The Sun.
London, England, 1844-12-17 00:00:00

TO THE EDITOR OF THE SUN.

Sin,—lf you had had me at hand when you penned
your article relative to " the assault with intent to com-
mit a felony," you would never have cast any reflection on
my legislative parents, but yon would have allowed the
whole weight of your censure to have fallen on Mr. Cot-
tingham, who did not administer the law as he found it,
as you suppose. If a common assault charge be brought
before justices, and it appears on oath that the offence
was committed under circumstances with intent to com-
mit a felony, the justices have no power or authority to
proceed under my summary convicting section, 27
under my 29th section they are positively restrained
from doing so. Was it not proved before Mr. Cotting-
ham that the poor woman's arm was broken in resisting
the attempt to commit felony? Your report of the case
at the time says, Yes. It then became the imperative
duty of Mr. Cottingham to have committed this brutal
mate for trial, who, on conviction, would, under my 25th
section, have been liable to have been sentenced thus:—
" Where any person shall be charged with and convicted
of any assault with intent to commit felony, the court
may sentence the offender to be imprisoned, with or
without hard labour, for not exceeding two years, and
may also (if it shall think fit) fine the offender, and re-
quire him to find sureties for keeping the peace."
The justices have no authority, in a case where the
intent to commit felony is proved, to have any " opinion"
on it, as to whether they will proceed to a summary con-
viction, or commit for trial : the cases in which they
may exercise their " opinion" are assaults committed
under circumstances OTHER than "with intent to com-
mit felony" only. lam about to quote my 29th section;
be careful in marking the word "or"—do not construe it
as if it were the word and. You will see that the power
of restraint is positive with regard to assaults accom-
panied by attempts to commit felony, and discretionary
only in cases "other" than accompanied with such intent.
There is no power even given to the complainant to con-
sent to a summary conviction if the evidence discloses an
intent to commit felony;—neither the consent by the
party charged to submit to a summary conviction, nor the
consent of the complainant, nor the " opinion" of the
presiding justices, can legally warrant a summary con-
viction. My 29th section enacts—" In case the justices
shall find the assault or battery complained of (as a
common assault) to have been accompanied by any
attempt to commit felony (on shall be of opinion that the
same, from any OTHER circumstances, a fit subject for a
prosecution by indictment), they shall abstain from ad-
judication thereupon, and shall deal with the case in all
respects in the same manner as before the passing of this
Act."

Now, Sir, let me ask you, was the fault in the Legis-
lature by which I was made a law, or in Mr. Cottingham
presuming to make a law of his own—illegally? Instead
of the rascal being in prison, under a summary convic-
tion, from want of ability to pay the paltry fine of 51,
illegally imposed, he ought to be there for want of bail
to await a trial by a jury of his country.
Is there no person spirited enough to more the Court
of Queen's Bench to quash this notable conviction of
Mr. Cottingham's, and for a production of the evidence
in Court, and also for a mandamus to Mr. Cottingham, to
either bail or commit (for want of it) this brutal mate
for trial, for an assault with intent to commit felony, on
the evidence already given before him?
By the bye, there is another question. Was. this
scoundrel brought before Mr. Cottingham in charge of a
constable—taken into custody on the instant of the com-
mission of the offence, before a summons or warrant for
apprehension had been issued? This is a very material
point, on which my authority has been very grossly
abused of late, for justices have no power to summarily
convict for any assault, however simple, if the party
charged be brought before them in custody, neither a
summons nor a warrant having been first issued—(see
the enactment in my 33d section)—which states that
every offence punishable by summary conviction shall be
preceded either by summons or warrant; if by summons,
the service must be by delivering the same, not at the
dwelling of, but on the person of the party charged with
offence—so the justices cannot proceed under my
authority of summary conviction in any case where the
party is in custody without warrant.
It is an old saying, "Man, know thyself!"—so ought the
law to be so clear as to be able to explain itself. If.then,
Sir, I, as the law, know myself, and have plainly demon-
strated that your insinuations against my legislative
parents were unjust, how grossly have I been abused in
using the use of my summary convicting power in
punishing a scoundrel, guilty of an assault with intent to
commit felony, by the imposition, illegally, of a poor
paltry fine of 51. !—I am, Sir, your humble servant,
9 GEO. IV., CAP. 31.
Ilfracombe, Dec. 7, 1844.