The British Press; or, Morning Literary Advertiser.
London, England, 1824-11-25 00:00:00

MR. F.4UNTLEROT.

The Twelve Twelve Judges met yesterday at ten o'clock, to hear
Mr. Broderick in reply to Mr. Sergeant Besanquet.
Mr. Beams etc, commenced by expressing his gratitude to the
(inure foe the indulgence they afforded him by giving him an op-
portunity of preparation to reply to the Learned Sergeant (Duane
yea.) He 'nub' endeavour to signify his terse of the favour con-
ferred upon him by not abusing it, tither in resetting to the
discussion of points which he had before suggested, or in treepeseirg
further on their attention than the authorities he woeld have oeca.
I stern to refer to necessatily required. His Leer .ed Friend (Mr.
Sergeant licesnquct), particularly in the latter part of his tiddler:,
had cited a varitty of precedents and records, similar in some
respects, and different in others. en iedictinents containing coutns
similar to the present. He (Mr. Brodieick) was aside of the effect
of thew precedents. Ile was fully aware it would be idle to deny
tenee precede-ex were adenine of doe weight and attention. as
well from the ability of the number of limnied peelers who advised
tee Dank in fraieing these indictments, as the abi:ity and zeal
of the peewits to whom the lives of the ;diviners were entrusted.
It was difficult. indeed, to eu.ppose how the point on which he re-
lied escaped detection ; but it would not surely be said that his
:tegument was wrong. merely because the poi..t to which he applied
it had not been lettere detected. Numerous instances were to be
found, where, what fur ages had been the supposed law of the land
was found not to be sound when it came to be Investigated, and
decisions given upon it by the Twelve Judgve Whatever mieht
be the weight of this negative evidence, it should not weigh in so
sermus a case as the present. Two cases were principally relied
upon by the Learned Sergeant. The fine was that of the King v.
Wait. He did rut mean to cast the slightest suspicion on the
Learned Counsel, who did all that could be done on behalf of the
prisorer in that case. The point now beret: their Lordships was
lint raised in that case, because it was of no avail. The Learned
Counsel did not omit to raise it rashly or erroneously ; he had
ample reasons for not doing eo ; as to take up that ground would he
Mem 'latent with the argumeet he there relied upon. He might
have put it in be way of as alternative; but otherwise it would not
have been in seculance web his morning. The other twee on
which his learned Friend principally relied, was that of the King
v. Lyons. There this point was not argued ; that case referred tor
et ermine' fir which there was a .petal provision, under the 53d
of Geo. 11. but it appeared from a note of the case with which he
had been favoured by one of their Lordships. that it also ulna
within the provisions of the 2d of Geo. 11. and the convictitin was
deemed by the almon unanimous decision of twelve Judges to be
sufficiently velid. The point in the present case, he would submit,
had been never raised before I to say that it had not, and to say
that he cesid not throw any new light upon it, would be bordering '
on presuniption and afilctation. On presumption, in saying that
the Learned Judges had nut devoted their attention before, or that
it had not omitted to persona of their rest and extensive iearning.
On the other hand, it would be affec•ation fur him to say that they
might not be assisted by those lees learned than thenewlves, who
might suggest points for their consideration ; and by directing the
force of their talents to these points, might at least lead their Lord
ships to the same train of thinking. But step pose that the wfible
effect of these precedents; we are not here to censider whether these
are precedents on the subject, or not, but whether they are right ;
not whether indictments have been teamed in this way, or after
that manner, but, after a full consideration, to decide what is
the law upon the points which he submitted. He wished the ease
to be treated as a tea barges, as • case of the first impression, not
to be determined by indictments on a 'witty of former eases, but
that the rule of law upon it might be ascertained. He ex-
pected to have been met fairly and hinted], upon this peeposition,
and that his Learned Friend would not nave left the ques-
don of law and reason, and have recourse to back his case
with precedents. Can such a course be mind; ted In the adminis.
tration of justice, and in a case too, sheet crimilial justice is about
to be carried to armful extremity. and where man inflicts death on
mar. Who demo to come forward, and under such tercurnstancee,
to tell their Lordships, that this case should be treated as a cone
eduction on precedents, and not as a see fotegra. Who will as-
set.' that it is better a human being should be sacrificed, and that
the law should be not sustained, than that a (nurse of precedents
should be disturbed ? This was the way he complained in which
his Learned Friend met the case ; not that he broadly stated that
principle, but sought to establish it by inference and implication.
The fair question was, can this conviction be sustained? If he
could shake off those precedents, he would satisfy their Lordship*
it could not. His Learned Friend consented by considering the
definitions which he assigned to a deed, from the authority of the
earliest and most approved writers ; but he did not discuss his pro.
positions. First he referred to Lord Coke, even in whose Needs he
said definitions were dangerous. yet he himself relied on • few loose
ditto of the acme writer. Ile (Mr. B.) would ask, whether more
validity was to be given to the dicta, than to definitions -there the
mind applied itself closely_ to give an exact explanation of what
it purposes to define. This was • rule of judgment not
foonded on common sense. If definitions were deserving
of any weight, it was when a long train of writers were
found concurring in the sure drfinition of the same thing.
All the definitions of a deed in the *thews of (''well, Ducags,
Spellman, and other eminent writers on legell peedeology, were
found tending to the same conclusion. His proposition had not
been fairly dealt with by his Learned Friend. Ile said the defini-
tion could not be supported in its full extent when a deed was de-
fined to be a contract between party end party. That It should be
between party and party, his Learned Friend contended was too
restricted a deletion of tt ; and he referred to Spelmaa's definition
—" Factum dicitur • ferensibus rostris solenne seriptum quo fu.
meter dorum eoncessio, contractee, rectum ant hujusmoei alias
chem." This definition of Spellman did not include the present
case. Would his Learned Friend sec y that " &mum" meant power
of attorney, or that any other word in the sentence could bear such
a translation ? But his Learned Friend relied principally on the
Imo member of the sentence, " hujusenodi alias charts.' This
the Learned Sergeant contended included such an instrument as the
present ; but he submitted that this member of the sentence referred
to an instrument which was either of the nature of a " donurn " •
" coacessia," a "contractile," or a "psalm].' His learned
Friend proceeded to read the passage succecdirg this definition—
" Est eel simplex vel induitatum übi plums rontrahUnt Tel solos
quispiam agit." It was sought to make " agit" mean to convey
a power of attorney; hut he (Mr. II.) submitted that it could only
have reference to a transaction in which there was a bargain or con-
tract, such as was specified in some of the terra of the preceding
definition. Although his Learned Friend bad succeeded in show-
ing that there were some few instances where " liters" and
"demo" were used as applicable to the same thing or instrument,
yet he hoped he had succeeded in showing that there was a general
distinction between them on legal principles during the last three
reigns. Ihe Learned Sergeant seemed to contend that any writ.
log, if signed, sealed, and delivered, was a deed. If that were an
adequate definition, would not a notice served on a party not m '
deepen if sigeed, sealed, and delivered, be • dad; but,
it did not contain the apt words. If this were an adequate deli.
onion, would not • will be a deed ? This was not obligatory on
the party ; and as it did not contain the necessarycontract to con.
stunts a deed, it would not be contended that it was one, though
signed, sealed, and delivered. As to delivery, it was only inci-
dental to a deed, and was not an mendal requisite to constitute
one. The Learned Sergeant ptocerdeti to cite instances of writings
that were deeds, though they contained no contract, and relied on
releases by deed. lie (Mr. Broderick) would ask, did they
paws no internee—did they convey no grant ? It would not
be controverted but that they did pm an interest. He also cited
other emes--cenfirmstion by deed, and diclaimer by deed; in the
latter case, a bill of relinquishment of right was necessary, and
there was a grant and passing of interest, which brought them all
within the definition of Spelman and of the other writers he had
cited. The cue which lie had cited from the year-book had not,
he thought, been fairly dealt with by the Learned Sergeant. The
utmost he (Mr. IL) contended for was, that the Court there came
to no decision, although he might have perhaps contended as some
of his Learned Friends had sutgested to him, that there was an
Implied decision in his favour. Thu was die case on a deed of
feoffaient, where an objection was taken that the count was not con-
formable to the writ. He only referred to it for the purpose of
sheering the difference which, in the opin-on of the Cote:, existed be-
tween fathom and ottosiotowtant, under which latter term he
had the authority of the ceinpier, in opposition to that of the
Leaned Sergeant, the power of attorney case. The case of Dodd v.
Herbert, winch was the case of award alluded to by hint the
Learned Sergeant had not fairly .d alt with it either. Ile bad intro-
duced it to stew that • mere writing, with signing and sealing, did
OM constitute a deed. Tleit It might hare a dsnl.atamp, so as to
create or eoirditu:e It one, he did not deny. Ile (Mr. IL) had also
referred their Lordships to the Stamp Arts, where the Lerislature
makes a distal:don, by rert.iring different stamps far each, and
seises a cons•ruction to the different terms.
Sir. Jussiee BATLEY—The Stamp Act makes • difference be-
teem the stamps requisite for morgues and deeds, and will it
therefore be said that they are not on that account deeds ?
. .

51r. Dam)tarot replied, that there was an itdjaiorens duty in
the cares of bond and mortgage, which made them different from
the instruments he allusLd to. The Learned Sergeant said, that
the covenant in this instrument was not nugatory, as the -witty
making it could not convey an interest after his death. lie would
quote the words of the power of attorney, sanctioned by the Da*,
as an authority against himself, for the words in the power of at-
torney showed that such power could be conveyed. They were as
follows:—" And, in case of tny death, this letter of attorney, a. to
all matters and things which, after my decease, shall be dune by
my said attorney. by virtue of. or under colour, or in pursuance
thereof, shall, so far as the Governor and Cmnpany of the Bank of
England are interested or concerned, be as binding upon our re-
spective executors and administrators as the same would hare been
upon MC if living. unless notice in writing of my death shall have
i been previously green to the said Governor and Company by my
executors and administrators, or by some person or persons We-
tensed in the property to which this letter of attorney refers; and,
wales. such notice be given, I hereby covenant, promise, and en-
gage, and bind myself my executors and administrators to and
with the szid Governor and Company of the Bank of England,
that my et:re:sums ear administrators shall and do allow, ratify,
and re,„.ot, as good, valid, and effectual against them, and
against my Wires, w hatsocver shall or may be done by my attorneys
or tither of them after my decease, so far as the said llovernor and
Company or the Bank of' England shall or may be in any or every
other manner interested therein. In witness whereof, gLe.'
There then wss an express authority to pass interest after deals,
sanctioned and approved of by the Rank, though now denied to
exist by their Learned Clumsel. The rules by, which to regulate
the construction of statutes were well understood. By these rules
had he construed the statutes relative to forgery yesterday, and he
bad been pp P-Jited by nothing on the other side. but the weight of as-
sertion. The roposition he laid down, he had traced through the
statute of Elisabeth, 2d of George 11. Slit of George U. and the