their Government, and further that the neutral Government is not bound by any duty, whether of perfect or imperfect obligation to the co-belligerent, to prevent this traffic, or punish those who carry it on, I agree

I with him. But my learned friend went beyond that, he proceeded to contend that the supply of those articles of contraband by the neutral subject was in no respect, to use his expression, contra bonos mores, that it was not in any respect a delictum, that it was not opposed to any principle of international law, but that it was entirely lawful and right. Upon this question I take the liberty of, to some extent at all events, differing from my learned friend. And I will call the attention of your Lordships to the manner in which Mr. Duer, a writer who was referred to in the course of the Attorney General's argument, treats this question, because his argument upon this subject appears to me to be very clear and cogent.

Lord Chief Baron.- What volume and page ?

Mr. Solicitor General.—The first volume, my Lord, page 750. He says, “It has been alleged, that the conduct of a neutral, who “ engages in a trade that by the law of nations subjects his pro

perty to capture and confiscation, is not illegal ; that he has a perfect and lawful right to engage in the trade, and the bel

ligerent, a right equally perfect and lawful, to seize and confis“ cate the property so employed. But the grounds on which this “ allegation is made are not easy to be discerned. It is, indeed, “ supported to some extent by the vague language of Vattel; “ but the observations of this not very accurate or profound " writer will be found, when examined, to be inconsistent and “ self-contradictory. While he affirms that a neutral merchant

may lawfully prosecute a trade with the belligerent country in

articles contraband of war, he admits that a nation at war, from “ a regard to its own welfare and safety, has an absolute right “ to seize and confiscate all supplies of this nature destined to the

use of its enemies; and yet he overlooks the inevitable conse

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