The Express.
London, England, 1861-06-26 00:00:00

LAW INTELLIGENCE.

(THIS DA Y. )

COURT OF QUEEN'S BENCH.
Sittings in Banco at Westrniester.—(Beforo Lord Chief
dustier Cockburn and Justices S'ightman, Orenipton, and
Blackburn.)
r. fits RitaIInaTEI.—JCDCIIENT.
lu this case the defendant was indicted at the last York
s. heforu Ile. Justice Hill, for bribery at the Wake-
beiii election. An important witness, named I:enemies,
roused to answer the questions put to him, and was cons.
netted for contempt a court. The Solicitor-Galant then
stated that be was unable to make out the case for the
pleasotion, and applied to have the jury discharged. The kiniesl judge acceded to the application, and
deseharged the jury. On the port of the defence, it
emitendal that under the circumstances the judge had
eo power to discharge the jrry, sod ought to have directed
a verdict of acquittal to be entered.
The case had hero segued at considerable length upon •
rule t.. enter final jakmient for the defendant, and the
ourt had intimated that they would deliver jo4pmnt this
The Lord Chief Justke, at the sitting of the court, said--I
am .4 9.10100 that this rule must be discharged. 1 adhere
to the view expressed by the court iti the coarse of the
anoment that if we could see our war clearly to the con-
elusion that the leaned judge in discharging the jury in
this nue had exceeded the limits of his judicial authority,
=Mat the discharge of the jury operated virtually
am as acquittal ,4 the disfendaut, the court
ought sot to allow its process to be further used
with • view to the prosecute's of the second trial,
and ought to make Use rule absolute to enter 6=l pidgins=
for the defendant, aidwithstandieg that course might pines
the crown in • most diseolvantageotui position in referee's to
.shooting error on such judgment. But I am equally clear,
nukes the court can or, Ms way conclusively to that resin,
that it ought not to interfere in the present sterpt
the processlings, and if on the second this! the de-
f..u.Loit should unfortunately ha found guilty, he can
in iv- in accost .4 judgment or bring his writ of error. Two
quo 'ten, present themselves for our consideration.
er•t is whether the learned judge had authority to diabarge
the jury under the clrelifintaoo.ll of the case, and the
whether that discharge of Pay, if dons without
authority, entitles the define's= at arm to the judg-
ment ad this court, and to his "going
_without dig."
nett loci of those propositions is my seiml et thereto=
moment in such • state of coavictioe and debility that I
feel that thecourt ought to interpeee. Os the oestrary
I am boa= to my, although this moot eat b eeseidered r
• definitive opinion, that the conclusion of my mind, as at
present &lyres!. is elver= to the defeadtht epee both
imestioas. With reference to the authority et the
judge to discharge the jury, it is imposilile, after the argo.
meets we have he and the authorities brought to our
entice, Sot to feel that the law is. to • certain extent, in •
very unetisfectory comiltion. Ise part of the procedure or
practice of the courts has more fluctuated than in re-
glad to the discharge ef juries in criminal cases.
If we go bock to lend Coke we And it stated in the most
positive red unqualified terms, that • jury arm ewe= or
channel in • criminal are cannot be disabused by the
court, but must give their verdict ; hat it is plain that
does lot embrace sward of these exec is whisk it is ad-
amant on all herb the • jury, samedlag to
modern acts of prollemem, may he dieehmied.
Lord Coke takes anti's neither al the ease of the death of a
jurymen. our of a cased the ilLr of • *pan, which
mead rainier it imperatively neasesery that the Isis* should
he stopped. It was pointed oathy lir. Mellish, in his
meet hoed and able aricurnent, that Co= hod net wimp=
headed that are, became the limy would le eseheepd
by the fore* of eireunistaecee, se it was reduced to as um
Weld surnher ; hut it is to be observed that Lard Coke
taker no setae of cams In which it is now schnitted the
jury may properly be discharged—le the see ia which the
jury ars discharged with the eased ef the ro-
omed°s and the oldesdant, or is the ease, which
I. of everyday comourreece, where they ere die.
chested oe account of the impossibility el agreeing to
their verdict. ledeed, if we go back to the
armed when
lard 'eke wrote, we see that the object ofjuries
sad 'objecting them to dormice was to edam that eam
amity which the law required. Hems the podia" of
taking Mr= to Uteri:refines of the mosey, sed keeping them
together for the purples of compeUieg them give their
however much to their permed beecevesitese,
merinos, and sufferiag, sad see dischargiag them until tbs
commiseiee of she judge lied amid by their being
boomed the meatz over which his juriedictios ex-
U that was the law whoa Lord Coke
cram It undermost mod important changes at
bier • aed I think it may be questioned,
soar' • the peat authority of that
.priat name,
whether Lard ' was welt warranted in laying down the
how is the positive terms is which be has erased it. At
all mete, shortly after Coke wrote his mooed sad third
Indies* 111111 dean= laid dews by him was sot reesgaised
as the true &arise by thilgose of that time. It ap-
peared them to he the of the lodges, both at the
Old bailey aid es the is mese where the proem-
the broke dome from Wen of proof, So ors the
Jury, ia ardor that as opportunity might be storied
of additional evidesen Om of two
thies Isdernam—that either the prepsellion el
Lord Oahe was sot oceddlered by the ledges who dime-
daddy followed hits as the Mee exposition of the law, it
else it was oomatered not es • positive rule of law, but
simly as • part of the practise and procedure of the mart,
subject to variation by the authority vested Is the
warts of this centre in criminal
The leaned judge having referred at some leolutelnliallt
authorities cited on the point, mid he believed that on •
balance of good and evil, the law or mantic., whichever it
might be called (as to a judge dischareng • jury), esta-
blinked miter the revolotioe, and which bad existed up to
the pretest time, was the better one sod onyht to be adhered
to. Thee arose the question whether it was open to ex-
empties. AU he could my at thermoset moment epos that
subject was that the law had fluctuated sad bad been dif-
ferently stated at different periods. The law as laid down
by Lord Holt was not conformable to modem
sage. The jukes now took upon themselves without the
consent of parties, both in criminal and civil eases, to dis-
charge • jury, if they were convinced that after fully con.
siderieg the case there was no chance of their agreeing, and
be traded they would never shrink from miming
that amnia. At them= time, he thought that the rule
Ohm at practice that • jury should not be discharged at
the Meta= of the prosscutor in order to enable him to
MUM Mimes d which at the trial there
le/peed te be • &dere, was a mood and salu-
Viz* sail ought not to be departed from.
it was • positive law or merely • practice adopted
hi thejedgas ia Lord Holt's time was • matter of indiffer.
sere. It bed keen the uniform practice of the judicial
astherities a this country from that time until now,
sad bed become substantially perfect law, end if it
were found to be inexpedient In the =mis-
name of justice it should be altered by an act of the
Walston', and not by a resolution of a body of pales, still
less by the act of an individual judge. It was bettor to
bomitutte justice by • failure is a particider OW rather
than that • great and salutary Lutraisishould
be prejudged. And though so moo is ideas
thought of imputing corrupts= to an UPI& ri.cz the
of poesihility his being influenced by corrupt vet
6 lodp might be rash, vain, or impatient, and might
to purposes of oppriereon. Ha owned he
me eat basseced by any fuck apprehend's. He bed
Imo Mae at the bar and had sat mom" time es the
bole, aM led seen a good deal of the administratios
*we; but he sever yet saw :ricular's* from
masses, molly, or imath au
isees himself to
my mesh pimples, er de anything= be believed le hie
reeeemso loss not eight or hie n the crows mid the
Voitememil. mos nee balusbag is him to vindicate
hen nay begootheion ; het, as re-
lb em midi whom he bail the beam le set, either !
her iege the Mime emu* he end ear be lidiered thatthe
I heedesee repedlthe the media of there I
*Nen, imam wholemeal imager to the eimiedetration of
bees them castes. Cartel* there might bs intestate:*
• the peg of • joke, but the cmeedes was,
_whether it
fie aid Mint ash well justified inlpidelfien ebbe- I
die ware 'natal OS IMMINaI eeeedbmWd
or whoa materiel msdlinn waggpnel=ageii;
=wet there Wag forrade isgoines. obi
eiespiml by rile semmes-phies iisibmsthe,
w this orpmesets or themoseisse wen seposird spilt and
Via, lime me • indeed sham of the lime of the court,
which wee Is fact Qs Mr of the .Mere and the
Oe the grounds be had Waled, be wee
sprepen-d, ea • matter a law or expodiesey,
re m the authonty of • j at a cedillas'
to pompom that trial tatralid
setes.tate jury, if he
osesiiireed juitscs had leen then
'a, whether, under the aremeiainsia. IX=l ease
ni Wadi that authority had hem_ properly exercise.I.llco that roast there might he • ditheresse egobsiss.
lie
dod eat Mewl( deem, tier me it sessmory,
is maners. • led (plaice epos thimbles,; beta mom
seem, mamma, and emschistiess ledge then IM judge
who sternied hie discretion on tide commies never at apes
.haai h. and ell that learned judge doubted was his.9Pm P'soer Malmberg. the jury. He modertaisid no dethe
Wm this me • ease it which that power.
rwerail it, rould he fitly eoerelsed, and therefore it was far
The lies la toy that the leaned judge wee ming, bet the
was we the mily difficulty in the ease. There wee mother
ante, whir promoted pcaier diltedties.
sat tint the lodge sot this maliceity, er
t. 11114 he sunned it improperly ; themoms the Feist whin
.Iwhat we. dose amounted to an acquittal of the pa-
"or, • mod federal him to have Weisel estesad in hie
""41. It was • maxim that • "sea make sot he
Mid twice foe the mow names, but wiles they talked
: 6 041 brag twice trial, they mouth a trial which pro-
_eried bring
Inmate rad lawful towhee= by • verdict
The lemeed judge theeobserved that
7%. mill he thmeht it was the
"4" to intermit* is the preased stage, he
1" ad Is he supposed to he giving • &nal aad conclusive
asses It might in I hai‘hip to the messed to le put
rased time es his trial when possibly after the record
y hese thally made op the Oeset of Error might bold
th" be emeltt not to have lose pet • sew= time
H4o bid. That the court could sot help; bat this
.arts .41 he Probably the oely are in which &hie hardship would
6111111110 if the quin tios mere take, to • Court of
""', would balmily sad definitively settled.
Hoo other Judges amearrieg,
ride wes aseharpd.