to in the reports. My meaning is that a statement lias been
offered, in the shape either of a certificate or affidavit from tlio
captors — and tlic Court has taken into consideration the faits stated
iu that certificate, or that affidavit, without admitting tli - further
proof at all, but merely, if 1 may use tlie expression, dr Imif tssc,
lias discussed the question at the time without determining wlu-fli-T
nil
THE alim: and fannv.
I8.5f) thf ovidonco "wns ndiiiissiblo or iii.'idniis.siljlc, and ]ias dcf-idod
JiiHuaru 18,30. •in i ' tcT •^^ • xi i ft. c
Jiih/9 10. against tlio captors, saying, "1 ^vlll give you tlio bonolit or pn-
,„ [ suniinc; tliat such evidence has been ffiven in a formal shape." 1 am
TlIK Amnk ° .
AND Fanny, afraid that tliat has occurred more than once in former days, and I
Dr. "will presently set fortli tlio reasons why I think so.
J.ushnigton. VnJer these circumstances, the prayer of the cai)tor8 is that I
should receive f ui'ther proof to the effect that this ship was running
for Jacobstadt, a blockaded port; that on seeing two of her
!^[ajesty'8 ships of war she altered her course, was chased, and was
raptured seven miles to the north-north-west of Jacobstadt. The
claimants pray that I should reject that proof and decree restitu-
tion with costs and damages.
Before I approach the main f[uestinn, I will observe that the
evidence offered on behalf of the captors is not as to any collateral
point, but for the purpose of contradicting and disproving the
original evidence in the cause, and that even if it were admitted,
and no further proof were ofPered by the claimants, the Court
w^ould be placed in the predicament so forcibly described by Lord
Stowell : the predicament of having to determine the case without
any satisfactory means of deciding upon the credit due to the
respective parties.
But, passing this by, I come to the main question. The case, as
it stands, being according to my opinion a case for immediate
restitution, ought the Court to receive evidence to contradict the
depositions and the ship-papers, and to prove a breach of blockade ?
I have already, in other cases, expressed my opinion that the
Court ought not to receive sucli evidence, and I have stated my
reasons, and I have no intention to repeat them. I refer especially
to the Leu cade [f).
But as some cases have been cited by the counsel for the captors,
which have not on former occasions been brought under the con-
sideration of the Court, I deem it to be my duty, in a matter of so
much importance, to consider these cases, and to inquire whether
they ought to induce the Couii to depart from its former opinion.
These questions were at all times replete with difficulty ; and that
difficulty is now greatly augmented when the consequences may be,
(0 Aute, p. 473.
THE ALINE AND FANNY. 545
not simple restitution to the claimant, but condemnation of the 185G
captors in costs and damages, a consequence which formerly would '^''j,'J,Jl^\o^'
not have followed. It is therefore both my duty and inclination
. TUE AUXB
to see if any fresh light can bo thrown on this subjoct. and Faxxy.
The question, then, which I propose to myself is this : whether j)^
Lord Stowell has or has not expressed his judicial opinion against Lushington.
the admission of captors' evidence in cases similar to the present ?
That is the question I have to determine, and I pray that these
words may be remembered, for there are many distinctions which
may arise in cases similar to the present.
It appears to me that tlie case of the Haahii [n), decided on tho
20th of June, 1805, and the case of the GUcrld'ujheit (.r), decided on
the 2oth of July, 1805, furnish conclusive evidence of the judicial
opinion of Lord Stowell on this question, and that he liad sup-
ported such opinion by very powerful reasoning.
Of course, I do not mean to go over the case of the ILiaht
again, but I may refer to one single observation there. .Vftcr
having stated certain facts, he says : " The general rule of law,
notwithstanding, is that on all points the evidence of tli<^
claimants alone shall be received in the first instance ; and if no
doubt arise upon that view of the case, the Court is bound, by tho
general law, as well as by the act of the British legislature, to take
those points as fully demonstrated." It is upon that exposition
of tlie law that the Court has hitherto acted, and founded all its
l)revious judgments.
Now, it will be desirable to see whether Lord Stowell, subse-
quently to the case of the Ilimhct, in any degree departed from
tlie opinion so strongl} - and so forcibly expressed by liim ; and, T
may add, not only forcibly expressed in tho very passage I liavo
read, but in the whole reasoning lio has set forth in giving
judgment in that case.
In the courso of the argument reference was made to what foil
from the Court in the case of the Leucadc (//). I np^at what I
said in that case, and I am not inclined, till further adviso.l, to
depart from one single syllable that I uttered there as being my
conviction of what is tho law and practice of this ( 'ouif . I believo
((0 Vol. I. p. o-lA. (.r) Vol. I. p. -VJT. iio»o. ://) Antf, p. 4T:{.
K. — VOL. II. ^' ^
510
TFTE ALINE AND FANNY.
TlIH A LINK
AND Fanny.
Dr.
Lusliinj'tuu.
185G I never did say, and 1 < ertaiiily did not iiieaii to say, that, ante-
'^'//X'V^'o" cedout to tins case, cai)tors' evidenc(3 had never heen admitted in
eases similar to the Ibuihct and the Glinldujlieit. I eould not well
have thought so, and if I said so it must have been a mere slip of
the tongue, and for obvious and plain reasons, because these two
cases themselves furnish proof that the evidence of captors in like
cases had been admitted, and the effect of these cases is, that
Lord Stowell held the former instance of the admission of such
evidence to be ))iahi jirc.ris, and expressed his opinion that it would
not be expedient to follow it in future. They furnish, in fact,
evidence that such practice would not be unusual in these Courts.
What I said was this : " Now, to the best of my knowledge and
belief, the practice of this Court was as follows ; I speak of general
rules, to which there may be few, and very few exceptions, as in
the case of the JIaahef. Captors' evidence as to the fact attending
the actual capture, for the purpose of procuring condemnation, was
almost universally excluded " — almost — " I might say, witli few
exceptions, such, as the case of the Haahet, and the other case
cited. Those are the only two cases on record" — I moan in the
reports, of coiu'se — " and Lord Stowell shows in his judgment, and
it also appears in a note to the Haabet, that he was determined
not to admit that practice in future." I really am not sensible
that there is any error in the statement of the law on the part of
the reporter ; but if there be an error, the error is with me and not
with the reporter.
Now, examples of what has been done prior to the case of the
Ilaahet and the GHo'ldigheit would be, I think, of little or rather
no weight, because they are acknowledged by Lord Stowell and
are repudiated by him. The true question would be : did Lord
Stowell depart from the principles he laid down in the Haabet and
in the GUerldighcit ? Now, though this question could not be
affected by former practice, still I deem it right to notice the case
cited by Dr. Deane from Dr. Burnaby's notes to the case of the
Der Fricdc (z). I have gone through that case. That case com-
(2) lu the possession of Dr. Pratt,
who has kiudly favoiu'ed the editor
with a copy. " Captors' afRdavits
admissible in cases of blockade.
Friede, Mehrtens, October G, 1803.
Question whether party has been
gnilty of breach of blockade. I do
not feel that indisposition to affidavits
THE ALINE AND FAXXV. 547
meneed on the 14tli of February, 1803. I have that case here, i8o6
hut I really do not know that I should he justified in roa
'• o Juiij 9, 10.
through the Avhole of it. On the 3rd interrogatory, in that case,
the master swears that " the ship was seized in the river "Weser, axd Fan.w.
lying close to the Mellen buoy, lying just above the l^ed Sand, in ~Y)r
the month of August. 1S03, by reason of liis bringing liis ship to T.ii-iiini.'tMii.
anchor in the river after having been desired by the captors to
proceed to sea." I had better, perhaps, state -what the general
fact was. The master entered the river AVeser, ignorant of the
blockade which had taken place, and he was warned b}' one of liis
Majesty's ships of war, and was desired to go elsewliere. Instead
of going elsewhere, he anchored his vessel in the immediate
neighbourhood of his Majesty's ship of war, and the officer com-
manding that ship, being of opinion that he intended to break the
blockade, ordered him away. He refused to proceed unless he-
could get a pilot, and a pilot he said lie could get cheaper in the
river than by going to Ider, "whitlier the commanding officer
desired him to go. In consecpience of this the vessel was seized
and detained, and brought here for adjudication.
I must observe that in this case there was the most extraordinary
irregularity I ever saw in any case. Two of the captors' witnesses
were persons from on board his own ship, not from the ship
captured. There was an affidavit bringing in the ship-papers
sworn by a person who never saw the ship-papers in his life ; in
short, there was a mass of ii'regularity such as I never remember
to have occurred in any case during my practiie. This was long
before I was conversant with these ComHs.
Now I have looked at the minutes of this case wliich I now
hold in my lumd, and I will state what tliey wi're : — ( )u the
6th of October, the claimants' proctor brought in a protest of the
master, mate and mariner, and a further attestation of flu> master,
of captors ; — generally tiuo that ovi- thoroforo to eviclonco from captor?*
dencc that Court pvoccotls on, is that not >o strong. In other oum-s tlioro
afforded by claimants. But circum- aro documents as well as jvuolo
stances occurring at moment of cap- evidence ; but evidence at moment of
turo aro open to both— standing on seizure in blockade mu.st bo pnrolo.
eciual footing as to knowledge and Lay down no geuonil nilo as t<>
nearly so as to interest, objection affidavits from captoi-s."
N X 2
•^48 rrn: a mm; and rAWv,
1856 itiid prayed llio .sliip to 1)0 restored. In tho minutes there is
"^'/XV'i'o^ iiotliiiif^ said as to any prayer on the part of the captors— nothing
at all — to bo allowed to give evidence in the case. The Queen's
TlIK Al.INE , ., , \L •
AND Fanny. 1 roelor meroly jirnycd condemnation on tho evidence hrougnt in
j)j. on tho part of tlio captors. Wliother it wa.s received or not I
Lushinpton. cannot say, because the case was appealed, and there the captors'
afTidavit was exhibited ; but whether or not that affidavit was ever
received by Lord 8towell tho minutes make no mention of.
AVhal, then, was the result of the ca.se? Lord Stowell delivered
his judgment, Mhieh was read by Dr. Deane from a short note by
Dr. Buruaby. Lord Stowell, taking the evidence of the cai)tor8
into consideration, was of opinion that the seizure was premature,
and he restored the vessel. That was the state of the case ; but he
does not say he admitted the evidence as captors' evidence ; but I
presume he had admitted all the facts, and even upon the captors'
own evidence he restored the vessel. Upon this state of things
the case went up on appeal, and the consequence was that the
judgment was affirmed with costs. Theii* Lordships were not
much in the habit of giving costs, but they did it on that occasion.
So much for this state of the case. I cannot undertake to say
exactly what was done, because the minutes do not afford me that
satisfactory information which I should have expected ; but this is
quite clear : among the papers printed there is the affidavit of
Captain Rosenhagen and others, namely, the affidavits of the
captors, dated September 23rd, 1803, and there is also the affidavit
of a seaman as to the captm-e, dated September 12th, 1803.
Now, if I am to form a conjecture, and it is really no more
than a conjecture, from such imperfect materials, I should say that
the Court heard the statement of the captors, and came to the
conclusion that even if it had been admitted it could not have
worked the effect of condemnation. However, I do not lose sight
(if tho observations which Dr. Burnaby reports as coming from the
mouth of Lord Stowell. I mean the observations respecting the
reception of evidence as to the place of captm-e, which if correctly
reported — which there is no reason to doubt — are very strongly in
favour of receiving captors' evidence under the circumstances. I
do not lose sight of those observations, but I think the answer to
them is tho judgment in the Uanhct, which goes exactly to the
THE ALINE AND FAXNV. 540
p(;int us to the place of capture itself. If Lord Stowell, in iso:}, i.s.io
did express himself in the terms Avliiih the note of Dr. BurnaLv's •^"'"'/"//IMO.
^ • July 9, 10,
states he did, then the answer is, that two years afterward.^, in
1805, he changed his opinion on that point — the point of receiviiij^: a„nd Faxhy.
evidence from the captors as to the place of capture. TT"
There were two other cases cited by her Majesty's Advocate ; I-Jsliington.
to botli of them I have referred, and it will be well to make an
observation upon them. One was the case of i\\Q liuineo {n). I
think tliat the question then under the consideration of the Court —
viz., the admission of a document from another ship — depends
upon reasons so wholly different from the present, that it eanurjt
be made applicable with any stringency to the case now under
consideration. "With regard, however, to the general reasoning
attributed to Lord Stowell in that case, I am compelled to say,
with all my respect for that great judge, I cannot eoncm- in it.
Lord Stowell is said to have expressed himself thus [b) : " The Act
of Parliament ordains, that if any doubts arise the Court may
dii-ect further proof; but it has not limited the cause of doubt t<>
evidence actually on board, nor could it with propriety have
imposed any such restrictions." Now this is the passage from
which I am compelled to dissent : " The Court itself might possess
information that would completely falsify the claim. Could it bo
said in such a case that, because the depositions and the formal
papers were consistent, there should be no means of extracting the
real truth of the facts':' Could it be expected tliat tlie Court sliould
proceed to judgment on the mere formal evidence, in opposition to
its own private conviction that the whole of what was there stated
was false 't It would be impossible to maintain that proposition to
the utmost extent."
I must say I conceive that the Com-t, as to facts — as to all that
relates to the ship, and its destination and employment— ought to
know nothing but the evidence before it. As to tlie law and tlio
fact of blockade, of course the case is wholly an.l entiivly different,
and here the Court would avail itself nf any information whieh
came within its reach or power. I am, tlu'refor(% bound to declare
that I wholly discard the notion that the Court may aet on any
{a) Vol. I. p. 5(38. ('') ^'"l• !• "I !•■•>'''-*â–
^^0 Tin: ai.im: and fanny.
18.JC iiil'ormfitioii not jiKliciiilly Lrniif^^lit before it. I do not tliiiik it
"j"'/'i/'V\'o^ necessary to j^o ftirtlier into tliiit case, because the question of
' adnu'ttinff evidence from on lioard another ship really is ffovorned
Tin: Alinb . T . . ^ , . ^ b
AND Fanny, on ]innci[)lcs entirely diifercnt from this.
I),. I now come to the case of the Cli(trlotto Christine (r), •whicli was
Lushington. j^igo ^,:^^^^\^ rpj^^^^ ^^^^^ ^^.^^ decided on the 1st of August, 1^05, and
after the case of tlie Haahct ; but it is to be remarked tliat the
captors' evidence was received prior to the decision in the Ilaabcf,
as appears by the minutes of the proceedings in that case.
This fact alone would prevent the case of tlie Charloite Christine
from being an authority over-ruling the Ilaahct, even if there were
no distinguishing cux-umstances ; but it is most remarkable that
the judgment throughout is founded upon the claimants' evidence,
and not upon the captors' ; and if any conclusion is to be drawn
from it at all, it would rather appear that Lord Stowell, having
admitted the captors' evidence prior to the case of the Uaalct,
was reluctant, after having given his judgment in that case, to
make any use of the captors' evidence in the case of the Charlotte
Christine.
I will not read the whole of that judgment in order to make
good my words, because I think that would be wholly unnecessary,
but I will read merely the conclusion of it. After liaving refen-ed
to the evidence of the claimants throughout, Lord Stowell says :
'' On a full consideration of all the circumstances of the case, and
on the representation of the part}' himself, I am bound to pronounce
tliat this ship and cargo were sailing in breach of the blockade."
Now I commend to persons the whole of that judgment, and if
any one wishes to understand this subject accurately and minutely,
he will there see a specimen of Lord Stowell's skill — he will see
how he was enabled to pronounce that judgment, as he did pro-
nounce it, without reference to the captors' evidence (though he
had admitted it), and, as it appears to me, clearly avoiding that
evidence, in accordance with the opinion which he had expressed
in the case of the Haabet.
But this gives rise to another observation when one looks into it
minutely. In the report of this case, it appears that on the original
(c) See ante, p. o-lO, note.
THE ALINE AND FANNY. 551
depositions the master liad made certain statements. Now wliat 1856
follows in the report ? It does not appear that it is the evidence, "^X'/y 9 ^lo^^'
but it is, in fact, a statement of tlie learned reporter, and a mixture
of what did appear in the original depositions, and in the captors' asd Faxxt.
evidence. Now that should be borne in mind if this case is to be ~^
understood ; and then there is another fact that must be noted Lu«hington.
here, viz., that this was a case where there was suspicion on the
original evidence — a clear cause of suspicion, the vessel liein^-
within a mile and a half of the French coast, of which tlio greater
part was blockaded, in the immediate neighbourhood of Havre.
Therefore, in all these points of view, the Charlotte Cliri'itim' would
not operate as a precedent.
There is another case not reported, for the discovery of which I
am indebted to the registrar ; that is, the Bapid. I mention
this because my object is to lay before counsel and the public
the whole that can bo said on the question, whether it makes
in favour of my opinion or not. That case no one can well under-
stand until he has taken the trouble of going into the original
papers, and seeing what actually did occm*. The Rdjiid, as
reported in Dr. Edwards' Admiralty Reports ((/), is merely ii
case which was decided on the question of carrying despatches.
Dr. Edwards states that the question of destination having l)eeii
abandoned by the captors, the case was argued only on the point
of carrying despatches. The case was carried up to tlie Court of
Appeal; and I find — here are the papers now before me — tliat one
of the princij)al reasons stated, on behalf of the captors' counsel, f
carrying up tbat appeal is, that the vessel was going to a blockaded
port.
Now there the captors' evidence Avas admitted by Lord Stowell, and
admitted after the case of the llaabct. I think it right to state
that. But I am bound to say, after having lookeil at this case
((/) Alii , p. 4o. iVlimito:^ ill lLi> lor hcaviii',', when the jutl^^- tiM.k
case of tho lUqiid. " ISIO. Fob. 0. time to ilolibcruto wliothcr ho slioiiUl
The cause came on for heaving, when permit th" raptors to o.xhiliit alH-
tlio judge (liroctod tho same to stand davits, starch (>. Tho judge, having
over, and reserved tho consideration of matiu-ely deUbenitod. gave pcniiis-
tho cft'ect of carrying tho despatches. sion to tho cnptora to bring in
Feb. 16. Tho cause apraiu came on attestations."
^02 THH A LINK AM) FANNY.
18,»(> ^vi(ll f-Diiic curt', 1 cinimt vi'ulurf 1o pronounce' an opiniuu liow,
Juh/O 10 "^^'^'y> *'^' wherefore cuptor.s' evidence was admitted on that occasion.
There is no report of it that I am aware of anywhere, beyond wliat
AND Fanny. I have stated ahove. The case occurred within my own time, hut
J) J. I have no recollection of if, nor any note of it that I can find.
Lushington, J think, however, there is a circumstance in that case which
accounts for the admission of captors' evidence without infringing
on the general principle. That circumstance is this : there was an
admitted confusion in the log. It was admitted that one of the
days on which the log ought to have been entered up had been
omitted, and that the entry of the subsequent day applied to the
preceding. There was a cause of suspicion on the primary evidence
which might or might not, for I do not know, be the reason why
captors' evidence was admitted.
I have only to observe that I have mentioned this case, because I
am anxious to disclose all that I know upon the question ; and if
the present ease should be carried to the Couii: of Appeal, I hope
this case and others will be made available, and that their Lordships
will be in possession of all the information which I at least can
throw on the subject.
These are all the cases, so far as I can find — though I will not
say what the investigation of the printed volumes might produce
— having any application to the Ilaahet, or to the question now
before me. It appears to me that they do not in any degree what-
soever impugn the authority of that deliberate judgment, nor leave
to me any lawful and just cause for departing from it. Sure I am
that the reasoning in the Ilaahd and the Glicrhtitjhcit cannot in
any degree be refuted, and the consequences likely to arise from a
contrary doctrine cannot be denied.
It is true, however, as has been forcibly argued by her Majesty's
Advocate, that circumstances have been somewhat changed, and
that the captors run greater danger of being condemned in costs
and damages than they did formerly. But however this may be,
and for aught I say to the contrary, it may be a reason for the
Judicial Committee to depart from the authority of the Haabet,
yet I do not think it is competent to me to adopt such a course.
Were the admission of captors' evidence an indisputable corollary
THE ALINE ASU EANNV. 663
to the case of the O.sffsee (,/'), it would Li- Ijoth my duty aud uiv 18-56
inclination to acknowledo-e it; but I do not think that smh a con- •'"'""""y 18.30.
, J"'iJ 9, 10.
sequence can Le fairly predicted to follow from that judgment, and
I think so Loth from the terms of the judg-iuent itself, aud from a"d Faxkt.
the fearful consequences which, in the opinion of Lord Stowell and "77~
of myself, would necessarily follow from the alteration of tlit- I-u^hiugion.
practice. If, therefore, the practice is to be altered in this par-
ticular, and if captors' evidence is to be received, it must be the act
of a higher authority than mine ; it must emanate from the
Judicial Committee.
For these reasons my decree will be as follows : — In tiie lavseiit
case I must reject the prayer of the captors for the admission of the
evidence stated. 1 must restore the ship ami carg
costs and damages, because I think that the place of capture, as
originally described by the master himself, proves that the seizure
and detention were not without justihable cause.
To prevent mistakes hereafter, I must add one other observation.
I do not mean to say, nor, as I apprehend, did Lord Stowell, tliat
there were not cases, even as to the place of capture, Avhere captors'
evidence might be received. I can conceive cases in which it
might appear from the original evidence and the depositions that
there were doubts respecting which it might be just and consistent
with principle to admit captors' evidence ; but these would be
exceptional cases, and not, in my judgment, resembling the present,
and would have to l)e determined upon their special circumstances
wlienever they might arise.
My decree is founded upon the conviction that no serious doubt