Old Bailey, Monday, Nov. ...
This was a peculiar ea of' misdemeiano., wicr was preceded by a plea against thejurisdiction. 1Mr. ALL.EY objected ou behalfof the detendant, to plead to the Jurisdiction. The clarge arose out otf the late Alarriage Act, and the misdemeanor was laid for taking a false oath in obtaining a marriage licence, and thereby committing perjury. He submitted that no perjury could be comusitted by an oath taken ex.parte in an ecclesiastical 'court, and he was confirmed in that opinion bv the words of a judgmnent of Lord Ellenborough, who clearly distinguish. ed the taking of an oath ex-parte in an ecclesiastical or any other court, and the taking of an oath in a cassc, the particularof whicli, witi conflicting averments. werealtogether before the samie court. in The Co coT SERGEAXT stuggestedI that this would come better iarrest o. judgment; in the mean time, the opinion of the jury iight be taken on the fatncts. Alr. ALLEY was afraidI to let his client plead, les,t the record should be too perfect on the face of it for his objection to avail, Should the verdict of guilty accompany it up to thie superior court. The ComtvvOs oSPerc eAuT saidI,that the objection toucDed upon m0atter of much coo high import for hpr to deal with. It would, however, lose none of its weight if brouel in arrest ofjudgment. Mr. ALLEY consented to postpone a objection till the verdict was recorded. Mr. ADOLPHUtSr then sacuedl e casmi, which he charaterized as one of those despicable enterprises of needy and unprincipled sen upon the property and peace of respectable families. The defiendunt, who uad been deucribed as a gentleman, was in fact a journeyman carsenter, or bricklayer who had (to make the recital short) enticed SThemarriage icnc Suaolk toe Lrondone, -and wp mrrved flto therb f i c e nc e ,u in St.t An d rc t e w s bch ur , s he , b e i n g no m o r e c it e d ye a r The proper witnesses were then called frois thc e Vicar-General' office, who proved the swearing of the affidavit before the Surrogate Dr. Daubeney, and the consequent irsuing of the marriage-lhicence. Alr. ALLEY now took anstiser objection that the official appoint. merit of trhoe urrogate, before whom the a?l~davii was sworn, oug1ht to be tn befre the Court. He grounded this objection oec the lopinionof the ourt of King's Bench, wbichwz wsemthati cuponsthe point, in the eazse of the "King v. Verelst." The CoaatoN SERGEANTTcould not adniit the objection, further thanto llo quetios a to he nowedge of thie exercise of' the Surrgates fnctins i swarin of uchaffidavits. Thi pont asovecom b evdene,that Dr. Daubeney had for 20 yarsbee inthepraciceof weaingparties to affidavits or that T'he sexton of St. Andrew's gave evidence of' the marriage, whichi struck him at the time as being a forced, match. (Vitness mneant a stolen match.) This lMas phras-e produced a very wratisful and eloquent remon- strance from the learned counstel examining, against the guilty con- nivance of the sextOn), who defended himself in a voice almost as loud, but in much fewer words, by reminding his moni.tor that there wass a licence prodluced. The marriage licence was then proiluced, and proved fatal to tile first count ini the inidictmernt; because, being therein recited, there was the diFference of'the word "1rites" (of the churchi) in the licence, and "rules," the word used in the record. The probate of thievll of the late tr oprwspodue r iupport of' the othier counts. The will settled 5OOl, on eac of hIS laul hters, on their comingof age, or on thecir rn~rrfage with consent if the mother and guardians, together with equal shares of the resi- diue at the death of the mother, which resIdea the mother subu. quently ralued at 1,5001. morp for each.-Another objection was taken that the affidavit lid not Ao, so far as the oath was conceiied, io aBny thing which the dgfendant might not contcienciousiy believe. The words "being both 21 years of age or-upwardA," werenmatter of pregmblo or recitalx atter wfhich the gistrpment stated tlat "the defendant makech oath an' saith," that heknowa no cause arising out of consanguinity, or other lawful ihlpediment, why-they ahould not be joined together in holy matrimony. The objection was opposed by Mr. A3DOLIPus and Air. BRo. DnfitcK, who contended th,.t the defendant must have had know- ledge that there was a legal impediment. The ComS3roN SERGEANT thought that there was something In the objection; but the best way of deciding that point, would be to leave it with the jury, to say whether o. not the defendantbad that knowledge at thxe time of taking the affdavit. Mrs. Cooper and the two guardians proved that they, had never heard of Illulley's suit ormarriage befor-eltesolemnization,norhad they ever given their congent to it in any way. Johanna Cooper was present with her siater in Mrs. - cot. tage after coming out of church of a Sdnday afternoon in Auagust last, to which place they went with AIulley in consequence of a showero rain. liepersuadedhersistereggoout, andwitneaswent too. Tnere was a post-chaise at a little distance. fle sister cried wbile Mulleyput her inm it. The post-boy helped. Iler sister was not willing to go. Witness went into the chaise too. (The learned Counsel would not stop to examine by whose force or persua- sionthe witness wasinduced to enter the chaise.) Thc chaise drove off with all speed, and they stopped not till they arrived at Ipawclti. Mulley had a pistol, and swore that he woutld shoot any one who shoald come after them. They got into the London coach at Ips- wich. Witness had nothought of coming to London on leaving the chutch in the afternoon. They arived at the White Hone, Fetter- lane, at about nine o'clock on the Llonday morning. They went af. t terwards to the Bell and Crown, Holborn. Iler sister wras martied to lMulley on Tuesday morning. There was ai convorsation about their ages. tAt this fqoment the husband of the witness, against whom a si milar indictment was pending was o7ercome with the heat of the court and the agitation of his feelings. The witneSs also was moved nlost tO hvsterics, so that it was not posslble to prosgeCss her exa- mnination fdrther.) \lUr ALLEY took summeary objections to the remaining counts of the indictment. The offenice was not charged "against the form of the statute," though it was created by tbe statute, and dfd iiot exist at common law. As there were new.fanglcd notions prevalMnt In all ether branches of law, so, in this of marriage, io many varying and contradictory whims had been made lawby the two l "ousesofLegis. lature, that it was next to impossible for a man of only common in. formation to know what the state ofihalaw was. The Comsseox SEUGOEANT thought that the best way to pro. coed would be to examine firs to which of the counts the evidence which was now closed could be made applicable. He was of opinion that the third count failed. It recited that Catherine Cooper, having no father living, and being entitled to 1,5901. etsonaI property, Mlulley, "iwell knowing the premiess," did solicit, in- veigle, &c. Now, there was no evidence of his well knowing the premises. He was of opinion, too, that there was no evidence suf6 ficient to send to a jury that the defendant knew that he was com. mitting wilful and corrupt perjury in swearing that he knew of no lawful'impediment to the marriage. There appeared now to be nothling left but the fifth count, which charged false swearing on the defendant for talking his oath that he had been residing 15 days in theparish of St. Andrew. Alr. ALLEY applied himself to this remaining charge, and taook the opportunity of renewing his lirst objection, that there could be no perjury ni an oaRth sworn ex parte in an ecclesiastical court-an opi. nion which was not only sanctioned by the whole stream of authori. ties, but one which he had never heard controverted in the slightest degree. The COMMON SEROEANT said, that according to his present ins- pression,there was no substantial charge made good out ot the counts in question by the evidence produced in thie case. It was true that this was mattor more fitting to be adduced in arrest of judgment; but it would be scarcely worth while to trouble the jury with a long story, if he were right. Mr. AxOtiPms said tbat there was a short answer to the sweep- ing and general description of what was the opinion of the profession he etofore.-which was, that till the 4th of George IV. the Sur. rogate was not empowered by the statute to receive an oath from parties praying a licence. The ecclesiastical courts, for their own purposes, imposed an oath, but upon that there could be no as. signment of perjury at common law. That statute empowered the Surrogate to receive an oath; and by the common understanding of law-by the analogies of the (Grenville Act, and all other acts wlhich gave the power to particular officers to receive oaths ex:rpasrte -assignment ef perjury on taking such oaths falsely would lie as an inevitable consequence. The Coaritox SERGEANT said that his impression was, that all those statutes enacted the perjurv in express awd gssarded terms. Upon more argument, however, he hesitated; because lie observed, that wbere the Acts did not enact the perjury, they generally re- cited "and thereby committing wilful perjury"-taking the perjury and its consequences as matter of course. AIr. PRtENDERGAST said that the 4th Geo. TV. was passed to repeal the 3d (Geo. IV.; and the latter statutte did, and the former did not, contain the clause which declared that the taking of such false oath should be perjury: therefore there was no asSignment antler the existing law. The ComoNox SEB(GEANT said, that the inference would rather lead the other way, as if the Legislature were aware that the perjury would be assigniable without the declaration ; because it was not to be colnceived tbat the Legislature would lower the punishment in an act for continuiRg the offence. Air. A LLEY again objected to allow the evidence in a proof of perjury in a case like this, where the oath alleged ro be falre was op- posed hy no contradictory avernients; in short, there coald be no perjury withott express enactment any where but In a judidal pro. ceedig. He wished to know if the Court was with him, that there was nothing in any of the counts except the fifth ? The CoMMoM SERGEANT said, I am afraid you must go on, Air. Alley." AIr. ALLEY then addressed the jary In defence. He appealed to the sense of the jury for the justifilatlon of his elient'a character. (The witnessee had spoken very favottrably of him.) He proceeded to expound the wording and intent of this new law, 4 ico. IV., which was meant (he begged pardon of the soft sex for saying it), not so much to guard young women against the men, but young men of fortune against the more successful arets of the women. That law conveyed aU the property in suci cases to the Attorney-General, to make such settlement or disposition upon the children, or on the fa. mily, as he might judge best. The husband, therefore, did not, could not, touch a farthing of thie fortone: respecting wbich, come what would of it, how could it be alleged tbat he had married her for it? The learned counsel very warmly deprecated the unnatural and cruel motives which had led to the hatching of these prosecutionsa which could only tend to imbitter the lives of the young people, who were the most kindly disposed towards each other. Witnesses were then called who confirmed the good Irpression whichi had been made before as to the invariable good behaviour and proper character of the defendant. The COMiMON SERGEANT, in charging the jury, threw out the counts whicb alleged" enticing and inveigling" the youn& lady, be. cause in the first place this was too loose for the legal definition of an oaence against the statute; and moreover, those counts Incorporated a chargeof "well knowing" that slie was entitled to l,5001. portion, of which knowledg there waanoevitlence before thejtury.There wasonly one count which was stated with suffident accuracy; and supported at the same time by evidence, toground a charge of perjury upon; and the fifth c(ount alleged false swearing, whichi, strange to say, might not be perjitry in law. Upon these two counts only had the jury to decide. The Jury retire( at 15 minutes past 10 o'clock, and returnet at five minutes past h1 o'clock. They pronounced the defendant gailty of perjure/ on one count of the four which alleged it; *notguiity on the othet three; and guzilty of ful.ce x>.trecring on the fifth. The defendant, who had hitherto been at large, now took a sor- rowful leave ofhisfriends andrclations who were about him,and gave himself up to the custody of the gaoler.- O,D BAIl.EY OflONMAV NV-n1 I -- -1- .. - ---