657. CORNELIUS ROSE proceedingsdefend This name instance is in set 1404. This set is in the group(s): GarrowsClients . was indicted, for that he on the 9th day of October last, at the parish of Langston in the County of Southampton , feloniously did make an assault and affray on Richard Morze proceedingsvictim , then and there being an officer of the Customs within the limits of the port of Portsmouth, then being one of the ports of this kingdom, on board a ship called the Eagle, in due execution of his duty, and with a certain axe which he in both his hands had and held, feloniously did cut off the middle finger of the said Richard Morze < no role > , and thereby unlawfully and feloniously did maim him against the form of the statute .

A Second Count for feloniously assaulting the said Richard Morze < no role > an officer of the said Customs, on board the said vessel, within the limits of the said port, in the due execution of his duty, and unlawfully and feloniously maiming the said Richard Morze < no role > .

A Third Count for feloniously cutting off his middle finger, and thereby maiming him the said Richard Morze < no role > being such officer in execution of his duty.

A Fourth Count for assaulting him then being such officer of the Customs, on board the Eagle, within the limits of Portsmouth, and then and there dangerously wounding him in the execution of his duty.

The witnesses examined apart at the request of Mr. Chetwood one of the Prisoner's Counsel.

Mr. Russel opened the indictment, and Mr. Solicitor General opened the case.

RICHARD MORZE < no role > sworn.

Examined by Mr. Wilson.

I am an officer of the Customs, I was at Hayling Island on the 9th of October last, with Ward, Coward, and Perry, we were looking out for smugling vessels, and we saw a vessel coming into harbour about eleven at night, we manned our boat and went off immediately as we usually do, we came up to her, she was under way, she was not come to anchor when we came along side.

Did she come to anchor? - She did, we boarded her.

What was the vessel? - We had a suspicion she was a smuggler.

Who was the Master of her? - The prisoner Cornelius Rose < no role > This name instance is in set 1404. This set is in the group(s): GarrowsClients . , when we went on board we soon after asked for a candle and went to rummage the vessel but not perfectly; we saw several marks of small casks under the ballast which gave us suspicion that the major part of the goods were put into the boat, we went in pursuit of that boat about a quarter of an hour and then our minds altered, and we thought there were goods on board, we went to our watch-house and got some shovels and an iroa-stick to make the rummage perfect, when we came to the vessel the prisoner stood at the side of the vessel with a small ax or hatchet in his hand, and vowed the first man that came on board was a dead man; one Hyde that was on board persuaded him to deliver up the vessel, there were three persons on board which were the prisoner, Hyde, and one passenger whom I do not know, I heard Hyde speak to Captain Rose < no role > to deliver the goods, if we would engage not to take the cutter; he withdrew from the side of the ship, and we agreed not to take the cutter; Ward immediately got on board, I followed him as quick as I could, but in my entrance of the vessel I heard Rose say that the goods should not be taken out till the cutter was out of the harbour, which Ward refused; then a scuffle ensued between Ward and the prisoner on board the cutter, I saw the prisoner strike Ward several blows with this ax or hatchet, Hyde was at the helm, and Ward went to take possession of the helm, I made the best of my way to Mr. Ward's assistance; I had a pistol in my hand, on my going up he caught fast hold of my pistol and threw me on my back, I had my pistol in my right hand before me, the prisoner leaned on my stomach as I laid on my back.

The remainder of this Trial in the next Part, which will be published in a few Days,

THE WHOLE PROCEEDINGS ON THE KING's Commission of the Peace, Oyer and Terminer, and Gaol Delivery for the CITY of LONDON; AND ALSO, The Gaol Delivery for the County of Middlesex; HELD AT JUSTICE HALL in the OLD BAILEY, On Wednesday the 26th of MAY, 1784, and the following Days;

Being the FIFTH SESSION in the Mayoralty of The Right Hon. ROBERT PECKHAM < no role > , Esq; LORD MAYOR < no role > OF THE CITY OF LONDON.

TAKEN IN SHORT HAND BY E. HODGSON, PROFESSOR OF SHORT-HAND; And Published by Authority.

NUMBER V. PART X.

LONDON:

Printed for E. HODGSON (the Proprietor) And Sold by J. WALMSLAY, No. 35, Chancery Lane, and S. BLADON, No. 13, Pater-noster Row.

MDCCLXXXIV.

[PRICE SIX-PENCE,]

THE WHOLE PROCEEDINGS UPON THE

KING's Commission of the Peace, Oyer and Terminer, and Gaol Delivery for the CITY of LONDON, &c.

Continuation of the Trial of Cornelius Rose < no role > This name instance is in set 1404. This set is in the group(s): GarrowsClients . .

Court. Where was this? - It was at Langston harbour.

Was it in the harbour or at sea, when you came the second time? - She was under way, going out of the harbour.

Was she within port? - Yes in the real run of the harbour, in the middle of the tide.

Mr. Justice Willes. Was it within the land mark, within the ebbing and flowing? - Yes, the prisoner struck me with the axe and cut my pistol in two, and my finger almost off, I laying on my back saw the axe extended over my head which I expected into my skull every minute, I immediately begged for mercy and I would immediately leave the cutter; he then let me out; we then all took to our boat again, it was hardly high water at that time, and the vessel being under fall, I said pull up near astern now, she shall not go out if I can prevent it, we did so about fifteen yards, and I says to the gentlemen on board, gentlemen I with not to use you ill, but I wish you would quit the helm for we or us (I cannot tell which) are going to fire? and I believe it was Rose the prisoner, that I heard say, Damn your eyes your buggerer fire away for the helm shall not be quitted; upon that we fired several times, I myself and some of our people I cannot justly say who: at length I saw him fall upon deck, I thought he had been killed, he jumped up again and stood on his legs and said, Damn your eyes you buggerer fire away, I am shot proof, you cannot kill me: with that our ammunition was expended, and we have a Fort by the name of Cumberland Fort, so I said, put me on shore at Easton-beach/ I will go and get some help, and I went and called out for help, and got three soldiers into the boat and went off and went on board her again, when we came along side, pretty near I took my hanger and gave it to one of the soldiers with me, and told him to carry it out with a long arm, and if he offers to strike you I said, strike and I will indemnify you, upon which when he saw that, he drew from the side of the vessel, and the soldier took him.

Did he strike you at all with the axe when he had you down? - I do not recollect but one blow, he struck me with the hatchet the second time I was on board, he got hold of my pistol which I did not chuse to quit, and he cut me right athwart here, and cut my p istol in two parts.

Had you fired that pistol before? - No, (The finger produced in spirits in a bottle) my finger bled very much, we went away directly with the vessel out of the harbour for Portsmouth.

Was any thing found on board this vessel? - I was not there, but we took out two casks of brandy of four gallons each.

Mr. Chetwood Prisoner's Counsel. Was this vessel under way when you first saw her? - Yes.

Did she cast anchor before you went on board of her? - No.

Was she coming right into harbo? - Yes.

Have you a watch-house there? - Yes.

That was the direct way to that watch-house? - Yes.

Did you meet with any, the least resistance the first time? - Not any.

Did not they bring you a candle? - I called for a candle, but I cannot say who got the light.

Did not the prisoner accommodate you with a candle? - I cannot tell.

You will not say it was not him? - I cannot say it was or was not.

You did rummage without any interruption? - Yes.

Did you stop the ship? - They did of their own accord, we staid as long as we pleased without molestation, after that we got into our boat to go on shore thinking to find her not far off, we was of opinion the boat was behind.

You saw no boat? - No, Sir, we found no boat.

When you got into you own boat, did not you fire immediately? - No, Sir, not immediately, we went on shore first, and got some shovels in order to search.

Was you perfectly sober when you came back the second time, or the first? - Yes, Sir.

Had not you tasted any brandy whatever? - No brandy whatever.

Had you drank nothing that day? - I cannot tell that, I was as sober as I am now.

Upon you oath had there not been a pistol fired on the people on board? - Not to my knowledge, I know nothing of any being fired, if -

What did you mean by the word if? - I really know nothing of it.

How many pistols were fired? - I cannot say.

Were there twenty do you think? - I cannot say.

Then there might be twenty pistols fired at the man? - I cannot say.

Was not he full in view when you fired at him? - The major part of the time; I know nothing of ever a one being fired before we boarded the second time.

You boarded the second time? - Yes.

You saw a scuffle between the prisoner and Ward? - Yes.

Upon your oath can you recollect who it was that began the scuffle? - I cannot say, there was a man stood between me and him when I got into the vessel, so that I cannot say, I went to his assistance as soon as I saw the blows struck, I cannot tell how many blows passed, I was coming up with the pistol I was pointing it.

Then you was in the act of pointing it at the man's head, not knowing who began the scuffle? - I saw the prisoner strike him, I pointed the pistol against the prisoner.

The prisoner had done nothing against you at that instant? - I went in defence of my brother officer.

How far might the pistol be from his head? - Not a great way.

Within half a foot? - I cannot say.

A foot? - I cannot say.

He meant to disarm you by the blow? - I cannot tell that.

The blow was levelled at the pistol, was not it? - Yes and my hand too.

He did not attempt to cut at your head? - No.

After you got into your boat, whether it was out of resentment or no, I believe you fired a great many pistols at him? - Yes, several.

He did not attempt to fire at you? - I never saw him.

You saw the man fall? - Yes.

You knew he was wounded after? - Yes, or at least he shewed us that his breast was wounded, whether it was before that or no I cannot say.

Do not you know that he intended to prosecute you for firing at him? - I do not know any thing of it.

Did not he tell you so? - I do not remember it.

If you had not been aware of something of that kind, upon your oath would you have thought of prosecuting this man? - Upon my word I know nothing of a prosecution being mentioned, I never heard it.

Court. Government would not have known any thing at all of the business.

Had you given information and attempted to set on foot such a prosecution as this, prior to the time that you heard that the man meant to prosecute you for firing at him? - I never heard of any prosecution being mentioned against us.

Court. That is not an answer.

At the very time that he shewed you his wounds, did not he say he would bring anaction against you? - I never heard him say so.

Court. Why was not the prosecution against the prisoner instituted earlier? - I cannot say.

Mr. Solicitor General. The man escaped a long while.

Mr. Garrow. That did not prevent his being indicted, it is not necessary he should be in custody to be indicted, and your Lordship knows there has been an Admiralty sessions since.

Court. This was a scuffle between two persons, and they had no fire arms, they do not seem to me to come within the description of armed persons that this act of Parliament meant to provide against; and in a capital case as this is, where he meant to give up that property without opposition, and had twenty pistols fired at him, it seems to me to be a hard prosecution. This is not that sort of case that you should prosecute against this man with rigour; I only put it to your own candour, I have nothing to do but to try the cause.

Mr. Solicitor General. My Lord, I beg leave to go through the case.

Court. To bring such a case as this before an English Jury, I think it is a hard prosecution; for you hear all this while he never thought of his finger, but renews the attack: my brother Willes is of the same opinion.

Mr. Justice Willes. I have often heard it said, by a very great man who is now alive, that the Crown should never prosecute but where every thing is very clear.

Mr. Garrow. My Lord, we are charged with cutting his finger off, and the surgeon cut it off after: I submit it is too soon for us to offer to discuss the law till the facts are proved.

Mr. Wilson. Was the blow given while you was standing with the pistol in your hand at the head of the prisoner, or after you was down? - After I was down.

When was you examined? - The night following.

You begged for mercy and he granted it you on condition of your quitting the vessel? - I take it so.

Court. Are you an officer of the customs? - I am boatman.

Was you then in the execution of your office? - Yes, they were all officers.

How many had you on board? - There were myself, Ward, Elbin, Coward, and one Perry, he is not here.

On board the cutter there were only three persons? - Only three, the master, the prisoner, and a passenger, as he informed us, he did not meddle or make.

Had they any fire arms? - I did not see them have any.

WILLIAM WARD < no role > sworn.

I am a boatman in the Custom-house service; I was in October last with Morze at Haylin island, four miles from Portsmouth; about eleven at night me and Morze, Elbin, Coward, and Perry, took our boat to board this vessel, we came up with her before she dropped anchor, we went on board, there was no opposition to that; we searched the ballast for goods but saw none, but we saw the marks of small casks in the ballast; we next went in search after the boat, which we expected was gone from the cutter, we could not see any thing of the boat, and we returned again to the vessel a second time; we attempted to board her, and the prisoner stood with a hatchet in his hand, he was the master of this vessel, in order to cut any body down that should attempt to board her.

Did he make use of any expressions? - I did not hear him; as I got on board he up with the hatchet and knocked me on the head very much; Morze came on board after he had struck me, he came before the mast to come to my assistance.

What passed between you and Morze, and the prisoner? - I cannot say, I was so stunned with the blows I received with the hatchet, I did not see what passed afterwards.

How long was it before you recovered your senses? - Sometimes, I do not know rightly how I got into the boat, I found myself in the boat on recovering my senses; we went on shore, and got some soldiers, and pursued the ship and came up with her; and we jumped on: board; they swore we should not, but we did, and I took the hatchet out of his hand.

Had you made any attack on them, previous to your going on board; did you fire on them? - I did not fire on them, I do not know who did; I took charge of the cutter and carried her into Portsmouth; there were two casks of brandy found; I was not in the hold at the taking of them.

(The hatchet produced.)

In what station was the vessel when you was knocked down? - In the harbour, just going out, it was some time after she was under way; that was the third time of my boarding her.

Court. The limits of all ports are ascertained by survey, have you that here? - Yes.

Mr. Peat, another of Prisoner's Council. What are the usual limits of that port as they are generally understood by seamen? I do not know.

You met with no obstruction in going on board the first time? - No, we saw the prisoner the first time.

Was it the prisoner that furnished you with a candle to examine the vessel? - I cannot say who did.

You went off very peaceably then into your boat again? - Yes.

When did you go after the boat of the vessel? - After the first time.

Did you see any thing that passed between the last witness and the prisoner? - No.

How many times was the vessel fired at? - I cannot say.

Were there many pistols fired? - There might be a dozen.

Did you see any thing that passed between the last witness and the prisoner? - No.

Is an hatchet an instrument usually carried in vessels at sea? - Yes.

Are they carried for the purpose of cutting wood, ropes, and other things, or are they carried as weapons of defence? - I cannot say.

Can you do without those hatchets? - Not cleverly.

Did you understand them as defensive weapons? - Never before that.

Did you hear any thing that passed between Morze and the prisoner? - I cannot say that I did.

Court. What brandy was on board? - An hundred and five casks of brandy.

What size were they? - All four gallons.

What was her name? - The Eagle cutter.

Mr. Solicitor. My Lord, every ship is bound to admit the Custom-house officers on board her when she comes within the limits of a harbour.

Court. And so they did.

WILLIAM COWARD < no role > sworn.

Examined by Mr. Solicitor General.

On the 9th of October last I was on board a Custom-house boat with others, at eleven o'clock I was on the look out, and I saw a vessel coming along, I called the people, and took the boat and went on board of her; she brought to and came to an anchor; when we came on board Mr. Morze and Mr. Ward went to examine, to see what she had got, suspecting she had got smuggled goods; I was not below; we did not stay any great while; we left one person on board; we imagined the boat had gone off with goods, and we went in search of her, we went no great distance, we saw she was getting under way again and we changed our minds; we went on shore and got two shovels and a spade to examine the ballast, suspecting that there were goods by the marks of casks which we saw on the top of the ballast; we had not seen any goods then: we came back a second time, in order to board her, but the prisoner refused our coming on board, he had an axe or hatchet in his hand, and he swore we should not come on board, but that the first man that did so would be a dead man; then his man and he consented we should come on board and take the goods and not the cutter, which we agreed to; upon this agreement Mr. Ward jumped on board first, and as soon as he jumped on board Mr. Rose altered his mind again, and swore we should not have the goods till the vessel was out of the harbour; he knocked Ward down, and Morze jumped on board to Ward's assistance, and he came round the mast and met Morze just before the mast, and took hold of him and threw him down, and gave him a cut with the hatchet, which cut his finger and the nob of his pistol off.

Had Morze or any body fired any pistols at this time? - No, Sir, nobody; Mr. Morze called for assistance and help, and Rose told him if he did not quit the vessel he would murder him, and by that means he got away, and got into the boat, and ordered the boat to be put off.

Who went into the boat? - We all five went in, Morze, Ward, Elbin, myself, and another, we then dropped aftern, and Morze told Rose he would fire, upon which Rose said we might fire and be damned, we fired several shot, and wanting more assistance, we went on shore on the west side, there we took the three soldiers; we went and boarded her a third time, and Rose came forwards, and was going to get out an oar, but he could not manage it, being too long; then we proceded to Portsmouth with this vessel; I went below by Mr. Morze's order with the shovel, and dug out two casks that held four gallons each; I bored one of them in order to taste what it was, and it turned out to be brandy; we let these two casks abide on the ballast till we got to Portsmouth, then we brought her up, and Perry and I were going out with the anchor, and Rose jumped overboard, and a wherry just by took him in, we rowed after him, but he out rowed us; I saw no more of him; I was not on board the cutter afterwards; the name of the vessel was the Eagle, I have seen her twice before.

What had Ward done when he came on board the second time? - He went in order to take possession of the vessel, to bring her to an anchor, in order to take the goods out.

Had he done any thing to the person of the prisoner himself? - No, Sir, the prisoner catched hold of him first, and knocked him down; Morze jumped over-board to his assistance.

Mr. Chetwood. You went with him the first time yourself? - Yes.

Did you meet with any resistance the first time? - No.

Did not you rather receive a contrary treatment? - We asked for a candle, and they brought us one.

Did not they say you were welcome to search any part of the ship? - Yes.

After you were sufficiently satisfied, you went away? - Yes.

When you came back again, you say there was a kind of fight between Morze and the prisoner Rose? - Yes.

Do you know how that struggle began? - The prisoner took hold of Morze first.

Was not it a struggle who should lay hold of the helm? - I imagine it must.

He did not go to throw the anchor, but the quarrel was at the stern of the vessel? - Yes.

When this stroke was given the prisoner had had no words at all with Morze on board the ship? - No, none.

Did you see Morze run to Ward's assistance? - He was not running for assistance, the prisoner came round towards him.

Did not he go towards him; were not Ward and Rose engaged in a struggle at the time that Morze pointed the pistol at his head? - I cannot say.

Did you see him point that pistol? - I did not.

Upon your oath now? - I did not see the position of the hand, I did not see the hand at the time the injury was done, but I saw the blow made.

You had full possession of the vessel? - Yes.

Did you find any pistols or guns on board? - There was a musquet.

But you never saw it brought into use; cannot you swear positively that he did not bring the gun to him? - No, I cannot.

Did you see the gun in his hand? - No.

Then cannot you swear he had none: how many shot were fired at this poor man? - I cannot say.

Twenty times? - Not as I know of.

How many do you think? - I cannot say.

Was it sixteen or eighteen? - I cannot recollect.

Did he call any body to his assistance? - I did not hear him.

There are hatchets are board every vessel? - I know nothing about that.

It was agreed that you should have the liquor and he the vessel, was not it known on board the vessel that he had received a ball in his breast? - I did not see it.

Did you try whether the musquet was loaded afterwards? - I did not try it.

Court. You left a person on board the cutter? - Yes.

And you meant to return? - Yes.

HENRY TUTTY < no role > sworn.

I am a surgeon, I know Richard Morze < no role > , he applied to me on the 10th of October about five in the morning, the man had lost a vast deal of blood, I advised him to sit and compose himself for about an hour, in the mean while I got things necessary for the amputation of his finger, which I found to be necessary.

When he had composed himself, did you amputate it? - I did.

Did you, as a surgeon and a man of business, conceive it to be necessary; I thought it very necessary myself, and I likewise made the man sensible of it, before I performed it.

What was the appearance of his hand? - His finger was very much cut, and the bone quite divided, it was absolutely necessary to amputate it.

Mr. Peatt. Amputations are frequently necessary from the most trivial causes in their origin, are not they? - Yes.

Such as a whitlow for instance? - Yes; the finger was slit long ways, th e bone was divided in the middle longitudine as we call it.

That might arise from the rebounding of fire arms? - I should think not, it appeared to be done with a sharp pointed instrument, I cannot say what instrument.

DENNIS FELL < no role > sworn.

Here is an office copy of the limits of the port of Portsmouth, examined by the original, (read) dated 28th September 1682.

Mr. Wilson. Now I will call a witness to prove that Langston is within the limits mentioned herein.

EDWARD EARLE < no role > sworn.

Court. By this survey it appears that Portsmouth is not a port of itself, it is only a member of that port; if the Gentlemen that are Council for the prisoner, think there is a any thing in that objection, I shall reserve it for them.

Mr. Peatt. I submit to your Lordship with great deference, that in descriptions of this kind, entirely relating to marine affairs, as a Jury are not so well instructed to judge of them, they ought to have produced a plan of the harbour to be submitted to the Jury for their inspection, in order that they might ascertain the locality of this vessel when she was attacked, and particularly in a case so highly penal as this is.

Mr. Solicitor General. In answer to that, any plan we can produce is no evidence at all.

Court. You charge in this indictment this to have been done in the port of Portsmouth, whereas Portsmouth is not a port, it is the port of Southampton, of which Portsmouth is only a member; upon that foundation alone I think you ought not to go on.

Mr. Solicitor General. If your Lordship will please to reserve that.

Mr. Baron Perryn < no role > . Exclusive of that objection in this case, whether a hatchet is an offensive weapon or not, the act of parliament recites at the outset of it,

"whereas divers dissolute persons have associated themselves, and entered into confederacies, and have appeared in great gangs in carrying fire arms and other offensive weapons, and have run divers goods, &c. or in obstructing the officers of the revenue in the execution of their office, &c." then the act of Parliament provides this,

"that if any persons, to the number of three or four, armed with offensive weapons;" now here are three persons, but one of them is merely a passenger, he is not assisting them, so that in fact there are but two. Then it goes on,

"that with offensive weapons," why this is not an offensive weapon; they give him free access, and one of their own men is left actually in possession, whilst they went in pursuit of the cutter boat; then they return again, when this affray happened; then the act of Parliament goes on,

"or shall be aiding and assisting in the illegal exportation of goods," &c. that is not the case;

"or in

"rescuing or taking away the same." that is not this case;

"or in rescuing any person who shall be apprehended, &." or in case any persons to the number of three or four so armed as aforesaid, shall be aiding or assisting;" and then comes the clause which I suppose you rely on,

"or if any person shall have his face blacked or in disguise;" this all applies to smugglers who go in gangs;

"or shall obstruct or hinder any of the officers of the Excise in the seizing or carrying off any such goods; or shall maim or dangerously wound any officer of the Customs, or any officer of his Majesty's revenue, in his attempting to go on board any vessel; every person so offending shall be adjudged guilty of felony, and suffer death," this appears to me a clause subsequent to the seizing prohibited goods on board a ship or vessel; but then the provisions are relative to three persons, the weapons must be of a dangerous nature, and according to my apprehension it applies to this clause as much as the other.

Mr. Wilson. My Lord, it is in the singular number the last clause.

Court. It is any person that is part of these gangs.

Mr. Justice Willes. It says, in case any person shall do so and so, and be so aiding and assisting, there I think the first part of the act concludes, what comes after? The words are

"If any person shall from and after the said 24th day of July have his face blacked, or wear a wizard mask when passing with such goods," that is one substantive clause, then comes another,

"or shall obstruct, &c. any of his Majesty's officers of Excise, &c." the word person goes to that clause; then it comes

"if any person or persons shall maim or dangerously wound any officer of his Majesty's Customs," I look upon all this to be substantive, and if this offence is fully proved, my opinion is on the last clause if clearly within the last clause, but I wish to have the other objection reserved about the Port.

Mr. Chetwood. Your Lordship observes that with respect to that

"attempting to board," they had actually boarded.

Court. That is a consideration for the Jury.

Mr. Garrow. My Lord, as to the law of the case which has been suggested from the bench with respect to the description of the port it seems to me to be unanswerable; I hope therefore your Lordship will not suffer it to go to a Jury, and let this man remain in gaol if you are clear there is a fatal objection: the Crown have described where this offence was committed, they have stated it to be within the limits of the port of Portsmouth, averring that the port of Portsmouth was one of the ports of the kingdom; that they prove by proving the direct reverse; and with respect to the maiming, I take it the act of maiming has been committed by the Surgeon, I believe the finger might have been splintered and it would have united at the expence of a stiff joint: now as to the instrument, it is an instrument caught up in a hurry, to beat down that pistol which was levelled at his head; for Morze says, it cut the pistol quite through and cut his finger, it has appeared in evidence that this is a necessary instrument in the prisoner's trade, in his business, in his calling on board of ship, for protecting his own life, and that in cutting down that pistol which was cocked at the head of the men they found on board the vessel, he has injured this man's hand: can your Lordship believe, that this man thought to protect himself against the whole gang of Custom-house Officers.

Mr. Chetwood. I shall humbly move your Lordship, that Elby may be called to shew how he was treated whilst they left the vessel.

Mr. Justice Willes. Very proper certainly.

Mr. Solicitor General. My Lord that it should necessarily be a weapon offensive in its own nature, is to me perfectly new; the clause in the act of Parliament describes no weapons, none; it is sufficient that a Custom-house officer goes on board a vessel and is maimed in so doing, not one of these clauses have any thing whatever to do with this substantive clause which says, if any person or persons, &c.

Mr. Baron Perryn < no role > . You need not trouble yourself, for I am of opinion now with my brother Willes, that this is a substantive clause.

Mr. Solicitor. With respect to the point of the Port, at least it is so new a point, I hope you will not form a Judgment upon it, the Exchequer Records themselves treat the Port of Portsmouth as a Port.

Court. If a thing passes sub-silentio that is no valid authority, but my objections is that the evidence you have now adduced to prove the allegations in the indictment, proves directly the reverse, for instead of shewing this is the Port of Portsmouth it proves directly the contrary: what may have been done in former cases I do not know, or what was produced, or whether the objection was taken; the part you have read directly negatives your charge in the indictment, which says it is within the limits of the port of Portsmouth, that being one of the ports of this kingdom; the evidence you have brought to shew this, says the direct contrary!

Mr. Fell called again. This is a true copy of the condemnation of the 105 gallons in the Exchequer.

Mr. Garrow. We admit it.

EDWARD HERLE < no role > sworn.

Examined by Mr. Russel.

Do you know the port of Portsmouth? - Yes.

Is a vessel in Langstown harbour, that has passed Haylin Island in the limits of the port of Portsmouth? - I understand so.

You are an officer of the port of Portsmouth? - Yes.

And you have officiated and done duty in this place as in the limits of the port of Portsmouth? - Yes.

Mr. Chetwood. Do you know the port of Southampton? - No.

Is not the port of Portsmouth a part and member of the port of Southampton? - I know nothing to the contrary.

Can you say that the place called Haylin Island is not within the limits of the port of Southampton? - I cannot say.

Can you say where the port of Southampton or the port of Portsmouth begins or ends? - I am not competent.

FOR THE PRISONER.

- ELGIN sworn.

Examined by Mr. Peat.

I am a Custom-house Officer, I went on board this ship with Morze and the rest as has been mentioned, I was not obstructed the first time, a candle was provided.

They went away and left you in possession of the vessel? - Yes.

Did you receive any ill treatment from the men while you was in possession of the vessel? - No, Sir.

He did not attempt to force you out of the vessel? - No.

But continued his course towards the Custom-house? - Yes.

You continued in peaceable quiet till the boat came along side the second time? - I never received any ill treatment at all.

Do you remember Ward and Morze coming back with the shovels? - Yes, I was then in the cabbin, when I came upon the deck, I looked forward and saw William Ward < no role > and Captain Rose < no role > closely engaged.

What did you see the prisoner do to William Ward < no role > ? - The Captain had a hatchet in his hand, which he held up over Ward's head and I slipped down on the deck, and hurt myself all across my back, when I got up I was obliged to get out of the vessel, and Mr. Morze stepped on board the cutter, and I saw him on his back, and I hardly knew what to do, and I took up the musket, and laid it down again for fear I should do a wrong thing.

Did you see at that time the prisoner strike Ward? - No, Sir, I cannot say I did.

When he had Morze down on the deck, what did he do to him? - I cannot say, I never saw him strike a blow.

Court to Jury. Gentlemen of the Jury, This man seems to me to have struck at the pistol, and by knocking off the nossel of the pistol the finger has been wounded; and by unskilfulness in treatment, or his delay in applying to the Surgeon, the man has lost his finger; you observe the scuffle did not begin between Rose and the prisoner, but between the prisoner and Ward; and with respect to the wound whatever it might have been originally, I suppose with proper treatment the finger might have been saved, but you see this man after he has received this violent wound from which he afterwards loses his finger, his pistol not succeeding, and all his ammunition expended, he goes on shore, gets assistance, takes the vessel, goes into harbour and then first applies for a surgeon, and you see in this further struggle great part of the injury might be occasioned. A question arises on the limits of the ports of Portsmouth, which will be referred to the consideration of the Judges if you should be of opinion that the prisoner is guilty, and which is not necessary for me to state to you: but if you are of opinion that in pointing the pistol at the man's head he acted only in his own defence, and not with any design on the revenue officers; and that all that this man wished was to have the benefit of that agreement mentioned by one of the witnesses; and that this man was not obstructed in the due execution of his office; then in my apprehension you may very fairly conclude that the prisoner is not guilty of the offence in this indictment.

NOT GUILTY .

Tried by the second Middlesex Jury before Mr. Baron PERRYN < no role > .