Case Of Mr. Smith, The Mi...
The Times, 1824-06-26T00:00:00

TO TUB EDITOR OF THE IBS,- Sir,-Few can have tat hgeopinon) than miyself both of."tbe talents and knowl&dge,of h eminent iomtdr,ansi statesman, Mr. Beorg'natrr and nvneiicmorewillnnglyW medoicitehiintmyself, (thoughi T i~z not pressent to witness personally his laitehlisplhy af eloquenice rtf the uafortussiite -case of Mir. Smith). that hia efforts included so mnuch, that if s little has in this instapm been wanting, suich want can only be attributted to accidenit, orv td'the impaitience of, the Ilouse of.Comnmons at the close of a long v4iourned dbt,WihCm polled hiit ini his veply to compress hi's subject,'adt oichit crat-e tthan at so late an houx to amplify, hi% vmatter, n. ooi,rte Yet just, however, as hiis answerto the lea'ned Attorney-Genieral's far too sweeping declaration, that the proceedings in the late trial were tolerably consonant with Dutch law smi4dubted1v weas; and apt in somne resects ais his picture of' burly' Duitch justice might be, when introduced as the legal goddess of' the miemiber-s sitting under mnartial law; it yet woald be a mnelancholy fact, were it inideed true, that Procesa so conductedl, andI evidence as r&ceivied, could in the ad- 3iininstration of civil law (which, modified by Dutch statutes, is the c,rnimrnal law of Demerara) have ju.stified theco)nclusion so lament- nbly arrived at. Permit me,in the compa,ss of not avery long let- ter, to point out in what degree the late Missiionary was a suferere by, not boing made sulbject to the usual courste of the justice of the or- loby: n'ot, let me say, altogether so miuch oni account of -that indivi- duat's deplornble fate, as fo?'the sake of itsbeing. understood thaitihe foieinlaw,which has been so mnuch misstated sod calumrniated,would, if4tlyIadministered, (which, had mnartial law not'ntree,i sueymight have been), have afforded to the party accused, not in- deed the benefit of a .j-'bta'atgso ind, sucht as probably ssoluld have secured him fromn all risk of a, senltence like tbat Passed uipon him by the flnding of the Court-martial. It hasa psasrntly been admritted in argument, that when civil law is the eM of the pLtce, mnartial law, eveni if justifiablv preeclaimed, woultl not Of necessity supersede the fi,nctions of the~ court of justice of the t:oZony; and such admission I take` to be proper. r'lad, then, M5r. Smnith become amenable to justice throuOh thte cnommn criminal law established in the settlemoent, what course in his regard would regularly have been pursued ? That treason, supposi.ig that offence imputed to 51r. Smith, was not cognizable by the court of jus,tice of the colony, hatrdly will be asserted; since no Idoger ago than the years 1818 andi 181~, thtee negroes were tienn Iorthe commaission of that cnrsue perpetrated by the mnurder of their mnaster, and for such condemnned and execuited.. Though it is not easy; iticze'fore, to say how Mlr. Smiith couldl have become suapected, Yet admitting him to he so0, to what sort of process would he hiav,e bceni'ubjected? The criminal law of tlheplace isfoun-ded upon the wvell-known ordinance of Philip IT., published 1570, which continiu. inz to be the law of HalanIsa, was by. their Highli lightinesses esta- blished in Demerara 1774,. It has seen often canvassed for its dila- toriness and OccaLsional deficiency of eilletive purpose b Iut has at the samre tim-e never, as -far as I know, been spoken- of by thosi: acquaintetd with it in otlier terms than those due to an eXur--~riinary. effort of criminal jurispradence, at least if refferred Th E e period of its first prEniulgation. This celebratedl coae is af. .rfdindeed. by Mr. Henry (from 1813, until the cairmonceenent of I iif. President of the Cor;tt of Justice of Demserara) to have hcen for centuries,, in its substitntial parts the criminal law of Eul- rop~. and as his little tract, puiblislied'ltl21, contains a brief but trclrablv correct SUMMary Of' its principal bearings, I have felt sorns s'.-r-4~se that no allusio-n was made to it in the late PaTlia- inleerary discussiosis. Now, it appears, Article 2, that in the first instance, Mir. Smith could not even hiave been apprehended, but by an order of the Judge (in Dezmerara, solely the Pre-sidenti~ obtained upnapetiion addlressed to him by the fiscal; that offcer being bound to support such pet'iton by proofs disclosing a pre4 umarptive case. Except in the excludled cases of ftagranti delicto or feesh pursit, this wrarrant of apprehension is authorita- tively, necessarv, or all is illegal. After a diligenlt and careful siftinig of the evi,dce anun. I own, at a loss to conceive upon whbat ;zrounds a Pet;.tion praying apprehension could have been founded, or how Mlr. WiVra, as President, could, had he been asked, hiave made thec appo.ntment requiredt. The papers of Mlr. Smith could not iawfull', be seized until after apprehension granted: these, there- fore, 'would have afflarded no aid in the opinion to be formed. The conversation wit,h Bailey and,Y Aves, as by, them stated, at mOst -voujd ha-ve Warrianeol tile interrogation andI examiinatlion of MIr. Smith as a wvitniess: in no dei'ree would it hare been sufficient to iseig,h azainst hint as a delinquient ; for if his expres. sion. that "he knewoftliksix weeks agro,"be ever so severelythought of, it rfill still an a question occur, rhact lie knewv; which could 'lot he insuqrrection, sinirce Ilisurrection clearly was not projeted on thec 17thi of August. eveni amongst the slaves9 themoselves. To--noTrow morning you imtust put tdovin youir shovel, and hioe, adutasanndst ou ntehme"''eseare alleged to be the i~ts of'Quarnina, which, had thecy distinctly reached the ears of Ml-r. _niith, never could have been interpreted by him to mean revolt and insdtrrection. Such petty str-atag,emsof dogge-dness,itis well known,are j'r frequent local recurrence upon estates, yet usuxaUy lead to niothings a,nd ifthes~e words did not of necessity import revolIt and insurrec- trion, stil imls can they of necessity be understood to mean settled anId puirposed highi treason. A mistike of magnitude pervades, in rruj"h,uhe ress-_onings of all those legal gentlemen who lhave ventured, in referrusce to this ease, to-speak of misprision of treason. It is, in- deed, held ini Dutch law, that concealmenit of high treason, and the slg-htes~t degree of it, amounts to treason itself, and is puinish. abeby deitb ; but this untloubtedly refers to knowledge of actual high treason, either intendedl or comnmitted, and higch terason alone- high treason, within the sense and interpretation of ye-rduuelio,theverv esserce of which consists in a hostile mind against the Sovereign o'r State -as a State. Other offences, though a-motunting even to sedi- tiotis and umm7!ts, and beingr therefore within the general law of knew v"trfre.ts, v6,et, not involving in themn a distinct h&sile intent against the St.tte. are mi:demeanours of a lower order, anid in no manner in- upuni thment dlinquents so as to renider them the object of capital Amongst the class of crimes against the State a-e perdivelho (hig-h -reasoan), treason, cr"-ing mroney, &ec. ; the formner is committed by tbose who urifte a hostile intention di-turb, injure, or endanger the indempondence and safety of the State. All persons who are apprisedl of' the comminittal of high trenson arc obliged to give information thiereof, or are vinsidered criminal and punishable.-. I'ander Linzden. Judicial Guide, ii. 171. ageres withhigh'treason in thus far, that it is also committed by stich acts as violate or endaniger the safety of the sEate: but it diffets from it in t1iis, that it doss not require that inimical intention, with- out wliiclh a. high treason cast exist. It speaks for itself, that thle punishment of this crime can seldom he dleath ; but tthat it may be dIifferent according to the greater or IL's criminal intention, the greater or less injury occasionied, and the dlifferent relsations of the persons whio comnmit the crime; for instance. waving tle sword over the head, confinement, banish- nerit, &C...-ra,n )ind.cn, p. 172. It should seem, indeed, that a feel-ing of the neccessity of this hostile kind against the State being in exis~tence !before high t-xeaseun cnuld be commaitted, was latent i'n the opinionsg of the col.Osiists themselves ; for it cannot be forgotten that the eurIlieSt RaRctuns received here ab3ounded with assertions of an attempt hav'.ng been in agitation by the insueigents to possess theneves bt' force of the Soverignty of tliesettlement, not a tittle oaf whaich asssertions has been s'upported by any credible evi- 'lelce .uluce adduced. I am convinced iriiself, that how- ever the violence of the rioters collected And assembled in IStC'.gth, made it ait length proper to put such down by arms; 7,nd however justifiable the pinnisbing of' time ringleaders found hosilely in the field after the nroeclamation of martial law migh he. that yet no plan or premeditated design existed amnoDgst the slaves themnselyes by which it wass mneant to overturn the colo- nial admiinistration. 'the very parleving and making conditions with those at first opposed to them negatiges this. "1To drive the planters up to town to bring baeck withi them the -new law," is a preplosition quite within the probable scope of' negro policy ; morp especially, too, if it be recollected, that so general, as it ao,'ears %ithout contradiction, was the expectation that some pub'lic ordler in reference to the dlirections known to have been sent out from home, would be authoritatively issued, that the managers andl Overseers had been previously flocking daily to G~eorgetown, to obtain infotmation with respect to it. Those, -too, who have been much acquiainted ivith the forms of negrol ,expression, can'not but be aware that "d (rive" in no manner is abso- lutely taken by them to mean " force," but is simply tantamount to " make." I at this time have before nie the mem-orandums of a master, whose. hired Bervant, in addlressing him, declared--"Ale so good, Massa, moe drivee you to give mne new jacket, Christmas." if, tnen, it be doubtful what even was thle design of the slaves themselves prior to the actual conifinement of the WVhites upon various estates, and the final hostile actions of the Negroes, how far renioved from any thing like concealmnent of an acknowledged traiturouis tteertopt becomes the allezed conicealment on the part of Mr. Smith ? Yet misprision has, I am sorry to say, been hardily imputed even by lawyeTs It has been observed, that had the trial been instituted before the ordinary couirt of justice of the colony, apprehenision musit have been dlecreed by the warrant of the Pre-si- dent, before the person of Mr. Smith could legally have been de- tained. It must be farthier observed,. that althoughi the the artiole of the crimiinal ordinance originally nmade it lawful upon apprehension eo seize the goods of the party zgainst whom appieehension is granted, yet as confisc-ation of goods has since beea aboli.shed by the Placasart of their High dlightinesses on the Ist of MVay, 1732. theI article is now held to be obsolete.- Vide Henry's Report, &c., p. 9. But, if considerable hardship was thus sustained by this un- frtunate gentleman, from his being exposed tco these preliminary disadvantages, to not less inconveniencies was hie Ibid open in tha prores ofhiscas. B ar. 7 incrminal causes the proceedings are s.oju-io insitutd byshor day andintervals, for the expreIss soner and also of the witnesszes, it benthrsomndytoufr nothig to be put down upon the minutsta nisntr a o clear and dis-tinct ; nor is it until te terms or steps in the cause are completed, that they are at liberty to report the cauise to the full court, when a day is thereupon fixed for conclutive hearing. It is irpossible not to perceive that this cautious and slow proceduire has natuall the effect ofallaying all stormy feelings of irritation whbich at first taughit be found to exisit Against the prisoner ; and though by ziat. t4, it is ruled that the prisoner shnall not be a-dmitted to be hesad by counsel, nor to make use of a written defence in the examination, except for special reasons, according to the discretion of the Judge, yet this discretion being thus reserved, it is true in practice that not only counsel is assigned to argue for the prisoner alU points of evidence arising out of the circumstances of the case, but also such is appointed for him to male at large a full and ex- panded defence. When the day of ultimate hearing before the fall Court artives, which in MIr. Smith's case could not-well bave been until four or five months after apprehension, the Fiscal makes bis claim and demand against the prisoner ;-that is, states his ground of accusation, and here, by article 24, it is declared Chat witnesses are to be heard ex-offlcio, as well to esta- blish the innocence as.g-iilt of the prisoner; and herein the Fiscal himself, as weU also as the President, especially is bound to attain the truth and whole truth in respect of the party aectised; nor is tie Fiscal, thougb public prosecutor, in any manner to seek solely the conviiction of the prisoner; but even he, as well as the President and Court,. is called upon to afford the benefit of every observation fairly to be made on the evidence produced: neither is it until the of- fence be rendered mwe meridianeaclarius, thatjudgment can be duly pronounced. It would be tedious were r to enter upon the doctrine of confessiqn,,as necessary by Dutch law to conviction: and I shall therefore content myself merely with Paying, thit so far is it from being rse, thatguilt rore easily is to be presumed through the process of theecrininall law of Demerara than through the establish- ed eommoni law of Great Britain, that, on the contrary by the I former, the Court may even be placed in a meon-liqzet in QCh cate I the ptisousemf is usually discharged as for want of proo? i 3y article 46,it is declared that ever ting urged by the prisoner in his defence is to be fully heard; and in every stage of the process, even up to sentence ancd execution, cvcry thing that can be urgedin Idefence of the praoner to pyove his innocetce shall bereceived, un. less it sbalt appear that what is offered is clearly founded in ca- lumny or falsehood. - Whren, in ziddition to the abseneeof these advantages thus pointed' out by the'law of the colony, it is further recollected, that in cri. minal cases anappeal by virtue of the Placaart of 1591 eonstitu- tionaUy lies to their High Alightinesses, and consequently now to, the Eing in Coancil, it cannot but be ad?mitted that this lamentable case is one of singular hardship and severity. There yet, however, remains a point more-namnely, upon what ground it is said, that upon conviction, deatlh was the inevitable sentence attendant upon the verdict. It by the criiinanl law of Holland is far otherwise. Digcst. lib. xiviii. tit. 4, 11 Ulpianus, lib. 8 Disputationum. _ Plane non quisquis Legis Juili Majestatis reus est, in eadem condirione estt: sed qui pertuellionis reus, hostili animo adversus Rempublicamn vel Prilcipem animatus: cirterunt si qui ex alia causa Lens Julim Majestatis reus sit, morte crirnine liberatur. Ana, that it may not be asserted that this laW ofthe Digest is changed or altered through its adoption into the laws of Holland, I would bog leave to add the following striking passage from the ConrncretaryofAntliwnins Mattheras, ajurist of'allowed celebrity.- Alatthreusde Criminibus, ad. hb. xivii, ct xlvii Dig. De Lesa Ma- jestate, cap. ii. Quib. modL Crir:. Conmentarius Maj. committ. sect. 11, p. 323.--bed,etab auctoribusseditionis diligentersecernendi, qui occasionemn duntaxat seditioni dederuat. Ex grat. BiLesus ie Germanici legatus, cum solita militremunia intermitteret, Carbo rumn collapsam discdplinam restitucri vellet, non tam causam, 7iuam occasionem seditioni prebasertmt: immnunes igitur a per- dluellionis pnsena unt aliud exemplum addtscunt intctrpretes, quod sane frequenter conringere potest: nempe,cumexerciiui non solveretur stipendiumn, Centurio aliquis biliosus in hrec erumplt v Mrba_' Miran- dum est, milites seditionem non nnovcrc.' Praitereuntes forte milites exceptam centurionis vocem per manip'aos astulenr, ctque ita se- ditio coorta est: non tam caitam centurio, quam occasionct sedi. tioni dedissejudicandmses-t. Here the words used by the atrabi(ariouj tenturionl being over- heard by the so!(liery, there a,ose a violent sedition; but because they were not used by himl with an intent to excite insurrection, he was not aajudgedgsifhy of treasou. I am. Sir, vours. &C. _ JURIDICUS. C4SE OMR . sifliTU, ?IE MfISSIONARY,