The Sun.
London, England, 1867-11-21 00:00:00

TO THE EDITOR OF THE SUN.

Sin,—l beg to enclose a copy of the statement
submitted by myself and my learned friends for the
consideration of Mr. Justice Blackburn and Mr.
Justice Mellor, with the reply of Mr. Justice
Blackburn, which I have his permission to publish.
I will not pause at present to examine the grounds
of their lordships' decision ; but, with the sincerest
respect for their high authority, I must say that the
consideration thereof, and a calm perusal of the
reasons alleged in its support, have not changed any
matured and deliberate conviction that the opinion
of myself and my learned friends is law. Were
this not so, it must occur to every lawyer, and,
indeed, to every citizen uninfluenced by prior
opinions, or, it may be, prejudices, that in a ques-
tion of such solemn gravity—one of life and death,
involving the fate of four human beings—an argu-
ment on the points suggested would have been
more in accordance with precedent, and more
consistent with the protective vigilance and im-
partiality which have always characterised the
administration of the criminal law in England.—l
am, sir, your obedient servant,

WILLIAM DIGBY SEYMOUR.

Temple, Nov. 20.

STATEMENT SUBMITTED TO MR. JUSTICE BLACKBURN
AND MR. JUSTICE MELLOR.
REGINA V. ALLEN AND OTHERS.

Upon the trial of Allen and others for the murder
of Sergeant Brett, two points of law arose under
the following circumstances :
On the morning of the 11th Sept. last, two men,
who turned out afterwards to be Kelly and Deasey,
were arrested by a Manchester policeman, as he
alleged, under sect. 216 of the Manchester Police
Act (7 and 8 Viet., chap. 40), which enacts that it
shall be lawful for any constable belonging to the
police force of the borough to take into custody,
without a warrant, all loose, idle, or disorderly per-
sons whom he may find disturbing the public peace,
or iu his own view committing an offence against
this act, or whom he shall have good cause to sus-
pect of having committed, or being about to commit,
any felony, misdemeanour, or breach of the peace,
or to instigate or abet any such breach.
The two men, who gave the names of White and
Williams,were taken before a magistrate on the 11th
and remanded until the 18th by a warrant, which
stated the charge against them to be, not for sus-
picion of felony, on which they were arrested, but
" for felony," and omitted to specify what felony or
other offence they were charged with. They were
brought up again on the 18th, when no evidence
whatever was given upon the charge on which they
were alleged to have been arrested, but an inspector
of detectives from London, who stated he had a
warrant against Kelly for treasonable practices
alleged to have been committed in Ireland, and a
constable from Ireland, wha was stated to have a
similar warrant against Deasey, appeared, and on
their application, without the production of either
of the warrants, which, iu fact, were not then backed
as the statute reluired, the prisoners were again re-
manded for a week.

No warrant for such second remand was pro.
duced upon the trial, but it was stated that a war-
rant had been signed, a copy of that signed on the
11th inst., and had been destroyed by the police
after the escape of the prisoners.
Kelly and Deasey were then placed in the prison
van for the purpose of being taken to prison ; and
on the way the van was attacked, the prisoners
rescued, and Brett killed.
The two questions were, first, whether or not
Kelly and Deasy were in legal custody ; and, second,
if they were not in legal custody, whether the crime
of killing Brett, in the act of rescuing them,
amounted to murder or manslaughter.
As to the first point it would seem (first) that the
magistrate had no jurisdiction to commit for felony,
no charge of felony having been made ; and (second)
that the magistrate had no jurisdiction to entertain
the charge of treasonable practices committed in Ire-
land, or to remand the prisoners upon such a charge.
By the 11 and 12 Vict., c. 42, s. 22, justices are em-
powered to take the examination of witnesses against
persons who are brought before them charged with
an offence alleged to have been committed in any
county or place within England or Wales wherein
they have not jurisdiction. By sect. 2of the same
act they are empowered to issue their warrant to
apprehend any one within their jurisdiction charged
with having committed any crime or offence on the
high seas, or in any creek, harbour, &c., or any
" crimes or offences committed on lands beyond the
seas for which an indictment may legally be pre-
ferred in any place within England or Wales." By
sect. 11, where an English warrant is backed in
England, the offender when apprehended may be
taken before the justice who issues the warrant, or
if so directed by the justice backing the warrant,
before such last mentioned justice or any other jus-
tice of the same county or place; but by sect. 12,
when an Irish warrant is backed in England, the
offender must be taken before the justice who
granted the warrant, and there is no power to take
him before the magistrate who has backed it. It
would seem therefore that in this case the proper
course would have been, in the case of Deasy at
least, for the magistrate to have backed the Irish
warrant, and for the prisoner to have been taken,
under the authority of the warrant so backed, to
Ireland, and that the magistrate had no jurisdiction
to examine any witnesses against Deasey, or to
remand him upon the charge of felony.
Thirdly. It is laid down in Coke's Second Insti-
tute, p. 591, when speaking of prison-breaking, that
a mittimus must " contain the cause, but not so cer-
tainly as an inditement ought, and yet with such
convenient certainty as it may appeare judicially
that the offence (prison-breaking) 'tale judicum re-
quirit' as pro alta proditione,' viz., in personam
domini regis,' &c., or pro felonia,' viz., pro morte
talis,' &c.," and he lays it down that a " mitt imus
pro felonia " generally is bad. So again, Hale
(P. C., vol. 2, p. 122) says -that a nzillimus
" must contain the certainty of the cause,
and therefore if it be for felony, it ought not to
be generally pro felonia, but it must contain the
especial nature of the felony briefly, as for felony
for the death of J. S., or for burglary in breaking
the house of J. S., &c., and the reason is because
it may appear to the judges of the King's
Bench upon an habeas corpus whether it be felony
or not." Hale, however, adds that he does not
think the absence of such particularity would make
the warrant void. It is worthy of notice that in
the forms of remand given by Chitty in his Crimi-
nal Law, vol. 4, pp. 33, 116, and in the form given
in the 11 and 12 Vict., c. 42 (Q. 1) the felony is
specially described.
The second point, which appears to be of the
greater importance, looking at the actual direction
to the jury, and to the fact that they were not asked
to find the existence, contents, or form of the war-
rant, is whether, assuming the detention of one or
both of the prisoners to have been illegal, the kill-
ing of Brett amounted to murder.

The first case on the subject is that of Sir H.
Ferrers (Cro. Car., 371), who was arrested for
debt, and thereupon Nightingale, his servant, in
seeking to rescue him, as was pretended, killed the
bailiff : " But because the warrant to arrest him
was by the name of Henry Ferrers, Knight., and he
never was a knight, it was held by all the court
that it was a variance in an essential part of the
name, and they had no authority by that warrant
to arri st Sir Henery Ferrers, Baronet ; so it is an
ill warrant, and the killing of an officer in execut-
ing that warrant cannot Le murder." This case is
also reported by Sir IV. Jones (p. 346), where it is
said to have been held not to be murder either in
the servant or in the prisoner, because the warrant
was not good.

The next case is that of Hopkin Hugget, which
was tried in 1866, and is best reported in J.
Kelyng (p. 59). In that case nugget and three
others pursued three constables who had impressed
a man, and demanded to see their warrant. The
constables showed a paper, which the prisoners said
was no warrant, and thereupon they drew their
swords, and Hugget killed one of the constables.
Of the twelve judges eight delivered their opinion
that this was no murder, but only manslaughter,
and they said that if a man unduly arrested or
restrained Of his liberty by three MOD) although he

be quiet himself, and do not endeavour any rescue,
yet this is a provocation to all other men of Eng-
land, not only his friends, but strangers also, for
common humanity's sake, as my Lord Bridgman said,
to endeavour his rescue ; and if in such endeavour
of rescue they kill any one, this is no murder, but
only manslaughter. The four other judges held it
murder, and thought the case in question to be much
the stronger because the party himself who was im-
pressed was quiet and made no resistance, and they
who meddled were no friends of his or acquaint-
ances, but mere strangers, and did not so much as
desire them which had him in custody to let him
go. Although all the judges of the King's Bench
thought it murder, they conformed to the opinion
of the other eight, and gave judgment of imprison-
ment for 11 months.

In Reg. v Mawgridge, which was tried in 1707
(J. Kelyng, 136), the Chief Justice alluded to
]Nugget's case as having settled the law upon the
point.
In Tooley's case (2 Lord Raymond, 1296) which
was tried in 1710, Ann Dakin was in the custody
of one Bray, when the prisoners, who were strangers
to Dakin, assaulted Bray, but withdrew. They
afterwards assaulted Bray again, after the woman
had been locked up, and killed one Dent, whom
Bray had called to his assistance. One of the pri-
soners gave the stroke, the two others were aiding
and abetting. Seven of the 12 judges held this to
be manslaughter, and five held it to be murder, one
of the five thinking that the constable had autho-
rity. Those judges who held the offence to be man-
slaughter only, so held on the opinion that the pri-
soners had sufficient provocation, for if, they say,
one be imprisoned upon an unlawful authority it is
a sufficient provocation to all people out of com-
passion, much more where it is done under a colour
of justice, and where the liberty of the subject is
invaded, it is a provocation to all the subjects of
England.
In R. v. Adey (1 Leach, 206), which was tried
in 1779, a somewhat similar point arose, and the
presiding judge, on the authority of Tooley's case,
reserved the point for the consideration of the 12
judges. The prisoner escaped in the riots of 1780,
and no judgment was given, but Leach says that it
was understood the judges held it to be man-
slaughter only.
Again, in R. v. Osmer (5 East, 304), argued in
1804, Lord Ellenborough, C.J., says, that "if a
man without authority attempt to arrest another
illegally, it is a breach of the peace, and any other
person may lawfully interfere to prevent it, doing
no more than is necessary for that purpose."

In Reg. v. Phelps (Car. and M., 180), tried in
1841, a policeman attempted to apprehend a man on
suspicion of having stolen growing potatoes. Ile
resisted, and some persons came to his aid, and
killed one Southwood, whom the policeman had
called to his assistance. Upon proof of these facts,
Coltman, J., directed the jury that, as the police-
man had no right to apprehend the man, the offence
of those who killed Southwood was manslaughter
only, and not murder. _ _ _

'These appear to be the cases bearing most closely
on the subject, but turning to the authority of text
writers and the dicta of judges, we find Hawkins,
in his Pleas of the Crown (Book 1., c. 31, s. 60),
stating the law as it was laid down in Hugget's
and Tooley's cases, and adding that " since in the
event it appears that the persons slain were tres-
passers, covering their violence with a show of jus-
tice, he who kills them is indulged by the law, which
in these cases judges by the event, which those who
engage in such unlawful actions must abide at their
peril."

Hale (P. C., vol. i., p. 465) also cites nugget's
case, and apparently with approval.
On the other hand, Foster, J., in his " Discourse
upon Crown Law' (p. 312), while he appears to
approve of the law as laid down in nugget's case,
combats the doctrine of the majority of the judges
in Tooley's case, and appears to doubt the proptiety
of that decision, partly upon general principles, and
partly because the second assault on the constable
seemed to him rather to have been grounded upon
resentment or a principle of revenge for what had
before passed than upon any hope or endeavour to
assist the woman.

It is these observations of Foster, J., which Alder-
son, 8., appears to have bad in his mind when he is
reported to have said in R. v. Warner (I. Moo, c c.
385), that Tooley's case had been overruled.
Tooley's case had in fact no bearing upon Warner's
case, in which no attempt was made to arrest the
prisoners at all, and Alderson, 8., does not refer to
any authority for his statement. A similar remark
was made by Pollock, C. 8., in Reg. v. Davis
(Leigh and Cave, C C. 71), but there again no au-
thority is given.

East, in his " Pleas of the Crown" (vol. i, p.
325), states the question with the arguments on
either side, without showing much leaning either
way, and so does Russell (Criminal Law, vol. i, p.
632), although his editor, Mr. Greaves, from his
note (p. 848 of the 4th edit.) appears to have been
convinced by the arguments adduced by Foster.
it would thus seem that the doctrine laid down by
the majority of the judges in the cases of Ferrers,
Hugget, and Tooley has been acted upon, not only
in those cases, but also in R. v. Adey and Reg. v.
Phelps, and recognised in Reg. v. Mawgridge and
R. v. Osmer, and by Hawkins and Hale.
The opposite doctrine is supported by the autho-
rity of a minority of the judges in Hugget and
Tooley's cases, and by Foster, J., and receives some
sort of sa&tion from the observations of Allerson,
8., and Pollock, C. 8., if they can be considered to
display a sufficiently accurate knowledge of the sub-
ject to entitle them to any weight. This view of the
law, however, has never once been acted upon, and
it follows that if the prisoners convicted at Man-
chester be executed without any discussion of the
law, they will be put to death in opposition to the
decided cases on the subject, upon the authority
solely of extra-judicial arguments and dicta.
In some of these arguments a distinction has been
taken between the interference of a friend or a re-
lative and that of a mere stranger ; but this distinc-
tion does not appear to rest upon any authority.
Hawkins, in his" Pleas of the Crown" (Bk. i., c.
31, ss. 56 and 57), says, that " if a man's ser-
vant, or friend, or even a stranger, coming sud-
denly and seeing him fighting with another, side
with him and kill the other, or se-•ing his sword
broken send him another, wherewith he kills the
other, he is guilty of manslaughter only. Yet in
this very case, if the person killed were a bailiff or
other officer of justice, resisted by the master, &c.,
in the due execution of his duty, such friend or ser-
vant, &c., are guilty of murder whether they knew
that the person slain were an officer or not."
For these and other reasons we are of opinion
that the points raised in this case are of such a grave
and serious character as to demand further discus-
sion and consideration, and that they ought only to
be decided after full and deliberate argument be-
fore the Court of Criminal Appeal.

W. DIGBY SEY3IOIJR, Q.C.
MICHAEL O'BRIEN, S.L.
ERNEST JONES.
JAMES COTTINGHAM.
LEWIS W. CAVE.

REPLY OF MR. JUSTICE BLACKBURN.

Nov. 20, 1867.

Dear Mr. Seymour,—Mr. Justice Mellor and I
have received and carefully perused the paper signal
by you, my brother O'Brien, an 3 Mr. Cave.

It contains nothing that is new to us, but it puts
all the authorities in the light most favourable for
your clients, and I need not say that it is a great
satisfaction to us to think that nothing has been
overlooked which could bear on so grave a question.
The Legislature have, by the 11 and 12 Vie. c.
78, cast upon the presiding judges the very disagree-
able and invidious duty of determining whether their
own view of the law at the trial is or is not so ques-
tionable as to justify an appeal. If they refuse to
reserve any point made, it is still open to the pri-
soners to appeal to the equitable consideration of
the Sovereign, but no appeal lies to any court of
law.

In the present case my brother Mellor and I con-
sidered the points raised before us on the trial, and
entertained no doubt that the direction which we
then gave to the jury was strictly according to law
We therefore reserved no question fur the Court of
Appeal at the time, but graply poeti oned our final