The Times, Wednesday, Sep 05, 1821; pg. 3; Issue 11343; col B


                              SUMMER ASSIZES.
                                    --------------
                     CARLISLE, FRIDAY, AUG. 31.

     FALSE IMPRISONMENT. - CROSBY V. FORSTER, ESQ.    

Mr. SCARLETT. - Gentlemen of the Jury, it was not only my wish, but my duty, to
save time by putting an end to this cause at the earliest possible stage. That,
and not any apprehension of the result, was my reason for the application I now
made to my Lord. You have heard only the half of the case; it is my business to
give you the other half. Nothing is more dangerous or more inconsistent with
justice than to allow party feelings and prejudices to be introduced into courts
of justice. In the very nature of politics, it is impossible that politics
should be discussed without party; and it would be dangerous to the country if
party did not exist. What raises a popular feeling in the country, though it may
too often disturb tranquillity, serves to give spirit and vigour to public
liberty. Popular politics, when not carried to a dangerous excess, though
corrected in particular instances, are necessary to the machinery of our
political constitution. It is impossible that a contested election should be
carried on without popular feelings. It is the duty of a magistrate to prevent
tumult, and when an honest magistrate, who can feel, and ought to feel, no
desire but to preserve the peace, does his duty on an occasion when it is more
than ordinarily difficult, they were not to blame him or to lay too rigorous a
hand on him. Party feelings at elections ought never to come into courts of
justice. They are out of their place there, and ought to be discountenanced by
judges and juries. This cause arises from the forbearance of Dr. HEYSHAM. If he
had prosecuted at the quarter sessions, as he had intended, the plaintiff would
have been convicted, and they would not have heard of this action. But Dr.
HEYSHAM feeling that it was not worth his while to prosecute so long after the
election, on that account, and that only, you are entertained with this case. My
case is not inconsistent with the plaintiff's; it is only a filling up of his
case. My learned friend, Mr. BROUGHAM, introduced the military, as if you were
to try that. Another tribunal is the fit one for that question; and if it can
come before you, it is on a question of a different nature from the present. You
may again hear Mr. BROUGHAM give another dissertation on that subject, but I
protest against its introduction. It was agitated in another place (we believe
the House of Commons), and received no censure. My learned friend introduced
another question - what part the defendant took at the election. A magistrate
has the right to feel party feeling as well as another, but if he acts on it as
a magistrate, he is wrong. Every man considers his own party the right one,
gentlemen. But the question for you is, whether the plaintiff was lawfully
imprisoned. I expected that my learned friend was to show CROSBY to be a voter,
and Mr. FORSTER to have imprisoned him that he might not vote against him. There
were violent riots in fact. They might be bustles and confusions only, but some
have more timid minds, and they conceived themselves in imminent danger. The
riot act was read, and the soldiers were sent for. A shower of hail had driven
the people into courts and lanes. It was over as the military came, and then a
mob collected again. Mr. BROUGHAM may say the military occasioned that. I won't
contend about it. CROSBY was particularly active - went up to the soldiers, and
taunted them to fire - defied them, as you often see an insolent man doing who
has no part to act in the business that is going on. He took hold of Dr. HEYSHAM
by the coat to throw him into the mob. There he might be roughly handled. I only
put that as a possible case. (The learned gentleman described the struggle as
the witnesses afterwards state it.) If a magistrate look on, and suffer such
proceedings to go without interfering, it may be asked whether this is a land
that men can live in, as it has been eloquently put by my learned friend Mr.
BROUGHAM. The election lasted a week. To the 27th there was the same confusion
as on the 24th. It was the duty of the magistrate to prevent the commission of a
felony by dispersing the rioters. The sum and substance of the charge in the
second warrant is the assault on Dr. HEYSHAM. No regular bail was offered at
all. Mr. STANLEY is a magistrate, and might have taken bail, as any magistrate
might do; but the object was to nurse up a case for the Assizes. Dr. HEYSHAM
found that CROSBY was a pauper, receiving parish-relief; and he thought, in
point of humanity, that it was better not to prosecute. By misapprehension the
clerk of the peace thought the warrant expressed more than a misdemeanor, and
had him not up to be discharged. Mr. FORSTER was not answerable for that. Mr.
FORSTER then committed the only irregularity that is in the whole case - he
directed CROSBY to be discharged; but this is not the ground of the present
action. The facts I shall prove to you. It is the bounden duty of a magistrate
to keep the peace on both sides. It is in human nature to suspect him if he
takes a part in the election. If a magistrate were suffered to be assaulted, it
would be an encouragement to others to other assaults. I am very free to
confess, that if it were in time of quiet, and the election were over, and my
advice were asked, I should say, "It is as well for you to have the parties
before you, and have an examination. If the commitment was for the assault, and
the magistrate who committed saw it with his own eyes, it was quite regular, but
I would rather have him brought before you." Any magistrate might have bailed
him: but you see the effect of party. The action is not for an injury: no, it is
not said that he suffered any injury; but it is for an apparent triumph to a
party. Gentlemen, you ought to have no such feeling. What motive could Mr.
FORSTER have, a respectable man and a banker, to send a man who is no voter to
gaol? If I prove these facts to you, the defendant will be clearly entitled to
your verdict.