The Sun.
London, England, 1849-12-21 00:00:00

CENTRAL CRIMINAL COURT.
OLD COURT:
_ _

(Before Mr. Justice COLERIDGE and Mr. Baron
Rol.rs.)
TRIAL OF HUGH SWAN FOR MISDEMEANOUR.
(C ntinued from our Afternoon Edition of yesterday.)
After the examination of several other witnesses,
the case for the prosecution closed.
Mr. JAMES then submitted to the Court that this
indictment could not be supported. The charge was
founded upon two sections of the sth and Gth Victoria,
which Act he should contend, so far as this charge
was concerned, was repealed by the 12th and 13:h
Victoria, known as Lord Brougham's Bankrupt Lsw
Consolidation Act. By the first section of that Act
it was enacted, that from and after its coming into
effect all other Acts and parts of Acts, except as re-
garded certain particulars to be mentioned in a
schedule to the Act annexed, should be and were re-
pealed. Now he found by the schedule referred to
that this Act of the sth and Gth Victoria was among
those that were repealed, except those portions re-
lating to the appointment of commissioners, the pay-
, ment of their expenses, and other !natters, none of
which had the slightest reference to any criminal
charge of this description or any other; and he sub-
mitted, therefore, that this case must fall to the
ground, the Act of Parliament upon which it was based
being clearly repealed by the subsequent and existing
statute. •

Mr. PARRY, on the same side, urged that it being
perfectly clear that the sth and 6th Vict. was
repealed, except as regarded the exceptions mentioned
in the schedule, the only question was whether any of
these exceptions applied to the present case ; and it
appeared to him that the only point which would re-
quire a word of observation was with reference to the
first section of the new Act, which excepted the re-
emery and appropriation of any penalty for any,
offence committed under the Act. He should, how-
ever, contend that this clearly was only intended to
apply, to the pecuniary penelties fixed by several sec-
tions of the Act, and that the word " penalty " could
never properly be construed to extend to the punish-
ments of transportation or imprisonment.
Mr. CLARKSON, in support of the indictment, said
he should contend that the 12th and 13th of Victoria
kept alive all the liabilities to which bankrupts were
subject by the previous Act of Parliament, and he
felt convinced that the Court, when it saw that every
one of the previous provisions was re-enacted in this
statute, would be slow in coming to a conclusion of
so mischievous a character, as that immunity was to
be given to wrong-doers between the period of the
repeal of the old statute and the re-enactment of the
new one. According to his construction of the latter
statute, it was intended to keep alive all the matters
relating to bankruptcy until the Act itself came into
operation on the 11th of October; and unless their
Lordships should be of opinion that the Legislature
intended there should be a hiatus, or that it was a
cases misses on their part, it appeared to him they
could not decide that the present indictment was bad.
The Learned Counsel then referred to that portion of
the new Act relating to the recovery of penalties, and
he submitted that punishment of any description might
reasonably be inferred to come within the term
" penalty.
Mr. HUDDLESTONE also addressed their Lordships.
He said, the point was one of very great importance;
because, if the Court should give a decision adverse
to the prosecution, the effect of it would be to give
complete impunity for every offence of the same cha-
racter that was committed prior to the 11th of
October, when the new Act came into operation.
The Learned Counsel concluded by suggesting that
the point might be reserved for consideration by the
Court of Criminal Appeal.
Mr. JAMES made a brief reply. He said they had
no right to enter into any discussion as to the objects
or intentions of the Legislature ; and the only ques
tion was, as it appeared to him, whether in the hurry
With which legislation was sometimes carried on,
there had not been an omission which created the
present difficulty. With regard to the suggestion
that the point should be argued before the Court of
Appeal, he was sure their Lordships would not put
the defendant to the expense and inconvenience that
would ba entailed upon him by such a course if, as
he entertained a confident opinion was the case,
their Lordships should think that the indictment was
not legally sustainable.
The Learned Judges having conferred together,
Mr. Justice COLERIDGE delivered the ju igmmt of
the Court. lie saLl that this was no doubt an import-
ant case wi h regard t ) its c msequences. but at the
same time, when the Judges sitting in that Court saw no
reason for delaying their decision, and the point ap-
peared perfectly &ear to them, he did nut think they
ought to reserve it for the Court of Appeal. There was
no doubt in his own mind, nor, he believed, in that
of his learned brother, that this indictment could
not be sustained. It was clear that if it could
be sustained at all, it must be upon the sth and 6th
Victoria, because the alleged offence was committed
before the passing of the 12th and 13th Victoria, and
in the latter Act there was no retrospective clause.
Toe question that then arose was whether the Act of
the sth and 6th was repealed. By the Act of the
12th and 13th Victoria, every one of the previous
Bankruptcy Acts was repealed, and among them the
sth and 6th, with the exception of certain portions,
which were mentioned in the schedule. He then
looked at the schedule, and it was perfectly clear that
none of the matters there referred to could by possi-
bility apply to the present eve. It was said
that there was a saving clause, by reason of the
recovery of penalties being reserved; but it appeared
to him that the term " penalty" could not be con-
strued to apply to such an indictment as this, or to
the consequences that attached to it. It was possible
that the difficulty had arisen accidentally from the
penning of the new Act of Parliament, but with
that they had nothing to do. It was the duty of
the Court to take care that no criminal offence was
created, and that no person should be punished for
such an offence' unless under the clearly expressed
sanction of the Legislature ; and the Court, therefore,
upon these grounds, were of opinion that the present
indictment could not be sustained.

Mr. Baron RoLr said, that after the observations
of Mr. Justice Coleridge it was hardly necessary for
him to add any remarks, but on a point of so much
importance he thought it right to say that he quite
concurred with him in the decision he had given.
The statute in question was distinctly declared to be
repealed, and none of the exceptions applied to the
present case. It was no doubt, an omission on the
part of the Legislature, but with that the Court
had nothing whatever to do. When the Act,
known as Sir Robert Peel's Act, was brought for-
ward, and which repealed a vast number of
other Acts of Parliament, care was taken to
avoid this difficulty, for there it was expressly
enacted, that, although certain Acts of Parliament
were repealed, yet that any offence committed before
the new Act came into operation should be punished
as heretofore, and this obvieted every difficulty, as
but for this enactment there would have been com-
plete impunity, as in the present instance, for all
offences that were ccnamitted between the period of
the repeal of the former Acts and the coming into
operation of, the new.one. A similar difficulty to the
present arose when the B tnkruptcy Act of the 6th
Geo. IV. was passed, as the very same mistake was
made, and the Judges at that period came to the
same decision the Court .had to day. It was unne-
cessary for him to.go again over the grounds that had
been mentioned by Mr. Justice Coleridge in coming
to that decision, and he would merely repeat that he
entirely concurred in, it.
The jury then, under his Lordship's direction, re-
turned a verdict of. Not Guilty.
Mr. KaNIALET said he appeared on behalf of a
defendant named Lake, who was charged with an
offence under the same Act of Parliament. The case
had been postponed to the next session, but, after the
decision their Lordships had come to, he trusted they
would at once dispose, of it, and not permit the de-
fendant to remain in custody.
Mr. CLARK.SON said he appeared for the prosecutor,
and his attorney
,was not present; but still, after the
opinion that had been expressed by their Lord-
ships, he did not think he ought to oppose the ap-
plication.
_ _ _

- Baron RoLFE said.he thought this was the proper
course. If the indictment was preferred under the
same Act of Parliament it was quite clear that it could
not be sustained.

The defendant, William Lake, was accordingly
placed at the bar, and no evidence being offered
against him, the jury returned a verdict of Not
Guilty.

This dosed the business of the session, and the
Court adjourned to Monday, Jan. 7.

NEW COURT.

William Baugh, a letter sorter, was convicted and
sentenced to seven years' transportation for stealing
two letters containing money and postage stamps,

BAPTISMAL REGENERATION AGAIN.--Another
re-
•ol.ing scene was perp• crated in the churchyard of
Chard on Wednesday, the 12th instant. A child of
respectable parents, living in South Chard, was con-
veyed to the churchyard for Christian burial, when, to
the astonishment of the beholders, the corpse was put
into the ground like a dog, because, as it had not been
christened, the curate wculd not perform any service
over it, nor slow the be!l to be tollei.—Sherborne
Journal.