The Statesman. — London, England, 1809-12-07 00:00:00

- - .other subjects, seemed on itolfb intot a meat unbocky twist. Mr. Serjevit BM observed, that althottzh the settle of the Othcer,Tuentois, had been introdsettE in all their pleas of justification, it had nut once been tnetitionmt by any of the witnesses. JAMF.4 M.t,tst►ttt.o.—Thero are to be store seven! Pleas, but that point is at present out of the question. Mr. Cos, the Associate, said, that one of the witnesses, Elwin, had mentioned Talltitun's Sir JAMES MANSTIrLD then observed, that it was a public Theatre, but no patent nor license hail been produced; that question might be re. Fervid for the opinion of the Court, but he wish. ed to have the opinion of the Gentlemen of the Jury OR the whole of the Case. CHARGE. Cottle JusTtce MAN4lPlEl.o.—Gentlemen of tliti Jury—This was an action brought by Mr. Clifford against the Defendant, Brandon, for imprisoning him ; and the fact of Mr. Brandon's imprisoning him is . proved ; that is to say, he called to Taunton to take him, and lie took him ; and the Defendant directed the Constable, or Peace (Meer, to carry him, and he was carried, before a Magistrate, to huts-strict. It appears that his friend Mr. llipkius proposed to rescue him, but Mr. Clifford, very properly said, " N o , lug would go." Ile therefore went from the theatre to the Office of Mr. Road,. it Bow street, where he was immediately discharged.-- No one has described the particular duration of the imprisonment, bat you can easily jndge how long that lasted ; it might bee about A quarter, or half an hour, prob tbty it did not exceed that ; and then NI r. R..a.1 said to the Plaintiff, " Mr. Clif ford, you are dischaNed;" and fur this he has brought the preseut action against Mr. Brandon. Mr. Brandon justifies that arrest ; stating, that there is a public Theatre at Covent Garden, the Proprietors of which have a right to represent co medies and trieedies in that Theatre. That on each a night, wielt the exhibition was going for ward at that Tlwatre, the Defendant encouraged those who interrupted it, and thereby caused a great riot and disturbance. I do not take the words of the pleas; hut this is the substance of the pleas. That the Plaintiff instigated and en couraged that tilt, and th it for that breach of the peace Mr. Brandon arr_itod Gentlemen—ln the course of the cause there have been some minurpoints, which, in one event, may become material to be discussed—whether it be necessary, for instance, to prove the existeuee of a supposed patent, under which they act at this Theatre. I not trouble you with that, be cause, if any question arises upon that question, it may be brought before the Court hereafter. The first and great question, the only question now is, and the only one of a farthin,; consequence in this cau‘e, is the question, Whether Mr. Clifford was eneouragiug ant i.istigating the riot..rs at Covent. g mien Theatre, at the time when he was so arrest, eil ? It is insisted, besides, on the part of. the Phintitr t supposing that to be trite, and that Mr. Piltord'ditl instigate and encourage the riot, yet that Bralaon, as a private pet-soli, could not' legally arrest him at the time he was arrested, be. cause it is contended that he was out of the. Pit at the time the Officer laid his hand upon him. 1 think that is the only other question that made the great question which I have stated to you." M. Serjeent Barr..." Another point on the pleais, that there is en evideuce that Taunton was a constable, ur that acanthus was the servant of the Theatre." ,rd Chief Justice._." Does it not appear that he was a constable ?" Mr. Serjeant I.znerkTbat was proved by the second witness." • - Mr. Serjeant Barr..." 'Fliere is no evidence of I their having any authority 10 act, at the time he was taken,-.r of their having a patent at all." Cuter Janice.— " I can save-to you that point, you know—with respect to the point of autholity to act, the case is this :-..That in that Theiitre these people were there, and that they there re presented plays, &c.; that you yourself, that is, your client, with others, went to this play.huuse; it that you paid the half price for going in; that you made no objection to the legality of what was guiti z z on ; and, that your only complaint was about the prices, and the question is whether, who.' you give no evidence of illegality, it is not sufficient that they were, to the public knowledge of all the Magistrates in the kingdom, exercising the profession of actors in this Theatre. But I tell you I will save this point to you. As to his being a Peace Officer, he was so called, and the nature of the case speaks it, for Taunton carries the Plaintiff, as a Peace Oilicer, before Mr. Road, the Nlagist rate. The two (illations, therefore, that the GA tlemen of the Jury have to decide arc, whe ther Mr. Clifford, under the circumstances of this ease, is to ha considered as proved *AO.. ently, to be instigating the rioters at tt.is The— atre ? The others certainly are trilling ques tions, of uu strious cousequeuce, other than as to the costs of this cause. Whether, at the time of the arrest, he was in such a situation, that still '.private person could nut arrest liOn, is important, as it affects the costs of this cause. The other has become, indeed, a very consider able for you have it proved, by the witnesses produced on the part of the Plaintiff, Cat there had been at this Theatre, fur a Consi derable time, perpetual riots, of a very violent sort. That the Utilise was such, on the night in which the Plaintiff was apprehended ; that Mr. Wilkins says it was impossible to know, by his ears, what the performrice was, which was going tan ; that such a riot took place on that night, as well as that which took place, many preceding nights ; that it put an end entirely, to theatrical diversions at that Theatre. I do not very well understand, from any thing I have heard to day, on what ground any person can legally do this: to make a prodigious noise, to create a tumult in this house, supposing that which is stated, about the: rising of the Price', to be true. Persons are not obliged to go to the Theatre. You have heard of extortion. Theatres arc nu necessaries of life, stash that persons cannot do without. . TM?, They are tint necessaries of city sort is • this teasei in which, if a nun exact more fur than is legal, he it guilty of extortion. Ido not see how ex. tuition can be applied to the Patentees of a Thea. Ire. They were not obliged to build is Thestre.• When they did build it, they, and they only, were the judges at what prices they could reason ably perform. Nobody else can judge for them. They are the only persons who can judge. But, if they ditt wrong, er as It ii arid , dune wrung, in raising their pates, there is a very obvious way of redreasing that grievance, for if people will not pay these prices, there is an end of the Theatre. There is no sort of employment of men in society which is motet liable to extortion in the use of it, than that which takes takes place in Theatres—fur, if the prices of admission are so raised that the public will not go, it will not he worth while fur the Managers to open—or if they employ Actors, which the l'nhlic have no pleasure in seeing, then they are undone, for no. body will go to see them. On these hazard. our terms these persons build their Theatre, and the effect must be, that they have a right to impose what terms they please on admission. If they impose unreasonable terms they must be undone, because persons will not come to the Theatre in such numbers as to produce to them a profit.— You have heard from the Learned Counsel fur the Plaintiff, in general terms, a doctrine by which he seemed to inculcate a conclusion, that if the prices were joesperir naked they would be ap. proved of by what he calls the Public. But that if such a Public do uut approve, persons may go ' to the Theatre and act as they have done ; that is, to put a stop to the exhibition altogeiher.—l do not know how it is possible fur us to start that idea and discuss it—The prices are fixed by the Managers—lf unreasonable, they will roiu their Theatre by them. If there be in their Letters Patent a provision that they shall not raise their prices beyond a certain limit, why thou, if they do that, they forfeit their patent, and a suit in Chancery may be instituted. That Court will order a trial by Jury upon the fact of whe ther the Patemtees had abused their patent or not ; and if that be found in the affirmitive, the patent will be revoked by the Court of Chancery. I remember an itistseice that illustrates this : It was the Case of Sir Richard Ark wright, who hail made a prodigious fortune under his patent, which patent was found, at last, to be such as could nut be supported in law ; a suit was institu ted in the Court of Chan:try, and in the-Court of Chancery that patent was filially repealed ; there fore it is incorrect to say, that there is no remedy but public disapprobation against the abnse of a patent by the Patentees of a Theatre. It is said that persons have a right to go into a Theatre.— I do not, caactly, kno.v %hat sort of a right that is : when persons exhibit plays, and fix prices un their Boxes, Pit, and Galleries, if a person gives that price fur his admission, there never can be a tptestioe, w hether he has a right to enter or nut, because he cannot pay, without the other receiving, anti having paid, - he ceters, and therefore the question of his right to enter teem payment is a point of mere theory, which nevercan occur in practice, aid the thing tan never, in reality, urine- , As to the question of the Private Boxes, there are, it is said, in that Theatre, many Private Boxes ; I have never seen the Private Boxes myself, in this Theatre—but, I think, I have seen Private Boers in the Opere.house, and in the late Theatre in Drury.laise. lint supposing the present Theatre to have the Private Boxes which are said it has, and which I presume it has from what I hear. If the Proprietors think it will ba for their advantage, anffif . persons of fashion, who, for some reason do not chose to sit in the common Boxes, chute to pay for sitting in the private one:, I do nut know what right any body has to object to it. The Pro. prietors are to use their property as any other persons would do—that is, as they think most ad vantageotis---if they use it absurdly, they miit, as I have told you before, be rained. It there fore appears to use, that with respect to the occca. sion, or the cau.c of what was done at this play. house on theenight when Mr. Clifford was there, it is impossible to imagine any ground of law oil which it Cats be justified. • I know it has been thought by great numbers of people in this eouit try, that that which you have heard of this day, is a disgrace td the country:.-that it is relaxing our manners and descending nearly into barbarism... to exhibit such noise, violence, and tumult. Per sons going into the Theatre to be the terror oLthe peaceable, and to stop all exhibition whatever, except tho exhibition of their own violence... frightening all persons present, and deterring all others from coming ; for, what are men in such violent scenes to expect s where there are inock.fights..-you know what that alluded to ; you he lliM from the witness what passed that might, wilen the Plaintiff was apprehended. It was necessary, it seems, for the people to stand up (bet 'it was not said, how stand up). Is this con duct to be observed in a theatre fir dramatic entertainment ? o man can venture into such e scene, who is not tolerable robot of constitution, and of strung nerves ; who has not some purpose io view, besides that of seeing dramatic entertain: meat. So indifferent person would clime to go himself into a theatre, *here such confusion ap. peered nightly ; certainly not hit 'wife or Baugh. ter, while this scene of violence is passing.• It therefore seems to me, that the outrages committed at this 'fbeatre, are illegal ht the highest degree, and that whoever has conducted himself in such a way as to involve himself in the furtherance of this tumult, is answerable to the law, and may be severely punished : that is, punished according to the extent of his crime. It has beets maintained that the Public, as it is called, that is, the audience, on. these occasions, have a right to express approbation or disap probation, either of the Play which is exhi bited, or of the performance of any particular Actor, and so long as that arises from the im pulse or emotion of the moment, and is mani fested by clapping or as in such case it must do, from the feelings of the audience, either from admiration or dislike of the Play, or the Actors, it is a right which no one ever found fault , or ever will fled fault with ) I dare sae: 'ATZSM AN. restrictions; funif men agree before-baud to go to the Play, with a view of either Injuring the owners of the Theatre—the Author of a work exhibited—or any particular Actor, or, needed. ing to the common phrase, to llama the piece— if they go to the Play-house for any such purpose, undoubtedly they would be guilty of a conspi racy, and for which they may be indicted and punished; but, as to the honest expression of the ' feelings of the moment, nobody ever did, or I dare say, ever will, quarrel with those who applaud, or disapprove, however loudly they may do either, et ! the Theatre. This being the law of the case, the questions for Lou to decide, are—first, Whether there was a riot at the Theatre, on the night of the 31st of October ? And, if you find that, in the affirmative, then, whether this Plaintiff, Mr. Clif. ford, is to be considered as an instigator of that riot ? Now, with respect to that, the law is this ...That, if any person excites, encourages, takes a part in, or promotes, the crime of riot, whether he actually uses violence, or not, whether he does it by signs or by words, or whether he does it by wearing an ensign of riot, he is guiity of a riot, if riot ensue ; and whether he sears it on his hat, or on his breast, or in any other manner exhibits it to view, he is equally guilty. There is no distinction, in these cases, between principals and necessaries ; every party in suolt a crime is a prin. pal, in whatever part be takes; and you are to r judge, NMI' the evidence, whether Mr. Clifford on this occasion is to be considered as having in. stigated the rioters in this case. I have not et. 'dallied to you yet, what riot is, of which there are various sorts ; but as applied to the present case, if a person attempt by terror, tumult, or dis order, to effectuate an illegal purpose---that amounts to riot. The extent and guilt of such a crime depend upon the number of prisons en. gaged, and the degree of violence which they use ; but it is nut necessary to cunstitue that crime, that actual injury should be done : neither is it necessary that the House should be pulled down. Aud here, there is 1141 evidence be. fore you, of any injury done to the -House: but, it persons, by noise and tumult, persist in this, in order to effectuate their purpose, that is, to compel the Managers to reduce their prices... then, I am of opinion, they were guilty of riot. It is said, that to constitute a riot. there must be terror. It is not necessary to dispute that proposition in this case, for here is that same ter.' ror ; for how cut it be without terror? Would any body send his wife or his daughter to that scene, which the witn.eses have described to you? %%quit the situation of the Managers was, it is not difficult to say ; it is impossible that they should not feel terror, at observing persons fighting in the Pit—moving about—not caring over whom— conducting themselves le such a manlier, that all the people in the Pi eare uhligesl to stand niefor fe sr of being crushed. What would be the consequence of ell these motions, and ntuck-fights, to any person who happened to be presont,and was known to be a friend to the Managers; or, who was of a differ. ent way of thinking, from those who were en gaged in these tunistituary proceedings ? . It lase should be discovered, would they nut resort to that which is pretty generally keowp• -that of,' turning such a person out, or else fright. a ng him ; and would not that be sufficient terror? No doubt it would be prodigious terror. Therefore, Gentlemen, it dies apiCear to me, that there was in this case, a design to effectuate an illegal pur. pose, by a nub—by a violent, tumultuous; noise, and uproar; and which I cannot call, by any other name, than that of riot. Tied being so, the question is, was Mr. Clifford involved iu this—or Is he perfectly innocent—that is, was he encouraging it? Now on that question, you will attend to the evidence of Mr. Hipkins, who tells you, that he met, by accident, Mr. Clifford in Bond-street ; that Mr. Clifford proposed to him to go to the play ; that the place they went to was the Pit ; that Mr. Clifford took no part in the tumult or riot, but stood tip, for fear of being crushed ; hut that he did not say any thing to encourage the rioters, nor, did he du any thing, that seas proved by the witness, to be amiss, in his opi nion; but when he is asked, as to the extent of the noise, and, whether be had ever heard a greet. er, lie tells you, and he could nut express it in a stronger way, that he had heard a greater noise, when he had hard 1000 drunken sailors; so that it is clear he could nut hear the performance ; he could not even know what it was ; that when they went into the Pit, some persons said, " here comes the honest Coutveller ;" and then, way was made by the people, evil they reached the centre of the Pit ; when they were there, some . one asked Mr. Clifford, whether there was any barn in wearing 0. in a hat, to which, he said, none; and then, the same person asked Mr. Clifford, whether he had any objection to 0. P. being put into his hat. 0. P. was put into his hat, and that hat he wore, from that time until be was taken : he had not pulled it (Mt of his hat : he had it in, when he was arrested. The witness tells yoe, that we are too well acquainted with the meaning of 0. P. to reeder ate explanation of the meastiug of that ensign necessary. Another wit ness also tells you the same thing : he did not hear Mr. Clifford say any thing, or do ally thing, to encourage a riot. Other witnesses speak to the same effect: they ell prove that Mr. Clifford did not Com mit ally act of violence, and that they did nut hear • him say any thing to encourage the rioters, and ex.. cept one person, to whom Mr. Clifford spoke in order to prevent his springing a rattle,, lie did net speak to any body in the Pit; and he adds, that there were not, at that time, more than 20 persons wearing 0. P.'s in their hats in the Pit. In eon. sidcring whether Mr. Clifford was instigating a riot, you are to consider, that he is a Gentleman at the Bar of great experience, and, as that is well knows, we may therefore conclude, that whatever M r . Cl i fford 10.1, the persons present, who had an opportunity of judging of his conduct, would naturally think they must be doing right, in doing ts hat they saw Mr. Clifford do. The wearing an 0. P. by a common ordinary person, sod by a man, whiee profession sod rank in life, must na -1 turally give him authority, are very different viii things.. What authr. Cli ff ord had you may judge by the ex us, of the People in the Pit —" here comes thelvonest Certmelloe"..he wee certainly, from that expression, not unknown t• those perm!' ; and why is he an " holiest Coen sellor ?" Why are they assembled I Not to ass plays, but to prevent plays from being seen—this calls for a panegyric from theta on Mr. Clifford, and, he was " an honest Vt?easellor ;" besides, how comes it, that this person, who was springing a rattle, stops the moment that Mr. Clifford speaks, desiring him not to spring it. You me to consider, whether that is not strong ground, fee thinking, that Mr. Clifford was instrumental in promoting the disturbance. Now, with respect to 0. P., and how far the wearing of that ensign, can be 'considered, as involving a person in a riot, it must be observed, that it is nut necessary, fur a person to act in a taut in order to constitute him a rioter ; for,' if he encourages it, he is guilty of a riot. Why did Mr. Clifford go to the play.huuse to see plays ? That, it is impossible to suppose. lie mum have known what had been passing in the play-house. He was not ignorant. lie could not be ignorant of that. What then dill he go for? Did he know the mean i ing of 0. P. ? You will judge whether he was Ig. norant of that, and if he nos not, he must have I thought that putting 0. P. into his bat, was just the same as belonging to a regiment. He had pet on a hit of that regiment, or at least he had a cock. ade of that regiment. For what purpose cool Ihe let that 0. P. be in his hat, but to encou. rrage the persons who were rioting to goon. Here, probably, if you 'Leonid ask Mr. Clifford the question, he perhaps would have ne his. Ilion, in telling you, that he did put that very ensign into his hat, and, in considering the permission which he gate, fur the putting it into his hat, you will, perhaps, judge what was the purpose, fur which he went to this Theatre; and, whether, you can assign any ether cause, than (that of an intention to encourage what was then going on. I have stated the substance of the evidence on this point, to shew that Mr. Clif ford did go to the Theatre, under eats. ordinary circumstances : and you will exer cise your judgment, whether he did, or did not, encourage the Riot at tho Theatre. Supposing, that you should be of opinion, that he did encourage the riot, therc will be another question for you to consider, I wan e the illegality of his apprehension ; about which point, you have heard evidence, and must also exorcists your own judgment ; and you will be so good as to tell me, after you shall have given that verdict, on what ground you find that verdict. Whether on the ground of Mr. Clifford not being concern ed its the riot, or whether on the ground, of the illegality of his apprehension. It has been con. tended, on the trial, that although an iudividual, i may arrest a man, in the act of riot, of commit. !nig a breach of the peace, he cannot law. fully seize such person at a subsequent period, for the previous commission, of any such eat. The language of the la* is this, (reading from a book); " As to the arrest of offenders, by fa*. " 6 rate persons, of their u*n authority, for pri. ct coin offences, it seems dear, that no private cc person, can arrest another for a bare breach " of the peace after it is over." Now you see, Gentlemen, there is a doubt as to the precise pot, on which Mr. Clifford was arrested or taken. If the thing had been quite over, and Mr. Clifford bad taken that ensign of mischief out of his hat, if the people had been gone, anti every thing had been quiet, then, it may be contended, that they ought to have obtained a warrant for his appre. !tension. But unless you consider this riot, as completely over...the apprehension, according to what is laid doss n in the book which I have read, was not nut of time. Mr. Hipkins swore, that Mr. Clifford was out of the Pit, but he certainly had not gut out so far as to have passed the mo. ney.dour...there may be a passage between the money.dour and the Pit, but certainly after peo• pie have paid their money, and passed that door, they are in the Pit. He says indeed that he was seised out of the door, but that is almost equivo. cal ; fur probably the door was not shut after him —a question arises on this, whether Mr. Clifford ' was or was not in the Theatre. 1 Mr. Serjeant Barr.-. Mr. Bone said, end Mr. Brandon tuld the officers, that A' Clifford was gone out." Sir JANIS %Lourlacy—Some people said Its was gone out, and then Mr. Brandon cried out, Seize him !" but Mr. Bone did not see hint sized. Mr. Clifford went to 'the door, and then was laid- huld of by bin'. Whether a man were in the Pit, or out of the. Pit, if the riot were corn. -pletely over, a private man could not apprehend him ; 4ut the warned( the rioters are beginning to separate, I should .think they may be taken hold of, because, as the Countel for the De fend oft said, there might be . danger in attempt. ing to apprehend them during the continuance of thc riot. —Bow far the noise'and tumult which constituted the riot remained, you are to judge. The riot hail continued, and this en. sign was in his h-it and the moment a man could have an opportunity of taking hol.t of him, lie was re zed. You hare to judge whether in the true understanding of the law, the riot was over. If yen should be .opiniu.o that it was over, and that the arroit was nut warranted by law, the Plaintiff will he entitled to a verdict, and you will give him such damages as half an hour's imprison. meet, in your opinion, deserves. But if you are of opinion that Mr. Clifford did encourage this riot, by the eircemitances stated, end that the thing was uut, in the fair sense of the words, corn. pletely amr when he was taken, then yes will end your verdict fur the Defendant. The inry then withdrew. Sir JAYE, MANIPICLO gaiil (addressing himself to Mr. Serjcant Best),. es this cause strikes ine, some parts of your speech, I think, may be liable loch wish to make it un. •to misconstructhen. m derstood by the persons Isho arc assembled to bear the trial 0f this eausq-aa great number of them, nu doubt, meaning well, but oho arc certainly deluded eetremely, that they cannot go on at the Theatre, as, it is row clear they have done, ' I I