"We know that the courts have long since disregarded the subtle grounds upon which the old cases rested, as to the competency of witnesses; that they have endeavoured, as far as possible, and consistently with existing authorities, to let the objection go to the credit, rather than to the competency, of a witness. We adopt this principle in its fullest extent, and, convinced that it is both expedient and salutary, as tending to the attainment of the great ends of justice, I shall proceed to consider the objection taken to the competency of this witness. He is a slave, and it is contended, that being a slave, his testimony, by the usage of the other courts of judicature in this island, cannot be received. This opinion was supported by some positions, for which I in vain required that authority should be cited. It was urged, that by the practice of other courts, such testimony is rejected, as affecting the remotest interest of any one who claims to be free; but this is too broadly laid down. A mere claim to freedom would not be sufficient-the party must be actually free. I well remember the case which has been cited; for I presided in the court of King'sbench and Common Pleas, on the occasion when the court rejected the evidence of a free man, relating to a fact which occurred whilst he was in a state of slavery; and I had the misfortune to differ from my learned associates upon that occasion; for I could not reconcile the principle with any notion of justice or of reason, that this man being free, should be deemed by law competent as evidence of a fact which occurred yesterday, whereby the life of a fellow-creature might be taken away, but, being a slave the day before, his evidence is to be rejected upon the most trivial question of property, belonging to a free person, and arising during the period of his servitude. We have no law, whereby the evidence of a slave is rendered inadmissible in regard to free persons, in our courts of justice; but it is the usage of these courts, and therefore there is all the force of the law to reject it; and it may thus be accounted for: -When our courts were first established, our slaves were savages from the coast of Africa. Their want of reason and understanding rendered them, as the same defects would have rendered any other individual, incompetent as witnesses. That objection arising from their barbarism has, by the received opinion and the practice of the court, been attached ever since to the servile condition; although by the progress of christianity, and of consequent civilization, the force of that objection is weakened; and we now see that it is safe, and expedient, and just, that such an impediment to the investigation of truth and justice should be removed-under those precautions and safeguards which the peculiar constitution of our society requires. We at once admit that the uniform and solemn decisions of a court are binding upon the practice of that court; but it may not be contended that they are binding upon any other independent court of judicature. It so happens that the commissioners now presiding, are the judges of the court of King'sbench and Common Pleas, where our minds are habituated to the rejection of the evidence of a slave, as affecting in the remotest degree the interest of a free person. But it has been the pleasure of his majesty to name other persons as his commissioners, who are strangers to the colony, to its courts, and its customs, to whom the practice of another court (which practice is a departure from the grand principles that govern the rules of evidence), as binding upon this, must have appeared, as indeed it does to me, a very strong attempt to invade their reason and their judgment. I will also put a case, not so happily, indeed, as it has been put by the attorney-general, but still disposing of the question. Under the authority of this commission, the court can assemble only in this island; but it might have been the pleasure of his majesty to authorize the commissioners to hold the court in other islands also-in Dominica, for instance. In Dominica, the evidence of slaves, under certain regulations, is admitted, as affecting free persons, in their common law courts. Is this court then to shift its practice according to the shifting laws and usages of the several islands? Surely we must be governed by one prevailing comprehensible system, founded upon the law of the realm of England. But it has been said in argument, that the word slave is unknown to the law of England. I am not prepared to admit that. It was not only known to the law of England, but was also visited with the disabilities of the servile condition; but among these disabilities, we do not find his incompetency as a witness. In 3rd Blackstone's Commentaries,' we find that the slave or bondman, not being liber et legalis homo, was not allowed to sit on juries-but we search in vain for any disqualification of him as a witness. This is an offence VOL LXVII, not against this colony, except as it is a component part of the empire. But, after all, is not the question absolutely disposed of by the authority under which we are The 46th Geo. 3rd., assembled ? c. 54, says, that the offence which is now the subject of investigation shall be inquired of, adjudged, and determined, according to the com mon course of the laws of this realm, and not otherwise, in any of his majesty's colonies, by virtue We of the commission before us. have, therefore, simply to inquire, what are the disabilities which, in the common course of the law of the realm, render a witness incompetent. These objections, we find, are fourfold (1 Phil. 18). The first ground of incompetency is want of reason or understandinga second ground is defect of religious principles-a third ground arises from conviction of certain crimes, or from infamy of character-the fourth and most general cause of incompetency, is interest. And in Jordaine v. Lashbrooke' (7 T. R., 610), Mr. Justice Lawrence said, 'I find no rule less comprehensive than this, that all persons are admissible witnesses who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest.' Abstractedly speaking, there cannot be any more reason for suspecting the evidence of the witness on the floor, than that of any other individual under the same circumstances as the injured party. If his evidence is clear, full, impartial, free from all suspicion and bias, he will produce in every mind, even in the most scrupulous, the strongest and deepest convicB* tion, without any regard being had to his servile and degraded condition. If, on the contrary, by any contradictory statements, or by any of those indications which those who are practised in our courts know how to detect and to expose, as discrediting a witness, he will not be worthy of credit, and all that he utters will fall harmless, as it regards the prisoner at the bar. In short, it is the character of the witness, and the character of the evidence, that must prevail [1 Phil. 148]. Under these considerations, it is our unanimous opinion that this is a competent witness." The witness, Branch Hull, was then sworn, and stated the circumstances in substance as follows: That he met the prisoner one day in Charlestown, and went, by his invitation, to his house; prisoner inquired, if he was a freeman; witness replied "no;" prisoner said, "what! such a man as you a slave?" and asked to whom witness belonged; he replied, "to Mr. Webbe;" prisoner told him, that he had carried many friends from several islands, and, if witness would get a little money, he would carry him; witness asked how much he would carry him away for; he said a doubloon; and told him, on his departure, that he must keep a still tongue, and say nothing about it. Witness went to town another day, and prisoner asked him if he was ready; he replied "I am ready-what do you ask me now?" prisoner said, "as you have been picking up money a long time, 20 dollars;" witness proposed to him to take stock, to which he agreed, and witness was to carry him a pig for four dollars the following Sunday; the prisoner said, "If any body asks you about the pig, say it is mine, that I bought it from you;" witness carried him the pig, and asked him, if he took him away, where he would put him? he said, "How can you ask so foolish-do you think I am going to put you where you will be troubled? give me 20 dollars, and I will give you a pass; look at your master's negro, William Laurence, I took him away, and he is making plenty of money;" told witness to call next night; when prisoner took him to Arrindell's house, and the bargain was made-witness was to give a goat and two sheep, and what money he could get; witness carried the sheep to Fletcher and Arrindell, and gave the latter two dollars towards the passage money this was on Friday; prisoner told him to call the next day early, and he would take him away; he went, carried his clothes to Arrindell's house, and slept at Fletcher's that night; on Sunday morning, prisoner said, "You must not stay here through the day, people will suspect;" witness went to Blackrock Fort, and remained there till night, when he returned to prisoner, and told him, he had forgot his promise about the pass; prisoner wrapped him up in the boat's sails, and told him to stay until he came for him; prisoner came, and witness assisted in carrying five or six boxes of salt fish and other things to the boat, and also put into it his clothes; prisoner, Arrindell, and witness, got into the boat (called the Vigilant, belonging to Mary Gardner), and proceeded to sea; it was very calm; witness asked for something to eat, prisoner said he had not a knife, witness gave him his, which he did not return, and witness afterwards saw he had one tied up n a handkerchief, which gave him suspicion; shortly after, prisoner said to witness, "We are going to gibe;" they were then in the channel between Montserrat and Rodunda, Arrindell steering; prisoner went to trim the boat, and said to witness, "We are going to gibe, you must sit on the gunnel;" witness sat close to, but not on, the gunnel; prisoner edged up to him, and bade him sit on the gunnel; he did so, and Fletcher and Arrindell then spoke in some language he did not understand; Arrindell afterwards said to prisoner, "What the devil are you about?" upon which, prisoner took witness by the leg, and chucked him overboard, saying, "Ah, my boy, I have got you, you will soon be stiff;" witness caught the boat aft, and told prisoner it was cruel; Arrindell laid hold of his wrists, saying, "Let go the boat, you d-d rascal!" witness held on; prisoner came to the stern, held witness's head down on the gunnel, and Arrindell raised the tiller; witness looked up, and exclaimed, "Oh, God !" and Arrindell let the tiller fall; prisoner said, "What the devil are you doing, why not kill the man? do you want a fishing-boat to come up, and make trouble for us, and we shall not be able to go to Nevis again?" Prisoner then stretched out his foot for the knife that had fallen out of his handkerchief, which witness seeing, he slipped away, and went down in the water; when he rose, he pretended to be unable to swim; prisoner said, "Ah, my boy, I have put you where I have put many, in a few minutes you'll be stiff;" this happened between one and two in the › morning of Monday (Oct. 11); they had left Nevis the preceding night late; the boat sailed away with witness's clothes, &c. which he never recovered: he remained in the sea until nine or ten o'clock, when he was picked up by a fishing-boat; he had been swimming all the time, endeavouring to get back to Nevis. John Wilkinson sworn. He said, that he had gone out fishing early on the morning of the 11th October, and seeing something at a distance in the sea he made up to it, and it proved to be Branch Hull, who attempted to get into the boat, but was unable to do so from weakness; witness assisted him in, and he sat down, trembling very much, and, on recovering a little strength, he related to witness the circumstances he had given in evidence; when picked up, he was about three miles from the land. The counsel for the prisoner declined any further interference in a case of guilt so heinous and palpable, and the court called on him for his defence. What he stated fully corroborated the evidence given, but he denied any wilful intention of destroying the man he had thrown overboard, who, he expected, he said, would have easily made the shore. His honour the chief justice. charged the jury, who immediately returned a verdict of Guilty. Another jury was then empanelled, and the other prisoner, Arrindell, put on his trial; and, on the same evidence, he was likewise found Guilty. The sentence of the law was then pronounced on them. On the day appointed for their execution, they were conveyed from the gaol, in a cart, to the bay at the foot of the Pond estate, where the gallows was erected; and were both launched into eternity, in the presence of an immense concourse of spectators. KILKENNY ASSIZES. Farley v. Joseph Timothy Haydn. This was an action against the defendant as part proprietor and general editor of the Dublin Star newspaper, for a libel on the character of the plaintiff, published in that paper on the 16th of March, 1824. In addition to Mr. Scott, who is a king's counsel, and Mr. Hatchell, who is a gentleman in respectable practice at the bar, the defendant brought down Mr. T. Glascock, a Dublin attorney, short in stature, spruce in dress, and violently vehement in manner. The Lord Chief Justice Bushe, haivng taken his seat on the bench, inquired, if the parties were ready to proceed; but there being some delay in consequence of the absence of one of the counsel for the plaintiff, Mr. Glascock stood up, and said My lord, I think my learned friends on the other side have agreed to withdraw this record. If they had not, this delay could not occur. We will not, however, consent to it." Mr. Scott.-My lord, I would not have it supposed, that I am a party to what is now passing before the Court. Mr. Glascock. Oh, dear, certainly not, Mr. Scott. I don't mean to inculpate you; for if you were obliged to answer for my acts, God only knows where you would be now. Mr. Doherty stated the case on the part of the plaintiff, in doing which he was repeatedly interrupted by Mr. Glascock. The learned gentleman was pro 66 ceeding to call witnesses, when he Mr. Scott now requested the in terference of the Court. The Chief Justice-The first thing that I shall consider is, what gentleman at the bar is authorized to undertake the defence. I shall next consider, whether a gentleman who is not a barrister, but belongs to the other department of the law, is at liberty to examine witnesses, and address the jury. Who is the attorney on the record? Mr. Talbot Glascock.-I am, my lord; and my client could no where find my equal. Mr. Lanigan. He is not the attorney, my lord. The Chief Justice.-Who is the attorney retained in the cause. Mr. Malone.-I have been retained, my lord; but my client has instructed me to give a brief to Mr. Glascock. The Chief Justice.-Then I will not allow any other person to act as counsel than the professional gentleman or gentlemen whom you have engaged. Mr. Haydn, the defendant, was then called, and stated that Mr. Scot and Mr. Hatchell were his counsel |