THE ABDUCTION CASE.

Evening Post, Volume XXI, Issue 62, 16 March 1881, Page 3

THE ABDUCTION CASE.

♦ TO THE EDITOR OP THI EVENING POST. Sib— As counsel for the accused in the ; above case, I feel in duty bound to offer a few words of comment on your leading article of last evening. Ido so, in the first place, because it seems to me that some of your statements are based upon erroneous trappositions of fact ; and, secondly, that, even where your premises are correct, your conclusions of law. are scarcely sound. With regard to your strictures on the conduct of the accused, from a moral point of view, I have nothing to say ; they are perfectly justifiable, but immorality is not an essential ingredient in the offence charged, and yon would certainly never contend that a magistrate ought in any case to be — lefrus- say — " decoyed "by consoientions feelings into creating an indictable offence purely on account of discreditable surroundings. v In the article in question, the facts are insufficiently stated. The only evidence as to the actual fact of abdnotion was that of the girl herself, and her evidence was direct and positive, and there was no reason whatever to doubt its correctness. It amounted to this — that the girl left her mistress (not her mother) of her own free will, without any inducement from, and indeed without the knowledge of Nigiotti. Her own story was that she had determined not to return, but of her intentions the accused was entirely ignorant, until the young lady herself proposed an elopement, some time after leaving the actual or constructive possession of her parent. Secondly, as to the law : Ton have stated the point of law raised by the case thus : — " The sole point is— Does the harboring of a girl under sixteen, against the will of her parents, such harboring being coupled with cohabitation, constitute the offence of abduction?" and again, "The obvious inference (i.e., from Mr. Shaw's decision) would seem to be that men may seduce young girls of 14 or 15, and take them out of the care of their natural guardians without incurring any- legal responsibility, providing only that the girls are consenting parties." I venture to affirm that this was not the point raised, nor the inference to be gathered from the Resident Magistrate's decision. The actual contention, raised was, that the girl's flight was purely voluntary, and not in any way induced by the accused, and the question submitted was, whether, wben she had ge e astray, he was bound to return her to f fold ? The cases of Bex v. Olifier and B, v. Green and Bates are sufficient to establh the proposition that no such duty iH ca a upon a person in the position of the accused. It was-never contended nor suggested from the Bench that anything whatever in the way of physical force mußt be proved ; and so far as the case of Bex v. Meadows lays this down, it has, of course, been overruled, It would . be absurd to assume that the prosecution are called upon to prove that the deceiver in such a case as the present has called in the assistance of a ladder or a wheelbarrow and run off with the young lady bodily. Coupled with the other cases cited, JRegina v. Meadows and the other case overruling it help, I imagine, to affirm the principle that though force is not essential, still there must be enough pressure or inducement brought to bear^tp negative any idea of the girl being the direct cause of the abduction. Her consent is of course per se no defence whatever ; nor was it in the present case bo contended or ruled. It is in this aspect of the case that the question of cohabitation becomes relevant. It is not at all (as I think you assume) an essential ingredient in the offence itself. It may supply a motive, or it may, as you point out, raise against the accused a primd fade case that he has induced the girl to elope. But pre- • sumptions exist merely for purposes of convenience, and are frequently rebutted. How could a Magistrate feel justified in following a legal presumption, where it, is direotly^anp absolutely contradicted by positive - evidence ? In this case, any such primd facie presumption was in point of fact distinctly negatived. Your idea that it would have served the culprit right to give him a few months in gaol awaiting his trial, even if he should turn ont to have committed no crime, could hardly have been expected to sway the mind of the Bench. It is the converse of the logic of the jury who finding a prisoner guilty recommended him to mercy on the ground that they were not certain whether he had " done it." I am sorry to have oovered so many square inches on a matter of no great public interest, bnt as you are the causa causam I hoj£ys]Mtt»pppared to divide with me t^e responsibility for the infliction. ** ( I am, Ac, Hugh Guilt. [Mr. Gully himself repeats our argument when he Bays j "It (cohabitation) may supply a motive, or it may, as you point out, raise against the accused a primd facie case that he lias induced the girl to elope." That was exactly our contention, and Mr. Gully's only answer to it is that it was upset by the girl's own admission, that she "tempted the man." Bnt seeing that she was, if not, strictly speaking, particeps criminis, at any rate, directly concerned in the matter, ana admittedly interested in the prisoner's fate, it may fairly be doubted whether her evidence alone Bhonld have been allowed so much weight. .Considering both the importance of the case and the grave amount of doubt which confessedly existed, we still maintain that Mr. Shaw would have acted more wisely in leaving the questions both of law and of fact to be determined — the one by a Judge, and the other by a jury.— Ed. E.P.