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afflictions, and been reduced from affluence to beggary by the unjustifiable conduct of the defendant. The plaintiff was now thirty-four years old, and had long resided in Africa for the purpose of carrying on a traffic perfectly legal by the regulations of all governments, Having been long employed to assist a person of the name of Curtis, the plaintiff, in October 1813, had purchased a concern, known as the Bengara factory, for a sum little less than 20,000l. In March of the same year, the defendant, as governor of the colony of Sierra Leone, thought proper to fit out an expedition to the Congo (on which the plaintiff was established), 150 miles from the seat of his authority, and much beyond its limits. The professed object of Col. Maxwell, for this unwarrantable proceeding, was the destruction of the factories of all persons engaged in the slave trade, which had been prohibited since the year 1806, and in which the plaintiff from that date had had no concern: the expedition was under the command of Major Appleton; and arriving at the mouth of the Congo, with three ships and a number of troops, he sailed up a distance of 60 miles, destroying the commercial establishments on the banks as he proceeded. He fixed his camp in the territory of a native chief, called Mungo Catti, and thither the plaintiff was taken in custody, while the soldiers of Major Appleton, after carrying off a large quantity of ivory, and other valuable articles, burnt his factory to the ground. The plaintiff was sent on board one of the ships;
and, after several transferences, he was sent as a prisoner to Sierra Leone, where he underwent the mockery of a trial: he was convicted as a British subject, of being concerned in the carrying on of the slave trade; and after remaining for some time in the gaol of the colony, he was put on board an English sloop, conveyed to England, and lodged in the town prison of Portsmouth. From thence he was removed to the Laurel hulk at Spithead, where he continued in miserable durance for a space of six months, as a convicted felon. He did not obtain his release until the month of February, in the year following his first arrest on the Congo. On a representation of the unjustifiable proceedings of the defendant, not only in confining a citizen of an independent State, but in arresting him, and destroying every vestige of his property, far beyond the extent of his jurisdiction, the government of this country ordered that the plaintiff should be discharged, and he was set at liberty accordingly. Such being the short history of the case, it was quite clear that the defendant must be responsible for his conduct, and for the orders he had given to Major Appleton. After the unanimous decision of the judges in Skinner's case, which occurred in the year 1657, and the law of which had never been disputed, it would not probably be contended, that the governor of a colony was not liable for a wanton excess of the power intrusted to him. Redress could not be hoped in the colony where the governor was almost absolute; and, fortunately,
the plaintiff had now an opportunity of appealing to a British jury, who would not think that his claims to their serious consideration were lessened by the circumstance of his being a destitute foreigner. No doubt, the excuse of the defendant would be his zeal for the abolition of the slave trade; but, as he had participated in the booty obtained by this expedition to the Congo, as he had himself received a considerable share of the prize-money, the jury would reflect, whether his zeal had not been a little inflamed by his love of money as well as humanity. It was also a circumstance not unworthy of notice, that Colonel Maxwell had knowingly exceeded his duty; for when the expedition was projected, the objections were pointed out to him, but he chose to proceed in his course, and to set up a paragraph in the Edinburg. Review against a clause in an Act of Parliament.
Malcolm Brodie was the first witness he had resided for some time at a factory on the Congo, until it was destroyed by Major Appleton and his troops, in March 1813. He had known the plaintiff since 1802, who in October 1813 became proprietor of Bengara factory, which he bought of Zebulon Miller, who as well as the plaintiff was an American.
The Attorney-General here took an objection to the competency of this witness, on the ground that he had been convicted at Sierra Leone of a felony, by dealing in slaves. He put in a certified copy of the record of conviction, but Mr. Scarlett directed the attention of the learned judge to a few of its informalities. It contained no
caption, no count, no jurisdiction, no grand jury, and no crime. He contended, therefore, that it could not be received in evidence.
Mr. Justice Bayley was clearly of opinion that this document could not be received in evidence. It was in fact only a part of the record of conviction, and that imperfect.
The examination of the witness was continued. He with others had taken an account of the stock, on the transfer of the factory from Miller to Cooke. The valuation was about 15 or 16,000l. first he knew Cooke he was servant to an American factor, named Curtis he was about twenty years old when the witness first saw him. There was not much trade between October and March 1813, but in slaves, in which Cooke had not dealt since the abolition, by this country, to the witness's knowledge. He could not pretend to swear that Cooke carried on no traffic in slaves at his factory; but he believed none since the abolition.
He understood that Dr. Purdie, the surgeon of the colony of Sierra Leone, had been appointed for that day to be chief justice. No witness was sworn or examined on Cooke's trial, and counsel and attorney were refused to the wit
March for the Congo. We sailed up the Congo, about 60 miles, to Bengalan. During my absence at the Rio Nunez, Lieutenant Dodd brought the plaintiff to the camp at Bengalan: I kept him in custody until I went to Mungo Catti, from whence the plaintiff went by himself to his factory, to which I proceeded in the same evening. The troops were camped two or three nights in the factory, which was fenced round. I left it the next morning, and did not stay till it was destroyed, but I left orders for that purpose. The next morning I found the troops carrying ivory down to the boats we collected about 4 tons in the river, and perhaps 2 tons were taken from Bengara factory. I am certain that there were not eight tons. What was not brought away was burnt. I left orders that the plaintiff should be carried to Bangalan, and from thence he was conveyed to Sierra Leone under the charge of Lieut. Thompson. The ivory was sold at Sierra Leone, and the money was shared, according to the rules of prize money, in the army.
I was at the plaintiff's factory only one night. I did not witness the sale of the ivory at Sierra Leone, and know nothing of it from my own knowledge.—I have heard the defendant say that he had received his share of the prizemoney. I never saw Cooke in irons. Whatever private property the plaintiff had at the factory was very small, and I directed Lieutenant Thompson to restore it to him, in consequence of the plaintiff pleading poverty, and saying that if he had not some money, he should starve in gaol;
I had very little conversation with him, but he never claimed the factory. I was present at his trial at Sierra Leone; the Chief Justice was absent in England, and a Mr. Purdie acted for him at the Quarter Sessions.
To questions from the Court, the witness said that, from the general appearance of the factory, he was convinced that it had been built for the purpose of carrying on the slave-trade.
Mr. Scarlett observed, that he could prove that it had been erected many years before the abolition by this or any other country; and, therefore, that the construction could afford no evidence of the fact.
Peter Parry went with the expedition against the factories on the Congo, in the Princess Charlotte sloop: he saw the factory of the plaintiff after it had been burnt: some of the ivory was brought to the witness's vessel : he saw about 8 tons. The boat made two trips, and would carry about 4 tons at each trip. Some casks of spirits were also brought, as well as a few trifling things. Cooke was conveyed on board the witness's vessel on the same evening: from thence he was removed to the Dorus transport, as a prisoner; he saw Cooke afterwards in gaol at Sierra Leone; the witness received prize-money to the amount of 151.
Dr. Robert Thorpe, formerly Chief Justice of Sierra Leone, was called to prove that he had pointed out to Colonel Maxwell the illegality of his proceeding before the expedition sailed, but Mr. Justice Bayley held that fact not to be material to the case.
Joseph Archeband and Peter Fall proved that they had known the plaintiff on the Congo, and had always heard and understood that he was an American.
The plaintiff's case here closed. The attorney-general addressed the jury for the defendant, assuring them that he stood forward not in his public capacity of a servant of the Crown to defend Colonel Maxwell, if he had been guilty of any excess of his jurisdiction, but merely to see that his case was duly conducted and inquired into. It was unfortunate for this deserving officer that the Court of Justice of Sierra Leone had so mistaken the province to which it was limited, as to proceed to convict the plaintiff and the witness Brodie, when they had been taken out of the boundary of the colony; but being no lawyer, and incompetent to construe the clause in the act of Parliament, which might even puzzle the members of the profession; he had imagined that the Court had sufficient jurisdiction. With regard to the amount of the pecuniary damage the plaintiff had sustained, very uncertain and unsatisfactory evidence had been given; if the factory were in truth the plaintiff's, it was singular that he had never so represented it; and how he had become possessed of a sum large enough to buy it was a mystery which none of the witnesses had attempted to clear up.
Mr. Justice Bayley here interrupted the learned counsel, to suggest, that the pecuniary damage the plaintiff had sustained should be made the subject of arbitration; the personal part of
the injury was peculiarly for the consideration of a jury.
After some consultation between both sides, an arbitration upon this point was finally agreed to.
The attorney-general then addressed himself to the other part of the case, admitting that his client had acted indiscreetly, and had so far exceeded his authority as to render himself liable to answer in damages. He insisted that little or no credit ought to be given to the plaintiff's first witness, who had himself an action pending on the same subject, and who was interested in the verdict this day given. The learned counsel then adverted to the measures adopted by this and other governments ineffectually to put an end to the slave trade, which could never be effectually abolished until the whole swarm of factors on the African coast, not merely Spanish, Portuguese, or American, but English, were destroyed. Under this conviction the defendant had directed an expedition against the Congo, by which he had rendered himself amenable in the present action. He insisted that, as the Court of Sierra Leone had sent the plaintiff in custody to England, the defendant could only be answerable for the confinement which had taken place before sentence. As the defendant could not make out a legal justification, a verdict must pass against him; but the learned counsel was persuaded that the case called for no vindictive damages
Mr. Justice Bayley, in charging the jury, expressed a clear opinion that the defendant was responsible in damages for the whole imprisonment
prisonment the plaintiff had endured from March, 1813, to February, 1814, since the illegal conduct of the defendant had been the occasion of it. There was no ground for charging him with personal animosity; but it was to be lamented that he had shared in the prize money obtained by the execution of his unjustifiable orders. With the motives of the party the jury had nothing to do: it was their business to assign to the plaintiff such sober and reasonable damages as the injury he had suffered appeared to require. The question regarding the pecunary injury was removed from their consideration.
The jury consulted for a few minutes, and returned a verdict for the plaintiff damages 1000l.
A verdict was also taken for 19,000l. the damages stated on the other counts of the declaration, subject to the award of Mr. Taun
been engaged with his regiment in the ever-memorable battle of Waterloo, instead of continuing at Brussels, he would, in the tempestuous weather preceding that eventful day, have found the great comfort and advantage derived from the very superior article furnished by his client. After, however, keeping the cloak nearly three months, it was returned on the plaintiff's hands, with the allegation that it was too heavy and cumbersome to wear; but the truth was, the defendant then had no further occasion for it, being quietly in quarters at Knightsbridge barracks. He should call his witnesses, and prove his case, when, he was persuaded, the jury would find a verdict for the plaintiff to the full extent of his demand.
Mr. James of Coventry-street, camp equipage-maker, was the first witness called, who stated, that on the evening of the 25th of April, 1815, the defendant, Capt. Jebb, called upon him, and requested a recommendation to a military tailor of eminence, as he
First Sittings in Hilary Term, before wanted a very large cloak to take
Westminster, Jan. 24.
Fisher v. Jebb, Esq.-Mr. Serjeant Vaughan stated, that the plaintiff was an army-clothier and tailor of great respectability, residing in Duke-street, St. James's, and sought to recover from the defendant, Captain John Jebb, of the Royal Horse Guards (Blue), the sum of 241. for a remarkably large and handsome cavalry cloak, lined throughout with silk oil-skin, water proof, and made to order. The learned Sergeant observed, that had the defendant fortunately
with him on service; that it must be made under his own order, by a person thoroughly conversant in the business; that knowing plaintiff worked for General Sir Lowry Cole, and many other officers of high rank, he accordingly recommended him to Captain Jebb.
Wm. Gathard, the plaintiff's foreman, was next called, who proved the order; that the defendant is upwards of six feet high; that the cloak was to have a hood to cover the helmet; capes of an extraordinary size; that it was to be made very long, so that it