Imágenes de páginas
[ocr errors]

to be warranted. They were the comments which the learning and ability of my friend suggested on the facts proved. Some actions are founded in folly." That action was so, for it ended in a nonsuit. The whole passage was not respecting the character of Mr. Hodgson in general, but in this case. If the counsel are not allowed to comment on the facts proved, there is an end of the British bar's utility; its energies are paralyzed for ever without those fair and honourable exertions which are thus attempted to be suppressed, it will be neither creditable nor useful. The expressions used by my friend were called for and merited in my opinion. But it was necessary not only to prove that they were false, but malicious. Good God! will it be said that we feel any malice against a party against whom we exert ourselves at this bar? Will your lordship be the first judge to fetter the bar; and, if I may use a coarse and vulgar expression, to oblige every counsel to address a jury with a halter about his neck? The danger is palpable and plain. Your lordship will not allow in 1817 a principle to be established hitherto unknown to English law.

Sergeant Hullock.-That this action is primæ impressionis is proof of the unanimous opinion of the whole profession against it. The words were used in the fair and legitimate exercise of his profession; they were too strong perhaps, but they were not actionable. If he had met a man in the street and repeated them, it would be a libel. In giving a character to a servant there could be no ground of action. Sir Jervis Clif

ton was found liable in an action, because he had written a letter respecting a servant, after he had given the character. There was no vindication on record, because the manner and occasion was the vindication. If this action were maintained, it would be the ruin of the British public as well as of the privileges of the bar.

Mr. Littledale.-The words arise from the fair discussion of the question. If they had been used on a question of trespass, the case would be different. The action was on a note; the note was fraudulent; it was wicked and fraudulent in an attorney to act so: Mr. Hodgson was that fraudulent and wicked attorney. The words were not distinct and independent. I admit that Mr. Scarlett would be liable if he had spoken the words in the street, or caused them to be published in a newspaper. That what would otherwise be libellous might be said in giving the character of a servant was proved in the case of Weatherstone v. Hawkins.

Mr. Raine, (in reply.) The words are false. The comment was unmerited. That they were malicious, I may say, appears on the face of the expressions. I have been twitted twice; one sneer would be enough for not citing a case. I distinctly admitted that I knew no case. The question is, whether there are no bounds, and Counsel may go any length. If there are, to call my client fraudulent and wicked was going beyond the bounds and limits which must be fixed.

Mr. Baron Wood was not for giving sanction to this action, of a first impression, brought for the

first time, because it would be most mischievous, not merely to the bar, but to the public. The words might overstep the bounds of propriety, and be too severe, but they were not to be corrected by such an action. If they had been said elsewhere, if they had been published, they could be punished. In the privileges of Parliament it was the same. The principle was this-whatever is said in judicial or legal proceedings is not actionable. If published, it is. Lord Abingdon was found liable in the King's Bench on this principle, and was imprisoned. He refused, on the same principle, to maintain an action at Northampton, brought by a clergyman against a parishioner, for letters written to the bishop of the diocese (Peterborough), because he would not make courts of law ancillary to ecclesiastical courts, the parishioner having a right to make such representations to the bishop. It had been said, some limits must be set. His objection to this action was the difficulty of fixing limits. During one assize, they could do nothing but try actions brought for words used by counsel at the former assize. The words might be too severe; I cannot say any thing of that.Plaintiff nonsuited.


Feb. 28.-Special Commission. trafficking in Slaves.-Captain John Bean Hanway was indicted for having, on the 10th of January, in the 56th year of his Majesty's

reign, carried away, in a certain vessel called a schooner, from Calabar, in Africa, twenty persons, to be dealt with as slaves, contrary to the 51st of the King.-There were eight other counts in the indictment.

The Attorney-general opened the case to the jury.

James Evans deposed, that he shipped as seaman on board the James, at Liverpool, in December 1814; J. Porter was at that time captain: she was a ship of from 4 to 500 tons; they left Liverpool in December; they then had a schooner on deck; the ship's company consisted of thirty-six ; the prisoner was chief mate; they were bound for Africa, and their cargo consisted of salt, iron, guns, powder, cloth, and rum; they went to Cork, thence to Madeira, and from thence to the coast of Africa. They came finally to Calabar, where the captain died, and the prisoner succeeded him. They left Cork in January, and arrived at Calabar in August. The James went up Calabar river 80 or 90 miles: there was a river called the Qua which branched from it. Previous to their arrival at Calabar, witness saw irons which answered the purpose of handcuffs on board the ship: he saw five pair put on board a Portuguese schooner. The prisoner told him there was a cargo of slaves for him to carry from Duke Ephraim. The schooner was put on board when they commenced their voyage; it was for the purpose of collecting ivory and black wood : but at Calabar she was altered by the prisoner's direction, by knocking the ship's fore bulk-head in, and thereby making a bulk-head

to the schooner, in order to make a partition, and thereby divide the male from the female slaves. The ivory and wood could be better stowed without the partition. The witness was on shore the morning before he went for the slaves, but returned in the afternoon, and the prisoner told him the schooner which was to take the slaves was ready. Witness was ordered to bed at seven o'clock, and about ten he was called up by James Lenton, who was steward, and who said the canoe with the slaves was coming; he got up, and it proved to be a canoe of yams; she went alongside of the schooner which was lying alongside the ship; the yams were put into the schooner for the use of the slaves. Witness was called down stairs, and went in the Captain's cabin, leaving Renton to look out for the canoe of slaves. The prisoner said, "There is a cargo of slaves-call at the Qua river, at which place you will get ten more." In about ten minutes after he went down into the cabin, another canoe came with slaves. The prisoner had told him to make as good a bargain as he could for the slaves, as it would be for the good of himself and the owners. Witness was to take them to Camarones, two or three hundred miles down the coast from Calabar, by the prisoner's orders. He said, "Whatever you do, keep in shore; for if a man of war's boat, or a man of war, falls in with you, they will take you, and condemn the ship likewise." Witness was to take them to Camarones, and sell them to King Aqua. The canoe contained twelve women and

nine men, black slaves; they were brought along side the schooner, tied hand and feet, and the men were put into the forehold, and the women into the cabin. John de Gam and witness took provisions from the ship and went into the schooner; they took water, beef, and rum, and four ship's muskets, &c.; and two black men, belonging to Calabar, assisted them. The prisoner said, "Shove broad off, and make the best of your way to Qua river," and told the witness to count the slaves, and tell hin how many there were. Witness told him 21. The prisoner said no more. This was between ten and eleven at night, in January or February. They proceeded to Qua river, and received one female slave; and from thence they proceeded to Camarones with the slaves; and on their arrival there, a Portuguese boat came alongside, with King Aqua in it, who said he would not purchase them; but the Portuguese captain said he would purchase them, as he kept his factory on shore. Witness said, "Very well," and the slaves were taken on shore that night, and an agreement was made with the Portuguese captain for a pipe of brandy, two gang casts, (20 gallons of brandy each), two barrels of gunpowder, 60 iron bars, and five pieces of Manchester cotton, all which was given in payment for the slaves. The odd slave was brought back, because she had a sore leg, and they would not purchase her. They were five days going from Calabar to Camarones; they brought the rejected slave back, also the articles they got for the slaves, and wit


ness reported to the prisoner what they had received for the slaves :the brandy was taken on board, and the rest of the articles were sent on shore, but witness could not say for what purpose. The woman slave was sent on shoreWitness began to keep the logbook on the 25th of October; and he asked the prisoner if he should enter the slaves in the log-book? Prisoner said, "No; do not do that, whatever you do, it will be the worse for ourselves." Five of the handcuffs were sent on board a Portuguese schooner at Calabar, at the request of King Ephraim, a short time before they went with the slaves, and two of them were returned because they were too small. One of the slaves on board the Portuguese schooner jumped overboard, and King Ephraim being on board asked for some handcuffs, and the prisoner told James Renton to bring them up from below, and put them on board the Portuguese canoe.

Witness underwent a long and severe cross-examination, by Mr. Adolphus, but it did not elicit any very material fact in favour of the prisoner.

James Renton, steward on board the James, corroborated the last witness's testimony.

Donald M'Donald, also a mariner on board, corroborated his testimony; and added, that the youngest of the slaves was about 13 years of age; they were all naked, and tied hands and feet.

This closed the case for the prosecution, and the prisoner being called upon for his defence, denied that he had any criminal intention; that he was but 21 years of age;

and begged the court, in the event of the jury finding him guilty, to consider that he had been in Newgate ever since November last. His friends, he said, were respectable, and lived at the Isle of Wight; but he could not call them to speak to his character, in consequence of the distance at which they lived.

Mr. Justice Holroyd, in summing up the evidence, said, that it had been rightly observed, that one of the witnesses (Evans) did not stand free from contamination (as he might say), he should, therefore, following the doctrines of all the learned judges who had preceded him, recommend the jury to lock cautiously before they pronounced the prisoner guilty, unless they should be of opinion that, in such facts as constituted the offence, he was borne out by the testimony of the two other witnesses.

The jury consulted for a few minutes, and found the prisoner Guilty.

George Cooke v. Colonel Maxwell. The plaintiff is an American citizen; the defendant was governor of the colony of Sierra Leone, on the coast of Africa. The action was to recover damages for an assault and false imprisonment, with counts in the declaration for seizing and converting the goods and chattels of the plaintiff, and for burning and destroying his factory on the river Congo.

Mr. Scarlett stated the case on behalf of the plaintiff. The injury of which this subject of the United States complained, most deeply affected his person and property, having undergone the most severe afflictions,

Afflictions, and been reduced from affluence to beggary by the unjustifiable conduct of the defendant. The plaintiff was now thirty-four years old, and had long resided in Africa for the purpose of carrying on a traffic perfectly legal by the regulations of all governments. Having been long employed to assist a person of the name of Curtis, the plaintiff, in October 1813, had purchased a concern, known as the Bengara factory, for a sum little less than 20,000l. In March of the same year, the defendant, as governor of the colony of Sierra Leone, thought proper to fit out an expedition to the Congo (on which the plaintiff was established), 150 miles from the seat of his authority, and much beyond its limits. The professed object of Col. Maxwell, for this unwarrantable proceeding, was the destruction of the factories of all persons engaged in the slave trade, which had been prohibited since the year 1806, and in which the plaintiff from that date had had no concern: the expedition was under the command of Major Appleton; and arriving at the mouth of the Congo, with three ships and a number of troops, he sailed up a distance of 60 miles, destroying the commercial establishments on the banks as he proceeded. He fixed his camp in the territory of a native chief, called Mungo Catti, and thither the plaintiff was taken in custody, while the. soldiers of Major Appleton, after carrying off a large quantity of ivory, and other valuable articles, burnt his factory to the ground. The plaintiff was sent on board one of the ships;

and, after several transferences, he was sent as a prisoner to Sierra Leone, where he underwent the mockery of a trial: he was convicted as a British subject, of being concerned in the carrying on of the slave trade; and after remaining for some time in the gaol of the colony, he was put on board an English sloop, conveyed to England, and lodged in the town prison of thence he was removed to the Laurel hulk at Spithead, where he continued in miserable durance for a space of six months, as a convicted felon. He did not obtain his release until the month of February, in the year following his first arrest on the Congo. On a representation of the unjustifiable proceedings of the defendant, not only in confining a citizen of an independent State, but in arresting him, and destroying every vestige of his property, far beyond the extent of his jurisdiction, the government of this country ordered that the plaintiff should be discharged, and he was set at liberty accordingly. Such being the short history of the case, it was quite clear that the defendant must be responsible for his conduct, and for the orders he had given to Major Appleton. After the unanimous decision of the judges in Skinner's case, which occurred in the year 1657, and the law of which had never been disputed, it would not probably be contended, that the governor of a colony was not liable for a wanton excess of the power intrusted to him. Redress could not be hoped in the colony where the governor was almost absolute; and, fortunately,

Portsmouth. From


« AnteriorContinuar »