Rudyard's Case 2 Str. 1168 6 A. & E. 778 - 603 3 M. & W. 120 - 613 7 M. & W. 48 . 161 5 M. & S. 228 60 85 3 A. & E. 99 Russell v. East Anglian Railway Com-3 Macn. & G. 125 pany Sutton Harbour Improvement Com-21 L. J. N. S. Chancery, 73 - 197 - 511 - 700 4 Q. B. 182 Yates v. Aston York and North Midland Railway 1 E. § B. 858 Company v. The Queen Yearbook - 174 - 876 49 134. 685 Pasch. 4 H. 6. fol. 19. B. pl. 5- ARGUED AND DETERMINED IN THE QUEEN'S BENCH, IN MICHAELMAS TERM, XVI. VICTORIA. The Judges who usually sat in Banc in this Term were: Lord CAMPBELL C. J. COLERIDGE J. WIGHTMAN J. In the matter of ETIENNE BARRONET and In the matter of EMANUEL BARTHELEMY and PHILIPPE EUGENE MORNEY. In the matter of ETIENNE BARRONET and EDMOND ALLAIN. Wednesday, MONTAGUE CHAMBERS moved for a writ of The Court has habeas corpus to bring up the bodies of Etienne admit accused a discretion to persons to bail in all cases; but, in exercising that discretion, the nature of the charge, the evidence by which it is supported, and the sentence which by law may be passed in the event of a conviction, are in general the most important ingredients for the guidance of the Court; and, where these are weighty, the Court will not interfere. Four foreigners were committed, on the coroner's inquest and by the warrant of justices, to take their trial for wilful murder committed in a duel. Two of them, when before the committing magistrates, avowed that they acted as seconds VOL. I. B E. & B. 1852. Case. to the de ceased. An application was made on their behalf to this them to bail, on affidavits, by these prisoners, that they had acted only as seconds, Barronet and Edmond Allain, and for a certiorari to bring BARRONET'S up the depositions on which they were committed, with a view to move this Court to admit them to bail. He moved on affidavits, the effect of which he stated to be that the prisoners were committed on the coroner's inquest, and also by a magistrate's warrant, to take their Court to admit trial at the Surrey Assizes for the wilful murder of Frederic Courmet; and that, from the depositions before the coroner and the magistrates, it appeared that Courmet was killed in a duel by a person whose name did not appear. That the prisoners, when before the committing magistrates, avowed that they had acted as seconds to the deceased, and maintained that in doing so they had acted as men of honour. M. Chambers also moved on affidavits of the prisoners, stating that they were Frenchmen, who had, for political reasons, taken refuge in this country, were ignorant of the law of this country, not punishable and believed that acting as seconds in a fair duel was not punishable here, as, according to their affidavits, it was not punishable in France; and that this was a fair duel. The prisoners also, as the learned to bail, to abide counsel stated, now pledged themselves by their affidavits that, if admitted to bail, they would appear to abide their trial and it was suggested that, being political refugees, they could not safely fly from this country, even if they wished to do so. act as they did, and that acting as seconds was in their own country; and they pledged themselves, in the event of being admitted their trial. Held that, assuming these facts to be accurate, they afforded no ground for the Court inter. fering to bail persons proved by their own confession to M. Chambers, in support of his application. An applicacapital offence. tion was made during the vacation to Crompton J., to admit be guilty of a An appli cation was afterwards made in favour of the two other prisoners, who had not made any such confession. This application was made on an affidavit containing a copy of the depositions before the coroner's inquest, and the committing magistrates, the prisoners making no affidavit. The Court took time to examine the depositions; and, being satisfied that the evidence was sufficient to authorize sending the prisoners to trial, refused to interfere. 1852. Case. these prisoners to bail. The proper materials were not before the learned Judge; and consequently he did not BARRONET'S express any opinion as to the propriety of granting the application. He said however that, if the application were renewed before him, he should not act without having an opportunity of consulting the other Judges. The application is therefore now made to the full Court in the first instance. The depositions bear out the statement of the prisoners that the duel was fair. [Lord Campbell C. J. Do you mean to contend that killing in what is called a fair duel is not wilful murder by the law of England?] The ground on which accused persons are detained in prison is not to punish them on account of their guilt, but to secure their abiding their trial; Regina v. Scaife (a). Now, though it cannot be disputed that killing in a duel is murder, it never is punished as such; and it is morally certain that the sentence will not be enforced for the first time against two foreigners ignorant of English law. There can therefore be no reason to suppose that the prisoners will not face their trial, although the punishment is legally capital. This Court in former times would not have hesitated to admit to bail the late Duke of York, or other eminent persons who notoriously fought duels. They were not even committed; and therefore they could not be bailed. The Court can bail, though the charge be murder, and the coroner's jury have returned a verdict against the prisoners. In Ireland, very recently, the soldiers concerned in the Six Miles Bridge affray, though committed for wilful murder on a coroner's inquisition, were bailed. In 1782, it appears, by the Annual Register for that year, (a) 9 Dowl. Pr. C. 553. |