Trials of Traversers before the Recorder
The Prosecutor deposed, that he is not involved in business though an house-keeper, who lives on Galway's walk.The traversers came to his house on the day laid in the indictment. Wilson, an Officer in the Revenue, introduced the prosecutor to the traverser Swan, as a relative to Major Swan. The prosecutor shewed him all his concerns, which he diligently searched; conceiving them authorised to inquire, he complied with every thing they desired. About half past five o'clock the ponies retiredpreviously on inspection of the outside gate, it appeared to exhibit a copper, calculated certainly for brewing, but, as far as he knew, not connected with distilling. It might contain three or four barrels of any liquid, but had never been used by him in any illicit business. He merely purchased it with a view to make money of it. It was discovered in a loose lumber-room: It neither committed wash, potale, or any thing appertaining to a distillery.
Wilson, on being interrogated, said, he dared to say, he had seen this machine before, and discovered sweet water in the adjacent concerns.
The prosecutor further deposed, he had been for the six previous years in possession of those concerns. Or a question from the Recorder, respecting the use this copper was originally intended forthe witness modestly hesitated, but afterwards asserted, that he bought it from his brother, with an exclusive view of selling it for a presumed profit.
In a conflict which ensued, the traverser gave the prosecutor a blowSwan swore a tremendous oath in addressing the prosecutor, while cocking a. pistol at him, "If you lay your hands on it, meaning the copper, Iíll blow your brains out."
Wilson shelved no authority, as a Revenue Officer, for his proceedings. It appeared, however, that there was found in an adjacent yard, a kind wash, which indicated strong suspicions of a contraband kind of factory.
The Recorder was of opinion, that from this latter circumstance, there was a probable ground for seizure, and under this circumstance the prosecutor should unquestionably have submitted to seizure, and have sought redress by application to the Revenue Board, if he conceived himself injured. He did not think Swan's conduct justifiable, particularly as it appeared that he was attended by military assistants, whose aid he might have commanded without any harsh, violent, or mistaken exercise of his authority. He was therefore culpable in putting a pistol to the breast of an unarmed man. Wilson had a probable ground of suspicion, that an illicit use had been made of this copper, from the circumstance of discovery of matter, such as wash or material belonging to distilleries, in an adjacent yard; yet, it appeared on the testimony of the prosecutor, that when the copper was seized, he offered the traversers the keys to lock it up until the following day.
The Recorder, however, on the whole, inferred there was, from the variety of suspicious circumstances, probable grounds to suppose the seizure was a lawful one, and that consequently the traversers ought to be acquitted.
The jury notwithstanding, found them guilty.
The Recorder, previous to pronouncing sentence, obverted that the Jury had an unquestionable right to decide as they pleased both as to law and fact, but that from the peculiar circumstances of this case, the Court were unanimous with him, in having the punishment commensurate to the intention of the traversers, who supposed they were merely performing an act of duty; he would, therefore, have each find sixpence and discharged, with this further observation, that if Jurors will take the law from the Bench, they must answer for it to their own consciences.