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Lord Chief Baron. There is no doubt that there was a short- Applieation hard writer's note.
to fix a Day for
Argument. Mr. Solicitor General.- No doubt, my Lord.
Lord Chief Baron.— I think it right really to mention, with respect to myself, as we see mistakes made upon the matter, that there is no doubt there was a short-hani) writer's note that there is no doubt about?
Mr. Solicitor General.- No doubt whatever.
Lord Chief Baron.-- And never objected to by me at all, on the contrary, accepted as the faithful record of all that passed.
Mr. Solicitor General. Yes, my Lord.
Lord Chief Baron—And I wish to state publicly here that I objected to the bill of exceptions in the first instance, and on the ground upon which I have continued to object to it.
Mr. Solicitor General.—Yes, my Lord.
Lord Chief Baron. --I did so before the jury had left the box, instantly, the nioment it was put into my hands, and my reason for not immediately arguing it or pointing it out was this, that there being a short-hand writer's note, I said, “ Every word which “ has passed has been taken down, there can be no doubt as to
every syllable which has been uttered in Court, and therefore no “ mistake can be made upon the facts, they are all agreed upon " therefore there is no occasion to argue the matter now. You “ have tendered a bill of exceptions, but if you wish to alter it
conformably to a more correct view of the facts you can do so.” That was the substance of it. It is very true that I said “I will
accept any bill of exceptions,” but of course that must mean, “ I will accept any bill of exceptions which is warranted by the " record of the evidence.”
Mr. Solicitor General.—Of course, my Lord.
Lord Chief Baron.- I wish that really to be distinctly and publicly understood and known.
Mr. Solicitor General. --Quite so, my Lord. Of course there is no misunderstanding about this, that now the rule is substituted for the bill of exceptions.
Lord Chief Baron.— And I have no doubt, Mr. Solicitor Gene, ral, that you will agree with me that there being clearly a right of appeal, the proceeding by this motion is far more beneficial to the Crown than going on the bill of exceptions alone.
Mr. Solicitor General.-If I might give an opinion, I should say far more so, my
Lord Chief Baron.—Unfortunately the Attorney General became ill, and my communication with him ceased, but I was about to suggest the propriety of bringing the whole matter before the Couri, by motion, instead of going on with the bill of exceptions.
Mr. Solicitor General.-Your Lordship did make some suggestion of the kind, I think.
Application Lord Chief Baron.— Yes, I believe I did. to fix a Day for
Mr. Solicitor General.— Your Lordship did. Argument.
Lord Chief Baron.—My memory upon the subject was appealed to. There is nothing of the sort. The record of the facts was agreed upon between us, and there is no doubt whatever that the facts were unchangeable, and have never been changed from that moment to this.
IN THE COURT OF EXCHEQUER AT WESTMINSTER.
MICHAELMAS TERM, 27TH VICTORIA.
BEFORE THE LORD CHIEF BARON,
AND MR. BARON PIGOTT.
THE ATTORNEY GENERAL v. SILLEM AND OTHERS.
Claiming the Vessel “ ALEXANDRA.”
ARGUMENT ON MOTION TO MAKE RULE NISI
FOR NEW TRIAL ABSOLUTE.
FIRST DAY.-Tuesday, 17th November 1863.
Lord Chief Baron.– Mr. Attorney General, have you anything Argument. to move?
Lord Chief Baron.— That you ought to do.
Sir Hugh Cairns.— My Lords, before I proceed to address your Lordships, I may perhaps be permitted to ask whether it is proposed by your Lordships that the notes of the evidence should be read before the argument proceeds.
Lord Chief Baron. - If you think that desirable, of course I will read the notes.
Sir Hugh Cairns.- No, my Lord, I cannot at all say that it would be what we should ask, because it will be my duty in the course of the observations which I have to offer to comment upon parts of the evidence, and it might perhaps lead to my reading what your Lordships had already beard.
Lord Chief Buron.— There is a published copy of what took place at the trial, which, generally speaking, is correct enough,there
are some verbal inaccuracies in it, one of which I shall have occasion to point out, probably, in the course of the argument. But the learned Attorney General the other day in moving for the rule went over a very great part of the evidence. The Court, I believe, is already in possession of the case as much as if it heard the evidence. If I recollect rightly, the evidence occupied the greater part of two days, and unless you think it necessary that it should be read by the Bench, that is to say, by myself, who presided at the trial, I own that I do not think that it is necessary for the argument.
Sir Hugh Cairns.—My Lord, I am quite in your Lordship’s hands; I do not at all suggest that it should be done.
Lord Chief Baron. -No, I should say that we are rather in your hands; if you desire it to be read it shall be read.
Sir Hugh Cairns. If your Lordship puts it in that way, I should say that it would be more convenient that it should not be read; but, of course, if any question should arise as to the published report to which your Lordslrip has referred, we shall be corrected by any notes which your Lordship may have upon
Lord Chief Baron.—Mr. Attorney General, you do not require the notes to be read?
Mr. Attorney General.-- No, my Lord.
Mr. Attorney-General.—Your Lordship means of the motion which I had the honour to make ?
Lord Chief Baron.—Yes.
Sir Hugh Cairns. We have a short-hand writer's note of what took place on the occasion of the motion being made.
Mr. Attorney General.- My Lord, we have in print an uncorrected and not very accurately printed document from the shorthand note. I have no doubt your Lordships would readily see the inaccuracies wherever they were material.
Sir Hugh Cairns.— My Lords, I have the honour of attending your Lordships in this case on behalf of the defendants, for the purpose of showing cause against a rule which has been obtained by the Attorney General for a new trial upon grounds which have been divided into seven different heads. My I.ords, as to some of those grounds one can have no doubt, simply looking at them, as to what the meaning of them is, and what is the argument proposed to be adduced in support of them. For example, I find that the first and second grounds upon which the rule has been obtained are these :-“First, that the verdict was against “ the evidence; secondly, that the verdict was against the weight “ of evidence." Those are expressions which of course we all understand and are prepared to meet. Then I find that the fourth ground is, because “ the learned Lord Chief Baron did not « leave to the jury the question whether the ship • Alexandra' “ was or was not intended to be employed in the service of the « Confederate States to cruize or commit hostilities against the “ United States.” That, again, my Lords, is a ground which definitely states what the objection is, and which can be met accordingly. So, also, with regard to the fifth and the sixth grounds, which assert “ that the learned Lord Chief Barou did
not leave to the jury the question whether there was any
attempt or endeavour to equip,” and “that the learned Lord “ Chief Baron did not leave to the jury the question whether “ there was knowingly any aiding, assisting, and being concerned “ in the equipping. My Lords, all those grounds are definite. But then there remain two further grounds, which are numbered the third and the seventh, the third being “that the learned Lord
“ Chief Baron did not sufficiently explain to the jury the con- ARGUMENT. “ struction and effect of the Foreign Enlistinent Act," and the
1st Day. seventh being “ that the learned Lord Chief Baron misdirected " the jury as to the construction and effect of the seventh “ section of the Foreign Enlistment Act.” My Lords, I cannot avoid saying at the outset that those are grounds which, as I find them in the rule, I am bound to suppose are in accordance with ihe practice of the Court; but at the same time they impose on those who, like myself, have cast upon them the duty of showing cause against a rule of this sort, a task which it is very difficult to discharge, because they inform us that after I have been heard and my learned friends who appear with me have been heard, we are then to expect an argument of the grounds and of the nature of which we are not in any way forewarned. We are told that your Lordships are to be asked to conclude that the learned Lord Chief Baron, in some way which is not specified, misdirected the jury, or did not direct the jury; but the grounds upon which that is to be contended for we are not told, and we cannot meet. I do not desire to overstate the difficulty at all; I admit that we have had some kind of intimation by a few sentences which fell from the learned Attorney General in moving for the rule, but beyond those we have had no definite statement as to what the argument of the Crown is to be.
Now your Lordships will perhaps remember that the ship in question, the “ Alexandra,” was seized on a particular date in this year, the 5th of April, and that she was seized in a public dock in Liverpool, the Toxteth Dock. It would be proper at the ouiset that I should ask your Lordships for a moment to look at the allegations in the information and in the plea which constitute the issue between the parties; and, my Lords, in this case, as indeed in all the argument which I have to submit, I will take leave 10 refer your Lordships to a book, with which I believe the Bench is furnished, a book which is printed by the Queen's printers, what is called the larger of two books which have been referred to, and which very conveniently comprises not merely the shorthand writer's note of the trial, subject to whatever observation may be made as to inaccuracies, but also a print both of the English and of the American Foreign Enlistment Act, and of the information, and of certain other matters which are very material to be considered. My Lords, in that book, if your Lordships are in possession of copies of it, you will find in the first page of the Appendix the information in this case; and for the purpose of pointing out the issue, it will be sufficient that I should
refer your Lordships to the first count alone of the information. I hope that your Lordships have copies. Mr. Baron Bramwell. I have not got it.
A copy was handed to Mr. Baron Bramwell. Sir Hugh Cairns.—My Lords, the information is set out sufficiently in the first page of the Appendix, and the first count is this, " For that certain persons," and then a number of names are