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-----_-----INDIA. AND CHINA…

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TO THE EDITOR OF THE MERTHYR GUARDIAN. -.a SIR-Being a subscriber to,and a constant reader of your )Iper, those columns have naturally the most attraction or me which contain the particulars of the leg il transac- ions in Merthyr Tydvil. The convictions which have of ate been the most numerous and important, are those mder what is commonly denominated the Truck Act, 1st and 2nd William IV, c. 37) and as that Act is uni- rersally allowed to be one of the most carelessly drawn of hose that encumber our Statute Code, it may neither be jnprofitable or uninteresting, particularly at the pre- sent time, if I submit to your attention a few remarks upon one of the clauses of that Act that ias given rise to no small doubt and contu- sion. The clause I refer to is the 18th, the substance af which is that the commencement of every proceeding shall take place within three calendar months, to be com- puted from the commission of the offence. Now what, sir, I would ask of you, can the commencement of the pro- ceeding be, if it is not the laying the information, which is necessarily the firtt indispensable preliminary to, and which is the foundation for all the steps and parts of the pi-oceediiivs" that ensue ? All that this clause, if my view of it is correct, meant was to provide that if the informant did not prosecute his claim within the specified time, he should suffer for his own laches, the law being ever unwilling that the subject should be kept in a state of anxiety and suspense at the mere caprice and volition of another. If any authority were requisite in support of this opinion, I trust that the conclusive one I now abstract from the following cases will be deemed sufficient. The cases are, Brookshaw v. Hopkins, Lofft, 240; R. v. Fuller, Lord Raymond, 510; and Rex v. Kent, 1\1. T., 1730, 2 Lord Raymond, 1546; and there are unanimous in declaring thut it is absolutely essential in all proceedings to convict a party of an offence created or prohibited under a penal statute that there should be some information or complaint before the con- victing or some other justices. And it is laid down in a book of the highest authority, thrt-" An information is the first proceeding against an offender upon a sum- mary conviction."—Archboldon Convictions, p. 93. And can any one be ignorant that the issuing of the writ in a suit at common law is termed the commencement of pro. cecdings, and that if this issued out within the limit drawn by the Statute of Limitations, it will always pre- vent the statute from being pleaded asa bartoademar.d ? Is not the case precisely similar ? They are both instituted at the suit of an individual, and not necessarily by authority of the law; they are both the foundation of, and prelimi- nary to, all further proceedings, and in their effects they are precisely identical. Toconstruethe word proceedings in any other manner would be subversive both of the let ter and the spirit of the statute, and in vain will it be urged that the legal meaning of the word is process, or a proceeding stamped with legal authority. It wereindeed to be wished, both for the sake of the governed and the governor, that our statutes were more accurately and definitely penned, and that they were, as they are meant to be, an unerring standard to which every offence might be safely referred; but experience has proved otherwise instead of consulting for posterity ill the comprehensive spirit of legal philosophy, we accumulate statute upon statute, and precedent upon precedent till no in- dustry can acquire, nor intellect digest, the mass of learnmg that giows upon the paniing subject. And I feel confident that ail who are conversant with the work- ing of our penal code will concur ith me in my con- cluding observation, that to leave it to the breast of the judge to relax or to supersede solemn enactments whenever he shall think particular cases not within the reason of them, is a matter of greater mischief in its tendency and consequences than that which is intended to be obviated by it; for this is in fact making the discretion of the judge the only law in such cases^—an error which our forefathers seem to have been even illibe- rally studious to avoid for their creed seems to have been what I have read expressed in so much energy ( f language by a great judge of the last century The dhcretion of a judge is the law of tyrants it is always different in different men it is casual and depends upon constitution, u temper and pussion in the best it is oftentimes caprice in the worst it is every vice, reIly, and passion to which human nature is liable.* Trusting you will pardon the length the subject has in- advertently led me into, I am, sir, your warm and constant supporter, PHILODICiEUS. Lincoln's Inn, June 12, 1833. Lord Camden, in Doe v. Kersey, 1165, C.P.




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