The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1835-02-17 00:00:00

it would be his duty to state the circumstances ander which it
bad been filed. The question was simply whether the defeutlaut
4.was bound to obey the order of ,court. ' Before he went into a
t detail of the circumstances he felt it due to the defendant to
state, that although the present proceeding was in the shape of,
a prosecution, it was strictly an inquiry as to whether the duty
belonged to the high office he held of executing the sentence of
the law. The inquiry was rather of a civil than a criminal na-
ture. The defendant was a highly honourable man, a gentleman
of the first respectability, and esteemed by all who had the ho-
nour of his acquaintance. The proceeding, although apparently
a criminal one, had not been instituted to give a moment's pain
or uneasiness to the feelings of the defendant. The question
for consideration was, did the office of the sheriff for the county
of Chester impose upon him the duty of executing.crimilials
lie would not at the outset trouble them with poigts of law
which were among the elementary maxims known by a practice
within the memory and recollection of all of them. By .the
• common law the sheriff was bound to obey the commands of the
judges of the land to execute the last solemn sentence of the
law. It would be unnecessary to cite many authorities to prove
that the punishment of death was carried into effect at the scene
of the crime. Not many yews ago a person who was tried for,
and convicted of, breaking into a gunsmith's shop was executed
opposite the place where the crime had been committed. That
was not the direction of the sheriff but that of the court, and the
sheriff was bound to obey it. On rout or five occasions, forty or
fifty years ago, the sheriffs of the county of Chester obeyed the
order of the court, and in obedience to that order suspended the
body of the criminal in such place as directed by she court. The
sheriff of Chester, within a recent period, did execution as di-
rected. The criminal was tried in the County Court, he was
taken to the boundaries, and was then handed over by the con-
stable of the castle to the sheriffs of the city, and by them exe-
cuted. Within their jurisdiction the criminal suffered death.
Whether that duty devolved upon the sheriffs of the city from
the circumstance of Chester being a walled town, and that
criminals should he executed withiu the boundaries of the county
palatine, having a jurisdiction over the city, it ordered the city
sheriffs to do execution, or whether it was that the city. held
some land or franchise by which the duty of doing execution at
the order of the county palatine devolved upon it, he could not
say. But whatever Wei the origin of the practice, the sheriffs
of the city of Chester had done execution upon criminals sen-
tenced to death by the Great Court of Sessions of the county of
Chester. In the same way their lordships, by a rule of court,
ordered the two unhappy men who had been convicted of the
murder of Mr. Ashton, out of which event the present proceed-
ing arose, to be brought before their lordships, who had the
power of ordering any sheriff within their jurisdiction, not ex-
cepting the defendant, to do execution upon the criminals. The
power of the Court of Great Sessions over the city of Chester
might have arisen in troublesome times. As the sheriffs of the
city had refused to execute the sentence upon the men in ques-
tion, it was the duty of the sheriff of the county to have executed
it. By the passing of the act of 1830 the jurisdiction of the
Court of King's Bench was extended to Chester.. By the 13th
section it was enacted that his Majesty's writ' of jurisdiction of
the King's Bench should extend over and within the county of
Chester and time county of the city of Chester; and the 14th
section abolished all jurisdiction over proceedings legal or equi-
table, civil, or criminal, and transferred all sorts to Westmin-
ster, and abolished. all' the courts in which they had been con-
ducted.. A doubt upon this point had been suggested op one or
two occasions when the judges went down to hold'a commission
of
,Oyer and Terniiner, aud persons were unfortunately sen-
tenced to suffer the extreme penalty of the law. They were
executed as usual; but by- what means the judges' sitting under
the'Commission of Oyer and Terminer in the county of Chester
should order the sheriffs of the county of the city of Chester to
do execution he could not say. The judges sitting in Surrey
might as well order the sheriffs of Middlesex to do execution.
Execution had been done on two occasions. At length a doubt
arose as to whether the sheriffs of the county of the city, owed
any allegiance whatever to the judges—a serious doubt, he must
admit, in point, of law. If the sheriffs were not obliged to obey
the rule they were justified iu their consciences in refusing.
The 15th section was the only one that raised the smallest doubt
as to the liability of the defendant to obey the order of court.—
The 14th section destroyed and took away all the courts of the
county palatine ; but in the fifteenth section there was a proviso
in respect of the city of Chester, which preserved to the inagis-
trates and citizens the trial of cases, except writs of error, false
judgment, &c. &c., which should be decided by the Court of '
King's Bench; but there was not a syllable in the act showing
that proceedings connected with the courts abolished in the
county of the city of Chester were retained. The city of Chester
was subordinate to the courts of the county palatine of Chester
it had a right to make an order upon the city, which it was bound
to obey; and the sheriffs were bound to obey the order of the
judges, made under similar circumstances, sitting under the
commission of Oyer and Terminer. The 19th section 'Aced all
the counties in England, not being counties palatine, upon the
same footing. The learned gentleman concluded a very lung
speech by saying that he would call evidence which he hoped
would have the effect of settling a question pregnant with so
much importance' to the nation at large.
Mr. Lloyd, clerk of assize of the county of Chester, was ex-
amined at considerable length.—He said that by the order of
Mr. Baron Parke he had delivered the calendar to the de-
fendant, who had refused to attend to it; and upon being asked
whether he had ever heard old people say that the sheriff of
the county was exempt from doing execution upon criminals
under the circumstances, a discussion arose as to the right of a
counsel of the crown to put such a question.
Lord Denman ruled that the question could not be put.
Mr. Justice Littleciale said it was a matter of perfect indiffer-
ence to the public who should do execution upon criminals—
whether the sheriff of the county or the city should do it.
Mr. Justice Patteson said the question did not at all approach
to the nature of a public one. It was merely a dispute between
two sheriffs.

Mr. Justice Wiliiains was of the same opinion.
Mr. Maule addressed the jury for the defendant. He sub-
mitted there was no evidence to support the case, and for that
purpose he begged to direct the attention of their lordships to
the terms of the inforniation. It stated that the prisoners were
to be taken to the place from whence they came, thence to a
place of execution, and when dead that their bodies should be
buried within the precincts of the prison in which they should
be confined after their conviction. It was said that it was the
duty of the defendant, by virtue of his office, to have executed
the sentence. The defendant was not the person to do execu-
tion. An order had been directed to the constable of the castle
and to the sheriffs of the city of Chester to see that execution
was done. The calendar bial been delivered to the defendant
as a notice, but did that call upon him to execute the sentence?
A special notice .should have been served upon him to demand
the bodies of the criminals. As a sheriff he could only be called
upon to do execution _in respect of having the custody of the
criminals, and unless they bad been in the custody of the de-
fendant, he could not be supposed to be the proper officer to do
execution. The criminals had not been in the custody of the
defendant, and he therefore had no authority to do that for the
omission of which he was now Charged. His having abstained
from interfering protected him from the charge of illegality.
The learned gentleman lore quoted an authority from Lord
Hale's Plea., of the Crown in support of his view of the case.
The presentation of the notice upon the defendant in the calen-
dar would have done had the criminals been in his custody, but
as they bad not been it wAs not sufficient. The defendant was
not competent to perform the duties of constable of the castle.
Ile had no right to usurp the office of constable, which he
would have done had he demaniled the bodies of the criminals
to do execution upon them. The castle of Chester was an
island, not surrounded by water, situated between the county
and the city; and the defendant could not have gone there
without going out of his bailiwick. There was no evidence of
the offence charged upon the indictment. The defendant bad
done nothing that was illegal, and unless the constable of
the castle had been authorised to deliver up the criminals to him
he (the defendant) had no right to demand them. Upon the
present state laf,the facts of the case he submitted that the de-
fendant was entitled to an acquittal; first, from the fact of no
special notice having been served upon him to do execution
upon the criminals, whereby he had no authority to go out of
his jurisdiction to demand their bodies • and secondly, that the
criminals had never been in his custody, and that therefore he
was not guilty of a breach of duty, nor of disobedience to the
order of the judge.
Mr. Kelly followed on the same side, and, in a strain of clear,
logical, and eloqiient reasoning, couieuded that the indictment
could nut be supported.
The Attorney-OCheral, Sir John Campbell, and Mr. Wight-
man respectively replied.
Sir John Campbell, in reference to the objection which had
been made by Mr. Maule as to the insufficiency of the'notice
in the calendar, said it was the usual mode of giving notice to
do execution upon criminals. The prisoners' names were con-
tained in that calendar, and opposite to each was stated the na-
ture of his offence, and on the maroin was written the sentence,
which was the only warrant the sherifflead for taking away the
life of a fellow-creature. The defendant had acted, no doubt,
from conscientious motives and upon the advice be had re-
cieved, but he had been guilty of contempt; he had set the
order of Mr. Baron Parke at defiance, and refused to do any-
thing in the matter. He had hoped that those technical ob-
jectious would not have been made, but that the question would
have been submitted to their lordships and the jury for their

Mr. Wightman contended that the notice which had been
served upon the sheriffs of the city was one merely calling upon
them to see that the execution was done. It was a notice of
information, and not one of instruction or order.
• Lord Denman said that the question at issue could not be
tried on the present information. After the case had closed two
two objections were made. Tho first-was, that the sheriff had
no power to execute the whole of the sentence, as not having
anv place to bring their bodies after they were dead, the castle
not heipg within his jurisdiction; the second was, that as-the
sheriff had not the custody of the criminals, he was not liable
to be called upon to do execution upon them. Had the defend-
ant legal means of obtaining the bodies? He (Lord Denman)
thought ha had not. The castle was not the sheriff's prison,
tat that the constable, and the constable would not have
been warranted in parting with the criminals unless a special
order to deliver them up to the defendant had been served upon
him. He (Lord Denman) was therefore of opinion that the
defendant had not neglected his duty in having refused to do
execution.
The other judges expressed a similar opinion • and the jury,
under the direction of the court, acquitted the defendant.
Upon the close of the case Mr. Maule declined going into
the defence, bat took objections which, as appears from the
issue, were decided in favour of the defendant.
The case commenced at ten o'clock, and lasted till five.