was conscious of the precise offence with which the truth. Hodges stated that it was said he was now charged, but that, conscious of a in the presence of the prisoner, that the breach of the law, he was desirous to keep soldiers were ready to join them, and it was aloof at least for a limited time. The learned only for them to go down to meet the soldiers. Judge then proceeded to remark upon some If this declaration did take place in the prediscrepancies between Sir Thomas Phillips and sence of the prisoner, it did not appear that it Captain Gray as to their relative positions in had met with any objection or opposition from the rooms, and as to the order given to the him. The great question was whether the jury soldiers to fire, but he observed that they were could place reliance on the statements of the not of a nature to affect the credit of either of witness; and upon that they could not decide those gentlemen. According to all the evidence until they had heard all the circumstances which it appeared that the soldiers never fired a single surrounded him. The evidence of that witness volley, or a single gun until the firing com- was extremely important, as, if true, it tended to menced from the outside; and it appeared that shew what was the real intention of the prithe constables had nothing but their trun- soner in bringing, or assisting to bring together cheons, or staves of office as constables. The such a large number of persons on the previous jury had heard from the witness who was next night, and bringing them down to Newport. called, as well as more distinctly from Granville There was no doubt that if the intention was Somerset, the kindness shewn by the prisoner to take the place, to stop all traffic, and to put at the bar in going to the assistaace of the the town in the possession of a large body of Duke of Beaufort on an occasion of popular men-if that was for the purpose of creating ferment. Matthew Williams and two or three an alteration of the law for any general purpose, other witnesses took up the transaction at a that would amount to treason. This depended different place. Their evidence was, that the upon the degree of credit to be given to this night before this affair took place, the prisoner witness. The learned judge then proceeded was found at a beer shop, where persons were to point out the supposed inconsistency in preparing for the march, under the controul and the evidence of Hodges, as stated by the command of others, every ten persons having counsel for the prisoners; the contradiction a leader. given, or attempted to be given to it by Mary Mr. Frost. Not the prisoner, my Lord-Jones, and the rebutting evidence of Watts on the witness. The prisoner was not at that house. Chief Justice Tindal corrected his former statement. It did not appear that the prisoner was at that house the night before, when the arrangements were going on. It was for the jury to say whether the persons making those arrangements formed a component part of the body who marched next day. The evidence then proceeded-"It was said we were to go to Newport, and stop the coaches, the post, and all traffic." Although the prisoner was not present on that occasion, it was inaterial for the jury to consider whether similar statements put into his mouth by other witnesses corroborated this evidence. The jury would consider how far the theft of which Matthew Williams admitted himself to have been guilty some years ago, tended to weaken the reliance they would otherwise place upon his statements; undoubtedly it was a great breach of the law of morality, but whether it deprived him of all credit in a trial of this nature, it was for the jury to judge. The witness added, that it had been said, "If we do not break the old law we shall not get a new one," but this expression had by no means the same stringency of operation in this case as if it had been uttered by the prisoner at the bar, or in his presence. The next witness was an extremely important one, as he spoke to declarations said to have been made by the prisoner at the bar himself, and which, if made by him, would certainly possess a most serious influence in the case. On the part of the prisoner it was denied that he ever made them; and before the jury gave any weight to the evidence they must satisfy themselves that the witness who deposed to these statements was a witness to the part of the prosecution, and left it to the jury to decide which of the witnesses was entitled to the most credit. George Lloyd, and the other witnesses who followed him, spoke to what took place in the adjoining parish; and from their evidence it would appear that Zephaniah Williams had repeatedly enjoined the people to keep the peace; but it seemed that this was two or three weeks before the outbreak. It appeared also that he directed the witnesses to bring bread and cheese with them to the meeting on the mountains, and that he recommended others to bring arms with them in case any one should interrupt them. It was for the jury to say whether under these circumstances he contemplated the attainment of his objects, whatever they were, by peaceable means. It was at all events very dangerous to put arms into the hands of a large body of men, lest (if occasion should offer) they might use them to attack as well as to defend. Upon this part of the case there was no direct evidence against the prisoner at the bar. It was for the jury to infer, as far as the evidence of corresponding and contrary acts on his part enabled them to infer, whether the prisoner adopted or disclaimed the acts of those who it appeared all through the trausaction were more or less connected with him. With respect to the evidence of Brough, great use was made of it, both on the part of the prisoners and the prosecution, for the purpose of showing the power that Frost had over that large number of men, who were found in the town the next morning; though a body of men under the command of Jones, immediately upon the signification of a wish on the part of Frost, let the witness go. On the part of the prisoner it was used to shew the kindness of the disposition of Mr. Frost, and that he was ready to do a kind action, and thus to lead the jury to doubt that he would be guilty of the enormities which were laid to his charge. Mr. Kelly.—It is also used with reference to the time. on them at Westgate Inn was not to yield themselves prisoners. It was not for her Majesty's troops to yield themselves prisoners; that it was a mistake to suppose so; but that the demand in reality inade was, that the persons in the inn should yield up their prisoners. This was a very proper matter Chief Justice Tindal.-I am much obliged to be laid before the jury, and it was now cou to you. It is also used as a contradiction to ceded on the part of the Crown, that no such Hodges, as to the time the conversation took demand was made as that the troops should. place between him and Mr. Frost. The next surrender themselves prisoners. Another witwitness was John Harford. The learned ness stated that Mr. Frost in public meetings Judge here read his evidence, and proceeded recommended in his harangues always to keep to say that his cross-examination was intended the peace. This was for the consideration of to invalidate the evidence given by him. The the jury. It was for them to consider this first ground was, that he was charged with (when looking to the facts for the prosecution), taking a part in this transaction, and therefore as in nature of evidence as to character, namely, liable to the same objection that is made to all that Mr. Frost was a peaceable character, and witnesses who are partners in guilt with the one not likely to engage others in a crime of men on trial? His answers was, that it was this kind; as a person with a character for true that he was there; but he had no fear, honesty was not likely to commit a theft. because he was forced to he a participator in The question was one of probability. If the the crime, and made his escape as soon as he evidence was so strong as to break that down, could, and therefore did not think that in then they were not to weigh probability against giving that explanation he would be punished. fact. If the scales were even at all, then they Persons were often found in such cases, who, were to give the benefit of his character to the desirous to serve themselves, would rather prisoner. That, said the learned judge, is the state what was not the truth, provided it made whole of the evidence, and it is upon that evia case against the prisoner. Such evidence dence that you are to say whether the prisoner was at all times admissible before a jury; but at the bar has levied war against the Queen in it is for the jury to consider how far their tes- her realm. That there was very great violence timony is corroborated by other persons. This that there was an attack made upon the town witness was also impugned upon another of Newport, and that a conflict was carried on ground-namely, that he did not immediately at the Westgate, is placed beyond all doubt. come forward with this account, but remained It is found that a very large body of men came 12 days in prison before he made the state-into the town at an unusual hour, and that ment. The jury were to consider the circumstances, and consider whether the witness was to be credited or not. The next witness was Wm. Harris, and the learned Solicitor General, looking at the contradictions and improbabilities that encircled his evidence-his making a statement on oath, one day, and his drunkenness, and then his recalling on one occasion what he had said on another-the Solicitor General had withdrawn him from the consideration of the jury. Having read the evidence of several other witnesses, he proceeded to remark upon the testimony of William Jones Philips, who apprehended Frost upon the very evening of the day of the 4th of November. This, too, gentlemen, was put on the part of the prisoner, to show that when his MSS. were searched there was nothing to show that he had carried on a treasonable correspondence with others that there was to be found in his house no plan or design, or draft of proclamation, such as one might be led to suppose would be found with a person carrying on or being engaged in a conspiracy of the extensive nature with which the prisoner stood charged. The jury would give the prisoner the benefit which such an observation entitled him to. This is the case on the part of the prisoner. There was no other witness. The succeeding witnesses, who were not many in number, were called on the part of the prosecution. One of these witnesses, John Williams, was called to show that the demand made they came from different points, are matters Law as to Marriages abroad between English Subjects within the prohibited Degrees. 247 The marriage was an English one, with an English lady during a bona fide English domicile. The House of Lords, sitting on a Scotch appeal, held a Scotch divorce good. to mitigate the severity of Vincent's punish-husband was a Scotchman, domiciled there. inent, or to liberate him altogether. You need not (said the learned Judge) so much trouble yourselves as to see that the prisoner has clearly made that out-because that is not imposed upon him; but it is for you to look at This decision so far overturns Lolly's case the circumstances with all possible candour as to shew that the supposed indissolubility and fairness, and see if anything like such an of an English marriage is not law. Lord intention appears to be probable on the face of Brougham's reasons went directly to question them. For you are not to call on him to the entire decision of that celebrated case. prove his innocence: it lies on the crown to Lord Lyndhurst refused to go this length. He prove conclusively that the crime charged said, however, "if Lolly's case be law, and the against him amounts to high treason. It is decision in the Court of Scotland be also law, your province to determine whether the crown this consequence must follow,—that after dehas done this. You will look to the evidence cree of divorce is pronounced, Sir George before you, and unless you find that, by clear, Warrender will be able to marry again in conclusive, unambiguous, and certain testimony Scotland. He would then have a wife in the crime is proved to amount to high treason, Scotland, and also another wife in England. with all the penal consequences attached to it, Such would be the state of things arising from it will be your duty to acquit the prisoner; the conflicting laws of the two countries. Cirbut if that crime is so clearly and satisfactorily cumstances of a very extraordinary and very proved, you will find him guilty. If un- inconsistent nature would follow. Upon fortunately, such be the case, and you should the decision in Lolly's case I pronounce no be fully satisfied that the evidence well es- opinion. If it be correct, and any inconvetablishes the guilt of the prisoner, then, how-nience should result from the conflict of the ever painful the matter may be to your own law of the two countries, the legislature must feelings, it will be your duty to declare him guilty by your verdict. The case is entirely for your consideration. It is a question in which the Court cannot interfere, and which it leaves to you, quite certain that you will come to that conclusion which the truth and justice of the case requires. apply the remedy." In this case nothing was said on the point, certainly very important to the issue between us and the civilians, whom we consider Mr. Burge as representing, as to the law by which the bona fides and sufficiency of domicile is to be judged. We presume the silence arose from considering it clear it must The jury retired for half an hour, and re-be by the law of the country where the decree turned a verdict of guilty, with a recommendation to the merciful consideration of the Court. Chief Justice Tindal.-Gentlemen, your recommendation shall be reported to the pro. per quarter. ON THE LAW AS TO MARRIAGES was to be pronounced. So we infer from what Lord Lyndhurst said as to the domicile being clear, and that they sat as Scotch judges. We may add the answer of a distinguished American international lawyer, given in 1828, to one of the questions put to him by our commissioner for enquiry into the administration of justice in the West Indies. "The Courts in the United States are in the habit of dissolving marriages contracted in foreign countries; but in some of the states a residence of considerable length is required to constitute a domicile for the purpose of suing for a divorce. Our Courts would, as I conceive, notice and give effect to a divorce obtained abroad, of a marriage duly celebrated in the United States, between our own citizens the same restrictions as respect the concluor others, upon the same principles and with siveness of other foreign sentences." (Concluded from p. 212.) The doctrine of Lolly's case must, however, now be considered very doubtful. It has been followed in Conway and Beazley, just referred to, decided in 1831; but the judge in this case said, that his decision "did not in any measure touch the case of a divorce a vinculo, pronounced in Scotland between parties who, attach to every Englishman, preventing him, So much for the personal law, supposed to though married when domiciled in England, after an English marriage, during his first were at the time of such divorce bona fide do miciled in Scotland." In Olduker and Gold wife's life, marrying again without a divorce by ing, decided 1834, the Scotch judges declared act of parliament. It is clear that there is no their unanimous opinion that a five months' such absolute personal disqualification, and it residence in Scotland was domicile enough would also appear probable that it will be held to dissolve an English marriage. Warrender that the decree of a competent foreign court and Warrender, decided in the House of Lords will be sufficient though obtained in fraudem in 1834,P is a very important case, not only for the principle contained in it, but also for the indication it gives of the altered feeling of the courts with respect to these subjects. The 3 Hag. Ec. Rep. 653. P Burge. 678. 9 We have above remarked that similar consequences would follow if the in fraudem legis doctrine were allowed to prevail against binding marriages abroad. r Mr. Wheaton, since minister at Denmark. -248 Law as to Marriages abroad between English Subjects within the prohibited Degrees. legis. This is perhaps a startling doctrine.Like the evasions to which we have been more particularly adverting, it may be avoided, by the legislature adopting the personal law of France. We only protest against the judges attempting to do that which it seems pretty clear the legislature alone has real power to deal with. the law ought to be rendered certain. Though we have a feeling on the subject, we are not partizaus of either view, and do not enter, it will be seen, into the question whether it should be extended further, or further restricted. All we say is, make the law certain, and do not treat this subject as if it was merely one of pounds, shillings, and pence, the rules whereof are to be elaborated by a long series of decisions on a long series of cases as they may arise. We say, do not treat it so, because each case, on this subject, as every lawyer, particularly every solicitor, must know, carries as an incident, a far greater degree of misery of mind to the parties than ever attends any other species of Enough, any way, has been said to show that it is imperative on any legislature, pretending to regard the consistency, and to require the observance of its laws, not to allow the Marriage Law to remain in the state in which our English Marriage Law now is. To allow it to remain so, is to produce individual suffering without public benefit; and, without the pre-litigation which comes under his observation. tence of compensation, to solicit for it dislike, Either we should openly adopt the personal evasion and ridicule. The unhappiness caused principle of the French law, or discard it in the higher ranks by the uncertainties of this openly. The present state of uncertainty is a law, is, of course, individual in its character disgrace to our code. It is now five years since and unknown to the public. The disquietude the last act was passed. On the debate upon as to their position in society, and as to the it, it was stated, if we remember rightly, by legitimacy of their children, is sure to be kept Sir W. Follett in particular, that some law, within the parties' own breasts. Like any blot laying down bounds as to affinity, must be in the family history, it cannot be alluded to passed; but that in the meantime the law must before them, and least of all, can they be par- be made clear and strong. Sir W. Follett, if ties to urge upon the legislature the amend- we recollect, expressed his readiness to assist ment of the law. The same feelings, in a in framing such a law. Five years, however, degree, operate upon those in the ranks below have not yet produced it; and in the meanthem. But, going lower, the cruelty inflicted time, instead of the law being made clearer in such cases as Lolly's, seems to us barbarism. and stronger, it is more directly and positively And for what end? Merely to vindicate laws, evaded, and its operation has been made more which make in Scotland marriage good, the chil- disputable than before. All we want is that dren legitimate; and in England the husband some such law as proposed should pass, and a felon, children bastards, and the wife an the whole be made efficient. The petitioning outcast and harlot, unless indeed she survive, for it, and urging it on, inust rest with the soliand then which give her his personal estate by citors. Some of the local legal associations are, the mouth of the same Judge-half lawyer, we understand, thinking to take the matter up. half ecclesiastic,-who, a week before, would If they do so successfully, they will accomplish have annulled the marriage, and for the good of an object feasible only to our profession, and her soul, sentenced her to do a white-sheet pe-add another benefit to the benefits they and nance in the face of the church. The difficulty of approaching the subject is, however, great. There is a rottenness and an adventitiousness in all our notions about these matters, which make it difficult, even for lawyers, to move in them. Every one is supposed to be actuated by some personal motive. Rumors, false no doubt, of bribes and inducements applied even to senators are spread about. All power of improvement depends mainly on the higher (or legislative) classes and on the legal profession. Our profession is naturally supine. Cases, when they happen, pass by and are lost sight of in the incongruous medley of subjects which in succession come before us. Moreover, we are not fond of legislative change. Not to mention less worthy reasons, every change engenders trouble for us. Among the higher classes, it must be owned, too, that the tone of feeling as to marriage and the marriage contract is not altogether what it should be. There is therefore a suspicion attaching to the subject which makes the most correct-minded man fear to touch it. We have already mentioned the circumstances which led our attention to it. In all the cases we there alluded to, we believe a foreign marriage has taken place; and from this we are forcibly brought to the conclusion that our metropolitan association have already conferred, in the way of procuring the law to be made more certain and simple. A bill is, we understand, likely to be brought in next session, with reference to marriages abroad at consulates, not within the act as to foreign marriages by the English ritual; it will be a good opportunity for calling attention to the subject. We only trust it will not be lost. P. S. Since writing this article we have referred to Hansard, see vol. 28, p. 283; and vol. 30, pp. 729 and 948. Sir W. Follett, we see 24th August 1835, stated that he considered "marriages by affinity ought to be allowed beyond the second degree of affinity, and that a man ought to be allowed to marry the niece of a deceased wife." It appears, too, from Mr. Poulton's speech on 20th August, that Doctor Lushington promised "that in the next session, a bill should be introduced for making certain marrriages in future good and valid; for the clause in question (that in Lord Lyndhurst's Act) distinctly and finally condemned to all intents and purposes, all such marriages as absolutely null and void." Dr. Lushington bas never yet redeemed this promise, but is waiting, we suppose, as he said on the 24th August Grievances of the Profession. 1835,"till they had time to consider it in all its bearings on society." A good object, doubtless, but one, it would seein, somewhat lustral in its requirement of time. Since the conclusion of this article was put in type, we have received the following letter: Sir, 249 compelling the injured parties (the real prosecutors) to enter into the usual recognizances to prosecute and give evidence, bind over a person employed by the corporation, and by that body denominated "public prosecutor," who instructs his own attorney, such attorney being according to arrangement, the " prosecuting clerk." "I have read with great interest your obser This method of conducting business at the vations on the Law as to Marriages abroad borough sessions has given rise to much disbetween English subjects, within the prosatisfaction, the attorneys complaining that hibited degrees. There is one branch of the they are unfairly and unjustly robbed of their investigation peculiarly interesting to a large clients, and the latter that they cannot have class of her Majesty's subjects,-the British the assistance of their professional advisers Jews; and in the progress of your further cb- and in consequence the matter was argued by servations, I respectfully suggest that the in-counsel at two distinct sessions, when conquiry as to whether the 5 & 6 W. 4, c. 4, is applicable to British Jews, so as to interfere with and overrule their own marriage laws, is well entitled to consideration. AN OLD SUBSCRIBER." Our impression that a marriage between English Jews within the prohibited degrees of affinity would be held good notwithstanding the act of 6 W. 4, if not voidable before it, was stated in the second part of this article. The question is, how Jews' marriages of this sort stood before that act, i. e. if 25 Hen. 8, e. 22, s. 4, applies to them. The terms of sec. 4, "that no persons, subjects or resiants of this realm, or in any of your dominions, shall from henceforth marry within the said degrees," are wide enough certainly to raise a strong argument that they were voidable in the Ecclesiastical Court previous to the late If they were voidable then, they are elearly, if solemnized in England, now abso lutely void; and if solemnized where the ler loci would allow them, their validity would come within the question argued in this article. act. GRIEVANCES OF THE PROFESSION. CORPORATION PROSECUTIONS. trary opinions were come to. The point was first brought before the Court at the borough sessions, about two months ago, on the trial of a servant for robbing his master to a considerable amount, in which case the latter ignorant of the new-fashioned practice) apPied in the usual way to his attorney, a gentended the examinations before the committleman of many years' standing, who at ting magistrates, and afterwards preferred a bill which was found true by the grand jury. clerk," and on his indictment the prisoner was A bill was also preferred by the "prosecuting arraigned and pleaded, or, was tried and found guilty. The attorney applied, through his counsel, for the costs, and thus the point was raised and argued, and the recorder stated it public prosecutor" as his opinion, that the " having been bound over, was the party entitled, and refused the attorney's application. In consequence of a matter now depending in the Queen's Bench, the borough prisoners are for the present committed to the county sessions for trial by such of the borough magistrates as have commissions for the county, and who bind over the "public prosecutor" as usual. At the recent county sessions the question as to costs was again argued, several attorneys having been retained by their respective clients, To the Editor of the Legal Observer. and the chairman-a barrister of consideraSir, ble experience stated that it had always I AM desirous of addressing the profession on been the practice to allow the real prosecutor a subject of considerable importance, and hope the costs, and he would not alter the rule. you will allow your valuable publication to be This being the position in which matters stand the medium of communication. About a year at present, perhaps some of your able corresago the corporation of Manchester applied to pondents may deem the subject worth their Government, under the provisions of the Gene attention. It appears to me that the corporaral Municipal Act, for leave to hold a court of tion are acting improperly and unjustly in proquarter sessions of the peace within the ceeding in the manner alluded to, and I am borough, and in consequence a graut was also much mistaken if the borough magistrates, shortly afterwards made, under which the cor- in their zeal to assist the corporate body, do poration have appointed different officers, one not exceed their scope of authority in bind"" when the of whom (a young gentleman recently admitted ing over the "public prosecutor an attorney) has had allotted to him the situa-real prosecutor appears before them. If the tion of "prosecuting clerk." The title of plan adopted at Manchester should become an "prosecuting clerk "is something new in the established precedent, then every magistrate, history of the profession, but the very name is by engaging a nominal prosecutor, will be able sufficient to shew your readers that the duty of to patronise any professional relation or fathe person who holds that situation, is to con- vourite, and thus make the administration of duct all prosecutions which may take place at justice a system of traffic and speculation. the sessions; and in order to secure to him all The corporation of Manchester, through their the cases, the borough magistrates, instead of servants, the "public prosecutor" and "pro T |
