The Press-Gang Afloat and Ashore | Page 6

year one William Kingston, pressed in the Downs--a man who hailed from Lyme Regis and habitually "used the sea"--was, notwithstanding that fact, discharged by express Admiralty order because he was a "substantial man and had a landed estate." [Footnote: Admiralty Records 1. 1473--Capt Charles Browne, 25 March 1726, and endorsement.]
The incident of 1776, known as the Duncan case, occurred, or rather began, at North Shields. Lieutenant Oaks, captain of the press-gang in that town, one day met in the streets a man who, unfortunately for his future, "had the appearance of a seaman." He accordingly pressed him; whereupon the man, whose name was Duncan, produced the title-deeds of certain house property in London, down Wapping way, worth some six pounds per annum, and claimed his discharge on the ground that as a freeholder and a voter he was immune from the press. The lieutenant laughed the suggestion to scorn, and Duncan was shipped south to the fleet.
The matter did not end there. Duncan's friends espoused his cause and took energetic steps for his release. Threatened with an action at law, and averse from incurring either unnecessary risks or opprobrium where pressed men were concerned, the Admiralty referred the case to Mr. Attorney-General (afterwards Lord) Thurlow for his opinion.
The point of law Thurlow was called upon to resolve was, "Whether being a freeholder is an exception from being pressed;" and as Duncan was represented in counsel's instructions--on what ground, other than his "appearance," is not clear--to be a man Who habitually used the sea, it is hardly matter for surprise that the great jurist's opinion, biassed as it obviously was by that alleged fact, should have been altogether inimical to the pressed man and favourable to the Admiralty.
"I see no reason," he writes, in his crabbed hand and nervous diction, "why men using the sea, and being otherwise fit objects to be impressed into His Majesty's service, should be exempted only because they are Freeholders. Nor did I ever read or hear of such an exemption. Therefore, unless some use or practice, which I am ignorant of, gives occasion to this doubt, I see no reason for a Mariner being discharged, seriously, because he is a Freeholder. It's a qualification easily attained: a single house at Wapping would ship a first-rate man-of-war. If a Freeholder is exempt, eo nomine, it will be impossible to go on with the pressing service. [Footnote: It would have been equally impossible to go on with the naval service had the fleet contained many freeholders like John Barnes. Granted leave of absence from his ship, the _Neptune,_ early in May, "in order to give his vote in the city," he "return'd not till the 8th of August."--Admiralty Records 1. 2653--Capt. Whorwood, 23 Aug. 1741.] There is no knowing a Freeholder by sight: and if claiming that character, or even showing deeds is sufficient, few Sailors will be without it." [Footnote: Admiralty Records 7. 299--Law Officers' Opinions, 1756-77, No. 64.]
Backed by this opinion, so nicely in keeping with its own inclinations, the Admiralty kept the man. Its views, like its practice, had undergone an antipodal change since the Kingston incident of fifty years before. And possession, commonly reputed to be nine points of the law, more than made up for the lack of that element in Mr. Attorney-General's sophistical reasoning.
In this respect Thurlow was in good company, for although Coke, who lived before violent pressing became the rule, had given it as his opinion that the king could not lawfully press men to serve him in his wars, the legal luminaries who came after him, and more particularly those of the eighteenth century, differed from him almost to a man. Blackstone, whilst admitting that no statute expressly legalised pressing, reminded the nation--with a leer, we might almost say--that many statutes strongly implied, and hence--so he put it--amply justified it. In thus begging the question he had in mind the so-called Statutes of Exemption which, in protecting from impressment certain persons or classes of persons, proceeded on the assumption, so dear to the Sea Lords, that the Crown possessed the right to press all. This also was the view taken by Yorke, Solicitor-General in 1757. "I take the prerogative," he declares, "to be most clearly legal." [Footnote: Admiralty Records 7. 298--Law Officers' Opinions, 1733-56, No. 102.]
Another group of lawyers took similar, though less exalted ground. Of these the most eminent was that "great oracle of law," Lord Mansfield. "The power of pressing," he contends, "is founded upon immemorial usage allowed for ages. If not, it can have no ground to stand upon. The practice is deduced from that trite maxim of the Constitutional Law of England, that private mischief had better be submitted to than that public detriment should ensue."
The sea-lawyer had yet to be heard. With him