§ The order of the day for going into a committee on the Charge against Mr. Kenrick was read. On the question, "That Mr. Speaker do now leave the chair,"
§ The Speakersaid, that before he quitted the Chair, it was fit that the House should thoroughly understand the course to be pursued in the committee. If the committee were left without any instruction, it would be its duty not only to inquire into the charge by evidence, but to come to some resolution upon it, afterwards to be reported to the House; if, on the other hand, the committee, by a special instruction, were confined only to the taking of evidence, that evidence would be reported without the declaration of any opinion. Thus the result in the two cases would be different, and the course of proceeding would also materially vary. It would be observed also, that no speech from counsel could be heard, if the committee were only to take evidence, though the learned gentlemen might cross-examine the witnesses. If there were no restriction on the committee, and the whole subject were left open to its deliberation, then, of course, it would be its duty to listen to counsel on behalf of the party accused.
§ Mr. Denmanwished the committee to inquire into the whole matter, and that Mr. Kenrick's counsel should have an opportunity of addressing the committee, when the evidence was gone through. He should think it his duty, after the inquiry was over, to propose certain resolutions.
Mr. Secretary Peelthought the better way would be to confine the committee to receiving the evidence. The House was aware that a judge was independent of the Crown, and could be removed only on an address from parliament. It was possible that the House might, in this instance, have to discharge that important duty. He merely supposed the possibility of such a contingency. Was it not, then, better that the House should have all the facts laid before it, and, on a full revision of the case, adopt such measures as were best calculated to answer the ends of justice?
§ Mr. Denmanthought that justice would be more likely to be done, while the proceeding would be infinitely more satisfactory to all parties, if a committee of the whole House inquired into the case without restriction. Any address to the Crown to remove a judge, must of course be the act of the House; but he did not see why a committee should not so pursue the inquiry, as to arrive at a termination which warranted it in reporting its opinion. First, the proof of the charge would be given, and upon that proof the committee might or might not report the charge established. He did not, in fact, see how the whole inquiry could be disposed of otherwise, and could find no sufficient reason, why the reported opinion of the committee, as far as it was of value, should not have its weight with the whole House.
§ The Speakeragain pressed upon the House the necessity of settling the course of proceeding. He had omitted to state, that if the committee went through the whole of the testimony, and registered its opinion in resolutions, those resolutions, as a matter of course, would be reported, but unaccompanied by the evidence. If, on the other hand, the committee were confined to the taking of evidence, that evidence would form the report, and the House might arrive at its own decision. It was true, that evidence could be laid upon the table upon the motion of any hon. member, but such a proceeding always implied a doubt as to 502 the propriety of the determination of the committee.
§ Mr. Peelthought, that in so grave a case, it would be well for the House to reserve its power till after the committee. Suppose the committee should be of opinion, that though the individual had not acted quite correct, his conduct had not been so censurable as to call for his removal; would it not be desirable to avoid as much as possible casting a stigma upon a public functionary so placed? He thought, upon the whole, the better course would be for the committee to take the evidence, that being the sole duty devolving upon it, and then report it, the House reserving to itself any ulterior consideration. Of the case, he knew nothing, and was therefore free from prepossession and prejudice either way.
Mr. Abercrombysaw no substantial difference between the two courses. The result, in either case, would, in his opinion, be the same; nor did he think that the accused party would be aggrieved by adopting the course suggested by his learned friend. Any case having reference to the administration of justice could not be inquired into with too much exactness. It ought to be thoroughly sifted; for if the opinions which had been broached were to be acted upon, namely, that the House was not authorised to inquire into the conduct of a judge, it would be deprived of one of its most wholesome and important functions.
§ Mr. Denmansaid, that another reason for requiring an opinion from the committee was, that in that case counsel might be heard before it in the same manner as his learned friend, Mr. Gurney, had been permitted to address the committee of last session.
§ The Speakersaid, that in either case counsel might be heard: they could be heard before the committee, if the committee were to report their opinion, or before the House, if the House reserved to itself the consideration of the evidence.
The Hon. William Lambsaid, he could not discover in what way this particular charge was connected with Mr. Kenrick's public character, or judicial duties. In the former inquiry, there was at least an allegation that Mr. Kenrick, as a magistrate, had been guilty of a denial of justice; a public wrong was thus done, and a private injury sustained. When, however, the House was now told, that it was its solemn duty to watch over 503 the conduct of judges, he could not help adverting to the point, how far the judicial conduct of the party accused was involved in this question. He had never held so absurd a doctrine, as that the official acts of judges ought not to be investigated by the House; but he begged leave to state, that he should be sorry to see the censorial power of prying into the private lives and domestic affairs of judges, vested in any body of men, and of all bodies of men, he should be most sorry to see it exercised by the House of Commons, where the power was so likely to be abused, and made the instrument of the most iniquitous tyranny. He had no connection with, and felt no prejudice in favour of Mr. Kenrick. He was only anxious to avoid the establishment of so dangerous a precedent—a precedent which might, at some future period, be applied to the ruin of an innocent, but an unpopular and obnoxious individual. He did not feel inclined to resist the motion, that the Speaker leave the chair; but he thought it would be much wiser if the House, in this stage, dropt the proceeding altogether. He did not see that the party supposed to have sustained the wrong, would thus be materially injured; and it seemed to him, that one part of the charge, namely, that which related to the compromise, was a matter of daily occurrence. Juries were frequently desired to find parties not guilty, when the evidence was strong against them, because some arrangement had been made; and he much doubted whether his learned friend himself had not been, in the course of his practice, a party to them. If the House were now to abandon the charge, it would require no explanation; because every man of discrimination and understanding would always see on the face of the accusation ample and manifest reasons for relinquishing the proceeding [hear, hear!]. He had not intended to have offered an amendment, but finding himself supported in his view of the case, he should move, "That this House will not proceed further in the matter of the said Charge,"
Colonel Woodseconded the amendment. AH he knew of the case had been gathered from the votes. He was quite at a loss as to the capacity in which Mr. Kenrick was charged. In the accusation he was spoken of, indeed, as a magistrate and a Welch judge. But, pf what had he been guilty in those characters? 504 The House was not precluded from such inquiries, but to enter upon them lightly was to open a wide and dangerous door. The best and safest course would be to proceed no further.
Mr. Secretary Peelwished to state the reason why he should support the original motion. If the case were entirely a new one, and now brought forward for the first time, he should, as he had said on a former night, feel very much disposed to concur in opinion with his hon. friend, that the proceeding was inexpedient. But, he could not come to that conclusion now. They had permitted the charge to lie on their table. They had so far committed themselves for inquiry; and the learned gentleman had consented to postpone that inquiry, at his suggestion, from the last session, without the least hint given to him, that there was any intention to mar his proceeding in a later stage. In candour, therefore, he could not now interpose an obstacle, however impressed he might be with the injurious tendency of the precedent. He did not, however, see that this was exactly a private or domestic transaction, with which it was clearly beyond their province to interfere. No doubt the learned gentleman meant to impute malice to Mr. Kenrick in Franks case, and in the discharge of his public duty. Beset as he felt the proceeding was with dangers and difficulties, still he could not refuse his assent, under the circumstances in which he was placed, to the learned gentleman's motion.
§ Mr. Scarlettfelt that the present charge was only part of the proceeding of last session. From professional connexion with the parties, he had, from the first, been unwilling to say one word upon the subject; and he should have been deeply impressed with what had fallen from the hon. member for Hertford, if the present accusation had stood alone. One part of it was for a malicious prosecution, and the other for a libel; and for both, the ordinary tribunals of the country afforded sufficient remedies. Franks might bring his action for a malicious prosecution, if the prosecution were malicious; or he might proceed for damages for a libel, if the publication complained of were libellous. He agreed fully with the hon. member for Hertford as to the nature of the charge; he had never, indeed, read it until that moment, but he found that Mr. Kenrick was not accused in it, either as a magistrate or as a judge. He could easily 505 foresee that the House might be involved in some difficulty by entertaining it. Suppose the evidence having been gone through, the House should find the accusation true, and Franks, encouraged by the resolution, should bring his action; the jury might find a verdict for the defendant, and thus the decision of the House and of a court of justice would be in direct opposition. He did not mean, that the decision of a jury would be conclusive against the House, or prove that the House had been wrong in its hasty resolution; but he pointed out the manner in which the decisions might clash, in order to show the inconvenience that might result from entering upon the question at all.
Mr. S. Bournesaid, that as far as he understood the charge, it did not at all imply malice. It alleged that Mr. Kenrick had preferred an accusation against Franks without sufficient proof; yet it went on to state, that the proof was so sufficient as to induce a magistrate to commit, and a grand jury to find a true bill. Thus, then, it was evident, that the only tangible accusation against Mr. Kenrick was for publishing a libel; but he had not published it, either in his character of a magistrate or a judge. If, indeed, the House had already committed itself on the subject, he should not feel himself at liberty to vote against proceeding further with the inquiry; but it seemed to him, that it was only to investigate the moral character of an individual, and that the precedent about to be established was full of danger.
§ Mr. Denmanexpressed much surprise at the course which the discussion had taken. It could not be forgotten, that the charge had been placed upon the Journals in the last session; that long previous notice had been given of it; that papers had been laid upon the table; and that the grounds laid for the motion were quite unconnected with the private conduct of Mr. Kenrick. That gentleman had thought proper to apply for a criminal information against a newspaper for some comments upon his magisterial conduct, and he had put in several affidavits, in one of which was this gross libel upon Franks. Was this a private proceeding, or were the materials of accusation taken from an opponent? No; they were publicly and voluntarily furnished in a court of justice by Mr. Kenrick himself. They were in consequence, repeated in thousands of news- 506 papers throughout the country. To say of such a proceeding, that it was an inquisition into a man's private and domestic life, was very much like a perversion of fact. He denied that the transaction had any thing in it of a private character; it was, on the contrary, a most gross act of public oppression, and a great perversion of justice. To say that such things were frequently done by professional men in compromises for their clients was incorrect. For any barrister to have acted so, would have been most disgraceful; and he could assure his hon. friend, that he had never, in his professional course, tolerated such a practice. He was also quite surprised at what had fallen from his hon. and learned friend (Mr. Scarlett), who had warned them against proceeding, because, forsooth, it was possible they might decide one way, and a jury afterwards another. If that argument were valid, there would be an end altogether to parliamentary control; for, in almost every case in which their jurisdiction could be called for, the parties might possibly have a legal remedy elsewhere. He repeated, that he impugned Mr. Kenrick upon his public act—upon that affidavit, the libellous contents of which proclaimed a calumny, to the serious injury of an individual who had already been oppressed for a supposed act of felony. He admitted, that he was bound to show a malicious motive; for without that the libel might be no crime. There were libels in a legal sense, he knew, that brought down punishment upon the writers, although, in a moral sense, they entitled them to the highest praise. But, what mitigation was there in this case I Here was a man who first prosecuted his neighbour as a felon, and, then failing in the attempt, afterwards endeavoured to run him down by a libel, stating false facts to his prejudice. Ought such a person to be permitted to continue in the administration of justice? Mr. Kenrick had thought proper to charge four facts against this poor and unhappy man, every one of which he undertook distinctly to prove false and calumnious. Was the House to look on, and see such acts perpetrated by a public functionary, who was bound to administer strict justice? If they were prepared to sit merely for the gratification of their own individual pursuits and the promotion of their own interests, they might do so, and risk their character with the public. He would ask them, whether there 507 could be any duty more important than that of keeping the judgment-seat clear from stain, of preventing its occupancy by those who could only sit there to disgrace it? If they were prepared to admit this, and make such conduct a stepping-stone to promotion, or a protection for guilt, then, in God's name, let them avow that determination in the face of the public, and dispose of his motion as they pleased. So long, however, as he had a seat in the House, he was determined to do his duty. The argument of some hon. members would go this length—that all propriety, all moderation, all decorum, might be banished from the bench, without requiring the interference of that House. Would this indifference on the part of the House render the office of judge more respectable in the estimation of the public? He contended that, by the act of Settlement, it was the duty of the House to examine the conduct of judges, if notoriously improper, even on matters which affected their private character. If open scandal arose from the private conduct of a judge, which would be prejudicial to the administration of justice in his person, the House was bound to inquire into the affair. The conduct of the learned person, the subject of the present discussion, had been made public, by his own voluntary act, in bringing the matter before a court of justice; and it was, therefore, such that the House could not omit to notice it.
§ Mr. Scarlettsaid, that his argument did not go the length of asserting, that all moderation and decorum might be banished from the bench, and yet no public inquiry should take place by that House. He would admit, that the private conduct and actions of judges might in some cases become the subject of parliamentary inquiry; but these were extreme cases. If a judge was guilty of a libel, the law would reach him as well as any other person; and where that remedy might be had, he did not think, except in extreme cases, the House should interfere in matters affecting private conduct.
§ Mr. Stuart Wortleythought the present case rather a curious one for the interference of the House. He would admit that the House might be called upon to interfere in certain cases, but he thought the present was not one of them. According to the statement of the hon. and learned mover, the first two parts of his charge were not offences of Mr. Kenrick, nor offences at all. It was another 508 magistrate by whom the man was committed. Then, as to inducing a man to plead guilty, it was a thing done every day. What was more common than to ask a roan accused of forgery to plead guilty to the minor offence? In these there was nothing of which that House or any tribunal could take cognizance. He objected to the motion, because he thought it would lead to a very bad precedent. He should be sorry to see the House of Commons made judges of libel. The House took that office with respect to its own privileges; and though he did not think that, even in such a case, they were at all times the best judges, yet they did claim that power, and would allow no other party to be judges of it but themselves. God forbid, however, that they should ever become the judges of the question of libel in private cases; for he considered that they would be the worst possible judges of such matters. From the very nature of the case, they must be prejudiced. He would therefore advise the twelve learned gentlemen to let the question of libel be decided by a jury of twelve men, and then, fortified with their verdict, if he should obtain it, let him come to that House with a motion respecting the conduct of Mr. Kenrick, and they would no doubt deal with the case as it might require. Having this view of the case, he felt obliged to the hon. member for Hertford for having moved the amendment; for, as long as he had a seat in that House, he would never consent to a vote which would make it the judges of libels between individuals.
Mr. Abercrombysaid, he did not know any thing of the merits of the case; but whenever a matter affecting the conduct of a judge came before them, he thought it was their duty to institute an inquiry. The doctrine held by hon. members who opposed this motion, would have the effect of shutting out the exercise of one of the most valuable of their functions. He thought it was not too much to say, that if an individual, by acts of his own, had given notoriety to certain parts of his conduct, and those parts were of such a character as that, after they became known, no minister would dare to recommend him to the Crown to fill the office of judge—it was not, he repeated, too much to say, that the same acts being committed by a person who already held the office of judge, the House was bound, by the act of Settlement, to make them the subject 509 of inquiry. Was it denied that the judges, who had to decide on questions affecting the lives and property of the king's subjects, ought to be men of pure and unblemished character? And, if this was important to the due administration of justice, was it too much to ask, that inquiry should be made, when charges affecting the character of a judge in a very serious manner, though not in his judicial capacity, were brought before the House? Some gentlemen, who thought it beneath them to protect the purity of the administration of justice, might wish to get rid of all inquiry; but he took a very different view of his duties as a member of that House, and of the importance of the matter before them; and he thought it would be no excuse for their neglect of this subject to say, that the House had already decided on a former case affecting the gentleman whose name was mentioned. This case was the following up of that which they had before them last session. It might be a matter of regret that they were not both together; but that ought not to hinder them from being considered as affecting the character of the individual, as to his fitness for being continued in the office of judge. Taking the two cases together (should the present charge be made out), the question would be, was the conduct of this gentleman, on the whole, such as that no minister would recommend his appointment as a judge; and if not, ought he to be continued in that situation? He did not mean to say it followed that, because he could not now be recommended to the office, he ought therefore not to be continued in it; but the question, as was properly observed by the right hon. secretary, was one of degree; and it would be for the House, considering all the circumstances of both cases, to say, whether they were such as should induce them to send up any address to the Crown on the subject of this gentleman's removal from office. As to the case itself, he would not go into it; but he thought it was almost impossible, that any man could read the charges, and not say there was a case for serious investigation. He regretted to find that it was viewed so lightly by some hon. members, or that they should feel disposed to throw so important a duty from their own shoulders.
Mr. Secretary Canningobserved, that of all the questions which came under the consideration of that House, those which partook of a judicial character were the ques- 510 tions on which every hon. member must act on his own individual impression. Without at all entering into the merits of the case itself, he was desirous briefly to state the grounds on which he should vote against the amendment, and for the hon. and learned gentleman's motion. If the question were now brought forward for the first time, he might, perhaps, be inclined to agree with those who were of opinion, that there was not that in the charge on the table, which ought to induce the House to enter into the consideration of the subject. But, he could not forget that a proceeding, of which this was a part, was received and countenanced by the House last session; nor could he forget, that he was one of those who concurred in inducing the hon. and learned gentleman to postpone that proceeding to the present; without, of course, entertaining the slightest intention of interposing any obstacle to that proceeding, whenever the hon. and learned gentleman might think proper to bring it forward. He therefore found himself compelled, by a sense of consistency, in this view of the case (although he did not know what he might have done, were the subject now an original one), to abstain by his vote from throwing any impediment in the way of a proceeding, which the learned gentleman, for the convenience of public business, had last session consented to stay. This was certainly not more than the learned gentleman had a right to expect in return for his courtesy.
Mr. Denisonsaid, he had just had a communication with Mr. Kenrick in the lobby, who had told him, that he was perfectly prepared to meet the charge preferred against him, but would cheerfully submit to any course the House might think proper. He entirely concurred in the sentiments of the hon. member for Yorkshire; there was one observation, however, in the speech of the learned member for Calne, on which he must make a single remark. That learned member had supposed, that Mr. Kenrick's magisterial character would influence the committing magistrate to commit the person against whom he preferred the charge, and would afterwards influence the grand jury to find the bill. Now, really he thought the learned member knew the law too well not to be aware that no committing magistrate would have dared so to act, liable as he would be to severe punishment for his conduct; and 511 that it was not probable the grand jury, who were on their oaths, would be induced, by fear or affection, to commit gross and deliberate perjury.
Mr. Wynnsaid, that if the hon. member for Hertford pressed his amendment to a division, he should vote for it. He could not concur with those gentlemen who thought that this charge was a necessary sequel of the charge of last session. They were quite distinct, and he thought it would be injustice to Mr. Kenrick for hon. members to allow their opinions on this case to be influenced by what took place on that occasion. The ground on which the case of last session went was, that if it could be proved that this gentleman had acted improperly in his character as a justice of the peace, that ought to be a reason why he should be considered unfit to fill the higher office of a judge. The transaction in the present case did not affect him in his public capacity, but had reference to him solely as a private individual, for which he was liable, if he were in fault, to be called to account before the ordinary tribunals of the country. The House should recollect, that whatever might be their decision on this case, it would not ultimately rest with them alone. The concurrence of the other House would be necessary; and suppose that concurrence could not be obtained, what a situation would they be placed in, and what would be the painful situation of this individual, thus allowed to remain with the deep stain on his character, which a resolution of the House against him might imply? Would it not be a much better course for the House to confine itself to cases where guilt had been proved by the ordinary tribunals? He did not mean to say that there were not cases in which the House would be called upon to interfere, before any inquiry by the courts of law; but these were extreme cases, and it was most desirable that the principle applying to them should not be extended. He could not at all concur in the observation of the learned member for Calne, that if the character of an individual were such as that no minister would recommend him as a judge, that therefore (he being already a judge) he should not be allowed to continue to fill that situation. A judge held his situation quamdiu bene se gesserit; but the reasons for which he might be removed were, in general, founded upon his con-duct as a judge. He did not say that 512 cases might not arise, out of his private conduct, which would justify his removal; but the charge before the House was not, in his opinion, one of that description. Taking it for granted, for a moment, that the whole of the charge now preferred were clearly made out, he did not think it would justify the House in agreeing to an address for Mr. Kenrick's removal. One word as to the supposed pledge given by the House last session. He did not think that the postponement of the matter by general consent, implied a sanction of the propriety of its introduction in the present. Even after the charge was laid on the table, and the attendance of witnesses ordered, he thought the House were not precluded from reviewing their decision, and if reasons were shown, from coming to a resolution to proceed no further in the affair.
§ The House divided: for the original motion 81; for the amendment 42, majority 39.
§ The House having resolved itself into the committee, Mr. Robert Gordon in the chair,
§ Henry Peters, Esq. was called in and examined by Mr. Denman, as follows:
§ Are you a magistrate for Surrey?—Yes.
§ Where do you reside?—At Betchworthcastle.
§ Is that near to where Mr. Kenrick resides?—About two miles.
§ Are you the magistrate before whom John Franks's daughter was brought on a charge of stealing from Mr. Kenrick's family?—I am.
§ How long is it since that charge was preferred?—It is a great many years; I should suppose seven or eight at least.
§ Do you remember what the age of Franks's daughter was at the time?—I do not recollect that I ever saw her; but I understood her to be about fourteen or fifteen.
§ Do you recollect the fact of a charge being preferred before you?—A charge was preferred, but, to the best of my recollection, I did not see the party, I think that I only granted a search warrant.
§ Do you recollect any evidence being brought before you to affect either Franks, the father, or the mother, with respect to the charge so preferred against their daughter?—Certainly not.
§ Were they charged before you, as abettors of their daughter, in the theft she was supposed to have committed?—Certainly not.
§ Are you the person who had some sheep stolen some years ago, when Franks was brought into some suspicion on that account?—I was.
§ Will you state shortly the circumstances?— 513 It so happens that I had two sets of sheep taken; there were two years elapsed between the two circumstances. The first was, that I had about thirty-eight sheep stolen, part of I them out of a fold by the road side, near a footpath; the last were in the park. There were twenty sheep, I think, taken out of the fold, and there was a footpath leading from a house. There was a paper found by the side of the fold the day after the sheep were missed, and that paper evidently belonged to Franks, and that caused some little suspicion. I was in town myself; but my bailiff, in consequence, went to lord Rothes.
§ Your bailiff is here?—Yes, he is; this footpath leads from the place where Mr. Franks was working with a Mr. Browne, at the top of the hill. This footpath was in a direct road from where he was working to where he lived; there it was that the letter was found. That was the only suspicion that I ever had, or that ever was entertained of Franks having taken my sheep. Immediately after that, the man who had stolen the sheep was taken up, tried, and convicted.
§ Did you ever at any other time lose any sheep in which Franks ever incurred any suspicion at all?—About two years afterwards, I had, in another part of the farm, one sheep killed, and I believe taken away; another was wounded; but as to that, there was not the slightest ground of suspicion that I ever heard of against Franks.
§ Did you, at any time in August, 1824, receive a letter from Mr. Kenrick?—I did. I have got the letter here; but it bears no date except that of Sunday morning.
§ Is that in Mr. Kenrick's hand-writing?—I have not the least reason to doubt it; and I received it by his servant from him.
§ [The Letter was read as follows:]
§ "My dear Sir;—I returned home last night, and found the fair copy I send herewith, of the draft affidavit, which I hastily put together in the two days I could remain in the country, before I was obliged to set out on the circuit, after I was made acquainted with the attack made on me in the Morning Chronicle.
§ "My solicitor strongly recommends to me lo apply to the different parties whose names are mentioned, to make affidavit of such facts as are stated in relation to them; and shall be therefore obliged by your perusing the second, third, fourth, and fifth sheets of this draft for me, if you will make an affidavit in confirmation of what is there stated.
§ "I have my doubts of the propriety of stating the circumstance about your two sheep, in pages four and five, and at all events it will not be necessary, if I should be advised or determine to retain that part, for you to enter upon it in your affidavit. I will call on you to-morrow, if you wish it.
§
"Pray return me the draft affidavit by the bearer, after you have read the pages mentioned, and the rest, if you please. I have
514
directed the bearer to wait for it, if you are at home, any time you may wish. I am yours, truly,
Sunday morning. W. KENRICK.
§ Was that letter accompanied by an affidavit?—It was.
§ Did you see Mr. Kenrick in consequence of that letter?—I did not, but I wrote him an answer to that letter.
§ Did you see Mr. Kenrick upon the subject of that affidavit?—I cannot say whether I did or not, it is so long ago; I very likely did, but I wrote him an answer to the letter decidedly at the time.
§ Did you keep a copy of the answer you sent?—No, I did not; I recollect perfectly well what I wrote, and I have no doubt Mr. Kenrick has got the answer.
§ Did you return the affidavit to Mr. Kenrick?—I did, with a letter.
§ Was it returned altered in any respect?—I think it very likely that I might have written my opinion upon parts of it; I recollect perfectly well having written a letter, or at least sent an answer.
§ What was that answer?—I said in that answer, that I did not think that I could make any affidavit to the facts he had alluded to, for that really the circumstances were all out of my recollection, with the exception of my having granted a search warrant; but with respect to the affair of Franks, I told him by all means not to state that, as there was not the slightest proof of Franks' having been guilty of that which he supposed he was. There is one thing I ought to explain, both for Mr. Kenrick's sake and my own. Till I read the letter this very morning, so little notion had of Franks having any thing to do with the second sheep (and I only slightly suspected him of stealing the first), that I thought Mr. Kenrick alluded to the first; and I stated, therefore, that there was no evidence against him, but the piece of paper having been found, and therefore I said he ought not to put it in, because the real culprit had been taken up and convicted.
§ Cross-examined by Mr. Gurney.—Is not the constable who acted upon that occasion dead?—I never heard of any constable acting upon the occasion.
§ A man of the name of Rose?—Rose is dead; but whether he was constable or not, I really do not know.
§ Do you remember whether there was not a circumstance of a bloody knife as well as a piece of paper?—I never heard of a bloody knife, till either Mr. Kenrick or Mr. Wimburn mentioned it. I never heard of a bloody knife at the time; there was a space of two years between the time of my sheep having been stolen, and the one sheep having been killed; therefore the bloody knife could not be in the fold where the sheep were taken; and I am certain I never heard of a bloody knife at the time.
§ Examined by Mr. Denman.—Were any sheep 515 killed on the occasion of the first sheep stealing, when the paper was found?—No, there were not.
§ How many years ago was this affair of the sheep?—I should think somewhere about six or seven. I really cannot remember the year.
§ You have been a magistrate a good many years for the county of Surrey?—Yes, a great many years.
§ And residing in the neighbourhood of Franks?—Yes.
§ Was Franks ever brought before you, as a magistrate?—Never; I never heard his name mentioned before me as a magistrate.
§ [The Witness was directed to withdraw.]
§ Edward Arnold was called in, and examined by Mr. Denman, as follows:
§ Are you Mr. Peters's bailiff?—I am.
§ Do you know any thing of a charge against Franks's daughter, some years ago?—No, nothing.
§ Do you know of a suspicion that fell upon Franks with respect to stealing some of Mr. Peters's sheep?—When Mr. Peters's sheep were stolen, or after they were stolen, there was a paper found in the field; I took the paper to lord Rothes, and he said he could see nothing to justify him in granting a warrant to apprehend Franks. Mr. Kenrick said, that he thought there was a suspicion to grant a warrant against Franks; lord Rothes afterwards said, that he could see nothing to justify him to grant a warrant against Franks, for any other person might be going up the field, and taking their handkerchief out of their pocket, they might drop a paper out, and it might be carried there by the wind.
§ Were you the witness that went before lord Rothes, with respect to that business?—Yes, I was.
§ Was there any other circumstance to charge Franks, except the finding a piece of paper near the fold where the sheep were taken from?—No, nothing that I heard of.
§ Were any of those sheep killed?—There were none killed at the time those were taken.
§ Was there a bloody knife found?—Not that I know of.
§ Was there any other person afterwards tried and convicted of stealing those sheep?—Yes, a person of the name of Bignold.
§ Did you attend his trial?—I did; he was tried, I believe, before lord Ellenborough, at Lewes. He was found guilty, and afterwards transported for the said offence.
§ Did you ever hear of any other circumstance that fixed Franks with any suspicion of stealing any sheep of Mr. Peters's?—Not to my knowledge.
§ How long have you lived near Franks?—Ever since 1811, I have lived little better than a mile from him.
§ What character has Franks borne during all that time, as an honest and industrious man?—I know nothing in respect to Franks's character; for at the time our sheep were stolen, 516 those sheep that were stolen out of the turnips, when the paper was found, I scarcely knew there was such a man except by name.
§ Since that time, have you ever had dealings with Franks?—Yes; I think the sheep were stolen in April, in the November following I sold him a sow.
§ [The Witness was directed to withdraw.]
§ John Franks was called in, and examined by Mr. Denman, as follows:
§ What is your name?—John Franks.
§ Where do you live?—At Alverston, near Stratford-on-Avon.
§ In whose service?—Lieut.-general Jenkinson's.
§ In what capacity?—As gardener; I have the care of all out of the house.
§ Did you live some years at Betchworth, in Surrey?—Yes.
§ You have a freehold there?—I have.
§ Do you recollect your daughter being taken before Mr. Peters, the magistrate, on a charge of stealing some articles at Mr. Kenrick's?—Yes, very well.
§ Did you attend before the magistrate at the same time?—I did.
§ Was any charge made against you, of being an abettor in that theft?—I do not know that there was any charge made against me, only Mr. Kenrick rose up in a passion, and told me, if he could get any hold of me, he would make a public example of me.
§ Were the articles missing found any where in your house?—They were.
§ In what part of the house?—In a little small box belonging to the girl herself.
§ How old was the girl at the time?—Nearly about ten years of age; I do not know to a month or two.
§ What were the articles that were found in the box?—I cannot say exactly, for I never saw them till I saw them in the room; but they were slips of silk, or something of that kind, and a bit of lace, and a pair of small scissors.
§ Were those things found in your bed-room?—They were beside the girl's bed; she sleeps in the same room.
§ Were they concealed any where?—No; only in a little deal box, where she kept a doll and other things; it was a box given her by her godfather.
§ The charge was dismissed, it was not prosecuted?—It was not.
§ Out of compassion, probably, to the youth of the child?—Yes, it was.
§ Did Mr. Peters say any thing to you on dismissing the charge?—Not that I recollect, he did not. Mr. Adams called to me, that was Mr. Kenrick's butler.
§ Was that before the magistrate?—It was just withoutside of the door in the passage; but he went in to the gentlemen, and sent the constable out after me to call me back.
§ You were sent to prison on a charge of stealing a piece of wood?—I was.
§ That was in the summer of 1824?—It was.
517§ You were in prison two months on that charge?—Exactly.
§ Did you give your wife any authority to intercede with Mr. Kenrick to show you any lenity on that occasion?—Not at all; I never spoke to her any thing on the subject: the last thing I spoke to her when I went out of the house was, to be sure that the children did not make use of any ill language to any of Mr. Kenrick's people, though I was sent away.
§ Did you ever express any gratitude to Mr. Kenrick, or his bailiff, or any of his people, for his conduct to you in the course of that prosecution?—Not at all.
§ Is your wife here?—I do not know that she is, unless she has come in by the coach since I came down here.
§ [The Witness was directed to withdraw.]
§ The Counsel for Mr. Kenrick being asked what course they wished to pursue, Mr. Gurney stated, that he proposed to call a witness to deliver in certain documents.
§ Charles John Lawson, esq. was called in, and examined by Mr. Gurney, as follows.
§ What is your name?—Charles John Lawson.
§ You are clerk of the peace for the county of Surrey?—I am.
§ Are you possessed of the depositions taken by Mr. Burges, the magistrate who committed Franks?—I am.
§ Will you produce them? [The Witness produced the Lame, and they were read as follow:]
§ "The King against John Franks. The Information of James Scragg, of Betchworth, in the county of Surrey, labourer, and James Beal, of Betchworth aforesaid, yeoman, taken on oath before me, Ynyr Burges, esq. one of his Majesty's Justices of the Peace, acting in and for the said county of Surrey, this 14th of May, 1824.
§ "James Scragg—Says: I am a labouring man, and work for William Kenrick, esq. in Betchworth. About five weeks or a month ago, I was directed to clean out a ditch on Mr. Kenrick's land, and to take an elm slab from the saw-pit to stand upon in the ditch, which I did. When I had cleaned out the ditch, I drew the plank into a small meadow belonging to Mr. Kenrick, and left it there; and I cannot say that I have seen the slab since, till yesterday, when I saw it in the garden, in the occupation of John Franks, now in custody. The slab was wet and dirty when I had done with using it, which was the reason I did not take it back to the saw-pit; and I did not do so afterwards, because I had forgotten it. The elm slab now produced is the same slab which I used, and is the property of Mr. Kenrick. The mark × of
§ "JAMES SCRAGG."
§ "James Beal, Sworn:—I am bailiff to William Kenrick, esq. of Betchworth; and directed the last witness, James Scragg, to take an elm slab, for the purpose of standing upon and 518 cleaning out a ditch on Mr. Kenrick's land. This was about five weeks ago; and about a week ago I missed the slab, which had been used by Scragg, which had not been returned to the saw-pit. In the morning of yesterday, the 13th May instant, I saw an elm slab standing against a new building, in the garden of John Franks, in Betchworth, and near to his dwelling-house, and about one hundred yards from Mr. Kenrick's saw-pit. Having a suspicion that the slab I then saw was the property of Mr. Kenrick, I went to-day into the garden where the slab was still standing, and examined it, and found that it was the elm slab which had been used by the last witness, Scragg, and that it was the property of Mr. Kenrick; I then took the slab away, and took it to the timber yard, belonging to Mr. Kenrick, and fitted it to the piece of timber from which it had been sawed off. The pieces now produced are the two pieces of timber, that which I took from Franks's garden, and that I brought from the timber-yard, and which fit together. I am certain the piece of timber or slab I found in Franks's garden, is the property of William Kenrick, esq. and is of the value of one shilling. JAMES BEAL."
§ "John Franks, in his defence, says:—The piece of timber produced, is the piece which I set up upon my premises, but I do not know where it came from; I first saw it there about a fortnight ago. It was lying down, and I set it up. I made no inquiry about it, as to where it came from."
§ "Surrey. The Examination of John Franks, of Betchworth, in the county of Surrey, labourer, taken before me Ynyr Bulges, esq. one of his Majesty's Justices of the Peace for the county of Surrey, this 14th day of May, 1824.
§ "This Examinant being charged before me the said Justice, on the oaths of James Scragg and James Beal, with having, on the 14th day of May, 1824, at the parish of Betchworth, in the county of Surrey, feloniously stolen and carried away one piece of elm timber of the value of one shilling, the property of William Kenrick, esq., on his examination now taken before me, saith, That he is not guilty of the offence aforesaid, though the piece of timber was on his (the Examinant's) premises; but how it came there, he this Examinant doth not know.
§ "JOHN FRANKS."
§ During Franks's imprisonment for trial, did you receive a letter from Mr. Kenrick, respecting the stopping of the prosecution?—I did.
§ Will you produce the letter. [The Witness produced the same, and it was read as follows:]
§ "Dear Sir;—I wish to have a little of your advice, arising from your practical knowledge as clerk of the peace. John Franks was committed by Mr. Burges, of Ryegate, for stealing a plank, valued at one shilling, from me, a day or two after the late sessions, and of course has been in gaol nearly three months, a punish- 519 ment perhaps sufficient for such an offence. The man has, I learned, behaved very well since he has been in gaol. He has a large family, and is a member, and has been some time so, of a benefit club, the advantage of which, by one of their rules, he would forfeit on a conviction of felony. The facts are so short, and so very clear against him, that such conviction must I think follow. Though I cannot speak in favour of his character, I believe the confinement he has suffered will operate as much, and perhaps more in his reformation, than any further punishment the court might be disposed to award; and I am unwilling to inflict upon him and upon his family, for so it would be, the further consequential punishment of forfeiting the benefit he may be entitled to from his club, if I could avoid it. I do not know if Mr. Burges has returned to you the recognizances. Would the court, upon this statement, permit me to decline prosecuting, and cancel the recognizances? Would you enclose this to lord Middleton, or should I ask Mr. Burges to withdraw or not return the recognizances? I am desirous the man should not be punished beyond what he ought, and am willing to take any course it may be thought proper. I shall probably see Mr. Burges at the bench on Tuesday, after I get your answer, if you write by Monday's post.
§ "Yours truly,
§ "Broom, Dorking. W. KENRICK."
§ Did you transmit that letter to lord Middle-ton?—I did.
§ Lord Middleton was the chairman of the sessions, was he not?—He was.
§ Did you receive an answer from lord Middleton?—I received an immediate answer from lord Middleton.
§ In the negative?—Yes.
§ And you communicated that to Mr. Kenrick?—I did.
§ [The Witness was directed to withdraw.]
§ Mr. Gurney stated, that he had now concluded the evidence he proposed to adduce, and that he was desirous, either at the present or a future time, to address a few observations on behalf of Mr. Kenrick.
§ Mr. Denmanapprehended, it would be infinitely better if the observations of his learned friend at the bar should be reserved until the evidence had been in the hands of members.
§ Dr. Phillimoreconcurred in the propriety of the course marked out by the learned gentleman.
Mr. Gurneyhaving replied in the negative, counsel were ordered to withdraw. The House resumed; the chairman reported progress; minutes of evidence were ordered to be printed; and 520 the report was ordered to be taken into consideration on Tuesday.