The Express.
London, England, 1868-06-08 00:00:00

DT TIM LOUD MEET SVSTICT.

On their kwaisitiaiTng their met thin morning,
The Lord Chia' ustia, w+l—Before we proceed with
0.-• menhir bnelnese of the court, I think it neeeseary to
•o. s iew merle on a subject appears to me
Lupe-taut. to peas over in silence, though it
not arise upon any matter immediately before us. It
hie gene forth to the world in the charge recently deli-
• ni Mr. Juane Blackburn to the grand jury of the
~,.wry of Middlesex to the case of the Queen r. Eyre, that
Ilia law laid down by the learned judge in his direction to
Lad received the assent and approbation of the
• ft-inberg of this court. I regret to my
e.erc luau been a very SCWIOWS
mieappre-
~...._...:•n the pant, and I think it due not only to the
s:ei myself, but also to the profession and the
". • that this misapprehension should ba cleared
try ot the cattiest moment, and that it should be
hew far the lepl doctrines enunciated
on to- eceseieu in emotion have the sanction
nod authority of the ooturt. There was undoubtedly a
=lltrAs of law which seemed to us sufficient for the
~ of a iety. seal which we understood was
the fem. if I ,nay no express myself, of the basis of
tiis 011 which propswitson we were all
;rrer,l, viz., that assuming the governor of a
,eime 5.4. by virtue of authority rsted to him by
Cie riems. cesalerra.ll on him by legielation, the
e,scr to put martial law in force, all that could be
~‘f him, so far as affecting hie triponsi-
i.i.t. .n a eOO/1 of criminal law was that in
tuailinz et the necessite which, it is admitted on all
the pole joritifiarticet for resorting to inertial
I putting this exceptional law in form or pro-
uratiou —Le ahould otonlyact with an honest
au:Large a public duty, but should bring to the
• L • nof the cor.rse to be pursued, the careful, con-
.. :III! NIA dOidenkte judgmeut which may reason-
,peeted from one vested with authority, and
r.xm. in our opinion, a governor so exeunt.
! : bound to CiffeiSC before he piam the
I remmitted to his government beyond the
lei- ',lot protection of the law. Haring done this he
• 1 t liable for error of judgment, and still less
V.. • te• .r irregularities committed by subordinates
to. is under the. necessity of employ-
i ..1 iimi OM without his sanction or
Furthermore we considered that a
seivoreir 'worn to execute the lawn of a colony,
hr them competent to advise him that these
hire in lag martial-law in the scams
u!. (;-vcrnor Eyre understood it, cannot be
1.41 •-• •••,-.lly responsible, if the circumstances called
1.0 0- e.erree even though it should after.
..ut that the received opinion as to
14.. toe sra., erroncoua. On the other hand, in the
sierue- await careful and aemieutiom exercises of
r.-lassiesi; Imre honesty of intention would be no
• - ;.-sr the tectleK precipitate, and inten-
s 4^filt,' exercise of so formidable a power
:Ii; :OM ier any abeam of it in regard to the limo and per-
... of her Majesty's subjects, or in the application of im.
• deed.. severity in exam of what the exigency of the
'mien imperatively called for. Neither could the con-
, seutnre of martial law be excused even es regerls criminal

.ponsibility when the necessity which urn slime kedify
had esstsW by the entire suppression of all insurrection,
'thee for thopurpose of punishing those who were sus-
',tied of heing concerned in it, or for striking terror

• the. mimis of mon for the. time. to come.. This
the eutwtance of what we all concurred in
t.-Alll2 was the proper direction to be given to the jury
• t^ the responsibility of n mentor in apAytng
eoutinumg martial law. Thu was all that
to us nccmiary to lay down in point
I.w. All that remained waa to apply the law thus
two the facts and circumstances of the case—on

ths (me 1, to the formidable character of the ineurree-
t ear, In de terrible consequences which might have ea-
.,. .11 • !.!-. white population in the event of the rising of
;-Inge becoming general—on the other hand,
f • lI••• 'sc.t of the immediate suppression of the
iosaccs I esi and of the prulungatiou of martial law
weeks after order and tranquility
Liebe.* perfectly restored, and to the fearful number of
, Lich took plata, and the terrible punishmeut
ci hie!, L.. 1 ken inflicted during this period, leaving it to
the j..,! ie consider whether what had been done was
end r. A -• :nand humnxuty could justify. And notonly was
th. • !iza! loctrine to width I have referred all that the rest
".- eAsid assented to, but I feel justified in saying that
;* II they expected world be embraced in the charge
we.... Are for the guidance of the jury. Therefore,
..either through misconception on the part of the
!.v. ..I;te, or from the language of the charge not
I hem: seffieiently precise, en erroneous impression
s I". r, •created that the court has sanctioned
ths legal positions asserted in the charge, and
.* it is in the last degree important that in
nhilter where greet constitutional principles are
invuhed doctrines should not go forth as stamped with
ths atheist of the High Court of Criminal Judicature,
wh'a -.it sanction has in fact been given, I have
though! it my duty to point out the error which
.0:4..11, and to declare the extent to which alone the
e sent et the court must be considered as having gene.
lout so far as I am individually concerned I must go
I,lher, and declare that there are in the charge of the
dned judge, as it has appeared in print, and I have no
, 'her means of information, propositions of law in which not
sly I am not prepared to concur, but from which I
dtogether dissent. I differ, in the first place, from the
A-arned judge in the conclusion at which he seems to have
arrived that martial-law, in the modern acceptation of the
lenu, was ever exercised in this country, at all event.
eels cur pretence of legality, against civilians not
i ',en hi arms. The instance referred to is of most
Offal character. In the second pima", while I
'•' Ter doubted that it was competent for the legis-
-4 ',ere of Jamaica to confer on the governors the power to
--t martin law in force, I entertain for the reasons I have
• oiled eh,-where very grave doubt,' whether the Jamaica
^wafts have any reference to martial law except for the pur-
p",se of "earning the inhabitants of the island to military
envice lied subjecting them while engaged in it to military
I siwtain from expressing any positive opinion on so
clehAteeble a question, but I must, at the same time, saythat,
Ai my juchgment. there is too much doubt on the subject to
',Arrant a indigo., in the absence of argument at the bar
n •el of pelletal decision, to direct a grand jury authorita-
t: eely t lust there Matutev warrant the application of martial
law tierdoses such a direction appear to me to be at all
uses:mart% seeing that we are agreed that a governor,
giving effect to those statutes in the sense in which they
Lave beep. understood in the colony, would not be aim-
eellY n•-!tensible. But above all, I dissent from the
'1.4.rrh.1 -1 Mr. Justice Blackburn. as reported, in telling
geeel jury that the removal of Mr. Gordon from
allig-t-a: into the proclaimed district for the purpose of
''.lloctine him to martial law was legally justifiable. I
Mr repudiate the notion of sharing that
Teieli. I. have tett it to be my duty to advert to theme
,:ely for the purpose of clearing up the impres-
Nl,ry
tie• extant to which the other members of the
;:atrl hl:s1;!“1 by the thatrineecontathed in the charge,
Aso her ,une 1 ans clearly of opinion that the collective
t he: it t he court is pledged in every charge delivered to
1,v...gia::•1 jury of Middlesex uithe Court of Queen's &such.
4. . wider puinie judge of this court delivers, in
" ''• ,de
of lug-txtablished custom, the charge to the
Jur., of Middlesex. the charge he so delivers is that
' • -.1. hut that of the single judge who pronounces
nisnlr, not of his own authonty, or on his sole
I v alone, Le is the organ and mouth-
' • IL,: euert, and I ant therefore clearly of
d: in the event 01 'my different.* of opinion as to
• api • •:•si to he givin to a gruel jury, it would be the
ax the duty of each
,judgo to he present and
" IA- own Charge as in the 1,144. of a trial at bar.
o Lel I kerma that the law would have
, .wi; an it is tincleratood to have been stated, I
tot it to be ley linty to attend iu ray place in
',lt tic out:anima of the charge being delivered, and

to dec'irc may wof the law to the jury. I omit add us
my justification for not having done so that I certainly
meteretood from the learned judge—though I must now
suppose that I must have misunderstood him -that ho
deemed it unnecessary to rthe the question of the legality
of medial law, or the effect of the Jameica statute,.
And as regards the very serious 011ie of Mr.
Gordon I believe I am right in saying that almoet on the
eve of the delivery of the charge, the opinion of Mr. Jus-
tice Blackburn himself was that the apprehension and re-
moval of Cordon wore in point of fact unjustifiable. It
certainly was so understood by other members of
the court, and I believe I am warranted in
Paying. that the statement of the learned judge
to the grand jury on this held took the other members of
the court as much by surprise as it certainly did me. Had
I been led to expect that in a charge delivered in my
own court my opinion declared to the grand jury in
the case of the Queen e. Nelson and Brand
would have been thus authoritatively overruled,
I immiredin should have deemed it my duty to declare
my own ion to the grand jury, and to apprise thorn
that thestatement of the law thus made to them had not
the sanction of any other member of the court besides that
of the learned judge who made it. It is not without
much pain, and only under an imperious sense of
public duty that I make these observations. The
bar have now known me long enough not to mis-
construe my motives, or to believe that in doing so I am
not actuated by any vain desire to uphold my own opinion
against any other judge, or from any sensitiveness at
having oMnions or doubts which I hove judicially ex-
pressed, ignored or overruled. I am influenced only by
the desire of protecting myself against tieing hetcl re-
spousiblo fur u frm which I dement, and to pre-
vent doctrines from going forth, stamped with the autho-
rity of this, the highest court of criminal jurisdic-
tion in the realm—the House of Lords alone ex-
cepted—to which doctrines its assent has not been
given. It may be that at some future time—l trust it may
be far dietant—the question as to the exercise of martial
law may again present itself, when we who are now the
member" of the ooart shall be no longer here to assert and
vindicate our opinion. In that event the charge
of so distinguished a judge as that of Mr.
Justice Blackburn would, from his judicial posi-
tion and known !eget attainments, no doubt be
referred to, and but for the course I have now felt it
neoeseszy to take, the whole of the law thus laid down
might be taken to have been declared with the sanction of
the court. In such case I hope that what I have now
said may he remembered, and will prevent any mimeen-
ception on the subject. It may be, too, that it may
as a ealutary warning to those who, being
cool in authority, may proceed to exercise martial law,
know that au act such as the keine of Mr. Guelou
was, in the opmon of the majority of the judges of this
court, altogether unjustifiable and illegal; and that there
are those who consider that a governor or other authority
in putting martial law in force or continuing it, or iu a
degree of severity exercised under it, is responsible to the
law if he acts otherwise than under a sense of imperious
and impending neekiity, or without a due regard to what
reason and humanity alike require.
Mr. Justice Bleckhern—l do not intend to make any
observation whatever either as to what were the directions
I gave to the grand jury in this case, or as to the accuracy
of those die/dame in point of law ; but I take this oppor-
tunity of correcting any mieapprehmaions which axial as
to the extent to which the charge represents the opinion
of more judges than myself. I never admitted
to any that any one else was responsible in the least for the
obeervations which, by way of affording assistance to the
grand jury, I made on the evidence, to enable them to
apply the Law laid down to what they might find to be the
facts. No one can form an opinion on such matters
without having studied the whole evidence, and
the bearing of each part on the rest, and I would
not, and did not, ask any one to undertake
the very laborious task in the present case. I thought I
bad so explained myself as to this that I alone was respon-
sible for the application of what was said in the Irk to the
facts of the particular case, but if anyone has fallen
into such a misapprehension as this, I am happy to take
this opportunity to correct it. With regard to the
points of law the case is different. I considered
myself not only bound to direct the jury according
to my own view of the case, but Ike bound to take every
means in my power to secure that my view et the law
should be the correct one. I need not say that with that
object f read carefully the Lord Chief Justice's charge in
the Queen r. Nelson and Brand- I cobs to the conclusion
(it may be an erroneous one, but one which I still enter-
tain) that there was no leant on which it was necessary to
give the grand jury a direction on which my opinion as to
the law was in conflict in any way with any direction con-
tained in that charge. On the Monday, when I had finally
arranged nay ideas, I stated to the Lord Chief Justice and
to my brother judges of the Court of Queen's Bench the
heads, and what I proposed to lay before the grand
jury on the law to guide them. The proposition which
I considered the most important, viz., that ie. to the
principle on which the criminal responsibility of a
governor or other officer charged with the duty of
putting down an insurrection depended, I have re-
duced to writing ; the others, applicable to the par-
ticular points in the case, I stated briefly but as I thought
sufficiently to explain them. They approved of what I
stated, and !the Lord Chief Justice said that if I thought
it would give weight to what I was about to say
I might tell the grand ju that they did sp-
Meot them. I was highly *seed, and not doubting
th would add very greatly to the weight of my
declaration as to what the law was, I did so tell three=
jury. I now perceive that I ought to have
that my mind was full of what I had been deliberating
en, and that although what I said teemed to he a fall
statement of what I was about to tell the jury, it by no
means followed that it war understood as fully as I sup-
posed and intended, and I should have taken more care to
ascertain that there was no misunderstanding as to this.
Had this occurred to me in time, I should still have felt
bound to deliver the same direction to the jury, telling
them that it was what I considered the law, and there-
fore was to guide them, I alone being responsible
fur it.. But that direction would have gone forth
to the profession and to the country as having no more
weight than was to be attached to my own individual opi-
nion, conscientiouely, delibeautely, and laboriously formed
but still mine only. Under a misapprehension it went
forth as entitled to much greater weight. As soon as I
learned that there was a misapprehension I was anxious to
correct it, and I now take this opportunity to do so.

CENTRAL CRIMINAL COURT.
(THIS DAY.)

The June emirs of the Central Criminal Court was
opened this morning before the Lord Mayor (Alderman
Allen), the Recorder (Mr. Russell Gurney, Q.C.), Alder-
man Sk F. G. Moon, Alderman Gibbons, and Alderman
Casaba, the Sheriffs, linder-Sheriffs, &c.
The first edition of the calendar oontains the names
of 86 prisoners, 68 males and 18 females; and the
number of committals from the different districts
are as follows:—Pram the City of London, 18;
from the County of Middlesex, 47 ; from Emex,
1 ; from Kent, 8; and from the county of Survey, 13. The
offences are thus claw... Med :—Murder, 1 ; arson, 2 ; bigamy,
2 ; burglary, 14 ; uttering counterfeit coin, 21; embezzle-
ment, 1 ; feloniously setting fire to furze, 1; forgery, 4 ;
housebreaking, 1 ; lamb dealing, 2; larceny, 3; larceny
by sensate, &c., 9; letter stealing, 1; misdemeanour, 6;
receiving stolen goods, 1; felonious assaults, 3 ; robbery,
8 ; and wounding feloniously, 4.
The Recorder, in charging the grand jury, said he was
glad to inform them that there were fewer cares than
usual at this session to be brought before them and there
were very few of them indeed presenting circumstances of
difficulty. There were two cases in which the charge
was that of wilful murder, the tint being against
James Joseph Smith for the murder of r
Bradstock. He thought there were circ
from which it would appear that the man in all
probability was not in his right mind, but that was not a
matter for them to inquire into, their duty being
to inquire into the facts. Evidence would, however,
be green before the petty jury to show that the
prisoner had previously been an inmate of an
atlitelijized., end they would acquit him if this plea were es-
The other charge was against Isabelle David-
son for the murder of her child, which was just under a
year old. It had been put out to nurse, and notice having
been given that an increased payment would be
necessary, the prisoner wont and took the child
awn on the 20th of May, and it wee after-
wardsfound dead from suffocation. There were
two charges of arson—one against Mary Crooks—and in
both cases the prisoners did not deny that they were the
guilty persons ; but what object they had in view in com-
mitting the crimes it was diMcult to conceive. There was
a lamentable charge against two brothers named
Smith, both under 14 year,' of age, of attempting to murder
Mary Ann Nunn. It appeared that they secreted themselves
in the cellar of the house of which she was housekeeper,
and on her going out they proceeded to rob the house.
Shortly afterwards the prosecutrix returned and gave an
alarm, and the boys then assaulted her with a mallet,
inflicting very severe injuries, but it was hoped
that she would recover. It appeared that the m-
aniere bad been very much given to the reading
of certain ratifications, which had preyed upon
their •
•msgrnstions, and which exalted persons who com-
mitted aneh crimes into heroes, and there war no doubt
that a series of reading of this character had had a very
mischievous effect upon their minds. The recorder next
adverted to a charge of rape, and the grand jury there-
after retired to deliberate.