Henry Fauntleroy.
The Times, 1824-11-25T00:00:00

'i'fie aveuues of tile tirantl Jucry-room were again crowded writh barrister and. otircs anixioua to hjear the conclusion of ttie argument befr te Judges. At ten o'clock the door w'as opened, and the BPac iote o the bar and the Public Imnmediately filled. M r. MI6D1RICY rose to reply. He began by expressing lila gra. titudc tourseJudg-ssfor the opportunity' afforded to him of consider- Ing_ the authorities cited oni, behialf of the Crown-an indulgence Which lie would not'abusp.by ititrodulcing any topics which were not strictly relevant to the snb'entouq questionL whichi it was hii dluty to aorge. At theD eldee of the address-of his learned friend, a number o ecords were produced o1- convictions, on which execution had followed, in order to irhow whait the practice had been to the Xresent time. It would be idle florhinm to prretenid that thieSe recorda were calculated to produce no efrect ; he felIt the impressioni tbey m-uat matke as eviderce of- the opinilon whiceh liucl hithierto pre- vailed on the conistruction of the statutes, both in thie minds of the learned advisers of the Bank who lied directed the forms of indict- niienis, and In the, apprelienslUns of those em-inent persions to whiom from time to time tire defence of* prisoners hiad been tonivnitted. But muchi as thiese precedentts were entitled toi consideration, care slhould be takten that they were no' allowed to have untlue weight in a case of this rtwitrl nature. There were instances in whiceh the law had, for rtgesj been miisunttdersitood, and at lasjt discovered by somne aecidientw wen its trie principle had been investigated, and thestippo- sitioki lang ucted on and fortified by time was ascertaine to be founded oir error. Murch as headmiittedtlie'weight of thesenegative authori- .ties, lie felt still miore the positive dacigbios of the "King v'. XVait," and tlhe "1King v. Lyall," whiich had been cited on the other aide. As to thec firsit, lie was fazr, very far, froin nieaning to cast the slight- est reflection on thie learned counsel for ti i prisoner, by wkom this poinit was niot raised-whiose penetration, nevertheless, it hiad not escaped; buit whio felt that he could not urge it without weakening an argument on which lie relied with great confidlence. In the "KMing v. Lyall," according to thec note in Alr. Russell's book, the point applicable to the prewrt crtse was niot Chliefly raisedi; even upon that ease one of tIre learned Judg;es do(ubted ; anti that doubt was Sofil- cient to justify the legal atdvisers of thisi unifortunatc gentleman in seeking tor thte unanimous opinlionl of dlie Judges. That ease was ihot argued by couiDsel-a circumstance which it was hiar-d to allude to withiout danger of' presumption on the one side or of aflectationi on tke other. It would be presiumption not to sutp ose that, wlien a question involving the life L.r death of air indivi nal was sribnsitted to thte Judges, every considerationi was not suggested by one or ott,er or that learned .'vody to thke r'hfole, or t'hat every sug- gestion din n iot receive the most sierious -and dispassionate inquiry. Yet , on the other hanid, it would ire affectation to assert thiat tire Juidges were never asisisted by t he reasonringe of advocates less learn- ed thiani themselves, whiose industry was tacit anxiously, and care- fullyv exerted, whio were aided in every way by legal advice, und cD-. opteration anti wlho were animnated by hionest zeal for this life and fortunes 01' rencommitted t,otheircare. He would, therefore,nmerely observe, thritt in the case of " The King v. Wait," this assistance, wvhatcveir mright belits value, was wanitinig. But lie mutst cons- plaini thiat, upon this question, he hiad not been met in Lthat fair and maunly way lie hiad beeti led to anticipate--on princi- ple anid the fiair constructlion of ihe statuies; but that these prece- deistu liad been introdricedt to prejudice, if' not to conclude, iris rea- soningr. Thtuere was no doubt that precedents existed-no doubttdiat intdieMmeNt lietd been actetd en; but the very question to be argued was, were these precedetsn grounded in law, and these inidictmientsi sacindby principle ? Ithy ioto pilainly ancti boltdly nict thifs, tire trtie poinit of thte argument, at onice5 asi if thte piroceeding were res lalrg:ra, arid as if'this were tire first indictment framed on these sta- tnires ? TVo this Etest tire case miust al'ter all be applied, and by t%'is itmnust be decided. lii civil'cacs liodoubt judges sometimesmsid, "if t)i4twererc.s lnu/egrn,,ve shoutld old otherwise,but wecannot over- turn soleurri dlecimions ;" and whien counsel were supportedI by pre- ecelentis, but opposed by princjiple trid sense, staire deciUio svcm- a cruriveniferrt maxim, ann' mighit be allowed to prevail rather ithan that tlire urilifornriiy (if tire law shotilni be broken. But who would dare apply it toe easae ini which life was at istake e-wlro, w,fier man was about to ninfictldeatih on reran, would urge it as corrcluaive?-whro, in thiis fearftul extremiity, would venture irs plaini and palpable Ian- kuage to say, let this hutman being die, that the cons-istency of judges and of cases may be supportect ? No one would tdare counsel such a sacrifice; yet, by implication, if the precedents wecre to hiave effect, they tended to tIre very result which hiii learned friend would be eager to disown. AVe came back then,j shaking off these trammels of precedent, to tire reil question--on the fair construction of tire statutes-to whicih lire judges would fear- lessly arrti humanely direct their minds. To the arguiments used by MNr. Sergeanit Bosaniquet he woultd now advert, as they afflcted the two main propositions for wlinch he lhad corntended-first, th.it tile letter of attorney set out on the record did not comC Within the legal meaning of the termi "1deetl ;" second, that even if to some interests it was a deerl it was ntot withini the purview arid f'air scope of the statute 2Geo, I i., on which tlme ind!ctrnetit was founded. In support Of thle fit-St position, he had cited the definition of a deed giver by Lord Coke, arid adlopted byea succession of emRinent writers after him ;not as proving that a deed must containi a contract, but thlat it MUSt coDtain eitlher contractor grant. How was this answered ? Byageneral assertion that definitions weredlangerous things evenin the liands of Lord Coke, andl of tirevTeatestaridc most, venerablelawYers-And thsn,as rupposed to these definitions were set up the loose dicta of the very sam;e writer in passages whiere the porecise point now raised was nor presented to his m-ind. What l were the exp ressions of aget a--u thxor to be resitstedl whien his powers were all shrendin to accurate attenitioni by thea necessity of defining threexactimsport of a termn, and yet to be regarded as conclusive when emulayed enly casually, anti (directed to anothier end ? W'as thlis 'unbroken chiain of autho- rities, extendinig throughi a long period of tinse, to be set aside" by, a general expression orf Lord Cokce, or by the words usjed in Goddardl's ease, where the pr-ecise question was not raiseti? Nothing lhad been really ur-ged to break in on the elaborate defini- tion of Spelnian. whlo manitestfy confined ttire term deed to "doaiitn," a grait ; " contr'uctr,"' a contract, notwithrstand- ing the concluding werds " eaiet bnus siodi qnuixpiarn agit ;" whichi, according to every acknowledged rule of construction, musut be taken to refer to writings5 of tie samne niature with thoe seciicaly entone inthepreious member of tire sentence. f.earr on cotrat tre xac deiniionof Lordl,Coke with) his triers ilitumrescctng ltte ofattrne todeiverseisin,or with thestate- men inGortlad'scas, ad sy wichwas most important in itself; and ostairlicbleto tre ega qustin in isue Trhe expressions in foddrtl' cae cold ot aoun badefinition of adeed ; for there the instrumzirt was calledI " a writing on paper or parchment Sealed and delivered ; but every writfing sesleri and delivered Was not, therefore, a deed. To c'onstitrite a sleed, thecre must not he uierely, these incidenit ceremnonies, but apt words of legal im-iport and power. Suprpose a man chose to seal and deliver a notice to quit, or a notice not to trespass, would threse paper writings heroine deeds ? WVas a will a dieed ? Assuredly not; and, therefore, it was clear tiart thie dictum of Goddard's case merely siun. iinerated the outward signs and esyidenices of a deed, and did not tie. fine its substance. It had been said that releases were deeds-thiat dlisclairners weree deeds-and that other instrumients not between patty and party were dleeds; anti they were so; but tIre remark was founded on a misconception of his argument, wvhichi wa.s not that a deed mniist be a conitract, but that it. must relate to muatter of contract or matter of grant. Every one of these instances was withiin the definition of 8ipchnan-tLhey granted sonritlting, thecy released some- thing, or they conveyed something ; butt aletter of attorney did neither of thjese. It was not arguemi, it was hardly asrserted, that a letter of ;-t. tomney (lid grant any thing-tist it was danmmn withiin tire imeaning of Strelmsan ; for it teas a bare authiority revocable by parole at tike will of the parry. At once, theref'ore, lie destnroyerd the e&fct of all those inistanices, and preserved tire chain of autirorities on whichi he haul relied unbroken. Ile canic, then, to tire case in the 1% ar Books,which lire hiad only cited to shows that t1he law'vers of the time hesitaLted to describe a letter of attorney as a deed, bitt which ionic of hrislearn- ed friends througirit lire isrighit have put even more strongly in, Iris own favour. He was conitented to take it as lire hur(l placed it-lie wished to press ntothingi beyond its real beCarinlg; buit he could anot c-onceal his astonsishmitent, when lire hieard isis learned friend dwell on it as prov'irrg that tshe Court in that case considered a letter af attorney as a deeth. It was no more than this-thre writ rientionedideeds3arid mrtrirriiients; the count initroduced a deed of feoffment, anti a letter of attornlev plerided ass oruniniert; theceurt Said, if the letter of' attorney, was a theed, it sliould have been so ple-aded, aiid the counsel app-lied for leave to amnend, whinch Was re- fused, because tire time for amendlment hiad beers suffered to pa-ss. tlras tliis;a deci8ion that tire letter of attorney was, a deed ? TIhe learned reporter, at least, thiouight othierwise, for he, iii his niargitral riote, said " a letter of attorney is trot a deed, att rsidetair " and Sir Robert Brooks, in his Abridgmenit, cited tire case, withiout any in. tinnation that ttire point wvas decided. Tiren camie the case of an award, respecting whichi the Jieeision in "1 Brown v. Vautser" wasi cited to prove that an award, if deliveredI as a deed, would be a dleed. That ease proved nothing of tire kind : it merely determined that an aiward not delivererl as a decd required iso deed st-aralt. and tits lft irequetio opn. ndthis led to the considera- tio oftir Stmp cts wich troglysupported tire argument that letersof ttoneyant deds eredisinct, classes of instruments; for i evrystaut, teyappie sotuimdifferent stamps, and this ver istrmet hd ron ad cul sic,have ad dced stamp; and yet Mir. JUstiCe BAYLEY.-A bond arid a mortgage have stamps dif- fering front' other deedls: arid still they are cleeas. Air. BisoDSSicK said, thiere was a reason for the difference in these instancesi-the policy ot charging suead valorema duty ; bint that the uniiformupractice of slreL-egislature intire stamp atrss,of classing letters of attorney, aird dleeds under separate heacds, and sulbjecting them to different regulations, supported that distinction for which lire was, mnost anxiously contending. As to the words of covenant introduced in tire powver, lie still contended rhat they did not enlarge the mean- ing of the instrunment, and consequently did not constitute any cove- nant in law. If' thiey did enlarge it, what was thesense ofall thepre- vious words purporting to continue the authority till niotice of' the death oif tire party wras given at the Bank ?,, And if thecy AMl not en- large it, it was clear, f'rom niany rauthoritiesn, that they wouldI not olperate as a covenant or changein any way the character of' the writ- fing. In "1 Tire King v. WVait," it was contenided mioat successfunllv by Air. Sergeant Bosanquet, that a letter of attorney, unlike a deed, was revocable by nsatter inpais. This could not be denied; and being so revocable, did it trot wenit one of the essential properties of'a deedl? The case ofan estate for willecreated by deed had been cited as sinsilar, but it rested on different principles. Lord Chief Jutstice BEST.-There the estate is, defeated, but the deed is not revoked. tineltelanajde n Air. BatODRItK takdtelandudeadprcdd.If, then, he had showed that the letter of attorney was not,in strictness of law, rightly described as a deed, it was clear that the conviction could not be supportetl. But even if he had shown that the question warm ambiguous-it, failing to prove the instrument not a deed, he liad shown a clear distinction recognized in early times between such a deenl and deeda in general, he frad laid a strong foundation for his second proposition-that on which he mainly relied-that even if the instrument came within the words, it was not within the mis- chief, and, therefore, not within the mcaning of the statute. The proposition, that it weas not within the miscliief contemplated, or remedy intended, it was not included though within the words, had not been met by a denial, though some attempt had been made to evade its force. But the argement he bad drawn from the definition of text writers, fiom the broad line of distinction reeognized in earliest timnes, and confirmed by is succession of statutes, had beern treated as extravagant and futile. If those autho- ritics were inapplicable-if those acts couild be explained on other principlesq-hen his reasoning might be so treated, bitt at least it clainmie tladifferent answer. He had shovwn that, from the first penal statute dn: forgery down tochre very last, letters of attorney and deeds were ditinctly tlCsubiectb of penal legislation-that the preamble, of-else cet '^rerating to the latter did not apply to the former-that even in.the.sanseatatute they were provided for distinctly; and tUrat down to the vety revene laws the distinction wa3 preserved. Was thls nothiag te showt ze initent ofthe Parliamentt? lt ad been urged thatthe 8thGto. Li-d not apply to Bank annuities, and hence ihe necessity of recent. acts--but those annuities were consolidated in the tewentleth yekr of. George IL; and could it be believed, with all tlse vaunted andjtutly vaunted, csution and learning of the advisers of the Banir, they were leit withoat protection during this long intervil ? The, -ei-ark, however, even if well founded, hardly broke inon the chainoi rca3oningwwhich hehad endeavoure2 to sustean. ?It could not be denied that at aU timies the letters of attorney used at the Hini were ia thet,ame fbrm, signed, sealed and delivered and therefore, if this instrument. tere x deed, all lhose powers of -attorney were equally deeds when Made the subject of disuinct legislative provisions. But all those -rovisions were mU- gatory, superdiuous, asad absurd, if the letters of -xttornev. to which. theyreferred were already proteted las-leeds. It hut, indiseed;beea- suggested that the 8 Geo. I., and the subsequent iftatute, applied to - other letters of attorney, which were not signed, seated, a-d delivered as deeds: ko that, admntting that souze warrants of- attorney were deeds, still thete -was matter to which they might be construed as alluding. Tr this observation, descrving certainly serions attention, he thoaght he could give a complete nno satisfactory answer. Warrants and orders fot the payment of money, or die delivery of goods, stovd exactly in tbe same predicamenit with letters of attorneS: like these, they migbt be signed, sealed, and delivered: apd like these, too, they might want all thete soleniciA ties, and yet be effectual and valid. If leed5, they, as weUl.8sealed letteres oatiorney, woiild be included in the 2 Geo. Il., c. 92. Did the tiegislature so intend.? Noa fdr they lhad -Aid they did not: for in 7 Gmo. 11. they had expressly recited 'hatt there was no punish.. ment for fotging these instruments, =nd tben procetdtd to enact that death should be inflicted for the - c-ine. It fo llwed, thtteforec that as tbey had not .te-ggeda these as provided for undef the ti le of. deeds, so neither bed thev considered powpers of alt. torney as within the 2 13eo. I I., though the same reMargk might-have been applied to both. All t1he mischief of thisscage was deariy reached bythe 4 Geo. II., which, though it didnotrpcAbf ntter. ing eo uomine, included all the nets by which the char& bf eif.esirt could be suppsrted. There was, therefore, an appropriatereredy and the only question was, vhether the Bank had tIio mistaken thbil course. That they had done so, must be holden, if either . Pro. positions were true-that the inistrumenit was not in law a deeZ; or' that, being a deed, it was not within the mneaninrg of the statute, which niust be most strictly and cautiously expound. ed in a ecse so highly penal. "1 have now," said lIr. Bro. drick, "s ubmrited etl that has occarretl to niyself, or has been suggested to nie by my rienis, at beafing upon the irn- portant question on which your Lordships will g ive iudg- ment. 01' these arguments, as your Lordships may well be- lieve, the far more valuable have roceed t m carned friends, to whom I am deeply indebted-the other aoisef for the prisoner. I haero performed a most painful dury_I.4 fear bat iin- perfectly-for I have been laboutring under an anxiety stiteih rniy have cloueled my mind, and disturbed the train of mv zeancniugi Whether this be so or not,the interests of the prisoner vvill not suffet -they are safe in your Lordships' hands. If I should seem it have touched too roughly on one part ef the case-a part requiring to be delicately but yet firinly handled-the effec: of those previ- ots decisions 1h,qch have proceided from your Lordshipa or your predecessors wimut arzuent, I irust the errer will be eibuted only to its rigbt cause, andt not o anry .ansn oC -dA.p ^ - reverence which it is my duty to cherish, and whichV deeply- feel for the awsembled Judges of England. The nomcntoug question is now before your Lordsiips; and I inaplore a jutdgment = upn it unfettered by precedent, and foundcd on the true meaning -f those authoritics, and on the design of those statutes, on which I have had the honour to argue. To that judgment, v.hether- favourable or otherwise, not only I, but the unhappv gentle. man now lying under sentence of death, will bow wvith the ut- most reverence; because he feels that the judgiment ivill be the re- sult of consumniate learning, and delibemteand impartial justice." Tue LORD CHIEFJUSTicE.-Thecwae has beenexeeedingly well argued; the leamed counsel for tlie prisoner hts no remaon to think that any thing could possibly have been done for his client which lie bas not performed. (Counsel mnay now withdraw. The gentlemen of the bar, and the rest of the audience, then withdrew. No judgment was paiblicly given ; but it was soon understood that the Judges uuaninmou.sly held the conviction right. * 2 : ENRY FAUNTLEROY. ARGUMlRNT BEFORE THE TWELVE JUDGES AT -- WESTblINSTER, UrEDNESDAY. Nov. 24. THE lKING V. IIENRY FAUNTLEROY.