York, Wednesday, August 1...
.UqorC ISr. sf4c HAYLEY. atid a Siccia .,,,,, Irntsprosecution occuvied the atteation ot tile Court from hi.f pait efrht o'clock in the Morning. till halt-past eight o'clock at night; and appeared to excite great interest. It arose out of a recent quarrel between the keel-men ant' sh ip-ownere of Newcastle; and If itL had becn conducted to a successful termin,ion, would have thrown the principal trade of the river Tyne into the hands of the keelmen. W'hen the list of' Special Juror's was called over. the fol_ lowine zentlernen answeredi taeir narn,w I .-..c 0 17 jurors not appearing, two taleSmen were put on thejUTV. 1?li. PARX stated that this was an indictmnent rrcferred againlst Charles RKssell, Esq., and various other individais, for erectig a nuisance in the river Tyne. Tihere were various counts, charging the defendants witl having erected gears. and staiths, to the ob- strucrion of the navigation of the said river, and also with keeping vessels loaten before the said gears for an unreasonable time. Tbe detendants h.ad pleaded " not gv'iity." There. had been a sugges- tion, that an impartial trial could not be had in the countvi of North- umberland, and the vanire had in consequence been reuMoved iinto the county of York. Alr. Bltot'nGeAt.Though on every accotnt bat one he fel: sa. nst-ied that this indietmetit had been brought fram the county ef Northumberland to be tried bv the respecttable jurY whom he then saw betbre him, there was still one respect in which it would bave been more convenient had they been a jury taken from the victniny of the river Tyne: for in that case they would th,mrelves have viewed the nuisance. nal vaould so have saved him the necessity of stating to theni at length the circuamstances of which this alleged nuisance consisted. The model which they sawv upon the table would ezreatlv assist him tind them in tse statement he should be compelled tC offer to their consideration. The defendants were the principal mlembers of a large coal company; and as their property lay in the nciglibourboodof the Tyne,the.y thought proper,with a view of' lessening the price ef the carriage of their coals fromu their pits to the river, and of increasing their own gaisis, to erect certain structssrcs on the baniks and in the chantitel of that great and comnmercial rivcr. These structures were a species of railway. raised a considerable hriight above the surtiace of the ground in the ncighbourhood of the Tyne, and also 38 feet above the level of the river. The breadth .i' these railways was not less than 36 icet. and their length from the c.ge of the river toWarTds its centre was in one case 1.92, and ia tile other 1`2 f'eet. The chauinel was in this part of tile river onlv' 542 yards in wvtdth. so that one of these structures took lip one-tenth part, and rthe other one-mnth part of it; whole wiuth. lie migltt almost stop here, and ask thIc Jury whether it swas possible to entertain a doubt as to its being a nuisance, an obstruction, an istlpeLdintentt, a detri- ment, and an annoyance to all persons using tlh rivcr to have a tenth part of it built up against thetn, when they had a right to na- vigate through the whole width of it, if it were a navigable river at all. These structures, which were formed of imnmense pileS of tim- ber and iron, which slhut up tbe river for an irutnense number of cu- bical yards, and vwhich appropriated it during that space entirely to thc builders of' thetn, were not the uicre structures of yesterday. The jury would find, that structures of a sirilar nature ;ad becn its existence miore than 40I or 50 years ago-less, indeed, in magnitude but hardly less in prejudice to the navigation of tie streaml.. Ot these two structures, which forsned the stubstanee oi the presenit in. tlictinetst. the oldest and the largest was that called the li'est C3ear, it was built about 25 vears ago; the other, which was called the East (Gear, was of more recent date, haiving been built, he believed, not Inore than three years ago. Having said so inuch as; tohe con- struction of these gers, he would now call their attention to the effhrct whict they had upon the river and its navigation. [ At this stage of tbe proceedings, Alr. Vansittart, the neTphew of Lord Bexley, who had been sumatonc( as a special juror. but who had not beets present when two talesuien were empanelled upon it, intot mcii Dlr. Justice Bayley titat he was ready, if required, to serve on tte jury. One of tbe taiesmen was in consequence Llischarged, by consent of.Nir. Brougham.] Mr. BROUG0tTHAt then proceeded.-He was glad of the interrup. tion whic!h he batl juSt received, because it enabled hi n to mention a circumstance, of which v.ithout it he s;hould not have been aware. lie had described to thiemii the encroachment which these structures had msade or. the river at high water; he would now tell them. what encroachment they had made on it at low water. The whole breaduth of the river,wlhich was then navigable, swing to a sand of very consi- derable length, which laid opposite to these gears, was only 280 feet- and into tha! space these gears obtruded no less than 40 feet. He spoke in round numbers, because if they were satisfied that they were a detrinenit,impediment,and annoyanCe to those engaged in the navigatios of the river, it mattered litte whetl*dr he was wrotig a few feet more or less. He would suppose Cliat he and thev, who wese not much aadustomed to navigation, had heard that a biuildr ' V;as erected stretching out into the highway ; would they not be con,rnit5l that it was ar annoyance and irspedtment to them as they travelled up:n it ? A similar protrusion ot'a building upon a stream was inl every respect productive of greatter annoyance ; tor instance. a high_ way never changed; it was liable to receive no injury from1 the tide, the witid, or the sand ; but a stieam, on which ati encroachtnettt wa-s ntade. was liable to siflThr froiti the effects of all those different causes. The first consequence that was likely to cnsue whets piles were dtiven in large masses into a bitoton which colt, sisted of loose sand, liable to be piayed upon by the force of the tids, was a coltecion of sand abouzt those velV piles and a consequent obstruction of the natural current of tha river. Ie would say no more upon that conseqilence. because lie had so stTong a ease above the water, thlat, eveu st thercehad been no sand collected under the water, he was sure that he could establisht dte existence of a great nuisance. In the grst place, buovs were placed off these gears chlains were fastened to tibem to keep thein steady, and in those cibaiss vessels often got entanglele and received injury. 'l'hese gears, he need not tell the jPry, were not esected wtitlout a purpose. The purpose for which thev were constructed was to enable the waggons, which htatl brought coals fremn the pits, to be dropped into the vessels, and there be ensptied of their cargoes. Fortnerly the coals were plet into the vesselsby a spou',which slanted down frotn the railway to the vessel; on one of these geais the spout protruded 3 ifeet from the railway over the river, and on the other 30 feet. As the spout was sometimes broken by the coals 3.1ilbin dovmn it, and as the great coal was generally smashed up by it witsi the siiiall, another contrivance was liLt upou for putting the coal on the ressel, and that was the contrivance wasicis he had just mnentioned, andi was caUed " dropping." THere the model was e.xhibited, and the manner of dropping the tvaggons more fully explained to the jtsry.1 The effect of this contrivance seas, that as ' ve.ssels got quicily loade,a number of thtem were generally laying oel' these gears to receive cargos atd thus the passage of tte river was in l all eases obstructed, and i!l any eases rendered e-tremely intricate and diffhcult. This was of itself evidence sufficietnt to establisat ti,, a nuisance; but tbere-wasanother circumstance which he could not fY consent to withhold from the knowledge of the jury. A great tide setin at these gears. They would hear it described by wvitncsses who iF knew it from practical and lhe might even add from dangerous exp,. ticnce; they wrould be told trust it set itt like a Sluice against trle%* r structures, and that a. vessel worksing in it with a certain win-t, Ind falling into inat luice was almost certain ofbeing cearrie4 A,=Uist thesat. Indeed, from the narrowness of thie sea-room, it svas amol t inmpossibleto escape from the force of thisimpetuous torrent. T,be; vould hear teOM the wI esthat vessels saijing alon Ie rier when the wind carme from the south, had frequently bee ndne ifdrivintO9isUFt these piles; sometimes had bee runl agrounl by heir masters, in order to avoid driving against them,,; andl at others tad, in spite Of every Cffilrtof those on board,of themn been violently lashed against tlhemi. T-hey would likewis- hear, that if it were not or these sear`3, vessls might pmas them with all winds; at present hey coutl eibt, asethe efrect of thexwind, blowing against themn, wais Mereased anl the fOrce of the tide in some cases was lost altogether, .ndeed, the last urtrflood and thetfirst quarter ebb,was all the tide hat wsufiin to Sentitthatcircumstance- if it stood aloneingpoof,would rte ufient tenile him to their verAictL Ele would, however, go Trhr ic would show that vessels with 14 feet draught of water rorked withi extreme difficulty past these gears. now, though former. ythley cOuld work past them easily its all winds. At Present, un. tgtewnwas in one particular direction, they could not by any xertions get asthem at all. Now, as the wind couldI not be corn. w~handeatra,and WOs generally adverse in onie oat of every four wies inwtiO it was wanted, was it not a nuisance that vessels hould be limited to one witid when formerly they could receive the tenefits of every wInd P and that persens should be oboligcd to navi. ate with vessels drawing only 9 feet water, ash le would prove to he he case, whiere they. had formerly navig-ated wtth vessels drwng1 roe tha Hewud carry his stilli:hwng1 roe t.lae ivelst caseeven silfarther than ths e woutld rhich had aecur,ts utnmber had been forced upon the sands, ad gt thir mlated in consequence of these gears-that some fa whic Cheir masts and bowsprits entangled in the masses of wood fmge wichth, ;a re formed, and that others of them hatd been arnags. iR varou ways by thie tuiachinery for the spoutst and the -cani"o,then, the erection of these gears could be denied to nusanceb, h must say, that with all his ingettuity, he isaR at a loss tol discover. He had told them that of these gears one atd been erected 24 or 25 years ago, and anothier only 3 years aLgo. Vlith regard to the latter, he had just been informned that he was iistaken-it had been erect'ed pretty nearly as long as the Other, but iad received about 3 years ago a great addition to ltsextenet and mag- itilde.The point wlas not important,for ifrhe butlding were a nilac, wa, trot the less an1 for having existed a f'ew years more or lIts Pbslerne ctinolthen said he did not know what deflexco his araned friend,Mry Scarlett, intended to set up against this cse; but, I he supposed it would be analogous to the attempts which had ormnerly been Made to defendi analogous encroachments, he would I-~leve to3 ntention one or two case o them. In the case of "1the Ing v. Russell, 8 East, 427," the defendant, who was a waggoner, nd hadl been accustomed for years andl years to) loadl liia waggons efre his warehouses, sand leave them, when loadeld, in a certain OrtiOn Of the Public "Ireet, when indicted, thought it sufficient for im to show that there was a great space left by him for the King's bjet topasaong, and that even two waggons might pass ~tbogh t abeas onthe opposite side of the street. T he Court, oweer,hel ths dfece very cheap, and said, that if the King's objets ed riht o aspc oewhich four waggons could pans breat, te dfend btpadzno right to appropriate two to him. lf.Simiar octrne as, held in the case of "1 the Kinig v. re~rte in3dCampbell, whiich wasg an indictment pre- r.rumnd, the banker at Charing-zros&t, to get rid '~'sisnceandobtruction occasioned by the plyingr of stages at 'h ross. The cae however, which most resembled the pro. ent c-,e, was "1 the Kin v Lord Grosvenor." Lord Grosvenor aving erected a wharf on th bank of the Thames, was indicted lbr nuisance. Hils lordship endCaVOLuredi to show that this wharf was gret advantage to the navigtors of ttte river, from aflitrding them shelter, whic-h they otherwis had not. in certain wvinds. 1-e dlid ot that day expect to bear tht ths gears prodluced any benefit to re public. It was tu htt h parties themselves they wvere roductive of pureanumie benefit; for they saved themn all the xpense of employin ke,tload their vessels ; andi thus enabled cem to mnake the sam prfts at a less expense titan those who were bhged to employ tha kind of' craft for such a purpose. In Lord 'rosverno,'s case, ngotwithstanding the convenienpe hiis erection af- irde to the public, it was held that the convettience coultl not be ?'Off against the rluisance; hie was told that the mayor andI corpo. ti10n o1' Newcastle wt're the conservators of the river Tyne, and e should not wondler if lie heard, as he was toldI that they were the tal defenda-nts in this case, that they, the protectors of the naviga. on of the river, hwliz iveni leave and licence to erect these struc. ires' which were suich an obstruction anid inijury to it. The mnode grabLing that leave and licence wa, by enripanelling a river jury, ho. after hearing ithe parties, gave a licence to A.B.,under the co'n- !rvators of the river, to erect a certain buiilding ott its banks and in a hne.The jury were accustomedl to meet and talk about the reetetin the mlorning ; they then met again in the eveningr edeggdin festivity; and he wivs given to uinderstand that their ~oednsin the evening were in general muich longer than their roednsin the morning. He wa-ui infIT11net, that oni both ecca- on,terproceedings hiai little to tlo with water, atid that thie ver streami claimed mnuchi less of their attention than a stream of a itch more generous antI enlivening nature. (A laugh.) The pro.. tntmottt, however, was then miarIe; anid in) consequetice of some ich measure, these struceture,i bad been built for which Mlr. Russell as at Present indictLed Hle wouldi notw mention to the jtiry another tnt in which the case of Lord Grosvenor resenmbleth the presetit Ls.The corporation of Londlon were the conservators of ie river Thames, and had granted their leave anti licence Lord Grosvenor to erect thle wharf which lie built. As citizen of London, he always wished to speak of thajt cor- oration, and to liear it spoken of, withi every feeling of respect -d affeection ; but when Lord. Grosvenor's case canto before the oust the corpoat'io had not been spoken of with the samec tender- twedit he sho;uld have apldtit, because it appeared that it itdeceived sonte small sum of m-oney f'or the privilege which it adgranted to Lord Grosvenior. Lord Chief Juistice Abbott, in seking of this leave and licence, had said, " WVill you contend thgat Ot aea right to narrow the river at your pleasure, if youi leave flcient room for the navigation of it ? If you will, then I must svthat you certainly have not that right." And again-" If the .ction be a nutsance, no leave or licence given by any body receiv- 'g a pecuniary compenisation for it, will justify it." Anid again, in imigup the evidience, he told rhoejurythat the question -for them teiewas, not witethipr the whiarf conferred private advantages Fpon a certain class of individuals, bttt whether the pubi enve tence was affected by the alteration which it made in ithe current of is river. This, be it remarked, was the observation of the learnedI udge with regard to an erection made between the high watermark id the low watermark. It applied, therefore, with still greaterI re to the present constructions, whiceh encroached on the channel lowwater so as greatly to impedle sand injuire the navigation. Hie r1bfore told them that he was glad on every account but one -tt this case had been reservedl for thiem- to try, and he was glad of *because this bill of inthictment hail been three times thrown out -the county of Northumnberland. Mr. Jlustice BAYLEY.-YOU cannot go into that topic, Alr. Trougham. Mr. BaoUGUA-t.-.I tmention it merely Co account fur the delay II 4ch hras occurre-d in presenting this itrdictment. M r. Justice BAYLEY.-Very ivell, but you know that so time *n run against the public, Mr. Brougham. M[r. BtsoUITssAs Was well aware of that point ; but as in a case ike this, he could not anticipate ithe nature of the defence, be felt it iis duty to saysa few words oni every species of defence which might ossbly arise lie ha given the best answer in his power to the irtspecies of defence which be thoughit it likely for hiis learned dentio adopt,-.namnely, the licence under the corptoration; sand he tdbeen going to explain Cite reasons why so long a period of tintis adelapsed without any Cthing having been done to abate the nui- arce of which he complained. Orne reason was, that the co,al. wners, who had pits contiguous to thie river, had brought -all their ewer to bear in favour of thos,e structures, and Chat the diffrenit cal-nterchiants in the tow-n of Newcastle, and in the corporation tif hat town, were bound by their respective interests to give a strentit -ua support to the allezed ntuisance. This was provest by the dlifii sitywhich hbad attended the getting a bill of indictmn on rainst the present def'endant.,. No less than three bills hatd been tirown omUt, and the present bill had not been foundi by ajuryof the own of Newcastle, but by a Juiry ouf the county of Northumberland. ['he last topic, to whichi his learned friend would resort was the notives which hadl led to the present prosecution ; and hre expected o hear himn say, that it was not instituted for the beneit of thie public, 'at for private purposes of certain individuals. F'or his own part,hecared iot one straw about the ietotives which had led to it. Every roan, vy the law of Englancl, had a right to institute proceedings tor an 'fence of such a nature as the present ; and the whole question for lieJ.ury to decide would be, I has an encroachment been commit. ce -el and for the Cotirt, " does the encroachiment proved constitute Lnuisance ?" He mnust siatisfy their miinds that the eticroacliinents if which he complained hiad been committed ; and after he hail lone that, he was sure that his Lordship woteld toll them-a that they ;onstituted a nuisance in law. It was quite ridiculous to reflect :averel upon the motives of those who institutedI this prosecution. [4e liad never beard of any nuisance hiaving been put down solely 'ront the love of eountry or mankind. He0 SLipposed thlat hila learn- edfriend would contend that no nuisance oughat to be abated where -.hoise generous motives did not prevail ; but if lie dlid so contendl, 'le trusted that their good sense would lead them to neglect his ar- tsunreents, and to recollect that public adivariteges in general arose )ut of the separate interests of private inthividuals. They must be swvare, that if they lied to) wait until prosecutors hadl ceased to re. icard their -own interest, and to) have no end in view hut the benefit tf the public, their country, or mnankind, they would have to wait 'along time indeed before any nuisance could be renaoveel. Sich a practice might, indeed, lessen the nunibers and expenses of legal prsctons, but 'it wouldI pitt an end to all commerce upon rivers [adhgways, atid would only increase the ntttphier of public nui. ~sne.He tliteefore trustei that, ott raking all the circumstances ofti aeinto their consideration, they wouflidsee that nbile Jut [re j~uired thein to find a verdict of guilty against all thue de.c rho learned Counsel then celled witnesses in support of lila sacii,who were examined at great length by the counsel on botlt wide Exept o prsoa imeihatel ineretedi in the question, and resiingnea th spt Cte etals f t e ueiece were unimportant. frurtha case,anddiever grat pac tht wuldbe occuipied by mitto he xclsin o Itatte oreattactveto h general reader, iw~ hve ebittedthe wole o the videtce. Te entire intereit. jar th-e case, indeed, is compisd in the speeches of tite emninent coun- zed who led for the prosecuto and the tiefence. At tIne co'e of the evidence for the prosectition, ihir. BstOUGssAIS ~having intimnated to his L'i,rdship that that was his case, Mr. SCARLgTT cottimnetice Ithis atld-ess to the Jury, by e!xprests- hng his regrct at being compellest to ad(sress theoi at tbat late hour of' the day and in his and their common state of exhatustion, upon a cause, whtich, though it contained but little difficulty, was of vast importance to all the parties engaged in it. Of all tite important cases in which he had been engaged in that court, nonie was more important in its consequence than the casc which his learned friend had that dug opened to them. Indecd, the grounds onI which it had been submitted to their investigation, anti whiich hiad been stated to them with greatcandour by his learned Friend, clearly proved the eat importance which wasattached to it, not only by the prose. cutors, but alse by the defendants. Whether the success of the pre- sent osecution woultd operate to the advantage of the keelmen or pot, h would not ask the jury at that moment to determine; but this he would say, that it wou!t (to more to ruin the trade of New. "thc, than any thing vhich a jury had ever before had it in its pOwer to do. That these structures had not only injuredi, bitt that they had aJso actually improved the tradeof that town, was in proof, even upon uhe prosccutor's own evidlence; for he hatl shown to them, that 'though one of thesce taitlis had been built twenty-four, and theother ctwenty years, it was not till the year 1822 that any complaints iNvere ni e against them, or any threat was heard of indicting theom las injurious to the navigation of the river Tyne. It was not till the Vear 1822, that the last great strike took place anmong the keelmen of ;Newcastle, when, after a long struggle, they were put down by mi- litary force, and compelled to return to their usual occupations, that they discovered the obstructions wvhich these gears caused to the stream, and determined to remove them, if possible, in revenge for the resistanice whicis had been) offered to their demands for higher wages. A4ft0rhnlolng many solemn atid serious councils among them,elves5thse catle to this conclusion-that. as there were note only 39 keels in theriver, ithe best way of increasing tbe number of them would be by-rstratigthestaiths- by processoflawacon- sumnmation wvhichb, ? it could be carried into effect, would double and treble the namiber of keels e2aployed in the river, would leave the whole *.rde of Newcastle (for the coal-trade attracted all the othdi traes o his pac after it) at the nlevcv of the kc-elmen. They thouht hat y sAeh a notable project they should be enabledI to interuptat peasre the sup plies Coming from the collieries con- tigousto he yn-that thley thould be enabled to stop at plesur te tanit of coalit to Shilelds-.that they should be enabled to cuit off, wvhen thev thoughzlt fit, the sup- ply of coals to the London markst-.and, in short, that they should be enabled to produce such effcts by it on the coal- ow'ners of the Tyne, as would compel them on any- future occasioni to comply withi all their demands, hiowever foolish, and however ex- travagant. He admiitted that thiey had received a wise counsel, when they were toldl that if they hiad any just cause aor complaint against the coal-ow-ners, the best thinig that they coultl do would b.e to appeal to thte laws, and now thitt thiey hial made that appeal. and produced ull the evidence they couldI get to substantiate it, ha said there was no reason whatever for calling those gears a nuisance, or for styling them an obstruction, imipedimient, and hiindrance to the f'ree navigation of the river. His learned friend had toldI themn that upon this subject he would niot liearof any compromise between theadlvantiges andi dbiadvantages occasionedI bv the direction of these gears. He had told them that he cared not a'straw whether tho en- crachment wlichl they made on thie river was one foot or thirty feet because it' they should be of opiniop that an encroaschment wais made, his caise was proved, and the nubiance was established. On that point he differed toto ccvlo fromn his learned frienid. Before, litowever, he callect their attention miore particularly to it, lie would beg leave to deny the analogy whichi his learned friend hiad set uip be- tween obstructions uipon highiways and obstructions upon sttreams. His learned friend hadI said,' it' a'n encroachmenit madleon a hiighiway be a nuisiance, a fortiori, it is a nuisance when maile upon a stream. ife dissented entirely f'romn that proposition, not upon any Ii'liht andI idle groutnds, but upon the beet and most ancient authorities of law- auithorities whiich, with their permission, lie wiould shortly cite to them. liet them look a little at the subject. A port. or a naviga- ble rivar with a port, is not onily of adivantage to the public, as Far asq regards the navigation of its waters, hut also as far as regards the facilities whiicht it affords obr the loadingv andt uni..tading of veksels, and the other ordinary purpases off commnerce. Now, as a port was only of utility on account of the facilities which it afForded to com- merce, it was clear tlint the more those facilities were increased, the more also was the utility of the port increased. A tier at' vessels ly- ing in a river was pro Caydo an obstruction to its navigation; but as it _sfrtegeneral beniefit of the public, andI for the furtherance of commercee, it couild not be considered as a nuisance. A quay, which all thie witnesses for the prosecution hiad stated to be ani inven.. tion very heneficial-nav, absoluitely necessary to comamerce-.was niot, if' placed beloy; the' low-water-mnark, to be considered as an abstract obstruction to the water-course), but was to be consi- deredi with regardi to thie superiority of its advantages over anld above its disadvantages. Tue case of Lord Grosvenor, on wh-ich his learned friend relied so much, was, in many respects, dlissinmilar from the present, andI that ehejury must have at' themselves conjlec- tured, from the curious manner in whichi his learned friend had se- lectnl his extracts fromn it. But even if that c-ase lhad been mudsi more simiilar to the present thian it wa-s in point of fset, he would tell them that,Iwith all the respect he felt for Lord Chief Justice Abbott, he hatil never beenisatisfied with the NVisi Printt decision ofhisi. Lord- ship upon that occasion. In that very case hie had been couinsel to Lord Grosvenor, and as thte facts were rather cutriouis, hie would state them to the ijury. Here the learnedi counsel stated the circumiistances at' it, which, w7ant of time prevents us from reporting. 'rite question which the jurv had to dletermiine in that easie was, ,vhethier a wharf, which hail been built on his Lordship's latnd, and also in the channel of the Thames, oetween Alilibank and Vatsxhall-bridge, by some of hstenants%, with htis censent, was of pubslic advanitage or not. It was proe,tha at -tht time there were no houses, no Warehouses, no tade in the nighhourhood of the wharf erected. The Lord Chief' Justice heldI that it was erected upon mere speculationi, and that, as there were no advantages proved to be conferred upon the public byits erection,ansd as some disadvantages were proved to ha'eacemned ftoml it, it mnust be conisitlered assa nuisanice. 'I'he consequence was3, that 1,n)rd Grosvenor wasi acqluitted, though some of his teniants were found guilty). Th'le miatter was of no iinportance to hiis lordiship, and therefore nsattenint was made to hiave atny of the positions laid ilown by, the l ea-necd Judge reviewed by tshe Court of King's Benich, especially as tite Indictmnent itself was afterwvards abandoned. On that case hiis learnedt friend relied miore than any other ; but he was suire that the jury would see that its autliority went as mnuch with the defendatittaas it did withi the prosecution. He would, however, state so them a case in whichi he hiad himself been engaged, and which was miore analogous, to the presenit than anv which his learned friend lhad cited. A good m-any years ago, whien Sir Virary Gibbs was Chiief Baron of the Excheqiuer, an information was filed by tite At- tre-eeral in the Exchequer, under thie direction of ithe Admi- ralty~, _against several persons, for the purpose of putting down aill projections, wharfs, and obstruictions in the harbour of Gasi- port amid Portsmouth. T-he Bishop of Winchester was entitled to all the mud landsq let't by the sea in the courney of' Southampton, between highi water-rmtrk and low water-mark. A greatmanyof hiis tenants hiad constructedI walls, and wvharfs, and oMher buildings projecting inito this harbour, whiichi was specifically the King's port, being intendedl for thec security anti preservation of hlis vessels of war. The inforination was filed against the Bishop of Winchester, against somne of his tenants, and also against sonrie geni- tlienen whio did not lIold tintler him. Tuie defendants were ten in all. The matter was dleemed so serious and important, that it was triedi at the bar in ithe Cetirt of Exchequer. On that occasion this pgroof was made out by tie engineers, that every projection into a harbour was an obstruiction, pro tianto, to the navigation. The late Mr. Rennie, with whiom lie was acquainted, and for whom lie felt geat respect, deposed that in every harbour it was necessary to have as greatt a 'reux of water as possible, in order to cleanse it of sanid, whichi it would otliterwise accumulate ; that all pro- jectioris dimiinished the reflux ; anti that in that particular ease, though they hiad then done no injury be was convinced that eventialaly they would dlo mischief. lie had cross-examined Mr. Rennie uponi that occasion, and had extracted from hiim this extra(imetinary confessiontb.tlat ttite most perfect harbour would be one which had neither wharf, projection, or ship in it. I-Ie admitted, however, that perfect aLs suichi a hiarbour would be for the purpose of navigation, it woultl be of no earthly use whatever. After the casoe hadl ~ccupied the attention of thie Court for two whiole days, the Court, which consisted of Sir Vicary Gibbs, the learned Baron Thr o,ad Mr. Baron Wood, now juist deceased, after a full anVtphoi sonn'e d%enliberation, directed the jury to acquit the dIefrcndants. Tey told the jury, that if thevy fouind the projections in question to be advantageous to the po~rt, notwithstanding the lighit iii whiich the Attorncy..G'encral had put the c-ase, the defendants ime.st be acquiitted, ancti they were acquitted accordingly. A Passae in Lord Haile was particularly noticed in their judgment by tose learned Judges. It was in tliat pa-rt of his Lordshiip's works "d-' Portibuailfarix" in whichlie liemutmerates such nuisances as are c'ommon to alt men that have occaion to come, go, or stay att porta. Hils Lortlasiips words were as follow....."Tue straisening of the prbybiliditig too tar into the water where ships or vessels might hav fomlerly ridden-.for it is to be observed that nuisance or not nuisancet in such case is a question of fact. It is not, thiere- fore, every butilding below the high water marhs, nor everv building below the low water miark, which is ipso facto in law a 'nuisance; for that wouldi destroy alt the qatiys that arc in all the ports in Eng- land. For they are all built below thep high water mark, for other- wise veasels cout(i not conici to thiem to unlarhe, anid some are built below the lowv water mark. And it would be imposaible for the King to license time building of' a new whiarf or quay, whereof' there are a thoiisanti instances, it' ipso faiiro it were a com- mon) nuisance ; for the King cannot license a comnmon nuisance. Nay, in Many caes it is an atdvantagec to s port to keep in the sea water' fror.m tlifi'using at large, andi the wcater may flow in shallows, where it is imipossible for vessels to ritle. Indeed, whiere tie soil is thie King's, the builtling below the hiighi-water mnark is apupetire, sad (ani encroachmnent and intruision upois the Kings sohl, which Ihe may either demnolish, or seize, or arrest at his pleasure ; but it is not ipso kacbo a common nuisance, unles s, inldeed, it be a damntge to thie port anti navigatien. In the case, there. f'ore, of building withiin the extent at's port,whether it be a nuisance or not, is qiiestiho acti, and to be dletermined by a juiry upon evidence, anti not qitexeio Jurio." Sucit were the expressions of the law,as de- livered by thie Lord Chief Justice; and in this case, as in most others, the language of thie law wasi the language of reason anid common siense, lie wouilul now ask,whether the question offact,which thecy had to trY, waslsimply whether these buildings were or were not nit in. croacnebentw mith t te channel of thieriver ? HI-s Lordsbip wouild inform thenti it was not. The qeuestion oft fact whichi they hbail to try was this-dos thieencr~oachment in question afford suchatdvantages to coin. niierce in general as to counterbalance the inijuries whiteb accrue from it to inrlivitlu1als in certain particular instances. Now, upon thuit poinit lie wouild ask, whether these gears had or hail not contributed to facilitate the coitvenience of tratle, and consequently to increase trails in the port'ofrNewcastle. Let themn look at ilia evidence whichi has heen given in the Course of the case. It was sworn that withini the last 20 years the tradle off thatt port had beeni doubled, and thait thle nuinberof ships cl earing out of it had been increased in the !ame proportion. It was a strange thing for a m-an to submit to a juy ' phroposition like the following:-.." I complain of the inj'ury dlone to Cthe navigation aft' ie river Tyne by these obustrtictions, and yes, notwithstatnding their operation, I submit that the trade of the town, withlin the last year is fully doubled." But what were these obsitritetions ? Why, of suchi a nature thlat one witness who had sailed iup andidaown the river five tiines every week for the last tweny yers, ailadmiitted th~at lie had been onli.' obstructed in hs pssae dring that period tivelve tiimes.Some of the juryhai mo~t robbly been in the Temple.gardt-ns. If they had, theywoul har sen a nuimber of barges collected at 11hitefriars whaf, bntsieingthe nmivigation of wherries uipon the Thiamies mud moe tan heevidence proved that the vessels about these izears obstr,ucted the navigation of the Tyne. Did any person ever ihink of indicting the proprietor of W Ititefriars wharf? No.- And whiy not? Because the necesity of commerce rerndered the obstructioni excusable. Others of them had, perhiaps, gone down thie pool to eat white-bait at Crceenwich or l3lackwall. Did they not meet with mnany obstructionis in their way down the Thjames arising frotsn the prodigious miagnitude of the cominerce of Lon- doni?' And did thecy not submit with pleasure to the disadvantage of i, whn tey rcollcte thegre tipblic aidvantage it bestowed on th coutry He gree wit hisleamed friend that thle psi- vats dvanage fany an, ho bd aninterest in the railways fromn theconiguy o hi colieiesto he yne, was hiot to be taken into the onsdertio ofthe ury isit henit was withi this linmitation- i.. ls pvrivatce atuvan ewsicnitn with tllc public benefit. If hiS private alvantage advanced the public interests, then it must be considerecd as ttart of them, and as such was etititled to receive the protection of the public. He likewise agreed with his learned friettd, that they need not attentI to the motives wliich had led to this prosecution. But here again he mulst putin alimitation ; and that was, unless the motives of the prosecution gave a coloaring to the testimony of this witnesses. He was sure that, in sifting that testimony, they would not look so much to private motives as topub- lic consideration ; and here he would asac how it happened, that out of seventeen witnesses which his learneti friend hiaL called to prove the obstructioni so the navigation af thie Tyne, he had only called a single ship-owner. In a prosecution in which an appteal weas madle to ,hc jury to protect the navigation of the Tyne and the trade of the port of Newcastle how was it that not more thian one ship. owiier hail been cailed out of the many ship-owners of the place, to support that siileofthe question in which thiey most of all nien must be interested ? The absence of these ship-owners was a strong ne- gative proof that the commeree of the port wvas not injured; and a strong affirmative proof to the same point, was the declarationi of se- veral witne,scss, that more than 600 vessels had cleared from these two gears in the couree of one year. Another proof that the naviga. tion of the river had not been injured, was to be found in this cu- rious fact-that though many of the witnesses had deposed to differ- ent injuries befalling vessels off these gears, not more than one of them llad breathed a syllable of aay damages having been paid for them by the owners of these geara. lVas not that adamning proof against the pirosecution ? Was it nout tatamountto a confession that the iinjuries wbich the vessels had. received were caused, not by the gears, but by the mistnanagement of those on board .of them, in their eagerness to place themselves under the spout? His learned friend had fitst stated that these gears obstructed the passage Of keels and wherries up and dow the river; but his owvn evidence had iit6ved that at high Wate 'e. Of' Alineio 400 yards, in which to move independently of ch geat and that aelow water they were notaceustomed to mroe at a . tslearned-friend had then proceeded to complain, tht places here ships of 14 feet draugltt of water had formerly navigated. wete now only eailed over by ships of nine feet draught of water. Wht had islearned friend done this? The sh ipowners of Neweastle had not instructed himn to take this Into hiis consideraton, and vhr had he volunteered the c re of interests which were not committed to hi charge? Rig own witnesses had admitted that there nmust be some ouays along the river side, or there could be no trade. That admnission was dec-- sive as to his learned friend's case. It proved that this was a question of degree, and being a question of degree, how waas it proverl that these gears were an obstruction, to the commerce of the river ? A witness had stated that the Corporation of Newcastle derived a considerable revenue from the dluties nn the exportation of Coals f'rom that port. Whatever else might be said atgainstcorporations, he had never heard it said that they were inattentive to their own in- terests. He therefore conceired that the Corporation of Newcastle were aware that it was their interest to promote the exportation of coal, and that the best mode of doing it was to afford every facility to vessele entering and quitting their ports. Now, if they th-otiht these gears an obstruction to the navigation of the river, would tfiev uot have ordered themn to be reinoved ? Tlhcy had never g{ven any oi. der of the kind, and that was another proof that thexe gears were not a nuisance. There was a Corporatton of the Trinity House at Newcastle unconnected with the Corporation of Newcastle, wvhose boun4er duty it was to take care that the river atid port surfiered no detrinent, aiml to remove all obstructions as soon as they showed themselves. Had his learned friengt a brother or pilot of the Tri- nity House among his witnesses ? Not one. The jury then had a c-ise of maritine nuisance before themn, in whichl not a member of the Corporation of Newcastle-not a brother of the Trinity, Houpe-not a pitot of the Trinity House-not a singlejuryman of t*e river-not a single ship.owner-not a single person interested in the trade of the river was called, except a set of men who complained of the nui- sance or one account, and wished to get rid of it on another. Could they thi n entertain a dobt of the verdict which they oughit to re- turn ? Aen.r, he admnitted that if the staitlis were put down, the number of keels must be inereased. tHe had wrung from the evi- dence the only use to which the keels were applied was the loading of the ships. If that were so, the destruction of these gears would create a Creater obstruction in the river than exist.. ed at present. One of the witnesses has told them that such a cir- cumstance would make it necessary to employ three times as many keeLs as now plied upon the river. If that were so, then there would be three tines as many obstructions as were now to be found in it. He contended, that so far from these staiths renderihg the navigation intricate and difficult, they rendered it less dangerous and obstructed. If, then, the question which they had to decide was not a question of encroachment, but of utility, he called upon thetn as conservators of the river Tyne, not to put down that system which, during a period of fift1 years, hId contributed to the success of the town of Newcastle,' and the behefic' of the county of Northumberlandl. If the evidenec on the part of the defence had been more conplete antI less contradictory than it was, he would have called upon them to, have respected a nystem whicl was already warranted by age-which had existed more than twenty years, and which had every external appearance in its favour of its utility. Thiey would not forget that a iury at Newcastle had over and over agaiin refused to find this indictment for a nuisance. Was not that a proof that those who were best acquainted with these staiths considered them not prejudicial, but beneficial to the town ? He was old enough to recollect when the town of Newcastle was little more than an obscure village, and when there were green fields in many of those placei where there were now spacious street% and elegant mansions. Hlad it arisen to its present state of pros- perity in consequence of these gears facilitating its commerce, or is consequence of their being 'an obstruction impediment, and hin- drance to the navigation of the Tyne ? Ihe would leave them to answver that question as thley might think lit, and wrould In conclu- sion only submit to them that these staiths, or gearn, ought to be supported, and, in point of law, were no nuisance. I\lr. BttOUOst.x rose to reply, in consequence, as he said, of lr. Scarlctt haViRsg given a plan to the jury, and having stated several cases to them. Mr. SCARLE.-TT denied that Mr. Brougham had any such right, and the Judwe rnled that he had not. Mr. Justice BAYLEY, in summHing upthe evidence, observed, that wherever there was a power of passing over a navigable river, in that place there was a right of way to all the King's subjects. He held, however, that a navigable river was for other Purposes than the mere right of passage, and that those purposes often suspended and narrowed that right. Where there wtis a large space of water. part of it might be applied to the purposes of commierce, and where greatpublic benefit arose from that abridtgmentof the right of passare, it made it nonuisance. In the present case,if they nhould be oFopi- nion that what had been taken from the passage had been taken tor a useful anti beneficial purpose, and that enoughi space bad been left ror the enjoymeist of the ri ht of passage, thev would find a verdict forthe defendant. If, however, they should think that it had not been taken for a beneficial purpose, or that sufficient space had not been left for the riglht of passage, then they woild fmsd a verdict tor the Crowit. They woult likewise find a verdict for the Crown. if they were of opinion that part of the gear ran too far into the water; ano in that case lie should be obliged to them to specify, in their ver- tiict, of how many feet that part consisted. After sevcrml otlier ob- servations, the learned Judge bade them consider of the verdict. Some conversation ensued between Mr. BaOUGHA5t and the learned Judge, daring the absence of theJury,respectIng the manner in which he should applv to the Court of King's Bench to re- view the direction of the lcarned Judge. We were not near enough to hear the particulars of the conversation, but we understood that Mr. Justice Bayley pledged himself that Mr. Brougham should have the opportunity he wished. Ir. BttorGStA said, that he was a,fraid he could not, as Lori E;enborough iRtl rutletd that no m.otion could be made for a new tial in case of iiditment, as it wrould militate against the general r3ulmeof l.aew, that no man shall beyut upon Isis trial twice for the The Counsel for the defence said that thev would consent, In case a verdct wasgven for the defendant, to ir. Brougliam's moving for a new trial, on the ground of the misdirection of the learned Judge on thc law of the case. The Jury then returned a verdict of Nlw Guilty. _ YORK, WEfNFSDAY, AUGITST 11. THE KING V. BtS'ELL.