Cracking The Calendar Code

[Chris]

My interpretation of what he states is that bail was automatic for what he termed as minor misdemeanors to which he categorizes Tumblety`s offences, and states that on Nov 7th he was entitled to be bailed.

But his offences do not fit into this they were not petty misdemeanors triable summarily

No, David's talking about indictable misdemeanours. The Indictable Offences Act, 1848, divided them into two classes - what David calls "grave" and "petty". For the petty sort (including Tumblety's), there was an automatic right to bail at committal, but before committal bail was at the discretion of the magistrate.

[David Orsam]

My interpretation of what he states is that bail was automatic for what he termed as minor misdemeanors to which he categorizes Tumblety`s offences, and states that on Nov 7th he was entitled to be bailed.

But his offences do not fit into this they were not petty misdemeanors triable summarily

Trevor, as I made clear, all misdemeanor offences other than those listed in the s.23 of the 1848 Indictable Offences Act required bail at committal.

Persons who are in custody without warrant for any trifling offence, even light felonies, and cannot be taken before a Magistrate within 24 hours must be bailed provided that they are well known and not likely to escape ( this is where discretion prevails? and reasons for not granting bail as I previously stated.

If you actually read what you have quoted you will see that is a reference to police bail. Something entirely different.

So there was no obligation to bail Tumbley on Nov 7th discretionary or otherwise.

There is no such thing as a discretionary obligation. A magistrate would not have been legally obliged to bail Tumblety on 7 November but the likelihood is that on application for bail he would have been granted bail for the reasons I have explained ad nauseam.

Yes there were exceptions to the rule but many of those who were bailed prior to committal were not such a risk of leaving the country as he was.

I gave the example of a foreigner, Dario Sanchez, remanded on bail yesterday. Here's another one (albeit a larceny offence):

Charles Rosenberg, alias Count de Riviez (or Reivere) described as "a well dressed man of German nationality" was charged on remand at Marlborough Police Court for stealing on 26 December 1888.

Mr Bathurst Norman, defending, said his client was well connected and could no doubt find substantial bail.

The magistrate, Mr Newton, granted a remand, fixing bail at two sureties in £500 and the accused himself in £1000.

I don't think he found bail because, at the committal hearing on 3 January 1889, the bail was reduced from £1,000 to £100. According the Calendar for the January 1889 Middlesex Sessions, he didn't even find that because no bail is recorded by his name.

He was found guilty at Middlesex Sessions on 23 January 1889.

Sources: Daily Gazette for Middlesborough, 27 Dec 1888, Times, 28 Dec 1888, Morning Post, 28 Dec 1888, Standard, 4 Jan 1889, London Daily News, 4 Jan 1889, Morning Post 24 Jan 1889, Middlesex Sessions Calendar, Jan 1889.

[David Orsam]

Then we get back to the crunch statement "The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial.” and why was that?

It is nothing short of remarkable that, having not referred to this quote from Douglas at all in the correct "Fresh Perspective" thread, you now ask such a question, totally off topic, in this Calendar thread. Even more remarkable is that you ask it at all considering that my entire long post in the "Fresh Perspective" thread was devoted to answering that very question. Nevertheless, I shall do my best to explain it again.

As I have already stated, the sentence you have quoted first appeared in the 1894 edition of Douglas but was not included in the 1887 edition which was the existing edition at the time of Tumblety's arrest. It is not saying that someone charged with a misdemeanor had no right of bail prior to committal – the 1848 Act (s.21) specifically states that a magistrate may remand a prisoner on bail prior to committal – but that it was "generally believed" that the automatic, compulsory, statutory right to bail did not apply until after committal. I believe that he phrases it in this strange way is because there was one school of thought that said that it DID apply before committal. In this respect I previously quoted the exchange between Mr Bompas QC and Mr Justice Manisty in the December 1888 case of R. v Manning in which Bompas argued that a magistrate was bound to admit a prisoner to bail on remand as well as on committal.

Although I did not go into that point in detail in the OP, it seems to me at least arguable that when s.23 of the 1848 states that a magistrate shall admit a prisoner to bail "after taking the examinations in writing" it does not necessarily mean at the committal hearing because examinations could be taken in writing at the first remand hearing and then the hearing could be adjourned. In other words, despite the use of the word "after", s.23 does not expressly state that that this means after the conclusion of the examinations in writing. So there was an argument there that the magistrate was in fact bound to admit to bail before committal under the Act.

Interestingly, this interpretation seems to have been the one made by Seymour Harris in "Principles of the Common Law" (1886 & 1892 edtions) because, when he discusses s.23 he makes no distinction between pre and post committal.

"In what cases may, and in what cases may not, a magistrate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a Secretary of State, or by the Queen's Bench Division, or a judge charged thereof in vacation. If the prisoner is charged with some other felony, or one of the misdemeanors enumerated below, the magistrate may, in his discretion, but is not obliged to, admit to bail. The misdemeanors above mentioned are: - Obtaining, or attempting to obtain, property by false pretences; receiving property stolen or obtained by false pretences; perjury or subordination of perjury; concealing the birth of a child by secret burying or otherwise; wilful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a peace officer in the execution of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misdemeanour of which the costs may be allowed out of the country rate. In other misdemeanours it is imperative on the magistrate to admit to bail."

Technically (and legally) speaking, in my view, he should have made the distinction but for me it just shows that in practice there was no real distinction between pre and post committal bail. All Douglas was doing in 1894 was saying that this distinction was generally made in law, and the automatic statutory right to bail only applied after committal, but that this required some elucidation for his reader.

Surely Trevor you must understand the point. Chris has put it very succinctly to you in a number of his posts.

[David Orsam]

Again you are wrong we get back to the Douglas statement "The generally received impression appears to be that the right of bail in misdemeanor does not arise until committal for trial.” The wording doesn't state that bail would not be granted until after committal, but clearly I would suggest that many cases fell into that category for Douglas to make that comment.

In cases where bail was not granted until after committal the question has to be asked, what were the circumstances which would have led to prisoners being remanded in custody until after committal?

I will wait for your answer before giving mine

Well I have to say your question is very badly worded because it is based on the assumption that "bail was not granted until after committal", in which case, by definition, the prisoner would be remanded into custody in all circumstances, because bail was not granted. For that reason, I don't know if you are asking me why a magistrate would not grant bail or why a prisoner would be remanded into custody, which are two different things.

Further, you do not say what class of offences you are asking me about. I assume you mean in cases of petty misdemeanor only (by MY definition).

So I am going to interpret your question as: "What were the circumstances which would have led to a prisoner, charged with a petty misdemeanour, being remanded into custody until after committal?"

The first answer I will give you is: if the prisoner did not make an application for bail. In that case, bearing in mind that admission to bail was not automatic before committal, a warrant of remand, remanding the prisoner into what was known as "safe" or "friendly" custody would be made out by the magistrate and the prisoner would go to prison. Why would a prisoner not make such an application? I can think of three reasons:

1. He was not legally represented and did not know he was entitled.

2. He was broke – all his friends were poor – and he knew he would never be able to find bail either in himself of with sureties so did not bother.

3. He was happy to go to prison because his life was so miserable.

There may be other reasons.

Secondly, if the magistrate was told that more serious charges were imminent. (I made this point in my original post).

Thirdly, if bail was granted but the prisoner could not find the bail either in himself or sureties at the police court, a warrant of remand would again be made out but the magistrate would write the bail conditions on the reverse of the warrant. The prisoner would go to prison and remain there until committal if he could not find the bail and, if he still could not find the bail, he would remain in prison until his trial.

So it is perfectly possible, and certainly did happen, for persons charged with petty misdemeanors to end up in prison until their committal and after their committal.

[David Orsam]

Was he looking for cases where prisoners were remanded?

Yes I most certainly was. I don' t have any secret access to newspapers, I know that anyone can read most of them online these days, so it would have been foolish for me not to look for such cases. But it's not simply a case of a prisoner being remanded – that might happen for the reasons I explained in my previous post - it is a case of a bail application being refused. For the record, what I said in the OP was: "I find that in almost every case of a prisoner charged with a Petty Misdemeanor, bail was offered if requested". What I repeated yesterday was "They didn't all get out because they couldn't all find the sureties but if they could and they applied for it they were almost certain to get it".

Of course, I cannot say I have looked at a report of every single remand hearing of a petty misdemeanour – such a thing would be impossible – but I looked at a very large number and I never found a bail application refused for a petty misdemeanour. I included the words "in almost every case" to cover the possibility that such a thing might have occurred - and I had in mind the possibility that obtaining money (as opposed to property) by false pretences, such as in the case of R. v Mullins, MIGHT have been a petty misdemeanour – but, that aside, I never managed to find one.

His whole argument revolves around the fact that Tumblety having been arrested on Nov 7th was either bailed there and then in his own recognizance, that would not have happened.

Another extraordinarily inaccurate statement Trevor.

In the first place, I have repeatedly said that there is no evidence that Tumblety was arrested on 7 November. I expressly stated that he could have been arrested earlier than this, for example, late on 6 November.

Secondly, there is absolutely no way that Tumblety was "bailed there and then in his own recognizance" because we know he went to prison on 7 November. He might have been granted bail in his own recognizance on 7 November and the police might have needed 24 hours to confirm that whatever security he offered up was good but he certainly went to prison on 7 November and was not liberated on bail on that date.

For him to have been out on the loose the night Kelly was murdered he would have to have sureties in place on Nov 7th when he appeared at court for bail to be granted there and then. That would not have happened because as has been stated up to 48 hours was required for sureties to be checked out.

That just doesn't make any sense and it is so hard to respond when you post non-sequitors like this. Your repeated use of the expression "up to 48 hours" is nothing less than a twisting of the words of Douglas who clearly stated that the usual notice period in suspicious case was 24 hours. So your constantly saying that it could, possibly, have taken 48 hours – with which I don't disagree – without noting that the usual time period was 24 hours, is impossible for me to fathom. What I have said is that it is very likely for bail to have been granted on 7 November, with Tumblety either having already lined his sureties up or been in a position to do so that day, and for the usual 24 hour notice to apply, so that he was released from prison on 8 November. I've lost count of how many times I have posted this and I wouldn't mind were it not so very simple to understand.

So by my reckoning he would not have had his sureties in place until Nov 8th

This is a question of fact. You can't simply "reckon" such a scenario into existence. You need evidence to support it.

Now I am sure it will be said well, he could have had his sureties named on Nov 7th.and 24 hours to check them out would have meant he was on the loose the night of Nov 8th.

AHA! So you do understand the point against you after all.

But of course the other side to that is that if he had his sureties in place on Nov 7th and it took the full 48 hours to check them out then he would not have been on the loose the night Kelly was murdered

Apart from the ridiculous reference to "the full 48 hours" – in circumstances where taking 48 hours was unusual – I don't disagree with you and I made effectively the same point in my "Fresh Perspective" OP when I wrote: "What cannot be said with any degree of certainty is if, having been admitted to bail, he was actually able to ensure his liberation by finding two sureties, and whatever security he was asked to put in himself, within the time frame."

[David Orsam]

We know Tumblety was bailed after committal that isn't an issue, we know it took 48 hours for that to happen,That is in line with what we know that the courts/police needed up to 48 hours to check out sureties.

You have become so muddled up here Trevor that it is unbelievable. On the basis of Tumblety not being released from prison until 48 hours after his committal you seem to think that it ALWAYS took 48 hours to check sureties. Firstly, we don't know with any degree of certainty that the reason for the 48 hour delay in Tumblety's case was due to the police requiring that amount of time to check his sureties as opposed to Tumblety needing extra time to persuade two sufficiently wealthy men to stand bail for him. Secondly, just look at the case of Henry George Ginger which I posted again for you at your request yesterday. Warrant of committal dated 15 November 1888. Bailed on 16 November 1888. It only took him 24 hours!

For me the amazing thing is how, having quoted Douglas time and time again in the past, you don't seem to believe him when he said, as clear as crystal, that the usual notice period was 24 hours.

[David Orsam]

Theoretically, there were options for him to be bailed as has been said it could have been possible but in reality I would suggest highly unlikely

The question you need to ask yourself Trevor is this: Would Tumblety have been happy to spend a week in prison in circumstances when he could have applied for bail and been pretty much guaranteed to be allowed it, and liberated on finding the required sureties?

[mklhawley]

The question you need to ask yourself Trevor is this: Would Tumblety have been happy to spend a week in prison in circumstances when he could have applied for bail and been pretty much guaranteed to be allowed it, and liberated on finding the required sureties?

Hi David,

Time and time, again, Tumblety did everything possible not to be incarcerated. His days incarcerated after the Civil War affected him greatly, even his health. For Tumblety to have stayed in jail just to save a dime, would have been counter to his nature.

Sincerely,

Mike

[David Orsam]

Hi Jeff,

By 1888 Newgate was no longer a full-time prison. Adjacent to the Central Criminal Court, it was being used as a temporary house of detention for prisoners awaiting trial during the periods the Old Bailey was sitting.

Until its demolition in late 1890, Clerkenwell House of Detention housed remand prisoners from Middlesex police courts.

Tumblety was transferred from Clerkenwell to Newgate on the issuance of his trial warrant [Wednesday 14th November 1888], and it was from Newgate that he was bailed on Friday 16th November 1888.

Holloway became a remand prison in 1891.

The other thing that's wrong with this post is the statement that "Tumblety was transferred from Clerkenwell to Newgate on the issuance of his trial warrant [Wednesday 14th November 1888]". Leaving aside the fact that Clerkenwell appears to have closed two years earlier, and it was five days too early for Newgate to receive prisoners for trial, the kind of transfer outlined here makes no sense at all. When the warrant of committal was made out on 14 November it would have named the prison and included the following command to the keeper of the prison:

"I do hereby command you the keeper of the said Prison to receive the said Accused into your custody in the said prison and there safely keep him till the next Court of SESSIONS of the PEACE..."

That being so, by what authority could any prisoner be transferred from a prison to which he has been sent on committal to a different prison when the gaoler has been commanded to keep the prisoner in his custody until the next sessions? As at 14 September the next sessions of the Central Criminal Court was on 19 September. Tumblety could not have been transferred from his prison of committal before that date. So I do not believe that the scenario outlined by Simon above is even possible.

In my view, at best, someone has seen some kind of small scrap of information about Tumblety which has been misunderstood and misinterpreted. About 24 hours have passed and Simon has not responded to my previous posts. If he is not prepared to defend his own claims then he might want to consider setting out the sources of his information so that we can get to the bottom of this issue and to ensure that misinformation does not remain without retraction on this forum.

[David Orsam]

Hi David,

Time and time, again, Tumblety did everything possible not to be incarcerated. His days incarcerated after the Civil War affected him greatly, even his health. For Tumblety to have stayed in jail just to save a dime, would have been counter to his nature.

Hi Mike - your talk of saving a dime has reminded me that there was, in fact, a small bail fee that needed to be paid by a prisoner on taking bail. It was only about a couple of shillings but it might well have deterred some less wealthy prisoners. I'm sure Tumblety would have had no problem with it.

[Amanda]

True..

Hi Mike - your talk of saving a dime has reminded me that there was, in fact, a small bail fee that needed to be paid by a prisoner on taking bail. It was only about a couple of shillings but it might well have deterred some less wealthy prisoners. I'm sure Tumblety would have had no problem with it.

Hi David/Mike,
That's so true. Tumblety had a deep aversion to being confined anywhere, almost to a degree of claustrophobia & would have done anything to avoid being imprisoned. He was such a flamboyant character & I sincerely believe he had both the financial means and the 'gift of the gab' to keep himself out of confinement.
Amanda

[Trevor Marriott]

You have become so muddled up here Trevor that it is unbelievable. On the basis of Tumblety not being released from prison until 48 hours after his committal you seem to think that it ALWAYS took 48 hours to check sureties. Firstly, we don't know with any degree of certainty that the reason for the 48 hour delay in Tumblety's case was due to the police requiring that amount of time to check his sureties as opposed to Tumblety needing extra time to persuade two sufficiently wealthy men to stand bail for him. Secondly, just look at the case of Henry George Ginger which I posted again for you at your request yesterday. Warrant of committal dated 15 November 1888. Bailed on 16 November 1888. It only took him 24 hours!

For me the amazing thing is how, having quoted Douglas time and time again in the past, you don't seem to believe him when he said, as clear as crystal, that the usual notice period was 24 hours.

It is you that is muddled, yes it did take Ginger only 24 hours but by the same token it took 48 hours for Tumblety so you cannot say 24 hours was the accepted time period for checking sureties. Those facts speak for themselves and I said "Up to 48 hours"

And what was Tumblety doing for those 48 hours between committal and bail?

Douglas also said that as a rule bail was only granted after committal so in one breath you want to use what he says to prop up your theory and in the next breath you try to say he was wrong to prove me wrong

You are so desperate and obsessed with trying to prove me wrong you cannot now even remember what you have said and what you havent

[Trevor Marriott]

The question you need to ask yourself Trevor is this: Would Tumblety have been happy to spend a week in prison in circumstances when he could have applied for bail and been pretty much guaranteed to be allowed it, and liberated on finding the required sureties?

No prisoner wants to spend time in custody but if you break the law then that is exactly what happens. Its not a question of whether he would have wanted to or not, he never had a choice. I bet he never expected to get his collar felt in the first instance, So to say what you said is a ridiculous comment

[Chris]

Douglas also said that as a rule bail was only granted after committal ...

As you know, Douglas said no such thing.

[Trevor Marriott]

It is nothing short of remarkable that, having not referred to this quote from Douglas at all in the correct "Fresh Perspective" thread, you now ask such a question, totally off topic, in this Calendar thread. Even more remarkable is that you ask it at all considering that my entire long post in the "Fresh Perspective" thread was devoted to answering that very question. Nevertheless, I shall do my best to explain it again.

As I have already stated, the sentence you have quoted first appeared in the 1894 edition of Douglas but was not included in the 1887 edition which was the existing edition at the time of Tumblety's arrest. It is not saying that someone charged with a misdemeanor had no right of bail prior to committal – the 1848 Act (s.21) specifically states that a magistrate may remand a prisoner on bail prior to committal – but that it was "generally believed" that the automatic, compulsory, statutory right to bail did not apply until after committal. I believe that he phrases it in this strange way is because there was one school of thought that said that it DID apply before committal. In this respect I previously quoted the exchange between Mr Bompas QC and Mr Justice Manisty in the December 1888 case of R. v Manning in which Bompas argued that a magistrate was bound to admit a prisoner to bail on remand as well as on committal.

Although I did not go into that point in detail in the OP, it seems to me at least arguable that when s.23 of the 1848 states that a magistrate shall admit a prisoner to bail "after taking the examinations in writing" it does not necessarily mean at the committal hearing because examinations could be taken in writing at the first remand hearing and then the hearing could be adjourned. In other words, despite the use of the word "after", s.23 does not expressly state that that this means after the conclusion of the examinations in writing. So there was an argument there that the magistrate was in fact bound to admit to bail before committal under the Act.

Interestingly, this interpretation seems to have been the one made by Seymour Harris in "Principles of the Common Law" (1886 & 1892 edtions) because, when he discusses s.23 he makes no distinction between pre and post committal.

"In what cases may, and in what cases may not, a magistrate take bail? Not if the prisoner is accused of treason. In that case it is allowed only by order of a Secretary of State, or by the Queen's Bench Division, or a judge charged thereof in vacation. If the prisoner is charged with some other felony, or one of the misdemeanors enumerated below, the magistrate may, in his discretion, but is not obliged to, admit to bail. The misdemeanors above mentioned are: - Obtaining, or attempting to obtain, property by false pretences; receiving property stolen or obtained by false pretences; perjury or subordination of perjury; concealing the birth of a child by secret burying or otherwise; wilful or indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a peace officer in the execution of his duty or upon any person acting in his aid; neglect or breach of duty as a peace officer, or any misdemeanour of which the costs may be allowed out of the country rate. In other misdemeanours it is imperative on the magistrate to admit to bail."

Technically (and legally) speaking, in my view, he should have made the distinction but for me it just shows that in practice there was no real distinction between pre and post committal bail. All Douglas was doing in 1894 was saying that this distinction was generally made in law, and the automatic statutory right to bail only applied after committal, but that this required some elucidation for his reader.

Surely Trevor you must understand the point. Chris has put it very succinctly to you in a number of his posts.

The waters are becoming muddied

The whole argument centers around the fact that could Tumblety have been bailed before his committal? Not the fact that bail was automatic after committal, because the only time period of interest is Nov7th -Nov 14th Lets take this a stage at a time and slowly. Becuase ehat happened or didnt happen bwteen those dates impacts on what happened between Nov14-16

You suggest he could have been bailed on his first court appearance on Nov 7th. But if bail at that stage was at the discretion of the magistrate what would be the grounds for that magistrate using his discretion and not granting bail on that date to Tumblety, In your reply lets stick with Tumblety because no two cases are the same so forget about any others and focus on this one solely.