The Sun. — London, England, 1822-07-29 00:00:00

190 you know whether he lived in Petersfield ? No, he did not. - • Mr. Serjeant PE LL.—You first ask him a general question, he said he did not know ; now you ask him you do not know that he lived in Petersfield. Mr. .515 nEWETHER.- 1 1 asked him whether he knew if 'he lived in Petersfied. Mr. Serjeant PE I. submit that is not a proper question. Mr. Justice BURROUGH.-1 believehedia not; we all know that. Mr. ADA M.—We will call back Mr. Cannon, to ask him whether he knows where he lived. Mr. James Cannon called again. :111 ADA 31.—D0 you know where Sir Joseph Eyles lived ? A. I do not know. Did he live in the town of ,Petersfield ?—No. Mr. Justice Bu RROU G H.—Every 'body in the county knows • that, they are facts that every body knows. Mr. NIEREWETIIII.—(To Seward.) You have been in thelabit of attending Courts beet since 1805 ?—Yes. • Look at these papers (handing some papers to the witness) and tell me whether those are the presentments from 4805, down to the present time; what is the date of the earliest ? 18(13 is the latest. Do those come from the same.place as the others come from ? Ves, they do. ' Deliver them in.—( They were handed in.) Q. To what period do they go down ?—A. 1822 The Presentment, dated 17th January, 1803, was read, Mr. G.AsELEE.—Are not those presentments entered in a book ?—A. Yes. Mr. ME RE WE,TiI E R.—Copied in a book ? —Yes ; those are the originals. Mr. Justice Buffuoudn.—The originals are the best cer . tainly. Mr. attEELEE.-I apprehend those are hardly the original igesentments ; they are merely a minute of who was presented. Mr. Justice 1311 RROUGIL—They are the.presentments of the jury of the Court beet. Mr: A-DAst.Signed with their own names. Mr. Justice BURRO uGri.—And they sign their names. GAsELEE.-LThere should•be a caption ; it should • ap pear that the Court was held, and the Jury sworn. Mr. Justice Bunuouott,—This is at a Court holden ; it is an act of the Court. Mr. GASELEE.--Lit is signed by certain persons, but there is no signature of the Steward to authenticate it. Mr. Justice Ho oIT Gri—Nor need there .be. Mr. qasELEE--Nor does it appear that the Jury were sworn. Mr.. Justice Burtn out - ill—That must be proved. . 3lr. G.ASE does not appear that, the Court was holden. Mr. Justice EU 121101:011—Do you mean to prove that the ,Court was 'holden. Mr. ADAM—I submit to your Lordship that that paper is evidence. ,Mr. Justice BunnouGH—lt is evidence no. doubt what it proves is another matter; did you use to attend the . Courts ? Yes.. '—As early .as 1806 or How early did you atteeld the Courts ? - 1807. Did you attend them afterwards ?--Yes. • When were they held ?—On the 17th of January. That was the time they,were always holden Mr. Serjeant PELL.—IIIy own opinion is, that they are evi dence,.valeat quantum. Mr. AIEREWETHER.—We need not have them put in. Mr. Serjeant PELT —Have you done with the witness ? Mr. ADAM—We have not half done with him. . Mr. Justice BURROUGII— , Why do you fight matters that are as clear as day-light, why do not you come to the point at once, you know this is all buckram. Mr. GASE LEE—We are bound to make these objections. Mr. Serjeant PELL-1 should be very glad to do it, it must come to that ultimately. Mr. Justice BURROUGH—You must come to the real point at last. Mr. GASELEE—If they will only give us buckram we can ect help it. Mr. ADAM—We are giving you good broad cloth. Mr. Justice BURROUGH—Why do you prove those formal matters. Mr. ADAM—Are there any of these formal issues to which I . _reed direct my attention. Mr. Serjeant PELL—I want to know how you get the . Mayor. .Mr. ADAM—I shall not tell you—l get my Mayor by the presntrnent of a Jury. Mr. - NI CREWET HER—( Seward)—Dop this paper come 'from among - the papers, of the Court ?—Yes. LOA at it, the name of it (handing it to the witness), and tell • .me whether it is Mr. - Hector's hand writing ?—Y es it Mr. Justice Etranorroir—What is this ? Mr. M EnruirTnEn— It is the precept signed by Mr. Hec '_tor,- nominating the Jury at the botrorsa of the precept.—( The razre :vas delivered in and read.) Mr: MEnEwr rirrn—Have you other piesentulents there _that come from the same custody ?—Yes. And precepts annexed to them ?—Yes. -Down to waat time ?-1822. Serjeant PE L L—Let us have them ? . Mr. ADAM---You shall have them, and do what you like with them. . You have.stated you have been at the Court regularly from -123C6 to' the present time ?—Yes. Were you at the Court in January, 1322 ?—Yes. Were the proceedings at that Court like the proceedings at .all the preceding Courts ?—Yes. Have you got the presentment for I3ll?—Yes. Turn to.it and, see.whether Mr. William John Joiiiffe was presented Mayor at that Court ?—Yes ' he was.-. Have you got the precept there also ?—Yes. See if it corresponds with the one put in before ?-,-( The wit ,veer compared them.)—They correspond. They are in the same form ?—Yes,,it is in the same form. With Mr: Hector's hand writing to them ?—Yes, to the precept.' t. - During the time 'ou have attended this Court, has it been the custom for the'Steward of the Court to nominate the Jury ? --=Yes, it has, been. After the _Jury have been ,sworn, and are.to consider their presentment,bas it been the custom for the Steward to remain with the Jury.—Alway§ ? Ir. JUSTIC BUIIROUGH—You have not asked whether the Mayor was sworn. Mr. IV/ErtEwETHER—When you were at the Court in Janu ary, 1822; did you see Mr. Jolliffe.sworn?—Yes. Mr. JUSTICE BURROUGII.—Were the Jurors sworn at vacao Court ?=Yes. Do you recollect the Oath ? —Not exactly, I cannot say. - They were all sworn ?—Yes. Although you cannot recollect the particular terms, you can recollect the substance ?-=They were to make true present, iments. , That was the effect of it?—Yes. Were they so s,worry in January, 1822 ?—Yes. Was Mr. Jolliffe swcrn•as Mayor at that time ?—Yes. During the time yoil have known the Court, has the Mayor 'been sworn in Court before the, Steward ?—Yes, he has. Mr. ADAM—I do not know whether you put, : me to prove that the person sworn has exercised the office. Mr. Serjeant PELL—O no, •we will admit that. Cross-examined Mr.GASELEE. - Yon - do not exactly recollect the - oath ?—No. It was to make true-presentments?—Yes. Perhaps it was that the King's Counsel, their fellows, and their own, they should keep secret "?,-Yes, it was. 'Mr. AnAm. —That is a question for the Judge. Mr. Serjeant PELL.--It is a question we ask your own wit mess ; if it is not true you can prove the - contrary. Mr. GAsELEE—After the Jury have been. sworn, and the charge delivered, every body is turned out of the room ? Yes, the by-standers. Air. Justice Buitgou&st—Turned: out of what room ? The Hall, while the Jury were preparing their presentment. The Jury made their presentment in the Cdurt ?—Yes. .And the Jury remained in the Court?—Yes. 'And the Steward remained in the Cotirt ?—Fes. Mr. GASELEE—Is there any adjournment of the Court while that is going on ; is there a proclamation that it is adjourned ? —There is a proclamation that the people are to retire while the Jury aro considering their presentment. And then the Court is opened again and the persons arc ad mitted ?—Yes. Does the Steward then ask' the jury whether these are their ,presentments?—Yes, he do es. Does he put the same question to them as the Clerk of Assize does that they are content that they shall be altered as to mat • ter of form is presented to the Steward by the Foreman. • Does the Steward say, are these Our presentments, and you. agree that, the Court shall alter 'them as to form receives -the Presentment, and asks, them, is this Our presentment ? or • warns to that 'effect. Does he go on to say,—they are your presentments, and are you , content that the Court shall alter them in point of form ?-1 do not recollect that. Haveyou attended-regularly ?—Yes. I observe, upon looking at some of these presentments, the names are filled up afterwards ; the names are in a dill rent . hand-writing ?—Yes. So that the presentments are prepared in blank before - the Court is held.?..--Yes. In whose Office is that prepared ?—ln Mr. Nectar's. In the Office of the Steward ?,-It has been settled before the --Court ha:s. assembled. What do you mean by saying they are prepared in blank,—we ~,present so and so to be MMlayor t such a one to be Constable, blank tote tithing man, and we present so and so Bailiff ? All the Officers. They are in blank ?—Yes. All that the Jury have to do is to fill up the names that have been left in blank ?—Yes. And th;se.liefilledWby Mr. Hector, the steward ?-They are generally tilled up by him - ; I have sometimes filled them up. Have you attended The Jary ?—Yes, for some years when I first attended the Court. 'When you have attended, have you remained with the Jury ? —Yes; I and 3lr. Hector wt re the only, two persons that re mained ; I have been there as many as four or five times. The Mayor is the returning officer of the Borough ?—Yes. You were clerk to Mr. Hector fifteen years P—l es. Did you know . Petersfield before ?—\ es. How long have you known Peterstield P—l suppose four or five and twenty years. " Did you know Mr. William Jolliffe ?—I do not know whe ther he was alive then or nit. ,1)o you remember his being Member for the Borough ?—I dd not. Mr. Hylton Jolliffe his been Member for it ever since you remember it ? Yes. And the other Member some person recommended by him ? Mr. ADAm.—llow can that question be asked? Mr. Justice gURROIT GII.—ThAt is not'the way to put it. Mr. GASELEE.—Upon cross-examination I have a right to plait in that way. Mr. Justice BuitnouGn.—No; you have not. Mr. GASELEE.—IIas not the other Memberbeen a •person recommended, by him, do you know that ?—No, I do not. Mr. Justice ItunitouGili—He does not know it, it is very likely ; suppose it was so, how does that affect the choice of, Mayor? _ , Mr. Serjeant PELL.—We will only ask a question about the Jury. Mr. UXasr•.LEE.—The person summoned ,upon the Jury in 1822, Ore " John E Nleeres ' do you know whether he held any property of Mr. Jollifte ?--I know he pays .a quit rent on a lease. Does William Blunt hold any property, or pay any quit rent to Mr: Jolliffe , ?—Yes, he does. Which ?—He rents land of Mr. Jollife. Mr. Thomas Sewell; does he rent any land under Mr. Jolliffe ?--Nes ; in the same way as Mr. Meeres ; he pays rent. Is it leasehold or freehold ?,—Leasehold• Mr. John Small; has he any property ?—His house is lease hold; he pays a rent to Mr. Jolliffe; the house belongs to his father; Mr. Serjeant PELL.—They live together. Mr. GASE LEE.—Mr. Francis Bartlett; has he any proper. ty ?—lle rents a house of Mr. Jollifre. Mr. Thomas Holland ?-His father rents a house and lands. Does he live with his father ? —No. Mr. Thomas Williams ?—Not any ; his house belongs to himself. Does he rent -any thing of Mr. Hector ?--He does rent a small house, a tenement of Mr. Hector. - Robert Parsons ?—Not any thing at all. Mi. Henry Linton ?—Not , any thing at all. Mr. Richard Eames ?—He lives in a house of Mr. Jolliffe's. Mr. .ADA3l.—lie did not attend, Mr. GAsELEE.—:He was summoned, but did not attend. Mr. Justice Bu RR 0 U Gli.—These , a.re the persons summoned. Mr. GASEL EE.—Ves ; Christopher John James Creswaller ; does. he hold any thing under Mr. Jolliffe ?—He holds by lease, and pays a small quit rent. Mr. William Monday ?—He holds a house of Mr. Jolliffe. Mr. Justice BunP.ountr.—At a rack rent ?—Yes. _ Mr. flAsEirr..—Thomas Neave ?—He does not hold any. Mr. Thomas Figg ?-11e rents a house. Henry Baker, son of Thomas ?—He lives in part of a house belonging to Mr. Jolliffe. James Moore ?-lle lives in his own house. Does he pay any thing to Mr. Jolliffe ?—A small quit rent. He has a leasehold and pays a quit rent ?—Yes. Mr. Justice BURROUGIL—Upon lease ?—Yes ; for nice hundred years. Mr. Serjeant PELL.—We do not put this as a species of in terest that would warp their judgment, but it is an ingredient in the case, and must form part of it. . Mr. Justice Bultll oil oll.—lt cannot go to the right. Mr. GASELEE.—WiIIiam Ashford ?—He rents a small field of Mr. Jollitte: Re-exami nod by Mr. MEREWETHER. Q. We have heard before that Mr. Joni& has a great deal of property at Peterslield :—A. Yes. Is there scarcely a person there that does not pay a quit-rent to him in some way or other?—Very few. Anti many of those are held upon long leases ?—Yes, nine hundred years, or something like that. You have stated, that Baker holds something ; I understand that is a mistake ?—He lives in the end of a house belonging to somebody else. . You have stated that as to the officers to be presented the presentment was in blank ?—Yes. The Jury presented other things besides the officers?-=Yes. And those would be added to the others ?—Yes. Mr. Serjcant PEI.J.--Yoti,do not mean to ask that serious ly— here are the presentments. Mr. Justice Bu u ROUGH.—They may present any thing they please : they may present a gutter out of repair : they may pre sent night-walkers, if they.like. Mr. ADAM.—Any thin g in the nature of a nuisance. .Mr. GASELF.E.—Is Mr. Jolliffe at all resident at Petersfield ?--Ile has a house in Petersfield. • Does he live in it ever ?-1-re keeps a servant there. • - - _ When he came down to Peterlield to the election, did he live there or sleeii at the inn ?-:-.He slept at the inn, I believe. 'When lie came down to be elected ?—Yes. Does not he live at Merstham, in the county of Surrey ?—Yes, Merstham or Ryegate. You say he has a,house in which he has a servant, did he ever reside there ?—He has, never slept there to my knowledge. I have seen him there ; but I do not know that he ever slept there. Have you seerNahn there ?—Yes. Once or more ?—Half a dozen times. Mr ADAK.—IIe never slept there that he knows. Mr. GASELEE.—Do_you knot; whether he took his meals there ?---i do not know as to that ; I have seen him there. ' What have you seen him doing ?—Sorting his writings, and doing such sort of things ; I have seen him doing that. Mr. Thomas Shoell sworn.—Examined by Mr. ADAM. Q. How old are you ?—A. Sixty-eight.. How long have you known Petersfield ?—I was brought up there ever since I was six months old. Have you known it all your life ? Yes. Did you ever serve the office of Mayor ?—No. Did your father ?—Yes. Have you ever been upon the Leet-Jury?—Yes, often. How tar back were you upon the Leet-Jury P—Five-and forty years ago. When you first knew Petersfield, who used to summon the Jury to the Leet`?—The same as it is now. Mr. Serjeant PE LL.—Then it is of course in writing- - ; they cannot shew what is done without producing the precept. Mr. ADA3I.—Is your father dead ?—Yes. Did you ever hear your father say who warned the Leet- Jury ?—No, not particularly. Have you ever heard any other person say so ? Mr. Serjeant PELL.—That will not do. Mr. Justice Bu RROUGH.—What day was the Court holden ? —The seventeenth of January. In every year ? Mr. Serjeant PELL.—There is no dispute upon that. Mr. Justice BURRO UGH.—You admit that? Mr. Serjeant PELL,—Yes, my Lord. Mr. Justice BtatitouGH.—The Jury were sworn. Mr. Serjeant PELL.—I have got sufficient now to raise the question of law; Islia.ll give my Learned Friend very little trouble. , . Mr.,Anam.—When you were summoned to serve upon the Jury was any paper sliewn to you ?—The list of the Bailiff. Mr. Justice Buaßouctz.—lt comes to nothing—it proves nothing; you have got the presentments since the year 1803. Mr. ADAM.—I want to carry it back to 1763. Mr. Justice BURROiTGH.—The 'Jury may presume that. Mr. ADAM.—That is our case. Mr. Serjeant PELL.-..-Gentlemen of the Jury—. This will be a question of law after you shall have decided upon the facts, and a most important one it is I will venture to say that there has not been tried at these' Assizes, nor will there be round this, Circuit, nor has there been during many Assizes, a more important case than the one which is now before you. I conceive it to be so important a question that I shall seek, with iny Lord's leave and yours, to put it. upon the Record in the most formal,shape imaginable, that it may be ultimately de cided by the highest Tribunals ; and although, Gentlemen, the course has been sometimes to treat with an air of levity a ques tion of this description, because to some persons it is not a very agreeable topic, I shall take leave to say, that it is impossi ble to' discuss a subject of more general interest, and involving in it more important consequences. Gentlemen, I think my Learned Friend a little wandered out of his course when he in troduced the name of the .respectable Gentleman who, as he states, is the prosecutor of the present information, Mr. Atehe son. If any of you happen to know him, you will go along with me in agreeing that a more respectable man cannot be found. My Learned Friend says, that till the year 1318 the peace of this Borough had not been disturbed, when Mr. Atche son came down for an electioneering purpose. This is . the sort of observation that we are constantly in the habit of hearing at the present day. Let any man attempt to set that right which he considers wrong, and which is in fact wrong, lie is, however absurd and illegal the object of his attack may be, immediately stigmatized as a digturber of the public peace, and invader of privatz rights. Gentlemen, we all hear so muc • h of tbis sort of observation that we cannot be surprised that men are to be found in this kingdom to support a system in consistent with the first principles of the Constitution under which we live ; no man would more strenuously oppose inno vation than myself ; but, in my opinion, he is the best benefac tor of his country who brings back as faras he can, in a peace able and legitimate manner, things to that original state, whereby law and justice, and above all constitutional law, are to be maintained. Gentlemen, I am not one of those who would wish to break in upon the law of the land. - I am contending for the law of the land, and the difference between me and my Learned Friend upon This subject is, that he is endeavouring to support, in opposition to the law of the land, what I observed with great point my Learned Friend Mr. Merewether calls a custom,—as if the word custom would carry this question. It is not because the witness chose to speak of the custom of the Borough, that therefore it became a custom in the legal Sen,se of that word. I will venture to say, that there is nothing which has done more mischief in this kingdom, and introduced greater confusion, than the perverting that which is mere usage into that which is called. custom., There is another principle that has been pressed heretofore to an extent, that has done as much mischief; namely, that a Jury may presume that, because a thing has been done for a few years, it has therefore always been done. Gentlemen, there is nothing in the administration of justice - more dangerous than the confounding of terms. If I speak of a custom, I speak of that which is supposed to have its origin infinitely beyond the time of any living witness, and running back into a remote period of antiquity. I speak of that which is reasonable in its nature, and consistent with the circumstances and legal principles of early times. 'lf it can be shewn, that that which I call custom is not consistent with the principles of law or equity prevalent at any time, it is not custom, but usurpation and illegal usage. Al though I do not mean to fatigue my Lord or you with going' into authorities at any great length, I have now lying before me, in verylate eases, the opinions and judgmentsof the Judges of the land with reference to this doctrine of presumption, and it is now admitted that the Courts of Law have gone hitherto very far upon that supposed principle of presumption in favour of practice ; and in the last case in which that point was touched upon, the Lord Chief Justice of the King's Bench expressly stated, that in his opinion the doctrine of presump tion had gone a great deal too far. Now, Gentlemen, let me apply these principles to the pre sent case. The questions you will have to decide are these—first, What is the custom of the Borough of Petersfield as to the mode in which the beet Jury is constituted ? the second will be, What is the custom of the Borough of Petersfield as to the manner in which that Jury has discharged its several duties— in other *orris, can the Steward, or the clerk of the Steward, be shut up with the Leet Jury when they are exercising their functions ? Gentlemen, let ree take the first question. The proposition on the other side is, that the mode of constituting the Leet Jury is by precept issued to the Bailiff of the Borough, and the Bailiff of the Borough is to return—what ? a certain number of per sons mentioned by the Steward of the Lord of the Manor. They say, by the custom of the Borough, that is the mode by which, under which, and through which. the Jury is to be con stituted.; there we are at issue. I say that is not the custom ; for I say that that is not law, and 1 contend that that which is, not legal cannot, in any shape be custom. Gentlemen, I ant not meaning to argue that, or pushing it beyond the length ne cesiary to enable you to give your verdict upon the facts of the case, but I must make myself understood. You cannot apply your minds to the facts of the case with the view 1 have, unles s I impress upon you the distinct view I have of the case. You ate to be satisfied of this, that there is that custom. The first 'requisite of a custom is, that it should be reasonable, because a custom rests upon legal principles ; and if it is not reasonable it cannot, I apprehend, speaking as a Lawyer, it cannot be a custom; the law will not tolerate any thing that is unreason able,—that is quitetlear. Now, what is the next requisite ? it must have a reference back to time ; I will mention hundreds of years, but it rests upon the presumption that the constitu tion of the place from its earliest period was governed by it. Now, what is the custorn - here ? they conceive that the custom here is, that the Steward of the Lord of the Manor of Peters field is to issue his : precept to the Bailiff of the Borough of Petersfield, and by that precept he is to summon a certain num ber of persons to form the Leet Jury, and then they go on and say, that by the custom of Petersfield the Steward May tiomi nate the very persons whom the Bailiff: is tusummon. Now, I do say that this involves in it a' manifest. contradiction—that it is absurd end' illegal—that it is contrary to the first principles of law—that if, instead of a usage of twenty years, it had been' supported by a usage of eight hundred years, that still would not have done. Only see what 'this is, and what the conse quences are, and I shall trouble you with nothing more upon the subject; the Jur yinet solely for the purpose of appointin a Mayor—that is the admission of my Learned Friend—and that the Mayor, when chosen, has nothing to do but to execute the office el Returning Officer at the Election for the Borough of Petersfield. What an absurdity all this is--Petersfield that has a Mayor and no Corporation—you see that every stage and step. of this .business involves in it that which is contradictory to the principles of that branch of the law. My Learnd Friend states there is a Mayor, but there is no Corporation. I see Mr. Merewether smiling, and I will not forget a very excellent treatise of his now lying before me, and whichl shall use as part of my address to you. I am always happy to have the rays of his smiles upon me—l see how he is struck, as if I had pronounced the greatest pos sible absurdity—a Corporation and -no Mayor, or a Mayor and no Corporation; but here is Petersfield governed by a Mayor, chosen at a Court Leet, having no residence there, no duty to discharge except that which Mr. Jolliffe-thinks the most valuable, making the return of Members to serve in ParliaMent —ve'ry valuable no doubt it is. lam not surprised to find my Learned Friend contending so Rarnestly for this very valuable private right. It is a valuable righteand every body who dis turbs it, whether Mr. Ateheson or any other Gentleman, is a disturber of the peace. Mr. Jolliffe having had the returning of the Members ever since 1793 is alarmed that any body should attempt to take it from him. As Mr. Jolliffe - is anxious to preserve all-his other private rights, no doubt he is anxious to maintain this which is his most valuable right, but what an ab solute absurdity itis,—one should almost blush in a Court of Law tts speak on such a subject. The Jury, who are sworn to dis charge a public duty, and yet nominated and selected by the individual who has a private interest to preserve—an interest in consistent with the only duty which the person who is to be se lected by the Jury has, as it is said by them, to perform. It is a perfect mockery. Aft.. ADAM—Your Lordship hinted to me that these were considerations that were not fit for the Jury, and therefore I rather feel myself aggrieved that my learned Friend should enter into them now. Mr. Justice BURROUGH—The question was the "point of fact, and it is upon the record. Mr. Serjeant PELL—My argument is, that there is no custom in point of fact. . Mr. Justice By RROUGH—You allege that it is an illegal custom in point of fact, you want a special verdict. ' Mr. Setjeant PELL—That is what wish. Mr. ADAM—There is no objection to that. Mr. GASELEE—We want something more than that single fact; we want the fact whether it could ever have existed. Mr. ADAN—I had no opportunity of stating my view of the subject to the Jury. Mr. Justice BETRIIOUGii—I must tell the Jury my opinion upon the facts proved. Mr. Serjeant PELL—I know how this has happened ; my Learned Friend has had no opportunity of expatiating upon it, because he expected I should call witnesses. Mr. ADAst—l ask the Gentlemen of the Jury whether his Lordship did not stop me and say it was for the Court above to decide those points. . . . Mr. Serje;nt PELL-1 have no objection to hearing my Learned Friend. Mr. Justice BURRO UGH—Make your observations now. Mr. ADAM—It is hardly possible for me to do that. Mr. Justice BußnoupH-1 thought both of you had agreed that it was fit it should be a question of Law, you may move the Court and have afterwards a special verdict. Mr. Serjeant PELL—I could never be supposed to admit there was a custom. Mr. Justice BURROUGH—You may move the Court upon the facts, and if the Court think .it right you shall have a special verdict. • Mr. Serjeant PELL—There is something tbr the Jury to do; I cannot give up the advantage 1 have of addressing the Jury again. Mr. ADAM—Then see the disadvantage under which I shall labour. Gentlemen, it is with very great rel i nctance I present myself to you again, but you will recollect'that the opinion of his Lordship stopped me in the course of the observations I was about to pursue ; and again, you will also recollect, that from another intimation from the Learned Judge, sanctioned as I also understood by my Learned Friend, that the course of evi dence carried back to 1801 was sucient, if uncontradicted, to authorize any Jury to say that what had existed for 20 years uncontradicted by any evidence on the other side, had existed from the earliest time. In this part of the case I need do no more than refer to the ordinary findings of Juries upon ques tions of right alleged to have existed from the time of legal memory. You are daily instructed to find that the evidence of twenty years is sufficient to say that what has existed for twenty years uncontradicted must have existed from the time of legal memory. Gentlemen, as far as I can make my obser vations consistent with the course followed by my Learned Friend, I shall e ideavour to satisfy you that this custom, this usage, has not only prevailed in the Borough of Petersfield in all times, but that it is a reasonable and laudable custom. Let us see the absurdities my Learned Friend relies tipon as being sufficient to shew that this course cannot be pursued : but film is one point upon which I must set myself right. I never stated this was a private right ' I ask you if this, which my Learned Friend repeated over and over again, was sanctioned by any thing I stated to you. I stated that Mr. Atcheson had disturbed the peace of the Borough • can any body sieny that the Borough of Peters field has been a scene of contention for two contested Elections ? but does it follow that Mr. Atcheson, pursuing what he had % as much right to do, as far as my opinion goes, as any man in Eng land, is it a fair conclusion, from my stating, that Mr.Atcheson had disturbed the peace of the town, by what he had done and given rise to this discussion, after the same cause had subsisted for so long a time—is it fair to say, that I stated that Mr. At cheson was a disturber of Mr. Jolliffe's private rights--they are not private rights, they are public rights, but whether they are as important as my Learned Friend wishes you to take them, I will not say,—no man can say I applied my observations to private property. The first question to have recourse to is the legality of the Steward nominating the Jury. My Learned Friend has told you the opinion of the Judges ; but did he state the cir cumstances of the case ? did he enable any one ()fps to say how the circumstances applied ? does my Learned Friend mean to say that that was a rule laid down for all cases, and applicable to every state of facts ? I say no man has ever denied this, that from a uniform course of usage proved as far back as living memory can go, and I should have proved it twenty years far ther back than I did. Mr. Serjeant PELT.-I will not interrupt you, but do not let it be supposed you have been stopped by me in proVing any thing. Mr. ADAM—His Lordship stopped me. Mr. Justice BURROUGII—I certainly conceived it wonld have been a question of law. I had no idea of this arising, in this way. I thought it had been a question of law upon the face of the record. Mr. Serjeant PELL—No, my Lord ; that it would be ulti mately. Mr. ADAM—Now let us see what is the evidence as to the nomination of the Jury by the Steward. I admit there is no thing to be done in this case by the Mayor, except as the re turning officer. There is nothing here stated to shew that the act of the returning officer is the act of the Sitting Member. There is nothing ;that can enable him to infringe the vote of one single person ; he must make a return of the Member elected. If he is only to execute the office of returning officer, where is the objection to the Jury being . named by , the Steward ? What is my Learned Friend's proposition on the other side? He stated at one time there was an incon gruity, an inconsistency and absurdity upon the very face of the precept by which the Bailiff was ordered to summon all the resiants, and then that the particular names were given who' were to be the Jury ? In ancient times the Steward was a man of education; the Bailiff of the Manor is taken from the lowest class of persons, and his judgment could be very little entitled to that trust my Learned Friend wishes for. If we are to take the plainest mode of Election, would you have it made by the Bailiff, Constable, or Tything-man, you would certainly have it made by the higher man, and not the lower man. But is there any absurdity in the Steward doing this, because he is the Steward of the Lord ? the Leet was originally taken out of the Sheriffs torn. Who chooses the Jury of the Sheriff ? The Sheriff. Who presides ? the Sheriff: I submit that you are to consider this as it is—the case of a 6ourt Leet ; it is a Court 'of Justice ; it is a Court that may decide upon very important rights—rights not affecting Mr. Jolliffe any more than his te nants. My Learned Friend would have you suppose that this Court Leet had nothing to do but to appoint the Mayor of Pe tersfield ; it is true the Mayor has nothing to do but to return the Members to Parliament, but the Court Leet may have very important functions. But they would have the Jury chosen by the Bailiff. Who is the Bailiff ?—The Bailiff himself is cho sen by this very Court Leet ; so that my Learned Friend wishes, for the purity of the Court Leet, the chocising of the Jury to be put into the hands of the Bailiff, who himself has an interest,that the Jury shall return him as Bailiff again ; if he does not choose people who shall follow his own views, there is an end to his existence as Bailiff. If there is no inference to be drawn from that, I say the Steward is much the most fit person. I say, somebody there must be to select the Jury.—The ques tion is, whether it is to be the Bailiff or the Steward. My rea son induces me to think, and to say, that the Steward should be the person. and not the Bailiff. The only other point is the propriety of the Steward remaining with the Jury.—My Learn ed Friend has not yet said any thing upon that subject : there fore I have not the advantage of knowing the way in which he meant to argue the case ; but you will recollect in the course of the examination some stress was laid upon this, that the pre sentm •nts were drawn up somewhere else, and blanks left for the names of the Mayor and the other officers : therefore, I presume the inference to be, that there is no occasion for the Steward remaining with the Jury, because there is nothing to be done. That is a very great mistake. It may be that no circumstances have occurred in a particular year, upon which it is necessary for the Jury to come to a presentment ; but we know this, that they do, and may, make presentments, which, if they be not traversed at the time the Court is sitting, cannot be traversed at ail; therefore, I submit there is quite a's much occasion for the Steward to attend the Jury, although the pre sentment may have been prepared in blank,—it is prepared out of Court to save the time of the Jury, not supposing any thing out of the common way will happen. If there is any thing that does happen, the Steward is there to render them that assist ance which is necessary. But now I want to know where there is any thing illegal in this—supposing they are sworn t 3 keep their own and the King's counsel: I want to know where there is any thing illegal in the presence of the Steward—the officer of the court—the Judge, who is afterwards to preside in the Court,—is there any thing illegal in that? I submit to you, that the presence of the officer is a matter of no importance whatever—that the security of the public is the security which the inhabitants, within the jurisdiction of the Court-Leet, have, for that being done which ought to be done, and no more, — that punishment is sure to follow if an officer exceeds the bounds of his duty,—that his being present there to assist the Jury in matters of form, not interfering with their deliberations upon matters of fact, is not illegal, and is attended with very great convenience. I have only this other observation to make : I know not how my Learned Friend will shape his case, but I state to you, that there can be nothing illegal in that being done here which is done elsewhere—there can be no improper con duct which would not be brought to punishment. Upon these grounds, I hope you are satisfied that such has been the usage, by the evidence we have laid before you, and what I shall ad duce, if his Lordship thinks it necessary,—that it has been pur sued so long, and that there is nothing that can justify you in saying it is illegal or unreasonable, or a custom which ought not to be allowed. I am sorry that this misunderstanding has made it necessary for me to address you again. I was in hopes this cause would have been finished 'ere now. If it was my fault, I am sorry for it ; but 1 am sure you will not Allow that to pre judice the interests of my client. Mr. Serjeant YELL.—Gentlemen of the Jurv— Mr. ADAM.-4 can carry back the evidence - for twenty years. Thomas Shoell called again..—Examined Mr MERE WETHER. Q. You have lived in Peterfield all your lifetime, and have been in the habit of attending the Courts-Lett ?—A. Yes. When you have been on the Jury, has the Stewardxemained with the Jury ?—Yes. From the earliest time ?—Yes. • Mr Justice punitquox.—He has said so before. Mr. ADAM.—Now we have done. Mr. GAST:LEE.—It must be in writing—we cannot take that fact. Mr. Justice Bymtouou.—What ? that the Steward retired with the Jury ? Mr. GASELEE.—No ; we do not dispute that. Mr. Justice BURROUGII.-42. There was a Court-Leet in those days, and the Jury made their presentments ?—A. Yes. The Mayor was always elected at the Court-Lcet ?—Yes. Mr. GASELEE.—We do not deny that. Mr. Serjeant PELL.—Gentlemen, Mr. Jolliffe cannot com plain that he has not had every opportunity afforded him that Justice required. He cannot complain that there has been any misunderstanding by which he has been deprived of any ad vantage. My Learned Friend. has been heard after I had in part addressed you, and has called witnesses back again—and he may call, as many more as he likes. He has now a declared opportunity of calling any more witnesses he pleases, if my Lord thinks it rig it. Do not let me be told hereafter, at any thing has been left out which Mr. Jolliffe could have proved. I now come to the point at which I left off when 1 last ad dressed you ; I thought I was right that the issue is whether this, which they now contend ought to be, the Law of Pe tersiield, has been so from time immemorial ; you will there fore have to say by your. verdict whether, upon this evidence, you are satisfied of that. My Learned Friend has stated his reasons why he thinks that you have had evidence before you sufficient to warrant it. I meet'him upon these premises—they are what I was arguing, for nothing is more improper than to throw a'cause away by words when facts alone ought to guide your judgment; what is it to tell me, that because a practice has obtained for• eighteen years, that therefore it warrants the conclusion that it has been so from time immemorial. I ask you, and I put it to you, whether in your consciences you are satisfied that it amounts to proof of that fact ? there is no law which says it amounts to that proof. It is for you to say, whe ther it is so. My Learned Friend says, if he carshow that it his prevailed for 20 years, you are to presume it has always existed ; I deny that, it is a legal impossibility, except under certain modifications, one of which is that there is nothing upon the face of the right claimed that repels that presumption. I say there is more than enough to repel it k here is a thing so un reasonable, I can only refer it to the practice of 'modern times that the thing has prevailed at all. Now let us see his argument, that twenty years' possession will give a man a right. Will it ? What is it in the case of a modus for instance, which from itself is unreasonable—a pay ment given in respect of tithes ? We shall be told that proof of that having taken place for 100 years is sufficient. Is the Pre e that it has taken place for 100 years legal evidence to repel s; contrary presumption, and to enable you to say that it hag e of isted from the time of Rich a rd th e First, which is the dat e ss all custom or immemorial usage ? My Learned Friend leil ° ;, as well as I do, and both my L earne d F r i en d s w i t h him kn', that it is the common a r gumen t aga i ns t t h at spec i es of Pan, ment, that it is from the p a ym e nt it se lf o f a nature unktasevi able, and therefore it is not to be p resume d th at i t h a s aln, prevailed s I speak of, the case of a rank mod us ; an d why iS,If presumption against it? Why, b e c a u se th e thi ng i s in c r est unreasonable, and therefore r illy w e are no t a t t i mes like tn e l to be carried away with this general and sweeping prinsiFle* f take leave to say th a t, beca u s e a. thi ng h as preva il e d f o r 1 1 ' 3 years, if the Jury are to infer it has always prevailed, the re an end of some of the best established rights in the Kingd om , We all know, in the History of our Country, how far this . te , been pressed. Ido n o t wan t t o go i n t o a para d e o f Corist: i tional or legal history. We kno w th a t it h as been atternPu'hes all times to est a bli s h thi s p re p os t erous ru l e — prepostero us , e 5 , carried to the length I sometimes see it attempted. I will fe di Lure to say, without the slightest hesitation, if there be nor i ef positive rule against this, there never was in th e History of s e fi Body Corporate, with respect to a right of this description, 5° $ evidence as this offered to prove an O immemorial usage or custom in the mere legtimate sense f the word. Gentlemen, what is i t we have presented to us ? a questi°rit' resting simply upon what has been done in the last twerli, years. My Learned Friend cannot complain that he has heed deprived of an opportunity of calling any witness ; you have, Mr. Cannon, and Mr. Seward, the clerk of the present. ' ha t ward : and what do those witnesses p r ov e ? Th ey t e ll yea " r i l e that, which now• they say is to p r ev a il, h as p reva il e d from year .1802. Good GOD, I never heard any ; and I will so,n, s t er t to say, there never was heard of such a case as this in a of Justice to prove an immemorial usage. My Liarned was afraid he should not have an opportunity again of d ssi ducing Mr. Atcheson's name ; I know my L earne d F r ien , not mean to say any thing unpleasant of Mr. Atcheso 9 'sa know he respects that Gentleman ; nothing on ear th, he vis i t s say, could be supposed to be offensii e to him ; but let i t t .,1 remembered, as he has introduced the subject of two conte' l a Elections—(he has mentioned it, otherwise I should not)-ss it be known, that in consequence of what Mr. At c heson, se s done that right which has been supposed to *b e 'th e e stablii s right • Mr. ADAM.—I must object to this. Mr. Justice BURROUGH.—Itis not a fair argument. .4 Mr. ADAM —I have said nothing, which in an y construclss can be offensive to Mr. Atcheson ; he i s on e o f th e l as t per' I can suppose to have done wrong. Mr. Serjeant PELT..—What I was saying is, that in t so sequence of Mr. Atcheson's interference th ere h ave been r contested Elections ; my Learned Friend has said it, ° ,,s should not have talked about them ; a nd I f or b e ar t° he , what I was about to say, as to, th e r esu lt • o f th em , or I L o ther the town has or not obtained' any b e n e fit frog) But I ask you upon what principle are you to deterT that the immemorial usage has been for the Stoent" s se nominate the Jury ? Upon what has be e n d one , since ale year 1802, you have nothing more produced to you hY es se management of the able Gentleman who condu.ts thi s re• on behalf of the Lord of the Borough; than merely these l l ) of ' sentments • the papers offered in eviden ce by the Cle r ,asS the Steward, who is now dead. He carries it down to s 0 and the Steward, who is now alive and in Court, th e l o i , not dare to call as a witness before you to shew the eci h ire tution of' the Borough. Why? 'What is the reason ?,, w e g• is Mr. Hector ? in court. Not callicL—why ? There lor ss tot thing or other that would have been obtained from ?Ir. . - ss i• if he had been put into the box, th a t r e nde rs it i n point po dente and, discretion right, he should not' be presented b o ra you. Did any men in their susses ever hear of the se r o se being called to prove a fact of which the m a st e r was the, die competent witness? Gentlemen, th a t i s n o t all ; where o' sei sS Court Rolls before the year 1802 ? whe re are th e presentT r i a t• before the year 1802 ? All locked up in Mr. Hector's 7 of or, perhaps, at this moment i n M r . H ector ' s b ag he'll!' aese Learned Friend. Where are th ese m i g h t y i nstrume nts to sp. this usage? We have heard of a green bag; I dare saY• O it Hector's is a very large one ; but he h as not any thing i s ,: that can shew any thing beyond these wretched presentillApoo the earliest of which is 1802. Why is thi s sc h eme pl a yed o this us ? :Now let me see what this notable p a p er i s , upon whic i Aalet presumption is to rest.. " The Court Lest of Hylton Jq: b 0 1 Esq. of the Manor of the Borough, Township •and Petersfield"—first, they present all former Byes Laws and 0 nances—then they direct, order, ai:d ordain, that no P er na so persons shall hereafter drive any cart, timber waggon, the on, within this Borough, Towns'iip, or Parish, wller s e a ' s pitching thereof shall be injured, u nde r th e p e nalty En to be paid to the Lord; then they present, order, and ° es t or that no person or persons shall hereafter leave any f he 10' carriage on the King's highway in this Borough,' Under e nalty of ss. to be paid to the Lord. So that now }which the, that the Lord by his Steward is to appoint a Jury, 111 ,0' 4 is:to make a Law, by which he is to be benefited, Nowge fir thing be more monstrous than that—is it not against 0 0' principle of Law ? Canyon conceive any thing ilwr i age°' ih vagant ? See what the Office of Stew ar d i s —h e is the S t te the Court.—What ! the Judge of the Court—to nonn na , Jury ? Can my Learned Friend seriously suppose ;o r .a leb,° ment that such an' argnment can stand—that toe Stews 0y may be consider,d a sensible man, (and Mr. Hector t it ;e a considered so not chusing to be examined toalay); i 9 more competent person to select aJury than an ignorant _ spe 0 —it may be so; but I shall take leave to say, that the g' rs d Law of the Land is that the Bailiff is t e he proper Yet ,ur p th i l d t I o should po sses s humbly i d c o g i7 e enough ivetht f tolri thet presumes he has enough to do that—to shew that it s o so„, s o mention the case of the King versu; Bilighatn , th e of East's Reports, 308 ; and I only m ention it to prove t a n°` s • Bailiff of a Court Leet, being a prescriptive officer, has l" to summon and select the Jury. Mr. Justice BURROUGH—I know that case very moved it. • e slier In th e th l3 a a t d p i ti fi rp is oses particular instance Mr. Hector, the St ewa d of the Lord • Mr. Serjeant PELL—The question here is, Manor of the Borough of Petersfield, is, either from l ug ae' nature, or the the nature of his work, supposed to be % e els' more wise, that no.other person shall have, in that F. place, a particular power. Gentlemen, I was about to mention to Till, that I de rl , jl l in w h thesd y o oi f _ fi knowledge from valuable books of the principle for whici a rsc . now contending, that usage does not infer imimernotis ti 4 Lice where there is any thing to repel it, either front - th e shic e of the thing itself or from direct proof. The treatise : 1 : 1 5 is t l t , I allude as part of my address to you was thuS :" if spe c ( ' rule in the Courts of Common Law where the que,tion rr so private rights between parties having conflicting intere' sr essr e where the possession of one, if he has irot the right/ • a r el l °' poses the exclusion of another who has the risht, pee: supineness in claiming it affords the strongest poss i ba sSla sumption against him and in favour of the person wilt; $ lOO, sessed the matter in dispute, how much more stronglysaeSi this rule prevail in questions as to the Elective franchis e, the conflict is between the public good and the comm e ° o o therS e on the one hand, and private interest and influence on the red th I only wish that the Learned Gentleman who has faT s ael v ' public with his treatise, had a dded as a not e t o it, tha si ve tersfichl case is the strongest proof of the truth of du' r sition ; but that is not all. ' sfi er Mr. Justice BURROUGH—What book is that? 't Mr. Serjeant PELL—I am afraid almost to mentio n this Mr. Justice BunnotiGH-0 yes, state it. o°o' Mr. Serjeant PELL—II is from Mr. Merewether's of Mr. Jolliffe's Counsel. , at Mr. Justice BURROUGU—He did not Send it to me aka Mr. Serjeant PELL—It is wonderful how light ' 0 of tto upon us: besides the insidious and cautious progr e a r e 0 1 : 3 ; intrigues which step by step eventually secure the e ., r i l $ trol of a Borough, is often too well disguised to roue tention of those who are finally diSpossessed by it." se e 11 , e s most sensible and excellent observation, and r i , l strongly it applies to the case before you. Now, 6e stele,/ my Learned Friend calls upon y ou to p r e su m e that t e atleE makes a fair nomination ; I call upon you for a differalis sumption ; 1 ask you, under all the circumstances of _ tie t l y they not having ventured to call the very nun who to; 0 0 0 , selection, whether you do not believe the selection " tt , e af ° o for those purposes which my Learned F r i e nd puts Insf ies tof because, if they were not, why on earth did not Mr. P I am willing to be put into the box. F. WILLIAMS-80 he does. do ej " Mr. Serjeant PELL—My Learned Friend says " s° Late in the day indeed st' Mr. Hector—You might have called me. t his o Mr. Serjeant PELL—There is a little feeling 1 1 P ° tor c h i d of the case. But do they imagine I will put Id r . n ee i s es-ers sl o the box ; No, no, lam very much obliged to 600101 Friend. This is a case of presumption,—the prestopPtbis to t the object Mr. Hector had in view when he name", t his , s on to elect Mr. Jolliffe, I leave you to draw ; but I ki l° es tion if I put Mr. Hector into the box, the instant any elli .oie dio br this point was put to him by me, it'would be said u ses/ J(o, o es Mr. Hector, you are not bound answer that tl` vii 0141 cause if you did this, which Mr. Serje a nt Pell IrrsejS; it t you to have done, it would tend to criminate you re be an illegal act if done, a nd yo u n ee d not answer th ee ete o ._ol, so that here we are on the one side and the othe r tied Fri for a valuable private, no public right, and my Leads con°o4 who is to make out this case, resting upon gr•cnitliie dark' w ho to the first principles of reason, is to leave you Ste ward'l then complain that Ido not call his friend the ss iblY you may be sure wado me as much harm as lie P go onf ,Gentlemen, I was about to mention how these throbs