The New York herald., 1879-12-26
THE TICHBORNE CASE.
POINTS OF DIR. KENEALY's PLEA FOR A WRIT
OF ERROR AND A NEW TRIAL

POINTS OF DIR. KENEALY's PLEA FOR WRIT
OF ERROR AND NEW TRIAL
To THE EDITOR OF THE HERALD
The writ of in the Tichborne case. which has
lately been granted by Sir John Holker. embodes
many points which have not yet been published
either Great Britain America.
The chief point on which DIR. Kenealy relies. and
which he will argue very strongly before the
House OF Lords. is mat the judges who tried the
in the Court of Queens Bench actually had no
Jurisdiction to try the case. and for the following
reasons The indictment for perjury was divided
into two parts. the first count being for perjury
committed in the city Of London. aud the second
being for the like offence committed in tho county
of Middlesex. DIR. Kenealy contends that the Court
of Queens Bench had power to try prisoner
for perjury committed in the city of London by q
jury Of the county of Middlesex and in this view he
is supported by several eminent members Of the
English Bar. 1t will be remembered that this trial
removed by certiorari from the Central Criminal
Court to the Queens Bench. and that account the
venue was laid wrongly aud the jury was obtained
from wrong county. 1t is q fundamental rule in
English common law that where there is trial at
bar for any offence where there is any ordinary
trial for any offence not committed in the county OF
Middlesex. tho jury must be summoned from the
county where the crime committed. Thus. If
committed in Yorkshire and there is trial In Lon
don the jury must be brought from Yorkshire.
Another point which Dr: Kenealy will urge as to
the first count of tho indictment Dthat the Court
OF Common Pleas III which the claimant brought
his action for ejectment the only court in which
such trial could take place; but as 1t was removed
from that tribunal for the purposes OF convenience
to the Westminster Sessions House. the Doctor
tends that that court had jurisdiction to admins
ter the oath. and that therefore the claimant could
not have committed perjury from legal point of
view. The Court or Common Pleas had jurisdiction
to try the cause in Westminster Hall. but nowhere
else.
It will be in the recollection of your readers that
the Tichborne claimant was sentenced for two
terms of imprisonment Of seven years each, to
commence at the Termination Of the other,
years for perjury and seven years for forgery Now
the claimant has served his first term and Is now
serving the second period OF his sentence. DR..
Concurrent. and that the Judges had no bower to to
sentence him to two consecutive periods OF impris-
onment. And upon this ground he argues that the
claimant has ulready served tho whole period Of his
punishment. and is therefore by law entitled to be
released.
strongly is the misdirecon Of the Judge to the jury
He accuses Sir Alexander Cockburn Of being partial
the Lord Chief Justice Of England instead Of scsns
In calm, dignifed and Judicial manner. gave way to
his prejudice against the claimant and used the
whole Of his great talents TO cajole and coerce tho
jury into the verdict which they gave.
He asserts also that the judges evidence from
the bench: that they insuted all the witnesses for
the claimant. and generally misconducted them
selves. In 1874, shortly after the conviction Of the
sc Attorney apRss
Of error the above grounds; but Sir Richard
fused grant it. Dr. Ksnealy subsequently pressed
the matter. demanding writ Of error not as . mat
ter Of favor, but matter OF right, which by the
constitution and ancient law Of England the claimant
entitled to- The great English judge Chief Justice
Holt and nine others, decided in the year 1704 that
writ OF Is not writ Of grace but Of right and
ought not to be denied to the subject when duly
applied for the denial thereof being obstruction
Of Justice contrary to Magma Charta.
The subject did not como again promi.
nently forward until the year TITO. when
Wilkes who was convicted OF publishing
| seditious and scandalous libel (the North
| Brlton, No. 45), and also an obscene and impious
| libel ("An Essay Women''), brought up in
custody before Lord Mansfield, and applied for and
obtained from the Attorney General his hat for .
| writ of error, which was also granted mat
ter of right to which he was by 'law en-
| titled. DIR. Kenealy produced immense array
| OF precedents. and quoted the words OF some Of
Engand's greatest lawyers the subject, but failed
to convince Sir Richard jaggaley. This latter gen.
tleman is now the bench. and Sir John Hoker has
| succeeded him. DR.. Kenealy has been "pegging
away" at him for months. and he has at last per-
suaded him to issue his fat Tho facts OF the case
be into in the House Of Lords the legal
| points being the only ones admissible. 1t will be
argued probably next March, and 1t Ii looked forward
with eager interest by the members Of the English
Bar. Of the points Of very intricate aud
| subtle character. NEW TRIAL