Scottish Court of Session Decisions

Robert Watt and James Kerr were charged with “assault, to the injury of the person; cruel and' barbarous usage by persons having authority on board a British ship to persons on board the ship: culpable homicide; and compelling persons to leave a ship embedded in ice on the high seas, and travel towards the nearest land, whereby they are bereaved of life, or put in danger of their lives, or injured in their persons.” The indictment set forth that Watt and Kerr were master and mate of the Arran, which sailed from Greenock to Quebec on the 7th April 1868, and that on board were James Bryson, a boy of 16; David Brand, aged 16; John Paul, aged 11; Peter Currie, aged 12; Hugh M'Ewan, aged 11; Hugh M'Ginness, aged 12; and Bernard or Barney Reilly, who had stowed away or concealed themselves in the vessel before she left Greenock, and were taken to sea on board of her; and the prisoners were charged with having, between the 15th April and 20th May, while the vessel was on her voyage, attacked James Bryson, flogged him severely and repeatedly with a long line or rope's end, compelled him to strip off his clothes and lie down on deck, and while lying ondeck caused several pails of water to be thrown over his naked body, and with a hard broom used for sweeping the deck scrubbed his naked person, and otherwise maltreated and abused him, whereby he was bruised and wounded to the injury of his person; further, on another day, during the period above libelled, they attacked Bryson, tied his hands together, took off his clothes, and flogged him severely and repeatedly with a lead line or piece of rope, and otherwise maltreated and abused him; further, during the period libelled, or the greater part thereof, they, wickedly and feloniously, cruelly and barbarously, used and maltreated James Bryson, David Brand, John Paul, Peter Currie, Hugh M'Ewan, Hugh M'Ginness, and Bernard O'Reilly; within Id from them necessary food and nourishment, which they were well able to supply, so that they were almost famished on various occasions during the said period; that they struck and beat the boys with their fists and with ropes, kicked them, and put them in irons, stripped or caused them to be stripped naked, when the weather was cold and frosty, and exposed them in that condition and in that state of the weather on the deck of the ship, and poured, or caused to be poured, snow and cold water on their naked bodies, and otherwise maltreated and abused them, whereby they weresubjected to great pain and suffering; and further, on a day between the 11th and 20th days of May 1868, both inclusive, and while the ship was on the high seas, embedded in the ice off the island of Newfoundland, and in or near the Bay of St George, Newfoundland, at a distance of twelve miles, or thereby, from land, the prisoners wickedly and feloniously, culpably and recklessly, ordered James Bryson, David Brand jun., John Paul, Hugh M'Ewan, and Hugh M'Ginnes, to leave the ship; seized hold of them and dragged them to its side; threatened to turn them out by force and withhold from them all food if they did not leave the ship, although they knew there was sufficient food on board the ship; struck John Paul on the arm with a belaying-pin while he was clinging to the but warks or rails of the said ship, and thus compelled the five persons named to leave the ship, they being, as the prisoners well knew, slenderly and insufficiently clothed, and without adequate food, which they were well able to supply, and John Paul and Hugh M'Ginnes being barefooted, to proceed across the ice towards the coast on foot, to the manifest danger of their lives; and the five hoys, being so compelled then and there, along with Reilly, left the ship, and proceeded across the ice, which was rough and broken, towards the coast, to the great peril of their lives. Hugh M'Ewan, at a place between the ship and the coast, in endeavouring to pass from one block of ice to another, slipped on the ice, and fell into the sea and was drowned. Hugh M'Ginnes, at a part between the ship and the shore, became totally exhausted; and being, through fatigue and cold, unable to proceed further, lay down on the ice, and shortly thereafter died. And it was averred that both of these boys were thus culpably bereaved of life by the prisoners. Bryson, Brand, and Paul, proceeded across the ice at the great risk of their lives, and by means of a boat, which was sent to their rescue from the shore, reached the coast on the afternoon or evening of the day on which they left the ship; and through the effects of cold and fatigue and exposure, Bryson was greatly exhausted, and the toes of his right foot was frost-bitten, and his face was swollen and inflamed, and the feet of Paul were cut and bleeding.

Solicitor-General (Millar) and Gloag, for the Crown.

Young and Scott for Wat.t

Moncreiff, D-F., and Maclean for Kerr.

Scott objected to the relevancy of the second and fourth of the major propositions in the libel, and also to the fourth of the minor propositions. The second of the major propositions was the following:—“ — The cruel and barbarous usage, by a person or persons exercising command or authority in a British ship, of persons on board the said ship, especially of boys of the age of twelve or there by, or other tender age.” He contended that it set forth nothing which could be regarded as a criminal act. The “cruel and barbarous usage ” might have been exercised on seamen requiring very severe discipline; it might have been exercised upon pirates taken upon the high seas. No doubt the usage was called “ cruel and barbarous, but still there was nothing to describe a criminal act, and nothing to describe the motive by which that act was done. As to the fourth of the major propositions—viz., “ the wickedly, and feloniously, and culpably, and recklessly compelling any person or persons on board a British ship to leave the said ship when embedded in ice on the high seas, and at a distance of twelve miles or thereby, or other great distance from land, slenderly and insufficiently clothed, and without adequate food, in order to proceed on foot across the ice towards the shore, to the manifest danger of their lives, where by the said persons, or any of them, are bereaved of life, or are put in danger of their lives and injured in their persons, and especially when such persons are boys of the ageof twelve years or there by, or other tender age,” he maintained that there was, in the first place, set forth no duty incumbent on the captain to supply food and clothing to the parties in question; second, it was not said that there was either food or clothing to give them; and, third, there were many cases in which such an act as here described was not criminal. With regard to the fourth and last of the minor propositions, he said that, on reading it, the jury must endeavour to get rid of the effects on their minds of

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this very sensational description. He contended that the boy M'Ewan's slip on the ice might be caused by his own carelessness, as was done at Duddingston Loch many a day; and as regarded the other boy M'Ginnes, who was unable to proceed, he supposed that was to be connected with the insufficient clothing and want of food; but there, again, there was an entire absence of averment of duty on the prisoners of supplying the boys either with food or clothing.

Scott's argument was adopted for the panel Kerr.

Gloag A.-D. supported the indictment on the general principle that if a delinquency had been committed, the common law of the country was strong enough to punish for this crime. As to the first objection taken to the major charge of “cruel and barbarous usage,” he said these words were general terms which, he thought, had been sustained in previous indictments to describe conduct directed against a person as criminal. Cruel and barbarous usage could not be alleged unless injury resulted from the conduct, and it was said in the minor charge that the treatment was such that the victims were subjected to great pain and suffering. The second objection was directed to the offence charged of compelling a person to leave a ship, and he had undertaken to prove that that was done wickedly and feloniously, and culpably and recklessly— done to the manifest danger of the lives of the persons.