Star.
London, England, 1822-03-28 00:00:00

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that twelve persons could have their .
prejudice? It was such a consideral
Lord Coke say, moreover, that .
was a principal cause of challenge.
necessary conclusion in a case like
it was unnecessary for him to inform
mild not but advert to the Bill
nion of the Judges, which bad been introduced by
Mr. Fox, and he only regretted that the principle of
that excellent Bill was not more frequentlr and more
strictly adhered to. The House must be aware, that
by that Bill the Judges were made Judges of the law
only, and the fact was left entirely to the considera-
tion of the Jury. He knew no greater security to the
liberty of the Press than that Bill ; but in the case of
the Petitioner it was completely disregarded and set
at nought ; this mischief, he could assure the house,
vas not one of his own imagination, but one which
actually took place ; and he felt happy in stating facts
which he knew to be true, as he had them both from
the Foreman of the Jury, and several bystanders, who
were prepared to verify them. As soon as the Jury
were sworn, the Counsel for the prosecution got tip
aid told them, that the publication, of utteting which
the prisoner stood charged, had been already but two
days before proved to be a libellous one, and it was,
thetefore, unnecessary for him to go on. Now he
(Dr.l.usbington) would ask, how the prisoner's Coun-
sel, if he had not been present on a former day, could
have possibly made any reply to the case for the pro-
secution? This was a great evil: but he had still a
greater evil to complain of, and that was, the conduct
of the Judge on the trial. He must say, that his con-
duct on that occasion was not that of a strict, upright,
aa,l impartial Judge. The Judge, in summing up,
told the Jury, ,t that he could not, under these cir-
cunistances, see how they could form an opinion in.-
consistent with that which they had formed a few days,
before" (Hear).—It would have been more consistent
with his duty as Judge, to endeavour to remove preju-
dices; but instead of that, he rather increased them,
by urging the Jury to be consistent with themselves.
Of this conduct, he (Dr. Lushington) heavily com-
plained, and he thought the Hon. Gentlemen oppo7
site (the Attorney and Solicitors General) should come
forward manfully at once, and admit the impropriety
of such conduct. He thought the present case one
of peculiar hardship. Supposing the Hon. Gentle-
men opposite were concerned in the prosecution of
two or three individuals, and that one of them was
acquitted, he would ask them, would they expose,
themselves to a second defeat, by continuing the
same Jury ? He knew they were much too wise to
run such a risk : if such a course would not then be
adopted for the Crown, where the risk was acquittal,
a fortiori, it should not be adopted in the case of the
prisoner, where his liberty was at stake. This unfor-
tunate individual, who was only seventeen years of
age, gat under the fangs of this Soc;py, and became
one of the victims, by the prosecution instituted
against him. He applied for a list of the array,
which was refused his, ; though in cases of misde-
meanour, where there was sufficient reason for the
suspecting undue prejudice, it was usual for the Judge
to order it to be given. This individual, he thought,
had the strongest reason to complain, and a just claim
on the interference of the House. It was not unrea-
sonable to say that another Jury, in all probability,
would have come. to a different conclusion, when it
was considered that even the Jury who tried the Peti.
tioner, and who had already prejudged the case, de.'
liberated for thirty-five minutes before they pro-
flounced him guilty, and after all recommended him
to mercy ; and perhaps the verdict of this Jury would
have been different, if they had not been compelled
by the Judge to be consistent with themselves. There
was another complaint of the Petitioner to which he
could not but advert, the severity of the sentence and
the punishment afterwards inflicted; this individual
and two other shopmen of Carlile's, were sentenced
all to severe punishment, but one of them particularly,
who was sentenced to two yeats imprisonment, and
to find security for his good behaviour for life—
(Hear, hear)—and, after being committed the punish-
ment of hard labour was superadded—( Hear ).
Now, during his experience of 27 or 28 years at the
Bar, he never knew an instance of such punishment
being inflicted by any Court, for such an offence—for
having promulgated opinions on which all men differ,'
and on which, if it were possible to dive into the
hearts of those who sat in that House, perhaps no
two agreed. This treatment he (Dr. Lushington)
complained of as unjustifiable, and thought some
remedy ought to be applied. He could not conclude
without troubling the House with a few observations
on the Association calling itself Constitutional. He
thought this Society productive of infinite mischief,
and defeated its own object ; it instituted prosecutions
on trifling and absurd cases, and disseminated doc-
trines which would otherwise have remained in obli-
vion, and which they themselves wished to suppress.
Such prosecutions ought to be vested only in responsible
hands ; and he was the more convinced of the futility
of any other persons assuming this power, when he
recollected that that excellent and worthy character,
Sir Samuel Shepherd, by instituting a prosecution
against Hone, only raised him from obscurity to dis-
tinction, and disseminated his doctrines from one end
of the empire to the other—(Hear).—That duty
ought not to be taken from the Officers of the Crown,
who possessed the talents and the wisdom necessary
for the selection of the proper objects of prosecution;
when it was once taken from their hands it would
be difficult to tell where it would stop. This Petition,
though it came from a low and miserable individual,
yet deserved the serious attention of the House, be.
cause its consideration also involved that of the best
safeguard of the Constitution—Trial by Jury; and
he could not but entertain serious apprehensions for
the safety of, that glorious Constitution, when he saw
the military power. brought into use almost on every
occasion, and death ensue—when he saw a publica-
tion sanctioned by Government, which stated with
impunity that the Juries of this country could not
be trusted—and when lie heard it asserted in that
House, that military power was essential to civil
liberty (--(Hear).—Look also to the late innovations
on the principles of the Constitution in the Six Acts
—(Hear).—He implored the House to stand for-
ward and steadily protect that institution, or it would
soon cease to be, in practice, the ornament of the
and the defence of the People.
SOLICITOR-GENERAL said he. rose to op-
motion, and in the observations he had to
he would not imitate the warmth of his Hon.

this publication, who _ —*fiance ; 5...
when confined in Dorchester jail, said, that nothing
could prevent him from disseminating his blasphe-
mous doctrines ; Ali though • he could not be the
medium of their dissemination himself, he would em-
ploy others sind even if they, were convicted, he
would still hire low perms, without means or cha-
racter, who would be ready to prostitute themselves
to his wicked pnrPoses. He was as good at his word;
he did employ others, and first made his sister the
medium of continuing the same iniquitous course.—
After her he hired low persons for the purpose of
continuing the same blasphemous traffic ; every effort
WAS made to suppress these; and every Society in
the Metropolis called upon him and his colleague to
put them down; but every one was aware of the
difficulty of effecting it from the means employed by
these persons of secreting themselves. An aperture
was made in the interior of the shop, through which
the person inside handed out the publication; and
then on the window was written, " A Mart of Sedi-
tion." Under these circumstances, he thought it the
bounden duty of every individual to bring these per.,
sons to justice ; and the petitioner, as one of these
persons, was prosecuted and convicted. With respect
to the prosecutors, the Constitutional Association, he
had nothing to do, nothing to say, but as far as it
was the duty of every individual to bring these per-
sons to punishment, provided they had sufficient
evidence to establish the fact. With regard to the
present case, when reproaches were thrown out on
the Learned Judge, and when it was said that he
ought to have prevented that Jury from trying the
case, he would ask his Hon. and Learned Blend if
the Judge had the power of preventing it? He asked
the Counsel for the.prisoner if he had any objection I
to make to the array; but ,every lawyer knew there
was no ground for challenging in such a case, and
therefore the Judge had no right to postpone the
trial without the acquiescence of the prisoners Coun-
sel ; but, in reference to the publication itself, and
the opinion pronounced by the Judge on it—was
there any man who could for a moment entertain a
doubt that it was a libel, and of the most blasphe-
mous description ? He would only read one passage
from it, which would convince the House of its ge-
neral character : " AU religion I proclaim a vice in
society, and nothing more than the mythology de-
rived from the ancients, and is' only supported by ig-
norance and priestctaft." Was not a publication that
mocked at all religion, and the sole object of which
was to bring it into contempt, a fit and proper subject
for prosecution? He begged leave to differ with his
Hon. Friend as to the opinions with which the Jury
came to try the case. He (the Solicitor-General)
maintained that they came to the consideration of it
unfettered and unbiassed. As to the sentence of hard
labour which his Hon. Friend said was not passed by
the Judge, he believed be was mistaken, and that no
such punishment was inflicted : but if, on examina-
tion, it should be found that any individual un-
justly superadded punishment, the person suffering
had his redress. His Hon. Friend must be aware
that it was not competent to the Governor to impose
hard labour; but when a prisoner called for prison
allowance, he was authorised to impose moderate
labour, as a compensation for the allowance, and to
relieve him from being a burthen to the Public ; and
on inquiry he bad no doubt that such would turn
out to be the case in the present instance. He ad-
mined that it was imposed in one case, but it formed
part of the sentence. As to the security referred to
by his Hon. Friend, he believed be laboured under
some mistake in that also. He would find that the
individual referred to was not " to find security,"
but " to give his own security for his good behaviour
for life." But on the most learned authorities it
would be found that the practice was in such cases
to make the individual not only find, but give se-
curity. It was the opinion of Lord Chief Justice
Hale, whom his Hon. Friend would admit to be a
most constitutional lawyer. Lord Kenyon, in the
case of the King v. Williams, and Lord Mansfield,
held the same opinion, and he believed not one in-
stance to the contrary could be found.
Dr.LUSHINGTQN said in reply, that the greater
the charge against the individual, the stronger the
reason for having a fair trial. He did not stand up
in justification of the doctrines contained in the pub-
lication. He supported the cause of the Petitioner,
only on the principle of his not having received a
fair trial, and having no other source of relief, was
therefore entitled to the consideration of the House.
He could not but dissent from his Hon. and Learned
Friend, in saying that it was not in the power of the
Judge to give the prisoner a fairer trial.
The Petition was brought up and laid on the table.
JAIL DELIVERIES.
Sir E. HARVEY presented a Petition from the
Grand Jury of the County of Essex, praying that the
House may cause some means to be adopted for fa-
cilitating jail deliveries. He said that the time be-
tween the Summer and the Lent Assizes was too
long, in consequence of which the jails were some-
times over-crowded, and innocent individuals sub-
jected to a heavier punishment. In the County of
Essex there were twenty-two persons confined between
the termination of the Summer Assizes, in August,
and the 13th of November following ; of these, six were
acquitted, one liberated on bail, and two discharged
by proclamation, there being no prosecutor; there-1
fore, taking eight only from twenty-two, the rest were
obliged to remain in prison till the following Assizes,
abd then undergo a severe punishment. Hg hoped
the House would take the subject into consideration,
and devise means to attain so desirable an object.'
Mr. WESTERN seconded the motion. He said
that when this subject was before the House on a
former occasion, the Noble Lord declared it was time'
intention of Ministers to take it into consideration,
and apply some remedial measures. It was not from
any diffidence that the Legis!ature or Ministers would
not carry, such intention into effect, that the peti-
tioners now applied to the House; but they thought
it necessary that Government and the House should
know how much anxiety was felt on this subject out
of doors. The Magistrates of the County of Essex,
were now erecting a new jail; and they found it ne-

, importance. Ifjait
more frequently, the Public would have to prow
for a less number; besides, it Sseiuld ftellitate the
means of 'separating those confined on a charge 4
felony, whose security and separation at present it
was extremely difficult to provide for, and prevent
them from contaminating the other prisoners, by as-s
sociating with them. In some places, the number
confined had- increased to such an extent, that tli*
Judges could not get through them. At Maidstone
Mr. Baron Graham was obliged to put off many Nisi
Pi ius cases, at considerable expense to the parties,
and go into the Crown Court to assist Mr. Baron
Wood; and yet so great was the number, that both
Judges could not get through then]. They were also
obliged to have the assistance of Mr. Serjeant Lawes
and Mr. Serjeant Teddy, who were sitting at the
same time in an Anabaptist Chapel. He thought
some measure was necessary, if it were only to re-
lieve those who might be innocent from the exquisite
sufferings which they underwent by a long previous
confinement. It was great cruelty to make an inno-
cent man wait eight or nine months before he was
brought to trial: and, on the contrary, it was an al-
leviation of suffering to the guilty, because it dimi-
nished
the efficacy of punishment, by procrastinating
the time of trial. He considered that a more fre-
quent jail delivery might be made without much dif•
ficulty. The business of the Criminal Court might
be more speedily discharged by an arrangement I
among the Judges. It would not be too much to say I
that an augmentation of the number of Judges should
be made, or that the country would object to the ad-
dition of three. The English public would not com-
plain; they were too enlightened to object to any
measure that would ensure a more virtuous admi-
nistration of the Criminal Law. He agreed that the
Lent and the Summer Assizes were extremely well
arranged in point of time for the jail delivery. He
was of opinion that another jail delivery should take
place in January. He was not avrate of any objec-
tion that could be made to it. That period afforded
no public injury; the Grand Jury, the Sheriffs, and
the Magistrates could attend without much inconve-
nience. He concluded by saying, that he should
have great pleasure in seconding the motion of..his
Honourable Friend.
Mr. PEEL said he was anxious that the Petition
should meet the greatest attention from the House.
He was disposed to give his best consideration to any
suggestion of the Hon. Member who had brought it
forward. Considering the gratuitous manner in which
the Magistrates of the country performed their duty,
he felt that every respect should be paid to their
wishes. He had, therefore, much satisfaction in say-
ing that Government had given the subject the fullest
deliberation, He hoped that the communication he
had to make would go further to prove the sincerity
of their intentions than any general declaration on his
part. He felt with others, that in speaking on this
subject the utmost caution should be exercised; care
should be taken that no observations be made theie
which would tend to weaken the opinion that was en-
tertained of the impartial administration of public
justice. The confidence in it had remained for cen-
turies: it had produced the conviction that it was the
most perfect system of criminal jurisprudence in the
world. With regard to the plan that was now brought
forward, he was not prepared to give it a decided nega-
tive,. but he entertained considerable doubts on its ex-
pediency, and feared there were insuperable objections
to its adoption. That plan was, that one or two Judges
should attend at the Quarter Sessions to preside over
a Criminal Court, and make the Grand and Petty
Juries in attendance co-operate with him. In the first
place, it was impossible to carry that into effect with-
out increasing the number of Judges, and to that all
men who had turned their attention to the subject en-
tertained very great objections. That difficulty there-
fore must, in the first instance, be surmounted, and
then there would remain other difficulties of still
greater magnitude. Any one who had witnessed the
administration of the law at the Quarter Sessions,
could not fail to have remarked the vast difference
there was between the Grand and Petty Juries on that
occasion, and those at Assizes—(Hear). This being
the case, the House would see to what it would tend ;
and nothing was more to be avoided in the establish-
ment of a new Jail Delivery, than the impression
that criminal cases were disposed of with less care
and attention than at the Assizes. If there were an
impression on the country that they were attended,
with less solemnity, it would greatly deteriorate the
cause of justice. Another difficulty attending the
Quarter Sessions was, that by law they were required
to be held within a week after a certain period, which
would disable the Judge and the Counsel from re-
turning to their duty in the Courts in London, in
Term time. He would take, for instance, the Octo-
ber Quarter Sessions, to be held within a week of the
11th of October. Supposing that day to fall on a
Sunday ;the Session might not begin before the 19th,
and the Term beginning on the 6th of November,
bow was it possible that the Judge and Counsel could
return to their duties and places in the Court of King's
Bench, and other Courts, in sufficient time? The
same would be the case in January; or any other of
the periods. These, he knew, were but the details,
and might be overcome ; but the abjection as to the
number of the Judges, and other objections, were in-
superable to anything being done without the matu-
rest deliberation. The best way was to apply the
means within their
_power to remedy the evil ; and he
had to state that, after full consideration, Goyezi.„
ment had determined next winter to make the ear.
riment of a third jail delivery in all the counties of
the Home Circuit—(Hear, hear). Thus, in Essen,.
Sussex, Kent, Hertfordshire, and Surrey, a Judge,
would go the Circuit, and have the usual assistance
of a Grand and a Petty Jury. These Counties were se-
lected for the experiment on account bi- their proximity
to the Metropolis, not being so open to thainconve-
nience, in point of time, to which those more distant
were subject ; and also in consideration of the greater
number of crimes, in wpm Lion to the larger pope.
lation. The county of Middlesex had eight jail de-.
liveries. on account of its vicinity to the Men opolis.
He might mate many other observations as to the

arising from
loudly called
Secretary
the coups
_ occasion toadd
..eiisi miilirlielateri ode
'lasi% titer HA, where.
'fbur were-siuing areach bench. As• to any fear of
there not King barristers enough to do the duty, he
would advise that no apprehensions should be enter.
coined on that hest, being convinced that if they left
things to themielses, in this, as us all other cases, the
supply would be found equal to the demand. Let that
Clown say the word, and the efisphatic fiat be pros
'pounced, and they would see a systent, adequate in
all its parts, spring up Without loss of timer and also
without difficulty.
Mr. PEEL stated dna he had omitted to Omen*
Before that no additional expense would be entailed
on the Judges, by this addition to their duties._.
(Hear).—Nothing would be more unjust, and he was
sure the douie never would cotiptenance or wish it.
Mr. DICKINSON could not admit that the Horne
Counties were more entitled to this preference than
many others.. He would instance the County of Somer.
set, which . had the city of Bath belonging to it.
When Government turned their attention to other
Counties, he was surethey would find many that de-
manded consideration as well is the Home Counties.
He hoped, too, that there would beiio additional la-
bour imposed on the Magistrates.
Sir E. KNATCH BULL observed, that as the Right
Hon. Secretary had called the change of system be
had mentioned an experiment, there could be no
doubt that it would be extended if found to answer.
Of the necessity of it nothing could be-more decisive
than the grievance of which some of his constimen's
had to complain, in whatbaid "lately happened at
Maidstone. It was true there were but twenty-eight
civil causes set down for trial; but still the inconve-
nience to the suitors in thosetauses.was incalculable.
If this were considered as a light grievance, it was
very probable it might happen again, and against
this he was extremely anxious to guard. The suitors
in the Nisi Prius Court would be secured an easy and
competent triil.
Mr. CHETWYND said, that many cases had come
under his knowledge, as a Magisti ate of a po ,dons
county, of persons having been longer confined 'lefore
trial than after, and of others having been conn, ed a
long time, after which the Grand Jury fours i that
there was not even a prima facie case against theal.—
, There could be no doubt that a more frequent Gaol
, Delivery was :most desirable, and he was very gad
it was in such good hands as those of the Rig.it lion.
; Secretary (Mr. Peel). He was extremely glad, ll,m-
, ever, to hear that no additiortalespen. e "as to be
, thrown on the Judge,; for he thought none of our
public officers was so ill paid as the to elve Judges.
. He also thought that Magistrates should be equally
: considered, as they were already so overburdened,
! that independent country gentlemen were glad to
keep out of commission.
i Mr. W. SMITH thought the evil was so great that
I not one but ten experiments should be tried rather
t than that it should not be lessened. He knew of a
case that had occurred, in which a man was je oved
to have ill-treated his apprentice to such an extent
that he died in consequence, and that man, guilty of
. all but murder, was imprisoned-for one ye.:r. In
another case a man, after being confined 11 niontli,
; was discharged without trial. Surely here was rn
: anomaly on one side or the other—that the men who
. had been guilty of the highest crime next. to murder
. was to receive the same amount of punishment as he
; who had done nothing against tile laws o! his country.
; The ATTORNEY-GENERAL said, he was fully
- aware of the importance of this subject, and the in-
• convenience suffered under the existing state of the
: law ; but in proportion as it was important,e ere they
not hastily to adopt any scheme to amend it wi:hout
adequate deliberation. The difficulty of dealing wi:k
. the evil in question might be judged from the cir-
cumstance of there being such various opirions as to
the mode of remedying it, as they had heard broached
in the course of the discussion. The expelitnent
spoken of by his Right Hon. Friend (Mr. Peel) was
to be tried upon the Hotly Counties ; and he was
sure that it could not be Ixtended further without
new modelling the Courts, and increasing the number
of Judges. The evil which had arisen at Maidstone
was in consequence of a want of information as to
the quantity of business expected. Such things had
occurred at other Assizes. The imprisonment before
trial was an evil that must always exist to a certain
extent. In all they did, they must above ail take care
, that justice was administered satisfactorily to the
People—(Hear, hear).---Justice must be done without
hurry ; and the People must feel that they had the
best talents of the Judges. The situation of a Judge
should be an inducement to Gentlemen of the highest
talents at the Bar. They had little enough leisure at
present, and, if they increased their burdens, no Gen-
tleman sufficiently qualified would be met with to
laccept the situation. After the experiment had been
tried, the House would be better able to judge if it
should be continued or extended, and if so, now much
further than at present—( Hear).
Dr. LCSHINGTON assured the House that he
had f'ormerly given consideration to this subject. He
was satisfied that no additional duty could be per-
formed by the present Judges ; and he alueed with
his Learned Friend opposite, that the question of i!:-
creasing the nunil)er of Judges was ine winch de-
thanded the most serious consideration. But between
two evils they must choose; and he really was at a
loss to discover where the Judges were to find time
even for. the third Circuit proposed by the bight
llon. Secretary. If they increased the number of
'Judges, lie should be reluctant that there were less
than four in each of the Courts in We arnirater Hall;
and he should be the first to Appose any [reposition.
that might be made for appointing a Judge for the
trial of criminal causes alone—(Hear).—%%lth lizard
to the sairies of the Judges, he knew they we. e not
sufficiently high, and that many persons had tefusel
promotion to the Bench because they could not atforl
to accept it—(Hear).
Mr. D. SYKES said that the experiment had al-
ready been tried of disposing of minor-offences at
the Quarter Sessions, and althouglithe trials there we; e
not conducted with that delicate attention to fora'
and solemnity which prevailed at the Assizes, yet he

soon cea
country
The S
" pose the
nuke, IJ

s • . . . AMENIIIIIIII.
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. what.was the , . I T,. .lior of oblinfOlg COT system of IStilprn desce 4
.....1111111111111.11".."1"°
Friel"' bet adopt lispe *she; .
afaG.L. IIPZ: i•
acCe"simotatc"slittin'll•••.,,, d how ibng
..• ~' . .
~..„,„. _ -• :'• be rather limitedhimselfto the declanitiOn made,
their minds free from I; coat to the ll.
~„„,„a"---- * 7 'on never ~ , t__ ly of . t
~AL , as fts the nature of the change proposed ---4 /ken
isideration that made ble mu or a :
the cows.
RA. " . p ..„.. ,'.'" .., I Sr. -LESTER pointed out the evils arising fsom
a Jury so composed iss from the pre* tg..: ... Is---00,..... it was not si"'' irett tcemmitted
ar „ Atriptbsent system, which he thought loudly called
ge. What was the necessary for him to. ref_aii:t. , . jor, :: ;Of the'work, ansrtaki B,:ih average oft 't ' . her,
Act has seen creasledbz ttne-balf in coasequeete : : • • . retorm. He hoped the Right Hon. Secretary
ke the present, he felt because ever
must be _ • ._
rform the House. He a report of the trials in thecNewaap:grs., The House timeisetWeen the two Assizes. -Telt'. k the sub)dcb would not
mend in his proposed change, in
aril lit:
.. the a,orof in an economical point of view, it was also one of ties he had oned. There was no occasion toad
11 restricting the opi- should also recollect that
___.3„,..,1 h, tme „ilmication, who set all law at_.!ifkunce ; who, considerable Importance. If jail deliveriectook-place to the number of Judges, as'etin miklir Se-eaten O 4
~....tly_ the Pithiic would have to provide of each of the Courts of Welstibiblitek Hall, where.