The British Press; or, Morning Literary Advertiser.
London, England, 1826-08-18 00:00:00

NO R TIIERN CIRCUIT.

LANCASTER, AVG. lc,
MR. WAKEFIELD.
The Court was crowded at an early hour this morning, to ht,o
the application to postpone the trial of Mr. William Irsketirld
until the next Assizes.

At the sitting of the Caurt the Counsel es both sides made ti eir
pearance.

Mr. SCA a urt.licit/ foamed Friend, his Majesty's At.omq.
General, has coma fiagabranien to attend this trial, and I aim to
ask your Lordshlpirt II& iy
111 r. A T7OlE4llO'l , 110.74 t, is of no consermerce tome
M . .
r. Justice J'4
Iguf
ignagstand fon. MI. Screlett ; but al i
matter of coarse' pwsdadleseetilheitlg rt-A ttorney-fiener.l
of this Court... -: !pd. •Tfltii "..t'n'",,t'""fi'i
Mr. SCAR LE,l.77l4l*rutrrenolllVOk I 111/4,_ te oubmit to you,
principal); fr 4 isstpffence tied. r the Statute of Phi.ip mg
L *davits is simplgtal the471.14111F Mu William tl'aketield
ut til the next Areshati.itila appears Oat' Wlfliam Wakefield hts
been indicted with 1014,ffkettihniti I shall, frr distit ction's sake,
call the
Mary. If this proceeding had taken place previously to the Act
lidth (leo. 111. then bt the common law the defendant would have
had a right to postpone his trial until the next Assizes. That
Statute, however, for urgent political purposes, ditected in certain
cases a more summary mode of proceeding to trial, and restricted
the privilege which every Neon indicted for misdemeanour
formerly potaessesl, of putting (II the trial to the next Maize% I
shall nut, therefore, dispute, that as the law stands, this defendant
may now be compelled to take his trial. But that Statute very
properly left It to the discretion of the Judge trying the cause, to
. . . . . .. .

decide whether the defendant should be compelled to lake hit trial,
or be allowed to postpone it to the next Assizes. It is to teat
discretion that I now apply, and I make the applkatinn on ea
affidavit, which states the absence of three or four witnesses, who,
in the opinion of the defendant's Counsel, are most essential t i e;
defence. It cannot be expected that in a criminal case the affidavit
of' the defendant should disclose the nature of the testinionv which
the nbsent witnesses are expected to give, because that would lay
open the case of the defendant ; it is, I apprehend, sufficient te
say that the witnesses are absent, and thateheir evidence is me.
feriae The affidavit does state that the witnesses are abroad; that
they are expect, d to return before the next Assizes, and (what must
occur to your Lordship) that there is no process by which they can
now be rompclkd to attend. It is, I believe, usual, in moat cares,
to defer a trial as a matter of course, on account of the absence of a
I material witness ; but this affidavit is directed to the discretion of
your Lordship, and it does appear to me to apply in very strong
term.. I will say nothing at present of the neture of the offence
jweaartder( trouble
' eherged— of its tendency to mite a strong public feeling—or of the
publications which have been made by both skim with a view to
give a direction to that feeling. The question now is, are the tire
,aainndie n Eo
greater eutestancts sufficiently strong to induce the Court to put fertile
trial ? I apprehend that it is impressible for the discretion of the
Court not to yield to ibis application, especially when no prejudice
can arise to any party from deferring the trial, because, as Me pro.
"eW:iciretielnldu,sntoamppoerearexattventisele wnillxtbeAiriciuzearreagd
imp. s sl, by also deterring the trial of his brother. It is usual, in
the ordinary course of the administration of justice, for the Court to
' say, •‘ Wily have two investigations of the same matter?" Your
Lordship well knows that in ordinary cases, where several panne
are joined in one indic mcnt, the Court always suggests to the pro.
sectitor not to force on the trial of one defendant *hen it is material
to try the rest. Above all others this is a owe in which such a
suggestion is celled fee, because it will be perfectly impossible, she/
the trial of William lieakefield, fur any hope to be entei twined of
an unbiassed administration of justice when the other cause comes
on to be tried. It does appear too, that the prosecutors themselves
have thought this prosecution so important—they hove conceivnl it
to be a proceeding of so much gravity—as to require in its direction
the assistance of my Learned Friend the Attorney-General, *horn
I ant always happy to see here, and in this matter shall be glad to
see twice. and who has been brought down specially in aid of the
dietinguielied talent of the Northern Circuit:. I think it right to
say that that very proceeding shows the opinion which the pew.
tutors have of this grave and important proceeding. There hes
been no proceeding under the statute of Philip end Mary for
upwards of a century—there have been no cases for so long
a period to illustrate the statute ; so that the de 'veleta may
feel desirous CI speak it with the mallow sincerity and de-
iference to your Lordship) not to rely on the discretion of
a single Judge. but to remove the cause, by certiorari, to
another tribunal, which will not only be more select, and more
likely to be free from those prejudices which the nature of the ewe
is likely to inspire, but where he may have the opportunity of
assisting the judgment of the Judge who tries him, by an appeal
to another tribunal. It must too be a matter of the greatest ten-
aviation to a Judge trying such a cause, to reflect that his decision
will not be final, but that an opportunity will be afforded to the
Court from which the record comes, to revise owl correct hie judge
went. Whatever confidence, therefore, I may have in your Lad-
s! ie's opinion, I think it my duty to say that the defendant ii en-
title', hi a case of such peril, to have the greatest delibeevien and
the greatest caution, anti every assistance that the high:st learning
and the highest authority can give, in order to satisfy him, that it
I e be convicted, there hat been no error in his Couneel or his Judge.
In • rtlinary castes of mistlemeenour, it' an application I e made to
tie Court of King's Bench for a Special Jury, on an allegation
that it is a fit cause for a Special Jury, tt is the practice to
grant it as a matter of course. Sly. Learned Friend will, I dare
soy, tell me that there is a clause in the Act which enab'es 8
defendant to apply for a certiorari before the indictment is
found. But this Act has evidently not been prepared by
lawyers, because, as it does not enable the defendant to apply
for a certiorari out of Term time, it does not apply to cases
whin: no Term intervenes between the finding of the indict-
ment and the trial. I Jo not say that the present has been such
a case: but it is quite clear that if ICilliant Wakefield had
applied to the Court of King's Bench fur a certiorari, the applica-
tinn would not have been listened to. In the first place, it could
eot be known whether the indictment against him would be for
felony or a misdemeanour. The Court, when it admitted him to
hail, cautiously abstained from giving any opinion as to the quality
of the offence. The brother of the defendant was afterwards taken
into custody ; and after a long investigation of circumstances, re-
lating only to hint, the Magietrates committed him for felony. It
was quite impossible that NVilliiim Wakefield could know, mull
the result of the Grand Jury's deliberation, whether he would be
con:mired for felony or misdemeanour; and that circumstance
would have been made a decisive objection, if in the course of last
Term he had applied for a certiorari. The Court would have said
to bier, " flow can you ask us to grant a certiorari before you know
whether a bill of indictment will not be found against you for
felony ?" the certiorari having the effect of removing all indictments
whatsoever. Again : suppose that being indicted with his brother,
Ed rd Wakeheld, and the brother being committed for felony,
„william inikt field had applied for a certiorari, Edward Wake.
Weld could not be bailed ; and the answer of the Court to William
Wakefield would hare been—that, in Cana where there were joint
defendants, the Court did not grant a certiorari to one without th 3
other, unless both concurred in the application. The case then
conies to this: It appears that a bill of indictment has been found
'Onst both the brothers for a mitelemeanour, and that a bill for
conspiracy has also been found against them both. That one of
these &tenth:tree (I mean :Ur. Edward Gibbon Wakefield) is not
within the Statute, and ii theretOte entitled to put off his trial, I
hold to be betoad all doubt.
Mr. Justice PAILIK—I have already acted upon that opinion.
31r. SCAR LETT—Suppose then that William Wakefield is now
tri,d, and the prosecutors are gratified by having two trials instead
of one, what will be the result? When Eileen) (iibbott Wake-
field applies for a cr rtiorari, the Court of King's Bench will either
say, e• We cannot grant a certiorari when one of the defendants
has been convicted t' rit will say, '• That conviction being dis-
posed of, a certiorari cannot issue as it regards the other de-
fendant."
.11 r. Jusece PAair—ls it always a matter of course to grant a
cet ti.earl i
Mr. SCAN LETT—I pledge my experience to the Ike.
Mr. Justice PAI4I-1, too, have had some experience.
Mr. SCARLETT—It is the every day's practice in the Court of
King's Bench for a party to apply the a certiorari, for the purpose
of gettmg a Special Jury, and for the Court to grant the teutien
as a matter of course. I have made a hundred motions of diet
Lied without any one appearing to open se then). But suppose that
the Court grants a certiorari to Edwurd 'Wakefield, Open see the
situation of the ewe. Suppose William Wakefield is acquitted,
and Edward Wakefield actianted. Then the principal (fee thought
in these proceed ngs technically there is no principal and accessary,
yet in mason these brothers must be viewed in that light), the prat.
cipal, I say, is acquitted, and mark the ridicule which must rest o :
the whole administration of justice, if the principal offender be a -
quitted, and the accessary be convicted and suffer punishment.
Mr. Justice PARK—You are aware that all the ,e mutat
Were amply discussed in the cute of Stamp Sutton Cooke. In that
case the principal has not yet been tried, and yet the accessary has
been convicted an I sentenced.
Mr. SCA n LET T —The principal in that case has not been con-
wicte I, for the best of all poosible reasons, because he has not yet
Yew found. If one defendant absconds and the other remains,
then no doubt the party remaining must be compelled to ans or.
The present case it, in the opinion of the defeetiatit'e Counsel, a fit
cute for a Special Jury. I only medico one case at all anelogeus
to it, and in that your Lordship I believe was Counsel. It was a
presecutien by the Rev. Mr. Frank, of Yorkshire, against two
parties, fur conspiracy to bring about the marriage of the son of the
prosecutor with the daughter of one of the defendants. The
Court of Ki g's Bencit in that case granted a criminal information
against the parties, and did tiot think it sufficient to lease
the case to the ordinary tribunals of the country. I think
yoar Lordship conducted the defence. It was the case 0;
a young man of nue very strong capacity, and who 1 be•
hove has since been declared loops* of managing his own
affair/4 and who had been in away by the father
of the girl, and carried off' to Scotland, and married. Now, rave
as that case way, and likely as it uthieetheedly was to culte
high degree of public feeline, the rota was a veneer er :le-
gume]. That ease was tried by a Spetiallury on a t,,,11.: j :I:-
formation, granted by the court of King's kknch, anti :s lee ',lily
case analogous to the present tied I can recollect. Nee., '' II"'
Court of liiiig's Mcncli thought that a tit case ocr a clin,;, 1 :!..