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vent the regular flow of the tide and passage of his Majesty's subjects in their vessels through Yantlet Creek.

I am, Sir, your most obedient and humble servant,
" W. L. NEWMAN, City Solicitor.

Guildhall, 12th June, 1823."

Mr. MARRYAT. To which we answered by the letter which has been read.

Mr. POLLOCK. The answer to which letter of our's was by the Streamer coming.

Mr. Baron GRAHAM. Shall you go any further with your case.

Mr. MARRYAT. Yes, my Lord; we propose to go into the construction of the bridge, and to show the impossibility of its ever having been intended to be used for the purposes of navigation.

Mr. Baron GRAHAM. I hope you will spare me the trouble of going into all the particulars of the dimensions of this bridge: if you do intend to go into them I must postpone it until to-morrow morning.

Mr. MARRYAT. It must be gone into, my Lord, first or last; we can take it afterwards if your Lordship pleases.

Mr. Baron GRAHAM. I cannot go into the architecture of this bridge at this hour of the day.

Adjourned to to-morrow morning, at nine o'clock.

Thursday 26th August, 1824.

THE Jury were called over and answered to their names.

Mr. Baron GRAHAM. Before you proceed I will tell you what has occurred to me to propose on the present occasion, if you have no objection, and I do not see any to it myself. I do not know in what way you mean to make use of the discovery of the bridge: I will give you credit for the application of the argument you proposed to apply to the bridge, but it occurs to me that is properly the case on the other side, the Defendants standing upon their own justification to this indictment; for so it is when they open or prove any thing respecting the original construction of the bridge and the nature of it, which the Counsel for the prosecution think they can oppose by evidence, I should think it then will be their turn to give evidence in answer to the evidence given by the defendants; perhaps by that mode we should save a great deal of time.

Mr. GURNEY. I have no objection at all, my Lord, to that course. Mr. Baron GRAHAM. For at present we should be going on quite blindfold, not knowing what use is to be made of it hereafter. Mr. MARRYAT. If your Lordship pleases I have no objection.

[JOHN SMITH sworn. Examined by Mr. MARRYAT.]

Q. How long have you known the spot called Grain Bridge?--A. About seven or eight and thirty years.

Q. During that time have you known craft of any description float over from Yantlet Creek to Colemouth, or from Colemouth to Yantlet A. Never.

Q. Have you known any

craft or boats or any other description

of vessel lifted or hauled over it?-A. Yes.

Q. What description of boats?-A. Small skiffs and six-oared galleys.

Q. At different periods have you known this?—A. At the spring tides at high tides.

Q. At high tides?-A. Yes.

Q. Have you known it in different instances?—A. Yes.

Q. Lifted or hauled over in spring tides and in high tides?—A. Yes. Q. Were they empty or laden when they were so lifted or hauled over?-A. Empty.

Q. What description of article was taken out before they were lifted over?—A. Spirits I have seen lying on the road many times. Mr. Baron GRAHAM. Spirits in half ankers?—A. In half ankers. Mr. MARRYAT. Have you seen any thing at any time lifted or hauled over that had not been a smuggling-boat?—A. I saw a skiff when Alderman Wood was there.

Q. When was that?-A. Five or six years ago.

Q. That was when the Alderman was Lord Mayor?-A. When he was Lord Mayor.

Q. This Indictment originated about that time?—A. Yes.

Q. And he was hauled over ?—A. No, he was not hauled over; he got into the boat again when launched on the other side; he got out long before it got there.

Q. How long back have you seen smuggling-boats hauled over?— A. Five or six and twenty years ago.

Q. And several instances?-A. Yes; I have been out frequently and I have seen it; at two o'clock tides they have done it.

Q. You have been Surveyor of the Highways of the Isle of Grain for many years?-A. For twenty-four years past.

Q. Have you repaired the road in the Isle of Grain ?—A. Yes; this very part of the road that is in Grain to the centre of the place where it is now cut up, where the parishes meet.

Q. Did the adjoining parish of Stoke repair the other side?—A. Yes; they repaired it to an inch: I have met the Surveyor there often. Q. With what materials did you repair?—A. With cockle-shells. Q. Did you ever repair with any thing else during the last four and twenty years?-A. No, nothing.

Q. Has any thing else been carried on except cockle-shells during the twenty-four years you have been Surveyor ?-A. No, nothing at all.

Q. Has any thing been done to raise the road-way there, or merely raised when occasion required?—A. Nothing raised, but merely a covering of two or three inches when required-just repaired to fill the ruts up. I do not believe there are six inches of cockle-shell to be found in any one part of the road between the walls at the present

moment.

Q. Is the road at Grain Bridge higher than the other part of the road at Grain ?-A. Yes, a little.

Mr. Baron GRAHAM. There is a little elevation.

Mr. MARRYAT. Somebody mentioned yesterday a wharfing to support a part of the road.-A. Yes, there is.

Q. Has it been there ever since you can remember?-A. Yes, it has. Mr. GURNEY. The model will show it: there is a little planking and walls to show it.

Mr. POLLOCK. On both sides, my Lord.

Mr. Baron GRAHAM. A little wharfing on both sides.

Mr. MARRYAT. And you say that has been there as long as you remember?-A. Yes.

Q. You have told us that you were Surveyor of the Highways: did you know of those barges coming to make this opening till they actually came?—A. Not until they came.

Q. Without going into particulars, did you go with your warrant to resist it?—A. Yes; I stood on the road till they picked me down. Mr. MARRYAT. They picked a sort of pedestal, my Lord. Mr. GURNEY. Yes; and it required a good large one too.

Mr. MARRYAT. What was the depth of the cut before the City began to cut the water-way in the Yantlet ?-A. On the Thames side? Q. Yes, the Yantlet side.-A. Two foot, not much more.

Q. I am speaking of close up to the bridge.-A. Yes, it was cleaned out to keep our stock apart.

Mr. Baron GRAHAM. About two or three feet?-A. Yes.
Q. When was it cleaned out?-A. A few years ago.

Mr. MARRYAT. Once, or more than once, in your time?-A. I have cleaned it out twice in my time since I have had the land.

Q. You have not been an occupier any long time I should think ?— A. Within these thirteen years.

Q. To keep the stock apart?-A. To keep Mr. Mackay's stock and mine apart.

Q. To keep his on the one side, and yours on the other, separate ?— A. Yes.

Q. At the joint expence of yourself and Mr. Mackay?-A. Yes. Mr. GURNEY. I have nothing to ask him.

Mr. MARRYAT. I can show you that this would be of no use, if deepened as much as possible.

[Mr. JOHN HUGGINS sworn.

Examined by Mr. POLLOCK.]

Q. I believe you are a Hoyman, and have been long acquainted with the Thames and Medway navigation?-A. Yes.

Mr. MARRYAT (to Mr. Smith.) Has any thing occurred to the seawalls since the deepening?-A. The sea-walls, where they have cut, are a little caving by cutting where they have cut; they are a little slipping down where they have cut and widened the creek.

Q. How much wider had they made it than it was before ?-A. A dozen feet, I dare say; it was not above eight feet wide before, and now it is twenty.

H

Mr. Baron GRAHAM. The channel itself?-A. Yes, at that part. Mr. MARRYAT. Are the sea-walls all beginning to cave and slip down?-A. Yes, you may see that it is a little slipping under the wall by its being deepened.

Q. What depth have they made it there?-A. Level with the other creek on the Colemouth side.

Q. To what depth is that dug now ?—A. I suppose to the depth of five feet.

Mr. POLLOCK (to Mr. Huggins.) How many years have you been acquainted with the Thames and Medway navigation ?—A. Nearly thirty years.

Mr. Baron GRAHAM. Both the creeks?-A. Both the creeks. Mr. POLLOCK. Have you seen the creek as the City have left it now, as they have widened and deepened it ?-A. I have.

Q. To what extent do you consider it will be useful?—A. Not any in my opinion.

Mr. Baron GRAHAM. We are going into a head that extends beyond the present Indictment; I cannot look to the consequences. Mr. GURNEY. I do not object to it.

Mr. MARRYAT. I will do just as your Lordship pleases; I am ready to show it can answer no useful purpose. Mr. GURNEY. I do not object to it.

Mr. PLATT. But the learned Judge does.

Mr. Baron GRAHAM. You are going to the inutility and impolicy of the thing, whereas you are standing upon your Common-Law right, and you are only bound to support your own case.

Mr. GURNEY. This may become a very important question; in one case any person may abate a public nuisance; in another case, the City of London, as Conservators, however neglectful they have been, they are bound to support the navigation. I maintain this is an ancient water-way, and I undertake to make that out, and part of that may be by showing its great utility. I am prepared to show its immense utility, and its necessity; there are many lives lost every year for want of it,-many.

Mr. Baron GRAHAM. Then that is a sort of evidence they must use to meet your justification.

Mr. POLLOCK. Probably if we are obliged to go into evidence hereafter about the bridge, this evidence may be superadded to it. Mr. MARRYAT. I bow to your Lordship's judgment.

Mr. POLLOCK. We will reserve it to another period.

Mr. Baron GRAHAM. It may be a very serious question, whether the question of public utility is necessary: I expect to have a justification of the right; the other is a Parliamentary consideration.

Mr. MARRYAT. Yes, my Lord, it is a Parliamentary consideration; then, my Lord, for the present, we will rest the case here.

Mr. GURNEY.

MAY IT PLEASE YOUR LORDSHIP,

GENTLEMEN OF THE JURY,

I HAVE NOW, Gentlemen, to beg your patient attention on the part of the Defendants, who are brought here to litigate a question of very very great importance. My learned friend, on the part of the Prosecution, has stated it to you to be a case of great importance to those whom he represents; personally, to the gentlemen whom I represent upon the present occasion it is a matter of no importance, but to the public I undertake to show that it is a question of great moment. The question is, whether the road now under consideration be an ancient immemorial road: that is the question, not whether there is, or whether there has been, for a considerable time past, a road subject to certain interruptions at certain times; but whether there has been such an ancient and immemorial road as obstructed the passage of the water from the Thames to the Medway, and has interrupted that passage in such a way as to prevent its being navigable? A public highway by water is as much a public highway as a public highway by land; it may be as ancient, it may be as important.

My learned friend, to my utter astonishment, in the course of his address to you, asked why this ancient highway, as he called it, by land, was to be sacrificed to a highway by water? Gentlemen, I am calling for no such sacrifice, I am desirous of restoring things to the state in which it is demonstrable that they were within the time of legal memory; I am desirous to have the one united with the other, and that the public shall have the use of both.

My learned friend has stated, that until this bridge was discovered, no man living had ever dreamt that there ever had been a bridge at the spot in question. Gentlemen, I was again astonished at my learned friend's statement, because I knew that the gentleman next me, the City Solicitor, after a long investigation, had several years ago reported to the City of London that formerly there had been a bridge, in consequence of which, they were determined to dig to find it, and they dug avowedly for that purpose. I cannot help suspecting that my learned friend's clients had some notion that there had been a bridge, and therefore they were desirous of having this question tried without any digging taking place.

I was also not a little surprised to hear it surmised, that there was any thing uncivil or uncourteous between the gentlemen in question. These matters have for many years been under discussion; there has been much intercourse between the parties; I have seen it, and I never saw intercourse upon a subject of dispute more civilly and more courteously conducted than this has been on both sides; but as the City were advised that there had been an ancient bridge there, to which they were led not only by the name, not merely by the appearances of the place, but also by other information, they resolved to dig for the purpose of finding the bridge; that was accordingly done, and at the precise spot of which they had been informed, they did find it. If this cause had been tried without that discovery having been made,