The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1872-11-30 00:00:00

"TRIALS AT BAR."

The Times gives the f glowing explanation of a "Trill at
Bar" which, associated with the recent prolonged trial, will
be of interest to many reader!:—
It is settled that in the Tiehborne Case there is to
be d 'trial at Bar." Many persons will ask, "What
iS a trial at Bar ? How does it differ from an ordinary
trial ? What are the reasons for resorting to it, and
what are its practical results?" On this point there is
the more reason for information, because, from the
comae which has been pursued, it has not been dia.

cussed.
The Attorney-General, in a case in which the Crown
authorizes the prosecution, is entitled to such a mode
of trial, and on this occasion he asserted his right.
This course precluded discussion as to the advantages
or disadvantages of the course proposed; but Mr.
Justice Blackburn did not hesitate to declare that
the inconveniences more than counterbalanced the
advantages. This makes the inquiry one of some
interest, "What is a trial at Bar, and what
actually are its advaatages and inconveniences ? "
A "trial at Bar" is a trial in one of the Superior
Courts before the Court itself, and, therefore before
the Judges constituting such Court. The advantage
obtained is a trial before several Judges. The die.
advantage is that it absorbs most of the Judges of a
particular Court, and so obstructs other sittings and
, delays its business. A plurality of Judges was of
greater importance in criminal cases, in which bills of
exceptions are not !Omissible, and new trials are only
allowed in cases of misdemeanour and in favour of the
prisoner. The advantage has always been secured on
the Assizes by joining several Judges in the Commis-
sion ; and though in ordinary cases single Judges
have long been used to sit, even in capital cases, they
have the advantage of mutual counsel and consulta-
tion. When, however, the practice arose of single
Judges sitting, the practice also arose of reserving
points, in criminal cases, for the consideration of all
the Judges, and this practise has been established in
our own time by statute. When criminal cases of im-
portance arose in the country they were provided for
by Special Commissions, in which a Judge from each
Court could be taken without inconvenience. Thus it
was at the trials of the Bristol rioters, or the trial of
. . .

Exost and the Chartist rebels,
In that ancient criminal court, the Old Bailey the
advantage of a plurality of Judges was always obtain-
able, because all the Judges were members of the
Court, and by taking only one Judge from each of the
Superior Courts an excellent Court could be consti-
i without any inconvenience. Hence although
the Revolution politicaleariee were often brought
into the King's Bench, and the Attorney-General,
where the Crown prosecuted, had the privilege of a
trial at Bar, almost all criminal cases went to the Old
Bailey. No advantage could be obtained in the King's
Bench which was not also obtainable in the Old
Bailey. No doubt a special jury could be obtained
in the King's Bench, but then a special jury WM
only obtainable in cases of misdemeanour, and in any
court a " good " jury—substantially the same—could
be obtained even in treason or felony. The only
reason, therefore, for resorting to the King's Bench
was that the Attorney-General could there file an in-
formation ex officio, and thus avoid going before a
Grand Jury, who might throw out the bid. Thug it
was in the case of the Seven Bishops, who were prose-
cuted in that court by Information, and were tried at
Bar. After the Revolution however, hardly any
ci iminal trials at Bar were held in the King's Bench,
for criminal caees could be far more conveniently tried
at the Old Bailey, and no advantage could be gained
by their removal.
Almost the only criminal trial at Bar in that court
during the last century and a half was the trial of
Ratcliffe, Earl of Derwentwater, who had already
been attaiuted of treason, and was tried there at Bar
only on the issue of identity. Since then there has
been oily one criminal trial at Bar, and that was the
trial of the Mayor of Bristol, forty years ago, fix want
of due vigour in the suppression of the Reform Bill
riots. Since then several civil cases have been tried at
Bar, not in this, lout in other Courts. It was the
uthel mode of trying writs of right, and the last writ of
right was so tned thirty years ago in the Common
Pleas.
More than 20 years ago a cage was tried at Bar in
the Exchequer—the action against Captain Denman for
seizing a ship as a slaver. On that occasion Baron
Parke rather differed from his brethren, though he
waived his doubt and was able to deliver the direction
of a united Court. Otherwise the jury might have
been embarrassed by opposite rulings, for on a trial at
Bar before several Judges, if they differ, each is
bound to deliver his opinion. This difficulty would
have arisen in the Alexandra case if it had been
tried at Bar, and wou'd have amounted to a dead-lock,
for the Court were equally divided. So, in the case of
Mr. Eyre, the Lord Chief Justice, after the charge of
Mr. Justice Blackburn, declared that he differed, and
that if he had known what that learned Judge meant
B, say he should have attended in his place and de-
clared his own opinion to the jury 'as in the case of a
trial at Bar."
However, in this country no criminal trial at Bar has
occurred for the last 40 years. In Ireland, where the
law is similar to our., Mr. O'Connell was tried at Bar,
and his case illustrated one of the advantages of this
mode of trial. It was a case of great length, and, being
begun in Term, it was carried on by continuance of
the sittings after Term. A question arose as to the
regularity of this continuance, but its validity was
affirmed by all the Judges and the House of Lords
This meets the difficulty which arises in the Supe-
rior Courts by reason of the statutory limitation of
their sittings. But that is a difficulty which only
arises in those Courts, and does not arise in the Old
Bailey. On account of the superior convenience of
that Court it was reconstituted by Parliament forty
years ago, with an enlarged jurisdiction, and more
recently, under Palmer's Act, power was given to re-
move cases into that Court from the Aesizes. On the
other hand, the inconveniences of a trial at Bar are so
great, with reference to other business, that the Courts
have often said it ought not to be allowed, except in
cases of "necessity." The Tichborne Case was re-
moved in order to obtain a special jury • but such a
jury is not allowed in cases of felony, and one of the
indictments is for felony. On the other hand, a "good"
jury could be obtained, as already stated, either in
misdemeanour or in felony.
It has been supposed that the trial at Bar has some
legal advantage in point of finality; but this is an error.
There is no legal objection to a new trial after a trial
a', Bar; and in criminal cases new trials are not as a
rule allowed at all. A new trial can indeed be applied
for by a defendant in a case of misdemeanour, bat it
may be applied for equally after a trial at liar.
It would not practically have been obtainable in
ancient times, when there were only four Judges in
each Court, and all four sat upon the trial. But
now there are six Judges in each Court, and only
three are to sit on the trial, of whom one may pos-
sibly differ from the others; in such a case it
might be difficult to resist an application for a new
trial or a reservation for the Court for Crown Cases.
In civil cases. it is to be observed, the advantages of a
plurality of Judges could only be obtained by a trial
at Bar; but in criminal caeca it is otherwise, for there
is the Central Criminal Court. The presence of a
plurality of Judges is of immense practical importance
in ouch cases, for the authority of several Judges may
induce the suitor to abstain from a bill of exceptiene.
But in criminal cases no bills of exceptions are allowed,
and new trials, even when allowable, are only discre-
tionary. Hence there is no practical advantage in a
trial at Bar with reference to finality.
It should be added that 40 years ago it was providid
by statute that trials at Bar, which are always held in
Term, may be 'continued after Term, and continued
for any time. This provision Slone renders it possible
to try the Tichborne Case in the Queen's Bench_ as
the Nisi Prius sittings only last 12 days after
But, then, as the trial begins in Term, it occupies a
great part of the Court at a time when the Judges are
required to sit in bunco.

tut:nd

before

posieble

Term.