never before disgraced a Court of Justice. Welch swore (what would be proved under his own hand to be false,) "that being at Corunna in May, 1813, and out of employ, he was appointed to act as a linguist to Laragoita, previous to which he had never had any concern with the ship, save that he had before been told that the Frenches had fitted out the ship, and that she was in Spain; whereupon he went to Vigo, where learning that the project was abandoned, he drew for one hundred pounds on account of his wages, and then his agreement with French and Co. was at an end. He believed that the ship was the real property of Laragoita; he sailed in her (nothing said about Guernsey or Dartmouth,) and fell in with a Danish vessel; he interpreted the papers, and was not further concerned in her capture; he had never had the command, directly or indirectly; he had received money from B. French and Co., as agent to Laragoita." The Learned Counsel then continued, that the best falsification of all this would be a letter of Welch's, found in the house of French. The original agreement was for fifty pounds a month, and five per cent. on the amount of the adventure. This was dated in February, 1813. In January, 1815, Welch wrote thus :-"He was in want of the balance, and had just received the enclosed voucher from Burke; he trusted he should be paid, having so long since ended the business; he had no claim but what was due for his services, and they must excuse his adding, that if the money was not paid he should apply to his Solicitor." This was accompanied by a voucher of Burke's, making a demand for eight months' service instead of two, as it would have been if the agreement had been at an end at Corunna. After this, there was the affidavit of Burke, which stated an agreement

"that the Frenches should have a joint interest with some Spanish or Portuguese merchants in the brig Pitt, which should be employed as a letter-ofmarque; not against the commerce of his Majesty's subjects, but that of his enemies; that he left the country, not solely on account of the brig Pitt, but with power to sell her; and, soon after his arrival, abandoned all idea of fitting her out; that the bills drawn in favour of Menendes and Escurvier were on account of wools, and other mercantile concerns; that he did draw bills from Guernsey to the amount of 1,400, but they were all advised from Spain, and on account of wools; it would be proved that they were on account of the ship; that Laragoita was not a colourable captain, but the whole transaction was bona fide." A letter of this gentleman's had been found, which stated that he was going to Ferrol, to make interest for the condemnation of the Carlotta. Another, of the 26th of April, stated he had returned from Ferrol, and had every reason to hope that the difficulties as to the Carlotta were got over; another in May, stated, that the condemnation was settled, and would cost him 500l. The sentence of the Court in Ferrol did contain remonstrances against the proceedings of the Court of England; but all this was answered by Sir W. Scott, who said that this was no reclamation from Spain, but from British subjects, who were making it on the behalf of Spain. In the event, the Carlotta was released, and restored to her owners, and the San Juan seized and condemned in the Court of Exchequer, on the ground of her belonging to English and not to Spanish subjects. Of the parties involved in this transaction, Barton had fled, and was an outlaw; Bogle French denied he was implicated in the conspiracy, though it would be proved out of his own mouth that he was; for

when he found that all the proceedings in the Admiralty were in vain, he confessed the whole to his assignees. Burke and Welch disclaimed having had any thing to do with the conduct of the business; but it would be proved, first that Burke, and then that Welch, was the director. It might be contended, that part of the Carlotta's cargo consisted of French goods. But if all the goods had been French, that afforded no defence; for the crime was complete before the Carlotta appeared, and as soon as the conspiracy was entered into. Perhaps it would be urged, as had been stated in the affidavits, that this was the common practice of British merchants. But British merchants, of all men, as a body, the most honour able, would repel the infamous imputation. The trial had been put off more than once, for the indictment had been found two years ago. Perhaps the witnesses were now come from Spain to swear that the ship was theirs, and that they were the most injured of men. The Learned Counsel then proceeded to call the witnesses in support of the prosecution.

The facts above stated were proved by the evidence of Mr Moore, Spanish Consul at Guernsey, Mr Collings, merchant there, Sir John Doyle, governor, Captain Hoffman of the Carlotta, Mr Richard Clarke, and some others. Mr Scarlett then addressed the Jury in an able and ingenious speech, observing at his outset, that this was one of those occasions on which gentlemen of his profession had frequently to discharge a duty with feelings of no very agreeable nature. In ordinary cases of disputed property, it was not difficult for them to see questions involving nothing but pounds, shillings, and pence, determined either way without pain or anxiety. But when an individual was charged with the commission of a crime, which, if proved, must be fatal at the least to his future character, and,

therefore, to his best interest in life, and more especially when the offence charged was that of conspiracy, the task of an advocate must always impress him with anxious sensations. He would go further, and say, that the Jury must participate in the same common feeling, when they considered either the magnitude of the crime, or the nature and variety of evidence, of which the proof almost necessarily consisted. It was a crime that could not be committed by one person; there must be a design common to several, and acts done in concert by them, for the purpose of carrying that design into execution. This offence, as defined by the law of England, was altogether peculiar, and there was no charge which in itself imposed on defendants so much difficulty in meeting it. He had heard this opinion expli citly avowed by many enlightened judges, and to use the emphatic language of one who formerly sat where his lordship was now sitting, it was a drag-net which swept all that came within its reach. To sustain such a charge, a great latitude of evidence was unavoidable, and it was impossible for those whose misfortune it was to answer it, to foresee or be prepared for numberless minute circumstances which might be adduced against them, although nothing might be wanting but an opportunity of explanation to shew them in a different and a favourable light. The substance of this indictment appeared to him to resolve itself into two distinct propositions; the one charging a conspiracy to seize vessels protected by British licenses; and the other imputing a design to seize the particular ship the Carlotta. In adverting to the evidence brought forward to support this prosecution, he felt satisfied, that the Jury would, before they came to a conclusion against his clients, require that the evidence should proceed from pure and unadul.

terated sources, not from sources taint ed by motives of treachery, avarice, or revenge. (Here Mr Scarlett animadverted with much severity, on the conduct of Mr Clarke, the assignee, whose testimony, he maintained, ought to be dismissed as unworthy of belief, and who, for aught they knew, might have garbled and suppressed the papers of the bankrupts, and by so doing have deprived his clients of their only means of defence.) After explaining the nature both of the ordinary and extraordinary system of licensing vessels, for the purpose of carrying on a trade with a belligerent state, he proceeded to argue, from a comparison of dates, that the design imputed to the defendants of preying upon vessels so protected, could not have entered into the contemplation of rational men; as the system itself was at an end, at the time when the design was stated to have been formed. He contended also, that there was strong reason to suspect, at least at that time, that the Carlotta was a French ship without a sufficient license, and in that case affirmed that the San Juan had a right to take her. If the question as to the Carlotta had been decided otherwise, the owner of a privateer was not guilty, any further than the commander of a man of war, who made a capture, which was afterwards pronounced illegal, of a criminal offence. It was, at the utmost, a civil trespass, proceeding from an error in judgment, for which the party was answerable in costs. He was one of those who thought it would be much happier for the world that war should never be made on commerce, and hoped, that as peace was at length restored to Europe, the licensing system, with all its train of frauds and perjuries, had ceased for ever. After many striking observations, Mr Scarlett concluded by a forcible appeal to the Jury, on the important duty which they had to

discharge, in deciding whether they would consign to infamy and ruin, and perhaps the pillory, persons in the situation of his clients, and at a distance of five years from the period of those transactions which formed the evidence against them.

The Chief-Justice summed up the evidence, and the Jury in a short time found a verdict of guilty against all the defendants; but recommended A. B. French to the merciful consideration of the Court, on the ground of his youth at the period when the conspiracy was formed.

O'CALLAGHAN, PHELAN, AND NewBOLT, FOR MURDER in Duelling.

Old Bailey, Friday, Jan. 16.

Theodore O'Callaghan, Thomas Joseph Phelan, and Wm. Newbolt, were put to the Bar, accused of the wilful murder of Lieutenant Edmund Bailey, by shooting the said Edmund Bailey with a pistol, or other deadly weapon, in a duel on Monday last, the 12th instant. They severally pleaded Not Guilty.

There were no counsel on the part of the prosecution, and Mr Justice Park having read over the depositions given at the public office at Bow-street, called and examined the following witnesses:

William Adams stated, that he lived at England's lane, near Chalk-Farm, near Hampstead, in the county of Middlesex. On Monday last, the 12th instant, soon after nine in the morning, being unwell in bed, he heard the report of fire-arms so close together, that he apprehended some gentlemen were fighting a duel. He got out of bed, let down the window shutters, and saw four gentlemen, at the distance of 500 yards from the house, two of

whom were standing at stationed distances, at 12 or 14 yards from each other, and the other two standing together on the left side of the two who were at stationary distances. He dress ed himself as fast as he could. It was not a clear morning, and the wind was high. Just as he got over the gate into the field, he heard the report of two other pistols. He saw one of the gentleman make a kind of turn, as if he had been shot, and the three other gentlemen immediately ran to him. He took hold of two of their arms, and all four advanced towards witness. His intention was to have stopped the proceedings had he been in time to do it. When he met them, the deceased (Edmund Bailey) had his waistcoat unbuttoned, and also his trowsers at the waistband. He was bleeding profusely. Witness observed to them," This is an unfortunate affair;" and the reply was, "Yes, it is, we are all friends, it has been an unfortunate affair. It was not our quarrel originally." They were to have been seconds in another quarrel the day before, which occa. sioned the present affra They inquired if witness knew of any house to which they could convey the deceased. Witness offered his own house, and there the deceased was taken. They then anxiously inquired for surgical assistance, and witness told them he would send his man for Mr Rodd, of Hampstead. This was done immediately. Mr Bailey was taken into his parlour, and placed upon the sofa, and in little more than half an hour Mr Rodd arrived. Mr Bailey was still alive, and a ball from his left side was extracted. Before Mr Rodd came, and as soon as he was placed on the sofa, Mr Bailey called Mr O'Callaghan to him, and desired him to take his right hand, which appeared to be in considerable pain. He desired him to shake hands with him, saying, that

VOL. XI. PART II.

he freely forgave him all, and adding, "every thing has been conducted in the most honourable way." He asked Mr O'Callaghan, "if it had been your case, would you have done so?" and the reply of Mr O'Callaghan was, "Yes, my dear fellow, I wish I had been wounded instead of you. I felt your first ball between my legs. I wish it had taken effect, for I should have been wounded, and that would have put a stop to the duel." Mr O' Callaghan then exhibited his trowsers, and both the legs were cut through, and one of the boots. It appeared to have been done by a ball. After this, and before the death of Mr Bailey, Mr O'Callaghan went to Hampstead, which was about three quarters of a mile from the place, and brought a coach. He afterwards went to Chalk-farm with Mr Newbolt, in order to procure a lodging for the deceased. Mr Rodd came, and found Mr Bailey in a dangerous state, and advised notice to be given to his friends. Mr Bailey named Mr Phelan for that purpose. Mr Phelan went to town for that purpose, and to execute some commission. Mr Rodd had declared that the deceased would not live many minutes at that time; he added, there was no time to be lost, and that Mr Bailey should see his friends immediately. All the prisoners were fully aware of the dangerous situation of the deceased. Witness asked them whether they intended to meet the Court, and they all said yes, and gave their cards of address. This was before Mr Phelan had gone to town. In his absence an officer was sent for, and the two prisoners then present surrendered, and Mr Phelan gave himself up as soon as he came from town. Two hours after Mr Bailey had entered the house, he called O'Callaghan again to him, and desired him to take his hand, and rub it in a particular position, as he found great

D

ease, he said, from it. Mr O'Callaghan did it for some time, and Mr Newbolt did so also. All attention was paid to the deceased. Mr O'Callaghan, as well as Mr Phelan, seemed very much affected, and all of them shed tears. Mr Bailey lived three or four hours, and then breathed his last. In the course of the morning, and while upon the sofa, the deceased said several times, "God bless you all, and thank you for your attention." Witness did not see the hand that fired either the first or the second shot. On the second firing, he saw smoke some height in the air. He saw no pistols in any hands. Before he quitted his bed-room, he saw a pistol fired over the hedge, quite away from any body, but, being at five hundred yards distance, he could not distinguish the person of the gentleman who fired it. He saw nothing more take place until he got into the field. Just before he got over the gate, and before he heard the second report of the pistols, he saw the two seconds retire, and the two other gentlemen place themselves at stationary distances. He afterwards saw two pistols lying on his parlour table, with a powder flask, and a bulletmould. These he produced in Court. Cross-examined by Mr Nolan.-As soon as the parties came into his house, and repeatedly after, the prisoners said they were not to blame; the quarrel was not theirs; and the deceased as often admitted this to be the case, and named the person who really was in fault, and with whom the quarrel had originated. The witness here said, that perhaps it would not be prudent to mention the name of this person.

Mr Justice Park concurred in the propriety of this person's name not being mentioned.

Mr George Rodd was a surgeon residing at Hampstead, and was called in on the 12th January to examine the deceased. He arrived there shortly

after ten o'clock. He saw Mr Bailey sitting on a sofa, with his right side bloody. Mr Bailey said he appre hended death, and witness confirmed the observation. Witness extracted a ball from his side. After the death of the deceased he was opened, and it was found the ball had penetrated the intestines in three different places. Those wounds, in his judgment, caused his death. After having extracted the ball, witness asked the deceased whether every thing had been fairly done? His answer was, " Decidedly so." He then told him, "If you have any thing to communicate to any private friend, you had better do it." Bailey then called Mr Phelan to him. Shortly af terwards, Mr O'Callaghan, at the request of the deceased, held up his hand, as it gave him, he said, considerable relief. He said, "God bless you, I thank you all for your attention." Mr O'Callaghan said, "I hope, my good friend, we shall be walking together again in two or three weeks;" and Bailey replied, "No, I shall be in Heaven before that time." Witness received all the assistance in their power from the prisoners.

The evidence on the part of the prosecution having been closed, the prisoners were severally called upon for their defence. Neither Mr Newbolt nor Mr Phelan made any defence; but Mr O'Callaghan, after having expressed his inability of speaking in public, handed in a written defence, which was in the following terms:

"My Lord, and Gentlemen of the Jury.I never apprehended that I should appear in a Court of Justice to answer for a crime, because I never had a disposition to commit one. My Lord, and Gentlemen, I have no other observation to make than to express my confidence in your liberality and justice, and that you will believe me in this solemn declaration, that no man alive, however closely connected with