The Sun.
London, England, 1824-08-14 00:00:00

all those different causes. The first consequence that was
likely to ensue when piles were driven in large masses into a
bottom which consisted of loose sand, liable to be played upon
by the force of the tides, was a collection of sand about
those very piles, and a consequent obstruction of the
natural current of the river. He would say no more upon
that consequence, because he had so strong a case above the
water, that, even if there had been no sand collected under
the water, he was sure that he could establish the existence
of a great nuisance. In the first place, buoys were placed off
these gears, chains were fastened to them to keep them steady,
and in those chains vessels often got entangled and received in-
jury. These gears, he need not tell the Jury, were not erected
without a purpose. The purpose for which they were construct-
eed was to enable the waggons, which had brought coals from
the pits, to he dropped into the vessels, and there he emptied of
their cargoes. Formerly the coals were put into the vessels by
a spout, which slanted down from the railway to the vessel ; on
one of these gears the spout protruded 36 feet front the railway
over the river, and on the other 30 feet. As the spout seas Mile-
times broken by the coals rushing down it, and as the great
coal was generally smashed up by it with the small, another
contrivance was hit upon for putting the coal on the vessel, and
that was the contrivance which he had just mentioned, and
was called " dropping."-1 Here the model was exhibited, and
the manner of dropping the waggons more fully explained to
the Jury. ]—The effect of this contrivance was, that as vessels got
quickly loaded, a number of them were generally laying otr these
gears to receive cargoes, and thus the passage of the river was in
all cases obstructed, and in many cases rendered extremely intri-
cate and difficult. This was of itself evidence sufficient to esta-
blish the nuisance; hut there was another circumstance which lie
could not consent to withhold from the knowledgeof the Jury. A
great tide set in at these gears. They would hear it described
by witnesses who knew it from practical and he might even
add front dangerous experience ; they would be told that it set
in like a sluice against these structures, and that a vessel work-
ing in it with a certain wind, and falling into that sluice, was
almost certain of being carried against them. Indeed, from
the narrowness of the sea-room, it was almost impossible to
escape from the force of this impetuous torrent. They would
hear front the witnesses that vessels sailing along the river, when
the wind came from the south, had frequently been in danger
of driving against these piles; sometimes had been run aground
by their masters, in order to avoid driving against them ; anti
at others had, in spite of every effort of those on board of them,
been violently dashed against them. They would likewise
hear, that if it were not for these gears, vessels might pass them
with all winds; at present they could not, as the effect of the
wind, blowing against them, was increased, and the force of
the title in some cases was lost altogether. Indeed, the last
quarter flood and the first quarter ebb was all the title that was
now useful. That circumstance, if it stood alone in proof,
would be sufficient to entitle him to their verdict. Ile would,
however, go farther. He would show that vessels with 14 feet
draught of water worked with extreme difficulty past these
gears now, though formerly they could work past them easily
in all winds. A present, sinless the wind was in one parti-
cular direction, they could not by any exertions get past
themat all. Now, as the wind could not be commanded at
will,
and was generally adverse in one out of every four cases
in which it wets wanted, was it not a nuisance that vessels
should he limited to one wind when formerly theycould receive
the benefits of every wind ? and that perspns should be obliged
to navigate with vessels drawing only nine • feet water, as he
would prove to he the case, where they had formerly navigated
with vessels drawing 14 feet. Ha would carry his case even
still further than this: he would prove that vessels without
number had been forced upon the sands, which had accumu-
lated in consequenoe of these gears—that some had got their
masts and bowsprits entangled in the masses of wood of which
they were formed, and that others of them had been damaged
in various ways by the machinery for the spouts and the drops.
How, then, the erection of these gears could be denied to be a
nuisance, he must say, that with all his ingenuity, he was at
a loss to discover. Ile had told them that of these gears one
had been erected 24 or 25 years ago, and another only three
years ago. With regard to the latter, he had just been in-
termed that lie was mistaken—it had been erected pretty nearly
as lung as the other, but badreceived about three years ago a
great addition to its extent and magnitude. The point wise not
important, for if the building were a nuisance, it war not the '
less so for having existed a few years more or less. The Learned
Counsel then said he did not know what defence his Learned
Friend, Mr. Scarlett intended to set up against this case; but, as
he supposed it would be analogous to the attempts which had
formerly been made to defend analogous encroachments he
would beg leave to mention one or two cases to them. In the
case of " the King v. Russell, G East, 427," the defendant, who
was a waggoner, and had been accustomed for years and years
to load his waggons before his warehouses, and leave them,
when loaded, in a certain portion of the public.street, when in.
dieted, thought it sufficient for him to show that there was a
great space left by him for the King's sujects to pass along, and
that even two waggons might pass through it abreast on the
opposite side of the street. The Court, however, held this de-
fence very cheap, and said, that if the King's subjects had a
right to a space over which four waggons could pass abreast,
the defendant had no right to appropriate two to himself.—
Similar doctrine was held in the case of " the King v.
Cross," reported in 3d Campbell, which was an indictment
presented by Mr. Drummond, the banker at Charing-cross,
to get rid of the nuisance and obstruction occasioned by the
plying of stages at Charing-cross. The case, however, which
most resembled the present case, was " the King v. Lord
Grosvenor." Lord Grosvenor having erected a wharf on the
bunk of the Thames, was indicted for a nuisance. His
Lordship endeavoured to show that this wharf was a great
advantage to the navigators of the river, from affording them
a shelter, which they otherwise had not, in certain winds. Ile
did not that day expect to hear that these gears produced any
benefit to the public. It was true that to the parties them-
selves they were productive of pure and unmixed benefit ; for
they saved them all the expence of employing keels to load
their vessels; and tkueenabled them to make the same profits
at a less expense than those who were obliged to employ that
kind of craft for such a purpose. In Lord Grosvenor's case,
notwithstanding the convenience his erection affbrded to the
public, it was held that, the convenience could not be set ott'
against the nuisance; he was told that the Mayor and Corpo-
ration of Newcastle were the conservators of the River Tyne,
and he should not wonder if he heard, as he was told that they
were the real defendants in this case, that they, the protectors
of the navigation of the river, had given leave and licence to
erect these structures which were such an obstruction and in.
jury to it. The mode of granting that leave and licence was
by empannelling a river jury, who, after hearing the parties,
gave a licence to A. 8., under the conservators of the river, to
erect a certain building on its banks and in its channel. The
jury were accustomed to meet anti talk about the presentment('
in the morning; they then met again in the evening and ens
gaged in festivity; and he was given to understand that their
proceedings in the evening were in generalmuch longer than their
proceedings in the morning. Ile. was informed, that on both
occasions, their proceedings had little to do with water, and that
the river stream claimed much less of their attention than a
stream of a much more generous and enlivening nature.—(A
laugh.)—The ;?resentment, however, was then matte; and in
consequence of some such measure, these structures had been
built for which Mr. Russell was at present indicted. lie would
now mention to the Jury another point in which the case of
Lord Grosvenor resembled the present case. The Corporation
of London were the conservators of the river Thames, and had
granted their leave and licence to Lord Grosvenor to erect the
wharf which, he built. As a Citizen of London, he always
wished to speak of that Corporation, and to hear it spoken of,
with every feeling of respect and affection; but when Lord
Grosvenor's case came before the Court, the Corporation had
not been spoken of with the same tenderness that he should
have applied to it, because it appeared that it had received
some small suns of money for the privilege which it had grant.
ed to Lord Grosvenor. Lord Chief Justice Abbott, in speak-
ing of this leave and licence, had said, " Will you contend that
you have a right to narrow the river at your pleasure, if you leave
sufficient room for the navigation of it? If you will‘then 1 must
say that you certainly have not the right." And again--" If the
erection be a nuisance, no leave or licence given by any body
receiving a pecuniary compensation for it, will justify it." And
again, in summing up the evidence, he told the Jury that the
question tar them to decide was, not whether the whart conferred
private advantages upon a certain class of individuals, but
whether the public convenience was affected by the alteration
which it made in the current of the river. This, be it remarked,
was the observation of the Learned Judge with regard to an
erection made between' the high watermark and the low water-
mark. It applied, therefore, with still greater force to the pre-
sent constructions, which encroached on the channel at low water
so as greatly to impede and injure the navigation. Ile had
before told them that lie was glad on every account but one that
this case had been reserved for them to try, and lie was glad of

it, because this bill of indictment had been three times thrown
out in the county of Northumberland.
Mr. Justice Ilavta: r —You cannot go into that topic, Mr.
Brougham.
Mr. IIItOUGHAM.—I mention it merely to account for the
delay which has occurred in jresenting this indictment.
Mr. Justice BAYLEY.—Very well, but you know that 110
time can run against the public, Mr. BroughaM.
Mr. Bnouattam was well aware of that point ; but as in a
case like this, he could not anticipate the nature of the de.
fence, he felt it his duty to say a few words on every species of
defence which might possibly arise. He had given the best
answer in his power to the twat species of defence which he
thought it likely for his Learned Friend to adopt—namely, the
licence under the corporation ; and he had been going to ex-
plain the reasons why so long a period of time had elapsed
without any thing having been done to abate the nuisance of
which he complained. One reason was, that the coal-owners,
who had pits contiguous to the river, had brought all their
power to hear in favour of those structures, and that the dif-
ferent coal.merchants in the town of Newcastle, and in the cor.
poration of that town, were bound by their reepective Interests to
give a strenuous support to the alleged nuisance. This was
proved by the difficulty which had attended the getting a bill of
indictment found against the present defendants. No less titan
three bills had been thrown out, and the present bill had not
been found by a jury of the town of Newcastle, but by a jury of
the county of Northumberland. The last topic, to which his
Learned Friend would resort, was the motives which had led to
the present prosecution ; and he expected to hear him say, that it
was not instituted for the benefit of the public, but for private pur-
poses of certain individuals. For his own part, he cared not one
straw about the motives which had led to it. Every man, by the
law of England,had a right to institute proceedings for an offence
of such a nature as the present; and the whole question for
the .Itiry to decide would be, " has an encroachment been com-
mitted ?" and for the Court, " does the encroachment proved
constitute a nuisance ?" He must satisfy their minds that the
encroachments of which lie complained had been committed ;
after he had done that, he was sure that his Lordship would
tell them that they constituted a nuisance in law. It was quite
ridiculous to reflect severely upon the motives of those who
Instituted this prosecution. He had never heard of any
nuisance having been put down solely from the love of coun-
try or mankind. Ile supposed that his Learned Friend would
contend that no nuisance ought to be abated where those genet.-
ous motives did not prevail t but if he did so contend, he trusted
that their good sense would lead them to neglect his arguments,
and to recollect that public advantages in general arose out
of the separate interests of private individuals. They must
be aware, that if they had to wait until prosecute,,l had ceased
to regard their own interests, and to have no (norm view but
the bnefit of the public, their country, or mankind, they would
have to wait a long time indeed before any nuisance could be
removed. Such a practice might, indeed, lessen the numbers
and expences of legal prosecutions, but it would put an end to
all commerce upon rivers and highways, and would only in.
crease the number of public nuisances. He therefore trusted
that, on taking all the circumstances of this case into their con.
sideration, they would see that public justice required them to
find a verdict of guilty against all the defendants. The Learned
Counsel then culled witnesses in support of his statement, who
were examined at great length by the Counsel on both sides.—.
question, and
rEe cdei tg t
no
epaerrstioi leisspoimtn, iteldleiatticeltyaiilnstoefr e
tliede eivnidtehnece were unim.
portant. For that cause, and the very great space that would
be occupied by it., to the exclusion of matter more attractive to
the general reader, we have omitted the whole of the evidence.
The entire interest of the case, indeed, is comprised in the
speeehes of the eminent Counsel who led for the prosecution and
the defence.
At the closeof the evidence for theprosecution,M r. B not: ti
having intimated to his Lordship that that was his case,
Mr. SCAR I.ET T commenced his address to the Jury, by ex-
pressing his regret at being compelled to address then' at that
late hour of the day, and in his and their common state of ex.
haustion, upon a cause which, though it contained but little dif-
ficulty, was of vast importance to all the parties engaged in it.
Of all the important ease* in• which he had been engaged in that
Court. none was ntons itapootant in its conirquence than the case
which his Learned Frilfl that day opened to them. In.
deed, the grounds on which ft had been submitted to their in-
vestigation,byiii
sand,e awrrlitei,cilillttd Friend,bee
enlesatariteydproto them withvetithegregaret
import_
can
.
dour
pornt..
ance which was attached to it, not only by the prosecutors, but
also by the defendants. Whether the success of the present
prosecution would operate to the advantage of the keelmen or
not, he would not ask the Jury at that moment to determine;
but this lie would say, that it would do more to ruin the trade
of Newcastle than anything which a Jury had ever before had
it in its power to do. That these structure,* had not only in-
jured, but that they had also actually improved the trade of that
town, was in proof, even upon the prosecutor's own evidence;
for he had shewn to them, that though one ofthese staiths had
been built twenty-four, and the other twenty years,
it was not
till 1822 that any complaints were made against them, or any
threat was heard of indicting them as injurious to the naviga-
tion
of the river Tyne. It was not till the year 10'.i2 that the
last great strike took place among the keelmen of Newcastle,
when, after a long struggle, they were put down by military
force, and compelled to return to their usual occupations, that
they discovered the obstructions which these gears caused to
the stream, and determined to remove them, if possible, in re-
venge for the resistance which had been offered to their demands
for higher wages. After holding many solemn and serious
councils among themselves, they came to this conclusion—that
as there were now only MO keels in the river, the best way of
increasing the number of them would be by prostrating the
staitlus by process of law__a consummation which, if it could
be carried into effect, would double and treble the number of
keels employed in the river, would leave the whole trade of
Newcastle :for the coal trade attracted all the other trades to
that place after it) at the mercy of the keelmen. They thought
that by such a notable project they should be enabled to inter,
rapt at pleasure the supplies coming from the collieries conti-
guous to the Tyne, that they should be enabled to stop at
pleasure die transit of coals to Shields—that they should
be enabled to cut off, when they thought fit, the supply
of coals to the London market—and, in short, that they
should be enabled to produce such effects by it on the coal-own.
ers of the Tyne, as would compel them on any future occasion
to comply with all their demands, however foolish, and however
extravagant. He admitted that they had received a wise coun-
sel, when they were told that if they had any just cause of corn.:
plaint against the coal-owners, the best thing that they. could do
would be to appeal to the laws, and now that they had made
that appeal, and produced all the evidence they could get to
substantiate It, he said there was no reason whatever for calling
_those gears a nuisance, or for styling them an obstruction, im-
pediment, and hindrance to the free navigation of the river. Ills
Learned Friend had told them that upon this subject he would
not hear of any compromise between the advantages and disad-
vantages occasioned by the direction of these gears. lie had told
. tliemthat he cared not a straw whether the encroachment which
they made on the river was one foot or thirty feet, because if
they should be of opinion that an encroachment was made, his
case was proved, and the nuisance was established. On that point
he differed tutu cola from his Learned Friend. Before, however,
he called their attention more particularly to it,he would beg leave
.todeny the analogy which his Learned Friend had set up between
obstructions upon luihways and obstructions- upon streams.
f
His Learned Friend tad said, if an encroachment made on a
highway he a nuisance, a fortiori, it is a nuisance when made
upon a stream. Ile dissented entirely from that proposition,
not. upon any light and idle grounds, but upon the hest and
most ancient authorities of law—authorities which, with their
permission, he would shortly cite to them. Let them look a
little ut the subject. .A port, or a navigable river with at port,
is not only of advantage to the public, as far as regards the na-
vigation of its waters, but also as far as regards the facilities
which it affords fbr the loading and unloading of vessels, and
the other 6rdinary purposes of commerce. Now, as a port was
only. of utility on account of the facilities which it afforded to
conimerce, it was clear that the more those facilities were in-
creased, the more also was the utility of the port increased.
A tier of vessels lying in a river was pro Santo an obstruction
to its navigation ; but as it was fear. the general benefit of the
public, and for the furtherance of commerce, it could not be
considered as a nuisance. A quay, which all the witnesses for
the prosecution had stated to be an invention very beneficial—
nay, absolutely necessary to commerce—was not, if placed be-
low the low-water-mark, to be considered as tin abstract ob.
strtiction to the water-course, but was to he considered with
regard to the superiority of its advantages over and above its
disadvantages. The ease of Lord Grosvenor, on which hits
Learned Friend relied so niuch, was in many respects dissimilar
from the present, and that the Jury must have of themselves,
conjectured, from the curious manner in which his Learned
Friend had selected his extracts from it. But even if that
case bad been much more similar to the present than it was in