tion in this island, was near expired, therefore | persons no ways connected, and so exactly talnecessary such a deed should be executed. The next morning Mr. Mills is found dead. The prisoner is declared by Coomy to be the person by whose hand his master fell: And though by law this is not evidence; yet by Mr. M'Kenley's evidence, who declares he saw a person rowing in a canoe, from the place from whence Coomy had told him the prisoner embarked, describing his dress; which person is immediately after met by Johnson, who personally knows him, describes him to be dressed in the same manner, and declares that no canoe was then at sea, but the one in which was the prisoner: that he could distinctly see the whole passage from Frigate-Bay, the place where Mr. Mills then lay dead, to Nevis, where the prisoner was seen to land by Jasper Thomas and his son, who declare that they saw the canoe coming from St. Christopher's, describe his dress to be the same as M'Kenley and Johnson: Jasper is so particular as to name two of the negroes whorowed the canoe, one of which (Peter), as appears from Cribbe's lying with each other, little room, as I said before, can be left to doubt. It was essentially incumbent on the prisoner, for his own sake, to prove where he was, from the time he went to bed at Dr. Webbe's on the 18th of November at night, to the time he was seen to land at Nevis, on the 19th in the morning; but this he has not attempted to do. Lest you should have entertained a notion, that the killing a person in a duel is not murder in the eye of the law, as the life of each in such an encounter runs an equal risk; I assure you, gentlemen, the law makes no such distinction, even in cases of fair duels. If from the evidences you are satisfied, that Mr. Mills fell by the hands of the prisoner, and that he had a malicious intent, the law makes it murder as much in this case as any other.* The prisoner in his defence to clear himself, says, from his known and past conduct in life, there is no reason why he should be even suspected of engaging in a duel: but from the evidences of Messieurs Pringle and Baker, that the pis evidence, and which strengthens and is strength-tols of the deceased had never been discharged, ened by Coomy's declaration, says, That he had been that morning to St. Kitt's with Mr. Barbot, who he feared had done a great deal of mischief, for he believed he had killed Mr. Milis. And as this declaration of Peter's was made to Cribbe, before the account of Mr. Mills's death had reached Nevis, as appears from Quin's evidence, who was the express sent up in search of the prisoner, and the two slaves were four or five leagues asunder, and could not have seen each other from the time of the commission of the fact, to this declaration of Peter's; this could not have been by them concerted, and of itself carries so much weight, as to merit some attention. I shall detain you, gentlemen, with but one Again, Thomas Hobson and sister declare, ❘ more observation, which is, that no person but or even were they loaded; and from his sword's belt being buckled round the hilt, and at a distance from him, as appears from M'Kenley's evidence; and from the direction of the ball or substance which pierced the body of the deceased, which entered so far backwards, and struck on the opposite side so far forwards; and of which Messieurs Hamilton and Edwards declare, to the best of their knowledge and be. lief, Mr. Mills died, and that he could not have received the wound in a posture of defence: from these circumstances it must be left to you, upon the evidences, to consider whether this was even a fair duel. that in the morning of the day on which they heard the account of Mr. Milis's death, they saw a little man, whom they know to be the prisoner, coming up from the Bay; that he came to their house, and asked for Dr. Webbe's boy Pope: When the boy appeared, he did not ask if he had got a horse, but ordered him to saddle the horse: From this then it is evident that he knew the horse and boy were there, or he would not have called so immediately for Pope, and ordered saddling the horse. Dr. Webbe too proves that the horse and boy must have been taken out of his stable by the prisoner; for he declares, that he himself had not that night been called out by any patient, nor had he sent that boy on any message. These evidences describe the same dress as the preceding ones. Other evidences have been produced by the king's counsel, who described the same dress, and traced the prisoner to Dr. Webbe's where the doctor acknowledges his arrival, dressed also in same manner, as every other evidence had. From such a chain of evidences, who were separated from each other in different islands, the prisoner has been proved or known to have declared a resentment to Mr. Mills, the deceased; no person but the prisoner was seen going from the place where Mr. Mills was found but just expired, and no person of dis. tinction in this island killed but Mr. Mills. All circumstances of persons, time and place, must be well considered. It is also your duty to weigh the evidences that have been offered to you, and to judge from thence, whether the prisoner is guilty of the murder wherewith he stands charged, or not guilty; and in considering this matter, let me recommend to you, that you divest yourselves of any impressions that may have been made on you from the relation of this fact out of doors, and that you consider merely the evidence given you here on the trial. If, upon the whole, you believe in your consciences, that the prisoner committed the fact of which he stands indicted, you will find him guilty: but if, upon the whole, you do not be * For the law respecting homicide in duels, see East's Pleas of the Crown, chap. 5, ss. 12. 24.54. Cl. of Arr. Gentlemen, are you all agreed on your verdict?-Jury. Yes. Cl. of Arr. Who shall say for you? Jury. Our foreman. Cl. of Arr. John Barbot, hold up thy hand (which he did). Gentlemen of the jury, look upon the prisoner: How say you, is John Barbot Guilty of the felony and murder whereof he stands indicted, or Not Guilty?-Jury. Guilty. Cl. of Arr. What goods or chattels, lands or tenements, had he at the time of the said felony and murder committed, or at any time since, to your knowledge?-Jury. None. Cl. of Arr. Hearken to your verdict as the Court hath recorded it. You say that John Barbot is guilty of the felony and murder whereof he stands indicted; and that he had not any goods or chattels, lands or tenements, at the time of the said felony and murder committed, or at any time since, to your knowledge; and so you say all. Cl. of Arr. John Barbot, hold up thy hand. You have been indicted of felony and murder. You have been thereupon arraigned, and pleaded thereto Not Guilty, and for your trial you have put yourself upon God and your country, which country have found you Guilty. What have you now to say for yourself, why the Court should not proceed to give judgment of death upon you according to law? Prisoner. May it please your honours, there is a fault in the indictment. The fact is laid to have been committed at Frigate-Bay, in the parish of St. George Basseterre, and FrigateBay is in the parish of St. Peter. Sol. Gen. May it please your honours, the prisoner, admitting it were as he says, is too late in his exception. That is a matter of fact, and if it had been material, (which it was not) ought to have been shewed on evidence; but cannot be made use of in arrest of judgment. However, the truth is, there is no such mistake as he mentions in the indictment; for FrigateBay is actually in the parish of St. George, and if it were necessary we could prove it. Prisoner. May it please your honours, I have nothing more to say. Mr. President. John Barbot, you have been indicted for the murder of Matthew Mills, esq. and for your trial, have put yourself upon God and your country: that country has found you guilty. You have had a long and a fair trial. You have challenged many who were called up as jurors, though not the whole number you were intitled to by law; so that I may with justice say, you have been tried by a jury, to which you yourself had no exception. I am sorry it falls to my lot to acquaint you, that I am no longer at liberty to suppose you innocent. You are convicted of a crime the most horrid and dreadful in itself: a crime attended with the most aggravating circumstances. You have deprived the world of one of its most worthy and useful members; and rendered unhappy numbers of persons, who drew the means of subsistence immediately from the bounty and benevolence of the unfortunate gentleman deceased. It is hard to conceive what provocation you could have received from a gentleman of so mild and gentle a disposition as the deceased was, to induce you to perpetrate an act so shocking. But I would advise you, as some kind of atonement for the crime you have been guilty of, to make a full confession of the whole matter. Let me recommend to you also, to employ the little time you are likely to continue in this world, in endeavouring to make your peace with that great God, whose mercy is equal to his justice. Nothing now remains but to pronounce the sentence of the law upon you, which is, That you are to be carried to the place from 'whence you came, and from thence to the 'place of execution, where you are to be 'hanged by the neck until you are dead: And 'may God of his infinite mercy receive your 'soul!? The Prisoner then addressed himself to the Court in this manner: Barbot. May it please your honours; Since it can no longer avail me to conceal the fact, I will make a frank confession of the whole. That I did kill Mr. Mills, is most true.- according to the notions of honour prevailing From these false principles of duel, which in its consequences deprived the world of so worthy a gentleman, and has involved me in these unhappy circumstances. False I am convinced they are, notwithstanding the countenance they receive from the daily practice of the world. I make no doubt but that the words which Mr. Carew and Mr. Mills have sworn, did pass between the deceased and myself at the sale of Bridgwater's estate, though I cannot now recollect that they did. But this was not the cause of the duel. The provocation I received from Mr. Mills was this: After I was declared the purchaser of the estate, I sat down to draw the bills of exchange for the deposite. While I was about them, Mr. Mills came and looked over me, and observing that I had made them payable at ninety. days sight, he objected to them, and asked me if I knew what I was about, and insisted on having the bills drawn at a shorter sight: To which I answered, That I was sure he must know it was usual for bills of so large a size to be drawn at a long sight. I told him further, that I apprehended he had no right to object to the bills at all, if the marshal agreed to accept [1320 them as they were drawn. To this Mr. Mills | me. At first I could not perceive the negroes; replied, " Sir, you are an impertinent puppy." but on looking round, I saw them lying under I took no notice of this till after I had finished a sail. They immediately got ready, and I the bills, and then I took him aside, and spoke to him to this effect: That I little expected to receive such treatment from a gentleman of his known politeness and good-breeding; that, as I was not conscious of having deserved it, I desired he would make me some apology for it. He replied, That he would not make me any apology; but that, if I thought myself injured, he was at my service when properly called upon. I made him no answer, but immediately left him; and, on the Thursday following, I wrote him a letter, telling him, that since he had done me the honour to assure me he would be at my service whenever I should call upon him, I expected he would meet me by dawn of day the next morning, near LowlandChurch, armed with a case of pistols only. Mr. Mills sent me an answer to this; and there were six letters in all passed between us, three from him, and three from me, which I do not now recollect, for I destroyed them*, though I believe I shall be able to remember the substance of them. The last I received from him was, that he would meet me at the time and place appointed, which was Frigate-Bay. The night before the duel, I made my will at Mr. O'Donnell's, and delivered it to Dr. Webbe. The doctor put it in his pocket without reading it, and we immediately went home to the doctor's house, where I went to bed soon after I arrived. At about one in the morning I heard the doctor up, and called to him: He answered me, and went out; and as soon as he came in and returned to bed, I got up, and went with Pope to the stable, and saddled one of the horses, which I immediately mounted, directing the boy to follow me; and rode very fast 'till I passed Mr. Pinney's, where I was overtaken in a very hard shower of rain, that wet me through all my clothes. I rode with all the speed 1 could till I came to Molton'sBay, where I had ordered a canoe to wait for * The prisoner, in a conversation he had with the publisher, while he was under condemnation in gaol, told him, That he had de stroyed the original letters which passed be tween Mr. Mills and himself; but that he had preserved copies of them, which copies he had put in a bottle, and buried in Mr. Pinney's garden (where Dr. Webbe lives) at Nevis. So remarkable a circumstance as this, had it been true, one would think could hardly have escaped him on his confession in court. The omission of this circumstance therefore very justly calls in question the genuineness of the letters, and inclines one too reasonably to believe, from that and some other observations, that the letters which he has given for those that passed hetween Mr. Mills and himself, are the effect of an after-thought, and were probably formed, during his condemnation in gaol, and sent up by him with directions to bury them at Nevis. Former Edition. As jumped into the canoe, and ordered Pope to nor saw The letters Mr. Mills wrote me on this un happy occasion were extremely polite; and those I wrote him were in as respectful terms as I was master of. It was Mr. Mills's character, his rank and distinction in life, that engaged me in this unfortunate business; for I should not have accepted a challenge from any man inferior to him. 1 For myself, my concern for the unhappy | fate I shall soon meet with is little, compared to that I feel for the sorrow and affliction it will bring on a tender parent; and the grief and anguish the consequences of this unfor. tunate duel will occasion to an unhappy lady, when she hears the shocking news of her hus band's death. I must, in justice to Dr. Webbe, acquit him of any concern in the matter. He is perfectly innocent of the cause of my quarrel with Mr. Mills; neither did he know any thing of the duel, either before or after it. One gentleman was acquainted with it; a gentleman whom I asked to be my second, which he refused. I beg to be excused mentioning his name, but he is neither of this island, nor of Nevis. I am obliged to your honours for the candour and impartiality you have shewn in the course of my trial. You, gentlemen of the jury, I must acknowledge, have acted like upright honest men. Had I been in your place, I should have found the same verdict yt you have done. I have nothing now to ask of your honours, but that you would please to allow me a little time to settle my affairs, and to make my peace with God. To which Mr. President replied, To be sure, you shall have a proper time allowed you. On Saturday the 20th of January, 1758, the prisoner was executed at the town of Basseterre, according to the sentence pronounced against him. At the place of execution he delivered the following Paper to the Provost-marshal. "My friends and fellow-subjects; "You see me this moment a dreadful instance, how much the human mind may be led away and imposed on by false and empty notions affecting reputation in the estimation of weak and fallible men; even so far as to commit the highest crimes in the sight of God, and daringly to violate all human laws, calculated for the good and safety of society. Let my example be a means to teach men to act more consistently with their reason; and let my punishment deter them from the commission of crimes like mine. And then my death, and that of the unhappy gentleman who fell by my hand, will, I hope, by the benefit the world will receive from the example, make some amends to the community for the loss of two subjects, who might, had it not been for the unhappy fate which attended them, have lived not unuseful members of society." Mr. Barbot was born in London, where his father, who is a working silversmith, (a man of some substance in the world, and, as it is said, of a good character) still lives. At about fourteen years of age, he was put clerk to Mr. Delaport, an attorney in Staples-inn in London; with whom he served a clerkship for the usual term of five years. After that time expired, he came from England, in the year 1746, in character of clerk to a gentleman of the profession of the law in Antigua. With this gentleman he lived near two years; and then, having not been very prudent in his conduct, and having besides contracted some debts there to the amount of 2 or 300l. currency, he came to Nevis; where he made a very close acquaintance with the family of the Webbes. Having for some time lived a very idle life there; and given away and otherwise unprofitably disposed of, a considerable part of a small cargo of goods, of about the value of 4 or 500l. sterling, which his father had sent him to sell, and spent the produce of the rest of it; and being at length reduced to extreme necessity, he came, about three years ago, to this island; where, by a critical scarcity of attornies at law, he got himself admitted one in the ordinary court of common law; and in the very first year, had such a run of business as to enable him to clear off what debts he owed in the West Indies; which amounted to near 400l. currency; and to put a handsome sum of money in his pocket besides. The first year of his being here, he behaved with industry and fairness; but soon after, from a natural dis like to business, and too great a disposition to get money by by the most likely means that offered, he greatly neglected his clients' affairs, and fell into a way of buying up desperate debts; which he commonly found means so to turn and twist about, as to make them good in the end; by getting still better and better se curity for them every time he sued for them, by adding each time the interest and costs: By which means he made them at once larger and more secure. Thus, by the dissatisfactions of many who employed him, and some small imputations he drew on his character; as also by persons of less questionable reputation, and more industry, coming to practise as attornies in the same court, his practice was greatly reduced: And yet, by one means or another, he became at length worth, as he says, (and, 1 believe truly) about 800l. sterling. His age, by the plate on his coffin, appeared to be but 25: Though I should think he must have been two or three years older: But of this I have no certainty. For the rest, he had a good school education; and knew Latin, and spoke French, very well. He had made some progress in the mathematics; and knew, and was very apt in figures, and was a tolerable proficient in music. He had a pretty good taste of literature in general; and a good deal of general light reading: But his judgment was by no means solid; and his mind of a romantic cast; though not without something of ingenious in it, and some considerable sprightliness of parts. To which I must add, he was a very ready writer, in either sense of the word; having both great freedom and quickness of hand, and fluency of expression. He was remarkably courteous and deportment were of that sort, which is usually distinguished by the name of priggism: which the littleness of his person (a circumstance well worthy the attention of persons of in his common behaviour; but his politeness | much more observable, and thereby to set him in a more ridiculous and contemptible light; as a certain pertness in his manner, and forwardness in his behaviour, with a vanity conspicuous in all he said and did, rendered him often the same size and turn) contributed to make | very troublesome and disgusting. Former Edit. 527. The Case of Pressing* Mariners, on the Trial of ALEXANDER BROADFOOT, for Murder, Bristol, August 30: 15 GEORGE II. A. D. 1743. This Case is taken, as was mentioned in the preceding Edition of the State ADVERTISEMENT OF MR. JUSTICE FOSTER. [This Case, though already in print, hath been thought to deserve a place in this Collection. It is therefore here inserted. If it be asked, where are the adjudged cases on which the author groundeth his opinion? he freely confesseth, that he hath not met with one, in which the legality of pressing for the sea-service hath directly come in judgment. What this is to be imputed to every reader will judge. A few modern 'cases there are, from which the legality of the practice may be inferred. [Kel. 59. 136, 137. Comb. 245.] But the author chose to ground himself on much better authorities than inferences from modern reports.] AT the gaol-delivery holden for the city and county of the city of Bristol, August 30, 1743, Alexander Broadfoot was indicted for the murder of Cornelius Calahan, a sailor belonging to his majesty's ship the Mortar sloop. The case was thus: Captain Hanway, commander of the Mortar sloop, had a warrant from the lords of the admiralty, grounded on an order of his majesty in council, empowering him to impress, or cause to be impressed, seamen for his majesty's service. The warrant expressly directeth, " That the captain shall not intrust any person with the execution of it, but a commission-officer; and shall insert the name and office of the person intrusted on the back of the warrant." The lieutenant of the Mortar sloop, (the only commission-officer on board besides the captain) was deputed by him to impress according to the tenor of the warrant. On the 25th of April last captain Hanway, being at anchor in King-road within the port and county of Bristol, ordered the ship's boat down the channel in order to press as they As to pressing, see Scots Act against wrongous imprisonment 1701. should see opportunity. But the lieutenant stayed in King-road, on board with the captain. Towards evening, the boat came up with a merchantman, the Bremen Factor, homewardbound. bound, in that part of the channel which is within the county of the city of Bristol, but some leagues from King-road; and some of the crew went on board, in order to press; whe being informed that one or two of the Bremen's men were concealed in the hold, Calahan, with three others of the boat's crew, went thither in search of them. Whereupon Broadfoot, one of the Bremen's men, (who had before pro vided himself with a blunderbuss and pistols for his defence against the press-gang) called out and asked them what they came for: be was answered by some of the press-gang, We come for you and your comrades.' Whereupor he cried out, Keep back, I have a blunderbuss loaded with swan-shot. Upon this the others stopped, but did not retire. He then cried out, Where is your lieutenant?' And being answered, He is not far off,' he immediately fired among them. By this shot Calahan was killed on the spot, and one or two more of the press-gang wounded.. The case being thus, the Recorder (Mr. Serjeant Foster) was of opinion, that the boat's crew having been sent out with a general order to impress as they should see opportunity, and having, in pursuance of that order, boarded the vessel without a proper officer, expressly against the terms of the captain's warrant, every thing they did was to be looked upon as an attempt upon the liberty of the persons concerned, without any legal warrant: and he accordingly directed the jury to find Broadfoot guilty of manslaughter. (a) But this being a case of great expectation, and uncommon pains (a) As to homicide in the case of an officer acting under an insufficient warrant, or exceeding his duty in the execution of a sufficient warrant, see the cases of Reason and Tranter, vol. 16, p. 1, of Porteous, vol. 17, p. 923, and of Stevenson, A. D. 1759. |