Star. — London, England, 1822-03-28 00:00:00

• . . that twelve persons could have their . prejudice? It was such a consideral Lord Coke say, moreover, that . was a principal cause of challenge. necessary conclusion in a case like it was unnecessary for him to inform mild not but advert to the Bill nion of the Judges, which bad been introduced by Mr. Fox, and he only regretted that the principle o f that excellent Bill was not more frequentlr and more strictly adhered to. The House must be aware, that by that Bill the Judges were made Judges of the law only, and the fact was left entirely to the considera tion of the Jury. He knew no greater security to the liberty of the Press than that Bill ; but in the case of the Petitioner it was completely disregarded and set at nought ; this mischief, he could assure the house, vas not one of his own imagination, but one which actually took place ; and he felt happy in stating facts which he knew to be true, as he had them both from the Foreman of the Jury, and several bystanders, who were prepared to verify them. As soon as the Jury were sworn, the Counsel for the prosecution got tip aid told them, that the publication, of utteting which the prisoner stood charged, had been already but two days before proved to be a libellous one, and it was, thetefore, unnecessary for him to go on. Now he (Dr.l.usbington) would ask, how the prisoner's Coun sel, if he had not been present on a former day, could have possibly made any reply to the case for the pro secution? This was a great evil: but he had still a greater evil to complain of, and that was, the conduct of the Judge on the trial. He must say, that his con duct on that occasion was not that of a strict, upright, aa,l impartial Judge. The Judge, in summing up, told the Jury, , t that he could not, under these cir cunistances, see how they could form an opinion in . - consistent with that which they had formed a few days, before" (Hear). —It would have been more consistent with his duty as Judge, to endeavour to remove preju dices; but instead of that, he rather increased them, by urging the Jury to be consistent with themselves. Of this conduct, he (Dr. Lushington) heavily com plained, and he thought the Hon. Gentlemen oppo 7 site (the Attorney and Solicitors General) should come forward manfully at once, and admit the impropriety of such conduct. He thought the present case one of peculiar hardship. Supposing the Hon. Gentle men opposite were concerned in the prosecution of two or three individuals, and that one of them was acquitted, he would ask them, would they expose, themselves to a second defeat, by continuing the same Jury ? He knew they were much too wise to run such a risk : if such a course would not then be adopted for the Crown, where the risk was acquittal, a fortiori, it should not be adopted in the case of the prisoner, where his liberty was at stake. This unfor tunate individual, who was only seventeen years of age, gat under the fangs of this Soc;py, and became one of the victims, by the prosecution instituted against him. He applied for a list of the array, which was refused his, ; though in cases of misde meanour, where there was sufficient reason for the suspecting undue prejudice, it was usual for the Judge to order it to be given. This individual, he thought, had the strongest reason to complain, and a just claim on the interference of the House. It was not unrea sonable to say that another Jury, in all probability, would have come. to a different conclusion, when it was considered that even the Jury who tried the Peti. tioner, and who had already prejudged the case, de.' liberated for thirty-five minutes before they pro flounced him guilty, and after all recommended him to mercy ; and perhaps the verdict of this Jury would have been different, if they had not been compelled by the Judge to be consistent with themselves. There was another complaint of the Petitioner to which he could not but advert, the severity of the sentence and the punishment afterwards inflicted; this individual and two other shopmen of Carlile's, were sentenced all to severe punishment, but one of them particularly, who was sentenced to two yeats imprisonment, and to find security for his good behaviour for life— (Hear, hear)—and, after being committed the punish ment of hard labour was superadded—( Hear ). Now, during his experience of 27 or 28 years at the Bar, he never knew an instance of such punishment being inflicted by any Court, for such an offence—for having promulgated opinions on which all men differ,' and on which, if it were possible to dive into the hearts of those who sat in that House, perhaps no two agreed. This treatment he (Dr. Lushington) complained of as unjustifiable, and thought some remedy ought to be applied. He could not conclude without troubling the House with a few observations on the Association calling itself Constitutional. He thought this Society productive of infinite mischief, and defeated its own object ; it instituted prosecutions on trifling and absurd cases, and disseminated doc trines which would otherwise have remained in obli vion, and which they themselves wished to suppress. Such prosecutions ought to be vested only in responsible hands ; and he was the more convinced of the futility of any other persons assuming this power, when he recollected that that excellent and worthy character, Sir Samuel Shepherd, by instituting a prosecution against Hone, only raised him from obscurity to dis tinction, and disseminated his doctrines from one end of the empire to the other—(Hear).—That duty ought not to be taken from the Officers of the Crown, who possessed the talents and the wisdom necessary for the selection of the proper objects of prosecution; when it was once taken from their hands it would be difficult to tell where it would stop. This Petition, though it came from a low and miserable individual, yet deserved the serious attention of the House, be. cause its consideration also involved that of the best safeguard of the Constitution—Trial by Jury; and he could not but entertain serious apprehensions for the safety of, that glorious Constitution, when he saw the military power. brought into use almost on every occasion, and death ensue—when he saw a publica tion sanctioned by Government, which stated with impunity that the Juries of this country could not be trusted—and when lie heard it asserted in that House, that military power was essential to civil lib er ty (--(Hear).—Look also to the late innovations on the principles of the Constitution in the Six Acts —(Hear).—He implored the House to stand for ward and steadily protect that institution, or it would soon cease to be, in practice, the ornament of the and the defence of the People. SOLICITOR-GENERAL said he. rose to op motion, and in the observations he had to he would not imitate the warmth of his Hon. this publication, who _ —*fiance ; 5... when confined in Dorchester jail, said, that nothing could prevent him from disseminating his blasphe mous doctrines ; Ali though • he could not be the medium of their dissemination himself, he would em ploy others sind even if they , were convicted, he would still hire low perms, without means or cha racter, who would be ready to prostitute themselves to his wicked pnrPoses. He was as good at his word; he did employ others, and first made his sister the medium of continuing the same iniquitous course. — After her he hired low persons for the purpose of continuing the same blasphemous traffic ; every effort WAS made to suppress these; and every Society in the Metropolis called upon him and his colleague to put them down; but every one was aware of the difficulty of effecting it from the means employed by these persons of secreting themselves. An aperture was made in the interior of the shop, through which the person inside handed out the publication; and then on the window was written, " A Mart of Sedi tion." Under these circumstances, he thought it the bounden duty of every individual to bring these per., sons to justice ; and the petitioner, as one of these persons, was prosecuted and convicted. With respect to the prosecutors, the Constitutional Association, he had nothing to do, nothing to say, but as far as it was the duty of every individual to bring these per sons to punishment, provided they had sufficient evidence to establish the fact. With regard to the present case, when reproaches were thrown out on the Learned Judge, and when it was said that he ought to have prevented that Jury from trying the case, he would ask his Hon. and Learned Blend if the Judge had the power of preventing it? He asked the Counsel for the.prisoner if he had any objection I to make to the array; but ,every lawyer knew there was no ground for challenging in such a case, and therefore the Judge had no right to postp one the trial without the acquiescence of the prisone rs Coun sel ; but, in reference to the publication itself, and the opinion pronounced by the Judge on it—was there any man who could for a moment entertain a doubt that it was a libel, and of the most blasphe mous description ? He would only read one passage from it, which would convince the House of its ge neral character : " AU religion I proclaim a vice in society, and nothing more than the mythology de rived from the ancients, and is' only supported by ig norance and priestctaft." Was not a publication that mocked at all religion, and the sole object of which was to bring it into contempt, a fit and proper subject for prosecution? He begged leave to differ with his Hon. Friend as to the opinions with which the Jury came to try the case. He (the Solicitor-General) maintained that they came to the consideration of it unfettered and unbiassed. As to the sentence of hard labour which his Hon. Friend said was not passed by the Judge, he believed be was mistaken, and that no such punishment was inflicted : but if, on examina tion, it should be found that any individual un justly superadded punishment, the person suffering had his redress. His Hon. Friend must be aware that it was not competent to the Governor to impose hard labour; but when a prisoner called for prison allowance, he was authorised to impose moderate labour, as a compensation for the allowance, and to relieve him from being a burthen to the Public ; and on inquiry he bad no doubt that such would turn out to be the case in the present instance. He ad mined that it was imposed in one case, but it formed part of the sentence. As to the security referred to by his Hon. Friend, he believed be laboured under some mistake in that also. He would find that the individual referred to was not " to find security," but " to give his own security for his good behaviour for life." But on the most learned authorities it would be found that the practice was in such cases to make the individual not only find, but give se curity. It was the opinion of Lord Chief Justice Hale, whom his Hon. Friend would admit to be a most constitutional lawyer. Lord Kenyon, in the case of the King v. Williams, and Lord Mansfield, held the same opinion, and he believed not one in stance to the contrary could be found. Dr.LUSHINGTQN said in reply, that the greater the charge against the individual, the stronger the reason for having a fair trial. He did not stand up in justification of the doctrines contained in the pub lication. He supported the cause of the Petitioner , only on the principle of his not having received a fair trial, and having no other source of relief, was therefore entitled to the consideration of the House. He could not but dissent from his Hon. and Learned Friend, in saying that it was not in the power of the Judge to give the prisoner a fairer trial. The Petition was brought up and laid on the table. JAIL DELIVERIES. Sir E. HARVEY presented a Petition from the Grand Jury of the County of Essex, praying that the House may cause some means to be adopted for fa cilitating jail deliveries. He said that the time be tween the Summer and the Lent Assizes was too long, in consequence of which the jails were some times over-crowded, and innocent individuals sub jected to a heavier punishment. In the County of Essex there were twenty-two persons confined between the termination of the Summer Assizes, in August, and the 13th of November following ; of these, six were acquitted, one liberated on bail, and two discharged by proclamation, there being no prosecutor; there- 1 fore, taking eight only from twenty-two, the rest were obliged to remain in prison till the following Assizes, abd then undergo a severe punishment. Hg hoped the House would take the subject into consideration, and devise means to attain so desirable an object.' Mr. WESTERN seconded the motion. He said that when this subject was before the House on a former occasion, the Noble Lord declared it was time' intention of Ministers to take it into consideration, and apply some remedial measures. It was not from any diffidence that the Legis!ature or Ministers would not carry, such intention into effect, that the peti tioners now applied to the House; but they thought it necessary that Government and the House should know how much anxiety was felt on this subject out of doors. The Magistrates of the County of Essex, were now erecting a new jail; and they found it ne , importance. Ifjait more frequently, the Public would have to prow for a less number; besides, it Sseiuld ftellitate the means of 'separating those c o nfined on a charge 4 felony, whose security and separation at present it was extremely difficult to provide for, and prevent them from contaminating the other prisoners, by as-s sociating with them. In some places, the number confined had - increased to such an extent, that tli* Judges could not get through them. At Maidstone Mr. Baron Graham was obliged to put off many Nisi Pi ius cases, at considerable expense to the parties, and go into the Crown Court to assist Mr. Baron Wood; and yet so great was the number, that both Judges could not get through then]. They were also obliged to have the assistance of Mr. Serjeant Lawes and Mr. Serjeant Teddy, who were sitting at the same time in an Anabaptist Chapel. He thought some measure was necessary, if it were only to re lieve those who might be innocent from the exquisite sufferings which they underwent by a long previous confinement. It was great cruelty to make an inno cent man wait eight or nine months before he was brought to trial: and, on the contrary, it was an al leviation of suffering to the guilty, because it dimi nished the efficacy of punishment, by procrastinating the time of trial. He considered that a more fre quent jail delivery might be made without much dif• ficulty. The business of the Criminal Court might be more speedily discharged by an arrangement I among the Judges. It would not be too much to say I that an augmentation of the number of Judges should be made, or that the country would object to the ad- dition of three. The English public would not com plain; they were too enlightened to object to any measure that would ensure a more virtuous admi nistration of the Criminal Law. He agreed that the Lent and the Summer Assizes were extremely well arranged in point of time for the jail delivery. He was of opinion that another jail delivery should take place in January. He was not avrate of any objec tion that could be made to it. That period afforded no public injury; the Grand Jury, the Sheriffs, and the Magistrates could attend without much inconve nience. He concluded by saying, that he should have great pleasure in seconding the motion of..his Honourable Friend. Mr. PEEL said he was anxious that the Petition should meet the greatest attention from the House. He was disposed to give his best consideration to any suggestion of the Hon. Member who had brought it forward. Considering the gratuitous manner in which the Magistrates of the country performed their duty, he felt that every respect should be paid to their wishes. He had, therefore, much satisfaction in say ing that Government had given the subject the fullest deliberation, He hoped that the communication he had to make would go further to prove the sincerity of their intentions than any general declaration on his part. He felt with others, that in speaking on this subject the utmost caution should be exercised; care should be taken that no observations be made theie which would tend to weaken the opinion that was en tertained of the impartial administration of public justice. The confidence in it had remained for cen turies: it had produced the conviction that it was the most perfect system of criminal jurisprudence in the world. With regard to the plan that was now brought forward, he was not prepared to give it a decided nega tive,. but he entertained considerable doubts on its ex pediency, and feared there were insuperable objections to its adoption. That plan was, that one or two Judges should attend at the Quarter Sessions to preside over a Criminal Court, and make the Grand and Petty Juries in attendance co-operate with him. In the first place, it was impossible to carry that into effect with out increasing the number of Judges, and to that all men who had turned their attention to the subject en tertained very great objections. That difficulty there fore must, in the first instance, be surmounted, and then there would remain other difficulties of still greater magnitude. Any one who had witnessed the administration of the law at the Quarter Sessions, could not fail to have remarked the vast difference there was between the Grand and Petty Juries on that occasion, and those at Assizes—(Hear). This being the case, the House would see to what it would tend ; and nothing was more to be avoided in the establish ment of a new Jail Delivery, than the impression that criminal cases were disposed of with less care and attention than at the Assizes. If there were an impression on the country that they were attended, with less solemnity, it would greatly deteriorate the cause of justice. Another difficulty attending the Quarter Sessions was, that by law they were required to be held within a week after a certain period, which would disable the Judge and the Counsel from re turning to their duty in the Courts in London, in Term time. He would take, for instance, the Octo ber Quarter Sessions, to be held within a week of the 11th of October. Supposing that day to fall on a Sunday ;the Session might not begin before the 19th, and the Term beginning on the 6th of November, bow was it possible that the Judge and Counsel could return to their duties and places in the Court of King's Bench, and other Courts, in sufficient time? The same would be the case in January ; or any other of the periods. These, he knew, were but the details, and might be overcome ; but the abjection as to the number of the Judges, and other objections, were in superable to anything being done without the matu rest deliberation. The best way was to apply the means within their _power to remedy the evil ; and he had to state that, after full consideration, Goyezi.„ ment had determined next winter to make the ear. riment of a third jail delivery in all the counties of the Home Circuit—(Hear, hear). Thus, in Essen, . Sussex, Kent, Hertfordshire, and Surrey, a Judge, would go the Circuit, and have the usual assistance of a Grand and a Petty Jury. These Counties were se lected for the experiment on account bi - their proximity to the Metropolis, not being so open to thainconve nience, in point of time, to which those more distant were subject ; and also in consideration of the greater number of crimes, in wpm Lion to the larger pope. lation. The county of Middlesex had eight jail de-. liveries. on account of its vicinity to the Men opolis. He might mate many other observations as to the arising from loudly called Secretary the coups _ occasion toadd ..eiisi miilirlielateri ode 'lasi% titer HA, where. 'fbur were - siuing areach bench. As• to any fear of there not King barristers enough to do the duty, he would advise that no apprehensions should be enter. coined on that hest, being convinced that if they left things to themielses, in this, as us all other cases, the supply would be found equal to the demand. Le t that Clown say the word, and the efisphatic fiat be pros 'pounced, and they would see a systent, adequate in all its parts, spring up Without loss of timer and also without difficulty. Mr. PEEL stated dna he had omitted to Omen* Before that no additional expense would be entailed on the Judges, by this addition to their duties._. (Hear). —Nothing would be more unjust, and he was sure the douie never would cotiptenance or wish it. Mr. DICKINSON could not admit that the Horne Counties were more entitled to this preference than many others.. He would instance the County of Somer. set, which . had the city of Bath belonging to it. When Government turned their attention to other Counties, he was surethey would find many that de manded consideration as well is the Home Counties. He hoped, too, that there would beiio additional la bour imposed on the Magistrates. Sir E. KNATCH BULL observed, that as the Right Hon. Secretary had called the change of system be had mentioned an experiment, there could be no doubt that it would be extended if found to answer. Of the necessity of it nothing could be-more decisive than the grievance of which some of his constimen's had to complain, in whatbaid "lately happened at Maidstone. It was true there were but twenty-eight civil causes set down for trial; but still the inconve nience to the suitors in thosetauses.was incalculable. If this were considered as a light grievance, it was very probable it might happen again, and against this he was extremely anxious to guard. The suitors in the Nisi Prius Court would be secured an easy and competent triil. Mr. CHETWYND said, that many cases had come under his knowledge, as a Magisti ate of a po , dons county, of persons having been longer confined 'lefore trial than after, and of others having been conn, ed a long time, after which the Grand Jury fours i that there was not even a prima facie case against theal.— , There could be no doubt that a more frequent Gaol , Delivery was :most desirable, and he was very gad it was in such good hands as those of the Rig.it lion. ; Secretary (Mr. Peel). He was extremely glad, ll,m , ever, to hear that no additiortalespen. e "as to b e , thrown on the Judge,; for he thought none of our public officers was so ill paid as the to elve Judges. . He also thought that Magistrates should be equally : considered, as they were already so overburdened, ! that independent country gentlemen were glad to keep out of commission. i Mr. W. SMITH thought the evil was so great that I not one but ten experiments should be tried rather t than that it should not be lessened. He knew of a case that had occurred, in which a man was j e oved to have ill-treated his apprentice to such an extent that he died in consequence, and that man, guilty of . all but murder, was imprisoned-for one ye.:r. In another case a man, after being confined 11 niontli, ; was discharged without trial. Surely here was rn : anomaly on one side or the other—that the men who . had been guilty of the highest crime next. to murder . was to receive the same amount of punishment as he ; who had done nothing against tile laws o! his country. ; The ATTORNEY - G ENERAL said, he was fully - aware of the importance of this subject, and the in • convenience suffered under the existing state of the : law ; but in proportion as it was important,e ere they not hastily to adopt any scheme to amend it wi:hout adequate deliberation. The difficulty of dealing wi:k . the evil in question might be judged from the cir cumstance of there being such various opirions as to the mode of remedying it, as they had heard broached in the course of the discussion. The expelitnent spoken of by his Right Hon. Friend (Mr. Peel) was to be tried upon the Hotly Counties ; and he was sure that it could not be Ixtended further without new modelling the Courts, and increasing the number of Judges. The evil which had arisen at Maidstone was in consequence of a want of information as to the quantity of business expected. Such things had occurred at other Assizes. The imprisonment before trial was an evil that must always exist to a certain extent. In all they did, they must above ail take care , that justice was administered satisfactorily to the People—(Hear, hear).---Justice must be done without hurry ; and the People must feel that they had the best talents of the Judges. The situation of a Judge should be an inducement to Gentlemen of the highest talents at the Bar. They had little enough leisure at present, and, if they increased their burdens, no Gen tleman sufficiently qualified would be met with to laccept the situation. After the experiment had been tried, the House would be better able to judge if it should be continued or extended, and if so, now much further than at present—( Hear). Dr. LCSHINGTON assured the House that he had f'ormerly given consideration to this subject. He was satisfied that no additional duty could be per formed by the present Judges ; and he a l ueed with his Learned Friend opposite, that the question of i!:- creasing the nunil)er of Judges was ine winch de thanded the most serious consideration. But between two evils they must choose; and he really was at a loss to discover where the Judges were to find time even for. the third Circuit proposed by the bight llon. Secretary. If they increased the number of 'Judges, lie should be reluctant that there were less than four in each of the Courts in We arnirater Hall; and he should be the first to Appose any [reposition. that might be made for appointing a Judge for the trial of criminal causes alone—(Hear).—%%lth lizard to the sairies of the Judges, he knew they we. e not sufficiently high, and that many persons had tefusel promotion to the Bench because they could not atforl to accept it—(Hear). Mr. D. SYKES said that the experiment had al ready been tried of disposing of minor-offences at the Quarter Sessions, and althouglithe trials there we; e not conducted with that delicate attention to fora' and solemnity which prevailed at the Assizes, yet he soon cea country The S " pose the nu ke, IJ s • . . . AMENIIIIIIII. . . .-. • • . . . . .•, • - . . . . . . .. . • • . . . what.was the , . I T, . .lior of oblinfOlg COT system of IStilprn desce 4 .....1111111111111.11".."1"° Friel "' bet adopt li sp e *s he ; . a f a G.L . IIPZ: i • a cCe"si m o tat c"slitt in'll•••.,,, d how ibng ..• ~' . . ~..„,„. _ -• :'• be rather limitedhimselfto the declanitiOn made, their minds free from I; coat to the ll. ~„„,„a " - --- * 7 'on never ~ , t__ l y o f . t ~AL , as fts the nature of the change proposed ---4 /ken isideration that made ble mu or a : the cows. RA. " . p ..„.. ,'.'" .., I Sr. - LESTER pointed out the evils arising fsom a Jury so composed iss from the pre* tg..: ... Is---00,..... it was not si"'' irett tcemmitted ar „ Atriptbsent system, which he thought loudly called ge. What was the necessary for him to. ref_aii: t . , . jor , :: ;Of the'work, ansrtaki B,:ih average o f t 't ' . her, Act has seen creasledbz ttne-balf in coasequeete : : • • . retorm. He hoped the Right Hon. Secretary ke the present, he felt because ever must be _ • ._ rform the House. He a report of the trials in the c Newaap: g rs., The House timeisetWeen the two Assizes. - Telt'. k the sub)dcb would not mend in his proposed change, in aril lit: .. the a,orof in an e c onomical point of view, it was also one of ties he had oned. There was no occasion toad 11 restricting the opi- should also recollect that ___.3„,..,1 h, t m e „ il mi cat ion, who set all law at_.!ifkunce ; who, considerable Importance. If jail deliveriectook - place to the number of Judges, as'etin miklir Se - eaten O 4 ~....tly_ the Pithiic would have to provide of each of the Courts of Welstibiblitek Hall, where. ,~~ ~.. IN Iv w