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![handle is hein.slavery/ssactsengr0430 and id is 1 raw text is: THE GENEROUS
The Court accordingly pronounced against thb cause shewn by Lord Cochrane,
and in favour of the right of the whole fleet to share in the head-money.
[322] GENEROUS. Nov. 26, 1818.-Revenue cases are usually transmitted in a
very incommodious form from the Vice-Admiralty Courts. The system of the
revenue laws is of a very unbending nature, and the clearest proof of necessity
is requisite to excuse a violation of them.
Judgment-Sir W. Scott: This case (a revenue case) comes from the Vice-
Admiralty Court of the island of Barbadoes, and is transmitted in the very incom-
modious form in which such cases usually travel from the Vice-Admiralty Courts.
The proceedings are there instituted, referring to all or a great number of the navi-
gation laws, and alleging that upon a violation of all, or some or one of them, the
property ought to be condemned. The judgment of the Court pronounces a general
sentence of condemnation, if the property is deemed liable to condemnation upon
any ground, but without any specification transmitted here of the particular ground
on which it has been so held ; and of course the drudgery is imposed upon those
who have to conduct these appeals in this Court, and on the Court which has to
review the judgment, of hunting through the whole body of statutes enumerated,
in order to find out, conjecturally, on which ground the condemnation passed. If it
be necessary or proper (as it may be) to enumerate all these statutes in the initiation
of the cause, in order that the Crown may have the benefit of any criminal fact that
may be disclosed upon the evidence that is to follow, it is, I think, no unfair expecta-
tion on the part of this Court, that it should appear in some form or other in the
conclusion of the cause, what the particular facts were on which the Court below
[323] arrived at that legal conclusion ; otherwise this Court and its practisers are
driven to the necessity of travelling through a body of laws and a collection of facts
that may be foreign to the real foundation of the judgment, and which had been
dismissed out of all consideration by all parties, as totally irrelevant to the real sub-
ject of controversy. It would be a great relief and satisfaction to this Court if this
intimation of its wish should meet with more attention in the proper quarters than
it has hitherto had the good fortune to receive.
It is a case upon the revenue laws-a system, as it has been rightly observed, of
a very unbending nature, framed for the protection of great interests, and upon very
jealous views of preventive policy, and this policy is to attend it in its actual adminis-
tration. It is not the private opinion of the judge upon the policy that is to guide
his public judgment ; he must follow where the law leads, in a general unbending
course. But the law itself, and the administration of it, must yield to that to which
everything must bend-to necessity. The law, in its most positive and peremptory
injunctions, is understood to disclaim, as it does in its general aphorisms, all inten-
tion of compelling them to impossibilities ; and the administration of law must
adopt that general exception in the consideration of all particular cases. In the
performance of that duty it has three points to which its attention must be
directed : in the first place, it must see that the nature of the necessity pleaded be
such as the law itself would respect ; for there may be a necessity which it would
not. A necessity created by a man's own act, with a fair previous [324]
knowledge of the consequences that would follow, and under circumstances
which he had then a power of controlling, is of that nature. Secondly, that the
party who was so placed used all practicable endeavours to surmount the difficulties
which already formed that necessity, and which on fair trial he found insurmount-
able. I do not mean all the endeavours which the wit of man, as it exists in the
acutest understanding, might suggest, but such as may reasonably be expected
from a fair degree of discretion, and an ordinary knowledge of business. Thirdly,
that all this shall appear by distinct and unsuspected testimony ; for the positive
injunctions of the law, if proved to be violated, can give way to nothing but the
clearest proof of the necessity that compelled the violation. Subject to these
observations, we enter upon the facts of the case.
The ship was seized at Barbadoes immediately on her arrival there in July 1816.
The history (as appearing in the evidence) is, that she had been the French ship
Genereux, taken on the capture of that island ; that she was purchased, after
condemnation at Barbadoes, by John Lawless, residing at Guadaloupe, who chartered
her to Forman, another merchant, late resident there, for 9000 dollars, to carry a
2 DODS. 322.
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