The Sun.
London, England, 1826-08-18 00:00:00

FRIDAY:EVENING, AUGUST 18, 1826,

brooght to trial though no Term intervened between the comt
mission of the offence and the arraignment, it is clear that
this Act cannot be universally applicable. Our case is m,-
here that the defendant had not time to apply for a certiorari
in Term, but I will state to your lAn-dalrip why, under
his peculiar circumstances, hie application would not have been
listened to. It was for some time. a matter of doubt with
this defendant and his Counsel whether the offence with which
he was charged did not amount to a felony. The Court
of King's Bench participated in this tuicertainty, and;
with that cautious solicitude Oct to do any thing
which would at
all interfere with, or influence the ulterior proceedings at the
Assites, the defendant was admitted to hail, and eventually libe-
it • libe-
rated, upon giving setafi ctoi y surety. His brother was soon after
taken up, and, after long investigation into the whole of the case
in which, of course, as be was principal, the question was more
immediately raised as to whether the offence was a felony or mis-
demeanour,Magistrates finally Osomruitted him for a felony.
But
h could
the
Mr. WillieruWakefield say, till the bill was found,
whetheir he was to be indicted for a felony or misdemeanour? and
this igtiorance alone would have opposed an obstacle to him in the
Court of King's Bench, for that Court will not hear an applica-
tion for a certiorari before the iteltiorneut be found. The Court
would naturally say to him, " How: uan you ask for a certiorari
until you are assured upon these two pointi._namely, flit, that if
an indictment for felony be found, IS of course, make the ie-
inoval hopeless ; and, secondly, : hiscirise if we do not grant
you a certiorari, the terms of it must he speeial—and
how can you silly what terns you are to use, when
yon are ignorant of the form of indictment which
will lie preferred against your The prosecutors may pre-
fer a bill for conspiracy, or something else against you, and how
can you meet this supposed cue by anticipation? Theo again,with
respect to your brother, he may he indicted for felony, and if that
Oappeo, he meet, of course, remove the indictment into this
Court; and, inasmuch as lie is connected with you in this charge,
we cannot grant the certiorari now, hut yonr ease cannot be
thereby piejudiced. You will still have the opportunity of ap-
plying to the Judge of the Assize, who will use his discretion,
after knowing the exact, nature of the charge, whether lie Will
suffer you to remove the cause into the Court of King's Bench or
not." It is upon that discretion of your Lordship that we 'now
rely. The whole state of the cue is now before you. We
find that the charge hae been reduced to indictments' for misde-
meanour against all these parties. Having, therefore, ascertained
these facts, we now apply to the Court for a certiorari to re-
move this cause. An indictment for a misdemeanour has been
found against both the brothers. An indictment for a conspiracy
has likewise been found against both. That one of these gentle-
men was not bound to go 0' trial, there can be, no hesitation, for
that light occurred to him by this statute as icon as the hill for
iniadeineenour was found—
Mr. Justice Peee—And I have acted upon that.
Mr. Sceatarr—l know you have, my Lord. The way in
which I wish to put my care is this—will your Lordship, by pro-
ceeding with the trial of this defendant now, give to the prosecutor
the satisfaction of two trials, namely, first his, and secondly, that
of his brother? What the result of the application for a certio-
rari, on behalf of Mr. William Wakefield, may be, 1 will not now
*Ay, hut 1 can venture to profict, that the uncertainty of bringing
one party to trial. where perhaps, he may be connected, whilst
another, and the principal, was still untried, svonld,heve great in-
fluenee with that Court.
Mr. Justice Pasta---Is it, then, a matter at course for a party
to remove his cause into a superior Couit, upon an allegation of
the necessity of a Special Jury?
Scootarrr—l pledge my experience to that practice.
Mr. Justice Pans:..--Aiiii that is some experience, Mr. Scarlett.
(The Attorney-General'end 'Broughain seemed to express
their 'dissent from this 'general assertion ; but Mr. Scariett !told,
" Nay, Gentlemen, I have bad some experience in these matter*.
Giye;me leavct—Mr. Justice Park, " Soyoti have, Mr. Scarlett,
and so have I too.")
Mt. Sc c PAM eOlt6lllltd-1 it here, as the prectiot of the
Court of King's Bench, that, upon 'affidavit made by a piety that
a Special Jury was neeessery to his cause, Anil that reasonable
grounds were laid to convince the Cinirt diet it was a ease of smile
a description, they always graetetise eertioreu:i; without even re-
quiring the ,arty to take out a rule to show cause in the first in-
stance. It is a motion I have myself made surcesatully, over and
nver write Supposing then this to he it case in which the Court
above would grant a certiorari, of which there was no doubt,
what will the result, if 'William Wakefield should be now tried and
convicted, whilst his brother, who is really (though not techni-
.
rally, for this is not a case of principal and actreary) the,co-prin-
cipal, should be acquitted ? Why, what inconvenience will it not
lead to? What ridicule, I was going to say, will it not cast upon
the administration of justice? Thus, upon a solemn investigation
of the law, and of the indictment, you put a party upon his trial,
and, without saying any thing of the merits of the case, peihapa
convict, and subject him to punishment----bini who is only the ac-
cessary—whilst the other, who is the principal, is still at large,
and will be so to the neat Assizes.
Mr. Justice Paax—You are aware, no doubt, Mr. Scarlett,
that all the inconvenience to which you allude was fully discussed
in the care of the King tt. Stamp Sutton Cooke, which was tried
before me on the Oxford. Circuit.. There the principal mat riot
tried at all, but the accessary was put upon his trial, and, as you
all know, finally sentenced in the Court of King's Bench.
. Mr, Scenor.rr—Yes, my Lord, I know the case to which
you allude ; but there the principal, if he may be so called, to
conspiracy, could not be found. If, indeed, it had been sug-
gated in this case, that the defendant was a person domiciled out
of the King's allegiance, that would be an important -question in
this ease ; .but no such ouggestion is ;mete. I have stated,orny
Lord, the general practice In the Court of King's Bench; but the
only case that now occurs to me, is that of Bacon v. Fife, which
occurred in Yerkshire, and in which your Lordship was Counsel
in the case. You may, perhaps, remember the ogle.
Mr. Justice Peax—Oh, my being on it, is the very reason,
perhaps, why I do not remember it.
Mr. SCA MATT—III that case two persons were indicted for con-
spiring to effect a man iage with the son of the prosectitor, who
was then a minor, and of weak intellects. Upon application- to
the Court of King's Bench, that that was not a fit ease for the or-
dinary tribunals, that Court granted a criminal inforrnitioa, and
directed the cause to be tried, by a Special Jury. Your Lordship
cc:milord the defence ; and it then appeared that the party in the
cause was a young man not of strong capacity, and under age,
and who has been More Confined. The charge against the defend-
ants, riatoely, the young woman and her father, was that of tar-
rying away this young man' to Scotland, and there effecting 'a
marriage. NoW, grave as that charge was, and one,. we' may
presume, with every leaning in the Judge's mind against the pri-
soneirs, heWas, in the result, obliged to direct an acquittal. That
close: was a special Jury one, and ena may hazard a conjecture
whether theierdict (the case being so much One of feelittg)erOuld
have been such, if it had not been to tried. ; The parties never
went before the Grand Jury. This is the only case that I can now
recollect; but I assure your Lordship that it is the practicer:if the
Court of King's Bench to grant •the certiorari upon all applies-
tioni which state a Special Jury to be net-votary to the due ineee.
tigation of the cue. Our position isi that under every view of this
ease it is one which requires a Special3ury, hut More particularly
beceuse it is dean-Able that the (tenure' of a. single Judge upon
novel and complex Point/ oiler, arising out of an ancient statute
ahmild not tie final, but that opportunity should he given the
other Judges of the Court out of which the record would Come,
to decide opoo and affirm, or , °vertu! o those primary deci-
sionn. Upon all these grounds, therefore, we apply ourselves to
this occasion. They make no suggestion, nor do we ask them
nnYour Lordship's discretion, that you would not try these prisoners
•to Take any, of any particular, urgOneYs which there may be to
proceed with the trial; if there bt any such suggestion, it must
be upon affidavit, and we Will then consider it. I could suggest
wee), and most. important goods of objection to their proceed-
ingti new, such as the admissibility of witoeitim, and other points
of ftrei4 iiirportance. But I do not rely upon them, being
arixonse: however great my confidence be in your Lordship; to
advise My client pot to repo of single Judge,o in the judgotent
butitis entitle Itiniself:, all legal means, to the after-rerision of
all tile Judifea: 'with *egad to a. derision so highly penal to him.
I tae confidently, but reiptetfullYs
that 12 ,s is fit cause for
Special Jury. It eamsos,:,ind it is sot our object, to defeat the
endil of justice, beesosie we are able to give haul; sod ample bail,
for the defendant's appearance at the next ; but we are
cerisinly anxious to disappoint that prurient appetite fur slander
which would amplify these proceedings by taking them by helves.

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