ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Judges. I have not yet had the opinion of the Barons of the Ex chequer; but the opinion of the Judges of the Courts of King's Bench and Common Pleas was laid before me yesterday, and that opinion is," That no solicitor is authorized so to act." "The same is the opinion of the Master of the Rolls, and of the Vice Chancellor likewise."

the 24th December, when he was liberated from prison, and put under a guard in his own house; from whence he was sent to Stilton-Barracks, remaining in confinement there till the 12th of March. The action for this as sault and false imprisonment was commenced on the 27th June following. Such was the plaintiff's case; and on behalf of the defendant it was urged at the trial, that the school had been established because the serjeants were incompetent to discharge the duties assigned them by the articles of war; that when another serjeant, named John Hooper, was admonished for not attending it, the plaintiff Warden addressed him in these

Baillie v. Warden.-This was a writ of error from the Common Pleas, in an action of trespass and false imprisonment. In the Court below the names of the parties were reversed, Warden v. Baillie, and the facts that appeared were shortly these :-The late Mr. Whitbread, as LieutenantColonel of the Bedfordshire Lo-words-"D- your eyes Jack, cal Militia, issued an order that the serjeants and other non-commissioned officers, whose duty it was to make certain official returns, in order to render them more competent to their duty, should attend a school, at the head of which was placed the Adjutant. Warden was a serjeant in the Bedfordshire Local Militia, and with others was directed to attend this school, which he neglected. For this disobedience he was reprimanded by Mr. Whitbread, on the 1st December, but repeating it, he was ordered to attend parade on the 2nd December, where the Adjutant, Baillic (the defendant in the Court below), put him under military arrest. From thence he was conveyed, by order of the Lieute nant-colonel, by a military escort to the public gaol, and delivered into the hands of the gaoler, where he remained until

don't give up-don't go to school. I will soldier it with any body, but I will not go to school. I will not be made a boy of: I hope they will settle it before post, that I may write to my father, who will see me righted though it cost 2001." Upon which a serjeant, named Smith, observed, that such language was enough to excite a mutiny. It was also proved for the Adjutant Baillie (the defendant below) that he acted under orders of Lieutenant-colonel Whitbread, who, in consequence of the conduct of Warden, and the language he had used, wrote to General Pigott, commanding the district, through whom Warden was brought to a General Court-Martial at Norman-cross, and being acquitted, was discharged on the 12th of March, after the sentence had been confirmed.

Upon these facts a verdict was

found for the plaintiff, in the Common Pleas, and a bill of exceptions was tendered to the learned judge, Sir James Mansfield, by the Counsel for the defendants, in which three objections were stated,-1st, That the Judge at the trial had declared and delivered his opinion to the Jury that the several matters proved on the part of the defendant, were not sufficient to bar the plaintiff of his action against the defendant. 2. That the verdict ought not to have been for the plaintiff. 3. That it ought to have been in favour of defendant. The bill of exceptions also contained a detail of all the particulars of the facts above stated. The question afterwards came before the Court of King's Bench for argument, and stood over for decision.

Lord Ellenborough this day delivered the judgment of the Court, after reading the bill of exceptions. The first question that naturally arose from the statement was, whether the original arrest of Warden by Baillie, the Adjutant, on the 2nd December, was or was not legal; but as the act of parliament required that the action should be commenced within six months after the cause of action occurred, and as the action in this case was not brought until the 27th June, it became material to consider whether any part of the confinement fell within that period of six months; for though the limitation in the statute was not specially pleaded, yet, under the general issue, the defendant might take advantage of it. The arrest under the authority of

Baillie took place on the 2nd of December, but it ceased on the 4th, or at furthest on the 24th of December; and the action not being commenced till the 27th of June, that imprisonment was clearly not within the six months required by the statute, and Baillie would not be liable unless he were responsible for the subsequent confinement when he acted under the orders of Lieutenantcolonel Whitbread. The question was, therefore, reduced to this point, whether Lieutenantcolonel Whitbread was warranted by law in ordering the imprisonment of Warden, first in his own house, and afterwards preparatory to the Court-martial? Certain expressions had been proved against Warden, and it was important to see whether they came under the description given in the 24th section of the articles of war, as "disorderly conduct, to the prejudice of good order and military discipline." If they did (and no doubt could be entertained upon the subject), Warden might be brought before a general Courtmartial. This proceeding would not be less legal, even supposing that the original order of the Lieutenant-colonel for the attendance of the serjeants at the school was not valid; for an erroneous command would not justify disobedience or the employment of inflammatory language, to the subversion of military discipline. The only remaining question then whether it was lawful for the Lieutenant-colonel to order the arrest of Warden, that he might be forthcoming at the Court-martial. This power was given by

the 22nd article of war, "in case of the commission of any crime deserving punishment;" and the Court was therefore of opinion, that the alleged trespasses were covered up to the 24th of December, by the limitation in the Local Militia Act, and that all the subsequently alleged trespasses under the orders of Lieutenantcolonel Whitbread, were justifiable in respect of that officer, and consequently in respect of the defendant Baillie, as acting under the orders of his superior officer. The judgment was consequently in favour of the plaintiff in error.

Circuit Court, Inverness, Sept. 22.-John Lamont, Roman Catholic Priest, residing at Aberchalder, was brought to the bar. The indictment against him was founded on the common law, and on the Act of the Parliament of Scotland, 34th of first Session of Charles II. (1661, chap. 34.) intituled, "An Act against clandestine and unlawful Marriages," whereby it is provided, that "whatsoever person or persons shall hereafter marry, or procure themselves to be married in a clandestine and inorderly way, or by Jesuits, Priests, or any other not authorized by this Kirk,' shall suffer the penalties therein mentioned;" and that the celebrator of such marriages be banished the kingdom, never to return therein under pain of death." The indictment charged the prisoner, with having celebrated a clandestine and irregular marriage, between John M'Railt, a Protestant, and Isabella Macdonald, a Roman Catholic, or

Papist, without any certificate produced or required by him, that the bans of marriage between the said parties had been proclaimed, as required by law, on three different Sundays," in the church of the parish wherein they resided, "and without any due proclamation of the bans of marriage having taken place."

Mr. Lamont having pleaded not guilty, the Lord Justice Clerk inquired if there was any objec tion to the relevancy? Whereupon Mr. Grant, of Rothiemurchus, as counsel for the prisoner, stated, that there was no objection to the relevancy, and that the panel rested his defence on the general plea of not guilty.

The Lord Justice Clerk, however, deemed it his duty to make a few remarks on the statutory crime charged. His Lordship mentioned, that bis attention was for the first time particularly called to a consideration of the statute, when on circuit at Jedburgh, in April 1812. He then bestowed his most careful attention on the subject, and thought it his duty to pronounce sentence, in terms of the act, on two persons then tried. They appeared, however, to have assumed the character of clergymen, which did not belong to them. Another case occurred before his Lordship and Lord Hermand, at Aberdeen, in September 1812, against one of the Baillies of Inverary. Special circumstances occurred in that case, which rendered it unnecessary to give any general judgment on the point of law.

These cases were not exactly similar to the present; they were in various respects dif

ferent; but on duly weighing all authorities, he thought himself bound to give effect to the statute, and had no doubt of the relevancy of the indictment against Mr. Lamont. In the course of his observations, his Lordship said nothing on the expediency or policy of the law, nor of the present prosecution.

The usual interlocutor of relevancy was then pronounced, and a jury sworn.

The Advocate Depute then stated, that the present indictment contained two specific and distinct charges; 1st, The celebrating of marriage by a person not entitled to do so, the panel being a Popish Priest: and 2nd, The celebration of marriage without the due proclamation of bans. Both these charges he thought he could have been able to establish, but on account of the necessary absence of a material witness, whom he expected to be able to adduce, he was not prepared to prove that the bans were not proclaimed, and he, therefore, abandoned that part of the charge. He expected, however, to be able to establish the other charges contained in the indictment.

Mr. Grant then mentioned, that he had not stated, and did not mean to state, any objection to the relevancy. But from the new light which had broke forth from the statement of the prosecutor, he felt himself called on to state the reasons why he thought this prosecution could not proceed. For this extraordinary prosecution itself, he could not refrain from saying, as a lawyer and a gentleman, that he considered it the most illiberal, the

[ocr errors]

most unwise, and the most repugnant to all the feelings which dignify human nature that had ever fallen under his observation. The learned gentleman then con❤ tended, that from what had now been stated by the Advocate Depute, the trial could not proceed. He called the attention of the Court to the crimes stated in the major proposition, and then adverted to the particular offences with which the prisoner was charged in the minor; and as in each case it was stated, not merely that a marriage by a person not authorised, but a clandestine marriage, without proclamation of bans, was celebrated by this person, blending in both cases the incapacity of the celebrator with the omission of the proclamation, the learned gentleman contended, that unless the prosecutor would undertake to prove that the bans were not proclaimed, he must relinquish the trial. If, however, their lordships should be of a different opinion, it must of course be in the view of the Court and jury, that the prisoner was entitled to assume, that the bans had been proclaimed. He trusted, however, that the trial would be stopped.

The Lord Justice Clerk observed, that the trial could not stop, but the arguments of the prisoner's counsel were worthy of the consideration of the jury.

A number of witnesses were then examined by the Advocate Depute, and several as to the character of the prisoner, who all bore testimony to its being most respectable.

The jury were then addressed by the Advocate Depute, and

His

afterwards by Mr. Grant, on behalf of the prisoner. Lord Succoth then proceeded to sum up the evidence. lordship adverted fully to the several points of law connected with the statute founded on, and the case at issue. We understood him upon the whole to be of opinion-1st, that the statute libelled on was in full force; 2ndly, that a marriage celebrated by a Popish priest, with or without the proclamation of bans, between what parties soever, even when both are Catholics, was irregular and inorderly and that the celebrator was liable to the penalties of the statute; and, thirdly, that the Panel had celebrated an irregular and inorderly marriage.

The jury having for some time retired, returned a verdict, finding by a plurality of voices the libel not proved, whereupon the Panel was assoilzied simpliciter, and dismissed from the bar. The result of this trial appeared to afford much satisfaction to the crowded audience that attended. -(Caledonian Mercury.)

Court of King's Bench, Dublin Nov. 13.-Doctor Troy and the Dublin Grand Jury.-This day, after twelve o'clock, the crier was directed by the Court to call the Rev. John Duffy, who had been served with an order to attend the Court.

Mr. Duffy appeared, and was directed to come as near as possible to the bench. Chief Justice. How long, Sir, since you were appointed Catholic Chaplain to Newgate?

Rev. Mr. Duffy. I really do not know, my Lord, but the

Grand Jury have appointed me for life, after a week's deliberation on my arguments, and

Chief Justice.-Have you discharged the duties of a Chaplain since your appointment by the Grand Jury?

Mr. Duffy.-My Lord, I would have done it, if my Prelate bad not prevented me.

Chief Justice. Was any violence offered to you by any person in the gaol, which could prevent your attendance?

Mr. Duffy.-Certainly not. Chief Justice.-Then, Sir, you have not discharged the duty?

Mr. Duffy. My Lord, spiritual obedience is a first principle of the Catholic church, and I might as well attempt to destroy the entire Christian church, as to subvert any one of the principles.

Chief Justice.-I merely wished to ascertain the fact, whether or not you discharged the duties of Roman Catholic Chaplain to the gaol of Newgate, and I find you have not. Our conduct is di rected by an Act of Parliament, which we are bound to follow without either abating or exceeding its directions. It was our province to recommend, if we thought proper, to the Grand Jury to appoint a Roman Catholic Chaplain to Newgate: we had no power to particularise any individual, and God forbid we ever should exceed our powers. The Grand Jury accordingly appointed this gentleman; but owing to some interference he has not discharged the duties of the station, and therefore must be removed by this Court, to which the Legis lature has entrusted the right of inquiry into the transaction.

« ÀÌÀü°è¼Ó »