against himself or herself or shall render any person compellable to answer any ques. tion 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.

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, enongh for me, if the matter is assumed for the present purpose in my favor. 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 Cairas 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 sugges‐ tion anywhere of that 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 noʻ suggest that he entertained any 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 favor 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 favor if it were not true-they did not offer to come forward into the box to give evidence for that purpose.

* 18 and 19 Vict., c. 16, s. 36, and 20 and 21 Vict., c. 62, s. 14, and ride note, p. 238, ante.

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 ts. 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 reconcilable with the other 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 twelfth 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 favor of the commonwealth against the subject. We do not wish our own act to be strained in favor 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.

FIFTH DAY.-SATURDAY, November 21, 1863.

Mr. SOLICITOR GENERAL. My lords, after the full and complete, 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 endeavored 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 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 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 of 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 compro mising 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 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 ques tion, 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 the neutral, who engages in a trade that by the law of nations subjects his property to capture and confiscation, is not illegal; that he has a perfect and lawful right to engage in the trade, and the belligerent a right equally perfect and lawful to seize and confiscate 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 selfcontradictory. 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 consequence, that if these proceedings of the belligerent are necessary measures of self-defense, the conduct of the neutral in furnishing the war supplies is, in its nature, an act of positive though indirect hostility; that it is, therefore, a plain violation of neutral duty, and that it is the illegality of the trade, as involving this offense, that can alone justify the penalty by which it is sought to be restrained. Were the trade lawful, although the belligerent might be allowed, from a regard to his own safety, to intercept warlike supplies destined to the use of his enemy, he would be bound to pay their value and satisfy their freight, for thus the injury to himself would be prevented, and the rights of the neutral be preserved. In confiscating the goods and the freight, and in some cases the ship, the belligerent treats the neutral owners as enemies; and, unless on principle he has the right to consider them as such, their own government would be bound to listen to their complaints, and redress their wrongs." This appears to me to be cogent, I confess. "Unless they are rightfully treated as enemies, the condemnation of their property, instead of being lawful, would be an act of violence and a cause of war. I am not aware that the observations of Vattel are sustained by any other writer on public law; and a single remark of Sir William Scott, that has already been given, contains in itself a full reply. It is found in his observation that there are no conflicting rights between nations at peace; and this observation, although applied by him to the single case of a resistance to search,

may be applied, with equal truth, to every case of a violation of neutral duty." That contains the statement of his argument.

Mr. BARON BRAMWELL. I confess it seems to me that that is a very elaborate dealing with words, because the proposition may be laid down that it is unlawful in the sense that the party who commits the act is subject to the punishment of capture and confiscation; it is not unlawful beyond that. You do not treat him as a pirate; you do not treat him as a prisoner of war. It is perfectly lawful for a man to enlist in the service of a foreign country, and it is perfectly lawful to shoot him. Those are not conflicting rights. What is meant is that there is no other illegality in the enlistment than this, that it subjects the man to be shot. It seems to me, with great submission, that those good folks, if they thought of the use of the words they were dealing with, never could make the mistake they do.

Mr. SOLICITOR GENERAL. There is this distinction between the way in which you deal with a man violating a blockade or a man carrying contraband, and a man who is doing what is perfectly right. For example, take the case of a neutral shipowner carrying enemy's goods, not contraband; if you take a neutral ship carrying enemy's goods not contraband, you take the goods out and you pay the owner the freight. You have a right to take out the goods because it is necessary for your own purposes as a belligerent.

LORD CHIEF BARON. That is to damage the enemy.

Mr. SOLICITOR GENERAL. Yes; but inasmuch as the neutral owner has not done wrong, you do not injure him in any way, you pay him the freight. If he, the neutral owner, commits a wrong against the law of nations, you seize and confiscate his goods. LORD CHIEF BARON. You never punish him, you neither imprison him, nor shoot him, nor try him by a court martial, or in any other court.

Mr. SOLICITOR GENERAL. That is so.

LORD CHIEF BARON. It used to be the same with respect to offenses against the revenue laws of this country. Originally the revenue laws of this country never punished except by fine and forfeiture.

Mr. SOLICITOR GENERAL. That is so. Upon this question your lordship accurately stated the law yesterday, if I may be permitted to say so. The law of this country so far recognizes the law of nations, that it will not enforce a contract which is based upon an intended violation of international law; but the law of this country does not recognize the law of nations so far as this, that what is an offense against the law of nations is an offense against our criminal law, and I venture to think that is a sound distinction. I will not follow that subject to any greater length, because it is not necessary to my argument. It was touched upon yesterday, and the matter appears to me to be not unworthy of consideration. I will pass from it in a very few moments; but I will observe that this supposed right, according to international law, of the subject of a neutral state to export contraband to the enemy, is the same as his right to break a blockade; there is no way of punishing him unless you catch him in the act; it is not a violation of our criminal law at all events; but still the courts have said, and those cases are referred to by Mr. Duer, that if it appears that a captain of a ship, knowing of a blockade, intends to violate it, the contract of insurance will not be enforced, because the act of the master of the ship is a breach of international law. That I apprehend to be the principle of our law, and that was the principle upon which the cases referred to by the learned attorney general yesterday were decided; and I take that as the doctrine that may be considered to be now settled in Westminster Hall. That was the principle on which the case of De Wutz 18. Hendricks was decided, where a contract founded upon the raising of a loan for subjects in arms against a government in amity with our own was held not to be capable of being enforced in this country. It was not a criminal offense, but an offense against the law of nations, and therefore the courts of this country would not lend themselves to the enforcement of it. I may observe that the language of Lord Stowell, in several cases, is entirely opposed to the view that a neutral sending contraband or trying to break a blockade is really committing no offense against international law. In the case of the Imima, reported in the third volume of Robinson, page 168, Lord Stowell says: "The rule respecting contraband is always understood to be that the articles must be taken in delicto." That is the term he uses. And then again, in 5th Robinson, in the case of the Richmond, at page 331, he speaks of a contraband dealing in ships. He says: "Here was an avowed intention of going to sell a ship to a belligerent, which in time of war is at least a very suspicious act, and to do a great deal more, to sell a ship which the neutral owner knew to be peculiarly adapted for purposes of war, and with a declared expectation that it would be hostilely employed against this country. It cannot surely, under any point of view, but be considered as a very hostile act, to be carrying a supply of a most powerful instrument of mischief, of contraband ready made up, to the enemy for hostile use, and intended for that use by the seller, and with an avowed knowledge that it would be so applied."

LORD CHIEF BARON. Provisions are considered now as contraband.

Mr. SOLICITOR GENERAL. In some cases they are; it depends upon the intention and

the destination; and coals, under some circumstances, would be contraband, and under others not. The question of contraband or no contraband is exceedingly difficult, when you come to apply it to the facts; but I apprehend that the intention and object is generally the test with respect to articles ancipitis usus, so far as contraband is concerned. I may have a word to say afterward with reference to that.

LORD CHIEF BARON. Many of those laws were made by the strong, by those who could enforce them, and therefore the weak were obliged to acquiesce.

Mr. SOLICITOR GENERAL. No doubt.

LORD CHIEF BARON. And they come into the "omnibus," as the attorney general says; they get into the "omnibus" because they are obliged to do so.

Mr. SOLICITOR GENERAL. And the omnes are all those who are strong enough to enforce what they call their rights.

LORD CHIEF BARON. Against those who are compelled by force to acquiesce.

Mr. SOLICITOR GERERAL. Yes, I believe that is so, my lord. I pass from this subject with the remark that it appears to me not an accurate expression to say that a neutral merchant supplying contraband, whether consisting of ships or arms and ammunition, is not violating any principle of international law." I apprehend that he does commit an offense against international law, but he does not commit an offense against the criminal law of this country, and I conceive that this country is not bound, under any obligation to other countries, to punish him. In that sense only I accept my learned friend's proposition, and I mean to press this argument no further than this, that this contraband trade in arms and ammunition and in ships of war, which Lord Stowell characterizes as a peculiarly malignant description of trade, is not that description of trade which it appears to me ought to meet with any peculiar tenderness on the part of the legislature or courts of justice. I do not mean that you must stretch the criminal law for the purpose of including any person not within its words; on the other hand, yon are not to narrow and fritter away the foreign enlistment act in order to favor a contraband and illicit trade opposed to the law of nations; and with respect to this foreign enlistment act, if it is contended on the other side that it interferes with one description of trade not peculiarly entitled to be favored, on the other hand it may be said to be in the interest of peace, and therefore in the interest of the whole community.

Now, my lords, a few words as to the second principle of international law which my learned friend stated in this manner: The territory of a neutral power is to he kept inviolate from proximate or immediate acts of war. It appears to me that that propo sition is too narrow; it should be, that neutral territory should not be the basis of hostile operations. I should prefer stating the proposition in that way, and when my learned friend, Sir Hugh Cairns, went so far as to contend that a foreign belligerent would have a right to establish here a manufactory of arms

LORD CHIEF BARON. You need hardly labor that.

Mr. SOLICITOR GENERAL. I think my learned friend went a little too far in that. LORD CHIEF BARON. I think the case which Sir Hugh Cairns would have put would have been setting up a manufacture either by some subjects of the foreign power domiciled here, or by British subjects willing to assist them by commencing the mannfacture.

Mr. SOLICITOR GENERAL. I think my learned friend limited his proposition to the foreign belligerents employing their own subjects.

LORD CHIEF BARON. He would hardly entertain the notion that they could set up in this country a manufactory as a manufactory of the Confederate States.

Mr. SOLICITOR GENERAL. I am certain that my learned friend, Sir Hugh Cairns, if he were an adviser of the Crown, would not advise the Crown to submit to such a use of its territory; and when my learned friend endeavored to limit it to a manufacture in which foreigners were engaged, that would make no difference at all; it would be the use of the neutral territory as a basis of hostile operations, and though no immediate act of war would be committed, it would be such a use of the neutral territory as no neutral state with any respect for itself would, permit, and which the opposite belligerent, if strong enough, would be sure to complain of.

Now, my lords, it appears to me that under this head of the inviolability of neutral territory comes the question of the equipping, the arming and manning of vessels of war by a foreign state in a neutral territory. I apprehend that that is contrary to the principles of international law. This is quite clear, that it gives the neutral a right to complain of the foreign government on account of any such use of its territory; and I should be disposed to say that any use of its territory for the equipping of vessels with the intention of using them for hostile operations, though not accompanied with the commissioning or arming or manning, would still be a use of the neutral territory of which the neutral would have a right by the law of nations to complain.

It is another question, which I am not called upon here to discuss, whether there is a right on the part of the other belligerent to require the neutral to assert his neutrality correlative to the right of the neutral to insist upon his neutrality. That may be a very doubtful question. I am not aware that there is any such correlative right; the neutral is the judge as to how far he will protect his own sovereignty and the inviolability of