of trial, which is what your lordship has now to deal with. I say that is a perfectly different matter. The trial is a trial inter partes; it is a trial in which they are defendants, and they are called defendants on the record; they are admitted to plead, and they have pleaded, and the record before your lordship is a record containing the plea of the defendants; and therefore I apprehend the mode and form of trial must go on just in the way in which any trial goes on in a case in which there is a plaintiff on the one side and defendants on the other. And I will pray your lordship to be so good for a moment, as to observe first what the consequence of the argument on the other side is. Why, the consequence obviously is this, that all the Crown would have to do, in order to attain the end which is now contended for, would be to put into the information a large number of names, including the names of persons as to whom the Crown was perfectly sure that any admission that they desired might be got from some of them, to put in the names of all those persons and to say: "Now, we will open our case. We do not care who is supposed to be the bona fide owner or the defendant in the case; we will prove to you that Mr. John Smith in the street on such a day made such a declaration to some person or other." Turn to the information; you will find the name of John Smith in the information; therefore that is evidence (let the jury attach what weight to it they like) to show that John Smith made an admission, and if so it is evidence to be used on the record between these parties. Now, my lord, I apprehend that the very consequence to which the argument would go shows how intolerable the argument is, for I pray your lordship to observe that the whole of these names in the information are laid under a videlicet. It is not incumbent upon the attorney general to prove his case with regard to any one of these single names. Moreover, the information goes on to say that not only does it make this statement with regard to the persons named in it, but with regard to various other persons at present unknown to the attorney general. Therefore, according to my learned friend's argument, it is not the admission of Mr. Miller, it is not the admission of Mr. Prioleau, it is not the admission of one person or another; it is the admission of any person they like in the whole world that they would be competent to bring forward here and say, "We have alleged in our information that various other persons combined with Mr. Miller and these persons, and we give you the admission of any person we choose to give for the purpose.” Now, my lord, I apprehend that the whole theory of admission in law proceeds upon this. The admissibility of admissions depends upon the persons who are the parties to the record, and if a person is a defendant on the record he cannot complain of this, that an admission that he has made out of the court is given against him, because he cannot dispute his own admission; and the purpose for which the admission is put in evidence is simply to dispense with the proof as against a person who, from his position on the record, is not able to dispute the statement which is so made. But I apprehend that the whole confusion on the part of the Crown is this, that they have confused the question of acts done with the question of admissions made. I will accept, for the sake of argument, this proposition, that my learned friends can give evidence of any act done by that individual, leaving the question to be considered how far the doing of that act will have a particular effect under the act of parliament or otherwise. But I affirm, and I affirm with confidence, that they cannot give evidence of statements made, of sayings said by that individual. Those are quite different matters. If that individual knows anything, he may be glad to state what he knows; but what he said in conversation I say cannot be used as evidence against any person except himself. If he is on the record, if he is here as a defendant, able to conduct his case, and to prove or to disprove the allegations against him, then, as a short cut, the Crown may prove what he said out of court because he is on the record and cannot estop it. But I say, as against a third person, you cannot give any evidence as to what that person said. And I pray your lordship to observe further what the consequence would be of the question which has been put by my learned friends being answered. Is the question which they have put an inquiry as to what Miller said about his own acts? I do not admit that, even if it was, that would be admissible; but the question which they put is this: What did Miller say about what the ship was intended for? which, of course, would go not merely to what he intended the ship for, but what other persons intended the ship for. And your lordship will remember how the evidence already stands in this case. My learned friend the attorney general has opened, and the proof so far has been attempted to be directed in accordance with his opening, to show that Messrs. Fawcett, Preston and Compauy at this very time, when the ship was in the yard of Miller, were directing and interfering with regard to her, and had a control over her entirely consistent with the evidence which they have given that they were the true owners. Therefore, the evidence which is attempted to be used in the shape of some statement to have been made or supposed to have been made by Miller is evidence not as to what the intention of Miller was, but by the very form of the question, it is what was intended with regard to the ship? which would be not merely what Miller intended but what any one concerned with the ship did intend. But I put it on shorter and simpler ground, and, as it seems to me entirely satisfactorily that it is of the essence of the admissibility of the declaration made by a person who is not a witness

in the cause, that the person should be a party to the cause, so that any admission made by him would be evidence. If it is not so, if the question is to prove some fact of something done to the ship, that must be proved as a fact done and cannot be proved, because some other person said it was done.

The LORD CHIEF BARON. I propose now to state what occurs to me upon the subject, in order that any other light may be thrown upon it to-morrow morning which the case admits of. It is very much to be lamented that this is the first time that the foreign enlistment act, which was passed, I think, some forty-five years ago, has ever been brought in question in a court of justice. And in looking at the foreign enlistment act, which mixes up some proceedings which may be taken in the case of a breach of the revenue laws, there is this remarkable thing about it; I believe I am right in saying that, generally speaking, smuggling has never been made a crime. There may be some offenses against the revenue which are misdemeanors, and some which are felonies; but ordinarily the cases which have come before this court are not a trial of an offense at all, and it may be that this is not. The learned attorney general or solicitor general has not pointed it out; but in this case the 7th section of the 59th Geo. III declares that not only the ship shall be forfeited, but every such person so offending shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, upon any information or indictment, be punished by fine or imprisonment. And I know it appeared to me when I first took up the record (I took up only the abstract of it; I had not the least idea that it extended to this voluminous parchment) I imagined I was, among other things, trying whether the present defendants who came in and claimed the ship, avowed it was theirs, and asserted it upon their trial, were guilty of a misdemeanor by what they had done. And certainly I was disposed to try this case as I would any other for an offense, applying to it all the rules of evidence that belong to the criminal law, and certainly many others-applying this rule, that no man can be made guilty of any crime whatever by the admission of some other person that he, that other person, was guilty. But the case has this peculiar aspect about it: There is apparently mixed up with proceedings which are in the nature of proceedings in this court, in matters of revenue, a charge of misdemeanor. Now, with respect to what fell from Mr. Locke about Miller's being mentioned in the information, and, therefore, that what is evidence against them is to be received as evidence against the others, I hold that certainly not to be very valid reasoning.

Mr. LOCKE. I said against Miller himself.

The LORD CHIEF BARON. But he is not here to be tried. Miller is not here. The jury are not charged with any question whether Miller is guilty or not; therefore, as far as that ground goes, it ought to be precluded. But then I understand the way in which the learned Queen's advocate put it is this, "Yes, but Miller's admission is evidence to show that in a proceeding in rem against a ship the ship is forfeited." Well, I do not feel quite clear. It certainly is to be lamented that we are here without any precedent under the act of Parliament at all; and I do not imagine that the act of Parliament at all intended to introduce the strict administration of the revenue laws, with all that belongs to them, in a case where an inquiry is to take place, whether a party has been guilty of a crime or not. I imagine all the rules by which persons charged with crime are protected; and justice is, I believe, in this country most satisfactorily administered under those rules, and I do not imagine it is intended to deprive them of the benefit of them, by putting this question of seizing a vessel into this act of Parliament. This view was particularly pressed on me by the Queen's advocate. The question may be here not whether any person has been guilty in the least degree, but whether the vessel was properly seized. Then that would only raise this question. There is no doubt that with respect to all matters of revenue, whoever takes goods and endeavors to break the revenue laws with those goods, occasions the forfeiture of those goods, and it is no question whose they are. If a man takes any tobacco and tries to carry it where he has no right to carry it, according to revenue laws, it is thereby forfeited. I cannot step in and say "I am the owner." But query whether that applies to the case of the foreign enlistment act-whether the man whose property the ship is not, by anything he says or does, can make it liable to forfeiture.

And I still adhere to this, that the evidence I ought to look at is this, not so much whose is the property, as whether, under all the circumstances of this case, supposing this ship to be the property of the defendants, that is, of the persons who really appear and claim it, whether then any conduct of the other parties giving the appearance of assisting persons in a war with those with whom we are in amity, can afford ground for the forfeiture of the ship. As it is now nearly four o'clock, and it is so near the hour of adjournment, I propose to adjourn, and to get the assistance of my learned brothers, and see whether this evidence is admissible or not. Certainly, considered as a question of trying an indictment for crime, I should be of opinion that if I received the evidence I should endanger the verdict; but I think the proceedings would be altogether fruitless if I were to reject or admit evidence improperly.

The ATTORNEY GENERAL. My lord, we should not have tendered it in that case. Adjourned till to-morrow.

SECOND DAY, TUESDAY, June 23, 1863.

LORD CHIEF BARON. I have to give my decision upon the question of evidence. I may as well, before the jury are all returned, shortly state the grounds upon which I propose to act every day. This was a case of seizure by an officer of the Crown on the ground of forfeiture for a breach of the law enacted by the 59th George III, c. 69, and it is the seventh section of that act under which the present proceeding takes place. The proceedings are similar to those which very frequently come before this court for a seizure for a breach of the revenue laws. There is, however, this distinction between the present case and those which so frequently occur in this court, that I believe I may say in general (I am not now aware of any exception) none immediately occurs to my mind at present, although I think it is very likely that there are some matters that are made misdemeanors, or may be so in some cases; yet, generally speaking, breaches of the revenue laws in this country, that is, the evading the payment of a tax or custom, although matter for an action, is not made a misdemeanor by any law that I am aware of in this country; whereas this particular matter is in the first instance made a misdemeanor. The provision of the statute is this: "If any person within any part of the United Kingdom, or in any part of his Majesty's dominions beyond the seas, shall, without the leave and license of his Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm," and so on, or "shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming," and so on, with the intent of breaking the directions of the foreign enlistment act, "every such person so offending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof upon any information or indictment, be punished by fine and imprisonment." And then it is added, "and every such ship or vessel, with the tackle, apparel, and furniture," shall be forfeited, and it shall be lawful for an officer of the customs or excise to seize the vessel, and then a proceeding against her may be prosecuted, and the vessel may be condemned in such manner as, and in such courts as ships or vessels may be prosecuted for the breach of the laws for the protection of the revenue.

This case, therefore, has the special circumstance that the act creates a misdemeanor, and it certainly places (upon that point there can be no question according to the enactment) the parties as guilty of a misdemeanor and the vessel as forfeited. Now, certainly the impression upon my mind originally was, upon the abstract which was furnished to me, that it would involve an inquiry into the guilt or innocence of the present defendants, who now appear; and it raised the question whether they had been guilty of an infraction of the foreign enlistment act. It is to be observed that precisely the same matter which condemns the vessel to forfeiture subjects the party to fine and imprisonment. Now, generally speaking, there cannot be, as I own I think obviously there ought not to be, two trials for the same alleged offense; one to try whether the ship has been forfeited, and another to try whether the parties are guilty of a misdemeanor. If the ship has been forfeited, the parties whose conduct led to the forfeiture must be held guilty of a misdemeanor, and it would be a considerable inconvenience, and a manifest inconvenience, that there should be two trials, possibly with two dif ferent verdicts; certainly it would not lead to a creditable administration of the law. We next look to the evidence of what Mr. Miller, senior, said. I certainly considered that I was trying the guilt or the innocence of the defendants upon the record. I stated I would admit any evidence of an order or direction, accompanied by an explanation for what purpose it was given, but I thought mere admissions or statements made anywhere to anybody by Mr. Miller, senior, or his sons, or his men, will be evidence against the present defendants; and if the record, with its somewhat large number of counts, raised the question of the defendants' guilt or innocence, I should be of the same opinion still.

But the attorney general contends that this raises no question, as I understand him, of the guilt or innocence of the defendants, but merely of the propriety of the seizure. Now, to explain this, I do not think I can do any better than refer to the instance that I gave of the declaration of a shoemaker, who was making a pair of shoes. The instance is humble and familiar, and may be ordinarily called, perhaps, common place, but I selected it for the purpose of bringing immediately under the cognizance of all who might hear me the precise view which I took of the matter, and what I thought was the point to be decided. I stated that, in my judgment, if the question were raised whether a party accused of housebreaking were guilty or not, you could not give in evidence a declaration of the man who made his shoes for what purpose they were made. But the attorney general says I am not so using the word. This is what I understand, Mr. Attorney, that you contend. You say I am justifying this seizure of the shoes in the hands of the shoemaker, on the ground that it was unlawful to make shoes for the purpose for which he avowed he was making them, and that such shoes were liable to seizure. If this be the true state of the case, of the facts and of the record, it is a complete answer to the illustration that I gave. The question is, is it so? Now it is somewhat remarkable that this statute has been on the law books for, I believe, forty-three years, and yet there has been no instance hitherto of any seizure, and therefore there

never can have been any decision as to the proper mode of proceeding, and whether the question takes the aspect contended for by the attorney general, which had belonging to it some matters which appeared to me to raise a little question. And it is perhaps equally remarkable that the very able argument that I heard on both sides with respect to this question of evidence was not supported by a single authority in point of law, except by the learned solicitor general, who cited the case of Woolway against Rowe, which merely decided that that which would have been evidence, the man being dead, was equally evidence the man being alive; it decided that, and it decided nothing else, and I do not find that any question arises here as to whether the party is dead or alive. The discussion does not turn upon that, and the case of Woolway vs. Rowe proceeds upon the ground that undoubtedly every statement made by the owner of landed property, and while the estate entirely belonged to him, every statement which he made during his lifetime, the tendency of which would be to cut down his estate, is evidence against those who may afterward possess it. There is no doubt about that being the law. All that Woolway vs. Rowe decided was, that being the law in respect of the declarations of a person deceased, it is equally the law with respect to a former proprietor of the estate, he being alive. But I altogether agree with what fell from Sir Hugh Cairns, that that applies exclusively to real property, and a declaration, for instance, of a former holder of a bill of exchange most clearly is not evidence against any subsequent holder. That has been decided; I cannot say over and over again, but it has been decided, and has constantly been acted upon. I believe that the same rule applies to every species of personal property; the declarations of those who once were in possession of it are not evidence against those who afterward lawfully acquire it, and who are in no way connected in point of present interest with the persons making the declaration.

But then the question arises thus: While the ship was in the possession of Miller, are Miller's declarations evidence? No doubt they are against himself, but are they declarations in respect, not of the vessel when it came into the possession of and became the property of somebody else, but of the vessel during the time of the seizure, at which time it was, no doubt, in the possession-at least under the control-of Miller? Now, from the evidence already given, I have no doubt whatever that Mr. Miller, who is a ship-builder, was building the ship for somebody else. I shall be inclined to think that he was hardly capable of committing the offense which is charged in the 7th section. I think there is considerable doubt whether a mere ship-builder is such a person, unless you show distinctly that he is in concert with those who intend ultimately to dispose of the vessel. But the rules under which evidence is received or rejected appear to me to be these: In a question of doubt, if it be a civil case, the practice, and I think the correct practice, is to receive the evidence. In a criminal case the practice is to reject the evidence if it is doubtful. But the reason of that is that in a civil case if any error be committed by the reception of evidence, it can be cured by a new trial being claimed in the ensuing year in the court above. In a criminal case, if it be before a court of assize, or a court of quarter sessions, although, no doubt, the Court of Queen's Bench in criminal cases tried in that court may grant a rule for a new trial, and ultimately make it absolute, yet, generally speaking, the law of this country does not afford the means of retrying a criminal case heard before a court of assize or a court of quarter sessions, and, therefore, the rule is to reject the evidence. However, that rule does not apply to a case like the present, where there is provided the means of tendering a bill of exceptions, which you cannot do in ordinary criminal cases; and where you have the means of applying to the court for a new trial, which most certainly may be done in the present case, secundâ causâ, secunde educitur lex, inasmuch as a new trial may be here applied for, (and a new trial certainly may,) I do not think that the rule as to criminal cases applies. And therefore, in a doubtful case I think the evidence ought to be admitted. I have consulted my brother Martin only, for I have not had an opportunity of seeing any of the other judges. He entertains considerable doubt. I think he is rather inclined to think that the evidence is admissible; and for that reason, and for the reasons I have before stated, I shall now receive the evidence and let it go to the jury with such observations as may be made upon it. I suppose, Mr. Attorney, it is the same kind of evidence that you tendered before.

Mr. ATTORNEY GENERAL. It is stronger, my lord, but of the same class; it is declarations with reference to the ship.

SIR HUGH CAIRNS. Of course we bow entirely to the conclusion your lordship has expressed, with the very clear grounds upon which it is founded; but, although we are sorry that there should be that amount of inconvenience in proceeding in this case, it will be necessary, in point of form, to reserve the question in respect of the proceeding which your lordship mentions now with respect to a bill of exceptions. Your lordship will allow us at the proper time to have the case put in that form?

LORD CHIEF BARON. You may either tender a bill of exceptions, or move the court for a new trial on the ground of misdirection.

SIR HUGH CAIRNS. I only ask your lordship to reserve the point.

LORD CHIEF BARON. I cannot reserve the point; all I can do is to take a note of it.

Mr. MELLISH. In the bill of exceptions, as I understand, it will be stated, supposing it is a question of fact for your lordship, which I presume it would be, whether Mr. Miller, upon the evidence which has been taken, was building the ship for some one else, your lordship will find as the fact (supposing it be for you) that he was building the ship for some one else. It is a very essential part of raising our question, and it must be on the bill of exceptions.

Mr. ATTORNEY GENERAL. That would depend upon the state of the evidence at the close of the case.

Mr. MELLISH. No; upon the state of the evidence at the present moment.

Mr. ATTORNEY GENERAL. We tender the question, and your lordship admits it. I think it would be very inconvenient that we should be discussing now what may be the form of the bill of exceptions.

LORD CHIEF BARON. You spoke of tendering a bill of exceptions yesterday, Mr. Attorney.

Mr. ATTORNEY GENERAL. Yes, my lord; but the ground for the bill of exceptions has passed away.

LORD CHIEF BARON. Your bill of exceptions will not be tendered, then, I suppose? Mr. ATTORNEY GENERAL. Of course not; the question is admitted. How can I, except to a ruling in my favor?

SIR HUGH CAIRNS. With reference to the other remark of the attorney general, I think your lordship will consider that the bill of exceptions with regard to the time should proceed upon the evidence at present taken, and not upon the state of the evidence at the close of the case.

Mr. ATTORNEY GENERAL. The bill of exceptions will come in in proper time.

Mr. MELLISH. I beg pardon, the bill of exceptions must be tendered before the question is answered. Bills of exceptions to the evidence, I apprehend, ought properly to be tendered before the question is answered.

LORD CHIEF BARON. Certainly.

Mr. MELLISH. Then it cannot be tendered now.

LORD CHIEF BARON. I think you had better leave that for future discussion.

Mr. MELLISH. It is taken, then, that we tender it now?

Mr. ATTORNEY GENERAL. You will tender it in such terms as you think fit, we cannot interfere with that. Your lordship's ruling would now go to admit the question, which, yesterday, after a short and not very perfect discussion, was rejected, namely, as to whether any term was used by Messrs. Miller in their yards, descriptive of the Alexandra. To prove that, we will recall that witness.

LORD CHIEF BARON. I think you have got it already; one of the witnesses was eager and anxious to say that he knew it.

Mr. ATTORNEY GENERAL. The evidence will not occupy a moment.

LORD CHIEF BARON. He called it a gunboat.

Mr. ATTORNEY GENERAL. I should not propose to recall the witnesses, but one cannot tell what kind of opposing evidence may be adduced. We go on with Mr. Da Costa at present, upon whose evidence the second discussion arose.

Mr. JOHN DA COSTA called and further examined by the QUEEN'S ADVOCATE:

SIR HUGH CAIRNS. I think your lordship was good enough to take down the exact question upon which the discussion arose.

LORD CHIEF BARON. I have it.

SIR HUGH CAIRNS. Perhaps your lordship will favor us by reading it.

LORD CHIEF BARON. The question was this, "Did Mr. Miller, senior, on that occasion say anything to you as to what the vessel was intended for?" The evidence was," "I went to see the trial trip of the Alexandra, the second trial, on the 3d of March, 1863. I saw the first trial, but I cannot say the precise time when the second trial took place. I saw Miller, senior, on the Monday, and I saw the boat called the Emperor;" Then the question comes, "Did Mr. Miller, senior, on that occasion, say anything to you as to what the Alexandra was intended for?"

Mr. ATTORNEY GENERAL. I think the objection would hardly be to that preliminary question, but to that which would follow.

LORD CHIEF BARON. The natural answer to that question would be only "Yes." I should call that rather a curt and shabby answer to that; the proper answer to that, and the natural answer to that, is "Yes," he, did he said so and so.

Mr. ATTORNEY GENERAL. The next question would be the question, "What did he say ?"

LORD CHIEF BARON. The witnesses do not fence in that sort of way, unless they are told to do so.

Mr. ATTORNEY GENERAL. The objection will be to the question whenever it shall come, "What did he say ?"

SIR HUGH CAIRNS. If my learned friend desires the witness to answer "Yes" or "No," I will not object to this question; but if my learned friend does not do that, I take the objection now.