The Sun.
London, England, 1844-11-20 00:00:00

LAW INTELLIGENCE.

COURT OF QUEEN'S BENCH, Nov. 19.
(Sittings in Banco.)
HOWARD C. (OSSE'IT.
The SOLICITOR-GENERAL resumed his argument
in this part-heard case, and contended that, even if
the Court should be against him on the points which
he had submitted on Friday, still they must give
judgment in favour of the defendant, inasmuch as the
defendant was acting merely ministerially in acting
upon that warrant, which, at all events, was a suffi-
cient authority for him, and therefore that the action
could not lie. He, therefore, submitted that upon
this demurrer the Court must give judgment in
favour of the defendant.
Mr. KELLY then replied, and contended, on the
authority of the King v. Elgee, that this Court could
look to the wording of warrants issued by Courts
of co-ordinate jurisdiction, inasmuch as in that case it
had decided that a warrant issued by the Court of
Bankruptcy, a superior court of record, like
the House of Commons, was bad. He also
quoted the case of Christie v. Unwin, in
which the validity of a warrant issued by the Lord
Chancellor had been questioned. He could not but
regret that during the course of the last century some
of the judges had bud down the law as if the Coui t
could not interfere even to grant a habeas corpus in
cases where persons had been committed by the
House of Commons, but those dicta of the judges were
contrary to the law, as it had been acted on both
before and since. In the case of Lord Shaftesbury, in
that of Hobhouse, in that of the Sheriffs of Middlesex,
this Court had granted a habeas corpus, and had
looked to the warrants of commitment, and because
they held those warrants to be legal, and for that
cause only, they remitted the parties to their original
custody. The law of the Judges of the last century
was bad law, and all he asked the Court to do was to
lo what had been done in all the cases to which he
had alluded—to look to the warrant, and see whether
ar not it was a good warrant ; and he would dismiss
all these cases by saying that in every one of them
the warrant of commitment set forth the cause
of imprisonment, viz., contempt. He apprehended
that there was nothing in this warrant to show that
the party was to be taken to the bar of the house of
Commons. It was a mere simple mandate for taking
him into custody. The fhct was the recital was so
uncertain that it was impossible for the Court to intro-
duce anything into the mandatory point.
Mr. Justice WIGHTMAN alluded to the case of the
warrant for the arrest of Sir Francis Burdett, in
which the warrant not only stated that he was to be
taken to the Tower of London, but to be delivered to
the custody of the Lieutenant of the Tower.
Mr. KELLY agreed that in that case it was clearly
stated where the party was to be taken to, but in this
case there was nothing in the warrant to show either
why he was apprehended, or where he was to be
brought to. It might be to the bar of the House of
Commons, or before any one of the Committees. But
even if it were aided to the utmost possible extent by
the recital, it went no further than to say apprehend
the plaintiff and bring him to the bar of the House of
Commons, without stating for what. It was a mere
simple mandate of arrest without any cause assigned,
and was therefore illegal. He agreed with all
that had fallen from the judges in the case
of Burdett and Abbott, and Stockdale and Han-
sard, that this Court could not look into the cause of
imprisonment where it was for contempt, and if this
warrant had stated that the imprisonment was for
contempt, he should not have disputed its validity.
What was sought for under this warrant was not to
preserve to the House of Commons what it was ad-
mitted they possessed, the power of committing for a
breach of their privileges, but the power of making
that law which was not law, and to arrest under an
illegal warrant, a warrant which was contrary to
Magna 01-arta.
Mr. Justice COLERIDGE—Suppose the plea had
set forth the warrant was issued according to the
ancient usages of Parliament, should we not be bound
to consider it legal ?
Mr. KELLY apprehended not, unless the plea
set forth that the form had been used at the time of
Magna Charta. If it had not, it was contrary to
Magna Charta, and, therefore, unless legalised by Act
of Parliament, was void. Now, if the warrant were
insufficient in itself, he contended that the defendant
could not go to the averments of the plea to help it.
If a man resisted his arrest under a lawful
warrant, and killed the officer, he was guilty of
murder—if the warrant were unlawful it would be
justifiable homicide. Now, suppose the plaintiff had
resisted, and killed the officer, could it be said to him,
" True, the warrant is bad upon the face of it,
but then there was behind it a resolution of the House
of Commons, of which you could know nothing, in-
asmuch as it was not set forth in the warrant ; and,
therefore, you must be hanged for murder." But,
even suppose reference could be made to the aver-
ments, he submitted that in these pleas there were no
averments which were sufficient to help the warrant.
All that was averred was, that the warrant was
issued by the proper officer of the House
to the proper officer for service, but it left
the question of the form of the warrant com-
pletely untouched. Now he apperehended that the
House of Commons possessed no peculiar privileges
of pleading; they must plead like other people, and
therefore they ought in express terms to have alleged
that, according to the usages of Parliament, it was
their privilege to arrest upon such a warrant, and even
that would have been insufficient unless it was
also alleged that such usage had existed at the
time of Magna Charta. But, supposing the
warrant might be aided by the averment,
acid that the averments were sufficient, then
came the question, had the House of Commons the
right to arrest a person to compel him to give evi-
dence, or to arrest hun upon a mere charge, without
having previously adjudged him guilty of contempt?
He apprehended that no such power existed. They
had power to summon a witness, and if he refused to
obey that summons, they could adjudge him guilty
of contempt for such refusal, and imprison him for
the contempt; and magistrates possessed the same
power; but there was no power to appre-
hend party for, the purpose of bringing
him up in custody sai compel him to give evi-
dence. No doubt all courts had the power of
issuing a salapcena to compel the attendance of a wit-
ness, and on his refusal to come to attach him for
contempt, and punish him for his refusal by im-
prisonment; but they had no more power by law to
apprehend persons and bring them up in custody as
witnesses than they had when they were brought into
Court to compel them to speak by the application of
the torture. If a witness were actually in Court and
refused to come forward, no doubt the Court had the
power of compelling him to come forward, but the
.Court had no right to send for him into the next parish,
and arrest him to compel him to give evidence, al-
though it might adjudge him guilty of contempt, and
arrest and attach him for that contempt, but they
could not order him to be arrested and brought up to
answer a charge of contempt. The power contended
for on the part of the House of Commons was the
power of at once arresting and imprisoning any of
the Queen's subjects without any cause assigned at all—
a power which the Court would be slow in admitting.
He denied that the precedents quoted showed the
immemorial existence of any such power, and if
claimed it ought to have been distinctly averred upon
the plea, in order either that issue might be taken
upon it in point of fact, or that it might be demurred
to in point of law. The precedents in Hatsell would
justify the House of Commons in ordering two men to
be tied back and back upon a horse, with papers pinned
on their breasts, for arresting a servant of a Member.
There was nothing, however tyrannical or however
ludicrous, that cannot be justified by the precedents
to be found in the journals of the House of Commons.
With regard to the case of Jay and Topham, it
should be remembered that neither Sir Francis
Pemberton nor Sir Thomas Jones were judges at the
time they delivered the opinions quoted by the So-
licitor-General at the bar of the House of Commons,
and that it was evident they spoke under duress, and
were in a most degraded and disgraceful position, so
that their dicta could not be taken to possess any legal
authority. If the precedents were worth anything,
they would justify the arrest by the House of Commons
of the Judges of this Court for the solemn judgments
delivered in this Court, and for declaring that to be
the law which they knew to be the law. The right
to arrest to compel a person to give evidence was
here claimed for the first time, and he trusted the
Court would not authorise the assumption of that
power upon light grounds; and he submitted that
neither the House of Commons nor any other
tribunal had the right to arrest or imprison any of
the people of this country without cause shown upon
the face of the warrant authorising such arrest.
Their Lordships having consulted together,
Lord DENMAN said —We shall take some time to
consider this, and we do not think it right to say
anything upon the present occasion.
Judgment postponed.

TIIE WEATHER IN SCOTLAND.—We !till continue
to experience very boisterous weather, the wind blowing in
fitful gusts, accompanied with heavy showers of rain. Yes-
terJay morning it blew a perfect hurricane, which we are
afraid must have done considerable damage, torrents of
rain falling at the same time. During the forenoon, how-
ever, the sun shone forth, giving indications of a change
for the better, but shortly after mid-day the sky became
overcast, and a pelting shower commenced, which con-
tinued for some time ; and while we write there is littleor
no appearance of our having dry weather. We learn that
there are upwards of 200 sail of vessels still windbound
in the Frith of Forth, which have taken shelter there
from the fury of the gale, and cannot yet put to sea
in consequence of adverse winds and the extremely
turbulent state of the German Ocean. The Clunie,
Matheson, is among the number. When on her voyage
from Leith to London she was caught by the late se•
vere gale, a few miles this side of the Humber, which
drove her to Queensferry, with loss of a portion of her
bulwarks and other damage.—Edinburgh Evening Post.

FARNBOROUGH PETTY SES-
SIONS.—TUESDAY.
(Before Viscount SYDNEY, and Messrs. WARD and
P.rnr,c
A )oung and good looking %Nowlin, named June
Butcher, was brought before the bench, in custody of
Sergeant Leverick, of the R. division of police, upon
the charge of ill-using her illegitimate child, twelve
months old, and with having threatened to destroy it.
The sergeant stated, that on the previous evening
he was sent for to the cottage of the prisoner's father
at Kestor, and upon going in he found the prisoner's
mother in fits, and her father, who is a hard-working
labouring man, was in the utmost distress of mind,
on account of the prisoner's conduct. It appears she
has had an illegitimate child, and ever since its birth
she has treated it in the most cruel manner, fre-
quently beating and ill-using it, and threatening to
destroy it. On this night, after making use of very
violent language to her mother, she threatened that
she would do for the child before morning, and rushed
out of the house, taking the poor infant, who had
nothing but a shift and night-gown on, with her, and
as they believed, with the intention of drowning, or
otherwise making away with her. He immediately
troceee led in -ear, h the p 1 isomer, and found her
1 -
lying with the child in the naked state above described
upon a dunghill, and he took her back to her father's
house.
Lord SYDNEY asked the prisoner's father and sister
whether they would take upon themselves to swear
that they, or the child of the prisoner, were in danger
of any personal violence from her ?
They both appeared anxious to screen the pri-
soner, notwithstanding her brutality, and they said
they should not like to send her to prison.
The Noble CHAIRMAN said, that as that was the
case, the Bench could not take any proceedings, and
the prisoner must be discharged. He, at the same
time, observed, that there could be no doubt the pri-
soner's conduct had been very bad, and he cautioned
her to be very careful, for if anything happened to
the child through her neglect or ill-treatment, she
would most assuredly be tried for her life.
The prisoner left the bar laughing, and when she
got outside the court she put her fist in her sister's
face, and with an oath declared that she would " give
it her before she get home." The officers separated
them, and requested the virago to be quiet, threat-
ening to take her again before the magistrates if she
did not, and she then walked a short distance, when
she suddenly stooped down, and picked up a large
flint stone, which she was about to throw in her
sister's face, when the constables seized her arm, and
conveyed her again before the magistrates.
The sister was then sworn, and deposed to the
threats made use of by the prisoner, and also declared
her belief that she was in danger of receiving some
violent injury from her.
The BENCH immediately ordered the prisoner to
find sureties to keep the peace, at the same time ob-
serving that so violent and dangerous a person was
not fit to be at large.
The prisoner's sister asked what was to be done
with the child ? It had been under her charge all
night, as the prisoner would not take it, and would
not give it any nourishment.
The BENCH said that as the child was of such
tender age it must go with the mother.
The prisoner snatched the child from her sister's
arms, 'and at the same time tore off a little cloak
that was upon it, and threw it upon the ground, say-
ing it belonged to " them," and she would have no-
thing of " theirs."
The sister tried to put the cloak upon the poor
child, saying that it would perish with cold, but the
prisoner with the utmost violence resisted the at-
tempt, and it was not until the sergeant of police said
that the child was now under their charge, and in-
sisted that the cloak should be put on, that she al-
lowed it to be done.
The prisoner was then removed, and was eventually
conveyed to Maidstone Gaol.

POLICE INTELLIGENCE.
BOW-STREET.

Yesterday morning, an elderly man, of respect-
able appearance, who gave the name of Thomas
Daley, described as a gentleman, residing at the Im-
perial Hotel, Covent-garden, was placed at the bar
before Mr. Jardine, charged with stealing a news-
paper from Upton's Eating-rooms, 228, Strand,under
the following circumstances :
Charles Cole, a waiter, in the service of the prose-
cutor, stated that about eight o'clock on Monday
night the prisoner came to his master's rooms, where
he took some refreshment, and after delaying some
time, he paid the amount of his bill. After he left
the room, the Morning Chronicle was missed from the
table at which he was sitting, and as he was passing
down stairs, witness, accosting him, demanded the
newspaper he had just concealed on his person,
when he drew a parcel from his pocket and deli-
vered up the property, saying it was through inad-
vertence he had removed it. He was then given in
charge to a constable.
The prisoner being called on for his defence, said
had a magistrate been sitting when he was taken into
custody he would have been instantly discharged.
Was it possible that a gentleman of fortune and high
birth, as he was, would steal a newspaper! Thank
God, he was possessed of thousands a year, and could
it be supposed under such circumstances that he
would steal such a thing as a newspaper, the in-
trinsic value of which was absolutely nothing. He
had not read the Morning Chronicle nor the Times
in the room, as he had seen them in his chambers in
the morning, but it was the Globe he had just hid
down, and was looking over an application made to
him from one of his estates, soliciting that he would
continue his subscription to a charitable institution,
when the waiter accosted him. He was a father, and
even a grandfather of many children, and he should
not have gone into a place of the kind, but was
pressed on a former occasion to dine there with a very
old friend, who was obliged of late years to live in a
more frugal manner than he was accustomed. Ile
had been to Gravesend during the day with his
nephew, who was starting for India, and after taking
dinner, in bundling up his papers he must have inad-
vertently put the Morning Chronicle into his pocket,
under the impression that it was a provincial paper he
occasionally carried about him.
In answer to the Court, the witness said he stood
behind the prisoner the whole of the time he was in
the room, and he was positive he never attempted to
take any paper of a private nature from his pocket.
He could also positively swear that the prisoner stole
another newspaper on Thursday night, which streng-
thened his suspicions on his missing the paper in
question. There was no other person in the room at
the time, and his reason for watching the prisoner's
movements was, that he was apprised of the former
robbery by another waiter.
The prisoner said it could not be possible he could
be guilty of such a thing, as he was well known to
be a man of ample fortune, as would appear from the
articles the constable took from him, consisting of
about 60/. in gold, with a quantity of valuable docu-
ments.

Mr. JARDINE—Does any person know you at the
Imperial Hotel, where you say you reside ? Pri-
soner—l was so shocked I did not know what address
to give, seeing such a paltry malicious charge made
against me. _ _ _

-Mr. JARDINE inquired what led to the supposition
that the prisoner had committed a robbery of the
same kind on a former occasion ? The waiter said
the Standard was missed from the room on Thursday
evening, immediately after the prisoner left the room.
The constable here produced a parcel containing a
number of letters addressed to Colonel Sewell, with
other documents of importance.
Mr. JARDINE asked the prisoner who were his
bankers ?—The prisoner replied, he banked at the
house of Messrs. Ransom, of ['all-mall, where he had
been known for several years.
Mr. JARDINE--I shall discharge you because I can't
reconcile the conflicting circumstances connected with
your case. A person of your age having such docu-
ments and property in your possession, could scarcely
be supposed guilty of such an extraordinary act, and
as there is a doubt, although the waiter speaks in the
most positive terms of the circumstances, I cannot
see my way clear enough to send you to be tried, as
I think a jury would not convict you. Under all the
circumstances I am bound to discharge you, at the
same time thinking no fault was to be imputed to the
wailer, as the subject was well worthy of inquiry.