Navigating the Lower Saint Lawrence in the 19th Century.
Court of Vice-Admiralty, } Lower Canada. |
Monday, 11th August, 1823. |
| WILLIAM | WILSON Informant, |
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| WILLIAM | NORRIS, Defandant. |
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Judge Kerr: This information has been preferred against William Norris, master of the brigantine William, of Dublin, for penalties to the amount of £2,500, for having taken from the Port of Dublin, and brought to Quebec, fifty passengers more than are permitted by law to be carried in the said brigantine, in contravention of the 57th of his late Majesty, c.10. I am free to confess, that in granting process against the defendant, I had some doubts as to the jurisdiction of this Court over the offence alleged to have been committed, and to this point I was desirous of hearing the defendant by counsel, but Mr. Norris, though personally served with a citation, has not thought proper to appear, in any stage of the proceedings, and the Court must in this matter be entirely guided by its own judgment, assisted by such lights as have been cast upon it by the advocate of the informant. The statute declares, that the penalties and forfeitures to be incurred under that act, shall and may be recovered "in a summary way, in any Court or Courts of Session having jurisdiction in the port or place at which such vessel shall arrive." If no former statute had granted to this Court a right to entertain prosecutions for penalties and forfeitures under the Trade and Revenue laws, I should have felt much doubt whether the words "Court or Courts of Session" in the statute, gave any jurisdiction in these matters to the Court of Vice-Admiralty. But the 49th of his late Majesty, c. 107, in most express terms gives to the Vice-Admiralty Courts cognizance in such cases, for it provides by the first section, "that all such penalties and forfeitures" (speaking of such penalties and forfeitures as relate to the trade and revenue of the Colonies), "which may have been heretofore, or may be hereafter incurred, shall and may be prosecuted, sued for and received in any Court of Record, or of Vice-Admiralty, having jurisdiction in the Colony or Plantation where the cause of prosecution arises." In this view of the question, the Court is not unsupported in its claim to a concurrent jurisdiction with other Courts, in all prosecutions for penalties and forfeitures under the Trade and Revenue laws, by a distinct legislative enactment, providing against past and future violations of them, and I am necessarily led to this conclusion, that by the words "Court or Courts of Session" this Court is included. The trite maxim, "est judicis ampliare jurisdictionem", which is to be applied with great caution, may in truth and justice be called in aid of this construction of these words, for if this Court has no jurisdiction over the penalties in the 57th of George III, then the provisions of it will become nugatory; there being no other Court which has jurisdiction over the port of Quebec, in Session at this time, nor will any other but the Court of Vice- Admiralty meet before the 21st September, and before that time the defendant may leave this province; all the witnesses may disperse, and thus the provisions of the act will be eluded. The question then is resolved to a short inquiry of fact, whether the defendant has incurred all or any of the fifty penalties for which the informant proceeds in demand in his libel, and after reading over the evidence taken in support of it, I must say that it exhibits a case of as lawless behaviour and moral turpitude as is rarely disclosed in a Court of Justice. It appears from the evidence of Thomas James, the mate, that the brigantine sailed from the Port of Dublin, on the 14th May, and on the same day came to anchor opposite Dunleary New Harbour; that Norris, the master, was on board and went on shore in the same evening or next day in the morning; that he returned on board in the night of the 15th, at 11 o'clock. When he returned he said that when he was on shore he had heard that the ship had fouled her anchor and that he must heave it up. Here, he threw aside the veil, and touching the witness on the arm, he added, "don't take any notice of my being in a passion or what I may say, but the ship must go to sea immediately; that if she did not go to sea that night she would be stopped and not allowed to go." He farther states, that there were then two Custom-House officers on board, and that by the master's orders, the anchor was weighed and the ship proceeded to sea; when, touching at Howth Harbour, about daylight on the 16th, the Custom-House officers were landed, and the brig proceeded on her voyage to Quebec. |
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The witness produced a paper which he says was given to him by
Norris, showing the number of families, of whom, as mate, he was to
serve out water during the voyage, and this list contains, in
number, as far as I can understand from it, 119 souls. His
evidence also goes to prove that there was hardly room to work the
ship; that part of these families slept in the longboat on deck;
and of the number, happily, only eleven children died, a
circumstance that he attributes to the coldness of the weather. James Hunt, a passenger, states that he, his wife, 27 years of age, with a child, and two relatives, embarked on board of the brig on the 14th May; that neither he nor his family had a berth excepting his wife, who was nearly starved with cold, and was permitted, for three nights, to sleep in the cabin; that during the first ten nights, they were obliged to sleep between the berths; and, at other times, in the longboat upon deck. For the last three weeks of the passage, he says, that they lay in the hold on some ropes, where the child he had with him died, and where his wife was delivered of another! He does not know the exact number of passengers, but he says that there were more than seventy grown persons, and upwards of thirty children, exclusive of eleven who died on the passage. Walter Stiensin swears that there were at least 140 passengers, and that though he was promised a berth by the owner, a Mr. Ellis, of Dublin, he was obliged to sleep in the longboat on deck, by which he lost his health and is now extremely ill. He says that he paid four guineas to the owner for his own and his cousin's passage. Though it appears that the passengers far exceeded the number restricted by the statute, which is "One adult person, or three children under 14 years of age, for every one ton and a half of that part of the ship or vessel remaining unladen". Yet they all differ as to the precise number, which is not to be wondered at, considering the crowded state of the ship. However the testimony of Mr. Fife, the Custom House Officer, who boarded the brig on her arrival, and who counted the passengers in the presence of Clifford, the other witness, enable the Court to say with correctness that there were, exclusive of the crew, ninety-seven grown persons and forty-four children, that were brought from Dublin in the brigantine William, a vessel of only ninety-three tons burthen. Mr. Fife states that the ship was so filthy, and the smell between decks so offensive, that he did not venture to go below. These are the facts which this informant discloses, and certainly the case is a deplorable one. It is in vain that the civilized nations unite to abolish the slave trade, and to mitigate the miseries of mankind, if, from the vile passion of avarice, which is "semper infinita, insatiabilis", a traffic like this is permitted, with impunity, to be carried on between our shores, by which numbers of our fellow subjects are taken hoodwinked from their homes, and consigned to miseries which can be compared only to those of the Black Hole of Calcutta. Happily, in this instance, the mortality was not great, considering the crowded state of the ship; but, had the weather been warm and the winds less favourable, I do not think that one of the number would have lived to tell the tale of their sufferings. Following the dictates of my heart and understanding, I find the fact and the law with the informant, and the facts being proved, the law points with unerring hand to this conclusion, that the penalties for the recovery of which the informant proceeds in demand have been incurred, and I decree that the sum of £2,500 sterling be paid by the defendant, William Norris, one moiety to His Majesty, and the other moiety to the informant. The Honourable Mr. Primrose for the Informant. |
| G.R. Bossé©1999-03. | Posted: Nov. 25, 1999. |
Updated: July 15, 2003. |
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