Page images
PDF
EPUB

Magistrates are often in too great a hurry to of nature, is excluded. These are the general warn prisoners against making statements. observations which I feel called on to make, Provided that no stratagem be made use of to but you will, of course, expect some peculiar induce a prisoner to make one, he ought to be remarks froin me in reference to cases with encouraged to say what he thinks proper; if which you yourselves are acquainted, which what he state be true, it may be of great bene- | appear to have grown out of a series of cirfit to him afterwards on his defence; and if he cumstances as extraordinary on the one hand, make a false one, it is only right that it should as on the other they have been unfortunate in operate to his prejudice. He should not, how-their results, and being too, as they are, withever, be entrapped into making statements; out precedent on record. It appears that and whenever a man who has been so entrap- || towards the close of May a large body of men ped (as was the case of the prisoner here,) is were parading certain districts of this county, brought before a magistrate, it is the duty of under the guidance of an individual of a wild that magistrate to inform him, that all that and desperate character, who had obtained an he may have said previously, is to go for no- influence of a strange nature over their minds, thing; but that any thing he is about to say all armed, some of them with fatal weapons, then, will be taken down and used as evidence and others with dangerous instruments, to the against him. Magistrates had better drop the peril of the lives of individuals and the disuse of the word for, as it tends to raise a ques- turbance of the public peace; that they contion of law.-Guilty.

tinued for some days banded together before Lord DENMAN subsequently mentioned, that any opportunity was afforded to the magisas the prisoner would only be sentenced to a trates to act with a view to arresting their term of imprisonment, which would expire progress, and then that they proceeded threatbefore the opinion of the judges could be ening acts of violence the most dangerous taken, the above point would not be brought description. It appears, then, that the magisbefore their Lordships.

trates having been duly informed of their proceedings most properly sent out warrants for

the apprehension of the principals in the riot; The Charge of Lord Chief Justice DENMAN to that when the person who was intrusted with

the Grand Jury upon the Arraignment of that instrument attempted to take the ringthe prisoners at these Assizes, amongst whom leader into custody, that individual instantly were those connected with Thom, alias Sir shot him and he died. It seems that after William Courtenay, for Murder, occasioned this proceeding, another course which, under by the changes made in the Criminal Laws. the circumstances, was in itself undoubt

Lord DENMAN_“ Gentlemen,-I have, ac- edly the most humane that could have been cording to my duty, gone through the calen- adopted, was pursued; a large body of the dar, and have read the depositions which military were called into requisition-a force have been returned to me; and, generally which from its number was the best calculated speaking, I think I may state that there is at once to overcome all resistance, and to put an nothing to call from me any remarks to the end to the scene which was going on,-which effect that the state of crime in this county

was sent to meet the band of rioters. On the arriis more unfavourable than that of any other.

val of this force, one of the officers advanced, as On the contrary, there are some circumstances he had a right to do, in front of the rest, when which may be observed as shewing a pleasing the same ringleader shot him through the fact,-namely an absence of malice and wanton | heart. These cases have undergone investigacruelty in the offences set forth. There are tion before a coroner's jury, and by them detwo cases to which I more particularly feel clared to be wilful murder, thereby leading to myself called on to allude, but it is from the this result, that as many as 16 persons were depositions alone that I have become ac

committed for that offence. Such being the quainted with them, whilst you will have the case, it is fit that I should put you in possesadvantage of having the witnesses before you, sion of what the law on the subject is. "It has and of hearing their testimony; you will been held by all the judges, and is reported by therefore be better able to form a more cor

Lord Coke, that if any magistrate or minisrect opinion. Of these cases one was for an

ter of justice, in keeping the peace, according offence revolting to our nature. The other to the duty of his office, be killed, it is murwas a case of one person shooting at another. || der, for their contempt and disobedience of There are also two or three cases under the the king and his laws; and if any justice of class burglary. I ought, perhaps, to mention peace or constable acting in his office be killed, the recent alterations in the law sespecting these it is murder for the cause aforesaid, for when

The changes in the law no longer the officer requires the breakers of the peace make it necessary for the grand jury to in- | to keep the peace in the king's name, and they quire into the precise hour of the night when notwithstanding disobey the command and the offence was committed, inasmuch as the | kill the officer, reason requires that this killing act now lays it down that it is sufficient to shall be an offence in the highest degree of any constitute burglary if the breaking and enter- offence of this nature, and that it is voluntary, ing be committed between the hours of nine at | felonious, and murder of malice prepense.' night and six

the morning—the period Now the same protection which is given to the when the light of the heavens, by the working justice of the peace or to the constable is ex

cases.

to

tended to any other individual when lawfully | legal authority which might be sent to arrest interfering with a view to the preservation of their career, and in so doing the death of a the peace, and it is highly and absolutely ne- man lias ensued, they are all guilty of murder, cessary that the provisions of such an act of and have all rendered themselves equally liaparliament in that particular respect should ble to the peril of the law. Now, all those be known to every person, and that by some who remained together for days after the first of those provisions they are bound, when pro- act had been committed, when the military perly and legally called on for that purpose, were called out, were in a different situation, assist in the endeavour to keep the peace. I for they also knew what had been done, and it may read to you, for your further satisfaction, appears to me that it would be stretching the a quotation from another book of very great feeling of charity somewhat too far were we to authority in regard to what has been held consider that they were not fully cognisant of upon former occasions. That quotation is the intention to offer resistance to the law of taken from the book of Mr. Serjeant Hawkins, the country. If, therefore, you find that they a book, as I have already said, of great au- remained there for the purpose of carrying thority, and runs thus - When divers per- out their particular object, and that the same sons resolve generally to resist all opposers in act of violence took place as when the conthe commission of any breach of the peace, stable was shot, it would appear that they, and prosecute it in such a manner as materially being aware of the former proceeding, were tends to raise tumults and frays, and in so ready to go all lengths in defeating the opedoing happen to kill a man, they are all guilty ration and execution of the law, and conseof murder; for they must at their peril abide quently were guilty of the crime of murder. the event of their actions who wilfully engage | It is not necessary for me, probably, to go in such bold disturbances of the public peace into the case of each of these 16 persons; but in open opposition to, and defiance of, the I think I should not be doing my duty were I justice of the nation, but in such case the fact to omit to notice that when the military aftermust appear to have been committed strictly | wards attacked them, several of their body in prosecution of the purpose for which the fell under the bullets and bayonets which party was assembled. This authority will be were directed against them. In those cases found in Hawkins, book 1, c. 13, s. 51 and 52. the coroner's jury sat, and the verdict they These principles are as old as the laws of Eng- | returned was justifiable homicide;' and supland. The benefits which are manifest from posing those facts to have appeared which I their observance have accrued from the feeling | have spoken of, and those depositions to be arising out of the principle of self-defence; | correct, there can be no doubt but that every and furthermore, neither individual nor state person who was engaged in the necessary prowould be for a single moment safe if such prin- || cess of stopping the progress of these men ciples were not to be held sacred, and being would be perfectly justified in taking the held sacred, then duly regarded. Now, if these course which had unfortunately led to so principles are applied to the late transactions, much loss of life; quite as much so, indeed, it will appear that all these persons were cer- as though the parties who were so killed had tainly guilty of the crime which the coroner’s || been indicted, tried, and convicted of the jury have returned against them. You will, | offence, and afterwards undergone execution. however, have the best opportunities of judg- || On this subject I will refer to the authority ing of the particular part which each of these of my Lord Coke, written in the fanciful lanunfortunate individuals may have taken on guage of his time, because it has direct rethe occasion in question, inasmuch as bills | ference to the principle in question. He says against them will be presented before you,

and _And it is true that the life of a man is it is not for me, after the careful inquiry much favoured in law, but the life of the which the proceedings underwent, to suppose || law itself (which protects all in peace and that the result will not be borné out. It is safety) ought to be more favoured, and the enough for me to lay down these general prin- | execution of the process of law, and of the ciples, and inasmuch as it appears that all the office of conservator of the peace, is the soul parties accused were present at the time of the and life of the law, and the means by which illegal assembling, it is sufficient, death hap- || justice and the peace of the realm are kept.' pening to have ensued to some of the indivi- Now, we must all hope that the consequences duals who were clothed with the proper legal which have arissen to these poor deluded authority, to constitute their crime the high- men, and the lesson which yet awaits them, est known to the law; perhaps in saying that, I will have a salutary effect, and act as a warnI am wrong in my expression, because the ing and as a prevention to the encouragement highest offence known to the law is that of of similar proceedings in other parts of this high treason. But this offence, it will be ad- country. It is greatly to be hoped that all mitted, approaches very near to that which I persons will feel the danger they are incurring, have just named. If, then, you shall think by associating together for the purpose of that all these persons who, under the strange offering resistance to the laws. It appears to circumstances of which you have heard, being me to be a most extraordinary circumstance, under the control of a wild individual, were that a large body of persons should have been perfectly aware of the mischievous intentions | got together within so short a space of time, by which he was actuated—if you shall think and that they should have been able to that they were prepared to resist all or any | compel others to join them without) any apparent cause, without any apparent suf- il tivation of the mind, there is no one who will fering or deprivation, without the slightest not readily join in effecting the improvement ill-feeling against any obnoxious individual, which these events shew to be loudly debut solely from the harangues of a single : manded-an improvement which might maperson, who did not appear to have been go-terially be effected by inculcating the great verned by any specific object. Neither were truths of religious morality, and teaching they actuated by a cause which had been re- them to understand and reason on the occurpresented in other parts of the country to have rences passing around them. In my opinion, been the origin of the events out of which too, opportunities may arise of introducing these results had sprung, viz., a spirit of dis- | into the pastimes of the people such a spirit of content, issuing from the existing New Poor cheerfulness and interest, as may have the Laws. If there really had been that spirit of effect of laying the foundation for weaning discontent abroad, and the administration of them from the dangerous delusive inclinations that law had led to deprivations, it is not easy i they seem to have existing amongst them. to imagine that the person by whom they : The noble and learned lord concluded by appear to have been infatuated would have strongly urging the magistrates and gentry of missed the opportunity of alleging these facts the county to exert themselves in the imas a cause for their combination. It is impos-provement of the minds of their peasantry." sible, on reflection, to suppose that he would have abstained from imputing, as had been

PREROGATIVE COURT. done elsewhere, to that law-a law which tends so greatly to the alleviation of the dis

Hobbs v. KNIGHT. tresses, and extends relief so largely to the This was a question under the New Will poorer and more unfortunate classes of society Act, 1 Vict. c. 26. The testator, Mr. John -hardships under which his victims might, Hobbs, died in the present year, leaving a by possibility, have been labouring at the time will, dated in 1835, from which (at what time The only cause for the proceedings which does did not appear) he had cut out his signature, appear to have existed in an astonishing degree intending to make a new will, which intention of credulity and ignorance, which it is hardly i he had partly carried into effect in February possible to conceive could have existed to such last, the latter instrument, however, being an extent in any part of this country. Now, invalid. The question was, whether the cutI heard it said yesterday in a most admirable ting out the signature was a revocation of the sermon preached after my arrival in this place, I will under the new statute, which enacts, • That the great end of public justice is not to that “no will or codicil, or any part thereof, avenge crimes, but to prevent them, by teach- shall be revoked otherwise than aforesaid," ing that practical morality founded on reli- that is, by marriage, “or by another will or gious truth which is necessary both to secure codicil executed in manner hereinbefore regood conduct in this world, and to prepare quired, or by some writing declaring an intenmen for the enjoyment of happiness in the tion to revoke the same, and executed in the world to come; and if it is the credulity aris- manner in which a will is hereinbefore reing from extreme ignorance which has made quired to be executed, or by the burning, these unfortunate men the dupes of one, him- tearing, or otherwise destroying the same by self not under the guidance of reason, and the testator, or by some person in his presence supposed not to be responsible for his acts, and by his direction, with the intention of still if they adopt and make those acts their revoking the same.” The question was raised own, they are responsible in law. If that be on the admission of the allegation. so, I am sure (and I wish it to become known Dr. Phillimore, in opposition to the allethroughout the country, that the consequences gation, contended that the excision of the sigof similar conduct to that charged against these nature was a destroying of the will, which men are those to which I have referred) it is became thereby inoperative as a testamentary urgently necessary that the country should i paper. apply itself to the discovery of some remedy Dr. Lushington, on the other hand, argued, for an evil so great and so alarming. Should that the act of the testator was not one of the it then appear that ignorance has been the modes prescribed by the new statute for the cause of these unfortunate men having been so revocation of a will. Under the old law deeasily led away, I trust that we shall all admit vises of lands could be revoked by burning, the necessity there is for the most strenuous cancelling, tearing, or obliterating the same. efforts being made on our parts to secure a The statute of Victoria prescribed “ burning better state of things, and thereby lay a found- and tearing,” omitted “ cancelling and obliation for a better observance and obedience of terating,” and inserted “ otherwise destroythe laws. If the minds of these poor men | ing.” This act must be construed strictly, had been properly directed, or if they had en- and as the Legislature had omitted the words joyed a higher degree of intelligence, it would “ cancelling and obliterating,” it must be to a considerable extent, if not entirely, have taken to have been advisedly so done. If the tended to the defeat of the strange delusion testator had struck his pen through the whole under which they appear at the time to have will, nay, if he had said “I revoke this will,” been labouring. If this be proved to be the that would be no revocation under the statute

. case-if the mischiefs which have taken place | It might be a demonstration of his intention have arisen from the absence of a proper cul- | to revoke, but not an execution of that inten

tion under the statute, which prescribed spe- The Court was of opinion that the deceased cific forms by which alone a will once valid | had not complied with the provisions of the could be revoked. The tearing of a will, || act, which required that the signature “shall under the exposition given of the Statute of be made or acknowledged by the testator in Frauds, must be such a degree of tearing as the presence of two or more witnesses present evinced intention to revoke. Cutting out was at the same time.” not tearing at all.

The Court. - Where is the distinction? Would not cutting to the same extent as tear

INSOLVENT DEBTORS' COURT, ing suffice? Would not separation by an in- Applications from insolvents to be admitted strument be of the same effect as separation to bail until the days of hearing their cases by hand ?

were made to the court. Dr. Lushington.--I am inclined to think The Chief Commissioner REYNOLDS took that under the statute they are totally differ- | the occasion of stating, that the court was ent acts.

anxious to carry the provisions of the act on The Court.-I should be inclined to hold the question of bail, as far as they could, into that what would be a good revocation if done effect, consistently with the powers with by the hand would be equally good if done which the legislature had vested them. Unby knife or scissors, otherwise it would lead der the 38th section of the act it was provided, to absurd consequences.

that after confinement the court could admit Dr. Lushington.— Then, what was meant by parties to bail. The section also provided, destruction? It must mean torn in pieces or " that after any order shall have been made thrown in the fire.

directing any insolvent to be brought up to be The COURT.—The signature at the bottom | dealt with according to the provisions of this of a will is absolutely necessary to the exist- || act, it shall be lawful for the said court for the ence of the will; if what is essential to the relief of insolvent debtors, on such notice to existence of the will is destroyed, is not that the detaining creditor or creditors of such ina destruction of the will ? Suppose a will is solvent as the said court shall deem proper, to torn through?

direct such insolvent to be discharged out of Dr. Lushington.—That would be a sufficient custody on his finding two sufficient sureties revocation.

to enter into a recognizance to the provisional The Court.-Suppose it was cut through? | assignee of the said court, in such sum as the

Dr. Lushington.—That would be a demon- said court shall think fit, with a condition stration of intention to revoke, but not a can- that such insolvent shall appear at the time cellation under the statute.

and place fixed for the hearing of such insolDr. Phillimore, in reply, said the legisla- | vent, and on every adjourned hearing, and shall ture had omitted the word “ cancelling" by abide the final judgment of the said court, or reason of its vagueness. But though it had a commissioner thereof on his circuit, or such excluded the words "cancelling and oblite- || justices as hereinafter mentioned, and on such rating,” it had substituted more precise and other terms as the said court shall think fit to comprehensive words, “otherwise destroying.” impose ; and to issue a warrant ordering the Could it be said that if a testator cut his name discharge of such insolvent, who shall be free out of his will, he did not destroy it? from arrest or imprisonment by any creditor

Sir H. JENNER said he would consider the whose debt shall be specified in the schedule question.

filed by such insolvent as hereinafter menIn the Goods of CORNELIUS REGAN.

tioned, until the time appointed for the hear

ing of such insolvent, and for such further This was a question under the New Will | time as the said court shall by indorsement on Act. The testator died in March last, having such order from time to time appoint; and made a will the day preceding his death, be- provided that in case any insolvent so disqueathing all his property to his wife. This charged out of custody shall not appear at the will was executed in the presence of, and at- time and place appointed for the hearing, or tested by, one witness, but afterwards the de- || adjourned hearing, of such insolvent, (not ceased acknowledged his signature in the || being prevented by illness, or other lawful presence of three witnesses, who attested the impediment to be allowed of by the said court,) same. The question was, whether this was a the recognizance so entered into shall be forgood execution under the 9th section of the act. | feited, and the amount secured thereby shall

The Court was clearly of opinion that it be recoverable in a summary way, by a diswas a good execution.

tress and sale of the goods and chattels of such

sureties as the said court shall direct, and the In the Goods of G. M. BLIGH, Spinster.

amount so recovered shall be applied for the This was likewise a question under the late benefit of the creditors of such insolvent in act. The deceased died in April last, having like manner as if the same were part of his in January made a will with her own hand, estate and effects; and the said court may also signing the same, but not in presence of wit- || issue a warrant authorizing a specified person nesses. Afterwards, on the same day, she or persons to arrest such insolvent and deliver acknowledged the signature in the presence him into the custody of the gaoler or keeper of two witnesses, but at separate times, and in whose custody such prisoner was at the apart from each other.

time when he was so discharged as aforesaid ;

THE SWEARING OF AFFIDAVITS IN BANKRUPTCY

UNDER THE NEW ACT RELATING TO THE RE-
LIEF OF INSOLVENT DEBTORS.

and' all detainers which were in force against their power to see what detainers awaited them him at the time of such discharge or which pending the actual hearing of their applicashall have since been duly lodged against him, tions in the court. shall thereupon be deemed to be in force; and The Court said they had no power to grant that any insolvent so discharged out of custody the application. The applicant must again as aforesaid, shall, on his appearing before the give notice of bail, and again come up before said court, or commissioner, or justices, be them. considered for all the purposes of this act, in

In Re WILLIAM Lawson. the custody in which he was at the time he In this case, the court observed that it was was so discharged.” Now, a material question important that the sheriff's-office should be arose in respect to persons confined in country searched on all applications for liberation on prisons. The court had, after mature con-bail, in order to see if any further detainers sideration, arrived at the conclusion that they were lodged against the applicants. In a case could not discharge any person on bail under which occurred at the last sitting of the court the act unless the sureties presented them- | an insolvent had been liberated on bail, but on selves here in court. The commissioners had his return to the prison it was discovered that no power to depute any one to take bail in the a fresh detainer had been lodged against him, country, and it would be seen in Tidd's Prac- and the consequence was, that the order of the tice that the power of the superior courts on

court for his liberation was perfectly nugatory. the subject of bail in country cases was specially provided for. The commissioners had

COURT OF BANKRUPTCY. anxiously looked through the act to see if they were empowered to dispense with the attendance of the proposed sureties, but they could find nothing so empowering them there. It was clear the sureties must attend the court in London in person. The court would more- A solicitor appeared before the Court to over, in taking bail, consult the interests of all swear an affidavit of debt under the 8th clause the creditors in the schedule, and fix the || of the new act. amount of the bail from an examination of it. On the solicitor presenting the affidavit, They would not be doing justice to creditors if Mr. Commissioner MERIVALE said, now, as they did not, in fixing the amount of the bail

to the swearing of the affidavits under the required, vigilantly attend to the interests of

new act, he had only to state that he enterthe whole body of them. With respect to tained very great doubts whether he had the question whether the court would receive jurisdiction to take those affidavits at all. objections to bail on a viva voce examination of

The Solicitor.--I know your Honour has witnesses or on affidavits, he would say that expressed that opinion, and I have seen the the majority of the commissioners were of observations you made yesterday respecting opinion that the power of viva voce examina- the clause, as reported in the daily journals. tion should be reserved.

Mr. Commissioner MERIVALE, in continuMr. Commissioner Harris remarked that, | ation, further remarked, that as far as a newswith respect to the amount of bail, the least paper report went, it was nothing ; but what the court could do would be to require the he had to say was, that the Commissioners amount to be double the amount of the detainers lodged against the party applying at

were only empowered by act of Parliament

to swear on oath affidavits in matters of bankthe time of his application.

ruptcy: this was where the doubt arose, for The Chief-COMMISSIONER said the court | these affidavits could not be termed matters would require the sureties to be possessed of in bankruptcy, as no bankrupt was yet dethe amount fixed in goods and chattels. They clared. He knew that the Masters in Chanwould not be satisfied with parties possessing | cery took affidavits under the Lord Chancellor, property only in money or landed estate. and also in matters in bankruptcy; but with

Two cases of bail, Samuel Richardson and || respect to the present affidavits, they were George Patteson, were then investigated, and in the same situation as the Commissioners. the sureties allowed.

He had spoken to one of the Masters in ChanIn Re SAMUEL RICHARDSCN.

cery on the question, and that party enterThe insolvent had on a former day been di- || tained the same doubts on the clause as himrected to be liberated till his day of hearing | self. There could be no objection to receive on filing bail. On the day on which the bail them; but it was difficult to say what would had been allowed, and before his actually be the effect of them. If the applicant chose leaving prison, but whilst waiting for the order to swear in the affidavit after what he had of the court, a fresh detainer had been lodged, said, it should be put on the file, but what which rendered the order of the court of no could be done hereafter was another thing. effect.

The Solicitor said he would take the chance Mr. Cooke now applied for the order to be of it. amended, and the said detainer to be inserted, Mr. Commissioner MERIVALE then obserred and complained of the hardship which would | -I wish to add, in the event of what I have arise to applicants for liberation on bail, if said appearing before the public, that I am they were rendered liable to fresh incarcera- sincerely sorry these doubts should arise, betion in cases like this, in which it was not in cause I believe the clause, as intended, would

« PreviousContinue »