The Sun.
London, England, 1869-05-03 00:00:00

E.

In the Court of Queen's Bench on Saturday (sittings in
)arrce, before the Lord Chief Justice, and Justices Mellor,
Lush, and Hayes), the case of " The Queen v. Madame
Rachel" CAM eonnpon a writ of errcr to quash the convic-
on. Madamo Rachel, it will be remembered, was tried
,efore Mr. Commissioner .1 err, at the Old Bailey, con-
:ictod, and sentenced to penal servitude for her frauds

mon Mrs. Borredaile.
Mr. Mellish, Q.C., and Mr. Gibbons appeared for the
:irisoner; the Solicitor-General, Mr. Archbold, and Mr
Poland appeared for the Crown.
Mr. Mellish said that this was a writ of error differing
from these which usually came before the court, because
it did. not depend upon the indictment or the Endingof the

rnry, but entirely upon the constitution of the courtbcfore

:hem she was tried. 'the Act under which the Criminal
l!ourt was constituted made it imperative that two
judges should preside at the trials and determine them.

Three questions arose. The first and principal one was,
vhether the Fame two judges should not sit throughout
he:trial, no matter how wary days it lasted, or whether
nie could change each day; secondly, whether the Act
uthorised different courts to he held, or whether it con-
ititued only the establishment of one court ; and, thirdly,
'.hether the office of judge of the Sheriff's Court (Mr.
Malcolm Kerr) was not abolished by the numerous
'lets that bad teen passed in reference to sheriff's
;ourts. It appeared from the writ of error that Mr.
"Jommissioner Kerr sat throughout the three days' trial
nit the other judge the alderman changed each day.

The Lord Chief Justice : So that there never was the

LIMO two judges each day. I see a strange expression in
he case that Mr. Commissioner Kerr is called the " judi•
president."
Mr. Mellish : It seems to be a new creation. I know of
zo presidency amongst the judges of the superior courts.
they sit according to seniority, but they have equal juris-
liction and authority.
The Lord Chief Justice : I took it as being something
leculi.or to the constitution of the court. It is a term
rnknown to the law.

31r. Mellish said that in the celebrated trial of the seven

)ishops the four judges summed up and laid down
liffercnt Taw:, and left the poor jury to find out the law
;he Lest way they could. He was told that in Small
3Trien's case for high treason that more than one judge
vho tried the case made remarks to the jury.
The Lord Chief Justice said that in a trial at the tar,
f. one judge differed from what another judge said, he was
sound to express his dissent.

Mr. Mellish, in continuation, read the first section of
he 4th and sth William IV., c. 36, which constituted that
ventral Criminal Court, and named the justices—viz., the
ford Mayor for the time being, the Lord Chancellor,
he Second Keeper of the Great Seal, and all the judges
or the time being of the Court of Queen's Bench,
Common Pleas, and Exchequer, the Commissioners in
3ankruptcy, the Judge of the Court of Admiralty, the
Dean of Arches, the Aldermen of the City of London,
:he Eecorder, the Common Serjeant, the Judge of the
Sheriff's Court of the City of London for the time being,
u- any person or persons who bath or shall hare been
Lord Chancellor, Lord Keeper, or judge of any of the
inperior courts of Westminster, togetlur with such
oer3ons as might be from time to time appointed by any
eneral commiss7o,,.

The Lord Chief Justice asl:ed what there was to show
-hat UI alderman cou:d sit at all ?

Mr. Alt: said the Act stated the Lord Mayor and
Aldermen of the City of London were on the list of judges
n that Act, and any two or mere of them were to form a

111o:tar.

The. Lord Chief Justice said he might take this oppor-
noity to Elty that should the recommendations of the
ruclicatme Commission be carried out all the necessity for
;;;rnmissions would be abolished.

Mr. Justice Mellor asked whether if two superior
.edges were sitting with three aldermen the three latter
lould overrule the. decision of the judges.
Mr. 'Me:lish : Certainly.

Mr. Justice Mel:or : Then all I can say is that it would
)e the last time that they would officiate. Ido not
{mow how it is with other judges, but I never remember
to alderman interfering in any way with the actual
•cntence. I have always refused to pass sentence in
•he absence of an alderman. But there arises this
pestion—whether an alderman in another part of the
)wilding may not be considered " constructively "
)resent?

Mr. Mellish: That is the common-sense view of the

mase.
Air. Justice Lush : In the case of two arbitrators they
must sit together dories- the whole inquiry ; otherwise
Their decision would be invalid.
The Lord Chief Justice: In practice the superior judges
to not consult the alderman, but proceed to deliver the
diarge as though they were not present.
Mr. Mellish: But the question is whether that practice
s to override an Act of Parliament when the contrary is
aid down as law.
The Lotd Chief Justice: If your argument is carried
silt, the judge would have to consult the alderman before
proceeded to ,tste the Is w of fle ease.
Mr. Mellish said I e siarcely I.ktd to 31sEne the power
if the ahhrtnan. In the Court of Criminal Appeal to
Vasil or atlirm a conviction tiara were 'nary judges ; and
he urged this as showing the intention of the Legislature
in this particular court. He questioned that there was
my power given to divide the jurisdiction of the Central
Criminal Court ; for it was expressly stated that the
cases were to be tried in "a, court.." He very much
questioned that the power of the court could he divided.
In the case of the Recorders, there was a statute
passed for division of courts for doing business,
and there was also a special Act to divide the jurisdiction
of the Courts of Queen's Bench, Common Pleas, and
Exchequer ; but he nowhere found that any thing
had been done as regarded the Central Criminal Court.
At assizes serjcants and Queen's counsel sit under a com-
mission. Here the Act constitutes a court, ul.:ch is
called "The Central Criminal Court"— a material dif-
ference. There was no power given to the superior jades
to nominate who was to sit in the City as at commis-
sion of assize.
Mr. Justice Lush : If your argument is right, the two
;edges at assize would have no power to relieve each
other by. dividing the criminal business between them
when the civil had been disposed of.
Mr. Mellish: I know that nothing could be morerevolu-
tionary than what I propose to'establish. But the ques-
tion is raised, and I am here to argue it ; and it is well
that this should ha definitely settled.
The Lord Chief Justice raid that at the Old Bailey th'e
superior judges sat in one room, and either the Recorder or
the Common Serjeant in the other, and they sat both in the
morning and in the evening, so that there was a division
of the Old Bailey into two distinct courts.
The Solicitor-General replied to the arguments of Mr.
Mellish. He said there were two questions—first, as to
whether the two judges were always to be time same; and,
'econd, whether the court could divide itself. He should
put forward this 'proposition: That the commission was
directed to persons as component parts of a court, and
.Inless there be such difference as at a quarter
sessions where it seas necessary to have a quorum—the
power resided in each member of the court, and the juris-
diction to be exercised by each meta er of the court. It
was not likely that there should have been a continual
breach of law by the judges who had attended the City
of Loudon for so many years. The practice had
inod remain,
been that although the judge' who tried the case
had always been the same, yet the officer arranged
hw
ge he
to pleased,
aalnthdouitgh it was
tiloootk ntewcoestso formarYf a quorum.
or the second
He contended that under the commission each member of
the court is clothed with the whole power of the court.
Each person is supposed to represent the whole caner, who
are supposed to be constructively present. This NV as a
highly technical Objection,
and Is 7 argued
that his learned
friend should shew that the letter
of the Act of Parlia-
ment had been violated.
The Lord Chief Justice : The argument of Mr,
Mellish
was that, by a statutory Act, the cause is to be tried
judges, who are to sit and try it ; and if one of before
them
should be absent, the question is whether
there can be
that concurrence which the statute r«isires.
The Solicitor-General : This was the well-known prac-
tice of the court at that time ; and 'contend that theframers
of the Act would have stated that the sitting of one would
have been invalid. But for the second section every mem-
ber of the court would be clothed with the fttnctions of the
whole court. -
The Lord Chief Justice : The framers of the Act might
have said one member would constitute a court. &ppm°
that an alderman came as second commissioner on the first
day, and another alderman on the second, mind so on,
would not that second or thirl person- be guilty of
gross miAconduet if he slieuld proceed to address the jury
when he had nit heard all the fret 3of the case? I think
the tran.cr IntaLt ti have two persons tinting the whole
time.
The Solic:!_or•Gcneral: In that ca.:e the ahlorman
would be guilty of gross miecondnct. Dot your h d-
chips would overrule that, just in the same way as
was done when Mr. Justice Keating- was called upon to
address the court at ten o'clock at night, it then being
held that he could not do justice to his client. The
learned Solicitor-General then went on at great length
to shcw that the objection taken to the jurisdiction
of Ilfr. Commissioner Kerr, on the ground that he wsss
u,lise of the Sheriff's Court, was not well founded. In .
,ion, be said there had not been a single case where
had been t4cd for a capital offence that this

~f 11r.. MeLiait would not apply to, and they bad
i:.:1-efore, hung -without the slightest authority.
He, however, thought ho had already shwa that there
ought. to be a.verdict for the Crown.
_ Mr. Mellish then replied on the whoincase: Ife said the