The crime of these prisoners was of a most heinous description, and fully entitled them to receive that measure of punishment which, by the sentence of the court, they were directed to undergo. They were persons of respectable origin and connexions, and had for some time carried on business in the city of London as merchants. They were tried at the Central Criminal Court, at the March sessions, 1841, on a charge of inciting one Edmund Loose to cast away the ship Dryad.
The indictment contained twenty-six counts and charges: First --"That one Edmund Loose, late of London, mariner, on the 10th of November, in the third year of her present Majesty's reign, being the captain of a certain vessel called the Dryad, the property of Alexander Howden and others, did, with force and arms, upon the high seas, within the jurisdiction, &c,, feloniously, unlawfully, and maliciously, cast away and destroy the said vessel, with intent thereby to prejudice the said Alexander Howden and another, against the form of the statute in such case made and provided; and further, that Patrick Maxwell Stewart Wallace, late of London aforesaid, before the said felony was committed in form aforesaid, namely, on the 1st of August in the year aforesaid, did feloniously and maliciously incite, move, procure, aid, counsel, hire, and command the said Edmund Loose the said felony, in manner and form aforesaid, to do and commit, against the form of the statute in such case made and provided, against the peace, &c.; and further that Michael Shaw Stewart Wallace, late of London aforesaid, before the said felony was committed, &c., did feloniously and maliciously incite, &c., the said Edmund Loose the said felony in manner and form aforesaid, to do and commit, against the form of the statute," &c.
Second count -- The same as the first, but without naming the owner of the vessel.
Third count -- Stated the intention of the prisoners to have been to prejudice and defraud Pedro de Zulueta, and others, the owners of certain goods, laden and being in and on board the said vessel, belonging to Alexander Howden and others.
Fourth count -- The same as the third, but omitting the name of the owner of the vessel.
The other counts stated the said Edmund Loose's intention to be, to prejudice and defraud various individuals, and that the prisoners did feloniously and maliciously incite the said Edmund Loose to commit the said felonies.
The proceedings commenced on Wednesday the 3d of March, when Mr. Jervis, as counsel for the prisoners, took an objection to the proceedings. Edmund Loose, who was charged as the principal felon, did not appear to plead, and he contended, that it was incompetent for the court to try the prisoners upon the indictment, alleging them to be accessories only in the absence of Loose. He admitted that they might be tried for a substantive felony, but that was not the nature of the offence alleged.
The Attorney -general contended that, by the Act 7th Geo. IV. chap. 64, sect, 9, the accessories could be tried in the absence of the principal felon.
After some further discussion, the court ruled that the prisoners could be tried for a substantive felony, according to the statute, and that they might proceed upon the present indictment; but he left the question open, so that the prisoners might have the advantage of a more full consideration of the point.
The Attorney-general then elected to proceed separately with the trials of the two prisoners, and the case of Patrick Maxwell Stewart Wallace was determined to be taken first. The evidence produced in the two cases, however, was exactly similar, and the statement of the facts proved in one of them only will be sufficient to put our readers in possession of all that was material to the inquiries.
The evidence was divided into two classes, the first of which referred to the conduct of the two prisoners in procuring excessive policies of insurance to be effected upon the ship and cargo; while the second related to the demeanour of Loose, the captain of the Dryad, on her voyage, from which it was sought to prove that he had wilfully cast away the vessel.
With reference to the first part of the case, it was shown that the Dryad was a brig, of which one-fourth share belonged to Messrs. Howden and Ainslie, ship-brokers, while the remaining three-fourths were the property of the prisoner Michael Wallace. The latter had purchased his share of a Mr. Gillespie in the year 1838, for 1600l.; and the vessel after that was docked and rendered a first-class ship, an outlay of 600l. having been made upon her. In July 1839, the Dryad was chartered to Messrs. Zulueta and Co., merchants of Liverpool, for a voyage from that port to Santa Cruz, for 300l.: Michael Wallace acted as ship's husband, and he directed Messrs. Howden and Ainslie to effect policies of insurance upon the vessel in 2200l., and upon the freight in 300l. These policies were accordingly effected in the office of the Marine Insurance Company. In the same month, however, other policies were effected in respect of the same ship by directions of the two Wallaces. In the Alliance Insurance Company, a policy for 715l. was effected on goods; in the General Maritime Insurance Company, a policy for 1265l. was likewise effected on goods; in the Neptune Insurance Company, a policy of 700l. was effected on the ship and outfit, and a policy of 687l. on goods; in the Mutual Marine Insurance Company, a police of 600l. was effected on goods; and another policy for 650l. was also effected by Messrs. Bahr and Bearing, of Liverpool. Independently of these policies, an insurance to the amount of 3000l. was also effected by Messrs. Zulueta and Co. at Lloyd's, in respect of the cargo which they sent out by the vessel. The total amount, therefore, insured upon the Dryad and her cargo was 10,117l.; of which, deducting the value of Messrs. Zulueta's policy, and of that effected by Messrs. Howden and Ainslie, 6617l., stood in the names of the prisoners -- a sum far exceeding the real worth of their interest in the vessel and her cargo. The Dryad having arrived at Liverpool, Messrs. Zulueta proceeded to load her with such goods as they wished her to convey to Santa Cruz. About three hundred tons were put on board, and on the 7th of September the vessel sailed from port. When she had gone, the prisoner Michael Wallace informed Stott, an agent whom he had employed, that he had put some goods of his own on board, although it would have been contrary to his agreement with Messrs. Zulueta if he had done so. In January 1840, a claim was sent in to the various insurance offices for the amount of the policies effected as for a total loss of the Dryad. Some conversations took place between Patrick Wallace and Stott, in which the former made use of expressions which seemed to imply that Loose, the captain, had purposely lost the ship, but the greater part of the insurances were paid to the two brothers, and placed to their accounts at the banking-houses where they usually deposited their money. The return of some of the seamen of the Dryad to London, subsequently enabled the parties to the policies to obtain evidence confirmatory of suspicions which they had entertained with regard to the loss of the Dryad; and in the month of November 1840, Patrick Wallace was taken into custody. His brother, Michael, at that time was living in Tredegar-square, Commercial-road; but upon inquiries being made for him, he was found to have absconded, and his house was discovered furnished throughout, but abandoned by its occupants. On the 16th of December, however, Michael was also secured, having been found living in a small row of houses in the outskirts of Lancaster, whither, according to his own account, he had gone that he might not be called upon to give testimony against his brother.
The evidence for which it was sought to prove that the Dryad had been wilfully cast away, a fact which, it may be observed, was necessary to be shown as an ingredient of the offence charged against the prisoners, was as follows:--
Ronald Maxwell said -- I sailed as first mate in the Dryad on a voyage from Liverpool to Santa Cruz. Captain Loose engaged me in Liverpool on the 4th of September, 1839, to go from Liverpool to Santa Cruz, from Santa Cruz to St. Jago, and thence to Swansea. I have commanded a ship in the South American trade, and I have crossed the Atlantic frequently. I have been to the West Indies, and I know the navigation of those seas. On the 4th of September we took in a few cases of hardware and a few kegs of paint. They came from Zulueta' s, and I signed bills for them. From the time I entered the ship to the time we sailed, we took no goods on board except Zulueta's. I locked the ship up at night, and saw her again in the morning. One-third of the hold remained unfilled. After I went on the 4th of September there was no earthenware taken on board, nor were there any cases of flannels, cloth, or prints. There were no barrels of butter, beef, or pork taken on board, except for the ship's use. There were on board two tierces of beef and four barrels of pork. That was scarcely a sufficient quantity for the outward voyage. When a vessel sails for a place such as Santa Cruz, it is usual to take provisions for the homeward as well as the outward voyage. We went out of the dock on the 6th, and sailed on the 7th of September. We had ten hands on board, including the boy and the captain. We went through the North Channel. It is not unusual, according to the wind, to go by the North Channel. Captain Loose ordered me to get tackles rove and coiled in the long-boat, that she might be ready if she were wanted. We had no logline when we sailed. I endeavoured to make one of spun-yarn, but I found that it was too heavy. We had no proper log-line while I remained on board. The log-board was choked when I endeavoured to sound, a short time after we got to sea. I tried to clear it out, but I could not do it. I told Captain Loose of it, and he said nothing particular. The pump was never made to suck. There was a chronometer on board, I think, but I never saw it. I frequently asked to use it, but Captain Loose would not allow me to see it. We pursued our course to the West Indian seas. There is generally a course laid down on the chart as a guide. About longitude 59 deg. W., Loose deviated from the proper track, and steered to the northward. We first made land at Virgin Guarda. I told the captain that I had seen the land, and he came on deck, where he remained several minutes. A few minutes afterwards I observed breakers ahead and low land. The breakers denoted a reef, and the low land was Anagada. We were about five miles from it. I observed it about six o'clock in the morning. I told the captain that I observed breakers a-head, and he jumped out of bed, and came on deck. Benjamin Shooltz was at the helm, and I told him to put the helm down, and put the ship round to keep her off the breakers. The captain then ran to the wheel and put the helm up, and the ship went direct on towards the breakers. Loose took the wheel himself, and remained at it a short time. Two of the crew came into the waist and complained of the captain, and they said that they would take the helm themselves and put the ship round, for they were not going to be lost. Upon this the captain left the wheel and Shooltz took it. He put the helm down again and the ship came round. When the helm was put down, the ship just cleared the breakers. In a few minutes she would have been on shore. When the ship came round, the captain said he did not think she was so near. Before the ship came round, the captain told me to mind my own d--d business, and take the studding-sails down. He also said that he would have me tried for mutiny for taking charge of the ship. This happened on the 17th of October. On the 19th we were on the Silver Keys, to the north of St. Domingo. He ought, I consider, to have gone by the south side of St. Domingo, between Antigua and Guadeloupe, to get to Santa Cruz. The ship ought to have been nearer the shore to avoid the Silver Keys. They are laid down on all the charts I have seen. About half-past six or seven o'clock in the morning, I saw a rock on the larboard bow, about three or four fathoms off. I told this to the captain, and he came on deck. I pointed the rock out to him. The captain said he could not see it. He had his telescope in his hand. The water a-head was discoloured. This indicates a shoal in these seas. One of the crew from the fore-yard called out, "Rocks under the fore-foot!" and I and the captain ran forward and looked over the bow. I saw the rocks, and Captain Loose said, We are lost! we are all lost!" Immediately afterwards the ship struck, and remained fast for fifteen or twenty minutes. Loose ordered the jolly-boat to be hove overboard, and we put tackles over the long-boat to save ourselves. After about twenty minutes she got off. She afterwards struck another rock, and remained upon it a few minutes, but then dragged past it. The captain was putting a "life-preserver" on during this time. By the second rock the rudder was unshipped. We now trimmed the sails, to keep the ship before the wind. I wanted to make a temporary rudder, and I asked the captain to allow me to take some spars to do so, but he refused, and said we were in a pretty state -- a ship at sea without a rudder -- we had better have been all asleep a few days before, and have allowed the ship to run ashore at Anagada. The carpenter at length made a temporary rudder, and on the 20th we got to St. Domingo. Until the 22nd we proceeded along the coast. We ought, in order to avoid the breakers, to have kept further off. We were frequently near them, and the crew had all their clothes packed up ready if the ship should strike. On the 22nd we were near a reef off Cape Hayti, and the jury-rudder unshipped. The captain asked me what was best to be done; I said there was no danger if we were to put in to the harbour. He asked Shooltz and another what they thought, and they said that the harbour was before them, and they thought they could get in. Loose said he would not do so, for he had no pilot on board, and if anything happened to the vessel he should lose the insurance. I then said that we might put out to sea and replace the jury-rudder, and stand in and get a pilot the following morning. The captain went to bed at eight o'clock. I saw a sail about nine on the larboard quarter. I mentioned this to the captain, and he came on deck. I said she was a large ship, probably a man-of-war, and she could give us assistance if we ran down to her. We could have easily gone down before the wind. The captain would not allow us to go down, and he went to bed again. At daybreak we were to the south-east of the entrance of the port. We saw a ship to the north of the port. We were steering towards the reef, and we could see the breakers ahead. They were probably two miles off. Loose was on deck about seven o'clock in the morning. The Dryad was then steering towards the reef, in the direction which he ordered. The ship we saw to the northward fired a gun, and we found it was the Bencoolen. This was to warn us that we were running into danger. The Bencoolen had a union jack hoisted for a pilot, but Loose would not allow me to hoist one, saying if the pilots were too lazy to come off without a signal, they might stay ashore. The Dryad kept the same course until a pilot came on board. When I told Loose that the ship to the northward had fired a gun and hoisted a signal, he said that was nothing to him. The pilot came on board about eleven o'clock in the forenoon. The captain called him aft and showed him the jury-rudder, and asked him if he would take charge of the vessel. He said he would if the crew would work the ship in. He then took us into port. This was on Wednesday the 23rd of October. I left the Dryad on the 2nd of November. I assigned a reason to Loose for leaving the vessel. I was paid my wages (excepting 2l.) by Captain Loose, and I went on board the Bencoolen. [[The witness pointed out on the chart the course taken by the Dryad, and showed the track that he considered she ought to have gone]. There was nothing in the state of the wind or weather to induce the captain to keep the ship so near the shore at St. Domingo.
Benjamin Shooltz examined: In 1839, I shipped on board the Dryad at Liverpool for Santa Cruz. I have recently come from the coast of Africa. I came to England seventeen days ago. Captain Loose engaged me. We had very little provisions on board, and we were poorly furnished with spare spars, &c. The captain frequently told me to keep the longboat always in good order and ready for sea at once. We hove in sight of Anagada on a Thursday. I saw the breakers and called Maxwell the mate. We were about four or five miles from them. I received orders from the mate to put the ship round, and he then went to the captain. When I brought the ship round, she was going from the breakers. When the captain came on deck, he cursed me, and asked me who gave me orders to put the ship about. He took the helm and brought the ship round towards the reef again. I said to the captain, "I took the orders myself, and I did not wish to put the ship on a reef in broad daylight." When the captain put her up again, the crew all came aft to him, and asked him what he intended to do. He did not keep the helm long, and I went to it when he went below, and put it down, and the ship went away and cleared the rocks. If she had gone on two minutes longer, she would have been on the rocks. Two days afterwards we were on the Silver Keys. We saw breakers ahead, and a lump of rock a little on the larboard side. I had the helm at this time. When I saw the Silver Keys, I hailed the mate, and he went down and informed the captain. When the captain came up, he said he did not see the rock. He had his glass then. I saw the rock with my naked eye. A man on the fore-yard, about five minutes afterwards, shouted out that there was about four feet water under the keel, and he saw rocks. The captain was on deck, but he did nothing. Shortly afterwards the vessel struck. The captain was very frightened at the time, and cried out "What shall we do, lads?-- we are lost!" The longboat was lying on the gripes off the ship, and the jolly-boat lay upon her. This is the usual way they are stowed away. When the ship struck, the rudder unshipped. This was about seven o'clock in the morning. The captain went to the helm shortly after the Dryad struck. The day before we made St. Domingo, the strap came off the jury rudder. At that time the captain's life-preserver was on deck. The crew told him if he put that on, they would cut it all to pieces. We were then five miles from Cape Hayti. There was no reason for keeping so close to the shore as we did. I remember the night before the gun was fired; that night we kept out to sea. We were about five miles from the breakers when the gun was fired, and we were then steering direct upon them. The ship's course was not altered when the gun was fired. The previous night the captain asked me and Davis, the second mate, what we should do, as we had got no rudder. We said that the best way would be to keep out to sea, and stand in for Hayti in the morning. We had not signalled for a pilot on board the Dryad. When the pilot came on board, he easily put the ship round and took us into the harbour, where we remained nine or twelve days. Many complaints were then made by the crew to the captain. We made an effort to be permitted to leave the ship at St. Domingo, but we were not allowed by the captain. The mate left the Dryad on the 2d of November. On the 5th we sailed from Hayti, and on the 10th the Dryad struck on the reef at Cape Cruz. About ten minutes before, we struck on a small lump of rock. We saw the reef all the day before, but the ship's course was not altered to avoid it. I was acting under the orders of the captain when the ship struck. He was on deck all the night. She struck about half-past two o'clock in the morning. The captain never was on deck all night before. A man named Simpson was at the helm, and the captain told him to run away, or he would get hurt. The crew came on deck and spoke to the captain. The ship did not make a drop of water that night. I sounded one of the pumps frequently. No orders were given to the crew to get the ship off the reef, and he went below. In my judgment, the ship might have been got off, as the vessel was making no water. The captain left all the sails up. The crew were willing to work if they had been directed. If an anchor had been put out and her sails dowsed, she might have got off. A canoe came off to us. There were Spaniards in it, and the captain asked if there was a town near, and he was told there was one about thirty miles over the mountains. The Spaniards also said there was a consul ashore. The captain went ashore in the boat. He came back and said he had been to the Spaniard's house. The crew, with the exception of Simpson and myself, went ashore. The ship made no water at this time. When the captain was ashore, we made sail with the other boat and went round the ship. At her stern we found a cigar-box and a bolt attached to it. The water was clear, and we took it up. We found several letters and some leaves of the log-book in it. Loose came back from the shore that night, and the next day he had a conversation with me and the crew. He took the long-boat with him and we all went to Jamaica, where the protest was noted. We kept the letters, and at one time produced them to the captain, and he snatched them away from Simpson, and gave him four pound-notes for them. This was two days after we got to Jamaica. After we went to Jamaica, none of us went back to the vessel. Before I left the ship I found a hole under her stern. No rock could make such a hole. It was big enough to admit my shoulders. The previous day she made no water, and I told the captain so. It was on the evening of the next day I discovered the hole. The weather was not at all boisterous then. The position in which the ship was could not account for the hole. I sounded her after finding the hole, and found five feet of water in the hold. The next day we left for Jamaica. The vessel could then have been got off. I saw the hole from the inside. It was in the state-room, which was locked. The captain saw it plainly, being in the cabin where it was. From the time we struck upon the Silver Keys the crew kept their clothes in bags in readiness to leave the vessel, expecting she would get upon a reef. It is my opinion that the ship was wilfully cast away by the captain.
The witness, in cross-examination, admitted that he had sworn to the protest which had been drawn up at Jamaica, and had stated in it that he believed the vessel to have been accidentally lost. He stated that the effect of the contents of the papers which he had picked up when the vessel was on the rocks was an intimation from the captain that he had cast away the ship intentionally; but he also said that the cigar-box in which they were contained lay at a depth of six fathoms, and that he had fished it up with an oar. He imagined that Loose had himself cut the hole which was found in the stern of the ship.
Other evidence was given, from which it appeared probable that Captain Loose was dead, and by which the various sums of money received on account of the policies of insurance were traced to the possession of the two prisoners.
Mr. C. Phillips, on behalf of Patrick Wallace, addressed the jury in a powerful speech, urging that the evidence of Shooltz was not worthy of credit, and that without that evidence the case was incomplete; and also contending that the policies of insurance which had been effected were by no means so excessive in their amount as to lead to the positive conclusion that they had been effected with a view to the destruction of the vessel. He alluded with great force to the death of Loose, and his consequent inability to put such questions on the cross-examination of the witnesses as might lead to the development of the truth; and he urged that the jury having found that a protest was made at Jamaica, describing the loss of the vessel to have been accidental, which was signed not only by Shooltz, but by four other persons besides him, and the captain, they would take that to be the truth, and would on that ground acquit the prisoner.
Lord Chief Justice Tindal summed up the case to the jury, and after some consideration they returned a verdict of "Guilty."
On the next morning Michael Wallace was put upon his trial; but as we have already stated, the facts proved against him were so precisely similar to those which were adduced in evidence in the case of his brother, that they need not be detailed. At the end of the second day's trial, after a speech to the jury from Mr. Jervis, who appeared for the defence of this prisoner, in which he again urged the same topics which formed the grounds of defence in the former case, a verdict of Guilty was returned.
The two brothers were then placed at the bar to receive sentence.
The Lord Chief Justice in delivering judgment said that it would of course depend upon the decision upon the point of law whether the punishment which he should direct them to undergo would be carried out. The prisoners had been found guilty, after fair and impartial trials before intelligent juries, of the offence of having feloniously incited one Edmond Loose, the captain of the ship Dryad, wilfully to cast away that ship for the purpose of defrauding the underwriters. He felt bound to say that he was perfectly satisfied with the verdicts which the two juries had found in the respective cases of the two prisoners. It was an offence of very grave importance, tending to check the spirit of mercantile adventure, and the commerce of this country, because it was aimed at defrauding those persons upon whose responsibility much of that adventure and commerce depended. It was to be observed that the loss in this case had fallen upon the underwriters, and the checking of their business might produce serious results. The effect of a policy of insurance was to cast upon a company a loss which, if it fell upon one individual only, might be ruinous in its consequences; and it could not but be observed that the numerous insurance companies of this city could no longer exist unless their proceedings were protected by the law, and offences directed against their fair and honest gains were punished with its just severity. In this case there were circumstances of great aggravation, because the result of the foul crime which had been committed might have been not only the loss of property, but of life. The penalty applied by the law to this offence was no longer capital. He rejoiced at that, but at the same time he felt that it was his duty to visit the offence of the prisoners with a severe punishment. The sentence of the court was, "That the prisoners should be transported beyond the seas for the respective terms of their natural lives." The prisoners were then removed from the bar.