Star.
London, England, 1818-11-27 00:00:00

LAW INTELLIGENCE.

ADMIRALTY-COURT, NOVEMBER
IN THE CASE OF THE SfilP GE&EI:OUS.
This was an appeal from a sentence passed by the
Vice .Admiralty Court of Barbadoes, cim!emning the •
ship Generous and her cargo, by reason of an alleged
violation of certain Parliamentary Statutes, called the
Navigation Acts, passed in the reigns of Charles 11.
William 111. and George 111 The vessel sailed ori-
ginally from Guadalonpe, in Decembe:', It 10, and
was chartered by Mr. Forman, a resident in that
island, for a voyage to Wilmington, in North Caro-
lina, and back to the West Indies. She reached her
outward destination on the :;Ist of January, 1816,
and after taking in a return cargo, quitted that port,
having been delayed by the desertion of same of her
men, and the difficulty of procuring flesh hands, oti
the SOth of May, and on her arrival in Carlisle Bay,
Barbadoes, was detained by his Majesty's ship Sca-
mander, Captain Elliot, the 12th of July following
and, subsequently, was confiscated under the Act.st
above mentioned, " not being navigated by a crew
of which three-fourths wete British seamen, nor
having a Master, nor being registered accord-
ing to law." In the proceedings of the lower Court,
it was alleged that the name of' the Master, on chang-
ing him in the course of the voyage, was not endor-
sed on the register, and that more than half the crew
were foreigners. On behalf of the appellants, seve.
cal circumstances were pleaded in justification ; and
it was nosy prayed that the sentence of condemnation
might he reversed.
A long aiscussion took place between the King's
. Advocate, Dr. LI::.;111NOTON, Dr. JENNER, and Dr.
Do:.:sox, when scntence was deferred.
• NOVENIEER ME CASE.

This day Sir WILLIAM SCOTT pronounced judg-
ment as follows :—This, he observed, was a Revenue
case, appealed from the rice-Admiralty Court of
Barbadoes, an.' transmitted from thence in the very
incommodious manner in which proceedings usually

e.
arc from the lower Courts. This ship was condem.- •
ned, it is alleged, under the Navigation Acts, some
or all of them : the property on board appears to
have been also altogether condemned, in the idea
that the whole was liable to condemnation, without
any specific grounds being stated on which such sen-
tence of confiscation was decreed. It therefore had ;
become necessary to travel through all the Statutes
alluded to, in order to ascertain the grounds upon
which it had been passed. Of course the onus of
proving that the claimants were not amenable to the
operation of those Acts, remained with their Coun-
sel. It was, however, not unreasonable in that Court
to expect that it should have been instructed in all
these necessary particulars. It had frequently had
occasion to notice such omissions on the part of the
lower Courts, hitherto without effect ; but on future
occasions, he trusted the intimation he now gave
would be attended to. This, then, was a case under.
the Revenue Laws ; laws, as lied been well remarked,
of a very unbending kind, and planned by a policy
which acted on very jealous principles. It was not
in tha breast of the Jude to alter, but to follovv
them. Yet even the law itself must yield, like every ;
thing else, to necessity. In all its aphorisms, the law
never intended to compel men to impossibilities. The
Court, therefore, had three matters for its considera•
tion, and they should appear to its satisfaction, be-
fore it could pronounce for the appeal. In the first
place, that the nature of the necessity be that to
which the law must submit : for there might be a
necessity originated by a man's own act, and such as
the party could overcome. Secondly, That the party
himself have made use of all his best endeavours to
accomplish the enactments of the statutes : he did not
mean that the party should be required to have used :
all those means for so doing which the wit of man
could suggest ; but such as the best experience, com-
mercial habits, and knowledge of business cou:d de-
vise. Thirdly, that all these facts should appear to •
the Court, on the clearest and most undeniable evi-
dence ; for where there was an infraction of the law,'
nothing but necessity could supersede its operation.
The Learned Judge then entered into a history of the
1. ship (formerly le Uenereux) from the time of its cap-
ture down to the voyage in question. The vessel
l• saled from Wilmingtue ea hr return voy age, not
beiror navigated nor et mane ded according to the
provisions of the navigation e. pith three- .
fourths of her crew British mariners, and having a)
British master : she therefore had sii:iiec:ed hermit
to confiscation under • those acts, unless sufli. ient
causes could be established for her deviating liom
the law. The fact of her deviation was not contra
vetted, and it remained with the Court to see whe-
ther the causes were borne out. The defence set up
was, that a qualified crew could not be procured at
Guadeloupe; now this very plea proved, that the
vessel left that islaeil \sith an insufficient number
qoalified men; for i: would be perfectly ridiculous
to plead, as however it :as pleaded, that the disqua-
lification occurred afterwards, unless the claimant
had the faculty of reconci:iag impossihilities ; for
three were contrary Lets. Ie the second place it
was pleaded that no British master could be found
at Guadeloupe, on any conditions—yet Nixon, an
Englishman, appeared on all the ship's papers, as
master, giving receipts, and making sliursements.
This was a difficulty that could only be removed by
supposing that he acted merely for some other per-
son, who was really and truly the master, as after-
wards appeared. After this, it was in vain to say,
that what occurred at Guadahoupe was out of the
question : for the claimants had :lade that the foun-
dation of their defence—three out of four of their
own witnesses who had been examined spoke to this
point ; admitting, what could not be denied, that
they sailed from Guadeloupe n its an incompetent
crew. Of what consequence then was the desertion
of a part of the crew at Wilmington ? That could
only increase, not create, the deficiency. Claimants,
therefore, were bound to prove that they could not
obtain a sufficient crew at Guadaloupe. As to the
question of necessity, did the fact of there not being
a sufficient number of British born seamen at Gua-
daloupe constitute it? Undoubtedly, it it had been
shewn.that the Act accepted none but our native
seamen as British mariners the plea would have been
good ; hut vivre not the Negro seamen, and all
the inhabitants of Gundaloupe sufficiently domiciled.
Was the law so niggardly as to refuse its protection
to those who have submitted to our arms, or so
uejust as to neglect those who have passed from
another power wader our dominion? The &fen; •

I.

, that they had on board Guada-
become British seamen—surely very
any time sufficient to prove the
loco-motive a being as a seaman or-
- statute had added, that Guada-
, take the oath of allegiance ; thas
principle that they are domiciled
If that statute had not reached the
any proceedings coming before
thereto, it would have recog-
also. Gibson had stated, that he
that many of the seamen ship-
were British mariners—no proof;
not the slightest traces, not the
, the only witness was Peregrine,
command of the vessel till May,
is discharged in the interim, on the
Guatier having for a short time
was pleaded that his (Gibson's)
e such description of mariners
the vessel's departure, which took
.4-7 yet it appeared by the ship's
whole of her crew were actually on
that day. So much for this branch
- was Ear more clearly developed.
British register, that the same
mover of the machinery of this bu-
Novernber, 181:5, of the Gene-
not an equally good master in
' not appear. Strange to say,
. Gibson swore that a British
obtained for any money, Nixon,
appointed Captain; and that the
wages of 20 dollars per month were,
' sum paid to any on board. The
severely animadverted upon the
with Cook, a fact which established
That Gibson had extinguished all
saying the vessel sailed under
:new wen to the contrary. Conff-
f was of his employers, And con-
details of the transaction, it was
be ignorant of the existence of
confided too to his own cos-
: whole of the system was one
intended fraud on the Government
to the fllseregister, here the same
fraud, the supercargo Gibson, con-
, his plans of deceptißn ; no doubt it
spirit of the Navigation Act. It was
British register, it was none ; or worse
- one. At Wilmington, Cook the
ican, had disappeared ; where or
" then Mr. Guatier was appointed,
recommends to the same station
an American. This man Was
board, but dwindled to a mate ;
.er, a Mr. Peregrine drops from
:e him, when it has been plea.
master could not be found.—
insaction was an evident copy of
Ir. Barnett was the double, as it
termed, of Mr. Peregrine, as Mr.
-fore of 'Mr. Cook. 'He could not
lcurring with the Kin;;'s Advo-
supercargo might not be sufficiently au-
-harge a worthless fellow, as Nixon
have been, at a foreign port ; the
!ndeed provided for such a case,
had. llere, however, there was
ttemplate but one consistent modi.
rhe ground sunk in at every
the transaction was faithless.
Leßow ; and had been conducted
of that integrity and good faith
distinguish Bluish merchants and,

therefore, affirmed the sentence of

:ING'S lIF.ICII, NOV. 26.

cornmemed • befote Chief Justice Aa-
- nine,. and were adjourned at a
There was no trial of the least

IDER IN A CONVICt slur.

sat again at eleven, when Mr.l
that Captain Drake, who was
iabeas C5.10s from Maidstone jail,'
in a case of murder.
(-GEN F.R A L desired that • the afflda.:
night be then read.
Alicia were very long and nume-
_ informations taken before Mr
[straw, at Greenwich, disclosed in
lowing circumstances :—The :ship
from Cork with convicts for New
inch, 1817. Every thing went
arrived at St. Jago, when them
between somo of the convicts
t this time it secined that a con-
Collins (whether with a view to

liberty, or from what motive did
persuaded the Officers and the Doc-
that there existed among the convicts
upon the crew and take the ship.
pressed with the truth of this story,
the 17th of April, after the convicts
and had been fastened down by the
►g placed upon the scuttles, caused
down upon the convicts, which was
according to some of the affida-
, according to others. Three of the
killed, and a great many wounded
and crying out for the Doctor all
came to them till near nine o'clock

The Doctor then told them that

faults, for they had conspireaeo
_lib they all solemnly denied. They
brought up to the hatchway, and•
'tnees, as to this supposed conspi.
as to a saw and turuscrew which,
'to have secreted. They all de-
y, and on their births being
was found but a few nails and a
le convicts were treated with great
floggings took place, and one man
into him because he cried out
were rivetted on his leg with red
convicts were repeatedly threatened
on t 1 night of the 22d of April,
retired to bed, and fastened down as
.firing on them' took place from all
and lasted nearly two hours. A'no-
and several more wounded, and no
till the next morning. On the

eith of June, foci or five ore* convicts were chained
, into the jai-boat, and one. of them shot ; another
was put in the long-boat. where he died in four days
All the affidavits asserted that there had been no con.
;piracy whatever, :nrlian resistance, or the slightest,
appearance of resi either before the first firing,
between that and the sand firing, after that filing,
or during any part of tie voyage. The crew had
been heard to speak of Collins as the saviour of the
ship ; and after the 17th of April. the convicts had
been treated on all occasions with the most relentless
severity. The affidavits of several soldiers on board
the ship stated, that the firings did not continue above
ten minutes or a quarter of an hour ; according to
some, not more than five or six minutes : that a be-
lief had been generally entertained among the crew
that the convicts intended to rise ; and that before the
firing commenced a disturbance was heard among
the prisoners below, and an alarm given that they
were breaking loose. On the other hand, the affidavit
of one of the convicts stated, that he had overheard
Clements and Baxter, two of the crew, agree to give
an alarm, in order that the firing might commence.
The affidavit of the Captain stated, that the convicts
were '2OO in number; that he was informed by his
mate and crew that they were of a most riotous dis-
position ; that on the nights of the firing, they had at-
tempted to break the locks of their prison, and had
been heard by him to say that it was a bad job, they
had all been fount out; but that though they failed
then, they would try another time. lie had received
the most distinct information from Co' lins, that there
was a regularly organized conspiracy to take the ship.
The firings took place without any order from Or
Officers, there being a great disturbance below, and
the crew crying out that the prisoners were rising
upon them. The firing had been stopped solely by
the exertions of the Officer; for the crew were exas-
perated to the last degree, having understood that
they were all to be put to death. His affidavit fur-,
ther stated, that he had given no orders whitever for
the death of the convict who was shot in the jolly-
boat. were several other /ffidavits in corro-
boration of the Captain's : they aided, that there was
such a panic among the crew that the firing had com-
menced while the Captain was in his cabin, without
his orders, and even contrary to them ; that all the
exertions of the Officers had been unavailing to stop
the firing in less th.th ten minutes or a quarter of
an hour. .1

Chief-Justice Amsprr—Mr. Attorney-General, all
the allegations have been read upon which the pri-
soner was committed, and some on his behalf; the
Court thinks that this is a case in which the prisoner
should be allossed to give bail : of course it will be
ace; tamed that the bail are sufficient.

The At roastv-GEN enAL said, there wac no ob
jection to the bail, who were then sworn :Mr. Lee,
ship-builder, and Messrs. Chapman, merchants, of
Rotherhithe.

. . .
a
. -
' s . -....d.aieheegammiNg
i • ~„.=...........................
should have been, tha
. lour Men, now beeon
link evidence was at a
domicile of so loco-mt
. dloarily is. A late sir
/cope men should tak
ill. lecognining the prim
I 1 , Illeitish "subjects. If th
1 . IdeCnd,ourt yet,
relativ upon an
••• • e tl
, . ".. • the principle alt
1 ilembted not to prove
11 • pW at Wilmington w;
111 .;
' however, .a.• 1' • , n
eimplesfindioutions ; t
1, who did nit take corn
; t 1
Islixon having been di:
) ' '.l.' 24th April, and Gus
I (
i
i r %,
• . 41 supersededliim. It v
? I exertions to procure
f caused the delay of th
s place on the 30th Mat
a atder.s, that the whole
1 "
1 ' long before that
of the case ; the other 0
k It came out•from the
I ' Gibson; the great mot
0 • ' , siness, was matter in
a .. rous ; why he was nc
December, 1815, did
at the very time that
master could not be of
an, Englishman, was a
pretended high wages
' in fact, the lowest sun
• I C, Learned lidge then st
t , secret agreement with
s, two things-Ist, Thai
-claim to credit, by s
1 . Nixon, when he knew
dential agent as he v
',ducting the whole det
impossible he could t
°. I 11 so important a paper,
tody-2d. That the '
a a II • continued and intend
' 1 nd revenue. As to I
active artificer of frau
• ! . tinued to pursue his F
f i was against the spirit
II not only not a British
than none, a false or
%aster, an Americas
waen, n non constat," I
I ! . w!so after some time i
a Mr. Barnett, also :
- afterwards found on t
, fortunately, however
s : ; the clouds to =piaci
I • Jed that a British
' This part of tl:e trait
1 ij
. .i. .
the former part : Ms
was technically terms
1 .I. - . Nixon had been befog
~1 go the length of con;
sate, that a supercart
i 1 • thorised to diicharge
i * was represented to ha
. Statutes had not and
p 1 i . but natural justice ha,
..,
,
. r.atliiii,; lei, to curter]
t,
I • fled system of fraud.
; • ;
; step ; every Part or
fraudulent, and holl
si ; with an entire want o
~.... which should
re ve r di s
i British
.
• •
' The I.:nart, there/.
condemnation: ere
condemnation:
0
COURT OF K]
The sittings comma.
4 t.
BOTT, at ha:fkpast ri
i
t . , quarter after ten. 'l'
i , public interest.
,
ALLEGED MUM
The whole Court I
•r 1 t ROLLAND prayed tl
• brought up by Habe
• might be admitted to
The ATTORNEY-G
. .
.1 vats on both sides m 4
. These affidavits, WI
• .
- • rotas, as well as the
. • • Carter, the Magistro
i 1 substance the follow
• Chapman sailed froi
South Wales, in Mr
1- on swell till the ship 1
i •
r Ira* a slight quarrel
4' - ,- and the soldiers. Al
vict of the name of
procure himself his li
. . not appear) had pers
tor of the ship, that t
• ; a conspiracy to rise s
; . '', The Qfficers, impres
. • . on the night of the 1
-.• had gone to bed, ant
1 ..
chain cable• being p
the crew to tire down
'1 s -done for two hours,
o j
• 11 wits ;.for only one, ac
• •, convicts u...TC killed,
i they lay groaning an
night, but nobody-ca
i the next morning. '
it was all their own I
I . i rise on the clew ; thi
l -t were afterwards bro
Ct etamined on their kr
/ racy, particularly as
. 4',„. they were supposed
i ! 'tied the conspirac:
..$
i file. After this the
•
i\ 1 p
harshness;
bayonet several
11 1
1.1
1 - ! while some fetters v
1 hot rivets. The con
: with death ; and or
' ' after they had retire
• before, a second kris%
ll` : parts of the ship, ant
t t 1 tier was killed, and
', • •,' : nce afforded
. ~
... lionsommoommil
~.
. .
;. .
•