The Sun.
London, England, 1825-06-09 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, JUNE 8.
BOWES V. STRATHMORE.
This was the case of a bill filed to vacate the presentation of'
a living to the Rev. Dr. Liddel, upon the ground that he had
been unduly presented. The subject has been repeatedly before
the Court; and as it occupied the greater part of the morning
without being brought to a conclusion, we cannot lay it before
.our readers in a shape that would be satisfactory. It was a
demurrer, and the question turned upon abstract points of law.

HIGH COURT OF ADMIRALTY, JUNE 8.
THE LOWTHER CASTLE.

Lord STOWELL proceeded to give judgment nearly as fol.
lows :—.This is an action brought against Captain Thomas
Baker, Master of the East India Company's ship Lowther
Castle, for damages, on account of an unjust, or, ut least, ex-
cessive punishment, inflicted upon Michael Comerford, a mari-
ner of the said ship. The imputed offence, which occasioned
the infliction of this punishment, was, that of a negligent and
lazy performance of his duty, in unloading the ship, and °falls-
respectful welds addressed to the Officer, who had made an
observation upon the insufficient discharge of his duty. The
punishment was that of thirty-six lashes, inflicted upon his
bare back, after an imprisonment of four or five days in irons ;
fbr which he claims a compensation of 2001. damages. The
proceeding, which finally led to this. punishment, was conduct-
ed by four of the Officers, constituting what is styled, in the
language of these papers, a Court of Inquiry; the Captain then
being absent upon business, at the city of Canton. Upon his
return on board the ship, he received the Report of his Officers,
and, on that Report, and the declaration of their opinion
thereon, he directed the flaggellation complained of.
It does not appear to me that there is any doubtful question
of law arising upon the legality. of inflicting bodily correction
upon offending mariners, such punishment being commensu-
rate to the offence-committed, being awarded by due authority,
and being administered with due moderation. The law recog-
nizing the authority has been settled in the cases referred to by
the Counsel on both sides. 1 t originates in that necessity of
compelling, if it cannot be otherwise had, by bodily suffering,
that attention to the maritime duties, in which the lives and
fortunesof so many individuals are so intimately concerned.—
There is no branch of our commercial maritime service in
which the lives and fortunes of those on board, as well as the
fortunes of many other persons, are more extensively concern-
ed than that of the shipping of the East India Company; and
the power of securing those interests, by penal infliction, is
no where more cautiously guarded than on board those ships,
it being, as I understand, a standing regulation of that Com-
pany, that no such infliction should take place under the
sole authority of the Captain, though the Captains employed
are generally a very respectable body of men, but must be
sanctioned by the Report of such a Court -of Inquiry, as I
have described,. and the whole proceedings finally reported to
the Governors of that Company, upon the return home of the
vessel. •
The immediate transaction in which this matter originated
was in the unloading of part of a cargo, consisting of logs or
billets of wood, about which this mariner was employed. He
had to receive certain heavy logs of wood, from a lower deck,
from a person who was to hand them up to him, and he was to
receive them and hand them up further. In the performance of
this duty he was extremely negligent and idle—so much so, as
to attract the observation of the superintending officer, who re-
marked' to him how much more dilligent a youth was, em-
ployed nearly in the same way, whose name was Long, and
who was ready to receive and hand upwards two logs of wood,
while lie handed only one. In answer to this observation, he
only said, that the other worked too hard, and would not be
able to hold out long, and that he himself would take it easy,
and would not hurry himself; that is, in other words, that he
would not alter the behaviour of which the officer complained,
upon which the officer observed, he was a disrespectful fellow.
Now, if this was the solitary instance of misbehaviour, I
should be inclined to admit that the punishment inflicted rather
exceeded the offence, though the offence was twofold_thas of
slackness in the performance of his work, and of a disrespect-
till reply to his Officer, who had reprehended him. It was,
therefore, a very natural policy on the part of his Counsel to hold
out, that the attention of this Court must be entirely confined to
that charge, and that neither the Court of Inquiry, nor this
Court, at present, could look further back. But this point,
emphatically adverted to in the opening, was not pressed in the
argument, and, indeed, could not have been pursued with any
effect- The general good character and behaviour of this man
had been pleaded, as usual, in the summary .petition ; and this
is ntet by a direct opposition, contained in an undisputed article
of a defensive allegation, given by the Captain. The "facts,
therefore, of general character and demeanor are directly put in
issue between the parties, and I am clearly of opinion,
that the Court of Enquiry, and the Captain, and this Court,
have a right to look further back, and to see whether this
was an isolated act, or a continuation and habit of misbeha-
siour. It is not, as upon an indictment, when a single offence
is charged, and if the party is cleared of that, can be pursued no
further. Ile mixes again with the general mass of society, per_
hags with more or less imputation upon his character ' • but he
is not associated in the same vehicle with the persons who have
tried him, and who have a right to protect themselves against
the dangers that might follow from his own future Conduct; or
from the evil example which it might have held out to the prac-
tice of others. It is a procedure connected with the future safety
of the ship, dependent upon the conduct of the mariners, and
whose habits of behaviour are, therefore, highly interesting to
them. If those habits are of a mischievous nature in them.
selves, and, still more, in the example of impunity which they
would hold out to others, they are objects of fair consideration
in the estimate of the penalties applicable to any act arising
out of any such habits—laziness, for instance, and slackness in
the performance of duties, are not single acts, but con-
tinuations of habit, and the same observation will apply
to rude and undutiful behaviour. The Captain has, there-
fore, with great • propriety, travelled into a retrospective
charge of both those offences—of lazy and disrespectful be-
haviour, and I think no charge can be better sustained by the
whole of the evidence of this case, than that lie was a man
grossly idle, with respect to work, skulking froth the most im-
portant duties on board, and, though sheltering himself from
Immediate punishment, by a dilatory performance of what was
assigned to him, yet always performing it, as one of the wit-
nesses expresses it, in a grumbling and growling manner, and
as another phrases it, in a muttering and mumbling manner,
and with a' most disgusting shew of dissatisfaction, and not
without the use of contumelious expressions, which even the
vessel itself could not escape, under the title of being only a
bl— y merchant ship.
It is impossible for the Court to consider this concurrent cha-
racter given of him by all his superiors on board, and to impute
this enmity of theirs to any thing but a just 'dianleascre at his
conduct. The testimony of the Officers who composed the Court
of Inquiry, of the Officer who instituted that Inquiry, and those
of the inferior officers.--the boatswain and armourer, all unite
in representing him as a worthless; lazy fellow: slovenly and
careless in his habits, by no means a good seaman, extremely,
indisposed to work, expert at skirking from the performance of
it, and, if compelled to perform. it, doing it in the most negli-
gent and dilatory and ungracious Manner. Being satisfied by
this evidence of the general conduct and character of this man,
I am not disposed to pay attention to his complaints, further,
than to consider whether the facts itnputed to him in this charge
are not fully supported and highly aggravated, by its being a
continuation of every thing that had occurred in his conduct be-
fore. I hope few Courts have a more just regard for the inte-
Jest and comfort of British mariners than this ; but this Court
will expect that seamen shall do their proper duty, and ifi a
proper manner, and, in ,my opinion, this man's conduct has
been one entire violation of it, includingthe present transaction..
I am satisfied that the representation given by the Officers,
though with some variations, occasioned by the lapse of time let'
which they have been examined, is ,substantially cereect, and,
justifies the making of this man pay the penalty of. Ilis general
misconduct.
If I could have seen that he was a man of ordinary diligence,
and had been betrayed into an act ossestpresaion of insubordina
tion, by an unusual failure of temper and manners, I should
have been inclined to have taken a somewhat different view of
this matter, at least at its degree of, malignity.. But I. am
satisfied, thattale immediate a;tltnizik, place,, as .represented by
the offiberaa and though the ingenuity of Counsel ine.Ybave dis-
covered some minute discrepancies :in the evidente given lay'
those Gentlemen, at a remoteiperiod.of . time frqrn the transac-
tion itself, yet that the, explanations given by
,Dr. -Tanner, are
more than satisfactory. I do not feel it necessary to repeat them ;
they are such as generally presented.themselves to my own mind,
upon, the veryfirst attentive consideration of ,the evidence, and
toy mind has not been for a moment di4odged from the
conviction with which 'it was 'then impressed r---,Thar the
immediate facts took place in the manner represented by
the Court of Inquiry.; that the behaviour of the plaintiff upon
that particidar occasion.WasconforrnabletO his general 'tenour
. and habits of idleness and disobedience; intithat the punish:.
ment inflicted was not
severity. ' disproportionate, nor ekcc,uted with undue
I think I -ought not. to omit that two out of the only three
Ivitnesses produced on his part, one of whom, a youth of sixteen
years of age, were produced at a time :wbett,they.vsere out of
the reach of a cross•exiiiiingion, and that the patFtihilliselfligs
confirmed the: truth of 'the Particulai.fieti -alleged, bYhii own-
adinigsinnS and by the offer of suing fiat ps"don for th'islfre*
with which lie was charged.'
The Co unT accordingly decided, that, the mariner was not
entitled' to Ae 'compensation Claimed, atilt digthissed Captain
Baker front the suit,. .•'