From the West Kent Guardian, Saturday 12 February, 1842.

FRIDAY. (Before the County Magistrates.)

FURTHER PROSECUTION OF LICENSED VICTUALLERS AT CHATHAM.

Yesterday week a full bench of magistrates assembled at the office of Messrs. Essell, Hayward, and Essell, College-green, Rochester. The justices present were the Rev. George Davies, chairman, Wm. Elers, Edward Twopenny, James Smith, Thomas Bently, Thomas Baker, and William Master Smith, Esqs.

The Court was inconveniently crowded with publicans and others, owing to information having been laid against five licensed victuallers, at the instance of the Chatham, Rochester, and Strood Auxiliaries to the London Society for the Protection of Young Females, &c.

Several gentlemen were accommodated with seats on the bench; among whom was the Rev. Mr. Formby, the Rev. Mr. Alcock, and others.

Mr. Child, of the firm of Wire and Child, solicitors, of London, together with Mr. Richard Prall, solicitor, of Rochester, attended on behalf of the publicans. No one appeared for the society.

On the first case being called on, Mr. Walter Hills was asked by Mr. Hayward if he appeared to conduct the prosecution, who replied, "No, he had nothing to do with it; but before the case was heard he would, with permission of the magistrates, make some observations which he thought were demanded, in reference to a case (similar to those now about to engage the attention of the Bench) which they had heard some days since; and as some of his observations might apply particularly to Mr. Essell, he should be obliged by the attendance of that gentleman.

Mr. Hayward said Mr. Essell was from home.

Mr. Hills said he regretted that, but it would only compel him to forego all observations which could apply personally to Mr. Essell; and, with regard to Mr. Essell professional proceedings on the occasion referred to, as Mr, Hayward, his partner, was present, he apprehended the absence of Mr Essell would occasion no difficulty. The case to which he (Mr. Hills) referred was that of Henry Winter, against whom three informations had been laid for acting contrary to his licence, in keeping prostitutes. The case was heard in this court on the 14th of January last, he and his brother were the solicitors for the prosecution. The information charged the defendant not only with having committed the offence then to be enquired of, but also of having been convicted in 1839 of a like offence, so as to double the punishment if found guilty under the Act. Although there were three informations laid against the defendant, he (Mr. Hills) was instructed that there was no intention to proceed on more than should be sufficient to effect the object of the prosecution, viz., to inflict one double penalty on the defendant, and lay before the public the whole of the evidence they had against him, and which induced them to come forward as the prosecutors. This object they endeavoured to effect by the first information, but were frustrated by the decision of the founded on the opinion of Mr. Hayward, that having brought the evidence up to the end of the day named in the information they were precluded from giving further evidence. That opinion of Mr. Hayward was subsequently acknowledged by Mr. Essell to be wrong, but not till after the magistrates had, in consequence of it, decided against the admission of further evidence. The subsequent admission of the error in opinion on the part of Mr. Hayward, would induce him (Mr. Hills) to abstain from any further reference to it, except to mention that it laid the foundation for all the difficulty which had risen in the case. Having been thus prevented in that case from bringing before the public the whole of the evidence, as desired by the prosecutors, he (Mr. Hills) was compelled to alter his course, and, instead of pressing for a double penalty, as he had intended to do in that case, and waive all further prosecution, he abstained from givivg evidence of the former conviction of 1839, and only pressed for a single penalty for a first offence, which the magistrates inflicted. He (Mr. Hills) then brought forward another of the informations, and the magistrates having, on Sir. Essell's admission of Mr. Hayward’s error, allowed him to go into the whole evidence, he did so, and having thus obtained that object of the prosecution, he stated his intention to abstain in that, as in the former case, from giving any evidence of the former conviction, so as to have a single penalty only inflicted in this as in the former case — two single penalties being equal to one double one. Thereupon the Rev. Mr. Davis, the chairman, said the defendant was convicted; but the Bench having retired (as was supposed) to consider of the punishment, he, on their return, said the defendant was acquitted, and Mr. Essell would inform them of the reason; whereupon Mr. Essell said the reason was, that the prosecutors had not proved the former conviction of 1839, as charged in the information. Now having had no opportunity at that time of observing upon the reason thus assigned by Mr. Esssell, he (Mr. Hills) was desirous to take the present one, and ventured to say that it evidenced either an extraordinary mistake, or a gross ignorance of the law on a point of very frequent occurrence.

Here the Magistrates said, they must prevent Mr. Hills from proceeding further, as his observations had reference to a case which had been decided on a former day; and not to the one then before them.

Mr. Hills said, he trusted that as no opportunity had been afforded at the time for discussing the point, he should not now be refused it; and he had prepared himself with the best, proof the nature of the case admitted, viz., Mr. Bodkin's opinion, to prove how entirely wrong was the advice of Mr. Essell, on which the Bench had acted.

Mr. Davies (as the chairman), said, he felt bound to stop the further discussion.

Mr. Hills again begged, as a matter of personal favour to himself, that he should be allowed to proceed, as it had been intimated to him, that some misunderstanding existed as to the course he had adopted in this matter, which he was very anxious to have an opportunity of explaining particularly to the Bench.

Mr. Davies assured Mr. Hills, that he stood in no need of any explanation; for he was sure that he could answer for every magistrate on the Bench, that they were perfectly satisfied of the correctness of the motives and views with which he had acted throughout the proceedings; but he felt bound to stop the discussion.

Mr. Hills could only repent his regret at being prevented from proceeding further; but must bow to the decision of the Bench.

At our request, Mr. Hills has been kind enough to give us a copy of the questions submitted to Mr. Bodkin, on the point alluded to, and his opinion thereon is as follows:—

QUESTION.

"Whether the informer can or cannot, if he wishes it at the hearing, narrow the charge laid in the information by waiving the prior conviction of the 26th July, 1839, and have the defendant convicted for the first offence under the Act, instead of a second offence as laid in the information, or whether he must prove the whole of the information, viz.; the present charge, and also the previous conviction, to convict the defendant at all; or in other words, whether if he proves the offence now charged, but declines to prove the first conviction, the defendant must be acquitted altogether?”

OPINION.

"I am of opinion, that although the complaint may aver a former conviction, it is competent to the Justices to convict of a first offence, if ‘no proof be adduced to their satisfaction, that the party has been theretofore convicted.’ "

W. H. Bodkin.

The clerk read the first information, which was against Mr. George Lucas, of the "Cross Keys," Chatham, setting forth that on the 22nd January last he, being a person licensed under the act passed in the ninth year of the reign of King George the Fourth, intituled "an act to regulate the granting of licenses to keepers of inns, ale houses, and victualling-houses in England," was, unlawfully, guilty of an offence against the tenor of his license, by suffering divers persons of notoriously bad character, to wit, common prostitutes, to assemble and meet together in the said house, contrary to the form of the statute.

Mr. Child said, that he had been instructed to appear before the Bench on behalf of Mr. Lucas; and felt it to he his duty, to raise his objections to the validity of the information which had just been read, and which did not, upon the face of it, prove having been laid before any justice of the peace; neither did the name of any magistrate appear in the body of it.

Mr. Hayward : It is not required.

Mr. Child said, he differed in his opinion. The information ought to have stated — "Before me, James Smith, one of Her Majesty's Justices of the Peace, &c." The information did not even specify who is James Smith. That gentleman might be magistrate or not. As solicitor for the parties he felt it to be his duty to persist in his objection, before his client was called upon to plead.

The Magistrates consulted together some time, and then retired. After an absence of nearly half an hour, they re-entered; when the Chairman stated to the solicitor for the defendant that the Court required the authority for his objection.

Mr. Child said, that he was totally unprepared to quote any Law upon the point; but for the information of the Court, he would mention there was a regular form laid down, for the use of the Courts of jurisdiction, in Archbold's justice of the peace, and which form is generally adopted in all the police courts of London, for general purposes. On the face of the record, which is laid under a penal statute, it did not legally state that James Smith is a magistrate of this county or any other; for aught he knew, Mr Smith might not be a justice of the peace at all.

Mr. Hayward:- Although such a course is laid down for drawing out informations by Archbold, still he does not insist that it is absolutely necessary.

Mr. Child replied, that to prove that informations must bear the name of the magistrate before whom it was exhibited, he would refer the court to Burn’s Justice, where it is distinctly laid down that informations must be drawn out in the legal way.

The court referred to several law books, and retired to consult. On their re-entering, the chairman said to Mr. Child that the court admitted his objection.

Mr. Child said, of course the objection applies to all the other informations.

The Court:- Certainly. And the defendants were all accordingly acquitted.

Mr. Child then made some observations to the Bench, relative to the licensed victuallers of this neighbourhood. He had been called on by that useful class of men to stand forward as their adviser on this occasion; and his objection was not raised with any hostile feeling towards the Bench, but with justice to the parties accused. In ranking a few observations to the court, he would mention, that he attended a large meeting of the publicans last evening, and he could assure the magistrates that he found they were fully determined to abide by the law which regulated the rules laid down for the guidance of licensed victuallers. The court were fully aware, that the licensed victuallers in the neighbourhood were very differently situated to those of London. The locality of Chatham, with its garrison, where a number of soldiers are constantly kept, made it a difficult matter to a landlord of a public-house to know how to act with such characters who frequent licensed houses, he would instance a circumstance which occurred last evening at a public house. Two soldiers and some women came into the house, and after calling for some beer, one of the soldiers improperly put his arm round the girl's neck and committed other irregularities in the presence of the persons m the tap room. The landlord, if he had interfered with the soldier, might have caused some degree of excitement, which would have placed the landlord in a position of infringing on his licence, and been subjected to a penalty. He could assure the Bench that he was a perfect stranger to the towns but he must say that when he left the meeting of the victuallers at half past 10 o’clock, he was surprised to find the streets so very quiet.

Mr. Child then entered into a review of the conversation which he had had with the publicans; adding that he had told them distinctly of their improper conduct, and had pointed out to them their course to adopt; and from what passed, they fully agreed to yield to the interpretation of the interpretation which he had given, and which the bench had already put to them.