Alexandria gazette, commercial and political. [volume] (Alexandria [Va.]) 1812-1817, 1812-11-21

thew gent to dinner, she leaked again.
mon which he wanted to try the pumps
but the captain or mate told him DOT 10
do it, but go and coil the cables ana rig
einy that he advised the captain 70
run her ashore on Nantucket ohoais as
she leaked so badly, bat he replies " we
will 90 ON board that schooner, mean
inp the Hercules thenin sight, and which
had waited fer them on percei5ing their
signal of distress. He gave 1t as MS O.
ninion, that the leak was occaslened ny
design and not accident. On his cross
examination he stated that he had oeeh
maintained 3 or years by the custom
House, at dollars per week to give .es'
timonv in this cause, and that Mr..
Schenck paid his salary. A protest was
also produced IL which be had Joi"ea
with the rest ofthe crew, attrlbutlng the
leak to her striking Oh the rocks Inc
plaintiffs next produced in evidence d
petition presented by the deienoaH's
Poillon, Rusze and Bergh, to the oecrs'
,ary of the Treasury, for relief against
the bond in question, with their ex-
animation taken before Judge Ia|mage
on that occasion, in which, they confessed
that they believed" the loss to have
happened BY" fraud of the master and
supercaeo," bat had "no knowledge
that such was tie case. The Defendants
council opposed tic introduction OF tins
evidence, en- the ground, that the petl-
,ionets had objected at the time to be-
ING examined as TO their "bellef,' but
we're forced to submit to it, or withdraw
their petition. The court however adj
mi,ted it. The evidence being closed,
Messrs. Baldwin and Ogden IN favor of
the plaintiff, addressed the jury in We,
ry able manner; and bringing before
them in clear and luminous point OF
view, Ill the evidence which tended to
establish their case, besonght them to
decide impartiaiIy between the parties,
reminded them that they sat there as Ju-
rors, nol as Legislators, and whateve'
r,igh, be their individual opinions as 10
the expediency Of any particular law
still it was their duty as good citizens to
support and execute it. Mr. Griffin
then alone summed up the evidence o.
the part eff the defendants with his usu-
al animation and impressiveness Col.
Burr ccnGniDg himself merel y 10 the
reading of some law to the court, and
the making Ola few appropriate remarks
thereon. After an appeal to the SYM
patty of the Jury by shelving that YER
dict for the plaintiff would be a equiva-
lent to a sentence Of a perpetual inpri-
sonment on his unfortunate clients, as
they were utterly unable to satisfy it
with their property, and had already aP-
piled in vais to the executive clemency
for relief. He proceeded in substance
az follows, that the question to be deci-
dcd vas, whe ether the Clarinda had been
lost by perils Of the seas; that tie pre-
sent suit tknueh in form civil action,
was III ehecta penal or criminal action.
in as much as the plaintiffs right to re-
cover Git at alp must be founded on the
violation OF positive statute of the y.
States and that his clients therefore
standing in the doubly favored situation
of Defendants in criminal or penal ac-
ton, and .ure,ics for others, were enti-
tied TO the Judgment Of the jury both
on the law and fact, & 10 the benefit Of all
those mild & favorable rules and maxirls,
which had been established by The being
napt genius Of tie common law" in the
construction Of the law * the evidence.
The loss being proved to have happen
ed at sea, it should be presumed that it
had been occas;oned fairly by the periIs
of the sea; fraud should rot be intend
ed, but must be strictly proved How
do the United States prove fraud in this
instance! They cannot do it by cpdea-
voring TO impress iN,o their service the
enforcing act, which requires that the
loss should be proved hy all the crew Gf |
living, S. The proofof their death should
lie on the de(endant.) To apply this
law to a case Arising under different
law ard before its enactment, would be
to convert it into an ex pest facto law;
and however agreeable this might be to
some gentlemen, by putting money into
their pockets, and enabling them to ride
in their carriages, and keep town houses
and country seats, it will never be sane.
toned or tolerated by this court or Jury.
But the plaintiffs lriumphantlv ask, why,
even if not bound TO do 30, did we not
produce the mate and crew of the Cla-
rinda. The answer is at hand, AID when
heard, will be approved by the heart &
iudgmsnt Of every man. We were
not rich enough to keep them here
They are scattered perhaps to the four
winds OF Heaven by their different pnr-
suits, or by the terrible penalties Of the
embargo law and its horsd train, shaking
over their heads. Our poverty, not our
will consented to their departure. We
have always been anxious to meet the
trial. 1t might have been tried before,
and had it not been thus long delay>d,