The National Register. — London, England, 1816-11-25 00:00:00

Loma- COCURANES CAM COURT OF KING'S BENCH, THURSDAY, Nov. 21. Tao minter. _ hair um no the Court (enniestimp t Mr. ,Ilhatice Itifyley, Mr. Justice Abbot, nail air. Justice Hokept, sat, Me. Mar ryat iiarved fir the judgment upon Lord Cochrane, and in a few ii ill utei (the delay being occasioned by the pressure of the crowd) his Lordship took his place on the floor. Mr. Justice Holroyd proceeded to read the report of the ttiel.ef thee indirtusent tor-an escape, which ' as our readers tall reeullect, tuois.plece before Mr. Justice Burrough at the lett Assizes for Surrey. Lord Cochrane, beitig asked if he bad any affidavits to offer, repliedin the negative; adding, • that he should submit some ohnettratitnut to the Court at the proper time. A' very-luligntfidarit was then put in by Mr.Marryat, sworn firy Mr. W. Joues, the prosecutor, alrrslial of the Kitten Beach prison. ' The afillivit entered info most of the particulars of the case, especially adverting- to and repelling the charger' imollffht against the Marshal and his officers by Lord Cures rune in his speech to the jury, which the 'affidavit accused hit-Lordship of having handed over for publication in the newspapers as soon as it had been delivered, without any attempt to substantiate by proof any of the charges it co* teamed. It wasifoilewed by the affidavit of a medical gentle- Man offal* name of &unsure& ; by which it appeared, that he had been called in by Mr. Jones when he beard of the ilinesa of Lord Cochrane, and that lie had given to his Lordship a certificate -OM itch health was such as to render dangerous a long confinement in - what was called the strong room of the prison. Mr. Justice Bayley then told Lord Cochrane ' that the pre sent was-the time to submit the observations he had to offer. 'Fiord Cochrane produced a bulky imint.script, and com menced read*: It helms by observing,ahat be had proved akthe tai d, that his object in escaping, whether mistaken ur not. was teat criminal; and if the judge who then presided had not iustructed the jury that they were to determine by tht fact; null not the intention, thee-verdict would have been - ne empanel. It was aingular that a few months before, in a casein which his Lordship wu itroseeutor, Mr. Justice Ab bot .had differently interpreted • the 14W : it was an indict meat for perjury against a man named Davidson. : NC Jastice Bayhty.--Itis fitl ehonid state that your Lerd shipis• preeMled fruelventerieg into Davidson's case : the imiy ease before tlia•Conet is your Lord!hip's. Lord .Cochrane continued to read his Mi. 'Some slight interruption being experienced by his Lord shiltp; he observed, he was-sorry to find that the learned gene demon were se lunch' troubled with coughs to-day. The manuscript went on farther to animadvert upon the conduct of Mr. Justice Burrough on the last trial at Guildford, which was the effect of' a formerlitat; in which he had been seideeced by the Lord ChiefJ mace of this Court. Mt. Justice Blyley.—Your Lordship shom el be iuformed thhi thn.sentenee•ot the • Coen is not the set of the Grief J tine alone, nut of the whole Court ; and without a concur rence, no seittnnee attic Chief Justice, or of Amy other Judge, could be enforced. Usti Cochrane.—The sentence may not the the act of any 'Ate jadgei ant your Liirdships had •no mein* of deciding wpm• thefeets but tram the aotesaf the Chief Justice, who triadthe cause, and who might he inaccurate. kit. Lor dship then rammed the reading abut manuscript, which complained, diet by the acquittal at Davidson he was deprived of redress, mid is) , tie own cootiction sent back to new tuiteetions. He felt tint, incler these circumstances, be was entitled to greater latitude. of remark than was ordinarily allowed • and he animadverted upon au expression of Mr. Justice Au l but, that Davidson might have asserted whit was raise from litadvert vice or mistake. Mr. Justice onght to interfere. Your Lordship ought not to impeach the propriety of the summing up in a ease which bears no relation to the present. lam bound at lea:: to Sanest that to your Lordship; and, it necessary, mast and I shad interpose to-prevent it, if I find the other members of the Court concur in say opinion. (After having enniulted with Mr. Justice Abbot and Mr. Justice Hulroyd.) Your Lordship will exercise your own discretion, and pro ceed. Lord Cochrane apollgized for detaining their Lordships at math length : they would find, before he concluded, that the whole was relevant, notwithstanding their present opinion. Tate inanusei ipt, with considerable detail, went through his Lordship's motives in the prosecution of Davidson. Sunie blame was also imputed to Mr. Marryat, who conducted the came for the prosecution. After sonic further remarks, his Lordship commenced a criticism of a part of the address of the learned Judge on the trial of Davidson. Mr. Justice necessary that I should interpose ' toe:plain the impropriety of what you are now offering to the Court. It is against its inclination to obstruct any thing avuich can oe said by a person standing on the door for judg ment in intimation of punishment, and it is more particularly retuctient to do so when the conduct of one of its Members is tidied in question: but when it is wholly irrelevant, and can have no edeet upon the ultimate decision, the Court owes it to.its own dignity to interfere, and it does so without any cuasideratiMl of the individual who may happen to be the subject of its sentence : it wound interpose equally whether he were a Man of the highest or of the lowest rank. The . Coast owes it to itself to intimate distinctly, that such a course mast be no flirting. pursued. I should in the first instance have interposed decisively, but 11-om an Wit imution promos of the members of the Court, my brother Abbot, whose 114111 e and conduct have been called in question: he was not un witting that the matter should have proceeded ; but after what has passed, I think we owe tt tie ourselves nut to suffer that homing en tier part ot otee member of the bench to inter fere with the uciervance of a precise and hence:stave rule: to admit thu introduction of irrelevant matter IIOW by yonr Lordsny we should e.tairlibli a precedent; and how could %vapidly, ill die (Witt of a Iminnie individual, its future pre vein him from faliotatem the steps which tithe es hate trudden • My opinion therefore is, hat that part of )011r Lordship's address which refers to Davidtvies case is not relevant, and that it ought lint and umst nut he iiitillehiced. Lord Cuelwanc.-1 art sure that I nave heard learned gentlemen in argument illustrate one case by reference to another. Ju the present I we-li to do nothing more than to show that the.deciteter which was come to ie osee ease WAS not clime to iu another, though the petunia were lune respect different. Mr. Justice liniroyd.—l perfectly agree with my learned te.orentr, that your Lurdship uhust he presented from entering law tlO. mirticalar circumstances of lire case of Dateline. Lord Cochrane.—detines I conclude, I trunk the Court will be of opinion that it is of importance to toy case. 1 stand aeo revifierit.aerit.s ~fact*oLivinAlice..iooopireWolli, of which ~•4 •••.; Inv II• rill pair art,n. THE NATIONAL NEGISTES. lion to what I any is Midi imitradlctory m the case of Da vidson. Mr. Justice Abbot. —I aM in no apprehension as to the result of any investigation into my judicial conduct: but I am hound to say, that an investigation of any direction inf mine to a jury muse a case whitlly unconfleirted m the fact., and bearing no resemblance either in the natureof the charge, or in the proof by which that charge was sustained, ought riot to be permitted. Mr. Justin. Bayley.—Such being. this opinion of the Court, your Lordship will forbear to make further comments upon the ease of Davidson. After an obstinate persistence ain the part of Lord Coch rane, in maintaining the ivies aney of his remarks on the case . of Davidson, and his consequent right to read them, and much temnertite expfmtatiou oil the pert of tbe Judges, of his LortV ship's erroneous notions, Mr. Justice Bayley told Mr. Mars. ryatt, he might proceed to address the Court. Mr. Marryat then addressed the Court on the part of the pinsectition. He assured their lordships that the judgment ,was not asked with any degree of asperity; but, after`the slanders that had been diffused by the densely of the noble lord's speech to the newspapers as soon as in .was deliver ed, without any endeavour to establish .a single essertion, ,it was not wonderful that the Marshai was ansious to repe l, the accusations by a full statement of his case, without wisba ing to din • h the edect of the merciful recommendation of I the jery, us far as it could operate upon the minds af the Court. By the common law in old things, the oflence of the noble lord was highly punishable: a man a ho had escuped fromthe stocks, oe from a constable, was formerly liable to be sentenced for a felony ; but of late it had been much qualified. At the time Lord Cochrane left the King's Bench, he Was charged with a fine of 1,0001. and three or four months of his confinement remained unexpired. I'o the extent of this fine the Marshal was of course liable; and as soon as the escape was known, he advertised a reward of SOO guineas, which he bad in fact paid for the intelligence and information he had received. It had been suggested at the trial, that the Marshal was himself dia. posed to compromise the affair, and that he had made a pro. posal for that purpose to Mr. Basil Cochrane, but that he had been sported on by secret instructions from persons in power and office, because Lord Cochrane haul given some votes in parliament displeasing to the reigning authorities. By the affidavit which had been read, he had disclaimed the whole charge, having acted only from his own sense of the ditties of his office, and of the necessity of deterring other prisoners who might attempt to follow the example of the noble Lord. E. cry ' circumstance relating to this supposed offer of compromise, was distinctly and positively denied; and he had only pro posed to receive Lord Cochrene,if he would return of his own accord at night. to save hint the ignominy and exposure of a puolic caption ; though willing to save the reward he had offered, he had never entered into terms, and had even refil.c.i to see Mr. B. Cochrane at Guildford, who wished to prevent him from presenting the hill to the grand jury : that he nese. made any overture himself was most &cilia% ely sworn ; our had he ever held out, that all prosecution would be relin quished, it' his Lordship would secretly return. The next charge against the Marshal was, that when Lord Cochrane was re-apprehended, lie had been confined in the strong rito:n ; and that from the smallness of its dimensiona, and the damp ness of the atmosphere, his Lordship's health had been so se riously injured, that the Marshal was under the necessity of removing ham, lest death should ensue. How was the fact as stated in the atildis it? Lord Coehrune had certainly been confined in the strong room, but one with a boarded door hail been chosen, nor would be have been placed there at all, but for his obstinate refusal to give any security that he would not again at. empt to escape. In the mean tune souse other com modious and airy apartments were preparing,which were fur nished by the Marshal; and, as soon as lie had ascertained oy Mr. Saumarez, the medical gentleman who attended his own family, that removal was oecessary, he hail placed Lord Cochrane in rooms which he considered insecure, and without even his Lordship's word of honour that he would not make a fresh attempt. So untrue was the foul calumnious assertion, that the Marshal had taken advice how far he could torture his Lordship without danger of death. It was worthy of re mark, also, that when the medical certificates of Dr. Bitehau and Mr.Satimarez were obtained by Lord Cochrane, instead of communicating them to the Marshal, he had trausmitted them to the office of the Secretary of State, that unfair blame might be imputed. As a proof that the Marshal did nut think the new apartments occupied by Lord Cochrane, above the lobby. seenre, it watt sworn that at hIsOWO expence he had employed additional watchmen. Where, then, was the inlituuanity, the cruelty, the torture, with which the Marshal was charged at the trial? Every stiretise even had been answered in the affi davit, and the Marshal's conduct would appear in the eyes of the Court not only blameless, bat in many pothts of hew ---usehle. He had ' most zealous id the dia always been duties of his oflide: charge of the *if the prisoner required medical aid, he had ahVayslneiilshed it; and during the 25 years he had filled the offieeor Marshal, no dangerous or in fectious disorder had been known in the prison. Having uow hail an opportunity of vindicating Ids conduct, the Mar shall had ceased to he anxious as to the result, 4011 haring discharged his - duty, left Lord Cochrane in the hands of the Coml. Mr. Gurney addressed the Court oe the same aide. Mr. Justice Bailey recapitulated all thr circumstances of the case, upon which he commented at length,aud concluded in the following terms The Court has taken all the facts into its consideration, both the additional pressure thrown upon you when you were sent back to the King's Beach by the nature of your more strict confinement, and the injury your health sustained, which were the grounds of the recom mendation of the Jury; and it doth order and adjudge, that fur this offence yon pay to the King a fine of HAI. and that you be committed to the custody of the Marshal of the Mar shalse,a twit that tine be paid. Lord Cochrane remained on the flaor for a few moments. but the 'fine not being paid, the tipstati was sent for, and to the custody of that officer he was committed. In passing through Westminster 'Hall, his Lordship was re peatedly cheered by a crowd of persons who *sere waiting to heat the result. lie was afterwards conveyed to the King's !tench Prismi, and placed in the apartments above the lobby, !.which he had occupied after his escape until the espinmon ,of his sententie. COURT OF EXCHNUER; Nov.*xer 16. TUN LINO N. VALI/GUAM AND DAPINOLCY. IS. sideration of this verdict, dial whit:ll,lre : hail to submit first was, that according to the laws of England. no larecuy at all had been committed uy Donorlly ; anti that it so, Vaughan was tibt guilty of the crime imputed to him. He admitted that Osnelly was iu COMpaily with those who conunitted the lar ceny, yet he should contend that he did ,not participate SR their guilt; out even suppueitig their Luieittrips acre against him on that point, he should still tumid a elkiiin fur the at. swami's:it VAllAltan upon- the verdict of the Jury'.. Vaughan aas indicted tor being an accessary iu the einuireiseion of n burglary, aid the charge ut burglary had been negatived by the Jury, they having tumid him guilty of lateens. The fact, therefore, of their having found him guilty of a different spry cies of entente than that with whieli lie was changed, operated, in his humble Judgment, to rendertheir v erdici, as it abided him of on as ail. with respect to the first point, namely, aft • to there having been no larceny committed b) Duchy, ho apprehended that the particular crime imputed imist depend upon the partictil:kr inteutson of, tue party accused. Tim precedents applicable to this proposition were very tee:. He had, therefore, been °bilged to dip a little deeper into * antiquity, than under other cereunistauces might have bee*: necessary. ill support of his argument, " that the iuteutioa must constitute the crime." hr begged to refer their Luidshipe r to Puttentlitet, 7th c. Ist book, iii which it was laid downg that an action a as either good or had, according to the enact. meat of law. The learned Counsel then proceeded to cite authorities atria the definition which had been given by the law of England to the crime of larceny 'tile fed which fin mentioned was that of Mr. Justice Blackstone, %chum is stated to have defined larceny to be " the feloniously tukist and eat tying away tile goods of another, with intent to air propritite them to your own use;'' thereby seeking it . a ne 7 . canary component part of the crime, that the person corn.' inillitig the larceny suoald coutesuplate Use aptheipriation of the property to his own use. In support of this definition,. Blackstone nad gone back to Bracton boois.3. c.l7.•sec. Sri 'llse next authority cited by Mr. Curw:tod, was JuStiulan'e Irks stitutes, book .1. c. 1. which acme ded in the Urination ut thet„ former. Having gone thus far,• the learned counsel took ile' seview of Denuelly's case, for we purpose of seeing how far the crime, as proved against him, Cause Williill this definition. tie admitted that Dennehy was a very bad character, wait had pursued a tong career of csirne—in decidiag the 'meats. case, however, all refmeuce to ihs former euuntict must ha. avoided. From the evidencu in the case, it was clear that WO did not go to alimie in the prouder,- Oat for the purpose of be.. La-dying his companion , to the unicers of Justice. His motives evidently was to share the renal d. He should say, therefore,' WA( lie Wlwilvd WA uniawforoodil, which, aceprdtog to tint; saws of Eil,pAud, was an iddispettsau.e accompaniment of the crlirre of weeny. theoriser - n:ly of taw suggeition•was idly/ am e out, nut Aiiii.o by eli tiiClo D , 1.1111. by Milan, Lard Coke! , and land Hate. Mr. Last, its iii:, picas of the cruwil,also re , ogeksoll the same priocifer. He could ring many cases hr . tvoteu a pers4o3, arcomposo; log oilier. to the cumsuasion of MI tmence, did not sit cessarii) mato spate hi all Biro - guys. 'LIMA had been tirtsitert on in a rape ut murder, before Mr. Jltteitli' Fa-ter, !'were large soldiers went together to rub all orchard., l an, it appeared, gut up into a pear tree, while Use other re. ...toted at tue gate with a tliatan sword. White he stood there; the sou et tilc.lotvUee 0t tkte eteliard eante.nth end the *Miner f.ll Mtn turoitgo. *tar learned Judge heitl,tu that ease, that toe soothers fa toe orcoard were not participators ill the tour , tier, lJeC4max they had sinewy &peril an perpetrating thal ii smug uneuee of stealing pears. Haring urged some farther At gliniCtin . ip support of lists point, the Warped Copticl pre-: eeeded to hi, meowd point, namely, that even ouppoling thetr Lurdslups were a ...gnat limn in the first proposition, Vaughan, was tili,lieti to ma acquittal, upon the ground of his harme r ueen imam gutlty of brig Ail accessary to alarecuy, the in.. , dictment harlo t s charged Liu with benig'an accessary in the commission of a burglary. He Was not aware oh' any Cites illasti alive of tins pout., which was one certainly of a uovtl nature, out lie appreheuded that uurgtary and iatceny vim*, AS distinct lettniieS as burglary and murder s • and as the pri l , stoner had been tumid guilty eta crime distinct front that with 'which he had been charged, he humbly submitted that the yr. diet lutist tie set aside; and upuu this groendoilitell as upon: that behave urged, namely, the legal deliudideouf larceny. wii,ch had 'obtained tom Use hundred years, o t ithe tact of i y. there hng nu allilliefUralndi tin the part of Dail ,lic true ted their Lordships viiiiild agi ee with him iu thinking, that both the prisubers ought to he acquitted. Mr. Builand, tot the crown s submitted tit' nothing had Oven advanced uy his learned triendwhich cetild impugn the verilla iu this'case, eithe. us it sheeted the,:plincipat ur the accessary. The mauled Vattern:4llora proceeded to take an accurate view of the eiiileucc as Id a nee_ against the ptisollelB, and ( * ruin thetige inferred that 'and{ clear Irwin the conduct Of Daiicily that he had the Mande °eject in view, thatot parti cipatiug ill the.plunder and in the - subsequent reward. 'the ammo Jurandi described by his teaructlirieuel as necessary to constitute the crime of larceny, was therefore fully established. As analogues to the present case, he cited that of Mr. Bolton, reported mu East's Crown Law, 066. Upon the second point he contended that nothing was more common pan fur 'per sons iiiilicted for burglary, being acquitted ofthin charge and found guilty ut larceny. The frequency of this uccurreuce, added to its never' being'ilisputed by those - name wham it took place eras the best proof that it wash practice .witich did uut a dmit of question, If Vatigle.o was not an accessary before the larceny, it wets dear that it was alto wards, )br lie bail harboured Dannelly after lie had committed the'rebilety. Mr. CiirWoo4l IsliS lug replied, the Court was rinsed, imerder to afford au opportunity fur the Judges to consider the argis. tents. 'the result of their deliberations a ill of cutuse not he known till the Sessions at the Old Bailey. 1 he event, be it what at may, catinet egret Vaughan, as lie can only become liable tu'usie )ear's isupristsumeut ; which, as sentence must be,.pmused . uu conviction, will of course merge into the imprisonment for fi ve years, to allied he has ;tweedy beau seutenced.—Lde ur death is the stake wheel Diuselly has in tin decision. Me. Curwood appeared this day, by appointment, to argne the ease -of the piisorien, which is no 'doubt fresh in the re- collection if the Public. The indietuteiit charged Datinay with being a priocipal 4 and Vaughan with &wing an accessary, in the commission of a linrglary ; and the verdict of the,liii) wrs " Not guilty of breaking and entering the dwelling-house ; t'she• of 4 1)...°h7 the roil. - go -- ADMIRALTY SESSIONS. ' Monday 'these Sessless commenced beim hir Willixw Scat, Judge of the High Chun of Admiraity, Mr. Justice fintroyd, 'mud JuNtire Barron'. ,It. Smith cod C. kurury fur the ;tidy! inur.. der of T. J 0111113014 Ull hoard the Creole, elf Algier., o heat. lug him on the head with a handspike, curling his throat with a kink, and throwing tine overhead. Oil tieing asked %ilia ther they were Guilty or Nut 'Guilty, booth peraisad in pleading Guilty, mow ulna:toiling the advice of Mr. Justice itoiro,ll to the contrary, and the verdict was Su reilirtitd.' Fancy pleaded Nut timlty to tlic et inie, hilt Ctuney as an aceelemo.— Mr. Justice Hoiroyd tad hint lie must either plead Guilty or Nut Guilty. He sad, that ham were pre sent at the murler hit them two; and he bored for merry - .