Star.
London, England, 1802-11-15 00:00:00

COURT OF EX-C!IEQyER

• OWIIIIS MTH& SHIP ADVIINTUIte.
This day, at about halfrpaft twelve;.. all the
Judges Met in the Etchequersehamber for the de
termination of different points of law referved for
their confederation.
In the matter of EVerby and M‘Farlatte, who
were Onvifted at the Admiralty Seffions at the
Old Bailey, for procuring the deftruaion of the
!hip Adventure, Lord E}.I.IINHOROUGH Rated to
the Judges, that upon objedions made at the trial,
he had referved for the confederation of all the
Judges the two following tjueftions of law i—
stt. Whether Eafterby (notwithltanding his ads of Owner-
dip) could be legally c.onvidtcd as an Owner of the (hip, when
by the Illiplegifter another perfon appeared as the role Owned
sdly, Whether Eafterby and M'Farlane could legally be tried
by t 0 Covet of Admiralty for fa procuring the chip to be de-
T it Mt appearing that they were ever on board the
M. Beset's, counfel 'for Eafterby, then rote
and dell4ered eng of the moll ma fterly fpeeches
ever heard in Weltminfter-Hall: it laded near two
hours, and was one dote, conflated, revere chain
of argument. .1-le (hewed that he has equal
pqwen to convince the under(landings of the
Judges, as to move the paffions of a Jury. But
I though to the profeffional man it muff have been
a rich treat, to the generality of unlearned readers,
its merits would not be difcerned. Oar !ketch of
it, therefore, (haft be extremely brief. Before be
proceeded to imprefs more particularly thofe argu-
ments of which he had taken a general view at the
trial at the Old Bailey, he begged leave to fay a few
words on the ftatute of the t ithGeo. I. which was
the one with which the cafe of the prifoners had
moft to do. It was a Ratite framed according
to a pradiCe at that time familiar, but now hap-
pily fallen into dilute, of blending many things
of an oppofite and often contradidory nature in
one common ftatute at the dote of a feffion, the
confequence of which was, that many parts of
filch ftatutes were loofely and clumfily worded,
ben* drawn up by perfons altogether unaccjilaint-
ed with molt of the things to which they related.
The ftitute in queftion was entitled, " An at tot,
prevent finuggling, to regulate various pradices
with refpeEt
.to copper ore, and alfo to explain and
amend a former aft of the laid King, for the pu-
nithment of fuch perfons as mould wilfully deftroy
any !hip or vetfel, with intent to defraud the un-
derwriters." It .was ,no wonderjhat in Inch a
heterogeneous jumbleof objeas, the molt impor-
tant ihonld be but imperfealy provided for, and
that the cafe 0444 which *as now under the
confederation of the Court, enormous as every
perfon muff allow it to .Ik, fhoilld unpunifhed,
as, from the negligence Or ignorance of the fra-
mers, the ftatute did not embrace it. The ftatute
which this profeffed to explain was that of the
4th Geo. I. defigned to fecure the Britilli trade
by providing a remedy and a puni(hment for a
crime which was before without either. It was
sectary therefore to recur to that ftatute, and
to the previous names; in order to come to the
=work and foundation oflaw,
the
as it now
and to form a clear, uprights and confti-
tptional decidon, from a collective iieW of die
whole fyftem. ere Mr. EItSICINS read the
jti-
rifdition of the Admiralty Court from its firs et-
tablifliment by the ftatute of Henry VIII. before
which time offences committed at fea were
able only by the civil law. Their Lordfhips, he
Paid, were curdling a jurifdiCtion commencing in
a ftatute, cairied on through a facceftion of later
Rams, and having no authority, no fuppful,
but what it derived from ftatutes. The maxims
aid rules of the common law could not be called
in for aid and explanation where there appeared
to be any defect or omiffion. The flatute of Henry
VIIL did not make the offences enumerated fe-
lonies, as at common law : if it had done fo, the
acceffiries would have been included according to
the uniform fenfe of the common law. The offences
were already felonies by the civil law, and the
ftatute only gave them a common ;air form of
trial. The operation of the ftatute was therefore
underftood with that )ealoufy, which the com-
mon law long and wifely entertained, of every
thing borrowed from the civil, not to extend to
acuelaries, as they were not fpecifically mentioned.
This was decided in the Court of Exchequer
Chamber, before the twelve Judges, as Gated by
Lord Coke, in his third inititute. Here Mr.
Raced at length the law, with refped to
divided offences, which were without a remedy,
even in the cafe of murder, where the blow was
given in one county and the death took place in
another, till the ftatute of a Edward VI. as (Wed
in the preamble of that ftatute. if piracy was corn-
witted on the coati of one ebtinty, and the plun-
der landed on the coaft of another, the receiver
could not be punifhed, as decided in Butter's cafe,
mentioned in Dyer's reports; and in like manner in
any eoihmon robbery; where the goods were tranf-
ferred to another county, the receiver before that
time efcaped unpunifhed. With refped to offen-
ces committed at fea, this imperfection was of
much longer duration. Hale, in his pleas of the
CrOwn, fays of piracy, that acceiraries by land
could not be tried. The Admiralty Court could
not try them, beeaufe their offence was committed
on land, and its jurifdietion did not extend to
acceffaries; and the common law could not take
cognizance of them, as the crime itfelf was com-
mitted 'at fea. It was not till to William 111.
that perfons on land aiding, aflitting, and procur-
ing robbery and piracy at fea, were made pu-
nithable as the principals in thefe crimes, accor-
ding to the (tante of Henry VIII. This Itatute
was therefore fttbjed to the fame jealoufy in its
conftrudion as that to which it referred, as was
alfo that of 6 George I. which made the acceta-
ries to thofe crimes principals. To (hew Dill fur-
ther how* (lowly and imperfatly remedies were
provided for thefe offences, it was not till the
reign of Geo. 11. that murder, where the deadly
blow was (truck, or poifon adminiffered on land,
and the d a ook

. . •
~t3lre ofiCOOlObs msg. ht be brought againft him :
Coombs and his partya were fuppofed fmugglersi
who, on, teeing the barge of a revenue Gutter
approastk, quitted their lugger in the harbour of
Chrificfittrch, and getting on lhore, fired ?rem
behind a wall, and killed one of the men in the
barge. Coombs was found guilty at the Admi-
ralty SeMons at the Old Bailey, and exceptioo was
taken to.the jurifdiaion ;• but it was decided by
.
the tiaelte judges, thie,,though the trigger was
draWn on (bore, the wicked mind went with the
bullet, and was prefeof when it (truck the cleceafed
in the barge. This offence was therefore confi-
dered as committed entirely at fea, and the excep
tion was let elide, ,
.but the cafe of the prifoners
was different: it eras not ayanfadion wholly con-
fined to a fpace Of a few yar4s,..as well of land as
of water, nor td a tingle moment of time, nor
were they perfons who had been at lea, either
during the criminal aa, or any part of the voyage
previous to it. The flatute of 4 George 1. was
made for the porpofe of preventing the very crime
of which the prifoners bad been found guilty; de-
aroying or procuring to be dellroyed any (hip
or veffel for the purpofe of defrauding the Un-
derwriters. But this aatute was itfelf imperfea,
and the ilatute of i i Gen. I. was made to explain
and amend it. By this Itatute, all perfons lo of-
fending were made guilty of felony without !ge-
ne& of clergy, and if the enactment had been
confined tolhat, it would be fatal to his client ;
but proceeding in a fubfequent claufe, to enume-
rate the various offences to which it was meant to
apply, and omitting this, which was divided be
the land and the fea, it could not, even if
it affe.ded acceinries, be continued to extend to
him. Mr. ERSKINE profelTed himfelf to be, not
fo much the advocate of Eafterby, whole crime he
abhorred as much as any man, as the defender of
the laws of the country, whole wifdoni and huma-
nity it was not to go beyond the letter of what
was written. He was Ilitisfied that, to men of
their Lord thips' experience and judgment, the pro-
priety of this aria interpretation would appear,
Whatever odium may be produced among the
unthinking part of the community by the enor-
mity of the guilt which may Ibmetimes efcape
under its fhelter. Every wife and juft perfon
would, he was lure, be better pleafed to fee juftice
in fome intlance fall fhort of its objets, from this
prudent ftrianefs, than to have a latitude allowed
in the conaruetion of our laws by which innocence
may be endangered and oppreired. Mr. ERSKINE
then advanced a leparate argument for Eafierby,
I on. the ground that he could not be conficierecl as
an owner in law, the regifler of the vellel at the
Cullorn,houfe being in the name of M'Farlane
alone, and that being the only evidence of owner-
fhip legally admithble. Mr. ERSKINE cited two
cafes, one of a thip Aligned as fecurity for a turn
of money, and feized back by the affignees of the
perfon who fo transferred her,and who afterwards
became a bankrupt, to which allignees, after dif-
ferent trials, the property of the vellel was ad-
judged, on the ground that the regifter was the
only legal evidence, and that it continued in the
name of the original owner. The other cafe was,
that of a perfon profecuted for forgery, but who
efcaped on the ground that the bill which he had
forged was not on [tamped paper ; and that no
inarument could be admitted in tvidence in a
Court of Jultice but finch, as was in every refpea
conformable to law. On there arguments Mr.
ERSKINE relied, that •Itis client fhould be difcharg-
e.d from his fentence, trolling at the fame time
that the Legiflature would fpeedily provide again fi
the future poilibility of a iimilar impunity for
fimilar guilt. He at lalt concluded by apoingifing
for the zeal he had difplayed. He faid that no
man was more tenfible than he was of the enor-
mity of:this offence, or received greater fatisfac-
tion from the verdict of the, Jury. He war Coutyd,
not for the criminals, bat for the country.
Mr. Serjeant Bssy argued on the fame fide for
M'Farlane, whom he admitted to be in the fullefl
extent an owner. His argument was therefore
confined to the defed of the law with refpea to
acceffariei, for it was as acceffaries that the in-
dictment ' appeared to him to charge them. He
relied arongly on the omillion of offences divided
between land and fea in the various ails on this
head, and contended that if there was any tribunal
entitled to take cognizance of the crime as com
mitted by thefe two men, it was not that by which
they had be-.-n tried. He, like Mr. Ertkine, pro-
felled himfelf the advocate of the law-and the con-
flitution, rather that: of his client. It might be
lamentable that guilt fo enormous Mould efcape,
but it was the glory of the Britifh law that no
man could Puffer but by its arid letter. It thould
be recolleded that there was no fortrefs thong
enough to prote& virtue and innocence, which
would not at the fame time give fhelter within its
walls to vice and infamy, and that if a breach
thould be made to have accefs to the latter, the
fecurity of the former would be expofed.
Mr. MARRYOTT after Wards delivered a very
able fpeech, in anfwer to the arguments that had
been urged in behalf of,the prifoners, contending
that the Admiralty had jurifdiaion, and that fuf-
ficient proof had been adduced of Eafterby's own-
, erlhip.
The opinion of the Judges will be announced at
the opening of the next Admiralty Sellions.'
• In the cafe of Babwell, convided at the Old
,for taking Bank Notes off a file, in the
Bank of England, and re-iffuing them, on which
he was referred for the opinion of the Twelve
Judges, on a cafe, Elated, " whether at the time of
committing the offence laid in the indiament he
was a perfim entrufied by the Governor and Com-
pany of the Bank of England with the cuflody of
the laid notes, and on fome other quettions to be
limed?"

Mr. juftice RAMC? this day obferved, that the
Report received from the Judge who tried the
caufe, (the Kacoansa) did not at all fpecify any
fad or fans elucidating the queftion of his being a
perfon fo entrufled, and as fuch he could not but
confider it as defenive, and not in a !late on which
they could found their judgment.