The Sun.
London, England, 1863-11-04 00:00:00

COURT OF EXCHEQUER.

(Sittings in Banco before the Lord Chief Baron, Mr. Baron
Bramwell, Mr. Baron Channell, and Mr. Baron Pigott.)
SEIZURE OF THE SHIP ALEXANDRA-THE ATTORNEY-
GENERAL V. SILLIAN AND OTHERS.

This was an infiormaiion, containing 90 counts, filed by
her Majesty's Attorney-General, with a view of obtaining
on the part of the Crown a condemnation of the vessel, as
well as imposing penalties or imprisonment upon certain
persons concerned in the equipping, fitting eut, or furnish-
ing of the ship contrary to the pro visions of the Foreign
Enlistment Act. It will be remembered that after a very
protracted trial the jury found a verdict for the defendants,
the Attorney-General tendering a bill of exceptions to the
ruling of the Lord Chief Baron, before whom the case was
tried.

file Attorney-General (with whom were the Solicitor-
General and Mr. Thomas Jones) now applied to their lord-
ships to enlarge the time for applying to the Court for a new
trial, beyond the usual four days, in case it should happen
that the Lord Chief Baron should refuse to sign the bill of
exceptions tendered at the trial.

The Attorney-General, in addressing the Court, said—
It will be in the recollection of your lordship that at the
trial you laid down views which you thought ought to
govern the jury as to the construction of the Foreign Enlist-
ment Act, Your Lordships did so in a manner which we
thought perfectly intelligible to all persons. There was no
difference whatever in the understanding of your Lordship's
ruling on the part of the counsel for the Crown, and we had
no reason to suppose it was otherwise as regards the counsel
for the defendants, or that it was generally understood in
any sense other than that in which we understood it. At
the end of the trial we expressed a wish to offer exceptions
to that ruling, and were told that it was not necessary at
all to stand upon the usual form. Your Lordship said, " I
will accept any bill of exceptions yon choose to tender;"
and accordingly after the verdict we wrote out the principal
points which we understood he had laid down, but his Lord-
ship said we were not.bound by what passed on that occa-
sion, and that the matter could be easily settled. The case
involved a point of very great importance, and it was most
fit and desirable that exceptions should be tendered, in order
that the case might be argued before a Court of Error, and,
if necessary, before a stilt higher tribunal. We are most
anxious that the question should be raised and determined,
and we have no reason to doubt that the other side is equally
so, but hitherto there have been difficulties in arriving at any
form of exception which we can rely upon as certain to re.-
ceive the signature of his Lordship. We sincerely hope that
these difficulties may be overcome. We are in communica-
tion with the counsel on the other side, who have in their
possession the form of exception we propose, and we trust
that an agreement in writing may be arrived at with them,
or, if that should not happen, that his Lordship, on being
applied to, will settle such a iorm of a bill of exceptions as
will raise the real question to be determined in a way satis-
factory to both parties and useful to the public.
The Lord Chief Baron—l think it right to state that I
see no prospect whatever of any change in the view I took
as to my duty in deciding upon the bill of exceptions. A
correspondence has passed between myself and the late
Attorney-General which probably you may have seen. You
were not present during the whole of the trial. So far from
my laying down the law, as the bill of exceptions tendered
to me assumed, I took particular pains to avoid anything of
the kind. I had originally during the argument of Sir
Hugh Cairns at one part of the trial entertained an impres-
sion—l called it no more—that all the expressions in the
Foreign Enlistment Act, '• equipping," " fitting out," and
so on, probably meant the same thing, and were to be re-
tarred to the verbiage of an act of Parliament, just in the
some way as the words " ship" or " vessel," which are com-
monly used in statutes, and are no doubt intended to mean
the same thing. But the late Attorney General in his ad-
dress referred to a case in an American Court, with an
appeal to a superior Court where the decision below was
affirmed. It was, I thick, a case in which the vessel was
completely prepared in every respect, with the exception of
being armed. When 1 came to sum up I mentioned that
case to the jury, and commended so far as to say I adopted
it. I left it to them, and pointed out what had fallen from
the counsel as to the law on the subject, not whas I consi-
dered was the law. I then finally left the question to them,
in the alternative using the very words of the act of Parlia-
ment. If you think, I said, this vessel was "armed," or
" equipped," or " fitted out," or intended to be armed," or
fitted out or equipped, your verdict must be for the Crown ;
if not, it must be for the defendants. Now, the Attorney-
General presented to me a bill of exceptions, by which I was
said to have told the jury that the vessel mast be armed,
and that if it was not armed there was no offence. I not only
did not tell the jury so, but if you read the shorthand
writer's notes of the trial I think you will say no person
can have any doubt that I left the question as I have just
stated it. But probably the object you have in view may
be attained by a motion without any reference to a
bill of exceptions. It is true no point was reserved at the
trial so as to give you a right of appeal in the event of the
rest of the Court concurring with me in the direction 1 gave
to the jury. But this is a matter of so much importance I
do not know whether I can pledge tho whole Court in this
respect ; but certainly it would be very much to be lamented,
however unanimous this Court might be, if we did not give
you what we have the power of doing--an appeal to a supe-
rior Court.

The Attorney-General—l understand you have no power
by Act of Parliament to give an opinion unless there be a
difference of opinion among your lordships.

The Lord Chief Baron.—That is not so. We have the
power of granting an appeal, and I roust say, as far as I am
concerned, however unanimous and strong the Court may
be in point of law, if you wish an appeal, you will certainly
have my voice in favour of granting it.
Baron Bramwell—l understand the difficulty to be that
the Common Law Procedure Act does not apply to a case of
this kind. You are apprehensive that the Lord Chief Baron
will decline to sign the bill of exceptions in the form in
which you have tendered it, and if you move for a new trial
on the ground that he directed the jury wrongly, and he
reports that he did not so direct them, we could not grant a
rule for a new trial under these circumstances. That is the
sort of difficulty in which you are placed.
The Attorney-General—We have merely on the bill of
exceptions adopted the litera seripta which we have here. I
am not aware that even a learned judge is able to interpret
his own words on an application for a new trial in a sense
different from that which they really mean.
Baron Bramwell—We ought not to depart from the ordi-
nary practice of taking the judge's interpretation of the
words in which he directed the jury.
The Lord Chief Baron--I will read the shorthand
writer's notes as to what I left to the jury :—" The ques-
tion is," I said, "was there any intention in the port of
Liverpool or any other port that the ship should be in the
language of the Act of Parliament, equipped, fitted out, or
armed with the object of taking part in any contest." I aiso
said, "If you think that the object was to equip, furnish,
fit out, or arm that vessel at Liverpool, then there is suffi-
cient matter for your consideration ; but if you think the
object really was to build a vessel in obedience to orders,
and in compliance with a contract, leaving it to those who
brought it to make what use they thought fit of it, then it
appears to mo that the Foreign Enlistment Act has not in
any degree been broken. I leave you to find that by your
verdict."

The Attorney. General—Your Lordship said that you
would not bind the Attorney-General to what passed on
that occasion—that he could not alter the thing then. The
version which the then Attorney-General had given at the
time of the Lord Chief Baron's ruling was not contradicted.
The Lord Chief Baron—The question now is, what course
you can take consistent with the views of the Court. If
you wish to move for a new trial on the ground that the
jury ought net to have found the verdict that they have,
the Court will entertain that application ; but if you mean
to reserve to yourself the power of malting a motion for a
new trial on a point of law, having tendered a bill of excep-
tions containing that or some other point, I do not think
the Court would consent to that course.
The Attorney-General—My application is now simply
to have the time for moving for a new trial enlarged, so
that both sides may agree as to what your Lordship said to
the jury as to the interpretation of the statute. We believe
the finding of the jury was following upon your interpre-
tation of the statute.
The Lord Chief Baron—Nothing of thb kind.

The Attorney-General—Then, both sides .are under a
misapprehension, and it is their common wish to Oise the
point by a bill of exceptions if possible. We ask you to
enlarge the time beyond the four days ; and if, in the
meantime, we do not get your Lordship's signature to the
bill of exceptions, I will move for a new trial.

Baron Bramwell—We have no power in the Act to allow
more than four days except by your making the motion for
a new trial and then adjourning it, but that would not answer
your purpose.

The Attorney-General said that, as this was only the se-
cond day allowed for moving, by the fourth day they would
have considered whether the case could be brought within
the Common Law Procedure Act, and mention the case
again, or take further steps in the matter,

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