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

MAD ,4:IE BAC 11 T:L.

In the Court of Que,...4 Bench on Satuvtlay (sittings in
)anco, before the Lord Chief Justice, and Justiu,s Mellor,
Lush, and Hayes), the case of "The Queen v. Madame
Rachel" came on upon a writ of error to quash the convic-
ion. Madame Rachel, it will be remembered, was tried
)efore Mr. Commissioner Eerr, at the Old :Bailey, con-
:ictecl, and sentenced to penal servitude for her frauds
won Mrs. Borrodaile.

Mr. Mellish, Q.C., and Mr. Gibbons appeared for the
?risoner; 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 findingef the
fury, but entirely upon the constitution of the court before
Nhom she was tried. The Act under which the Criminal
T!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 many days it lasted, or whether

me could change each dey; secondly, whether the Act
uthorised different courts to he held, or whether it con-
stituted only the establidiment of one court ; and, thirdly,
Ahether the office of judge of the Sheriff's Court (Mr.

\Talc°lm Kerr) was not, abolished by the numerous
A.cts that had been passed in reference to sheriff's
:ourts. It appeared from the writ of error that Mr.
e.osrnissioner Kerr sat throughout the three days' trial
)ut the other judge the alderman changed each day.
The Lord Chief Justice : So that there never was the
tame 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
so presidency amongst the judges of the superior courts,
rhey sit according to seniority, hut they have equal juris-
liction and authority.
The Lord Chief Justice : I took it as being something
seculiar to the constitution of the court. It is a term
mknown to the law.

Mr. Mellish said that in the celebrated trial of the seven
)ishops the four judges summed up and laid down
lifferent laws, and left the poor jury to find out the law
he best way they could. He was told that in Smith
)'Brien'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
bound to express his dissent.

Mr. Mellish, in continuation, read the first section of
he 4th and 45th William IV., c. 36, which constituted the
central 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,
the Recorder, the Common Serjeant, the Judge of the
iheriff's Court of the City of London for the time being,
)r any person or persons who bath or shall have been
Lord Chancellor, Lord Keeper, or judge of any of the
ruperior courts of Westminster, together with such
eersons as might be from time to time appointed by any
eneral commission.

The Lord Chief Justice asked what there was to chew
hat an alderman could sit at all ?

Mr. Mellish 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 more of them were to form a

1110111111.

The Lord Chief Justice said he might take this oppor-
unity to say that should the recommendations of the
fudicatuze Commission he carried out all the necessity for
zommissions would be abolished.

Mr. Justice Mellor asked whether if two superior
'edges were sitting with three aldermen the three latter
,ould overrule tho decision of the judges.
Mr. Mellish : Certainly.

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

Mr. Mellish : That is the cemmcn•sense view of the

Mr. Justice Lush : In the case of two arbitrators they
must sit together during the whole inquiry ; otherwise
Their decision would be invalid.
The Lord Chief Justice : In practice the superior judges
io not consult the alderman, but proceed to deliver the
charge as though they were not present.
Mr. Mellish: But the question is whether that practice
s to override an Act of rarliament when the contrary is
aid clown as law.
The Lord Chief Justice: If your argument is carried
rut, tlin. indso wrmid have to .or...it ttau wilormwn before
proceeded to state the law of the case.
Mr. Mellish said be scarcely Eked to define the poker
rf the alderman. In Ihe Court of Criminal Appeal to
'trash or affirm a conviction there were teary judges ; and
he nreed this as sheaving the intention of the Legislature
in this particular court. Ile questioned that there was
any power given to divide the jurisdiction of the Central
Criminal Court ; for it was expressly stated that the
ca.ses were to be tried in " a court." Ile very much
questioned that the power of the court could be 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 anything
had been done as regarded the Central Criminal Court.
At assizes serjeants and Queen's counsel sit under a com-
mission. Here the Act constitutes a court, which is
called "The Central Criminal Court"—a material dif-
ference. There was no power given to the superior judges
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
;udges 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 more revolu-
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 be definitely settled.
The Lord Chief Justice said that at the Old Bailey the
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 the same; and,
second, 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
unless there be such difference as at a quarter
iessions where it was necessary to have a quorum—the
power resided in each member of the court, and the juris-
diction to be exercised by each member of the court. It
was not likely that there should have leen a continual
breach of law by the judges who had attended the City
of London for so many years. The practice had
been that although the judge. who tried the case
had always been the same, yet the officer arranged
how he pleased, and it was not necessary for the second
judge to remain, although it took two to form a quorum.
,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 court, who
are supposed to be constructively present. This was a
highly technical objection, and he 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 before
udgee, who are to sit and try it ; and if one of them
should be absent, the question is whether there can be
that concurrence which the statute requires.
The Solicitor-General : This was the well-known prac-
tice of the court at that time ; and I contend that the fraraers
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 functions of the
whole court.

The Lord Chief Justice : The framers of the Act might
have said one member would constitute a court. SuppJse
that an alderman came as second commissioner on the first
day, and another alderman on the second, and so on,
would not that second or third person be guilty of
gross misconduct if he should proceed to address the jury
when he had not heard all the facts of the case? I think
the framers meant to have two persons durieg the whole
time.

The solicitor-General: In that case the alderman
would he guilty of gross misconduct. But your lord-
ships 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 :.t night, it then I; recrig
held that he eculd not do justice to his client. Tl:e
learned Solicitor-General then went on at great length
to show that the objection taken to the jurisdiction
of llcr. Commissioner Kerr, on the ground that he was
judge of the Sheriff's Court, was not well founded. In
conclusion, he said there had not been a single case where
a man had been triel for a capital offence that this
doctrine of Mr. Mellish would not apply to, and they bad
been, therefore, hung without the slightest authority.
He. however, thought he had already shown that there
ought.
:t4oLaih t 4 verdit:rtelf)oijet4hoea-Ctia'rosiiyin.
case.
, 44,
said