COURT OF ADMIRALTY.

DOCTORS' COMMONS,

SATURDAY, JANUARY 21st, 1804.

The Eliza, Haff, master, before the right honourable Sir William Scott.

The following case, of which the manuscript copy has been handed us by a friend, will be read with no ordinary share of interest, as it contains the latest decision pronounced by Sir Wm. Scott, on the former criterion as to what should be a discontinuance of a voy. age, and which is directly in the teeth of the latter criterion at this time acted upon.

At present we confine ourselves to a single observation; had it not been that the extremities of this country, as a neutral nation, have driven her to examine with the eye of severe criticism the juridical decisions of this celebrated civilian, his fame might have been left to stand on a broader basis than that of an eloquent judge.*

SENTENCE.

COURT. The only question in this case is, whether there had been such a bona fide importation of the bulk of the cargo in America as to break the continuity of the voyage.

There is no question as to the property; but, under all the circumstances, it is fit the Court should call for proof that the continuity of the voyage (taking it in the most favourable view) which began at Martinique, had been broke by the entrance of this ship in a port in America. As to laying down any rule, an actual payment of duties and a landing must, in my mind, constitute a full and fair importation, and in general, where that appears, the court will look no farther; and where the papers are fair, it might induce the Court not to put the parties to further expense. But are there not circumstances in the present case which tend to deduct from the apparent credit of the transaction? The Court would be inclined to show indulgence when * New-York Evening Post.

there are no special circumstances to raise a surmise that the fact might be otherwise.

Now, in this case, it certainly does appear that the sugar was brought from Martinique, and with this addition, that the master says he does not know of what country it was the growth or produce. I do not impute to the master any thing; but he being connected with, and employed in the ship in the manner he has been, it is rather singular that he should labour under such an utter ignorance of this fact; it is a circumstance disadvantageous to the case; and it would have been more satisfactory if the master had fairly stated that in the former part of the voyage the bulk of the cargo had come from Martinique. It appears something of a reserve, which seems to take off the credit which otherwise would be due to the documents.

There is proof of a reshipment in America, and that supplies the chasm with proof of the unloading; and there is proof of a change of the crew in this case. That is a circumstance which might be interpreted into an unfavourable conclusion, namely, a plan of concealment and suppression of the real destination of this cargo being from Martinique to a French port; and this reshipment in the American port might be done with some intention of throwing a cloud over the fact. I think these circumstances of weight sufficient to overthrow the favourable interpretation it otherwise would be entitled to. The Court, therefore, is not quite in possession of facts fully disclosed, to which it can at present apply any principle of law, but the principle of law must be applied to those facts when fully disclosed. My present inclination is, although the original intention might be to bring goods from the colony to the mother country, yet, if in fact there has been an actual payment of duties and landing with no engagement to return, that that was a breaking of the voyage, and that they must be considered as two distinct voyages.

On the other hand, it would not necessarily follow that any indulgence, which the government of America might grant to its own subjects, for the benefit of their commerce, would bind this Court, which acts upon general principles. And therefore,

suppose America should declare in favour of its subjects, that they might bring cargoes from a colony and carry them, after landing, to France, without payment of duties; I do not conceive such a declaration (feeling all the respect due to the commercial interests of all other civilized communities) would constitute a rule for this Court, or, that it should not decide such to be an entire voyage; I shall therefore call for further proof, namely, what duties were paid in America; and also, a precise statement of facts, as to the mode in which these goods were exported.

OPINIONS OF THE TWELVE JUDGES,

ON A POINT IN THE LAW OF EVIDENCE,

THE Judges, agreeably to the order of the House of Lords,

delivered their opinions seriatim, on the questions refer

red to them by their Lordships.

Upon the motion of Lord Ellenborough, the Judges, whose circuits were to commence the soonest, were heard the first.

Mr. Baron Graham, after stating the difficulties in which the question was involved, declared that, in his opinion, the general rule of law, was, that a witness was bound to answer every question touching the issue to be tried, with the exception only of such questions as would expose him to a criminal prosecution, or to a penalty or forfeiture. In the courts of equity, it was the daily practice to force parties to answer the matters alleged against them, whatever pecuniary loss such answers might subject them to. The justice and the reasons of this rule applied equally to the courts of law, although it was not the custom there to examine the parties, as it was in Chancery, where their customs were derived from the civil, instead of the common law. Although in the courts of law, a party could not be made a witness, yet those persons, who were brought forward as witnesses, were as equally bound to declare the whole truth, as the parties would be in a court of

equity. If it were not so, the most monstrous obstructions would be thrown in the way of justice; those persons, who were the best qualified to give important evidence, might generally shelter themselves under that plea. It was, however, every day seen, that pawn-brokers were brought in evidence upon the prosecution of thieves, and stable-keepers on the trials horse-stealers; and in either of these cases, would it be permitted, for the pawn-broker or the stable-keeper to refuse giving testimony, on the ground of their answers obliging them to restore those things which they had so improperly received. If this were the law, whatever inconveniences might result from it, witnesses would perpetually claim this privilege, either from fear, or through favour. The point had not as yet been settled by any solemn decision, after a full argument; but, from all the lights that he could derive, and from the monstrous inconvenience that would result from the contrary supposition, he declared his opinion, as to the first question, that a witness is bound to answer all such questions as do not expose him, either to criminal prosecution, penalty or forfeiture; and as to the second question, that the rule applies to the witnesses on a trial or a suit, where his majesty is either plaintiff or prosecutor.

Mr. Justice Chambre was of the same opinion. In the courts of equity, not only a person might be compelled to answer questions which would severely affect their pecuniary interests, but bills of discovery were filed, for the express purpose of obtaining an answer upon oath, which answer might be read as evidence in the courts of law. The rule had been laid down by Lord Mansfield, which had been generally considered as the true one, that in all cases where a witness could be forced to answer by a court of equity, in order that his answer might be read as evidence in a court of law, in all such cases, a court of law should compel him to answer at the trial. The only cases where a party could refuse to answer was, where it would expose him to either criminal prosecution or to penalty or forfeiture. This was what he conceived was the rule also at common law; and it most unquestionably ought to be the

rule, for he thought there could be no reason assigned why a man should conceive himself privileged to conceal the truth, or to refuse to do justice between A. and B. on the ground that if he did so, C. might have an action against him; which would be to say in other words, "The public must not call upon me to give evidence or do justice between A. and B. because such evidence might prevent me from acting unjustly by C. or D. to whom I wish to act unjustly, and from whom I should wish to withhold a just debt." As to the authorities upon the point, there were on one side a great variety of opinions expressed at Nisi Prius, and on the other, the rule so laid down by Lord Mansfield, and which he now considered to be the law with respect to evidence. There had been also a case in the Court of Exchequer, where an attachment was ordered against a witness for refusing to answer on these grounds. When he considered the practice of the courts of equity, and the manner in which this practice had been adopted in the courts of law, and also when he considered the great obstruction which would be thrown in the way of justice, if the contrary practice should prevail, he should give his decided opinion, that a witness was bound to answer questions which did not expose him to criminal prosecution, penalty or forfeiture, even although his pecuniary interests might suffer by such

answer.

Mr. Justice Le Blanc agreed most decidedly with the opinions which had been delivered by the Judges who had preceded him. He considered that it would be subversive of justice, and a thing not to be endured, if agents, brokers or persons who managed insurances, were to decline being examined, on the ground of their being themselves made liable to a civil action. Although he professed the highest regard for the authority of those judges who held the rule to be the other way, yet it must be recollected that the point had never been seriously argued before, or probably those great and learned judges might have altered their opinions. He had always held that witnesses could be compelled to answer ques tions even although their answers might expose them to civil