HC Deb 01 August 1867 vol 189 cc644-58

said, he desired to bring under the notice of the House a case which had excited a great deal of interest and indignation in the district in which it occurred, and which had given rise to a large correspondence in the local papers under the head of "The Whortle- berry Case." The facts were simply these: On Sunday afternoon, the 16th of June, a party of young persons, consisting of three young men and three young women, mostly between the ages of fifteen and eighteen, were wandering through a wood, upon a public path, the openness of which had not been contested for seventy years. They deviated a little from that path, and trespassed upon the wood (which had no fence to part it from the path), for the purpose of gathering whortleberries. It was said by the party themselves that the trespass could not have been long because they had only gathered a few of the berries, which were in great profusion; but it is only right to say it is said three of the male persons were seen in the wood three hours before by the servant of the proprietors of the wood. It was not for him (Mr. Taylor) to decide which is the correct statement, and it did not materially affect the issue. Next day the proprietor took out a summons for "unlawfully damaging the underwood;" they were taken before a magistrate, who lived three miles off (Colonel Peard), and were condemned by him to three weeks' imprisonment with hard labour, and walked off nine miles to gaol. Now, with regard to the character of these people, as regarded the legal question and the facts of the case it could have no importance; yet with regard to the moral view of the case, and the probabilities of it, it was of the greatest importance. Now, he had received a most remarkable and exceptionally good account of the previous character of every one of these persons. Now, it was upon the bare facts, as he had narrated them, that he ventured to ask a question a few evenings ago, which was answered by the hon. Member for West Cornwall (Mr. Kendall). That hon. Gentleman in the first place said, in a somewhat scornful way, that "the case had nothing at all to do with whortleberries;" but that is just as you regard it. If we look only to the wishes, interests, and motives of the prosecutors no doubt they care nothing for whortleberries; but if we condescend to take the motives and desires of the prisoners into consideration, as he presumed it was the business of those who were to deal justly between parties to do, then it became a whortleberry case, pure and simple; because the trespassers had no other motives than to get these berries; nor were they alone in this, for the three male delinquents state in a letter to the local paper that as they and some other lads were walking towards St. Blazey on that afternoon at three o'clock, Sir Colman Rushleigh's servant said to them, "Come on, we are going to have a buster of 'urts'; when, he adds, "they all went into the wood except us." The hon. Gentleman (Mr. Kendall) then proceeded to say that— A portion, he might add, of Sir Colman Rashleigh's income was derived from letting part of a large coppice wood every year. The bark of the trees and the young oak shoots in the wood were, it appeared, seriously damaged by trespassers. And he added— One of the parties who had rented the coppice wood had informed Sir Colman Rashleigh that there was no use in taking it—so great was the damage done by persons trespassing upon it. Now, he must really give the hon. Member credit for possessing that quality which was said to distinguish the late Sir Robert Peel—that of cleverly dressing up a case for the House. Would the House believe that this serious inroad into the income of Sir Colman Rashleigh referred to a wood, of which he was informed the total rateable value was only £25 per annum? But the hon. Gentleman (Mr. Kendall) depended still more upon the letter written to him by the convicting magistrate; therefore, they were not left in doubt upon the case. The convicting magistrate said— Parties have constantly been brought before our bench for trespass and damage in Prideaux and Tregrehan woods; we have generally fined the parties so brought before us, hoping that leniency would have the desired effect. Again— When the parties were brought before me they all pleaded guilty, and I sent them to Bodmin for three weeks, in hope that this punishment may have the effect of stopping others, which fining has not done. We have all heard of the address of the Judge to the man who had been condemned for horse-stealing. The Judge said— I do not condemn you for stealing a horse, but in order that other men may not steal horses; but this magistrate went much beyond this dictum; he said— You are not to be punished because you have committed a crime which deserves this punishment; but you are punished because other persons have, as we believe, committed it, and because we have not been able to get hold of them. The letter then goes on to say— A day or two before these persons were found the keeper met a party, who, on being spoken to, defied him in most violent language. He did not know the parties, so could not apply for summonses. A day or two afterwards Battie fell in with this party. Now, was it possible for any one to have written a move self-condemnatory letter than this? They had first the clear statement that the magistrates were, beforehand, determined to punish with imprisonment anyone whom they might find in the woods, whether guilty of trespass or not. And secondly, they had the acknowledgment that the keeper, in his turn, had been bottling up his wrath at being "defied in most violent language" by certain unknown parties, and had thus wreaked his vengeance upon the first "parties" he could catch; who, unfortunately for him, and for them, so far as it is unfortunate to suffer innocently, happened to be these six poor people who had never been charged before with any offence whatever. Now there were two legal points which arose in this case—not technically legal but, in a common sense point of view, legal. With regard to the first of these points, in the first place these people were sentenced in a private room in the house of the committing magistrate, and a friend of one of the prisoners was refused admission to that room. If that were so and an absolute refusal was given, as he believed it was, it was most illegal. But beyond this he ventured to assert that it was not enough for justice that the doors should not have been closed against them. It should have been explained to these peasants and their friends, trembling before the awful presence of the squire's dignity, that his justice-room was not for this occasion a private sanctum, to enter which without permission was but to commit a new trespass. To all intents and purposes this was a private interview, and neither magistrates nor prisoners had any legal adviser present. Upon this point the 11 & 12 Vict. c. 43, s. 12, enacts that— The room or place in which such justice or parties shall sit to hear and try any such complaint or information, shall be deemed an open and public Court, to which the public, generally, may have access, so far as the same can conveniently contain them. Mr. Justice Bayly, in Daubney, v. Cooper, 10, Barnewell and Creswell, 240, says— The ground upon which our present opinion is formed is that the magistrate was proceeding upon a summary conviction, and therefore exercising a judicial authority. He was, as it were, a Court of Justice for that purpose, and we are all of opinion that it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, have a right to be present for the purpose of hearing what is going on. He (Mr. Taylor) therefore ventured to state, as the first legal point, that he doubted very much whether any punishment, awarded in that private and secret way, could bear the gaze of legal investigation. Now, according to the letter of the committing magistrate, which was read by the hon. Gentleman opposite, this conviction took place under the 24 & 25 Vict. c. 97. It did not state the section; but he presumed it was the 22nd, the words of which were, in stating the offence— Unlawfully and maliciously cut, break, bark, root up, or otherwise destroy, or damage, the whole or any part of any tree, sapling, or shrub, or any underwood, the damage amounting to one shilling.


said, that in the letter forwarded to him the sections were stated as the 52nd and 53rd.


I believe those sections are pretty similar to the 22nd. The words of the committing magistrate are that the sentence was for "trespassing and destroying underwood." Now, with regard to trespassing, there was no power of summary punishment at all. There was no case in which a mere trespass can be punished except by action. Therefore, that part fell through altogether; and as to the damage, no damage was done, he was informed, upon the authority of a gentleman residing in the neighbourhood. They had, therefore, a conviction for trespass which was not legal, and for damage which was never committed. Well, how was a conviction to be got against these people? It seemed that the magistrates had resolved that any person found wandering in this wood should be sent to prison, and the only way in which that could be done was to obtain a confession of guilt with respect to the trespass which they could not punish, and transfer that to a wilful damage of the underwood which they could punish, but could not prove. See how this was managed. According to a statement signed by the whole of the accused, the following was what took place:— Colonel Peard read the summons aloud to us and said, 'What do you say to that?' Joseph Coppin replied, 'I was there, sir,' and before I had time to say I was not damaging the underwood he asked the rest. George Bennett and all of us said 'guilty,' meaning of being in the wood. We were about to say that we were not damaging the underwood when Colonel Peard said—'We need not enter any further into the case, you are already sentenced to the House of Correction for three weeks with hard labour. Take them away.' Master Rashleigh was standing close to Colonel Peard's chair, with his elbow resting upon it. We are sure that we did no damage, and think that we have been very hardly used. Now, with respect to this plea of guilty, everyone that had been accustomed to attend Courts of Justice, or who read accounts of those Courts, knew how nobly, even occasionally how pedantically, Judges sitting in authority warn prisoners against pleading guilty without the clearest understanding. They insisted upon making the prisoners know fully what they were about, and sometimes even when the prisoner insisted upon pleading guilty they almost imply "Will you not take your chance of being fairly hunted down?" Now, he thought he should carry the House with him when he said, under these circumstances, that when these young people went into that dining-room of Colonel Peard's they did not go into a Court of Justice: they did not go into a place where their case was to be fairly investigated, and where their punishment, if punishment were necessary, would be mercifully administered; but they went into a trap out of which they were only to issue with the burden of a fore-determined punishment upon them. A great deal had been said about setting class against class. This was simply a punishment inflicted because of class. Every man in this House knew that if these young people had been members of the squirearchy, or of the tradesman rank of society, there was no justice in the United Kingdom who would have dared to inflict this punishment upon them. It was, he knew, vain to say, "Do not tell us how kind and good these people are!" They all knew that when any case of peculiar injustice was brought to light, the perpetrator was sure to be described as of a judicial mind, perhaps even of an "hereditary judicial mind"—whatever that might mean. In like manner if there was a case of peculiar cruelty and hardship, the man who committed the act was certain to be described, ad nauseam, as a person overflowing with the milk of human kindness. But in this case he accepted it as a fact, and believed it to be true, that the proprietor of this wood was a man who was exceptionally kind and tender-hearted and of a generous nature. But that mode the case ten-fold worse, and more dangerous. If this was the way the peasantry were treated by persons who were exceptionally kind hearted and generous, what was to become of them in those cases—and there would be such even amongst the landed gentry—where they were men of hard, stern, and revengeful natures? This was the case he had to present, and he ventured to ask what had been done in the matter? The Home Secretary heard his Question a few nights ago; he heard the statement of the hon. Gentleman opposite (Mr. Kendall), and he heard the excusatory letter of Colonel Peard; and he must have known better than any man in this House how utterly futile, fallacious, and weak was the defence made against such a charge. What had he done? Had he done that poorest and smallest justice that was now possible to be done to these poor gaol birds? Had he sent them a certificate of illegal conviction? In bringing this case before the House he had to consider what practical form he should give to it, and he came to the conclusion that it would be useless to move for Papers, since it was quite manifest that there were, and could be, none worth producing; and he knew it was very unlikely that he could carry a Motion in the present House for the removal of the committing magistrate. He was, moreover, much more desirous to gain, if possible, some security to the people for the future, rather than attempt to legislate and punish for what was past. He therefore had ventured to ask the House to pass a Resolution which it appeared to him no party could object to. The Resolution was— That, in the opinion of this House, in all cases of summary convictions before justices of the peace, it is desirable that Minutes of the Evidence on which the conviction was founded should be recorded, and preserved for future reference in case of need. He would trouble the House with but two observations in support of this Resolution. He thought it eminently desirable there should be a unity of action all through the country. On a late occasion there were hon. Gentlemen who expressed their astonishment to hear that full notes of evidence were not taken in all such cases; while others seemed to express equal astonishment that such notes should be supposed to be taken in any case. The right hon. Gentleman the Member for Oxfordshire (Mr. Henley) made some observation, and he understood him to say that, in his experience, certain notes were taken by the clerk, but that the notes which the clerk took were not necessarily related to the proceedings of the magistrate. Those notes were not read, he said, afterwards to the magistrates, and might not therefore convey either the moral or legal ground upon which the decision was given. Now this was a diversity of action which should be remedied. It was also highly desirable that the people of this country, who were subject to summary jurisdictions, should not only be justly dealt with, but that they should believe that they were justly dealt with. There was a general impression that practical justice was not dealt out in many cases by the unpaid magistracy of the country to the peasantry. It was extremely desirable, in the interests of the people, that a record of the evidence in all these proceedings should be taken, to render possible subsequent appeal; but it was, he thought, quite as important for the magistrate himself, unaccustomed as he may be to legal questions or to the careful weighing of evidence, that he should, as it were, have to act upon some recognized basis, and should feel that his decision must be in accordance with written documents, which must be sufficient not only for his own mind, but it may be for the authorities who may have to revise the decision which he may come to. He therefore begged to move the Resolution of which he had given notice.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, in all cases of summary convictions before justices of the peace it is desirable that Minutes of the Evidence on which the conviction was founded should be recorded and preserved for future reference in case of need,",—(Mr. Taylor,) —instead thereof.

Question proposed, "That the words proposed to be left out stand part of the Question."


said, that he fully agreed with the Resolution, but he disagreed very much from the statement with which the hon. Gentleman had introduced it. The whole question really was this—whether a man had the right to deal with his own property and protect it as he liked? He would lay before the House a plain honest statement of the facts of the case. Sir Colman Rashleigh had a considerable property, near St. Blazey, in the mining district. Many landowners, he must observe, refused to grant setts for mines on account of the troublesome character of the miners; but for his own part he had always acted on the opinion that they were susceptible of judicious management. He would also observe, before coming to the main facts of the case, that what the hon. Gentleman opposite had said about Mr. Northey was altogether out of place, for Mr. Northey was a commercial traveller living twenty miles off, who did not see the place where the trespass was committed for weeks afterwards; and how then could he pretend accurately to inform the hon. Gentleman what amount of damage had been done? Now, Sir Colman Rashleigh had suffered a great deal from depredations upon his property, and he might observe that every year a certain portion of an oak coppice wood was cut down and sold, and great damage was done by persons trespassing, for by walking upon the young shoots they destroyed them. Again and again offenders had been warned, again and again they had been brought up and fined, and last year the magistrates said, "We find it is of no use in the world to fine you, for you combine together among yourselves and pay it off, and we are, therefore, resolved that if this occurs again we will imprison you." Notices, warning trespassers off, were actually put up at different points in the very place where this trespass was committed; and when Sir Colman Rashleigh's son was informed by a boy that six persons were trespassing in that place, he went there and determined that the persons should be apprehended. Now, he had lived in that neighbourhood forty years, he knew the people, and he never broke his word with them. Whenever he told them that they would be imprisoned the next time they were brought before him, he never failed. They knew he never did, and it was only by being very firm, and never getting angry, that they were to be managed. It was a great mistake to suppose that the population in Cornwall were poor-spirited or down-trodden. A more independent set of men, or more able to assert their own rights, nowhere existed. Well, Sir Colman Rashleigh's eldest son, when he came across the trespassers, had their names, and laid informations against them at the next Petty Sessions, and on Wednesday the case was heard in the private dwelling of the magistrate and they were convicted. This was the simple story; and, while he re- gretted that the case should have been heard in private, he would ask any one whether, after the repeated warnings and the threats that the next case of the sort would be punished with imprisonment, the magistrate could have taken any other course? He must protest against country gentlemen being held up in this manner to the indignation of the public.


said, this was not, as the last speaker supposed, a question as to whether a man's property was his own or not. The question was, whether six persons had had justice administered to them or not? He wished to point out that Sir Colman Rashleigh had not been attacked in that House or out of it in consequence of this affair. The complaint was made against the magistrate, and it was twofold, as to the mode in which the investigation was conducted, and as to the punishment awarded. For his part he thought that a more monstrous case had never been brought before the House. The offence of which they had been found guilty was described in the statute as that of wilfully and maliciously damaging underwood. But the offence alleged in the summons was simply for damaging underwood. The prisoners alleged that the summons had been read out to them by the magistrate, and they were asked what they had to say to it; they answered that they were there, meaning that they were trespassing in the wood; but they never intended to plead guilty to a malicious injury to property. If the words of the statute "malicious and wilful damage" had been read to the prisoners, he was sure they would not have pleaded guilty. He could not help thinking that if the conviction was in the same words as the summons it was void, as the very gist of the offence was contained in the words "wilful and malicious." It was never intended that the punishment inflicted should be applied to cases of mere trespass with nominal damage. No doubt the magistrate had not committed this wrong intentionally; but it showed that he was so grossly ignorant of the law that he did not know how to conduct his business. The proceedings from the commencement were irregular; such a case should never have been decided in a magistrate's private room; it should have been heard at Petty Sessions, where the magistrates' clerk could have been appealed to for advice. It was quite incredible that three weeks' imprisonment with hard labour should have been awarded as a punishment for such a trifling offence. He trusted inquiry would be made, for as the facts stood at present he thought the only course would be to dismiss the magistrate from the Commission of the Peace.


said, he thought the House was much obliged to the hon. Member for Leicester (Mr. P. A. Taylor) for filling the office which used to be so ably undertaken by Mr. Duncombe, the late Member for Finsbury, who, in dull times, used to trot out novel subjects to relieve the tedium of the hour; but he trusted the hon. Member would in future bring forward cases which would hold water better than the present. The hon. and learned Member for Reading (Mr. Shaw Lefevre) seemed to think the charge did not come within the statute; if that were so, as he was an hon. and learned Member, it would have been more to the purpose, and much more satisfactory to the persons most interested, if he had put in that plea in a higher court, instead of assisting at one brief conversation on the subject. With regard to the subject of depositions, he noticed that the people in this instance pleaded guilty, so there was an end of all evidence; and, in his opinion, it was most unadvisable to add to the expenses of such trifling proceedings by insisting on the taking of depositions, because it often happened that even without this expense it was most difficult to keep the people from going to prison, simply because they were unable to pay the expenses and the small fine. He agreed in one remark that had been made, and that was that justice should not only be done, but that people should think it was done. About ten years ago, magistrates were empowered to make summary convictions in cases of petty larceny, and the question put to the offenders was, whether they would like the case to be decided at once or preferred going before a jury. In all the cases which had come before him he had never found one in which the party preferred to go before a jury; and he thought, whatever grievance-mongers might say, that was the best proof that the parties believed justice would be done by the magistrate. He should be extremely sorry when people were brought up for small offences to saddle them with the cost of the depositions, which, in many cases, would more than double the costs which must be paid.


said, the hon. Member for Leicester had called upon him to answer certain questions, and had imposed upon him a duty which, if he were to discharge, would be more illegal than anything that was charged against the magistrate. The hon. Member had asked him to issue a certificate declaring that the decision complained of was illegal; but if, as the hon. and learned Member for Rending had said, the proceedings were wrong ab initio, he would, by acceding to the request of the hon. Member for Leicester, be guilty of usurping the position of the Court of Queen's Bench. With respect to the case itself it never was brought before the Home Office, except on the Question put by the hon. Member. There was no Petition — no memorial—no complaint of the conviction. When the case was first mentioned the imprisonment had expired, and no question was put to him as to whether the men were properly imprisoned or not. When the question was afterwards repeated, he (Mr. Gathorne Hardy) wrote to the magistrate, asking if he wished to offer any explanation. The magistrate, in reply, explained what he had done, and so far as the statute was concerned his proceeding was regular. At all events, nothing was done contrary to the terms of the statute. The hon. and learned Member for Reading had said that the case should have gone to the Petty Sessions, but the terms of the Act were "upon conviction before a justice of the peace." There was no occasion to take the defendants before the Petty Sessions, and the only question was whether the justice called upon to hear the case should have heard it in the Petty Sessions court or in his own house.


said, he did not say the magistrate was bound to hear the case in Petty Sessions as a matter of law, but only that he ought to have done so.


said, he had understood the hon. and learned Gentleman to speak as a lawyer. When the hon. and learned Gentleman called upon the Government to dismiss a magistrate, he should have thought it would have been not for an error of judgment, but for having acted illegally, which he did not understand to have been the case in this instance. The magistrate, in the letter which he had received from him, stated that when the six defendants were brought before him he read over to each the charges made against them seriatim, and then put the question—"You have heard the charge against you: what do you say—are you guilty or not guilty?" The letter went on to say that each defendant pleaded guilty, and the magistrate then sentenced them severally to twenty-one days' imprisonment, with hard labour, in the House of Correction at Bodmin, under the 24 & 25 Vict., c. 97, ss. 52 and 53. The 53rd section of that Act was to meet cases for which no other punishment had been provided, punishment having been provided in other cases where the damage amounted to 1s. Colonel Peard added that persons were continually brought before the bench on which he acted for damaging the plantations in the neighbourhood; that they had over and over again tried to put a stop to such a state of things by inflicting a fine; that, upon the last occasion when offenders were brought before them, they gave notice that, as their leniency had proved ineffectual, those persons would be sentenced to be imprisoned the next time they were brought up. The injury, Colonel Peard went on to say, done to the plantations was very serious, and the magistrates saw no other way of putting a stop to it. He also said that if a heavy fine had been inflicted the hardship would be very great on some families, especially when the present distress in the mining districts was taken into account, and that notice against trespassers had for some time been placed in the wood by Sir Colman Rashleigh's order. Such was the statement of the magistrate, and as to Sir Colman Rashleigh, who was not in Cornwall at the time, there were no materials at the Home Office for instituting, in reference to him, such an inquiry as the hon. Member for Leicester had suggested. He (Mr. Gathorne Hardy) quite admitted that when a magistrate heard cases in his drawing-room, as in the present instance, the room should be open, so that any one who wished might have an opportunity of listening to the proceedings. It was, however, a perfectly novel statement to him that there was any impediment thrown in the way of any one entering the room in the cause under discussion. Such did not appear to be the fact from the letter of Colonel Peard, and he could not under all these circumstances inquire into the conduct of Sir Colman Rashleigh. He had no materials, in fact, on which to base such an inquiry, nor was it his duty to inquire into the conduct of the magistrate, but that of the Lord Chancellor, who, if he had acted improperly, had it in his power to dismiss him. If cases in which an excessive punishment had been inflicted, or in which the reversal of a sentence was called for, were brought before him, then it would be his duty to investigate the matter. Nothing of that kind, however, had come under his notice in the present instance, and he had no statement to make with respect to it to the House on the part of the Home Office. The magistrate had acted within the law, and it was no part of his duty to interfere in the matter.


said, he did not think any blame could, under the circumstances, attach itself to his right hon. Friend who had just spoken. As to Sir Colman Rashleigh and Colonel Peard, with whom he had the pleasure of being acquainted, he felt assured that the one was incapable of acting harshly towards the poor, and that the other would not be guilty of my malversation of his office as a magistrate. The impression, however, which had been left on his mind by the statements which had been made on both sides was that considerable want of caution had been exhibited by the latter. Before taking the plea of guilty he ought to have explained clearly to the prisoners what the nature of the offence was with which they were charged, and that they were not merely accused of having been unlawfully in the wood, but of having committed wilful and intentional damage. From the statement which had been made by his hon. and learned Friend the Member for Reading, it would appear that they had pleaded guilty under a misapprehension, and it would seem, from Colonel Peard's letters, that he at once took the plea of guilty, and, without another word, sentenced them to three weeks' imprisonment. Now, no Judge would, he ventured to think, have acted in that way, and very few magistrates. He was also of opinion that the sentence was, under the circumstances, excessive; and he could not help thinking that the prisoners did not mean to commit the offence with which they were charged. He would only add that he regarded it as extremely unjust to his hon. Friend the Member for Leicester to be called a grievance-monger because he brought the case under the notice of the House. In his opinion, he deserved the thanks of the House for having drawn its attention to what he believed was an exceptional case in the administration of justice.


hoped the hon. Member for Leicester would not press his Motion to a division. He did not believe it would lead to any advantage.

Amendment, by leave, withdrawn.

Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.