OBSERVATIONS. (Hansard, 8 March 1866)

§ MR. H. B. SHERIDAN

said, he rose to call attention to this case. He thought further inquiry into it was demanded, not only in the interest of Mr. Ferguson himself, but also in that of the public. He had given notice to call attention to the case on Monday last, but finding that the magistrate at Greenwich had committed the unfortunate gentleman for trial he had postponed his Notice, and had added to it a notice of Motion for certain Returns that would throw light on the matter. The case was one of great hardship. The facts had appeared in the newspapers, and he might be allowed, perhaps, shortly to allude to them. It appeared that this gentleman, Mr. Ferguson, lived in the neighbourhood of Greenwich. He was a professor of music, and was passing quietly to his home, about two o'clock, a few nights ago, after fulfilling a professional engagement which necessitated his being out to a late hour. He had occasion on his way to pass along one of the suburban roads leading from the Crystal Palace, where be was accosted by 1738 a very suspicious looking person with "Goodnight." Mr. Ferguson, who had a silk umbrella in one hand, and his music, wrapped in a case, in the other, walked on, but the suspicious looking person—for it seems he was dressed somewhat after the fashion of the highwaymen of past times—whether because he was drunk, or because he felt disposed to practice a little on his own account, followed him. Mr. Ferguson, as the man approached him, naturally took to his heels and ran; the suspicious person ran in pursuit, and, being more fleet of foot than the professor, soon overtook him, endeavoured to take from him his music, and failing in the attempt, knocked him down. Mr. Ferguson contrived to get up, and struggled with his assailant, but he was again knocked down; whereupon he cried out, "What do you want with me? I am a musician. I will shoot you if you do not let me go," though he had no firearms. The suspicious looking person, however, without speaking a word, instead of desisting, continued to assault him while he lay on the ground, and Mr. Ferguson drew a short clasp knife and wounded him. He then managed to get to the other side of the road, and, taking out his watch and chain, said, "Here is my property. Take it; but if you strike me again I will shoot you," The struggle was again renewed, Mr. Ferguson shouting out, "Murder, police!" Having by that means succeeded, as he thought, in summoning to his assistance the guardians of the night, and having charged the man with attacking him on the Queen's highway, he was greatly surprised to find himself dragged by the policeman who appeared upon the scene to the next station-house, where he was thrown into a cell and subjected to great indignity. The next day he was taken before a magistrate, who, without asking him a single question, ordered him to be remanded for eight days without bail. At the end of that time he was again examined before the magistrate, and again remanded, and on Monday last he was committed for trial. Now, under these circumstances a great wrong had, he thought, clearly been inflicted on the gentleman in question. This gentleman, knowing he had done no wrong, must have fancied that he was all at once transported to some land of savages, where only brutal violence reigned. He had last night received the following letter from this gentleman, detailing the particulars of the assault upon him in a manner not hitherto made public:— 1739 26, St. Aubyn's Road, Upper Norwood, Surrey, March 6, 1866. Sir,—Seeing by the papers that you have kindly taken an interest in my case, I take the liberty of enclosing you an account of the whole transaction. After playing at Mr. Noake's party, on my way home, and while walking from Sydenham to Upper Norwood, I observed a rough-looking man loitering on the roadside. As I passed I bade him 'Good morning.' I wore a dark grey Inverness cape, black felt hat, and long shining leather knickerbockers, or leggings, up to my knees. I carried in one hand a small silk umbrella, closed; in the other my portfolio of music (not a bag as described in the papers), with a strap round it, hung on my finger and quite visible, as when walking on these occasions I always throw back the outside cape for convenience. When some yards past the man I heard him following me. The road became more lonely as I advanced. I considered he had a design on me, and quickened my pace. Finding he did the same and was gaining on me I felt much alarmed, and concluded he was a garrotter coming on to attack me Hoping to gain the Crystal Palace Police Station, which was quite convenient, I ran for my life, He overtook me, and seized me by the arm. To intimidate him I threatened to blow his brains out, although having no firearms. I was knocked down and struck while on the ground. He afterwards seized me by the neck. I struggled hard to get from him. I told him I would give him my property, and that I was a musician. He continued to beat and drag me about. After a long and desperate struggle, and finding my strength failing, and that he was trying to knock me down again, I considered he was about to murder me. I thought of my dear wife and children and became mad with terror and despair, and shouting 'I shall not be murdered and taken from them,' struck out in defence of my life. After some struggling I got free and ran to the opposite side of the road. Finding him following, and believing my property and life to be his object, I took out my watch and chain, laid them on the pathway and said,' There, take them; take all; but do not touch me.' [All this time I continually shouted 'murder," police.'] In order to get a barrier of defence and in the hope of the inmates of the house assisting me, I sprang over a garden gate. Seeing him approach I presented my knife, threatening to shoot him if he came near me. After some time two constables in uniform came up, when I immediately cried out to them, I charge that man with attacking me on the highway; take him into custody.' I got over the gate, and to my surprise was seized by one of the constables, was roughly handled, and marched bareheaded to Sydenham Police Station. It was not till after the police came up to the gate I discovered he was not a garrotter, but a policeman in disguise. After being locked up in a cell I was from that time treated with every indignity, at times handcuffed, stripped naked, my person minutely examined, even to the inside of my mouth. Locked up at night in a cold cell, with open window and insufficient covering, and this in intensely cold weather; and not allowed to see my friends except through a double wirework, with small apartment between, and an officer present. With grateful thanks for your noble efforts in the cause of justice and humanity, I have the honour to be, Sir, your truly obliged humble servant, JOSEPH FERGUSON, 1740 The Returns he wished were—Copies: 1. Of the entry on the charge-sheet of the Greenwich or any other police district under which Mr. Ferguson was locked up in a police-cell on the night he was assaulted. 2. Of the report of the acting sergeant or inspector of the same district to his superior officer, or to the stipendiary magistrate having jurisdiction therein, by which he justified the refusal to take the charge preferred by Mr. Ferguson against the person who had assaulted him. 3. Of the evidence on which Mr. Traill, the stipendiary magistrate of the Greenwich district, ordered Mr. Ferguson to be sent to prison for eight days. 4. Of the evidence on which Mr. Traill subsequently committed that gentleman for trial, and of the warrant under which he was committed. And 5. Of the instructions issued by the Commissioners of Police to persons called detective officers, and of the regulations by which those special instructions are modified and controlled. Now, he wished to know by the Returns he asked for why the policemen who arrived at the spot did not take the charge of assault preferred by Mr. Ferguson against the policeman in plain clothes, and why the policeman preferred a charge of assault against him; how it was that the acting officer at the station in his Report to his superiors justified his conduct in not allowing Mr. Ferguson to make any statement, throwing him into a cell, and subjecting him there to indignities; and how it was that he failed to send to the gentleman's house, which was not far distant, but insisted on treating him as a criminal? He also wanted to know under what English law the magistrate ordered this man to be further locked up in solitary confinement for eight days? Mr. Traill had all the facts before him, and therefore he asked why did that magistrate refuse to consider the gentleman's statement and insist on treating him as a criminal? Mr. Traill was in a different position from that in which a policeman stood. It was his business to sift carefully all questions, and there was nothing, as appeared from the report in the newspapers, to justify him in deciding as he did. It appeared in evidence that the policeman admitted that he first assaulted Mr. Ferguson, and that the latter did not know him to be a policeman, as he did not show his uniform or spring a rattle. Mr. Traill, however, though he knew that Mr. Ferguson was no returned convict or offender under surveillance, and that be had been outraged and injured, or- 1741 dered him to prison for eight days without bail. This might be Mr. Traill's law, but it was not English law. If there had been conflicting testimony, if the policeman had said that he exhibited his uniform, even then, in the absence of a warrant, Mr. Ferguson was justified in resisting, and Mr. Traill would have been justified in taking the man's own bail for his appearance. He thought that in this matter a great public principle was involved. By the law of England every man guilty of no offence was entitled to personal liberty, and to be free from vexatious, arbitrary, and tyrannical arrest. There seemed to be no dispute that an Englishman was justified in resisting illegal arrest, even to the extent of slaying the arrester. A high prerogative writer on the English Constitution, De Lolme, stated that the right of opposing violence in whatever shape and form, whatever quarter it might come from, was so generally acknowledged that the courts of law had sometimes grounded their judgments on it. De Lolme proceeded to relate on this head the following fact:— A constable being out of his precinct arrested a woman whose name was Anne Dekins; one Fooley took her part, and in the heat of the fray killed the assistant of the constable. Being prosecuted for murder, he alleged in his defence that the illegality of the imprisonment was a sufficient provocation to make the homicide excusable and entitle him to the benefit of his clergy. The jury, having settled the matter of fact, left the criminality of it to be decided by the Judge by returning a special verdict. The cause was adjourned to the King's Bench, and thence again to Serjeant's Inn for the opinion of the twelve Judges, Here follows the opinion delivered by Chief Justice Holt in giving judgment—If one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion, much more so when it is done under the colour of justice, and when the liberty of the subject is invaded it is a provocation to all the subjects of England. It was a remarkable circumstance that Chief Justice Holt left a memorandum in MS. upon this subject of singular interest. He said that it Is not lawful even for a legal constable to take up a woman upon bare suspicion only, having been guilty of no breach of the peace, nor any unlawful act. Of late constables had made a practice of taking up women only for walking the streets, but he did not know where they had such authority. Mr. Justice Bayley gave his opinion with regard to night-walkers in these words— Where a private Act authorized watchmen to apprehend nightwalkers, malefactors, and sus- 1742 picious persons, and a watchman apprehended a gentleman returning from a party, it was held that apprehension was illegal, for by night-walkers is meant such persons as are in the habit of being out at night for some wicked purpose. Mr. Russell, in his Treatise on Crimes, vol. I. p. 809, says— It has been considered that the taking up of a person in the night as a nightwalker and disorderly person, though by a lawful officer, would be illegal if the person so arrested were innocent, and there were no reasonable grounds of suspicion to mislead the officer. There was also the law with reference to justifiable homicide. By the Statute of Henry VIII.— If any person attempt to rob or murder another in or near the highway or in a dwelling-house, or attempt to break any dwelling-house in the night time, and be killed in the attempt, the slayers shall be acquitted and discharged."—24 Henry VIII. c. 5."And the same where a man is killed in attempting to burn a house."—1 Hale's Pleas of the Crown, 488. "Or where a woman kills a man who attempts to ravish her."—Hawkins' Pleas of the Crown, c. 28, s. 22. "Or where a man is killed in attempting to break open a house in the day time with intent to rob."—1 Hale, 288. "Or to commit any other forcible and atrocious crime."—Braeton, 273; Kelynge's Report, 128–9;1 Hale's Pleas of the Crown, 482. That seemed to be the law of the case, and if he referred to other authorities, he did not know that he could better establish his case. In this instance there was no policeman in uniform. The gentleman was assailed in an unjustifiable manner; the magistrate who committed him thought it his duty to treat him as a prisoner, and as one who had committed a crime. He might be told that those notions of constitutional and common law to which he referred were all very well, but that the police had strange powers and privileges, with which we were not thoroughly acquainted. If this be so, let them be at once distinctly declared. Such powers were unconstitutional, contrary to Magna Charts, the Bill of Rights, the declarations and decisions of the Courts, and the whole spirit of British law. He knew that after the passing of the New Police Act of Sir Robert Peel, there was an aggregation of subsidiary Acts passed, in explanation or in aid of that Act, which did not fully disclose their powers and intentions, and perhaps the police had obtained their authority under these Acts, although contrary to the fundamental principles of English liberty. If this were so, let there be a Committee to examine the whole of these Acts, and ascertain whether the police had ob- 1743 tained powers inconsistent with all the civil rights the people of this country supposed they were entitled to, and if it were then found that a power had grown up by which those civil rights to which we believed we were entitled had been handed over to a sort of police minister, created by these Acts, let every effort be made to remedy it, and bring it in accordance with the spirit of English law. He said nothing in disparagement of the police as a body. He believed it was in the main an excellent body, and had been wisely and ably administered. But it was just possible that the Police Commissioners desired to obtain, and had succeeded in obtaining, powers which encroached directly on the liberty of the subject. It was just because the police was an excellent institution that it should be carefully and jealously watched. If not it would become a system of terrorism and aggression. Had the police power to arrest a person without a warrant? Under what regulations had the detective police been established? What discretion was given to them? and was it of a character dangerous to the liberty of the subject? What was really intended for our protection against civil danger ought not to be permitted to grow up as a system of tyranny and oppression. Unless something were done, the people of this country, who were quiet, orderly, and tractable, would make their feelings and sentiments known in no mistakeable terms. The police were, as a body, respectable men. So far as their duties in the neighbourhood of that House was concerned they were entitled to the respect and praise of hon. Members. But there were black sheep in every force; and it was not long since a person in the guise of a constable at Shrewsbury had stripped a gentleman of everything he had on, and locked him up. Suppose an hon. Member attacked, where was resistance to begin? where was tacit submission to end? If he ventured to resist he might be locked up, stripped, treated as a felon, remanded without bail for ten days, and committed for trial. All garotters in future might say they were policemen. Not long ago there was a great apprehension on this subject. Members of the House were themselves assailed. If an Englishman on the Continent had been exposed to treatment like that, all the embassies in the civilized world would be in commotion. He hoped, then, the Returns would be granted.

§ SIR GEORGE GREY

said, he was sorry the hon. Gentleman had thought it necessary to make the statement he had, because the matter was now the subject of a judicial investigation, and he (Sir George Grey) was consequently prevented from making such a reply as he otherwise should have done. He therefore hoped hon. Members would not take the statement which had been made by the hon. Member for Dudley, avowedly derived from the newspapers, as a correct version of what took place on the occasion referred to. [Mr. H. B. SHERIDAN said, he had read Mr. Ferguson's letter to the House.]] The hon. Gentleman had also criticized Mr. Traill's conduct upon the same information; but he should remind the hon. Gentleman that Mr. Traill had all the facts before him and acted upon evidence given on oath. The policeman was an inmate of Guy's Hospital Buffering from the wounds inflicted upon him by Mr. Ferguson. Mr. Traill went there and took what was then supposed to be the deposition of a dying man, and it was in consequence of that and the statement of the surgeon that the policeman's life was in imminent danger that Mr. Traill considered it to be his duty to remand Mr. Ferguson, the person charged with inflicting the wounds, for a week. At the end of that week, there being every prospect that the policeman would recover, Mr. Ferguson was admitted to bail, and had been out of custody for the last fortnight, and it was now doubtful if he would be committed for trial. The hon. Gentleman said—and it showed how incorrectly 1745 he was informed—he had been committed for trial. [Mr. H. B. SHERIDAN: He was on last Monday.] He was not committed for trial, but he was remanded until the 24th of this month, and he is out upon bail. The magistrate, who was fully in possession of all the facts of the case, did what he considered he was, bound in duty to do under the circumstances of the case. The Commissioner of Police wished the police magistrate to take such a course unbiased by the statement of the police, as he thought the end of justice would require. He, however, was bound to say—but with no desire to prejudice Mr. Ferguson's case, as there was to be a further judicial investigation—that it was the duty of the policeman to be where he was in plain clothes, and that when the policeman first accosted Mr. Ferguson he has been informed that he showed him his staff as a symbol of his authority. He had heard much to-night that was new to him, and judging from the facts that had been stated to him there was much in the hon. Member for Dudley's version of the case which was incorrect. A great deal of the hon. (he did not know if he was entitled to call him learned) Gentleman's speech might have been spared the House with regard to the extraordinary powers of the police. No such powers existed as he supposed, and policemen were subjected to the ordinary law of the country, and if a policeman exceeded his duty he was amenable to the laws and was liable to punishment for such excess of duty. No such power was claimed by the police as had been stated by the hon. Gentleman. With regard to what he had said with reference to female street-walkers, they could not be apprehended unless they had committed or were suspected of having committed an offence. [Mr. H. B. SHERIDAN: I did not refer to female street-walkers.] Mr. Ferguson was not apprehended as a street-walker, It appeared that during the early part of the winter numerous robberies were committed in the neighbourhood of Sydenham, and in December last an application was made to the Chief Commissioner for further police assistance for a limited time, and one inspector and four policemen in plain clothes were added to the police force of the neighbourhood, in order, if possible, to give protection to those persons on whom these robberies had been committed. With the ordinary police force of the neighbourhood in their uniform it was impossible to apprehend these offenders, for they watched 1746 the men on their beats, and committed the robberies complained of before they returned. He, however, would not then further enter into the details, because if the matter was to become the subject of further judicial investigation it would be better that the jury should come to the consideration of the case unbiased by anything he might then state. Mr. Traill, notwithstanding what had been said, had only done his duty. He had taken the evidence of a man who was in a dying state, and he acted as any other magistrate would have done under the circumstances, by remanding the person so charged with inflicting these dangerous wounds until it was seen whether the policeman was likely to recover or not. As soon as it was ascertained that the policeman was likely to recover, Mr. Ferguson was admitted to bail, and he was further remanded until the 24th of this month. The police were ready and willing to leave it to the magistrate to say whether, under all the circumstances, it would be necessary to send Mr. Ferguson for trial. To do Mr. Ferguson justice, there could be no doubt that he acted under great terror at the moment. He was returning home at three o'clock in the morning with a parcel under his arm, and when the policeman went up to him he said he was a policeman, and asked Mr. Ferguson who he was, having a suspicion that he had committed a felony, in consequence of his having a parcel under his arm. The hon. Gentleman the Member for Dudley had alluded to what he called the extraordinary power granted to a policeman of apprehending a person without a warrant. By the Police Act it was the duty of a constable to apprehend any person whom he suspected of having committed a felony, and the question whether he had good grounds for doing so was of course one for future consideration. It was sufficient that he had a reasonable suspicion to justify him in adopting such a course, but it was impossible then to adduce in that House the evidence to show that the policeman had in this case a reasonable suspicion for what he did. The case being sub judice, he thought it would be better not to go into further details. For the same reason he could not consent to produce the papers moved for, as that would invite the House to judge whether the magistrate was right in acting as he had done, but he had no objection to give the charge-sheet which stated the nature of the charge that was made against Mr. Ferguson, and also a copy of the instruc- 1747 tions under which policemen in plain clothes were employed. He hoped the House would not constitute itself a judicial tribunal for the consideration of a case that had been avowedly stated on information contained in the newspapers and on the ex parte statement of the person accused. It was but right that he should also state that Mr. Ferguson, after finding what he had done, had expressed his deep sorrow. Every one who was at all acquainted with the high character of Mr. Traill, and the long experience he had had, must know that he was not a gentleman who would do an act that would lay himself open to just animadversion, He hoped the House would suspend its judgment until the matter had undergone further judicial investigation.