ST. AUSTELL PETTY SESSIONS - CHARGE OF HAWKING WITHOUT A LICENSE 10 July 1857 . In our paper of the 19th of June, a paragraph appeared, stating that Mr. ROBERT BELL, a Scotsman residing at Truro, and travelling with drapery goods, had been taken into custody by the superintendent of county police at St. Austell, on a charge of hawking without a license, and that he had been placed in a miserable kind of dungeon called a "lock-up" underneath the St. Austell Town Hall, where he had been kept from two o'clock in the afternoon till eleven the next day, there being no magistrate at hand to whom bail could be offered for his earlier release. . It was, however, at the same time inadvertently omitted from the statement in question, that Mr. SHILSON, the clerk to the magistrates, did all that was in his power to obtain the release of the prisoner, by sending to the policeman in charge, to have him taken to an inn for the night, the "lock-up" where he was confined being a totally unfit place for the confinement of any person for a night; its dimensions being about six feet long by five broad, with nothing but a board to sleep on, and a most offensive smell in the dungeon. Mr. Shilson's wishes, however, to have the prisoner kept in custody at an inn till the morning, could not be complied with, the officer in charge stating that it was contrary to the county police regulations; and we now mention this, because the paragraph inserted on the 19th of June was calculated to give an impression, that Mr. Shilson might have had the prisoner removed from the "lock-up" if he had chosen to do so, which was not the fact. . On the following morning, Mr. T. HEXT, a county magistrate, having arrived, the prisoner was taken before him, and on the application of his friends, the case was adjourned until the 7th of July, to give him an opportunity of obtaining legal assistance; and bail being accepted for his appearance, he was released from custody. . On Tuesday last, the adjourned case came on for hearing at the St. Austell Petty Sessions, before Mr. E. COODE, jun., Mr. T. HEXT, and Mr. R. G. LAKES, county magistrates. A number of the defendant's countrymen came from different parts of the county to hear the case, and there was a crowded attendance also of persons of the town and neighbourhood. . The case having been called on, Mr. SHILSON, clerk to the magistrates, read the charge, as follows: . "For that he, the said ROBERT BELL, at Holmbush, in the parish of St. Austell, on the 16th day of June last, did then and there travel on foot to other men's houses, and did then and there carry to sell, and expose to sell, certain goods, wares, and merchandise, to wit, a quantity of drapery goods, without any license to him before then granted in that behalf, contrary to the form of the statute in such case made and provided." . To this charge the defendant, through his advocate, Mr. STOKES, pleaded not guilty. The witnesses in the case, at the request of the police superintendent, were ordered out of court until called on. . For the prosecution, Mr. ALFRED STEPHENS was then sworn, and deposed as follows: I am a superintendent of county police, of the Bodmin district. On Tuesday the 16th of June I was passing through the village of Holmbush on duty. I saw Robert Bell come out of a house on the left hand side of the road, and call at two other houses on the right hand side of the road. When he went into the last house, I got off my horse and went into the house myself. He was there, and I asked him where his license was. He said he had got no license. I asked him to show me what he had in his pack. He undid his pack, and showed me what he had got. He had a quantity of drapery, such as shawls, dresses, mantles, and so on; that was in his pack, and he had also a small paper parcel, which contained half-a-dozen cloth caps. I said, you must consider yourself my prisoner; and we then both went on the road towards St. Austell. On the road he said, "If I had known I was supposed to have a license, I would have got one, but I was not hawking; my good were ordered." He asked me where he could get a license, and the expense. . Mr. STOKES - You told him, I suppose? Witness - No, I told him I did not know. When we got to St. Austell, I searched him, and ordered him to be locked up. I found on him about GBP 5 in silver, and these two books. . Mr. COODE - What are those, pattern books? . [In reply to] Mr. STOKES - No, they are account books, order books. While he was at St. Austell, in the inspector's house, he said, "you cannot prove that I was selling." That is all I have to say. (Witness here produced the half-dozen caps from the paper parcel, and in reply to Mr. Coode, said that five out of the six had price tickets on them; two were of the same pattern, the others were of different patterns. Witness unbound the pack on the table, and said there were in it women's dresses, shawls, scarfs, and a woman's cape; he untied also a small parcel in the pack, which he said appeared to be goods of a previous order, there being cloth, buttons, thread, &c., to make some garment. He also took out four packages of tea which were in the pack). . The Superintendent was then Cross-Examined by Mr. STOKES - Had you ever seen Mr. Bell trading before in the same way? Witness - No, never. Your attention has never been called to him personally? - No. Did you not know him before that day? - No. Are your instructions from the chief constable to follow up those inquiries? - They are. And before you came into this county, probably you were in the habit of doing the same? - Yes. And in the same way? - Yes. Endeavouring to detect parties trading with hawkers' licenses? - Yes. In what part of the country? - Hampshire. Have you been in the constabulary force there? - I have. How long? - About nine years. And you pursued the same course there as circumstances arose? - Yes. How long have you been acquainted with this county? - Since February. And you have not been aware of the fact that Scotsmen in this county have been in the habit of carrying on their trade in this way from door to door? - I have been given to understand that they go about hawking without a license, and that it is carried on to a great extent in this county. Were Scotsmen in the habit of trading in Hampshire in the same way? - Yes, and Irishmen as well. You don't know that Mr. Robert Bell is a housekeeper [home owner] in Truro? - I do not know it. You did not know it when he was taken into custody? - No, he was a perfect stranger to me. Was he dressed as he is now? - Very similar. You brought him to St. Austell? - Yes. And had him put in the lock-up house? - I did after about a quarter of an hour; I tried first to get a magistrate to dispose of the case. And he remained there from two o'clock on the 16th, till eleven the next morning? - Yes. Is it your practice to lock up persons of that description? - Yes, we make no distinction. You treat them as vagrants? - They are placed in the lock-up provided for them. That is the lock-up at the bottom of these stairs? - Yes. About how much square is that place? - Perhaps eight or nine feet one way, and six or seven the other; I can't exactly say. And with a privy in it? - There is a closet in it. Did he tell you who he was? - I think he had cards about him showing that. And in the course of the evening you had some communication with some of his countrymen? - I cannot tell. I went to Bodmin, and do not know what occurred during the night. In reply to further questions, the witness said he saw Bell come out of one house on the 16th, and go to two others. He went to MRS. STEVENS's house that same day, after he took defendant into custody; he went there to make inquiries; defendant did not expose goods in either of the other two houses. Witness did not know there were many in the same trade at St. Austell; he had heard there were a great many all over the county, and more at Truro than anywhere else. He had never been at Truro. There was no difficulty made about his inspecting the pack. . Mr. STOKES - Did he tell you they were in the habit of trading in that way without a license? - He might have said so; he told me something about their mode of doing business. Mr. COODE here asked whether the goods were in lengths or in pieces. Witness then unfolded some of the goods, and Mr. COODE asked, are there none more than enough for a dress? Mr. STOKES said he was informed there was nothing more than in lengths for dresses. Mr. COODE (to the Superintendent) - Should you think there is more from looking at them? Witness - No, I think not, sir. Witness then unfolded another, and said it appeared to be more than was required for a dress. A person present, however, on looking at it, said it was about nine or ten yards; and Mr. Stokes said he was told that was a dress length. . MARY ANN STEVENS was then called by the Superintendent, and said, Mr. Bell came into my mother's house at Holmbush, on a Tuesday; I don't know the day of the month; he never offered me anything, and I did not ask him to sell me anything; that is all I have to say. The witness was then questioned by the Superintendent, and said, Mr. Bell opened his pack on my mother's table, and took out a parcel my mother had ordered; I never did any business with Mr. Bell; I looked at the dresses, but did not intend to have any. . The Superintendent - Were there any dresses there that you liked? To this question the witness did not directly reply, but at last said, there were none that I liked, but I passed no remarks about them. I never ordered anything of Mr. Bell; I spoke about a parasol when he was there the time before, but I did not know whether he would bring it. The Superintendent here said he had a statement in writing, which was made to him by the witness when he went to make inquiries; he then asked, - Did you say to me, Mr. Bell called at my mother's house on the 16th of June, untied a pack of goods on the table; I looked at some dresses, but he had none that I liked; I never ordered any goods of Mr. Bell in my life? - Witness: Yes, I said so; he only sells goods when they have been ordered. Mr. COODE - How do you know that? Witness - I know that because my mother deals with him; she orders one fortnight, and he brings the next. Mr. COODE - You say he did not offer any goods to you, did he to your mother, or anyone else in the house? Witness - No he did not; there was no one in the house but me and mother. The Superintendent - What was his object in showing the dresses? Witness - He did not ask me to look at them; he took out the parcel for my mother and I went over and looked at them; he did not keep them open for me a minute. By Mr. STOKES - He did not show me any dresses; I believe he does not like my custom; he has refused to supply me. He did not bring me the parasol. He has been dealing with my mother the last six or seven years. By Mr. COODE - Was the dress for your mother in a separate parcel? Witness- Mr. Bell was there before me; the dress for my mother was all abroad on the table, and he was doing up the bundle when I came in. Mr. COODE - Who is your next witness? The Superintendent - That is all; the other woman can prove nothing. . Mr. STOKES then addressed the court for the defence. He submitted that the case against his client had entirely broken down for want of anything like proof. The proceedings were taken under the hawkers' and pedlars' act, 50, George 3, c. 41, sec. 6, and that section was as follows: "And be it enacted that from and after the said first day of Austust there shall be raised, answered, and paid to and for the use of his Majestry, his heirs and successors, the rates and duties following, that is to say, by every hawker, pedlar, petty chapman, and every other trading person and persons going from town to town, or to other men's houses, and travelling either on foot or with horse, horses, or other wise, in England, Wales, or the town of Berwick-upon-Tweed, carrying to sell, or exposing to sale, any goods, wares, or merchandise, a duty of four pounds for each year; and every person so travelling with a horse, ass, mule, or other beast bearing or drawing burthen, the sum of four pounds yearly for each beast he or she shall so travel with, over and above the said first-mentioned duty of four pounds." That is the clause (said Mr. Stokes) which enacts that there shall be a license taken out by such persons; and the other clauses refer to penalties under the act. . It has also been laid down that the words "every hawker" and so on, extend to cases of all itinerant dealers who sell by retail, however extensive their transactions may be, and are not to be limited to hawkers and pedlars in a small way. . Then in the case of King against KNIGHT, 10 Barn. And Cress., 734, we have this decision: "Where the defendant was servant to a tea-dealer in the county of Worcester, who had been sent about the country by his master, showing samples and collecting orders, and afterwards carrying the parcels about for delivery according to the orders; the question was, whether this was hawking and pedling so as to require a license under the act. The Court was of opinion that the act applied only to those who carried about the goods to be sold and delivered immediately, and not to those who carried about the good for delivery pursuant to previous order and contract; otherwise a license would be necessary to legalise the transactions of travelers for London houses; the act is not a carrying to sale, or exposing to sale within the statute." . It is therefore clear, said Mr. STOKES, that where a man takes goods to deliver to customers, after receiving from them previous orders, he is exempted from the provision of this statute. In the present case there was no evidence of any other kind of trading. The superintendent took possession of Mr. Bell's goods, but he did not see him exposing them to sale in any way whatever; and there was not the slightest proof that he had done so. The Superintendent had merely found the goods in his possession, but that was not sufficient to bring the case within this statute; to do that, there must be a selling by way of retail, or an offering to sell by way of retail, by one person to another. The witness, Mary Ann Stevens, says her mother had previously ordered the dress taken from the parcel; she says she looked at the things, but that Mr. Bell did not offer her one of them for sale; that on the contrary, after he had taken out the dress for her mother, he made up his parcel to take away; that something took place about a parasol, but it was on a previous occasion. Nothing was proved to render Mr. Bell liable to the penalties attaching to the selling, or exposing for sale, and hawking about the country by way of retail. Because he was carrying goods, it was not to be inferred that they were for the purpose of retail selling. . It was not incumbent on the defendant to exculpate himself, but on the person who charged him, to clearly and plainly prove that he was committing some breach of the law. It must be proved that he sold, or offered to some person on that day goods for sale. The evidence had entirely broken down on that point, and he submitted that there was nothing to call upon him to carry the case further. If the bench thought differently, he was prepared to prove, by Mrs. Stevens, that the only goods she received on the day in question, she had ordered a fortnight previously. He submitted, therefore, that there was no evidence of his client having been hawking in the common sense of the expression. . Mr. COODE - The words of the act are, "carrying to sell", or "exposing to sale." Mr. STOKES - Then the carrying for sale must be proved; I am not bound to show that. Mr. COODE - Of course; but you seem to confine yourself to exposing for sale. . Mr. STOKES - I say it is too much to infer, that because he was carrying a bundle, the goods were for sale by retail on that day to any person who might look at them. I contend that not only the possession of the goods, but the object for which the man had possession must be shown. One cannot jump to a conclusion in a case of this kind. It is a penal statute, and it is incumbent on those who are prosecuting for the crown, to prove that the penalty has been incurred. . He was prepared to call Mrs. Stevens, but he had no doubt their worships knew the kind of trade which was carried on by Scotsmen in this and other counties. He would venture to say it was one of the most important trades amongst all our commercial undertakings. More than two millions worth of goods are annually sent out from London for the purposes of this trade - a trade which has been carried on for some thirty or forty years in this county on a most extensive scale, supplying goods to people in villages and country parts to the amount annually of many thousands. . The trade is not a new one, and is very different from the trade of the ordinary hawkers and pedlars who go about the country. The men who carry on this trade have frequently large and respectable houses in Truro and other towns, where they carry on a large business, and pay rents, and rates, and taxes. Could it then be supposed that these were cases to which the act was intended to apply? It was meant, in a great measure, to prevent vagrancy; and thus common hawkers, for selling without a license, were treated as vagrants. . In the same manner this respectable trader had been treated. He was brought to the lock-up at St. Austell - as vile a hole as any criminal could be consigned to - and there left from two o'clock in the afternoon till eleven the next morning. He (Mr. Stokes) should make no unkind or improper reflections on any one if he could avoid it; but it did seem to him that the instructions given, and acted on in this case, were such as should not exist. It was monstrous that a man of this description, going about the county honestly and fairly trading, should be treated like a vagrant; and consigned to such an abominable hole as that in which this man was placed. Persons of this description should not be treated in such a way as the worst of felons are scarcely treated. . If Mr. Bell infringed on the law, it was from misunderstanding it. His words to the superintendent were, "if I had supposed I was to take out a license, I would have taken it." He had never taken out a license before, and throughout the whole of the west of England, not one of these gentlemen, trading to the amount of tens of thousands annually, has ever taken out a license. It is very hard that such a man should be so treated, and it is to be regretted that such instructions should have been issued as consigned this respectable man to a black hole for so long a period. . It was to be hoped that nothing would be done, with regard to this new county police, to prejudice them in the eyes of the public, inasmuch as the good feeling of the public ought to be with them to support them in the exercise of their duties. . The superintendent said he acted on his instructions; but it was unfortunate that such instructions should exist, by which a man was consigned to a hole of that description, with a necessary in it; the only bench he had to lie down on being connected to a privy. . Mr. COODE - That is not the case; it is alongside. . Mr. STOKES - The man was obliged to come to the holes made in the door, in order to have air from time to time. If we are to have the county police exercising such authority, let an unfortunate man be placed in a better lock-up, and where he would not so long be subject to imprisonment in "durance vile." (Great applause in court.) . Mr. COODE - That is exceedingly wrong in a court of justice. . Mr. STOKES - It may be wrong, but you can see what is the appearance of the men who have come here from all parts of the county, that they are respectable men; and I can say, as to the town of Truro, that the town is proud to have residing in it a body of men so uniformly characterized by integrity and respectability; no charge of offence against the law, that I know of, has ever been brought forward against these persons in Truro. It is unfortunate that Mr. Bell, under such instructions, should have been subjected to such harsh treatment, and consigned to such a dungeon. . I have now expressed my own feeling, and that of these Scotch traders as to the treatment their country-man has received, and I submit that the case against him has entirely broken down. Your worships must know that at Looe, in a similar case, a penalty was inflicted by the magistrates; but that case was appealed against, and the Board of Inland Revenue has decided that the case was not to be gone on with because of insufficient evidence, and consequently the whole proceedings have been quashed at quarter sessions. The same would no doubt be the result in the present case. I will, however, if you please, call Mrs. Stevens to show that the article she received she had previously ordered. . The magistrates and Mr. Shilson retired to consider the case at a quarter past three, and at thirty-three minutes past three they returned into court, when Mr. COODE said they wished to have the evidence of Mrs. Stevens. . MARY STEVENS was then sworn, and on examination by Mr. stokes said, I have dealt with Mr. Robert Bell many years. He came to my house on the 16th of June, and delivered a dress which I had ordered a fortnight before; it was nine yards of black coburg. He offered me nothing else for sale; I pay from time to time on account for goods. By the Superintendent - My daughter cast her eye on the goods but she did not ask for anything. By Mr. Shilson - No one else was in the house but my husband; he has died since. My daughter came down stairs, and I think the pack was undone when she came down. . After hearing this evidence, Mr. COODE, as Chairman of the Bench, said, we think this case must be dismissed for want of evidence. (Loud applause in court.) . Mr. COODE - There is one thing the court wishes to remark, in reference to some rather strong remarks made by Mr. Stokes as to the treatment of the man after he was taken into custody. It appears to us that there is no blame whatever to be attached to the superintendent, or to the county police. They are bound by the statute, under a penalty, to apprehend all parties trading without a license, and after the man was taken in custody, the superintendent had no discretion in the matter. He appears to have had his orders to keep him in a lock-up, and he had no other place to put him in; and we think the practice of taking prisoners to a public-house should always if possible be avoided. It is impossible the police should be expected to exercise discretion as to taking one man to a lock-up, and another to a public-house, because he belongs to a superior station of society; and we think no blame is attached to the superintendent for what he did in that respect. . Mr. STOKES - We certainly hope that your worships will have a better lock-up, so that a man will be less harshly treated in the future. . The case being dismissed, the defendant and his friends then retired from the court. Julia M. West Briton Transcriptions, 1836-1856 at http://freepages.genealogy.rootsweb.com/~wbritonad St. Austell Area History and Genealogy at http://freepages.genealogy.rootsweb.com/~staustell