1777.

virtue of this order he was removed to Hicks's Hall, and examined before the Grand Jury accordingly. The bill was DODD'S CASE. found" a true bill," and the name of Lewis Robertson indorsed, among others, on the back of it, as a witness for the Crown. On the 21st February, the Justices of Gaol Delivery at the Old Bailey, being informed of the order which Mr. Deacon had made, and of the transaction which had taken place in consequence of it, made another order, declaring that the order of the 19th February had been surreptitiously obtained, and that it was illegal and void.

DOCTOR DODD, on being called to arraignment on this indictment, submitted to THE COURT, That as Lewis Robertson was in custody under a legal warrant of commitment, as a principal in the offence with which he was charged, and, without having been admitted a witness for the Crown by any legal authority, had been carried before and examined by the Grand Jury, by virtue of a surreptitious and illegal order, the indictment against him had been found upon improper evidence, and therefore he ought not to be compelled` to plead to it.

THE point was argued before MR. JUSTICE GOULD, MR. JUSTICE WILLES, and MR. BARON HOTHAM, by Howarth, Cowper, and Buller, Counsel for the prisoner; and by Mansfield and Davenport, for the Crown.

It was however ultimately agreed that the trial should proceed; and, on the Jury finding the prisoner GUILTY, the sentence was respited, and the question submitted to the consideration of the twelve Judges.

On the first day of May Session following, MR. JUSTICE ASTON delivered the result of their conference to this effect: "The Judges have met, and have fully considered the "whole matter of this objection; and they are unanimously "of opinion, that the necessity of some proper authority "to carry a witness, who happens to be in custody, before "the Grand Jury to give evidence, regards the justification "of the Gaoler only; but that no objection lies upon that account in the mouth of the party indicted; for in respect

66

"to him, the finding of the bill is right and according to "law.

1777.

DODD'S CASE.

Case 70.

"WHETHER a private prosecutor, by using an accomplice ❝in or out of custody as a witness, gives such a witness a "plea not to be prosecuted (1), or can entitle the prosecutor (1) See the case of Mrs. "himself to have his recognizance discharged, is a matter Rudd, ante, "very fit for consideration, under all the circumstances of page 115, "the particular case whenever that question shall arise; but "it is a matter in which the party indicted has no concern, "nor can he make any legal objection to the producing such " a person as a witness; for the accomplice is, against him, "a legal and a competent witness; and so was Lewis Ro"bertson upon the bill of indictment found upon this occa❝sion.

"THE JUDGES therefore are of opinion, That the pro"ceedings upon that indictment were legal, and that the prisoner was convicted according to law."

66

SENTENCE of death was passed upon the prisoner, on the last day of the Session, and he was executed at Tyburn accordingly.

The supposed

by the obligee,

THE EARL OF CHESTERFIELD was produced as a witness obligor of a forged bond, on the trial, to prove that the name "CHESTERFIELD" was being released not his signature; and on producing a release from Mr. Henry Fletcher, the supposed obligee of the bond, he was witness. admitted to give his evidence.

is a competent

See Akehurst's case, ante,150.

THE KING against PLATT.

CASE LXXXVI.

A prisoner

OLD Bailey February Session 1777. The prisoner had committed to been committed to the Gaol of Newgate on the 23d January

1777, by virtue of the following warrant,

"Middlesex,

"to wit.

"To the Keeper of his Majesty's Gaol of "Newgate, or his Deputy.

Newgate for high treason in North America, who is only triable before the

King's Bench,

or under a special commission, cannot be admitted to bail under the Habeas Corpus Act, by Justices of Gaol Delivery, or discharged by their proclamation for want of prosecution,

1777.

66

"THESE are in his Majesty's name to authorise and require you to receive into your custody the body of Ebenezer PLATT'SCASE. « Smith Platt, herewith sent you, charged before me, upon "the OATH of Richard Scriven and Samuel Burnet, with "HIGH TREASON at Savannah in the Colony of Georgia in "North America: and you are to keep him safe, until he "shall be delivered by due course of law: and for so doing "this shall be your sufficient warrant.

“W. ADDINGTON."

By the HABEAS CORPUS ACT, 31 Car. II. c. 2. s. 7. it is enacted, "That if any person or persons committed for high "treason or felony, plainly and specially expressed in the "warrant of commitment, upon his prayer or petition in

66

open Court, the first week of the Term, or first day of "the Sessions of Oyer and Terminer, or General Gaol Deli"very, to be brought to his trial, shall not be indicted some "time in the next Term, Sessions of Oyer and Terminer, "or General Gaol Delivery, after such commitment, it shall " and may be lawful to and for the Judges of the Court of King's Bench, and Justices of Oyer and Terminer, and "General Gaol Delivery, and they are hereby required, "upon motion to them made in open Court, the last day of "the Term, Sessions, or Gaol Delivery, either by the pri66 soner or any one on his behalf, to set at liberty the prisoner "upon bail, unless it appear to the Judges and Justices, upon "oath made, that the witnesses for the King could not be "produced the same Term, Sessions, or General Gaol De

66

livery and if any person or persons committed as afore"said, upon his prayer or petition in open Court, the first "week of the Term, or first day of the Sessions of Oyer "and Terminer and General Gaol Delivery, to be brought "to his trial, shall not be indicted and tried the second Term, "Sessions of Oyer and Terminer, and General Gaol Deli"very, after his commitment, or upon his trial shall be ac

66

quitted, he shall be discharged from his imprisonment.” PROVIDED, "That if any person or persons at any time "resident in this realm, shall have committed any capital "offence in Scotland or Ireland, or any of the Islands or

Foreign Plantations of the King, his heirs or successors, "where he or she ought to be tried for such offence, such 66 person or persons may be sent there, to receive such trial, ❝ in such manner as the same might have been used before "the passing of this Act."

1777.

PLATT'S CASE.

VIII. c. 23.

BUT by the statute of 35 Hen. VIII. c. 2. it is enacted, See 33 Hen. "That all treasons committed out of this realm of England "shall be enquired of, heard, and determined before the "Court of King's Bench, or else before such commissioners, "and in such shire of the realm, as shall be assigned by the King's commission," &c.

66

To enable the prisoner to procure his discharge under the Habeas Corpus Act, he presented his petition to THE COURT of Oyer and Terminer, and General Gaol Delivery (1), at (1) Mr. Justice Gould, the Old Bailey, on the first day of the February Session next Mr. Justice after his commitment; and no indictment having been pre- Willes, ferred against him, nor any affidavit made that the witnesses Perryn, for the Crown could not be produced during that Session, Mr. Serjeant he prayed (2) on the last day of the Session, that he might corder. be admitted to bail and discharged.

Mr. Baron

Glynn, Re

(2) See Barnardi's Case

dix to the 10

St. Trials, 64.

A QUESTION arose, on the form of his commitment, Whe- in the Appenther the Court of Gaol Delivery by their general power under the commission, or by their special power under the Habeas Corpus Act, had sufficient authority for this purpose?

THE question was argued by MR. HOWARTH and MR. ALLEN for the prisoner, and by MR. ATTORNEY-GENERAL (3) and MR. WALLACE for the Crown.

(3) Edward

Thurlow,

FOR THE PRISONER. Justices of Gaol Delivery have by Esq. the common law jurisdiction in high treason, by virtue of the generality of their commission; the words of which include all prisoners alike without exception (4). This is con- (4) In the modern commisfirmed by the statute of 1 Edw. VI. c. 7. which enacts, "That sions of Gao! "in all cases where any person shall have been found guilty Delivery, "of any manner of treason, and reprieved before judgment, expressly in"subsequent Justices of Gaol Delivery shall have power to cluded. See App. to 4 give judgment of death against such person, as the Jus- vol. Black"tices before whom such person was found guilty might have

treasons are

Comm.

1777.

"done, if their commission of Gaol Delivery had continued "in force." And it follows, says LORD COKE, 4 Inst. 169. PLATT'SCASE. that by the judgment of the whole Parliament, they may now deliver the gaol of prisoners committed for this high offence. By the HABEAS CORPUS ACT also, they are empowered to admit to bail a prisoner committed for high treason who has petitioned for his discharge, and who has not been indicted some time in the next Session after his commitment. Mr. Platt therefore, being found in the gaol, and having complied with the forms of the Act, is entitled either to be discharged, upon the proclamation under the commission of Gaol Deli(5) 2 Inst. 43. very (5), or to be bailed by virtue of the statute; for other

4 Bl. Com.

270.

wise a person might be imprisoned for life, without the possibility of redress; and the Court in its exercise of its powers by common law, or in the construction of the statute, will incline to do that which is most favourable to the liberty of the subject.

BUT it may be said, that this authority to admit a prisoner to bail under the HABEAS CORPUS ACT, or to discharge him at THE CALL OVER does not extend to cases of high treason which are not within the jurisdiction of the Court to try; and that the present case, from the statement in the warrant that the fact was committed at Savannah, can only be tried in the Court of King's Bench, or under a special commission, by virtue of the statutes 33 Hen. VIII. c. 23. and 35 Hen. VIII. c. 2.

As to the first point, suppose a person is in the gaol of Newgate for high treason committed in the County of York, this Court has no jurisdiction to try such a prisoner; and yet if his prosecutors were to neglect to remove him in due time by Habeas Corpus to the gaol of the County in which the offence was committed, and in which County alone he could be tried, the Court under such circumstances would certainly have a power to receive a petition for his discharge, and by admitting him to bail at the end of the Session, would prevent the perpetual imprisonment which must otherwise result from his prosecutors' neglect. Admitting therefore that the present offence can only be