KD 393% B87 CoRNELL UNIVERSITY LAw LIBRARY FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Digitized by Microsoft® [a DATE DUE PRINTED INY.S,&. Ob, Telia si ib LS ARMA TCD EIT Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access fo it (or modified or partial versions of if) for revenue-generating or other commercial purposes. Digitized by Microsoft® CONSTITUTIONAL LAW. Digitized by Microsoft® Digitized by Microsoft® CONSTITUTIONAL LAW VIEWED IN RELATION TO COMMON LAW, AND EXEMPLIFIED BY CASES. BY HERBERT BROOM, LL.D., BARRISTER AT LAW; READER IN COMMON LAW TO THE INNS OF COURT: AUTHOR OF “‘A SELECTION OF LEGAL MAXIMS ;” “‘COMMENTARIES ON THE COMMON LAW,” ETC. OPTIMA HAREDITAS A PARENTIBUS TRADITUR LIBERIS, OMNIQUE PATRIMONIO PRASTANTIOR, GLORIA VIRTUTIS RERUMQUE GESTARUM.—Cic. de Off. lib. i. LONDON: WILLIAM MAXWELL, 32, BELL YARD, LINCOLN’S INN, Law Bookseller and Publisher ; HODGES, SMITH, & ,CO., DUBLIN. 1866. Digitized by Microsoft® Pits LONDON: BRADLURY, EVANS, AND CO., PRINTERS, WHITEFRIARS. Digitized by Microsoft® Ve PREFACE, — Some few years since, adopting a suggestion made to me by Mr. Phinn, Q.C., Counsel to the Admiralty, I applied myself to the task of selecting and illustrating, mainly out of our Reports, a series of Leading Cases upon Constitutional Law ; my idea having been to arrange them chronologically, without any attempt at classification, and to exemplify their significance in annotations as concise as possible appended to the Cases. The idea, thus origi- nally suggested, I have been induced to modify—Ist, by limiting the scope of my undertaking in the manner indi- cated by its present title ; 2ndly, by arranging the Cases and grouping them together, after due consideration of their relation to and bearing on each other. The reader has a right to know the qualifications of an author for his task, particularly when the object aimed at is difficult of attainment or important. Therefore it is not irrelevant to say that during a considerable period my attention has in private tuition been directed to the matters which are discussed in this Volume, as throwing Digitized by Microsoft® vi PREFACE. light upon the history of our country, and upon the pro- ceedings in our Courts of Law; that for some years past I have specially employed myself in collecting materials for this Work. Difficulties neither few nor insignificant have to be encountered by the Student who, for acquiring knowledge of the Principles of our Constitution, applies himself to reported Cases. Of course he must be guided in his search ; yet even when a case is placed before him for perusal, he may feel himself perplexed, not merely by the length to which the report of it extends, but by the quaintness of the language used in it,—the technicality of expressions and wearisomeness of the repetitions which abound in it. I have endeavoured to mitigate these evils by abridging some of the Cases here presented, modernizing phrase- ology, and explaining, usually in foot-notes, peculiarities occurring in them. Doubtless an objection may be urged, —that it is dangerous to abridge, and yet more so to change in any respect the words which have been used by the Reporters. I reply—Ist, that some considerable con- densation was in this Work unavoidable, of which any one may convince himself by referring to the reports in extenso of the Cases (a); I answer, 2ndly, that I have (a) See, for instance, the proceedings in Bates’s Case, The Case of Ship- Digitized by Microsoft® PREFACE, vii endeavoured faithfully and conscientiously to discharge this, the least agreeable and pleasing portion of my self- imposed duty. Learned persons know, and will neces- sarily resort to the ultimate and authentic sources of knowledge; these pages may possibly be serviceable to some who might not readily, if unaided, find a way thither. Respecting the title, the design, and plan of this Volume, some brief remarks may be deemed proper, albeit a glance at the Table of Contents might explain the latter. By Constitutional Law I would be understood to mean the aggregate of doctrines and sanctions directly tending to the maintenance of our social union. By Common Law I would be understood to signify the aggregate of rules and maxims written or customary, directly tending to the maintenance of private rights—to the enforcement of private remedies. Constitutional Law I would regard as applying itself to the solution of questions which concern the Sovereign, the State, the cohesion of Society; whereas Common Law applies itself to resolving questions between party and party, questions of a strictly private nature, uninteresting to, because unaffecting, the community at large. According to this view, the relation of Constitu- tional to Common Law is that of law regulating and Money, The Seven Bishops’ Case, and Stockdale v. Hansard, in the reports respectively whence they have been here abstracted. oe Digitized by Microsoft® vu PREFACE, assuring the stability of the Empire to law regulating and assuring the maintenance of private rights. Nor is the circumstance material, that by the same tribunals the one or the other species of Law is freely and indifferently administered. The relation of Constitutional to Common Law cannot be determined by reference to the Tribunal adminis- tering either. It must, if at all, be so by analysing the ingredients in the matter submitted for examination, by scrutinizing its tendency, whether it be (if I may adapt to my purpose the words of our great commentator (0) ) to affect, hurt, or endanger the constitutional govern- ment of this island, or to destroy the equilibrium of power between one branch of our Legislature and the rest. Nor need we be perplexed at finding in cases litigated between merely private persons an occasional recognition of those great and leading principles on which our Constitution rests. By such considerations have I been guided in selecting the ensuing Cases. I have inserted such only as exhibit the leading principles of Constitutional Law, and have arranged them under three heads, showing the Relation of the Subject—I. To the Sovereign; II. To the Exe- cutive; III. To Parliament; the first specified of these (6) 1 Bla, Com., 21st ed. p. 51. Digitized by Microsoft® PREFACE. ix heads naturally subdividing itself, inasmuch as the duties of the Sovereign and the Subject are reciprocal and mutual. Of some of the Judgments and Arguments set forth in these pages it would scarcely be possible to speak in terms of too high admiration. They are models to which our Judges may willingly recur, and to which our leading Advocates must have recourse—models of elaborate and subtle reasoning, of exhaustive analysis, of majestic eloquence. As regards the Notes appended to the Cases, I have therein aimed at conciseness, and have eschewed the theoretical in favour of the practical. In these annotations Iam not conscious of having avoided difficulties, though I have declined to enter upon topics which are discussed at length in Treatises ordinarily accessible or in Books of Practice deservedly familiar. It remains for me to state that the alternate Cases (commencing with and including that of The Seven Bishops), also the Notes explanatory of them, have been prepared for the press by my learned friend Mr. Geary, of the Midland Circuit, to whom I offer my acknowledg- ments for the very valuable assistance which has been thus afforded, and for the many useful materials which by his zeal and industry have been supplied. For the Digitized by Microsoft® x PREFACE. precise form in which the Notes just specified appear, I hold myself entirely responsible. My labours as a legal writer are now terminated ; and, in relinquishing the pen, I doubt not that a frank recep- tion will be accorded to the present Volume, such as on previous occasions I have been grateful for. HERBERT BROOM. THE Priory, ORPINGTON, Jan. 1, 1866. Digitized by Microsoft® CONTENTS. PAGH Arrangement of the volume explained . 1 PART I. RELATION OF THE SUBJECT TO THE SOVEREIGN. SECTION I. DUTIES OF THE SUBJECT TOWARDS THE SOVEREIGN. Duties of the subject set forth in the oath of allegiance, &c. 3 Calvin’s case—allegiance, what it is—by whom and to whom it is due : : ; : . , - j 4—26 Note to Calvin’s case. 3 : ; : ‘ . 26—62 Allegiance—what 26 by whom due 27 to whom due 29 to a king de facto 29 to the king on his accession 30 wherever he may be 30 Allegiance is indivisible 31 due from natural-born subleot 32 Tie of allegiance—how severable . 35 severable by abdication anil re- Py orf the Commons in parliament, practised by Edward JIL, was by way of ordinance, which indeed is next in degree of strength to a statute. It is a constitution made by the king himself, and all the prelates, earls, and barons, sitting in parliament, and has the like solemnity of enrolment that a statute has, only it is enrolled in a roll by itself, which has the name of the roll of the ordinances. The essential difference between this and an Act of Parliament is, that this has not the assent of the Commons. Some ordinances have had such estimation amongst us, that they have at this day the force of statutes; as the ordinance of Merton (0), which, though made by the king, prelates, earls, and barons, without assent of the Commons, yet has, by continuance of time got, not only the strength, but the name of a statute. And to add further strength to the authority of an ordinance, the assent also of mer- chants was usually joined therewith; morebver, it was never but in time of war. The first imposition by way of ordinance was 7 Edw. III, where it is said that the king considering how merchants, who make great gain by trading, ought as well as others to assist him with treasure for his war, especially consider- ing how at their entreaty he had placed the staple in England ; therefore, at his parliament held at York, by the prelates, earls, and barons, it was ordained that the merchants should yield unto the king a subsidy upon merchandize. This subsidy or rather imposition thus (D 20 Hen. 3. “ou Digitized by Microsoft® 276 Bates’s CasE. —under colour of a loan from merchants ; —by grant of mer- chants for liberties conceded to them ; CONSTITUTIONAL LAW. solemnly ordained, and in times of so great necessity, was no sooner established than revoked, whereupon the mer- chants of their own accord: yielded and freely gave 10s. upon a sack of wool, &., for a short time, by way of dispensation or licence, towards the maintenance of the war. Another invention for raising impositions, practised by Edward III. and in former times, was by way of a pre- tended loan from merchants, of so’ much above the old custom upon merchandize exported or imported, which loan was never repaid to the merchant. That this was an old practice, may be collected by the precedent of 12 Edw. IL, already cited (nm), where the king promises that without fiction or delay he would repay the merchants; implying thereby, that sometimes fiction had been used ; and doubtless that loan which was 11 Edw. IL, the very year before, was such a feigned loan as spoken of; for otherwise, without question, the king would not have released part of it, as he did. Ifthe money be bond fide borrowed, and truly intended to be repaid, then doubtless the course is lawful; if otherwise, this kind also is as unlawful as any of the rest. Edward III. did once or twice borrow in this manner, as may appear by records already cited to another pur- pose. There was yet another device for raising impositions, begun by Edward I., condemned in the time of Edward IL, but revived and much practised by Edward III., which was also by way of grant of merchants, and yet not altogether the same as that practised by Edward II. but much more colourable and tolerable. For whereas that was a grant, or rather a mere gift, without anything granted back again in lieu thereof, this is a solemn grant made by merchants of an increase of custom, for liberties, privileges and exemptions, granted to them by the king. The former was date nihil expectantes. This is, date et dabitur vobis. (n) Ante, p. 270. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. Q77 Of this kind is the grant of merchant strangers, already Bares's mentioned under the name of Carta Mercatoria (0). — One other mode of levying impositions was practised by Thy express Edward IIL, not coloured or masked under any pretence, the King. of politic invention, but plain and direct—by his own express commandment to his officers, to collect of every merchant so much for such a commodity, exported or imported, and to answer it into his exchequer, without any recital in his commissions of grant, assent, gift, loan of merchants, dispensation, or ordinance in parliament, or any other such colourable pretext whatsoever. These indeed, and only these, are mere impositions, and may be aptly compared with those of our times. Of this kind, amongst the records of Edward IIL’s time, are only two. 1. It appears that Lionel, afterwards Duke of Clarence, the king’s second son, being then guardian of England, whilst his father was at the siege of Calais, at a council by him held the same year, assessed without assent of parliament, upon every sack of wool two shillings (p). This imposition was, as our present impositions are, imposed only by the king’s absolute power, yet in circum- stances very material there is an apparent difference between them. Ist. This imposition was very moderate in amount; 2ndly. It was to continue no longer than till Michaelmas following. 3rdly. It was laid in time of war, and. ordained to be employed for the maintenance of ships-of- war, for the safeguard of merchants in their passage, of which there was great necessity. Besides, such as it was, and so qualified, it was never- theless complained of in parliament, by a petition from the Commons, as may appear by the record (p). To which petition or complaint this answer was given, “ That all the said impositions were already taken away, save only the (0) Ante, p. 262. (p) Rot. Parl. 21 Edw. 1, No. 11, vol. ii. p. 166. Digitized by Microsoft® 278 ‘CONSTITUTIONAL LAW. Barss's two shillings upon a sack of wool, which should last no longer than Easter ; and seeing the same was ordained for the safeguard of merchants, in which there had been greater sums of money expended by the king than could be collected between that and Michaelmas, therefore to continue the same till Easter, he hoped, would not seem over-burthensome or grievous unto them.” In the par- lament following, the Commons prayed that writs might be directed to the customers to forbear at Easter next to take the two shillings upon a sack, according as it was granted at the first parliament, and that it be not any longer continued by the procurement of any merchant. The king answered, “Let it cease at Easter, as it was agreed the last parliament” (q). This imposition was, perhaps, only by way of dispensa- tion: for to what end should the Commons pray that it might not be any longer continued by the procurement of any merchant, unless it were likely that merchants for their benefit should pray the longer continuance thereof; and of what benefit can any imposition be to a merchant unless it be by way of dispensation to give him leave to trade, where before such dispensation given he was re- strained? If this were an imposition by way of dispen- sation with a penal statute, then could it be no precedent for our present impositions. 2. The next precedent in the time of Edward III. for maintenance of impositions, was in the 24th year of his reign, whereby the king reciting, that whereas Spain and France had joined in league to make war against him, and that for withstanding his adversaries, as also for the safe- guard of merchants against pirates, he had ordained that certain ships should be set forth, and that for maintenance of the said ships there should be paid by merchants two shillings for every sack of wool, &c., for one year following ; commanded his customers to levy the same accordingly. (q) Rot. Parl, 22 Edw. 3, No. 16, vol. ii. p. 202, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 279 The very next year the Commons exhibited a petition in Bat™'s parliament against impositions and other like charges, — without assent of parliament; to which answer was given, “That it is not the king’s intention they should be charged” (r). It appears, therefore, that the two impositions laid during the reign of Edward III. by the king’s absolute authority, were qualified with such circumstances, as, if ours were such, we should have held them tolerable, though perhaps not lawful. Yet they escaped not without being com- plained of and condemned in parliament. From the reign of Edward III. till that of Queen Mary, In what statutes im- not one record has been found that proves an imposition positions are named. to have been laid. There are indeed some three or four from the statutes during that time, in which mention is made of geet ot impositions ; but they are impositions of another nature from those now complained of; or, if such as ours are, yet are mentioned with disgrace, and to the end that they might be taken away. The first is 11 Ric. 2, c. 9:—No imposition nor charge shall be put upon wool, leather, or woolfels, other than A the custom and subsidy granted to the king this present parliament; and, if any be, the same shall be repealed and annulled, saving always unto the king his ancient right. If by this saving the pretended right of imposing be excepted, the saving would be contrary to the body of the Act; and therefore it must needs have some other interpretation, that it may stand with the rest: of the Act, and not condemn the law-makers of so much want of discretion. Therefore doubtless this saving is no other than an exception of the ancient rightful customs, due upon staple commodities. And perhaps the statute was made, not so much to take away any imposition laid by King Richard IL, as out of a provident and prudent care in the law-makers, founded on the practice of Edward ITI. in this kind. (r) Rot. Parl. 25 Edw. 3, No. 12, vol. ii. p. 228. Digitized by Microsoft® 280 CONSTITUTIONAL LAW, Bares's The next statute in which impositions are mentioned, — is 23 Hen. 6, c. 18, by which it appears, that English merchants, being restrained from repairing to Gascony and Guienne to buy the wines of that country, were nevertheless suffered to repair thither, paying certain new impositions which were demanded of them. Upon com- plaint hereof, it was enacted, that all English merchants might freely pass into those parts, and buy wines there at their pleasure, without any new imposition or charge to be put upon them; for that “such impositions were to the damage of merchants, and to the hindrance of all the king’s people: if any were demanded by the king’s officers, the officers so demanding them should forfeit 200. besides treble damages, to the party grieved.” That these impositions were by way of dispensation with a statute, which restrained the repair of English merchants into those parts, and not by the king’s abso- lute power, thereupon to ground an imposition, is evident by the statutes infra (s). The reason of the restraint by Edward III, seems to have been, because Gascony and Guienne were then in his possession, and he was desirous that the merchants of those countries should have the sole profit of their own commodities ; that they only should import them into England, and not the merchants of England. Whatsoever the cause of the restraint was, it is very clear the restraint was by statute, and that this im- position raised by way of dispensation was condemned, The next mention of impositions is in 1 Ric. 3,¢ 2. The words are, “the subjects and commonalty of this realm shall not from henceforth be charged by any such charge or imposition called a benevolence, nor by such like charge.” By the words of this statute we perceive what impositions were intended (4). (s) 27 Edw. 8, v.63; 38 Edw. 3, also in stats. 7 Hen. 7, c. 7; 12 Hen. c. 10 &e. 11; 42 Hdw. 3,¢.8; 43 7, ¢. 6; and14 Hen. 8, c. 4; where Edw. 3, ¢. 2. it seems to be used as synonymous (t) The word “‘impositions’ occurs with ‘‘ charges,” Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 281 Richard IL, the grandson of Edward IIL, had little less Barrs's occasion than his predecessor for imposing. He had little — treasure left him, and was no sooner on his throne but Urgent news was brought that the French had invaded the realm. laying im- ‘The Scots also were ready to overrun the north of England. tonite Being thus beset with war, does his council advise him § to that of” to raise money by impositions, as his grandfather had “°"™* done? They do not; but he takes the ordinary course, by calling a parliament, which for maintenance of the war, the second year of his reign, granted him a fifteenth. He called another parliament, and had another fifteenth granted, in the 4th year of his reign. The wars increasing, his necessities were such, that parliament granted him a most unusual tax throughout the whole kingdom, upon every ecclesiastic, 6s. 8d., upon every other man or woman within the realm, 4d., which, when it came to be levied, caused the notorious rebellion of Wat Tyler—From the 5th to the 18th year of this king’s reign, he obtained every other year aid in parliament, sometimes a tax, sometimes a fifteenth, sometimes a subsidy of tonnage and poundage. In the 18th year he was forced to go in person into Ireland, to settle the state of that country, then in rebellion. All these troubles he had from abroad, besides rebellions at home, which afterwards cost him his crown, yet did he never for all this attempt to lay impositions. King Henry IV., holding the crown by so weak a title, had cause to give the people all the content he could, yet was he so oppressed with war on all sides, that without the aid of his people it had not been possible for him to have held the crown. Therefore, in a parliament held the 5th year of his reign, was yielded to him so great and unaccustomed a tax, that its grantors took special care that no memory thereof should remain of record; and yet, the next year, his wants were grown so great, that his subjects, being assembled in parliament to give him further aid, resolved that there was no other way to supply his wants, than to take from the clergy their Digitized by Microsoft® 282 CONSTITUTIONAL LAW. Batzs's temporal lands and goods, and to give them to the king; which being withstood by the clergy, a resumption of all the gifts of Edward III. and Richard IL., was propounded. : At last, after they had sat a whole year, they gave him two fifteenths. At this time, most of the great officers of the kingdom were spiritual men. Had they not now, if ever, a just occasion given them to have put the king in mind of his prerogative of laying impositions ? were they not even bound in duty and conscience to do so? Cer- tainly they were not ignorant of such practice in former times. But in all likelihood as they knew that Edward III. laid impositions, so likewise they knew, that impositions had been from time to time condemned as unlawful, and were become hateful to the people; and only for that reason did they forbear to advise the king to take that course.—Another prerogative, which as much concerned the interest of the subject as this of imposing, viz. the abasing of coin, this king made no scruple at all to put in practice, because he held it to be lawful. His son and successor, Henry V., who was beloved by his people, though the kingdom was now, by one degree of descent, more firmly settled upon him than it was on his father, who usurped it; though also his expenses, by reason of his war in France, were as great as any king’s of England ever were, though he had troubles also from the Scots, and within his own realm by rebellions ; and lastly, though he scrupled not, for supplying his treasury, to suppress above one hundred priories of aliens, never so much as attempted the laying of impositions. His successor Henry VI, though of a meek spirit, was yet so troubled within the realm, and from abroad, that he was forced to crave such an extraordinary aid of his sub- jects in parliament, that the levying thereof was the cause of the rebellion of Jack Cade. Besides, in the 18th year of his reign, for supply of his wants, all grants by’ him made, of any lands, rents, annuities, or fees whatsoever, were resumed : and this is never yielded to, but in cases Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 283 of extreme necessity. As for impositions, notwithstanding Bares's his great wants, he thought not of them. Edward IV., who succeeded him, was not more free from troubles; for he was driven to forsake his kingdom, and to live for a while like a banished man with the Duke of Burgundy. He also was forced in the 5th year of his reign to make a resumption ; and the same year to abase his coin. And Comines observes of him, that he obtained a subsidy of his subjects in parliament, upon condition that he should himself in person undertake the war in France; and that, only to get the subsidy, he passed the seas into France, but presently returned without doing anything (wu). “Why should such shifts as these have been needed, if he might, without being beholden to his subjects, have lawfully and without con- trol raised treasure by laying impositions? It is well worth remembering, what Comines (v), speaking in com- mendation of the frame of this commonwealth, says, «That this state is happy, in that the people cannot be compelled by the king to sustain any public charge, except it be by their own consent in parliament.” Henry VIL. (a), omitting Edward V. and Richard JIL, because of the shortness of their reigns, had indeed a more peaceable time than any of his predecessors ; yet was he not altogether free from troubles within the realm, and from abroad. But his natural inclination was rather towards peace. He was more provident and politic in the gathering and storing up of treasure, than ever was prince -of this realm. He himself took the accounts of his reve- nues, and had for his assistants Empson and Dudley, men learned in the laws, and cunning in all profitable points of the prerogative ; men who studied little else than the advancement of their master; men even till this day infamous for their wicked counsel, in persuading the king (u) Comines, Mem., Bk.iv. chap.1, tonnage and poundage granted to (x) Id. him for his life, as appears by Rot. (z) This king had a subsidy of Parl. 1 Hen. 7, vol. vi. p. 268, Digitized by Microsoft® 284 CONSTITUTIONAL LAW. Baren's to lay heavy burthens upon his people. If these men, who _ in all likelihood must have known the king’s rights, had had the least knowledge of so profitable a prerogative as this of imposing, would they not have been at strife which of them should first have put the king in mind of it? or, if they had held it questionable, would they not have put it to some trial? Certainly no cause can be imagined, that would have made them thus forbear, unless either they were utterly ignorant of any such prerogative ; or, knowing it to have been claimed by some of the ancient kings, especially by Edward IIL, they knew likewise that it was continually complained | of in parliament, and always condemned; and that thére were Acts of Parliament directly against it. é In Henry VIL’s time an occasion offered than which none could better have justified the laying of impositions, which was this, The Venetians, in order to drive our merchants from buying sweet wines at Candia, and that they might the better employ their own ships and mer- chants, imposed upon every butt of malmsey brought thence by English merchants four ducats; by which means the English wholly lost that trade, and the Vene- tians made the profit thereof This mischief was not better to be remedied, than by imposing the like, or a greater charge, upon merchants of Candia bringing malmsey into England; so that there could not possibly have been a more justifiable occasion than this was, of laying impositions. And did this king, so careful of pre- serving his prerogative, and most of all in matters that concerned his profit, take the occasion for laying an impo- sition by his absolute power? Nay, though he saw it convenient, and in a manner necessary, he conceived it to be unlawful so to do ; and therefore did it not by his abso- lute power, but by assent of parliament (y). It is not probable, that the king, considering his other actions, (y) See stat. 7 Hen. 7, c. 7. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. would have suffered this to have been done by parliament, if he had thought he might have lawfully done it by his absolute power ; therefore it cannot be gainsaid, that in these times the pretended prerogative of laying imposi- tions, without assent of parliament, was held to be against law. There was not in the whole rank of our kings any one like Henry VIII. for excessive prodigality (¢). The riches stored up by his father with so much care he so suddenly consumed, that he was forced to crave most unreasonable aids of his parliament. Yet, that no means for raising money might be neglected, in the 15th year of his reign he sent out commissions into every shire throughout the realm, with instructions to the commissioners how they should behave in persuading the people to contribute to the king the sixth part of their estates, to be paid in money or in plate; whereupon the people were ready to rebel, had not the king stayed the proceedings of the com- missioners. Finding that this method would not serve his turn, he demanded a benevolence; which not answering his expectation, he the same year raised treasure by abasing the gold coin. Such things as these princes never put in practice, but when other means fail them; and yet King Henry VIII. went many degrees beyond this. For, in the 27th year of his reign, he suppressed above 370 religious houses, and sold their goods ; and about four years afterwards he dis- solved all the monasteries, abbeys, and other religious houses throughout England. By which means, and by the sale of their goods, he gathered much treasure. Yet within three years after he craved and obtained an exces- sive aid in parliament ; and the year following he abased his coin more than half in half, such an abasement as never before or since was heard of, and which could not but (2) Hen. 8 hada subsidy of tonnage life, as appears by the Parliament and poundage granted to him for his Roll. - Digitized by Microsoft® 285 BatEs’s Case. 286 CONSTITUTIONAL LAW. Barss's be very grievous to the people ; but, because perhaps they — held it lawful so to do, they made no public complaint thereof, And it is worth observing, that though this pre- rogative of abasing coin trenches as deeply as the laying of impositions on the private interests of the people ; and though the practice of this prerogative has not been forborne by any of the kings of this realm, some of them having used it very immoderately ; yet cannot there be found any public complaint on record against it, which argues that the subject distinguished between the two prerogatives, of laying impositions, and of abasing coin ; thinking the one lawful and the other not. But to con- clude these observations upon the actions of Henry VIII. The next year after this unconscionable abasement of his money, he craved a benevolence. The year following he took the profits of all the chantries, colleges, and free chapels, &c., during his life, which ended the next year. Can any man imagine that during this king’s reign it was held lawful to raise treasure by imposing ? As to his son and successor, Edward VL, little need be said by reason of the shortness of his reign ; yet it seems that, if his governors had imagined that any such prero- gative had been due to him, they would not have forborne the practice thereof for supplying the king’s necessities, and instead thereof have craved of his subjects the unac- customed and unreasonable subsidy, granted in the second year of his reign, of a certain sum of money upon every sheep and every cloth within the realm, for three years ; which afterwards for the unreasonableness thereof was released. Having now gone through the reigns of all our kings from Edward III. till Queen Mary, what more during that time can be imagined to have awakened impositions, if they had not been more than asleep? Neither the neces- sity of just and honourable war, nor the subtleties and curiosity of peace, neither the prodigality of some of these kings nor the covetousness of others, neither the softness Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. of some of their dispositions nor the nonage of others apt to be abused by evil counsellors, neither the awe in which some of them held their subjects, nor the assurance of the people’s extraordinary affection, which might have em- boldened others, neither the evil conscience of usurpers, nor any other motive whatsoever, which happened during this long time, could revive them; until Queen Mary at last raised them out of the grave, after they had been so many years dead and rotten. The first imposition that she laid was upon cloth, con- -tinued till this day, and founded on a special cause, viz., the loss sustained by reason of the difference between the customs and subsidies of wool and cloth, the custom of wool made into cloth having been less than the custom and subsidy of so much wool not made into cloth, which difference was reduced to an equality by rating upon every short cloth ten shillmgs. It may be worth observing, that the queen commanded this increase of custom to be yielded to her, not as an imposition, or as an impost, but by the name of custom; because it was in lieu of the ancient custom upon wool; which is the reason why at this day it is demanded and paid by that name; whereas no other newly-raised duty has that privilege, but is either called subsidy of tonnage or poundage, if raised by Act of Parliament; or impost, if raised by the king’s absolute power. This imposition was complained of by the mer- chants of London, who “made exclamations and suit to the queen to be unburthened of this impost, because it was not granted by parliament, but assessed by Queen Mary of her absolute power ;” whereupon there were divers assemblies and conferences of the justices and others, whose resolution is nowhere to be found, though it is very probable that, if they had given judgment for the queen, it would not have been kept close. But the profit was too great to be taken from the Crown, and therefore it continues till this day. The next imposition laid by Queen Mary was forty Digitized by Microsoft® 287 eee 's CasE. Vera vy Lecce Mary: considered. 288 Pe ‘Ss Casi The king’ 8 right to im- CONSTITUTIONAL LAW. shillings upon a ton of French wine, imposed in the 5th year of her reign; at which time there was first a procla- mation made, that no wines at all should be brought from France, being then at enmity with England, upon pain of forfeiture of the wines. Immediately after this restraint there was an order made by the queen and her privy council, that such as would might bring i in French wines, notwithstanding the proclamation, paying forty shillings upon every-ton by the name of impost, as appears by record of Easter term, 1 Elizabeth, in the office of the King’s Remembrancer of the Exchequer in the case of one Germane Ciol, against whom an information was exhibited for not paying the said imposition, Whereunto, taking it by way of traverse, that there is any law of the land by which he may be charged with impost, he pleads a licence made unto him, 1 & 2 Phil. & M., to import a certain num- ber of tons of wine within a certain time, any restraint then made or afterwards to be made to the contrary not- withstanding ; provided always, that the custom, subsidy, and other duties due and accustomed to be paid to the king and queen, were duly satisfied ; and he shows that, for all wines brought in by him during the life of Queen Mary, he paid the subsidy of tonnage, viz., three shillings for every ton, which was all that was due and accustomed to be paid. Upon this plea a demurrer was joined, and judgment given thereupon against the queen. About the same time impositions were laid also by Queen Mary upon all French commodities whatsoever to be imported, as may appear by the port-books of those times in the Exchequer ; which impositions were received to the use of Queen Elizabeth in the beginning of the first year of her reign; but ere the year ended they were all taken away, as may appear by the same port-books, which is a great argument that they were not then held lawful; for princes do not so easily give up their hold in matters of profit, if there be any way to maintain it. III. And now, admitting even that by the common law Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. the king might at his will have laid impositions, yet so stands the law of England at this day, by reason of sta- 289 BarteEs’s CASE. ied pose—how tutes directly 1 in point, that the king’s power, if ever he barred by had any, to impose, is not only limited, but utterly taken away, as may be proved, notwithstanding any objection made to interpreting the statutes in this sense. Magna Carta, c. 30, enacts as follows :—All merchants, if they were not openly prohibited before, shall have their safe and sure conducts, to enter and depart, to go and tarry in the realm as well by land as by water, to buy and sell without any evil tolls, by the old and rightful customs, except in time of war. And if they be of a land making war against us, and be found in our realm at the beginning of the war, they shall be attached without harm of body, or goods, until it be known to us, or our chief justice, how our merchants be intreated there in the land making war against us, &c. The above statute is the most ancient statute-law we have, won and sealed with the blood of our ancestors ; so reverenced in former times, that it has been by par- liament provided (a) that transcripts thereof should be sent to all the cathedral churches of England, there to remain ; that it should be twice every year publicly read before the people; that likewise twice every year there should be excommunication solemnly denounced against the breakers thereof; that all statutes and judgments given against it should be held void; that it should be received and allowed as the common law by all persons having the administration of justice; and it has been many times solemnly confirmed in parliament (5) :—there- fore, with so much the more care, should we endeavour to free this law from the objections made against it. The first objection is, that the above chapter of Magna Carta extends only to merchants being aliens, not to denizens. But it is improbable that the makers of the (a) 25 Edw. 1, cc. 1, 2, 8, & 4. (b) Ante, p. 64, n. (2).. U Digitized by Microsoft® statute. 290 CONSTITUTIONAL LAW. Bares's law should be more careful to provide for the indemnity of merchant-strangers than’ of Englishmen, unless they had imagined that English merchants were already suffi- ciently progided for by the common law. Again, the words are general, “all merchants;” and, qua omnes diaerit, nullos excipit. Besides, the statute is a beneficial law; and, therefore, to restrain its general words would be against reason ; and since no absurdity nor contradic- tion follows by interpreting the first words to extend to merchants in general, and the latter only to merchant- strangers, the most ample and beneficial construction is thus given to them. Moreover this objection is removed by two statutes made by Edward III, declaratory of this very clause. The first is 2 Edw. 3, c. 9, the words of which are, “ All merchants, strangers, and privies, may go and come with their merchandizes into England, after the tenor of the Great Charter.” The word “privies” in this place being derived from privatus, which signifies a particular pro- perty ; as res privata, a man’s own private estate; so the words, mercatores privati, signify our own merchants. The next statute explaining this chapter of Magna Carta is 14 Edw. 3, st. 2, ¢. 2. The words are, “ Whereas it is contained in the Great Charter that all merchants shall have safe conduct, &c. We grant that all merchants, denizens, and foreigners may safely come into the realm of England,” &c., which is a mere declaration of Magna Carta. The second objection made against this chapter of Magna Carta is, that the meaning thereof was to secure merchants, not from a new increase of custom to be im- posed by the king, to be paid at their entrance or going out of the ports, such as our impositions are; but from certain petty exactions, as tolls and such like, which were then usually demanded of them within the land, by the towns through which they were to pass, and where they sold their merchandize. As to the words, “buy and sell Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. without evil tolls,” it is argued that impositions are not paid upon the buying and selling of merchandize, but when it is shipped or unshipped. Toll being properly an exaction for passage within the land, or ‘for sale in markets or fairs. The meaning of this statute, however, was princi- pally to secure merchants touching impositions, as appears from the ordinance of 5 Edw. IL, heretofore mentioned, which alleges that Carta Mercatoria was against Magna Carta, the impositions laid by colour thereof being upon foreign commodities, If, then, Carta Mercatoria were ad- judged to be against Magna Carta, only because by colour thereof new impositions were raised without assent of parliament, it is evident that Magna Carta was under- stood to have been made against impositions, not merely against petty tolls and exactions within the land, The words, “without any manner of evil tolls,” by the old and right- ful customs, extend not only to the next precedent words, “buy and sell,” but also to the former words, “enter and return ;” for to provide that merchants should be free’ from petty exactions of tolls in markets, and for passing through cities and towns, and to leave them subject to: impositions to be laid at the king’s pleasure, had been but slender security. This exposition is confirmed by a record of 16 Hen. III, by which it appears that the king commanded his officers at the ports “to signify to all merchants, that they might with safety enter into his kingdom, paying the rightful and ancient customs,” nec timeant sibi de maletoltis quas faciet rea. The word “toll” seems to be derived from teoloniwm, which signifies custom, by cutting off the latter part of the word and retaining only the first part, teol, by con- traction “toll.” Teoloniwm is derived from the Greek Tedos, which signifies as well custom as finis (c). Hence it is that the customers are called in Latin telonarii. Hence the genuine and primitive signification of our word “toll” (©) Calvin, Lex. Jurid, ad verb. ‘ Teolonium.” v2 Digitized by Microsoft® 291 BAteEs's CasE, Derivation and mean- ing of the word ‘‘toll.’ 292 CONSTITUTIONAL LAW. Bares's is custom upon merchandize. From the word “toll” come — those two barbarous Latin words found in our statutes and records : toltwm, used in the record of 16 Hen. IIL, that now vouched; and tolnetwm, the original word in the statute now in question, which in our law Latin is used for toll in the market and toll for passage. But in this place, malum tolnetum properly signifies, not toll in the common sense, but an unlawful charge laid by the king upon merchandize, as an increase of custom, and the words sine omnibus malis tolnetis per certas et antiquas con- suetudines, ought to be translated, “without impositions, by the old and rightful customs.” This exposition is further warranted by the use of the word maletolt, so often found in our ancient statutes and records, which is derived from the Latin malum tolnetum. It is diversely written—maletout, maletolt, maletot, and sometimes male- tent; but is never used in any other sense than for an im- position by way of increase of custom upon merchandize. Sometimes, indeed, though very rarely, it is taken in the best. sense—for lawful and rightful custom, as the word “imposition” sometimes is; but then commonly it is accompanied by another word to free it from the worst sense, as droiturel maletout, &c. nee Impositio in pure Latin, or imposition in English, is the same with maletolt in French, or malum tolnetum in our law Latin, signifying a new increase of custom. And although the word “imposition,” as also the words maletout and maluwm tolnetum, may be taken as well for a new increase of custom by a lawful means, viz., by assent of parliament, as for an increase of custom by the king’s absolute power, which is unlawful; yet, by the words that immediately follow, it is evident that this statute only intends unlawful impositions, 7.¢., impositions laid by the king’s absolute power, without assent in parlia- ment. Otherwise would they not have been opposed to due and rightful customs, as in the statute they are. eopngue The word consuetudo, in its first and proper significa- Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. tion, means an usage or practice of a thing time out of mind. But it is evident by the records, temp. Henry III. and Edward I. that this word in a more especial man- ner was applied to duties belonging to the Crown by reason of trade; as consuetudo aque Thamesis, consue- tudo piscis venientis ad vicwm pontis London, consue- tudo que vocatur scavegiwm, consuetudo que vocatur “gauge.” But yet more especially was it applied to that duty which we, because of the greatness of the revenue derived from it, per excellentiam call “custom.” And not only what belongs to the king by the common law and by ancient prescription was called conswetudo, but in later times, if there were any increase of that duty, though it came not by prescription, but by grant in parliament or otherwise, yet it retained the name conswetudo, which by continuance of time came to be the proper name for that kind of duty howsoever it began. Nevertheless the people called it by some worse name, as maletolt, or the like. _ The word consuetudo, being applicable to all duties be- longing to the Crown by reason of trade, is used in the plural number in Magna Carta, per antiquas et certas consuetudines, that so the merchants might be secure against all unjust exactions upon merchandize whatso- ever, the principal scope of the Act being to provide against impositions; and the word conswetudo being taken as well for impositions as for rightful customs, there- fore, to make all sure, were inserted the words antiquas et rectas. The word consuetudo in this sense continued till about the twentieth year of Edward I, after which time, in place of it came the word custwma, which first ap- peared in Carta Mercatoria, where the increase of custom by the grant of merchant strangers is called parva cus- tuma; and that which before was called nova consuetudo, now begins to lose that name and to be called magna cus- tuma, signifying the increase made by parliament, anno 3 Edw. I., upon the three staple commodities, wool, wool- fels, and leather ; parva custwma, signifying the increase Digitized by Microsoft® 293 BAvES’s CasE. “ Custuma,’ 294 CONSTITUTIONAL LAW. Some granted by merchant strangers, anno 31 Edw. I. This word custwma was promiscuously used by Edward I., Edward IL, and Edward IIL, in their commissions, add applied as ‘well to increase of ‘custora by way of imposition, or by Act of Parliament, as to the ancient custom upon the staple commodities. But regularly custwma signifies that which is due upon the staple commodities ; except only cloth: if it be laid by Act of Parliament, it is called a subsidy ; if without assent of parliament, an impost. The second statute against impositions, is that de tallagio non concedendo (d). Though there be some dis- pute about the date of this statute, the occasion is agreed to have been the laying of 4 great imposition upon wool. The words of the statute are, “No tallage or aid shall be raised or set by us or our heirs in our realm, without the assent and good will of archbishops, earls, barons, knights, burgesses, and other freemen of the land.” After which general words, by way of provision against all manner of burthens whatsoever to be laid in time to come without assent of parliament, follows especial provision for the taking away of the imposition then demanded upon wool (e). The word tallage above used is to be under- stood only of charges within the land, yet the word aid extends to all charges of what nature soever. This exposition of the word aid, concurring with the occasion of making the statute, strongly enforces the argument drawn from it against impositions. And ’tis to be observed, that in this statute there is no saving or excep- tion of the king’s ancient right. Another statute against impositions is 25 Edw. I, « 7, the words of which are, “Forasmuch as the more part of the commonalty find themselves sore grieved with the maletolt of wools, and have made petition to be released of the same, we at their requests have clearly released it, and have granted for us and our heirs, that we shall not (d) 34 Edw. 1, st. 4, (e) 34 Edw. 1, st. 4, 0 3. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 295 take such things, without their common assent and good Bamss's will, saving to us and our heirs the custom of wools, skins, and leather, granted before by the commonalty aforesaid.” We might, in enforcing this statute, rely upon a rule of law for the exposition of statutes of this nature. Omnis impositio est odiosa, ideo stricta contra impositiones, et large ad favorem gravatorwm imterpretanda est lea contra impositiones data. But there needs not any such favourable construction ; for the words are in themselves clear. The king’s intent was for ever to secure his subjects against impositions, not upon wool only, but upon any other merchandize. The petition was to be released only from the maletolt upon a sack of wool, which is yielded to. The security for the time to come is, “ we will take no such: thing,” and the saving which follows extends not to wool alone, but also to woolfels and leather, by which it is evident that the security for the time to come extends not to wool only. For else to what end should woolfels and leather be excepted in the saving, if they had not been contained in the general words, “no such thing ?” An exception cannot be but of a thing contained in former words. If the grant would have extended to woolfels, had they not been specially excepted, by the same reason does it extend to all other merchandize not excepted ; for the words are general. The next statute made against impositions is the 14 Edw. 3, st. 1, c. 21, which recites that, whereas the Com- mons had prayed the king not to take of wool, woolfels, leather, tin, or lead, more than the ancient custom, the king prayed them to grant him 40s. upon a sack of wool for a year and a half, which they granted: whereupon the king, by way of answer to their petition, touching the wool, causes it to be enacted for their security in time to come, “that neither he nor his heirs would demand, assess, nor take more custom of a sack of wool than 6s. 8d. : and so likewise upon woolfels and leather, no more Digitized by Microsoft® 296 CONSTITUTIONAL LAW. a than the ancient custom, without assent of parliament.” All this while there is no answer given touching the tin and lead mentioned in the petition; upon which, as it appears, the king had also laid impositions. But there follow certain general words, by which not only tin and lead, but all other commodities whatsoever are freed from impositions. The words are, “the king promised i the presence of his earls, barons, and others of his parliament, no more to charge, set, or assess upon the custom, but in manner aforesaid.” Unless these words extend to lead and tin, to free them from future impositions, as wool, wool- fels, and leather are freed by the former special words, the petition of the Commons touching tin and lead is no way answered. And if the words used extend to tin and lead, they must extend to all commodities. And although the king do but promise, yet doubtless in this case his promise isa law. The above statute, 14 Edw. 3, st. 1, ¢. 21, was yielded to by the king, upon a petition exhibited the parliament before by the lords and commons, praying that a law might be made against impositions, at which time they likewise prayed, that the king would be pleased to grant them a charter to the same effect, to be enrolled in parliament. This charter follows immediately after the statute, wherein the king, reciting the great gift that had been given him by the same parliament, that is to say, the ninth sheaf, ninth fleece, and ninth lamb, throughout the kingdom (which, indeed, was a very extraordinary gift, so that the king’s grant, in regard thereof, is to be construed more beneficially), in lieu thereof, for him and his heirs, grants to his subjects that: “From henceforth they shall not be charged, nor grieved, to make any aid, or to sustain charge, if it be not by the common assent of the prelates, earls, barons, and other great men, and the Commons of our said realm of England, and that in par- liament.” It has been objected that these words “aid” and “charge” (f) are to be understood of charges within (f) Under the words ‘‘aid” and ‘‘charge” impositions were formerly Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. the land, such as taxes and tallages, and not of imposi- tions upon merchandize. The answer to which objection is, that this charter, as well as the statute already men- tioned, was made upon a petition exhibited in parlia- ment, for a law and charter to be made against impositions upon merchandize. Therefore the conjecture that it extends only to taxes, not to impositions, falls to the ground ; especially since there is not in the petition any mention at all of taxes or tallages, or of any other charge or aid save impositions. Besides, the mischief at the time of making this law, was not tallages or taxes, but those heavy impositions upon wool, by way of dispen- - sation with the stat. 11 Edw. 3, c. 1, formerly men- tioned. Moreover, the words of this statute being general may with reason be extended to all dispensations for money with penal laws. In particular the raising of money by dispensations with the statutes against ale- houses is, by the force of this charter, unlawful; for quod prohibitum est und vid, non debet alia permitti. 297 Batzs’s CasE. _— IV. The reasons urged in favour of impositions may be Reasons thus answered :— urged in favour of imposing 1. It has been said, that the old custom of a demi-mark answered. upon a sack of wool must have had its beginning either by the king’s absolute power, or by assent of the people, which can only be in parliament, and would appear of record ; and because no such assent can be shown, there- fore it is said to have begun by the king’s absolute power. There cannot, however, be any question that the custom of the demi-mark, and the other old customs were by grant in parliament (g). But this question, how began the first customs? is best answered by another question, how began the fine for purchase of original writs, the certainty of prisage, the trial of issues by twelve jurors, or the rule that the full age of a man should be accounted twenty- one years? In effect, who reduced to certainty the com-' included. Vid. Rot. Parl. 21 Edw. 8, Nos. 11, 16, vol. ii. p. 166. (g) See stat: 25 Edw. 1, ¢. 7. Digitized by Microsoft® 298 CONSTITUTIONAL LAW. Eamme's TON law? Because we cannot tell how or when the customs began, shall we conclude that they began by the .king’s absolute power, and infer that they may be changed at his pleasure? In truth these things began by a tacit consent of king and people, and long approval beyond the memory of man. 2. It is further objected that the king may restrain the passage of merchants at his pleasure, and if he may restrain a merchant from passing at all, he may restrain him from passing unless he pay a sum of money: for cud licet quod majus, licet etiam quod minus. To this it may be answered that the king cannot restrain the passage of merchants, but for some special cause ; as by reason of enmity with such a nation whence they are restrained, or because such a commodity may not be spared within the kingdom. Restraints in these and the like cases being by the common law left to the king’s absolute prerogative, for otherwise it may be in the power of a merchant for private lucre to enrich the king’s enemies, or to furnish them with munition to be employed against the state, or utterly to ruin the commonwealth by carrying out a commodity which could not be spared, or by bringing in some which might be hurtful. Nay, on occasion, the king may stop the passage of merchants from all places for a short time. There may likewise be -such need of their ships that the want of them might be a cause of overthrow of the state. In such cases as these, if the common law did not give the king leave to restrain by his absolute power, it would be very improvident. And yet the kings of this realm have always been sparing in exercising their power in this particular. But although ‘the king may by his absolute power restrain the passage of merchants ; does it therefore follow that he may impose upon such as pass? That because the king may restrain totally, he may restrain for a time, or from certain places, or may restrain certain commodities or certain merchants, might be a good argument, @ majori ad minus, But Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. that because he may restrain totally, therefore he may give passage for money, is not such. If there be just occasion for restraint, the law gives the king power to restrain. But when merchants may without hurt to the state have passage, to force them to pay for that passage is as unlawful as to force a man to pay for doing that which he may lawfully do. Merchants have as good in- heritance in their trade, as any man in his lands; and when compatible with the good of the state, they ought to pass as freely as a man ought to hold his inheritance, or an artificer or other tradesman ought to exercise his lawful trade, free from burthens to be imposed by the king’s absolute power. If, in our commonwealth, it were thought fit to free all other trades and professions from taxes, much more ought it to be thought reasonable, that our merchants should be free, and by all means encouraged in trade, since we are islanders, divided by the sea from all the world, and in that respect have such need of mer- chants that we cannot live without them. If, therefore, any should be free amongst us, it is the merchant. But to return to the argument of restraint. If it be a good argument, that because the king may restrain in toto, he may restrain in tanto; it will not be denied that in cases where he cannot restrain im toto, he cannot restrain in tanto. But no man will say that he may restrain the entrance and passage of all merchants, to and from all parts of the world without limitation of time, and for all kinds of merchandize ; no man will say that the law has given the king power to make so unreasonable a restraint as this; for it were to give him a power to destroy mer- chandize, and consequently to ruin the commonwealth. There can be little doubt but the king, upon occasion, may lawfully restrain the passage of all men through the gates of London ; as if the city be besieged, or in time of an extreme plague. Does it follow that, because he may do this upon some extraordinary occasion, he may shut up the passage for ever? or that, presupposing such a Digitized by Microsoft® -299 Bates'’s CasE. 300 BATEs’s Case. CONSTITUTIONAL LAW. restraint by his absolute power, he may lay an imposition upon every thing brought in, or carried out ? 3. The next objection is that “the ports of England are the king’s ; therefore he may open and shut them upon what conditions he pleases.” To this it may be answered —tThe proposition that all the ports are the king’s, is not generally true; for subjects may also be owners of ports. But admitting the truth of the proposition, the deduction from it is dangerous. For are not all the gates ‘of cities and towns, and all the streets and highways in England the king’s, and as much subject to be open or shut at his pleasure, as the ports are? When we speak of the highway in law, we call it via regia, the king’s highway ; and the king in his commissions, speaking of ‘London, or any other city, calls it civitas nostra London, or civitas nostra Exon. Does it follow, therefore, that the king may lay impositions upon every man, or upon all commodities passing through any of these places? Nay, the gates of the king’s palace of Westminster are his in a far nearer degree than any of these. May he therefore by his proclamation impose upon every man passing into or out of Westminster-hall? Doubtless he may not; because the king is a public person, and his subjects ought to have access to him, as to the fountain of justice, and to the courts of justice sitting by his authority. There can be little doubt, but his majesty may upon just occasion cause any of these passages to be shut. But when without danger to the state subjects may pass, his majesty may not exact money for their passage; for the law has given the king power over these things, for the good of the commonwealth, and not thereby to charge and burthen the subject. Ifthe king may not exact money for passage in and out of his court gates, nor for passage through the ‘gates of cities; much less may he for passage out at the ports, which are the great gates of the kingdom, and which the subject ought as freely to enjoy, as the air or the water. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. * 4, Another’ argument is this—“The king is bound to protect merchants from the enemy ; he ought to fortify the havens, that merchant ships may abide there in safety ; he ought, if occasion be, to send ambassadors to. foreign princes, to negotiate for them ;” and many like charges is the king by law to undergo for the protection of his merchants. It is reasonable, therefore, that his expense be defrayed out of the profit made by merchants, and consequently he may impose upon merchandize a moderate charge thereby to repay himself. The conse- quence of this argument is thus far true. The law expects that the king should protect merchants. Therefore it allows him out of merchandize a revenue for the main- tenance of his charge, which is the old custom due, as before said, by the common law. But it does not follow that therefore he may take what he lists. 5. Another argument is this—“ All other princes of the world may impose upon merchandize at their pleasure ; and so make our merchandize less vendible with them, by laying an imposition upon it to be paid by us, when: brought into their territories. They may also lay impo- sitions upon our merchants buying commodities abroad,. and leave their own merchants free from imposition ; by: which their merchants will reap a profit, and our mer- chants will be undone.” To this it may be answered that, during the time from Edward IIT. till queen Mary, doubt- less it sometimes fell out that foreign princes exercised their power to our prejudice, and yet we hear not of any imposition laid by ‘any of our kings by their absolute power; which may give assurance that they took some other course to meet the inconvenience ; and indeed the means are divers, which these kings used to prevent it. First, they were careful, in all their leagues and treaties with foreign princes, especially to provide for it; for further security, our kings have always had ambassadors resident in the courts of such foreign princes, to put them in mind of their leagues, if upon any occasion our mer- Digitized by Microsoft® 301 Bares’s CasE. 302 pares) 3 Cas: Conclusion. Petition of Grievances. CONSTITUTIONAL LAW. chants happened to be wronged by them ; and if, upon complaint of the ambassador, our merchant have not found redress, our kings have held the league as broken, and declared war or seized the goods of the foreign mer- chants within England; and probably there have been more wars undertaken by our princes for this cause than for any other. Besides, our kings have in this case sometimes made use of their prerogative of restraint, either by prohibiting our merchants from carrying our commodities into those parts, where they are charged with impositions, that so, through want of our commodities, foreign princes might be forced to abate the impositions laid upon them; or by restraining foreign merchants from importing or exporting commodities from hence ; by which means foreign princes lave been compelled to deal favourably with our mer- chants for the good of their own subjects. All these are lawful and ordinary means for preventing or redressing the inconvenience which may ensue from impositions by other princes. If these ordinary means should fail, and the laying of impositions be indeed the only means left to redress the inconvenience, why should not that be done by Act of Parliament in these times, as it was by stat. 7 Hen. 7, c. 7 (kh) ; and.as it was by queen Elizabeth (2) ? So we may conclude that impositions, not even in the time of war, much less in time of peace, neither upon foreign nor inland commodities, be they superfluous or unneces- sary, neither upon merchants, whether strangers or deni- zens, may be laid by the king’s absolute power for ever so short a time without assent of parliament. The debates in the House of Commons which gave rise to the researches of Mr. Hakewill and other learned law- yers, resulted in a Petition of Grievances addressed to King James I, a.p. 1610, of which the part concerning impositions was thus worded (k) :— (h) Ante, p. 284. (i) 19 Eliz. c. 10. (k) See Petyt, Jus. Parl. 322, 323. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 308 “The policy and constitution of this your kingdom 47's appropriates unto the kings of this realm, with the assent of the parliament, as well the sovereign power of making laws, as that of taxing, or imposing upon the subject’s goods or merchandizes, wherein they have justly such a property, as may not without their consent be altered or changed. “This is the cause that the people of this kingdom, as they ever showed themselves faithful and loving to their kings, and ready to aid them in all their just occasions with voluntary contributions; so have they been ever careful to preserve their own liberties and rights, when anything hath been done to prejudice or impeach the same.—And, therefore, when their princes, occasioned either by their wars, or their over great bounty, or by any other necessity, have, without consent of parliament, set impositions either within the land or upon commodities either exported or imported by the merchants; they have | in open parliament complained of it, in that it was done without their consents; and thereupon never failed to obtain 4 speedy and full redress, without any claim made by the kings of any power or prerogative in that point.— And though the law of property be originally and carefully preserved by the common laws of this realm, which are as ancient as the kingdom itself; yet these famous kings, for the better contentment and assurance of their loving subjects, agreed, that this old fundamental right should be farther declared and established by Act of Parliament : wherein it is provided, that no such charges should ever be laid upon the people, without their common consent ; as may appear by sundry records of former times. “We, therefore, your Majesty's most humble Commons assembled in parliament, following the example of this worthy care of our ancestors, and out of a duty to those for whom we serve, finding that your Majesty, without advice or consent of parliament, hath lately in time of peace set both greater impositions, and far more in number Digitized by Microsoft® 304 CONSTITUTIONAL LAW. Bares's than any your noble ancestors did ever in time of war, have with all humility presumed to present this most: just and necessary Petition unto your Majesty. “That all impositions set without the assent of parlia- ment may be quite abolished and taken away: and that your Majesty, in imitation likewise of your noble proge- nitors, will be pleased, that a law may be made during this session of parliament, to declare, that all impositions, set, or to be set upon your people, their goods or merchan- dizes, save only by common assent in parliament, are and shall be void; wherein your majesty shall not only give your subjects good satisfaction in point of their right, but. also bring exceeding joy and comfort to them which now suffer; partly through the abating the price of native commodities, and partly through the raising of all foreign; to the overthrow of merchants and shipping ; the causing of a general dearth and decay of wealth among your people, who will be hereby no less discouraged than disabled to supply your Majesty,.when occasion shall require it.” Besides the remonstrance against impositions generally offered by the House of Commons, complaint was specially made of two grievances: the tax on ale houses (alluded to by Mr. Hakewill at page 297), and the impost which had been laid on coal at certain places by the royal pre- rogative. In regard to the former of which the Commons, setting forth that by the laws of England no taxes, aids, or impositions of any kind ought to or can be imposed upon the people, or their goods, but by consent of parlia- ment, complained of the tax or imposition laid yearly upon those who kept victualling houses, or sold ale and beer by retail: such imposition not being laid by assent of parlia- ment, but under letters and instructions from the Crown. And the Commons urging that the said taxation was without example, and in itself a precedent of dangerous consequence, easily to be extended farther, besought the king that former letters and instructions issued for levying Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. the tax in question might be countermanded or stayed, and all further directions and proceedings of that kind forborne. Further, the Commons complained of impositions : which beginaing at first with foreign ‘commodities, brought into or exported out of the realm, had been extended to commodities growing in the kingdom, and consumed by the subjects thereof; particularly of the impost on sea-coals at Sunderland, such impost not having been levied by virtue of any contract or grant, but under mere pretext of the king’s prerogative : “ Which imposition is not only grievous for the present (especially to those of the poorer sort, the price of whose only and most necessary fuel is thereby to their great grief enhanced), but danger- ous also for the future, considering that the reason of this precedent may be extended to all the commodities of this kingdom.” The Commons therefore prayed his Majesty, the great and sovereign physician of the state, to apply such a remedy that the diseases specified might be presently cured, and all diseases for time to come of like nature be prevented. In reply to the above remonstrance of the Commons, the king was pleased to direct that the imposition upon alehouses and that on coal should be remitted; and although the concessions thus made by him were small in compa- rison with the demands above set out, they were so far favourably received that in acknowledgment of them a subsidy was granted to the Crown (J). (2) Parl, Hist, vol. i. p. 1133. Digitized by Microsoft® 805 Batrs’s CASE. 306 Writ to assess and levy ship- money. CONSTITUTIONAL LAW. THE CASE OF SHIP-MONEY, 3 St. Tr. 825 (m). (18 Car. 1, A.D. 1637.) RIGHT OF THE CROWN TO LEVY MONEY FOR DEFENCE OF THE REALM. The sovereign cannot, without the assent of parliament, assess and levy ship-money. The first writ for ship-money—devised by Mr. Attorney General Noy—was issued on the 20th October, 1634, to the mayor, commonalty, and citizens of London, and was followed by other writs directed to the sheriffs of counties, as well inland as maritime, to a like purport—ea. gr., to the sheriff of Bucks, the bailiff of Buckingham and others (4th August, 1635)—in these terms :— “ Because we are given to understand that certain thieves, pirates, &c., take away and despoil the ships, goods, and merchandize, not only of our subjects, but also of the subjects of our allies upon the sea, which of old used to be defended by the English nation; and at their pleasure have carried away the men therein, enslaving them in a most wretched captivity: And whereas we see them daily preparing shipping further to annoy our subjects, and to agerieve the kingdom, unless a more speedy remedy be applied, and their endeavours be more vigorously obviated : Considering also the dangers which everywhere in these times of war hang over us; so that it behoves us and our subjects to hasten the defence of the sea and kingdom with all possible expedition: We being willing by the help of God, in the highest degree to provide for the defence of the kingdom, the protection of the sea, the security of our subjects, the safe convoy of shipping and merchandize coming to our kingdom of England, and going from the said kingdom to foreign parts: And since we and our progenitors, kings of England, have hitherto (m) Rex v. Hampden (in the Exchequer and Exchequer Chamber). Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 307 THE been lords of the sea aforesaid ; and it would in the highest oJ os manner concern us, if this royal honour should in our day be lost, or any ways diminished ; since also this burthen of defence, which touches all, ought to be borne by all, as hath been accustomed to be done by the law and custom of the kingdom of England: We firmly enjoin and com- mand you, in the faith and allegiance whereby you are bound to us, and as you love us and our honour, as also under the forfeiture of all things you can possibly forfeit to us, that you cause to be fitted out one ship of war of the burthen of 450 tons, with men, as well skilful officers as able and experienced mariners, a hundred and fourscore at least; as also with a sufficient quantity. of cannon, muskets, &c., as also with competent victuals for so many men, until the Ist day of March now next ensuing; and from thence for twenty-six weeks at your costs, as well in victuals, as the men’s wages, and other things necessary for war by that time, on account of defending the sea at our command in company with the admiral, to whom we shall before the aforesaid Ist day of March, commit the custody of the sea, to be and remain where he on our behalf shall appoint ; and that you cause the same to be brought into the port of Portsmouth before the said Ist day of March, so that they may be there that day at farthest ; thence to proceed with our ships, and the ships of other loyal subjects, for the protection of the sea, the. defence of you and yours, to repel and vanquish all those, whosoever they are, that endeavour to molest and annoy on the sea our merchants and other loyal subjects afore- said, coming into our dominions on account of traffic, or returning thence to their own country.” The writ next proceeded to direct the sheriff, bailiff, and others, within thirty days after receiving it, to assess as much of the charges aforesaid upon certain boroughs within his shire as ought severally to be laid on or as- sessed. And if such assessment within the aforesaid thirty days should not be made, then to make such assessment x 2 . Digitized by Microsoft® Surp- MONEY. 308 CONSTITUTIONAL LAW. ol, Upon the aforesaid boroughs, &c., as he should see reason- Sar. able to be done. —_ The writ proceeded thus:—“We have also appointed you the aforesaid bailiff of the borough and parish of Buckingham, to assess every man in the said borough and parish, and in the members thereof, and the land-tenants in the same, not having the ship aforesaid, or any share thereof, or not serving therein, to contribute to the expenses about provision of the necessary premises; and to assess and lay upon the aforesaid borough and parish with the members thereof, so as aforesaid, that is to say, every one of them according to their estate, goods, and employment, and the portions on them assessed, by distresses or other due ways and means to levy, and collectors in that behalf to nominate and appoint; and all those whom you shall find rebellious and refractory in the premises to imprison, there to remain till for their delivery we shall further think fit to direct. “ And further, we command you all, that you diligently apply yourselves to the premises, and effectually do and execute the same, as you shall answer the contrary at your peril. But our will and pleasure is, not that under colour of our mandate aforesaid you cause to be levied from the said persons more than shall suffice for the necessary expenses of the premises ; or that any one who ‘shall levy any money of the contributors to the charges aforesaid, detain the same or any part thereof in his own possession, or presume to appropriate it to other uses under any pretence or colour whatsoever. It being our will, that, if more shall be collected than is sufficient, the same be paid back again to those who shall have so paid the same, according to every man’s respective share and proportion.” With a view to determining the legality or otherwise of the writs for ship-money, before their validity could be solemnly discussed, the following questions were submitted privately to the judges by the king : “When the good and Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 309 safety of the kingdom in general is concerned, and the ,T whole kingdom is in danger; Whether may not the king, Sar by writ under the great seal of England, command all —~ the subjects of this kingdom, at their charge, to provide and furnish such number of ships, with men, victuals, and munition, and for such time as he shall think fit, for the defence and safeguard of the kingdom from such danger and peril; and by law compel the doing thereof, in case of refusal or refractoriness? And whether, in such a case, is not the king sole judge, both of the danger, and when and how the same is to be prevented and avoided?” To: these questions the answers given by the judges were as under :—“ That when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger, your Majesty may, by writ, under the great seal of England, command all the subjects of this your kingdom, at their charge, to provide and furnish such number of ships, with men, munition, and victuals, and for such time as your Majesty shall think fit, for the defence and safeguard of the kingdom from such danger and peril: and that by law your Majesty may compel the doing thereof, in case of refusal or refractoriness. And we are also of opinion, that in such case, your Majesty is the sole judge, both of the danger, and when and how the same is to be prevented and avoided.” The sum of 20s. assessed. upon. Mr. Hampden, under the writ above set out, not having been paid,. proceedings against him were taken in the Exchequer, whereto he appeared, and having demanded oyer of the writ, demurred to it as insufficient in law. Upon this demurrer Mr. St. John argued, on behalf of Hampden, as follows :— By the above writ—dated 4th August, 11 Car. I—the argument thing commanded is, that the county of Bucks should ney.” provide a ship of war of 450 tons, with 180 men, guns, tackling, victuals, &c. and bring her to Portsmouth by the 1st of March following; and from that time provide for her victuals, mariners’ wages, and other necessaries for Digitized by Microsoft® 310 THE CasE oF Suip- MONEY. CONSTITUTIONAL LAW. twenty-six weeks. For effecting this, there is power given to assess each person within the county secundum statum et facultates, and to bring in these sesses by distress, e¢ quos rebelles invenirent to imprison their persons. If the writ had staid here, and gone no further, the command had been void in law, because as yet it appears not for what end this ship was to be provided. A com- mission to seize men’s goods notoriously suspected of felony, before conviction, has been adjudged void, because the command, without cause shown sufficient in law, would be void. Therefore the reasons for making the assessment are set down to be: pro defensione regni, tuitione maris, securitate subditorum, et salud conductione navium, both outward and inward, the sea being infested with pirates, and more shipping being daily prepared ad regnum gra- vandum. The legality of the requirement that every man secun- dum statum et facultates should be assessed, is enforced : Ist. From custom and continued use, in these words: that the sea per gentem Anglicanam ab olim defendi con- suevit. 2ndly. From a common ground of equity, onus de- fensionis, quod omnes tangit, per omnes debet supportart; backed by the common law in these words: prout per legem et consuetudinem regni Anglie fieri consuevit. The argument standing thus: all have benefit by defence of the realm; therefore by law the charge ought to be borne by all. Then it is inferred that every man, by his allegiance, is bound to contribute to this charge, the command being in fide et legiantid quibus nobis tenemini. Of these parts the writ consists; the scope and end of issuing it being the defence and safety of the kingdom; a thing so necessary that it must needs be legal: for it were a conceit of the law to confine its care to the preservation of the members of the body politic from wrongs by others, and, nevertheless, to leave the whole to the violence of enemies: so that whilst each subject might have a sure Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. estate in his lands, and property in his goods, not to be impeached by any within the realm; the subjects, con- sidered all together, would have only precariam /posses- sionem, or a tenancy at the will of foreigners. This cannot be; for the law even afar off foresees and prevents dangers of this kind ; ew. gr., an alien, though a friend, has not capacity to purchase land within the realm. And if the law be so quick-sighted that, to prevent a possibility of danger, it prohibits strangers from having land within the realm who desire to come by it peaceably and for valuable consideration, we may surmise the care it takes to prevent dangers from open violence and force. So that in this case the question is not de re, for by law the safety of the realm is to be provided for ; salus populi suprema lex: neither is the question de personis, in respect either of the persons who are to bear the charge, or of those whom the law has intrusted with this defence. As to the persons who are to bear this charge, the writ says: quod omnes tangit per omnes debet supportari : and the reasons for this are weighty, and agreeable to the rule of the civil and of the common law, gui sentit commodum, sentire debet et onus: so that the burthen lies upon all, for our bona nature, our lives and persons are as dear to one as to another: and the charge is to be borne secwn- dum statum et facultates ; because the greater the estate and means of livelihood, the greater the benefit by the defence. The law in this case of defence against the invasion of enemies, being the same as in that of inunda- tions of our soil by the sea or fresh water. All who have defence must be assessed, the assessment being equally distributed, and laid upon every man within the level, pro ratd portionis tenure suc, seu pro quantitate communis pasture vel piscaric, the more land common or benefit of fishing each man has, according to the proportion thereof the sess must be. Neither is there any question but the law has intrusted his Majesty with this defence. The protection which we Digitized by Microsoft® 311 THE CaSE OF Sare- MONEY. 312 CONSTITUTIONAL LAW. ol. have for our bodies, lands, and goods, as against, any Sar. within the realm, we know is from him ; all legal jurisdic- “ee tion, ecclesiastical and civil, being wholly in him. The same is it in case of foreign defence. The king calls the kingdom regnum nostrum, and every city and great town civitatem et villam nostram, not quoad proprie- tatem, but quoad protectionem et defensionem. Neither has the law invested the Crown with sovereignty only as honorariwm, but for the good and safety of the realm. The king ratione regi dignitatis et per guramentum est astrictus ad providendum salvationi regni undt- quaque; so that both in honour and by his oath he is bound to provide for the safety of the realm, and that circumquaque. By law the king is paterfamilias, not only to keep peace at home, but to protect his wife and children, and whole family from abroad. It is his vigilancy and watch~ fulness that discovers who are our friends, and who are our foes; and after such discovery warns us of them ; for he only has power to make war and peace. Neither has the law only entrusted the defence of the kingdom to his Majesty, it has likewise put the means of defence in his hands ; it is not in the power of the subject to order it by sea or land, for no man without commission or special licence from his Majesty, can send forth ships to sea for that purpose; neither can any man without such commission or licence, unless upon sudden coming of enemies, erect a fort, castle, or bulwark, even upon his own ground. Nor is his Majesty armed only with his prerogative of generalissimo and commander-in-chief, so that none can advance towards the enemy, until he gives the signal, nor in other manner than according to his direction: he is armed with all other powers requisite for the full execution of things incident to so high a place, as well in times of danger as of actual war. The sheriff of each county, who is but his Majesty’s deputy, has the posse comitatus: Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. therefore it must needs follow, that the posse regni is in the king. And it must be granted that in this business of defence, the suprema potestas is inherent in his Majesty, as part of his crown and dignity. Therefore, the law of England provides, in the first place, for foreign defence; and, secondly, lays the burthen upon all; making the quantity of each man’s estate the rule whereby this burthen is to be apportioned. So has it, in the third place, made his Majesty sole judge of dangers from abroad, and when and how the same are to be prevented ; and it has given him power by writ under the great seal of England, to com- mand the inhabitants of each county to provide shipping for the defence of the kingdom, and he may by law com- pel the doing thereof. Hence the question will not be de persond, in whom is the swprema potestas of giving the authority to the sheriff, mentioned in this writ, for that is in the king: but the question is only de modo, by what method this supreme power is to be applied. The forms and rules of law have not been observed in this case. For as, without the assistance of his judges, his Majesty applies not his laws, so neither without the assis- tance of his great council in parliament can he impose. Parliament is his Majesty’s court. It is his Majesty that gives life and being to it, for he only summons, continues and dissolves it, and by his le veut enlivens all its acts. It is indeed sometimes called commune concilium regni, because the whole kingdom is representatively there; because the king’s subjects have access thither in things that concern them, other courts affording relief but in special cases; and, because the whole kingdom is interested in, and receives benefit by the laws there passed: Yet it is conciliwm regni no otherwise than the common law is lex terre, that is per modum regis. The parliament is the king’s court ; Habet rex curiam suam in concilio suo in parliamentis swis (n). (n) Fleta, lib. ii, cap. 2. Digitized by Microsoft® 313 TuE Case oF SuIr- MONEY. 314 Tue CasE or Sure- MONEY. CONSTITUTIONAL LAW. Acts of Parliament had anciently so much of the king’s name and style in them, that it was a hard matter to know whether they had anything of the parliament in them or not (0). And from those times until now, Acts for the most part commence thus: “It is enacted by our sovereign lord the king, with the assent of the lords spiritual and temporal, and commons.” The king was and still is pars agens, the rest are but consentientes. Without assistance in parliament, his Majesty cannot in many cases communicate either his justice or his power to his subjects—Hence it follows that the kingly dignity most appears and manifests itself there ; which was the opinion of all the judges of England, temp. 34 Hen. VIIL who, by the king’s command, meeting together about a point of privilege of parliament, the king afterwards de- claring their opinions, does so in these words: “ Further, we be informed by our judges, that we at no time stand so highly in our estate royal, as in the time of parliament, wherein we as head and you as members, are conjoined and knit together in one body politic” (p). It appears not by the record, that this writ, giving power to sell and alter the property of the defendant's goods, issued from his Majesty sitting in parliament, and therefore it cannot be intended so to have done. If therefore it has issued from his Majesty otherwise than in parliament, the question is, whether it be erroneously issued or not ? The case now put concerns not the defendant only, it concerns his Majesty and the whole State. His Majesty is concerned in executing the trust which the law has reposed * in him for the safety and preservation of the kingdom ; the subject is concerned in that, whereof he is most tender, his property. And the question is concerning the validity of the writs, which extend to the altering of the property of the subjects’ goods without their consent ; this being (0) The Prince's Case, 8 Rep, 14. (p) Crompton, Jurisdict. fo. 10. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 315 for the defence of the kingdom at land and sea—pro | Tx= defensione regni, tuitione maris, securitate subdito- sme rum, salud conductione navium, both outward and = —~ inward. In the first place shall be presented the known and un- Means pro; doubted means whereby the law has provided for the fence of the defence of the realm both at land and sea. The first" whereof is by tenure of land. The services hereby due being of two sorts: service in kind, for land and sea, and supply to his Majesty for that purpose. The second mode is by prerogatives settled in the Crown for defence of the kingdom. The third is by supplies of money for. defence of the sea in times of danger, ordinary and extraordinary. The kings of this realm; as they are the head of the By tenvre commonwealth, so are they the head and root whence all tenures spring; for all lands within the realm are held mediately or immediately of the Crown. As therefore the law has appropriated the defence of the kingdom to the king, so has it trusted him with the reservation of such tenures, as might serve for that purpose. Every one holding by knight’s service, from a whole knight’s fee to any part thereof, ought to find a man com- pletely armed for the war. He who holds a knight’s fee ought to be forty days in the service ; and he who holds a moiety of a knight’s fee twenty days ; and so in propor- tion. Temp. Henry IL, Edward I, and Henry VI. there were many thousand knight’s fees held of the Crown. ' And it is said, that in the Conqueror’s time there were thirty thousand held of him: But it may be objected that, inasmuch as these ser- vices are reserved by the king, they were not instituted solely for defence of the realm, but might be exacted for foreign wars ; and that such may be inferred, Ist. from the name by which our old books and deeds style this service when due to the crown, viz, forimsecwm servitiwm ; and Digitized by Microsoft® 316 CONSTITUTIONAL LAW. oim®,, 2ndly. from its having been performed in Normandy, sar Gascony, &e. (9). ; = To the former objection, the answer is that anciently, when those holding immediately of the crown by this service infeoffed others of the land so held, besides the service reserved to themselves, they commonly in the con- veyance made provision for their own acquittal against the king, and the feoffee took the whole service upon him- self, And in these deeds of feoffment, after the reserva- tion to the feoffor, was this clause: et faciendum inde, sometimes forinsecum servitium, sometimes regale servi- tiwm. Bracton (r) and Fleta (s) say that it is called regale servitium, quia est servitiwm domini regis. By the same authors it is also called forinsecum, quia capitur foris sive extra servitium, quod fit domino capitals. To the second objection, that knight’s service has been often performed beyond sea, it may be answered that, escuage, which is the penalty upon the tenant for default in performing such service, can only be assessed in parlia- ment: which proves that the king cannot command this service, otherwise than for the good and defence of the realm. That this service was instituted for defence of the realm, appears further by the care which the law has always taken to increase and preserve it, ew. gr., if the lord purchase part of the land, yet the whole service remains : so in the Statute of Mortmain, 7 Edw. 1, st. 2, the mis- chief by conveying lands to religious houses is expressed to be quod servitia que ex hujusmodi feodis debentur, et que ad defensionem regni ab initio provisa fuerunt, in- debite subtrahuntur. And, besides the declaration that they are for the defence of the realm, that statute likewise provides for the increase of them ; for, if the lord enters not within a year and a day after the feoffment, the king is (q) Co. Litt. 68, b. et seg. (s) Lib. iii. cap. 14. (r) Lib. ii, ¢. 16, fo. 36, 37. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. to enter; and the words of the statute are observable, viz, alios inde feoffabimus per certa servitia nobis inde ad defensionem regni nostri facienda, for though the service is to be done to the king, it is to be done ad defensionem regnt. Moreover, scutage is said to be due imveniente in regnum hostium machinatione (t), propter exercitum et patric tuitionem (u), and to be performed certis tenvporibus cum casus et necessitas evenerit (x). It is observable that the services above-mentioned are not created ex provisione hominum, but ex provisione legis; for if the king grant land without reserving any service at all, the patentee will hold the land by knight’s service in capite. In Stamford (y), it is said that the first kings of this realm had all the land of it in their own hands; and in transferring these lands the care of the law was, that all the transferees should by tenure be made liable for the defence of the kingdom. And because the tenure by knight's service ties the tenant only to forty days’ service for the defence of the realm in general, divers other tenures for particular and certain services were reserved—as grand-serjeanties, some whereof were for service of honour in times of peace (2), and some for military service, ex. gr., to carry the king’s banner, to summon the tenants ad exercitwm, some to be of the vanguard, some of the rear; some to serve in Wales, some in Scotland, some imfra quatuor maria, some infra Cinque Portus Anglic. Speaking of these military serjeanties, Coke (z) says that they were for the safety of the realm, and Fleta (a) observes that magna serjeantia regem tantum respiciunt et patric defensionem. Of this nature is the tenure of cornage, to give warning of enemies coming into the kingdom, and the tenure by castle-guard, to defend the castles (t) See the Black Book of the Ex- (a) Id. fo. 36. chequer, fo. 3. (y) Prerog. fo. 10. (u) Bracton, lib. ii. v.16, fo. 36, (2) Co. Litt. 106, a. 387. (a) Lib. iii, cap. 16. Digitized by Microsoft® 317 THE CasE OF Suipe- MONEY. 318 THE CASE OF SHip- MONEY. CONSTITUTIONAL LAW. when an enemy enters the realm. And there are petty serjeanties for the finding of armour of all sorts for the war. That former kings executed the power derived from tenures for defence of the realm, according to the trust the law reposed in them, appears further in this, that in places exposed to the greatest danger there were most of them. All along the sea-coasts of Kent and Sussex, nearest France, are the Cinque-Ports, which have juris- diction within themselves, that the inhabitants might not be compelled to travel out of them for justice, and other privileges ; both to induce the people to live there, and to encourage them to the defence of those parts. And Dover Castle, the key of the kingdom, has about two hundred tenures by castle-guard, besides divers tenures for the repairing of the castle. On the borders of Scot- land we find the franchisement of the bishopric of Dur- ham, instituted for the defence of those parts; which William the Conqueror first made a county palatine, ap- pointing a bishop thereof, ut refrenaret rebellionem gentis gladio, et reformaret mores eloquio (b). And in -Cumberland, Northumberland, and Westmoreland, are more such tenures for defence of the realm, than in any of the inland counties. Along the marches of Wales was another county Pala- tine—that of Chester—to oppose the Welch invasions; and there were many lords marchers of baronies, who had administration of justice secundwm legem Marchic, and for service to be done against the Welch had special privileges. Of such military services the king is in the actual pos- session by taking the profits of wards’ marriages, releases, licences, forfeitures for alienation, and primer seisin, Tnasmuch, however, as military service was not alone sufficient for the defence of the realm, divers other tenures (6) Will. Malmesbury, fo. 157. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. were created to supply his Majesty with money for that purpose. All men, however, within the kingdom, are not equally inheritable, either to the body or to the property of lands or goods, but there are degrees and ranks amongst them differing from each other: 1. Villeins. 2. Free- holders, by knight’s service, or free socage. 3. Tenants of ancient demesne, or holding by burgage within cities and boroughs. J. The villein, as to his lord, had freedom in neither particular above specified ; in respect of his body he could not ire quo voluit ; but the lord at his will might imprison him, and in respect of his land and goods might tax him de haut et de bas. a 2. Freeholders constituting the greatest part of the realm, always had absolute freedom in person and pro- perty. 3. Tenants in ancient demesne and burghers had an absolute freedom in their persons, but qualified in their property, not taxable at will, as villeins; though for the defence and necessary affairs of the realm, they might be taxed without consent of parliament. The same is it of burgesses within cities and boroughs. Tenants in ancient demesne were to plough and manure the king’s lands, being his demesne. And they, as well as burgage tenants, were anciently talliable without their consent in parliament. They were not so, however, at the king’s will and pleasure, but only for the defence and necessities of the state. So much for tenures, the first means whereby the law has provided for the safety of the realm ; which of them- selves not sufficing, the law, besides the honours, castles, manors, and other revenues of the Crown, for our support of ordinary charges, has appointed divers prerogatives, for extraordinary charges, and for defence of the realm, as one of the chiefest of them. That things coming to the Crown by prerogative are to be employed for the defence and public affairs of the Digitized by Microsoft® 319 THE CasE oF Suip- MONEY, By preroga- tives vested in the Crown. 320 CONSTITUTIONAL LAW. ois®,, Tealm may be thus shown. All the king’s prerogatives are. Sar gure corone, and to be employed for the common good. — ' The reason why the king has treasure-trove, and gold and silver mines, is because he is thereby to defend the king- dom (¢), and the reason of many of the rest is, quia the- saurus regis est fundamentum belli et firmamentum pacis. By stat. 14 Edw. 3, c 1, escheats, wardships, customs, and profits arising out of the realm of England are said to be spent for the safeguard of the realm, more than the profits of the king’s manors and lands. In the parliament roll, 6 Rich. II. (d) the Commons petition that the king will live of his own revenues; and that wards, marriages, réleases, escheats, forfeitures, and other profits ‘of the Crown, may be kept to be spent upon wars for defence of the kingdom; which shows that there was always a difference made between profits arising out of the king’s manors and lands, and that profit which arose casually by the prerogative. By supplies The third way provided for defence of the kingdom, is of money for a ze ¥ defence of by particular supplies of money for defence of the sea In "time of danger. For supporting this charge our kings have not only had the grand customs of the mark and demi- mark upon wool, woolfels, and leather, and also prisage ; but divers other things granted by Act of Parliament, ex. gr., the petty customs which began 31 Edw. I, and were made perpetual by stat. 27 Edw. 3, c. 26, and like- wise divers aids and subsidies, which are an increase of customs upon the staple commodities of wool, &c. That which was thus taken by his Majesty in the 11th year of his reign, when this writ issued forth, was 300,000J. and upwards. The aids and subsidies, and tonnage and poundage anciently granted upon particular occasions only, and afterwards to the kings and queens for life by Act of Parliament, and now taken by his Majesty, (c) The Case of Mines, Plowd. 315 (d) Rot. Parl. 6 Ric. 2, No. 42, et seq. vol. iii. p. 189. : Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. together with the new imposition, make up the aforesaid sum, That the grant of custom is principally for protection of merchants at sea against the enemies of the realm, and pirates, the common enemies of all nations, appears by the Case of Impositions(f). That the aids and subsidies, and likewise tonnage and poundage, before they were granted for life, were not only for the protection of mer- chants, and the ordinary defence of the sea, but also for the defence thereof in times of extraordinary danger, and from invasion by enemies, appears by the Parliament Rolls (g). They were granted for the ordinary defence of the realm, principally of the sea; and that our kings might always have money in their hands to withstand invasion. Bracton (h) says, In rege necessaria sunt hoee duo, arma et leges quibus utrwmque tempus bellorwm et pacis recte possit gubernare, and Glanville (2) observes, that Regiam maestatem armis contra gentes sibi regnoque msur- gentes oportet esse decoratam. His Majesty, as lord of sea and land, is armed for the defence of both. The service of the Cinque Ports, tonnage and poundage, and other duties, are the ordinary settled and known ways by the law appointed for defence of the seas; the way proposed in the writ by assessing and altering the property in the subjects’ goods without their consent is unusual and. extraordinary. Now, lex non facit salutem; we are not to run to extraordinary, when ordinary means will serve. Acts done eatra ordinem, in times of necessity, are not to be brought into example, for, if so, the same power that may once do them, might by the same rule always do them, and so might not at any time or in any thing be bound by rules of law. As to altering the property in the subjects’ goods, though (f) Ante, p. 247. (1) Page 1. (g) Rot Parl, 1 Ric. 2. Part II. () Page 1. Nos. 9 and 27. Digitized by Microsoft® 321 THR CASE OF SHIp- MONEY. 322 THE CaSE OF Suip- MONEY, -CONSTITUTIONAL LAW. for the defence of the realm, parliamentary assistance be necessary, the law ties no man, much less the king, to impossibilities, and since the kingdom must be defended, the law having put this trust upon the king, when the ordinary supplies fail him, provides other means, viz.,— Ist, aids and subsidies granted in parliament. It is clear that the law has provided this parliamentary way for sup- plying the king’s wants, and has likewise put the power of using it into his Majesty’s hands, for he may call parlia- ments when and so often as he pleases. That parliament is best qualified to make this supply, and best fitted for preserving that fundamental property which the subject has in his lands and goods (because each subject’s vote is included in whatsoever there is done), may be proved both by reason and authority, for— 1. Parliament is by law appointed as the means of supply upon extraordinary occasions. 2. The aids demanded by former kings, and granted in parliament for defence in times of imminent danger, are very frequent. It is rare in a subject, and more in a prince, to ask and take that as a gift, which he may and ought to have of right. The second way was by loans and benevolences de- manded by our kings, with promise of repayment, for the ordinary and extraordinary defence of the realm; and that as well of all the subjects equally, as of some few. The third way in which our kings met the charge of war was by anticipating their rents and revenues. The law delights in certainty (%), and admitting that there is cause for raising money for defence of the realm, non definitur im lege, what will serve the turn. If his Majesty, as in the writ, may without parliament lay 20s. upon the defendant’s goods, why not 201., and so ad infi- aitum ? whereby it would come to pass that, if the sub- ject had anything at all, he would not be beholden to the (%) Ante, p. 253. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. € law for it, but would be entirely dependent on the mercy and goodness of the king. As to the second kind of proofs, viz, by authorities, If it be proved that his Majesty without parliament can- not tax his people for land forces for defence, for making and maintaining forts and castles, for victuals for a defen- sive army, for maintenance of prisoners taken in a defen- sive war, for pledges and hostages given by foreign states for the keeping of peace,—the five supports of a defensive war,—it may then be asked whether this can be done at all ? If those holding by ancient demesne and burgage, which are but base tenure, cannot be taxed nisi sur grand cause, and have many privileges in consideration thereof; much less can tenants by knight’s service and socage, who are free tenants, and have no privilege in support of the charge, be taxed. And if the king, without consent in parliament, cannot tax his tenants, nor apportion the fine according to his pleasure, when the tenant holds the land ad exercitwm, for the defence of the kingdom, much less can he do it where there is no tenure for that purpose. That escuage cannot be set without parliament, appears from the Magna Carta of King John (/). As regards charging the subject for finding soldiers to go out of their respective counties for the defence of the realm, it may be admitted :— 1. That every man, after the Statute of Winchester (m), secundum statwm et facultates, was to find all manner of arms as well for defence against foreigners, as for the peace of the realm. 2. That upon sudden coming of enemies, the king’s subjects are compelled to travel out of their own counties, appears by stat. 1 Edw. 3, ¢. 5, and so for appeasing of any notable rebellion, when the king for the doing thereof goes in person, as appears by stats. 11 Hen. 4, c. 1, and c. 18, 3. That so long as¢hey remain at home, and go not out () Cap. 14, cited post, p. 826. (m) 138 Edw. 1, st. 2, ¢. 6. xy 2 Digitized by Microsoft® 323 THe CasE oF Suip- MONEY. 324 THE CASE OF Ship- MONEY, Furnishing victuals. CONSTITUTIONAL LAW. of their counties, they are to have no wages; and that the maritime shires, and those that border upon Scotland and Wales, were not to be at the king’s charge, so long as they remained at home in their own counties for protect- ing them ; but that they were in that case themselves to bear the charge against foreign invasion, as of making hue and cry, assisting the sheriff when he took the posse comi- tatus, and all other things which concerned the keeping of the peace. But that the subjects are taxable either for wages or victuals, or for finding soldiers out of their counties, though for defence of the kingdom, or are compellable to do it at their own charge, must be denied. The stat. 1 Edw. 3 (n), says,—That in this case it shall be done, as usually had been done in times past, for the defence of the realm. Doubtless before Edward IIL’s time, commissions issued out of chancery for that purpose. But it is as clear that whole armies, some of them of 30,000 at the least, over and above those who were summoned by their tenure, have been maintained at the king’s charge, from the time that they departed out of their counties, during the whole time of their service ; and that not only with promises of pay- ment, but ex thesawro regis, out of the exchequer ; and many times upon failure of payment for victuals, wages, and other things, upon suit for them in the exchequer, full payment has been made. So that de facto the king was usually at the charge of defensive war. As to finding arms, &c., provisioning the castles and fortresses, and so forth :— The stat. 14 Edw. 3, st. 1, c. 19,enacts——That provision for the wars shall be made by merchants without commission or other power from the king, that the people may not be compelled to sell against their wills. That this was as well for defensive as offensive war, and was not introduc- tivum nove legis, but was so at common law, is clear. (n) Chap. 5. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 325 In the next place,—When those who served with horse 7", ad vadia regis, lost their horses in the service, the owners 8" did not bear the loss, but were always paid for it by the _, = king ; and therefore when they first entered the service, the marshal, or wardens of the marches, set down in a roll the horse of each man, and the mark and price of each horse, to the intent that the owner by this certificate might be assured of the full value being paid him, in case the horse was lost. As to castles, the ancient forts and bulwarks for defence, Victualling the stat. 14 Edw. 3, c. 13, says,—That merchants without any commission or power from the king shall victual them, so that the people shall not be compelled to sell against their will. But even in the time of war, when the frontier towns and castles were besieged, and the borders invaded, the king did bear the charge. And lastly, the charge and maintenance of prisoners Mainte- taken in defensive wars, and likewise of hostages, and the goisans carrying them to the several places of their abode, have been always borne by the kings of this realm. If in all these particulars of soldiers, victuals, castles and forts, horses, prisoners, and pledges in case of a de- fensive war, our kings could not tax their subjects, but have borne the charge thereof themselves, it may be argued to be so for the defence of the realm in general. And where money has been borrowed by our kings for such defence, not only upon petition by their own plea- sure, but likewise upon suit in an ordinary court of justice, they have been adjudged to repay it. As to proofs derived from Acts of Parliament :— : The ardua regni negotia for which parliament is sum- proofs ae- moned, are principally defensionem. concernentia ; not uisof the way or manner of defence, and advice therein, but °™™™* the supplies and aids for such defence. That these aids cannot be raised without consent of parliament, may be strongly inferred from this, that the knights of the shires are to have plenam et sufficientem auctoritatem pro se et Digitized by Microsoft® 326 THE CASE OF Surp- MONEY. CONSTITUTIONAL LAW. comitate comitatds predicti ad faciendum et consenti- endwm to the things in negotiis ante dictis. If this might be done without consent of the commons, the above words in the writ would be needless. But that this cannot be done without their consent is clear from the words following: Ita quod pro defectw potestatis hujusmodi dicta negotia infecta non remaneant quovismodo. This is the constant form of modern and ancient writs, and shows clearly that the commons, without their consent in parliament, are not chargeable to a defensive war. Then as to Statutes:—The charter of William I. con- tains after the words before cited (0) the following—Ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere debent et facere tenentur et concessum jure hereditario in perpetuum per commune concilium totius regni nostri preedicti. The entire passage showing that-the king shall not exact, nor take any thing of any freeman, but what his tenure binds him unto, The words, by reason of their generality, extend to cases where the defence of the realm is con- cerned; that they do so in intent also, may be shown; for the military services before mentioned for the defence of the realm, are by Bracton (p) and other writers (q) attributed to the Conqueror’s institution. And the policy and provision of the Conqueror for the defence of the realm being by tenures, the words quod nihil ab eis exigatur vel capiatur nisi servitium swum quod de jure nobis facere tenentwr, show plainly that the subject was not otherwise nor further to be charged for such defence than by tenure. In the Magna Carta of King John (r) are these words: Nullum scutagium vel auxilium ponatur in regno nostro nist per commune concilium regni nostri nisi ad corpus nostrum redimendum, and to knight the king’s (0) Ante, p. 234. (q) See Wright on Tenures, chap. 2, (p) Lib. ii, fo. 36. ec ed. p. 46, et, seq. vr) Cap. 14. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. eldest son, and to marry his eldest daughter. As these words extend to the defence of the kingdom because all supplies for that purpose from the subject are only in auxilium, or in subventione expensorwm of the king, who is principally bound thereunto: so may their intent likewise be further gathered, first from this, that the word auxiliwm is joined with scutage, which is for the defence ; and likewise from this, that particular satisfaction is made, by other parts of the statute, to those who had been disseised by Richard II. and King John, which were things done only for the increase of their revenue, without show of the common defence. The next statutes to be noticed are temp. Edward I, - viz, 25 Edw. 1, c. 5 and c. 6, and the statute De Tallagio non concedendo. Of these the former declares that aids, tasks and prises taken through the realm, for the wars, shall not be brought into a custom by reason of any thing before done, be it by roll or any other precedent; and grants, that for no business thenceforth will the king take any such aids, tasks, and prises, but by the common assent of the realm and for the common profit thereof, saving the ancient aids and prises due and accustomed, And though by the copulative it is clear that there must be a consent and common profit concurring, and though the saving of the ancient prises and aids accustomed might well enough have been satisfied in the aid ex- cepted in the great charter of King John, and the prisage of wines and purveyance ; yet to out these and all other scruples, the statute De Tallagio, made afterwards for that purpose, is absolute and general: That no tallage or aid shall be taken by the king, nor that any of his officers shall take any corn, leather, cattle, or any other goods without the consent of the party. The next statute to be noticed is the 14 Edw. 3, st. 2, c. 1, that the people shall not be compelled to make any aid, or to sustain any charge but in parliament. That this cannot be done for the defence of the realm appears from Digitized by Microsoft® 327 THE ASE OF Sxrp- MONEY, 328 THE CasE OF SHIp- MONEY. CONSTITUTIONAL LAW. the very words; for a great subsidy having been granted as well for the war on this side the sea, that is for de- fence, as for the French wars, it is declared, that this shall not be drawn into example, and that out of parliament the king’s subjects shall not be compelled to sustain any charge; and then it is further enacted, that this subsidy and all the profits of wardships, escheats, and other profits of the realm, shall be spent for defence and safeguard of the realm, and the wars in Scotland and France, and not elsewhere. The words of the statute therefore taken together bear this sense, that the subsidies granted in parliament, and the wardships being a fruit of the tenures created for the defence of the realm, and other profits arising to the king by way of prerogative, are to be spent for the defence of the realm, and the king’s other wars ; but that no aid or charge for any of these can be laid upon the commons without consent in parliament. That the practice of King Edward III. was contrary to these provisions, and that they were not kept, appears by the Parliament Roll the year after (s), where the Commons show that their goods were seized, and their bodies im- prisoned without any suit-commenced against them. The next statutes to be cited are the 25 Edw. 3, and 1 Rich. 2, against loans and benevolences; on which an argument of this kind may be founded, Ad ea que frequentius acciderint adparantur leges. Loans and benevolences were in general for the defence of the realm, and for other purposes were few in number. The common grievances therefore being loans and benevo- lences for defence, against them these statutes were made, because not being within the words of any former statute, any king might with the more colour put them in prac- tice. That loans for the defence were, after 25 Edw. 8, counted unlawful, appears by Walsingham (¢), who says that anno 44 Edw, IIL, the king sinistro consilio magnas summas pecunic of all sorts, petvit, asserens quod in (s) 15 Edw. 3, No. 9. (@ Page 179. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. defensionem ecclesice et regni illas expenderet, but that the people would not lend. The next authority to be cited is direct in words, though it be not an Act of Parliament. In the second part of the Parliament Roll, 2 Ric. IL. (w), the king being beset with enemies, to wit France, Spain, and Scotland, who by land and sea invaded the realm ; the privy council not willing, in a matter so much concerning the realm, to take the whole charge of it upon themselves, nor desiring so soon to call a parliament (a parliament but a little before having been dissolved), assembled a great council of the bishops, lords and other great men and sages of the realm, who meeting and finding the absolute necessity of preparation for defence, and that the king wanted money to do it, resolved thus in the words of the Roll, Pur con- clusion final quils ne potent cest mischiefe remedier sans charger les communs del royalme, quel charge ne porent de fait ne grant sans parliament: and therefore the necessity being urgent, the great men lent money for the time, with advice presently to call a parliament, as well to provide for the repayment of their loan as for further supply. 329 THE CasE OF Surp- MONEY. . It may be objected, that as the law has entrusted the objections way and manner of managing the defence wholly and in- dependently to his Majesty, so likewise must it be of aids and means, as the causa sine qud non; and therefore his Majesty should not be dependent upon parliament for them. The near relation between his Majesty and the parlia- ment, that they are but one body, has been presented, and that his Majesty exercised the swmmum imperium there (z); but that the legislative power is not in his Majesty, out of parliament, will be granted. . The subjects’ interest being as nearly concerned in the defence, as his Majesty’s is; as there is no cause to fear (u) Nos. 3, 4, and 5. (2) Ante, p. 313. Digitized by Microsoft® answered. 330 THE CasE OF Sure- MONEY. CONSTITUTIONAL LAW. that they will not be willing to proportion the aid to the occasion ; so neither can the law presume otherwise, which has so high an opinion of the judgment and integrity of this court (y), that it is unlawful for any man to conceive any dishonourable thing of it (¢). Further, by law the king has as independent a power to make a foreign as to make a defensive war. And it will be granted, that in this case his Majesty has not power to tax the subject ; for then it would follow, that as well for conquering the next adjacent realm as all Europe, the subject might be charged, and yet the land conquered be only his Majesty’s. Nay, his Majesty having power to make an offensive, which for the most part causes a defensive war, by this means it would be in his Majesty’s power to cause a defensive war, and to tax the subject for the maintenance of it. Another objection stands thus: Parliament is a great body, and moves slowly; and the national cause may be lost before parliamentary supplies can come. To this it may be answered that the same limitation of time applies to parliament as to tenants by knight's service ad exercitum, and for the Cinque Ports; forty days’ warning is to be given to them as for parliament. And so it probably was for others who held by sea-service. And anciently the summonses ad exercitwm to the ports, and for the parliament, went out together, or much about the same time, that the parliament might assess the escuage ; and in case the tenures and other revenues were not able to maintain the war, that the parliament might provide for further supplies. Tonnage and poundage, when first granted for life, was, that the kings might always have money ready upon such sudden occasions. In the Parliament Roll, 4 Ric. II. (a), the Commons desire payment of Edward IIL’s debts, that (y) i.e. The parliament, (a) No. 42. (2) Plowd. 398. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. they might be encouraged to lend the king in aid of the realm, if a sudden cause of necessity should fall out. The answer is, that it shall be done selon le petition. By which it appears, that this objection was not then taken to be of weight, and the authorities that further answer it are great, and full in point. 1. The first is that of the Parliament: Roll, 2 Ric. IL. before cited (6); the business of defence could not stay so long as for a parliamentary supply, yet it was agreed, that the commons without a parliament could not be charged ; and therefore the same men that gave this judgment pre- sently lent money for the required purpose. 2. The cause of making the stat. 31 Hen. 8, con- cerning proclamations, is expressed in these words: Con- sidering that sudden causes and occasions fortune many times, which do require speedy remedies; and that by abiding for a parliament, in the mean time great prejudice might ensue to the realm ; therefore the king’s proclama- tion is by that Act made equivalent to an Act of Par- liament, but with a full exception of the subject’s lands, goods and chattels: which shows that as before that, by the common law, the king could not, in cases of exigency, take or seize the subjects’ goods, so they were careful still to preserve their rights. The subjects’ goods may indeed sometimes without their consent be taken from them; for property being both introduced and maintained by human laws, all things by the law of nature being common, there are therefore times when property ceases, and all things are again resolved into the common principles of nature. These times may be only imstanti, and concern but some few, or may be longer in continuance, and larger in extent, and concern the whole kingdom, as in times of war, quando agitur pro aris et focis flagrante bello. And as in the former case, for that time, the law has no (b) Ante, p. 329. Digitized by Microsoft® 331 THE A CasE oF Sure- MONEY. 332 CONSTITUTIONAL LAW. oim®,, Power nor can maintain any property, so in the other case ASE OF . . . Sm it loses this power for a longer time, and over all. -— Tempus belli, when property ceases, is not upon every intestine or defensive war, but only at such times when the course of justice is stopped, and the courts of justice are shut-up (c). In such times of war not only his Majesty, but any man may take the goods of a subject within the realm, pull down his house, or burn his corn, to cut off victuals from the enemy, and do all other things that may conduce to the safety of the kingdom, without respect to any man’s property, for the laws already estab- lished are silent in such times. Besides sudden and tumultuous war, which shuts. the courts of justice, and brings his Majesty in person into the field, and wherein property ceases ; the law takes notice of other times of war, as when his Majesty upon just cause, known unto himself, by proclamation declares war against a foreign state, and likewise the law takes notice of the effects thereof ; that is, that no subject of such state is capable of prosecuting any suit in any of his Majesty’s courts; it appears not, however, by the writ sub judice that war had been proclaimed against any prince or state. So that the question in the first place is, Whether in time of peace his Majesty may, without consent in parliament, alter the property of the subjects’ goods for the defence of the realm? The time that will serve the tum for the bringing in of the supplies and means for defence appears judicially by the writ, viz. seven months within four days. For the writ went out Aug. 4, and commands the ship to be at Portsmouth, the place of rendezvous, the first of March following ; and thereby it appears, that the neces- sity in respect of time was not such, but that a parliament might have been called for effecting the supply. Yet in the next place it is averred, that salus regni periclitabatur, and that was the cause of issuing the writ ; (c) Co. Litt. 249, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. and if by the demurrer this be confessed, it is so but in general; how or in what manner perichitabatur, non con- stat. The question then is this: In a time of peace, his Majesty’s vigilance foresees a danger likely to ensue; the supplies for prevention of this danger will serve, if brought in seven months after within four days; may his Majesty in this case, without their consent in parliament, alter the property of the subjects’ goods ? Having done with the defence of the realm in general, it shall now be shown that this of the sea has no special peculiarity about it, but will fall within that of the de- fence in general: wherein, in the first place, an answer to some objections founded on authority and reason shall be given: and, secondly, to some precedents concerning the use and practice. First as to Danegelt. It may be said that, the Danes infesting the realm, Ethelred, for resisting them, by his own authority laid this charge upon the subject, and made it annual. That, after the Conquest the Danes seldom infesting the coasts, the Conqueror took it not an- nually’as at first, but at such times only when ab exteris gentibus bella vel opiniones bellorum fuerunt (d). And that, after Henry II.’s time the kingdom being altogether freed from Danish invasions ; although Danegelt lost its name and use, it never being taken by hides of land as before ; yet succeeding kings laid taxes upon their sub- jects for defence of the sea. To this objection it may be answered, that Danegelt was granted in parliament. Mr. Camden (e) observes, that the Danes first infested the coasts, A.D. 800, and Dane- gelt first began in Ethelred’s time, almost 200 years after the Danes’ first invasion, for he began his reign A.D. 978. That provision was made for sea defence in the interim, and before Ethelred’s time, appears by the many sea fights of Alfred and other kings. That this provision was (d) See the Black Book of the Ex- (e) Brit. ed. 1616, p. 76. chequer, lib, i, e, 11. Digitized by Microsoft® 333 THE Case OF Sure- MONEY. 334 Tar CASE OF Surp- MONEY, CONSTITUTIONAL LAW. usually made in parliament, is probable from Ingul- phus (f), where, A.D. 833, which was thirty-three years after the Danes’ first invasion, a deed to the abbot of Crowland is cited thus, Coram pontificibus proceribus et majoribus totius Anglie in civitate London, ubi omnes congregati swmus pro consilio capiendo contra Danicos piratas littora Anglie assidue infestantes. If King Ethelred, by his own authority, might have imposed this, it is likely some of his predecessors, the case so ne- cessarily requiring it, in above 200 years space, would have done it before this time. But as appears by the laws of that king, in Mr. Lambert’s Saxon Laws (9), ex sapien- tium suorum consilio, peace is made with the Danes, and a certain sum of money granted to the army. The Danes, by composition, were to send away the whole fleet, saving forty-five ships, which were to remain to defend the king- dom against other enemies, and the king was to maintain them at his charge. That Danegelt was paid to the Danes for this defence, many of our historians observe ; and that at the same parliament (h) this was provided for, appears by the words of the law, Si quis *igitur posthac navalis apparatusin Anglia predam fecerit, hic nobis auailium ferat exercitus nosque et quamdiu in fide manserit que ad comitatum suppetentem paramus om- nia. If this was not the Danegelt, it is at least clear, that in King Ethelred’s time provision contra navales appara- tus was made by parliament. If the Danegelt in such time of great danger was not imposed without parliament, it must strongly make against those that shall object it. That, the Danes having quitted the realm, the Danegelt was released by Edward the Confessor, appears from In- gulphus and our later historians (7). Ingulphus was brought up in England in the Confessor’s days, and there- fore knew what he wrote; he afterwards went over into (f) Fo. 488. (®) Ingulph. fo. 520; Hoveden, (g) Fo. 58. fo. 253. (h) 9 Rep. Pref. xiv. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. Normandy, and was the Conqueror’s secretary, came over with him to the conquest, and at his own charge main- tained twelve horses: he was so great at the court, that, as himself writes (J), quos voluit humiliavit, quos volutt exaltavit ; and we read that a charter of the Conqueror to the Abbey of Crowland was made, ad petitionem fami- liaris mei Ingulphi, who therefore, in all likelihood, would not report this partially against the king. That we are not to put out our fires upon the ringing of the curfew bell, we have no other law but disuse, and the testimony of historians that Henry I. released it (m). That many things were done de facto, to the infringing of the liberty of the subject both in William the Con- queror’s time, and in the times of Henry I. and Henry ILI, is clear; and if Danegelt were not released before, yet that King Stephen ‘released it, appears from history (7), and as all our historians agree that after Henry IL’s time, in whose reign the Black Book was compiled, it was never paid ; so it may be collected out of the Red Book, for all or most of the aids and escuages in Henry II’s time, and King John’s time, are there mentioned. In 8 Henry IL, it is said, quod Danegeldum assessum fuit ; but after that, neither in his time, nor in the time of King John, nor of any other king, is any more mention of it. In the last place, if succeeding kings, mutato nomine only, have in lieu thereof laid other taxes upon the sub- ject, such taxes must hold proportion with that of Dane- gelt, 7.¢., must have been equally set upon all the inland towns throughout the kingdom, as that was, and upon every hide of land. It may further be objected, that at common law, before the Statute of Winchester, the king might compel his subjects to find arms for the defence of the kingdom ; and therefore, by the same reason, he might charge them to find ships for the defence of the sea. (l) Fo. 514. (n) Huntingdon, fo. 221; Hove- (m) Spelm. Gloss, p. 161. den, fo. 276 ; Spelm. Gloss, p. 162. Digitized by Microsoft® 335 THE CasE OF Suipr- MONEY, 336 THE CasE OF Surp- MONEY, CONSTITUTIONAL LAW. To which it may be answered, 1. That his Majesty by tonnage and poundage, and the other duties at common law, has a particular supply for the shipping, but has nothing in particular for arms; and therefore that may with more reason be laid upon the subject than the other. And yet for one of the principal things in the Statute of Winchester, 4. ¢., for watching and warding, the king before that statute had a particular and certain farm or sum of money of each county for the doing of it, which, after that statute, the county was discharged of, because thereby the counties took the charge of doing it upon themselves, 2. Besides, each subject, secundum statum et facul- tates, is chargeable for shipping, as has been before proved ; and therefore if he be chargeable both in money and kind too, the charge is double in the one, and but single in the other. Neither could it hold proportion with these cases of watching and warding, where the counties were discharged of the money, when they took the thing in kind upon themselves. And therefore this objection cannot be made, unless his Majesty first quit all the before-mentioned duties laid upon merchandize. 3. Further, in the providing of arms there is only mutatio specier, a changing of money into arms; which remain the subject’s still in property, and are in his own custody; he may sell them, or employ them at his pleasure for his own use ; but in this matter of shipping there is ablatio ret, in respect of the victuals and mari- ners’ wages. 4, Arms are not only for defence against foreigners, but for watching and warding, upon hue and cry, or other- wise to keep the peace within the realm, and for the execution of justice, by assisting the sheriff when he shall have occasion to use the posse comitatus, and otherwise, all which do fail in the other. And as the use of arms is more general, so are they for the more immediate de- fence of that element, wherein we have our usual and certain livelihood. And yet the ordering of these, for Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. three hundred years and upwards, was by authority of parliament. Lastly, in respect of the victuals and mariners’ wages to be found for twenty-six weeks, the case in question, as I conceive, cannot be compared to that of arms, but rather to that of taxing the country for finding of soldiers to go out of their counties. The next objection is, that it is in his Majesty’s power, for the safety of the realm, to shut up the ports and havens of the kingdom, and thereby to make a general stoppage of all manner of foreign trade ; and therefore, as his Majesty may anticipate gain, by barring men from the exercise of their callings, so by the same reason may he take something away. To which it may be answered, 1. That the law intrusts the king only with that, which being done is most to his own loss, as, in respect of the customs and other duties, this of prohibiting foreign trade Would be. 2. That this cannot be done but in time of war, and imminent danger, and that therefore this objection will not be seasonable till the other be put in execution. As to precedents, it may be answered that most or all of them are for charging the sea-towns and havens which have ships, and many great privileges, and are enfran- chised for that purpose, as declared in the Parliament Roll of 18 Edw. III. below cited (0). These that are to find ships, besides the main prescription for wrecks and benefit of fishing, are discharged of arrays and defence at land. But any towns not maritime ought not to be charged, which is the very case of the defendant. And it appears that.the inland counties had not so much as de facto been usually charged for ships. By Rot. Fra. 21 Edw. IIL (), those towns que naves non habent, et que aliis naves habentibus contributoria non ex- astumt should be discharged ; and although some towns (0) No. 11, Rot, Parl. vol. ii. p. 105. (p) M. 17. Z Digitized by Microsoft® B37 * THE CasE OF Suip- MONEY. Precedents examined, 338 THE Cask oF Sure- MONEY. CONSTITUTIONAL LAW. being members of great seaports are contributory to shipping, other inland towns are not contributory (q). The charges laid upon the people for the custody of the sea, were the principal grievances that occasioned the making of the statute of 25 Edw. I, and the statute De Tallagio non concedendo. By the former the king declares that he had a desire to redress the grievances caused to the people in his name, and instances what they were, veluti de rebus captis in ecclesits, et de alits rebus captis et asportatis tam de clericis quam de laicis, sive pro custodid maris vel alio modo quocunque ; wherein is an acknowledgment that it is a grievance, and to be redressed, to lay any tax upon the subject for the defence of the sea. Commissioners are there named throughout all England to inquire of these grievances. Ist. Whether the things were taken without warrant ; and if so, then the party that took the goods is to make satisfaction, aad further to be punished for the trespass. 2ndly. Ifthere were no warrant allowed, then the officer was to make satisfaction. $8rdly. If all were done according to and in pursuance of the warrant, and no more ; then what upon certificate thereof is. The king thereby promises that whatsoever things were taken from the people by any command of his for the custody of the sea, he will make reasonable satisfaction to the party for such things. That the same grievance caused the making of the statute De Tallagio non concedendo has before been shown (r). The next authority which I shall present is anno 23 Edw. L (8). There the king ‘commanded thirty gallies to be made by several great towns ; every galley was to have 120 men a-piece; these were pro de- fensione regni et securitate maris, The cases are many in the Exchequer, where the money for making (q) Rot. Parl., 2 Rie. 2, Part 2, (r) Ante, p, 327. No, 42. : (8) Rot. 77, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. these gallies was recovered against the king. The king had promised payment to those that made them. But in case the king might have commanded the making of them, at the charge of the towns, his promise was but nudum pactum, and so the payment rested only upon the king’s grace and good pleasure. Nevertheless, upon suit in his own time, and in the times of Edward II. and Edward III, the monies for making these gallies were received by several towns. The next authority to be presented is the Parliament Roll, 13 Edw. IIT. @. The causes of calling the par- liament are declared to be these: Ist, the keeping of the peace ; 2ndly, the defence of the Marches; 3rdly, the safeguard of the sea, that the enemy might not enter the realm to destroy it. ‘These were the three points for the Commons to advise on, which are put into writing, and entered upon the roll. By the articles themselves pro- pounded on the king’s part, it appéars, that the commons are not chargeable to the guarding of the sea; and they pray, that this advice of theirs may not be prejudical to them to bind them thereunto, and that there are ships enough in England to do it, if the people were willing. The Commons afterwards in debating of these articles, when they came to this of the sea, are afraid that if they should debate it, it might imply that they are chargeable to do it; and therefore they protest against giving any advice therein, as a thing whereof they have no cogni- sance ; and further declare, that the Cinque Ports, and other great towns, that have franchises, are bound there- unto, that they should do it. And therefore the mer- chants, masters of ships, and mariners, throughout Eng- land, are summoned to be at the next parliament for advice about shipping. The next authority is the Parliament Roll, 22 Edw. IIL. (uw), by which it appears that the Commons having (t) Part 1., Nos. 9, 11. (u) No. 21. Z2 Digitized by Microsoft® 339 THE CASE OF Surpe- MONEY, 340 THE CASE oF Suir- MONEY. CONSTITUTIONAL LAW. formerly granted the king divers aids and subsidies upon wool, woolfels, and leather, and otherwise, for the guarding of the seas, now grew weary of it, and desired that the king himself from thenceforth should bear the whole bur- then, and charge him with his promise to that purpose. In this petition the Lords joined; hence it appears, that the whole kingdom, at this time, was so far from thinking that the king could charge them, without their consent, to the guarding of the sea, that they allege the king himself ought to bear the whole charge. Neither does the king deny his promise, nor wholly refuse the petition ; for though he says, it should be done as hath been done before, yet it is with a qualification, because the sea cannot be better kept than he hath kept it, by reason of his being so often at sea in person, in going to and returning from France, and diverting the enemy by his wars in-France. If the king had given his absolute denial, yet here is the judgment of both houses of parlia- ment express in point. The next authority is the Parliament Roll 2 Ric. IL. (a), before cited, where the great council and sages of the kingdom resolve, that the commons are not chargeable to the defence of the realm without parliament; which extends to this particular of the sea. The next proof is drawn from the practice of former kings in their frequent demands of aids from parliament for the defence of the sea, as well before the statutes of tonnage and poundage, as since; moneys borrowed by former kings for ships and defence at sea, and indentures of retainer for that purpose at the king’s charge ; and not only so, but upon suit allowance in the Exchequer for victuals, mariners’ wages, anchors, prisoners taken in fights pro defensione, and other things necessary for shipping when for defence of the realm. Whereupon the same argument may be made in this particular for the sea, as was before for the defence in general. (x) Part 2, No. 5. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 341 Admitting that nullwm tempus occwrrit regi; never- THF theless, the non-user by our kings of their asserted prero- Smr_ gative of levying money for defence of the realm may be — relied upon in interpretation of the statutes against aids and tallages; and of the complaints of the parliament temp. Edward I. and Edward VI, that those statutes had not been kept. The non-claims, therefore, of so many kings and queens may be presented as so many le veuts and confessions, that without assent in parliament they could not have laid the like sess upon any of their subjects, as is now laid upon this defendant. The following opinions respectively in favour of, and Judgment, adverse to, Mr. Hampden were delivered by the Court. Sir George Crooke observed :—This is a case of great weight ; for, on the one side, it concerns the king’s prero- gative ; and, on the other, it concerns the king’s subjects, their liberties, persons, and estates: and, in my opinion, judgment ought to be given for the defendant for the fol- lowing reasons :— Ist. That the command by this writ of 4 August, 11 Car. to have ships at the charge of the inhabitants of the county, is illegal and contrary to the common law, not being by authority of parliament. 2ndly. That if at the common law it had been lawful, yet this writ is illegal, being expressly contrary to divers statutes prohibiting a general charge to be laid upon the commons without con- sent in parliament. 38rdly. That it is not to be maintained by any prerogative, nor allegation of necessity or danger. 4thly. Admitting it were legal to lay such a charge upon maritime ports, yet to charge.any inland county, as the county of Bucks, for making ships, and furnishing them with mariners, &c., is illegal, and not warranted by any precedent. 5thly. I shall examine the precedents and records cited to warrant this writ. I have examined this particular writ, and the several Digitized by Microsoft® 3842 CONSTITUTIONAL LAW. Taz parts thereof, and do conceive it is illegal, and not suffi- CASE OF boo cient to ground this charge upon the defendant. —_ Ist. The motives of this writ are not sufficient to cause such a writ to be sent forth. 2ndly. The command of the writ to prepare a ship at the charge of the inhabitants, which mentions victuals and men, is against the common law and statutes of this kingdom. 3rdly. To lay a charge of finding victuals and wages of soldiers and mariners, is illegal, and contrary to the common law and divers statutes. Athly. The power of assessment given to the sheriff alone, and to distrain for this, is illegal, and not warranted by any precedent. 5thly. The power of imprisoning is illegal, contrary to divers statutes, and not warranted by prece- dents. 6thly. The preclose of the writ, and the practice of it, is contrary to itself, and oppositum in, objecto. 7thly. If this writ were legal, yet the manner of the assessment by the sheviff, as it is certified, is not warranted by it; consequently the sum cannot be demanded of the defendant by virtue of this writ. 8thly. The Certiorari and Sci. Fa. issued not legally, and consequently no judg- ment can be given against the defendant thereupon. That this writ is against the common law, my reasons are :— 1. Because this is the first writ since the Conquest sent to any inland county to prepare a ship with men and ammunition, for aught that appears by any record shown. And where there was never any precedent, the law is con- ceived not to allow any such writ. Sir Edward Coke, in his “Comment upon Littleton” (z), says that where there is no example, it is a great intendnient the laws will not bear it. So I conceive, there never having been a precedent of any such writ, that it is against the common law. 2. Because the common law of England gives freedom to subjects in respect of their persons, and gives them (2) Co. Litt. 81, b. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. a property in their goods and estates; so that without their consent, or implicitly by an ordinance which they consented unto in parliament, it cannot be taken from them, nor their estates be charged ; and for this purpose the law distinguishes between bondmen, whose estates are at their lords’ will and disposition, and freemen, whose property none may invade, charge, or unjustly take away but by their own consent, which is proved by the ‘authorities (a). That the law is so appears by Fortescue (6), who says, that the King of England cannot alter nor change the laws of England at his pleasure, for principatu nedum regali sed. et politico ipse populo suo dominatur. If his power were royal only, then he might change the laws, tallagia quoque et cetera onera eis imponere ipsis inconsultis ; but adds, that the King of England sine subditorum assensu leges mutare non potest, nec subjectum populum renitentem onerart impositionibus peregrinis. And he compares the king and subjects of England to the head and body natural: Ut non potest corpus physicum nervos suos commutare neque membris suis proprias vires et pro- pria sanguinis alumenta denegare sua, nec rea qui caput corporis politici est mutare potest leges corporis illius, nec ejusdem populi substantias proprias subtrahere, recla- mantibus eis aut imvitis (c). And, afterwards (d), he says: Rea Anglice neque per se nec ministros suos tallagia, subsidia, aut quevis onera alia imponit, legiis suis, wut leges corwm mutat, vel novas condit sine con- cessione vel assensu totius regni sut in parliamento suo expresso. Which words seem so general, that in no case can he do it. So it appears by the case wfra (e), that the king’s grant, which tends to the charge and prejudice of his (a) Frawnees's Case, 8 Rep. 92, a. (®) De Laud. Leg. Ang. cap. 9. The Charter of Will. 1, cited ante, (c) Cap. 13. p. 234; Magna Carta of King John, (d) Cap. 36, fol. 84. cap. 29, cited ante, p. 285. (e) Year Bk. 13 Hen. 4, fo. 14. Digitized by Microsoft® 343 THE Case oF SHIP- MONEY. 344 THE Cask oF Sarp- MONEY. CONSTITUTIONAL LAW. people in general, is not good, unless it be by parliament. But it is agreed there, that grants of tolls, of fairs, of pontage, pickage, murage, ferrying, or such like, which are for the profit, good, and ease of the people, and profit of them that will take benefit thereof, and not compulsory on any to pay, but on them that will take the benefit, and being very small and reasonable sums, the law gives allowance to them; but if they were great sums, tend- ing to the charge of the people, the law would judge them void (/). In Darcy's Case (g), it is said that every grant of the king has this consideration in it, tacit or express, quod patria, per donationes illius, magis solito non oneretur. And as by grant the king cannot charge his people, so neither can he by writ lay any charge upon them, but by their consent, or where they have apparent benefit thereby. And this is the reason of the writ in the register (h)— where by breach of sea-walls an inundation happens, the king, who is pater patriw, sends out his commission to inquire by whose default such breach happened, and to cause all having lands or commons to be contributory to the making up of the walls ; such charge cannot, however, be laid upon a county or town in general, but upon par- ticular persons who have loss or benefit, or may have loss or benefit thereby ; and this is done by inquiry of a jury, before the sheriffs, or commissioners appointed. So it is at this day, upon commissions of sewers (7). But in this case there is a general charge through the whole kingdom, which the law does not permit, without common consent in parliament. But it has been alleged that this charge has been imposed for the public safety and defence of the kingdom ; and may not this be done when every one has advantage by it? To this I say, when there is imminent danger, (f) 5 Rep. 63. (h) Reg. Brev. 127; Fitzh. Nat, (g) 11 Rep. 86, citing Fitzh. Nat. Brev. 113. Brev. fo. 222.- (t) 10 Rep. 142. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. there must be defence made by every man (when the king shall command) with his person: in such a case every man is bound per se et sua to defend the kingdom. And I think no man will be so unwise as not exponere se et sua for the defence of the kingdom when there is danger, for otherwise, he is in danger to look to se e¢ sua; but to lay a charge in general upon the kingdom, either for making or preparing ships, or paying money in lieu thereof, is not to be done but by parliament. To prove, further, that no man may have his goods taken from him but by his consent :—In an action of tres- pass, by William Heyborne, against William Keylowe, for entering his house, and breaking his chest, and taking away 70l. in money, the defendant pleaded not guilty ; the jury found a special verdict, that the Scots having entered the bishopric of Durham with an army, and made great burning and spoils, the commonalty of Durham, whereof the plaintiff was one, met together, and agreed to send some to compound with the Scots for money to depart, and were all sworn to perform what composition should be made, and to perform what ordinance they should make in that behalf; and thereupon they com- pounded with the Scots for 1600 marks. And since that was to be paid immediately, they all consented that William Keylowe, the defendant, and others, should go into every man’s house, to search what ready money was there, and to take it for the making up of that sum; and that it should be repaid by the commonalty of Durham ; and thereupon the defendant entered into the plaintiff’s house, and broke open his chest, and took the 701. which was paid accordingly towards the fine. The jury was asked whether the plaintiff was present, and consented to the taking of the money? They said no: whereupon the plaintiff had judgment to recover the said 70. and damages, for otherwise he had no remedy for his money ; and the defendant was committed in execution for that sum. And thereupon the defendant, Keylowe, brought a Digitized by Microsoft® 345 THE Case OF Sure- MONEY. 346 THE CasE OF Su1p- MONEY. CONSTITUTIONAL LAW. writ of error in the King’s Bench, where the judgment was reversed for these reasons: Ist, because the plaintiff had his sufficient remedy against the commonalty of Durham for his money: 2ndly, because he himself had agreed to this ordinance, and was sworn to perform it; and the defendant did nothing but what the plaintiff had assented to by his oath, and was accounted to have done nothing but by his consent, and as servant unto him; therefore he was no trespasser: and the judgment given in Durham was reversed, because the plaintiff had assented to the ordinance, though afterwards he was unwilling; having once consented, his goods were lawfully taken. By which it appears, that if he had not expressly con- sented, such an ordinance would not have been good to bind him ; although this was in a case of great danger, and for defence (k). The Parliament Roll infra (0) proves this directly, and shows what the law was then conceived to be, and proves that this charge without an Act of Parliament is illegal. If this writ were allowed, great inconveniences would ensue, which the law will always avoid. 1, Ifany such charge may be laid wpon the counties by writ, without assent in parliament, then no man knows what his charge may be ; for he may be charged as often as the king pleases, and with making of as many ships, and of such burthens, and with such charge of ammuni- tion, men and victuals, as shall be set down. Wherein I doubt not, but if the law were so, the king, being a very pious and just king, would use his power very moderately ; but judges are not to look to present times only, but: also to all future times, for what may follow upon their judg- ments. That this inconvenience may be, appears by the Danegelt (first appointed in times of necessity), which often changed, and still increased ; for aD, 991, when it began, it was but 10,000/.; in 994 it was increased to (k) Mich. T., 14 Edw. 2, rot. 60. (2) 2 Ric. 2, ante, p. 329. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 16,0002. ; in 1002, to 24,0002. ; in 1007, to 36,0002. ; and in 1012, to 48,0002. So if this writ be well awarded, it may be at pleasure what bounds it shall have. Also, there never used to be granted in parliament but one single subsidy and two fifteenths, until’ 31 Eliz. and then a double subsidy and four fifteenths were granted ; Sir Walter Mildmay, Chancellor of the Exchequer, moving for it, and saying, “his heart did quake to move it, not knowing the inconvenience that should grow upon it ;” he showed, however, great reasons for moving it, it being about the time of the Spanish invasion, and so it was granted. Afterwards, 35 Eliz, treble subsidies and fifteenths were granted. And 43 Eliz., four subsidies and eight fifteenths were granted; and yet these were not accounted grievous, because granted in parliament, and because convenient times and means were appointed for levying them. Tonnage and poundage were: granted to this end in 13 Ric. II, and have continued ever since by several grants until this king’s time, wherein it was unhappily questioned in parliament ; but the end thereof was, that our kings might have money in their purses against times of need, for extraordinary occasions, espe- cially for the defence of the realm, and guarding of the sea, as is especially declared by stat. 1 Jac. and former statutes, and for other necessary uses, as the king pleased. But it is said, that tonnage and poundage is not now granted to the king, and therefore the king i is enforced to these extraordinary courses. Though it be not granted, yet I think it is taken; and I doubt not but to the same intent and for the same pur- poses employed for which it was first granted, which was, for the defence of the kingdom and guard of the sea. Therefore, in case of danger and necessity, every subject, for the defence of the kingdom, is bound legianticee debito, as some records say, and legiantic sue vinculo astrictus, as others speak, se et sua totis viribus et potestate expo- neve, &e. And in such a case the king may demand the Digitized by Microsoft® 347 THE Casz or Surp- MONEY 348 CONSTITUTIONAL LAW. Tt: persons of his subjects, and arrest their ships to wait on ae his to defend the seas ; yet with this also, when they go ne out of their counties, to be at the king’s charge; but to command his subjects by writ, to build new ships, or to prepare ships at théir charge, or to lay a common charge on subjects in general, for matter of defence, or avoidance of danger, is not warrantable by the common law. 2. Another inconvenience is, that it is left in the power of the sheriff to charge any man’s estate at his pleasure, taxing some, and sparing others, as his affec- tions lead him ; and sometimes, by colour thereof, levying more than he need, and enriching himself; which power the law never allows him, though it were in lesser matters, as to make an assessment for breach of sea-walls ; but he must do it by a jury, not by himself alone. So for these reasons, I conclude, this writ is against the common law, and illegal. ; I conceive, if the common law were doubtful, whether such a charge might be imposed by writ; yet now it is made clear by divers express statutes (m), that the king is not to lay any charge upon his subjects, but by their consent in parliament; and there is no doubt but the king in parliament may bind himself and his successors, every king by oath being bound to perform the statutes of the realm. An Act of Parliament (n), as I count it, in the very point, is in these words: “For that of late, divers com- missions were made to divers cities and boroughs within the realm, to make barges and barringers, without assent of parliament, and otherwise than hath been done before these ; however the Commons do pray the king that these commussions may be repealed, and that they may not be of any force or effect.” To which it is answered, “That (m) See particularly 25 Edw. 1, 25 Edw. 3, st. 5, ¢. 8, affirmed by 4 ce 5&c. 6; the statute De Tallagio Hen. 4, 6 18. non concedendo; 14 Edw. 3, st. 2, ; (~) Rot. Parl. 21 Hen, 4, No, 22. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. the king willeth that the said commissions be repealed ;” which is an absolute and perfect statute. But then there are added these words: “ But for the great necessity he hath of such vegsels for the defence of the realm in case that the war shall happen, he will treat with his Lords of this matter, and afterwards will show it to the Commons to have their counsel and advice in this point.” So by the record, it appears that the Commons did conceive that no cities, boroughs, nor towns, without consent in parliament, were to be charged with the making of such vessels; to which the king agrees. And from that day until the making of these writs, in no age, although . the kingdom has been many times in danger of invasion, and has been invaded, do there appear any records of writs directed to towns or cities, at their charges to make or prepare any ships or vessels whatsoever. By 1 Ric. 2, 6. 1, it is expressly provided that the sub- ject shall not be charged by way of benevolence, which is in nature of a free gift, nor such like charge ; that is, no charge of money shall be laid upon the subject upon any pretence whatsoever, be it for defence in time of danger or guarding of the sea. The last and concluding statute is the Petition of Right, which is a full and perfect statute, showing in this point the liberty of the kingdom prayed and allowed ; which was not done without the advice of the judges, whereof I was one, whose opinions were then demanded, and re- solved that the same did not give any new liberty, but declared that the subject should not be compelled to be contributory to any tax, tallage, or aid, or any like charge not set by parliament. I conclude that these writs to lay such a charge are against the law, and so the assessment by colour thereof is unlawful. Now whereas precedent arguments have been that the kingdom being in danger therefore these writs went forth for the making of ships, because there could not be so suddenly any parliament called, and the parliament is a Digitized by Microsoft® 349 THE Case or Surp- MONEY. 350 Tur Case or Surp- MONEY, CONSTITUTIONAL LAW. slow body, and the kingdom may be lost whilst there is a consultation, and the danger is conceived to be very great, for the writ dated 4th August mentions, that the pirates provided a great navy to infest the kingdom, and it is fit with speed to provide a remedy: and the writ of Mittimus mentions that salus reipublice perichitabatur: and we must believe these suggestions to be true, for the king’s certificate by this writ is recordwm superlativum. And the defendant also by his demurrer has confessed all the suggestions in the writ to be true; therefore it must be concluded the kingdom was in reat danger, and present remedy must be had by making of these ships, and must be commanded by these writs, without staying for a par- , liament ; and it may be if a parliament were called, they would not yield to the going forth of such writs, although the kingdom was never so much in danger. And this charge in respect of making the defence is not within the intention of these statutes; and if it had been expressly mentioned within a statute, that such a charge should not be imposed, it had been a void statute, and contrary to law, that the kingdom should not be defended. To these objections I answer, 1, The matter now in question is upon the writ dated 4th August :—whether that be legal or not; and the suggestions therein be suffi- cient or not; for the writ of Mittimus, mentioning that salus reipublice periclitabatur at the day of the issuing of the writ, 4th August, which is a year and a half after the first writ, does not help it. 2. The suggestions are not absolute, that any such danger existed, or that such navy was prepared by pirates; the writ only mentions quia datum nobis intelligi, that the pirates had done such mischief 3. If such suggestions had been absolutely set down, yet we are not always bound absolutely to believe them ; because many times untrue suggestions are put into writs and patents ; and yet it does not lie upon the king’s con- science, neither does the law impute it to the king: for Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. the law always conceives honourably of the king, that he cannot, and will not, signify any untruth under the Great Seal; but that he is abused therein, and the law imputes it to them that so misinformed the king, and thrust such suggestions into the writ or patent. And therefore all patents grounded upon untrue suggestions are accounted void (0). 4. The demurrer confesses nothing but that which is legally and well set down; if it be illegal the demurrer confesses it not, but is well offered for that cause. 5. If the kingdom were in danger, yet a charge must not be laid in general upon subjects, without their con- sent in parliament: for if the danger is near, provision must be made by men’s persons, and the present ships of the kingdom, which the king may command from all parts of the kingdom, as need shall require; but he cannot command money out of men’s purses, by distraining their goods or imprisoning their persons. But if the danger be further off, by reason of foreign combinations (as it is conceived it may be here), provision must be made of ships by all the kingdom for defence; then, as Philip Commines says (p), that cloud is seen afar off, before the tempest falls, especially by a foreign war; and such invasions cannot happen so soon but the king may call his sages together, and by consent make provision for such defence. So I say here, if there be time to make ships, or pre- pare ships at the charge of the counties, then is there time enough for his Majesty, if he pleases to call his par- liament to charge his commons, by consent in parliament, and to have a subsidiary aid, as always has been done in such cases. And they.are not so long coming or meeting, but they will make provision for defence, it being for all their safeties: for it appears by Coke (q), that King Alfred made a law, that a parliament should be held twice (0) Ante, p. 236, et seq. (p) Fo. 179. (q) 9 Rep. Pref. 1. Digitized by Microsoft® 351 THE CASE oF Suir- MONEY. 352 THE CasE oF SHIP- MONEY. CONSTITUTIONAL LAW. every year, and oftener, if need required, in times of peace ; so it was then conceived, that it was necessary to have parliaments to redress inconveniences. Also by stat. 4 Edw. 3, c. 14, a parliament shall be held once every year, and oftener if need be. And by stat. 86 Edw. 3, c. 10, it is enacted, for the redress of mischiefs and grievances that daily happen, that a parliament shall be holden every year. In the parliament held in the third year of his Majesty’s reign five subsidies were granted, two of them to be paid within a few days after the session of parlia- ment ended; and therefore this case might have been provided for by parliament within the time between the teste of the writ, and that prefixed for ships to be prepared and sent. And whereas it is objected, that perhaps the parliament would not have consented, and so the kngdom might have been lost. It may be answered, that it is not to be presumed, that the parliament would deny to do that which is fit for the safety and defence of the kingdom, their own estates and lives being in danger, if the kingdom were not sufficiently defended ; for it is arule, nehil iniquum est praeswmen- dum in lege. So of the high court of parliament, that they would not deny that which is fitting. But I confess, I think that if it had been moved in parliament, they would not have consented to these writs, such never having been awarded since the Conquest, or, if they had consented, they would not have left it to the sheriff to tax the people how he would. To that which has been said, that this charge is not within the statute, and that a statute to prohibit such a charge for defence were void. I answer it is true, that if a statute enacted that the king should not defend the kingdom, it would be void, being against law and reason. But a statute that money shall not be charged or levied, nor that men shall be charged to make or prepare ships at their own charge, without common consent in parlia- ment, I conceive were a good law, and agreeable to law Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. and reason, And the king may restrain himself from laying such a charge, but by consent in parliament. And the king would not assent to, or suffer any such charge, if he were truly informed that the imposing of it is against law. And therefore the principal and only fault in the charging of his subjects by these writs, if they be unlawful, as I conceive they are, is in those that devised them, and informed the king that they were lawful, and such as his progenitors had from time to time used to send forth; and in his judges who have affirmed them to be lawful: there- fore upon this point I conclude, that the charge, by this writ, is illegal. Whereas it has been much urged that the king is war- ranted by his prerogative in sending forth such writs for defence and safety of the kingdom in time of danger. To this I answer, That I do not conceive there is any such prerogative ; if there were, I should not offer to speak against it: for it is part of our oaths, as judges, to main- tain the king’s prerogative to the best of our skill, and not to suffer the same to be diminished. But if it be as I have argued, against the common law, and against many statutes, that the subject should be forced to sustain, or contribute to any charge, without his special consent, or his assent in parliament, then there is no such preroga- tive; for whatsoever is done to the hurt or wrong of the subject, and against the laws of the land, is accounted not. done by the king, but on some untrue and unjust infor- mation. This appears by the authorities (r). So I conclude that there is not any prerogative to award writs to command men to sustain this charge; and to be distrained and imprisoned for nonpayment thereof ; —also that this is not an act of royal power; for if it be illegal to impose such a charge, then it is not accounted as a matter of royal power, but as done upon an untrue . suggestion, and as a wrong: and wrong is not imputed to (r) Bracton, lib. iii, fo. 107; 11 Rep. 72, 86; Plowd. 246, 247, 487; Doct. & Stud. ¢, 5. afl AA Digitized by Microsoft® 3538 Tor CasE OF Surre- MONEY. 354 THE Case OF Surr- MONEY. CONSTITUTIONAL LAW. the king, for he can do no wrong ; but it is imputed to them that advised him to this course. Royal power is to be used only in cases of necessity, and imminent danger, when ordinary courses will not avail; for it isarule, Non occurrendum est ad extraordi- naria, quando fieri potest per ordinaria ; as in cases of rebellion, sudden invasion, &c., where martial law may be used. But in a time of peace, and no extreme necessity, legal courses must be used, and not royal power. There- fore, the stat. 31 Hen. 8, c. 8, concerning proclama- tions (s) took care that no man’s life, lands or .goods, should be taken or prejudiced. So Bracton (#) says, Regis corona est facere justitiam et judicvwm, et tenere pacem, sine quibus corona consistere non potest, nec tener; which being so, the king cannot take away men’s goods, or charge them without their consent, by any prerogative or royal power. Also there can be no such necessity, or danger con- ceived, that may cause these writs to be awarded to all counties of England, to prepare ships at such a charge, and with such men and ammunition, without consent in par- liament; for the laws have provided means for defence in times of danger, without taking this course. The king has power to command all, or any persons of his kingdom, to attend with arms to defend the coasts, or other parts of the kingdom ; and also by his officers, to arrest the ships of merchants, and others, to go with his navy, to any parts of his kingdom, for defence thereof; and to attend those to whom he has appointed the guard of the seas, or the sea-coasts, at such times and places as they should appoint. And this has been always conceived to be sufficient for defence, against any prince whatsoever; even in times when the navy of England was not so strong as now. Ex, gr. A.D. 1588, on the invasion by the navy, termed The Invincible Navy, which was foreseen long before, this (s) Ante, p. 331. This statute ss, 5. was i1epealed by 1 Edw. 6, c. 12, (t) Lib, ii, v. 24, fo. 55. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 355 TuE course of preparing ships by every county of the kingdom 77", was not appointed: and in times, when there appeared great danger of invasion, there never went any such writ into any of the counties of England, to provide ships ; but the navy of England, and army of England, were always accounted sufficient for the defence of the kingdom. So I concliide that this course cannot be taken by any prerogative or royal power, nor on any allegation of necessity or danger. For the fourth point (w), I conceive, that if it were legal to lay such charge upon maritime parts; yet to charge any inland county with the making of ships, and furnishing them with mariners and soldiers, is not legal, nor war- ranted by any precedent; for it commands an unreason- able and impossible thing to be done: and a writ com- manding such a thing as is unreasonable and impossible for the parties themselves to perform, without help of other counties, is illegal: Lex non cogit ad impossibilia. If a feoffment be made on condition to be void, if the feoffee do not a thing which is impossible, the feoffment is good, and the condition void: for it was the fault of the feoffor to annex such a condition. If an arbitrator award, that one shall enter into bond, with A. as his surety, to pay a sum of money, or to do any other act, it is void, as to the finding of a surety at the least ; for it is not in his power to compel A.to be his surety; therefore the law accounts the award unreasonable, and void (@). So this writ commanding the sheriff and inhabitants of an inland county to find a ship with masters and mariners, is illegal, for there are not in such county any shipwrights having skill to make ships, nor any masters or mariners, for the inhabitants are conversant about matters of hus- bandry, and are trained up by skill of arms to defend the country, but are not conversant with sea affairs; and they are not bound to seek out of the county-for such men; (u) Ante, p. 341. (x) Year Bk. 17 Edw. 4, fo. 5. AA2 Digitized by Microsoft® Sure- MONEY, 356 CONSTITUTIONAL LAW. tzz and perhaps if they did, they could not tell where to find Case oF is eye Oe Sur- them. Therefore I conclude, that this writ is not legal, “nor warranted by precedent. Fifthly. A multitude of records and precedents have been cited to warrant these writs; and to show that the king has done nothing but what his progenitors have done, and that he does now but more majorwm, and that which always in ancient times has been done and allowed, and therefore ought to be done. But I answer, that if there were any such precedent to prove this writ to be usual, yet it were not material; we are not to argue what has been done de facto, for many things have been done, which were never allowed; but our question is, what has been done, and may be done, de jure. And then, as is said in Coke (y), Multitudo erran- tiwm non parit errort patrociniwm. A multitude of pre- cedents, unless they be confirmed by judicial proceedings, in courts of record, are not to be regarded; and none of these were ever confirmed by judicial record, but they were complained of. But upon view of the records that have been sent me on the king’s part, I conceive that there is not any prece- dent or record of any such writ sent to the sheriff of an inland county to command the making of ships at the charge of such county ; this being the tirst precedent that ever was since the Conquest of this kind. It is true, that before 25 Edw. I, there have been writs to maritime towns and ports, and other towns, as London, &c., where were ships and mariners, to provide and prepare sbips, and send them to such places as the king pleased to appoint, upon just cause, for the defence of the sea and kingdom : and there is great reason why such towns having ships and mariners, should be at the king’s command, to bring all or as many as he pleases for defence of the sea and kingdom, being those that had the most (y) 4 Rep. 94. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. benefit of the seas, and likely to have the greatest loss if the sea and coast were not guarded; and those were appointed most commonly-to be at the king’s charge, but sometimes upon necessity they were appointed to be at the charge of the towns and ports adjoining: which I think was the true cause of the complaint in. parliament in 25 Edw. I, and of making the statute for staying that practice ; for there is no record of any such writ after- wards in Edw. I’s time to maritime towns, to prepare or send ships at their charge. But annis 10, 11, 12 and 13 of Edw. IIL, there being war between him and the French king, were the most writs awarded to maritime towns, to send ships at their charge sufficiently furnished : and these I think were the principal cause of the making of the stat. 14 Edw. 3, st. 2, e.]. And after that statute uo such writs, nor any com- missions for that purpose were awarded to any maritime or inland towns, for the making of ships, but one ; which record was much pressed to prove, that this course was, and might-be practised after the statute of 14 Edw. IIT, but that record is fully satisfied, for it was grounded upon an ordinance of parliament in 1 Ric. IL, that all ancient cities, boroughs, and towns, that would, should have their charters confirmed without any charge of fine, save only to make a ship of war for defence of the realm: so this was not compulsory to any, but voluntary to those that would have their liberties confirmed (2). And afterwards, in 1 Hen. IV., commissions were awarded for making such vessels of war; but those issuing without any ordinance of parliament, were complained of, 2 Hen. IV. (a), and no such writs issued forth in any age, to maritime towns, to make ships, or prepare ships at their own charge for the king’s service, until the writs before us. This general answer I give to all the records. Lastly. I conceive that this writ is not legal, or war- (2) Rot. Parl. vol. iii. p. 17, No. 52. (a) Id, p. 458, No. 22, Digitized by Microsoft® 357 TaE SE OF Surr- MONEY. 358 THE CasE OF Surp- MONEY, CONSTITUTIONAL LAW. ranted by any former precedent. Thereupon I conclude upon the whole matter that no judgment. can be given to charge the defendant. Sir John Finch, C. J., of the Common Pleas, after re- marking that the writ of Aug. 4 was sufficient in form, and that the requisition to the county of Bucks contained in it was not to build a ship, but to contribute to the building of one in a fit and convenient place (b), proceeded thus: The king knowing and declaring the whole king- dom to be in danger, and necessarily requiring his subjects to defend and provide for this danger at sea, may there- upon command them to prepare ships to join with his navy against the enemies of the realm, and it is clear in this case that the king must join in the charge. My reasons that the king may thus charge his subjects to join with him in the defence of the kingdom are these, —I. The defence of the kingdom must be at the charge of the whole kingdom in general. II. The power of laying this charge is, by the policy and fundamental laws of this kingdom, solely vested in the king. IIL. The law that hath given this power to the king, hath given him means to exercise it. I. That the defence of the kingdom must be at the charge of the kingdom, I shall prove, (1.) From the law of nature, which is, that everything ought to defend itself. (2.) From the rule of reason : Quod omnes tangit, ab om- nibus supportari debet. (3.) From the true use of all that we enjoy, which must be abused, if not employed to and for the good also of those that come after us. (4.) From the law of property. For the commonwealth hath a property in every man’s goods, not only in time of war, but also when necessary in time of peace. II. By the fundamental laws and policy of this king- dom, the sole interest and property of the sea, is in the king. Sea and land make but one kingdom, and the (6) This was by way of answer to the argument of Sir Geo. Crooke, ante, pp. 341, 355. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. king is sponsus regni (c). Parliament is an honourable court; and is an excellent means of charging the subject, and defending the kingdom; but it is not the only means. The two Houses of Parliament without the king cannot make a law, nor without his royal assent declare it: be is not bound to call the Parliament but when he pleases, nor to continue it but at bis pleasure. Certainly there was a king before a parliament, for how else could there be an assembly of king, lords, and commons? And then what sovereignty was there in the kingdom but this? His power, therefore, was limited by the positive law; it cannot be denied that originally the king had the sovereignty of the whole kingdom both by sea and land. II. It is a very true rule, that the law commands nothing to be done, but it permits the ways and means how it may be done; therefore the law that hath given the interest and sovereignty of defending and governing the kingdom to the king, doth also give the king power to charge his subjects for the necessary defence and good thereof. And as the king is bound to defend, so the sub- jects are bound to obey, and to come out of their own country, if occasion be, and to provide horses and arms in foreign war. Then if sea and land be but one entire kingdom, and the king lord of both, the subject is bound to the defence as well of the sea as of the land; and all are bound to provide ships, men, ammunition, victuals, and necessaries for that defence. And for us islanders, it is most necessary to defend ourselves at sea: therefore it was the great argument in 1588, whether it was best to fight with the Armada at sea or suffer them to land; and it was resolved clearly, that it was better to fight with them at sea, though we lost the battle and our ships. Now I shall endeavour to prove by authority in law, and -precedents, that as well the inland as the maritime towns of this kingdom must bear their own charge of (-) M agdalen College Case, 11 Rep. 66 d. Digitized by Microsoft® 359 THE Case or Surr- MONEY. 360 THE CASE OF Suip- MONEY, CONSTITUTIONAL LAW. defence. And (1.) There is no express authority, much less resolution or judgment, that in necessary time of danger, the king may not charge the subject for defence of the kingdom. (2.) All authorities showing that the king is entrusted with the defence of the kingdom, and that in divers cases aid, taxes, subsidies, &c., are given him, prove that the subject is bound in case of danger and necessity, to pay them to the king for defence of the kingdom. (3.) The prerogative rights concerning murage, pontage, salt-petre, &c., shew that for the good of the public the king is interested in the estates of the sub- ject, and may charge them, and, if for the public good, much more, where the being of the commonwealth is in danger. (4.) The prerogative of commanding his sub- jects to come out of their own counties proves it. The power of commanding the person of the subject into foreign parts is in the king ; much more should the estate of the subject be at his command, for the necessary defence of the kingdom. (5.) All the commissions for arraying men under Edw. I., Edw. IL, Edw. III, Edw. IV., Hen. VII, and Hen. VIII, &., are grounded upon the same reason, and went out for the necessary defence of the kingdom. Now these writs are not to command the person, but a ship only, juwta facultates suas; and are in conformity with ancient precedents. Precedents, though they be not, judgments, shew the practice of the law. The common law is but the common usage of the land; and precedents are of good authority to prove the law in this case. The first precedents were before the Conquest. In the times of Edgar, Alfred, Ethelred, &c., the custom was to defend the kingdom at the charge of the whole kingdom, by the edict of the king. The practice of the kings of England was to charge their subjects for the defence of the kingdom in case of danger. . And the charge of Dane- gelt remains still, or something in lieu of it; for it is not taken away by any Act of Parliament. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. In these precedents observe, (1.) That they are all upon the same common reason that this is. (2.) These writs are not limited for their number or time; so they prove the power was in the king to charge his subjects. (3.) Of these precedents, some were to inland counties, as Bucks, Huntingdon, Bedford, Leicester, Oxford, Berks, &c. And though they went not generally to all counties at one time, yet they went to them as occasion was. And ifthe danger had required it, the king might, if he pleased, have sent to all as well as to some. But because there was never any time, when all the ammunition in the kingdom was drawn at one time to one place, may it not therefore be done? The com- manding sometimes of one, sometimes of another, is an argument that all may be commanded as occasion requires. But my brother Crooke answered all such precedents with the rule, Judicandum est legibus non exemplis. To which I answer, that examples and precedents are authorities out of the law, and what of more certainty ? But it is alleged, no precedents go to inland counties. I answer, for ordinary defence they go to maritime coun- ties only, but when the danger is general, to inland coun- ties also, and after another manner. It has been objected :— 1. That this writ is against the common law. 2. That it is against the statute law. 3. That many inconveniences will grow thereby. _ 1. It is against the common law, because it is without precedent. I answer, that there are precedents for it, and that the king may charge his subjects towards the defence of the kingdom in this case. 2. The second objection is, that itis against the freedom of the subject, who hath a true property in his goods, which cannot be taken away without his actual or implied consent. I answer, that the first authority cited is that of Lambard (d), rehearsing the laws of the Conqueror, (d) Ed. 1644, p. 170. Digitized by Microsoft® 361 Tur CASE OF Sure- MONEY. 3862 CONSTITUTIONAL LAW. Geos Volumus et concedimus ut omnes liberi homines Sar. totius monarchio regni nostri habeant et teneant —' terras suas et possessiones suas bene et wm _ puce, liberas ab omni exactione injustd, et ab omni tallagio, ita quod nihil ‘exigatur vel capiatur nisi per com- mune concilium, &e. This cannot be construed that subjects should not be charged, but that they should be free from all unjust taxes. The king is not con- cluded by the subsequent words omne tallagiwm ; which cannot be so general, but he may impose just charges towards the necessary defence of the kingdom. Tallagium here signifies injusta exactio. And my brother Crooke quite left out these words following that declare and expound the former, viz., Statuimus et firmiter pre- cipimus ut omnes liberi homines totius regni preedicti sint fratres conjurati ad monarchiam nostram pro viribus suis et facultatibus contra imimicos pro ‘posse suo defendendum et viriliter servandum, &c., whereby it is apparent, (1). That the kingdom is to be defended by the whole kingdom pro facultatibus with their goods, as well as viribus with their persons. (2.) The passage cited comes after the chapter on tenure and services, by which tenants are bound to defend, terras et honores suos, &c., which shows that the king meant not to discharge any from the general charge of defending the kingdom in case of necessity. The next objection is the charter of King John (e), Nullum tallagium wmponatur nist per commune concilium. I answer, these words concern the defence of his own person, not of the kingdom ; and therefore it is excepted, mist ad redimenduwm corpus nostrum; and in the original act these words are left out. The mention of scutage, murage, and other aids, shews that only those were meant which were of private benefit. They were not to be imposed by the king upon any subject, without (e) Chap. 14. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. parliament, but he himself was not barred from laying such as were for the public good. The next authority objected was Fortescue. Before I come to the words themselves, note (1.) The time when he wrote that book; it was after all the Acts of Parliament that took away the royal power; yet it did not mention them, so must needs relate to the common law. It was writ when the civil wars were between the houses of York and Lancaster, and Fortescue himself was in exile: no time then to displease the people. (2.) It shews the difference between kingdoms, when a monarch rules, who challengeth all power over his subjects, and a monarch who governs according to the positive laws. The words that seemed to be against this charge are, Rea Anglie politice amperans genti suw nec leges ipse sine subditorum assensu mutare poterit, nec subjectum populum reni- tentem onerare impositionibus peregrinis (f). Rex caput corporis politici mutare non potest leges corporis ilius nec ejusdem populi substantias proprias subtrahere reclamantibus eis aut invitis (g). And Rea neque ibidem per se aut ministros suos tallagia subsidia aut quevis onera alia imponit legiis suis aut leges eorum mutat vel novas condit sine concessione vel assensu totius regni sui in parliamento suo expresso, &c. (h). I take the true meaning of the above passages to be (1.) That the kingdom ought to be governed by the posi- tive laws of the land; and that the king cannot change or make new laws without a parliament. (2.) That the sub- ject hath an absolute property in his goods and estate, and that the king cannot take them to his own use. (3.) That for his own use he cannot lay any burthen upon his subjects, without the subject’s consent in parliament. (4.) That for the benefit of trade, the king may lay fitting impositions, and may command that which is for the necessary defence of the kingdom; which is no command (f) Cap. 9. (g) Cap. 13, (h) Cap. 36, Digitized by Microsoft® 363 THE CASE OF Surp- MONEY. 364 CONSTITUTIONAL LAW. ods, of charge, but command of employing. (5.) I answer to ser. the great objection—that the liberty of the subject is — lost, and the property is drowned which he has in his estate, thus :— First, I say, all private property must give way to the public ; though every man hath a property in his goods, yet he must not use them in detriment of the common- wealth. 2ndly. I shall remove a scandal that hath been put upon the king, how that his Majesty hath meant to make @ private personal profit of it—What he hath done is well known; and I dare confidently say, all hath been spent, without any account to himself, and that his Majesty hath been at great charge besides towards the same; and I heard it from his own royal mouth, that it never entered into his thoughts to make such use of it; and that he was bound in conscience to convert it to the use it was received for, and none other. Therefore, he that thinks the king made a revenue of it, doth highly slander his Majesty. But though his Majesty is so gracious and loving to his subjects, and so just, that we need not fear he will charge them but upon urgent necessity ; yet we know not what succeeding ages will do.—It is not well to blast succeeding ages: and if they should hereafter charge unreasonably without cause, yet this judgment warrants no such thing. Again, it is no argument to condemn the true use of a thing, because it may be abused (i). And it cannot be suspected, that the king will do anything against law and the public good of the kingdom: the law says the king can do no wrong, for he is sponsus regni (k). 3rdly. The next general objection was grounded on inconvenience ; if such a charge may be imposed none knows what his share will be, for the king may command it as often as he pleases ; as an example whereof was men- (i) Argumentum ab abusu ad usum non valet. (k) Ante, p. 359, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. tioned Danegelt, which in elevea years grew from twelve to forty-eight thousand pounds: therefore the law hath provided against that uncertainty, and limited the power of taxation to parliament. I aaswer to this, Ist. That if danger’ increase, so must the charge; again, the king may command all perscns when there is necessity, and as often as he pleases he may do it. Is not this as great an inconvenience, and yet that abates not the writ? The provision of charge must be according to the danger. Besides, no abuse of anything can take away the true and lawful use thereof. Nor can we suspect that there will be such abuse. Ubi confidit Deus et lex, et nos etiam confidemus. In time of immi- nent danger, tempore belli, anything, and by any man, may be done, murder cannot be punished: yet, says my brother Crooke, the king cannot charge his subjects in any case without parliament; no, not when the kingdom is actually invaded by the enemy. But truly I think, as he was the first, so he will be the last of that opinion, espe- cially having admitted that the king is sole judge of the danger before, as indeed he is. 2ndly. There hath been, and may be, as great danger when the enemy is not discerned, as when in arms and on the land. In the time of war when the course of law is stopped, when judges have no power, when the courts of justice can send out no process, in this case the king may charge his subjects, you grant. Mark what you grant; when there is such a confusion as no law, then the king may doit. Dato uno absurdo, infinita sequuntur. More- over there may be a time of war in one part of the king- dom, and the courts of justice may sit ; as in-14 Hen. IIL, in Rich. IL’s, and Hen. VII's. time, when the judges sat in Westminster Hall. (1.) Now, whether a danger be to all the kingdom, or to a part, it is alike perilous, and all ought to be charged. (2.) The king may charge his subjects for the defence of the land. Now the land and the sea make but one entire: Digitized by Microsoft® 365 THE Casr or Surp- MONEY. 366 THE CaSE OF Surp- MONEY. CONSTITUTIONAL LAW. kingdom, and there is but one lord of both, and the king is bound to defend both. (3.) Expectancy of danger, I hold, is sufficient ground for the king to charge his sub- jects ; for if we stay till the danger comes, it may be too late. And (4.) His averment of the danger is not travers- able, it must be binding when he perceives and says there is a danger; as in 1588, the enemy had been upon us, if it had not been foreseen, and provided for, before it came. The next objection of my brother Crooke was, that there is a means provided by parliament, which will not with- hold aid for the defence of the kingdom, in case of neces- sity. And in Edw. I’s time, Edw. IT.’s time, and 4 Edw. IIL, a parliament was to be held every year for the defence of the kingdom, et propter ardua regni. But though I hold parliaments are an excellent means of raising aid for the defence of the kingdom, yet they are not the only means, for then parliament, not the king, would be the only judge, and have the defence of the realm ; or else it would give the king a charge of defence, without power or means. 1. Acts of Parliament may take away flowers and orna- ments of the crown, but not the crown itself; they cannot bar a succession, nor can our kings be attainted by them, and Acts that bar them of possession are void. 2. No Act of Parliament can bar a king of his regality, as that no lands should hold of him; or bar him of the alle- giance of his subjects ; or the relative on his part, as trust and power to defend his people: therefore Acts of Par- liament to take away his royal power in the defence of his kingdom are void. (1.) In the stat. 25 Edw. 1, c. 5, the words are, “aids or taxes, granted to the king, shall not be taken for a custom or precedent:” and c. 6, “moreover, we have granted for us and our heirs, that for no business from henceforth, we shall take such manner of aids, taxes, nor prises, due and accustomed.” And. 7, a release of toll Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 367 upon every sack of wool: “and grant, that we will not xe. take such things without their common assent and good | Sa. liking, saving, to us and our heirs, the customs granted by =—~ the commons aforesaid.” As to the statute, De Tallagio non concedendo, «. 1. Nullum tallagium imponetur nisi per commune con- cilium regni nostri, c. 2, 8, 4, 5, &—I answer First. These words must have relation to the aids before, and there be divers aids; as some by tallage, some by way of prise upon goods, and ransom of his Majesty’s person, &c., the king thereupon makes this grant, which hath relation to such aids as were granted voluntarily. Secondly. Ancient aids are there reserved, as redeem- ing the king’s body, pur faire fitz chevalier, et pur marier son file eigne: and so all other ancient aids, which are to be understood with an ad redimendum corpus, &c. And to the statute De Tallagio non concedendo, I further answer, (1.) That nullwm tallagiwm imponetur, &c., signifies, no unlawful tallage shall be imposed upon the subject without his consent; or else the aids pur faire fitz chevalier et pur file marier, had not been excepted. (2.) No aids shall be imposed but by con- tribution of the king and people; and here the king is taxed as well as they. (8.) An Act of Parliament can by no means take it away, much less by those general words, 14 Edw. 3, c 1. No man from henceforth shall be objection. chargeable, but by common consent in parliament. To this I answer, that though it be but temporary in Answer. some parts, yet it is binding only secundum subjectam materiam : and the words are general, as in the other statute De Tallagio, &c., besides the practice in that king’s time, and after, best interprets it. 25 Edw. 3, c. 8. No finding of men at arms, unless by Objection. consent, much less finding of ships. This takes not away any former law ; and therefore answer. Digitized by Microsoft® 368 THE Case or Sarr- MONFY. Objection. Answer. Objection. Answer. Objection. Answer. Objection. Answer. CONSTITUTIONAL LAW. the precedents following, 4 Hen. IV., shew that it does not reach to this case. A commission went forth, 2 Hen. IV., for the defence of the sea, whereof complaint was made in parliament with desire that it might be repealed, and it was done. The petition was that it might be released ; and the answer was but this, that it should, but the king would treat with the council about it; and it was but a repeal of his commission then only. 1 Ric. 3, c. 2, where the king grants, that he would not thereafter charge his subjects by benevolences, or any suchlike charge, but that such exactions should be annulled; and the subject charged by no such charge or imposition, @.e., by no such charge of money. That statute was only against benevolences, and made by a king who had reason, as we all know, to please the people for his own ends. In the statute of tonnage and poundage, granted for the defence of the sea, the words are, 1. That no tallage or aid shall be without Act of Parlia- ment. 2. That the king hath means to defend the kingdom with a protestation not to draw it into example (/). I will not argue whether tonnage and poundage were before this Act of Parliament, nor that time out of mind they were granted to the king. But my answer is, they are only for the ordinary defence of the sea. And the protestation of 4 Hen. IV., is a protestation of the Commons only: and this charge is not taken away thereby, and tonnage and poundage are for and towards the defence of the sea : so all the Acts are, and so I agree. The last objection is the Petition of Right. That no charge shall be imposed upon the subject, but by parlia- ment. I was then Speaker of the Lower House, and have reason to remember what was done. And I say, 1. There (2) vide Rot. Parl. vol. iii. p. 493 ; ante, p. 281. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. is no mention of this case. 2. There was no new thing granted, but only the ancient liberties confirmed, taking notice of the Commons’ protestation, not to bind the king from his ancient rights. 8. Look upon the prayer, what is desired: and the main scope was, (1.) Generally against loans, and this charge could not be included in such words. (2.) Imprisonment without showing cause. (3.) Billeting of soldiers. And (t) mariners lying within the land. The Chief Justice then argued that the writ for levying ship-money was in proper form, and concluded that by the common law, and the fundamental] policy of the king- dom, the king may charge his subjects for the defence of the kingdom, and that the king may charge his subjects towards the defence thereof when it is in danger ; that the king is sole judge of the danger; and ought to direct the means of defence. The judgment in the above case entered for the Crown “gave much offence to the nation, and occasioned great heart-burnings” in parliament (m), by which assembly resolutions were, after long debate, agreed to, condem- natory of the judicial opinion, proceedings, and judgment against Mr. Hampden, above set out, and an Act (n) was passed declaring and enacting as follows :— That the charge imposed upon the subject for the providing and furnishing of ships, commonly called ship- money, and the extra-judicial opinion of the justices and barons, and the writs, and every of them, and the agree- ment or opinion of the greater part of the justices and barons, and the judgment given against John Hampden, Esq., for the payment of ship-money, were and are con- ‘trary to, and against the laws and statutes of the realm, the right of property, the liberty of the subject, former resolutions of parliament, and the Petition of Right. That all and every, the particulars prayed or desired in (m) 3 St. Tr. 1254. (n) 16 Car. 1, ¢, 14. BB Digitized by Microsoft® 369 THE CASE OF SuHIp- MONEY. Proceedings in Parlia- ment. 370 CONSTITUTIONAL LAW. txt the said Petition of Right, shall from henceforth be put in “Sam execution, and shall be firmly and strictly holden and MONEY. — observed, as in the same petition they are prayed and expressed ; and that all and every the records and remem- brances of all and every the judgments against the said John Hampden, &c., and all and every the proceedings whatsoever, upon or by pretext or colour of any of the said writs, commonly called ship-writs, and all and every the dependants on any of them, shall be deemed and adjudged to all intents, constructions and purposes, to be utterly void and disannulled, and that all and every the said judgments, &c, shall be vacated and cancelled in such manner and form as records used to be that are vacated. Nore To i . oy, ‘ Nore 70‘ The prerogatives of the Crown “are not given for the onnG.an2, personal advantage of the king, but they are allowed to yoxer. exist because they are beneficial to the subject. They "are therefore to be guarded on account of the public; they are not to be extended further than the laws and constitution of the country have allowed them; but within those bounds they are entitled to every protec- tion.” Such are the words of Lord Kenyon, C.J., in a case below cited (0), and to a like effect argues Sir Geo. Treby in The East India Company v. Sandys (p). “The prerogative is great, but it has this general and just limitation, that nothing is to be done thereby that is mis- chievous or injurious to the subject” (q) The above propositions are exemplified by the final (0) Per Lord Kenyon, C.J., Rorke _ liberties.”—Declaration of Charles I. : v. Dayrell, 4 T. R. 410; per Lord cited per Sir R. Berkley, J., 3 St. Tr. Hardwicke, C., Lx parte Barnsley, 3 1090. Atk. 171; 1 Bla Com. Chap. 7. (p) 10 St. Tr. 386, ‘‘The people’s liberties strengthen (q) Et vide 2 Inst. 68; 3 Id. 84; the king’s prerogative, and the king’s Plowd, 230: 3 ante, p. 144, prerogative is to defend the people’s Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 371 issue of the two preceding cases, which involved “a con- Nore 70 . BATES'S stitutional question of the first magnitude”—the right of Case avo THE CASE OF the Crown to levy taxes on the subject. “James IL” (San MONEY. remarks Mr. Hargrave (r), “ claimed the right of imposing duties on imported and exported merchandize by prero- gative. His son and immediate successor, the unfor- tunate Charles, not only persisted in the claim, but added to it the equally formidable pretension of ship-money. Realized, these claims, with loans, benevolences, monopolies, - &c., would have comprised nearly a complete system of extra-parliamentary taxation; for imposition at the ports was calculated to serve the purpose externally, ship-money to operate internally. Had they been acquiesced in, par- liaments would soon have become unnecessary assemblies ; the mildness of a limited monarchy would gradually have degenerated into the harshness of an absolute one; a legal government would have been corrupted into a tyranny.” In order that the force of Mr. Hargrave’s remarks may be appreciated, I will, in the first part of this Note, specify various methods of declaring its will formerly adopted by the Crown in derogation of the legis- lative functions of parliament, and then I will offer some observations directly pertinent to these questions: May the sovereign, ywre corone, tax our imports? May he, in virtue of his prerogative, levy ship-money on the subject ? Glancing at our history since the Conquest, we recog- es of nise one of the earliest modes of enacting laws as having Gace been by charter emanating from the Crown. Already (s) charter. has been cited an important clause from the Charter of William L, which is so framed that its assurances might seem to have flowed spontaneously from the Crown, being _(r) 2 St. Tr, 871; Hargr. Jurise. (8) Ante, p. 284; Ancient Laws Exerc. vol. i. p. 322. and Institutes of England, p. 211. BB2 Digitized by Microsoft® 372 CONSTITUTIONAL LAW. Bore te in form not like an agreement or deed inter partes, but fase. 4x? similar rather to a bond or instrument unilateral. A like "88: remark is applicable to the so-called charters of Hen. I, — of King Stephen, and of Hen. IL, exhibited in the volumes below cited (é), after a careful collation of exist- ing manuscripts under the authority of parliament. In the essay prefixed by Blackstone to his collection of Great Charters, is minutely explained the mode in which the original Magna Carta was extorted from King John; and by comparing his remarks with the authentic docu- ments set forth in the volume infra (u), we deduce that the Charter of King John partook of the nature of a contract more than did any of the charters granted by his predecessors. It was, in fact, preceded by and com- piled from certain articles of agreement between the king and barons, just as an ordinary agreement may be and often is framed from rough memoranda, assented to by the contracting parties, or heads of agreement merely. This Great Charter was witnessed by some of the leading pre- lates and nobility of the realm; so likewise was that granted in the 9th Hen. III. («), which, whilst in most (t) Ancient Laws and Institutes of England, a.p. 1840; Statutes printed by order of Parliament, a.p. 1810, vol. i. (u) Statutes of the Realm, vol. i. (x) In commenting upon which Lord Coke observes: ‘‘It is true that of ancient time nothing passed from the king of franchises, liberties, privileges, &e., but it was by the advice of his council expressed under Ais testibus. . « » « This conclusion of the king's grants with his testibus was used by King Henry 3 and his progenitors, kings of this realm before him, and by his son Edward 1, and by Ed- ward 2 and Edward 3 after him. Afterwards, in the beginning of the reign of Richard 2, I find the clause of his testibus was left out, and in- stead thereof came in teste metpso, in this manner : in cujus rei testimonium has literas nostras fiert fecimus pa- tentes : teste meipso; which since by all his successors, kings and queens of this realm (except in creations [se. of nobility]), hath been used. ‘*Those that had his testibus were called carte, as this charter is called Magna Carta; and so is carta de Jorestd, &c., and those other that be teste meipso are called letters patents,” Digitized by Microsoft® pia DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 373 essential points it affirmed the Charter of King John, ee > ATESS differed from it in some particulars (y.) This latter Charter ,C4s 4x? was, by the Oonfirmatio Cartarwm (25 Edw. 1), itself ,fovey, ratified and confirmed, the sovereign thus addressing his ~_ subjects (z): “Know ye thatwe..... have granted for us and our heirs that the Charter of Liberties... .. made by common assent of all the realm in the time of King Henry our father, shall be kept in every point without breach.” Further, “the king wills (a), that if any judgment be given from thenceforth contrary to the points of the Charter aforesaid by the justices or by any other our ministers, it shall be undone, and holden for naught.” Magna Carta, says Lord Coke (6), referring to the Charter of Hen. III., was for the most part “declaratory of the principal grounds of the fundamental laws of Eng- land ;” and for the residue it supplies some defects of the common law. It has been “confirmed, established, and commanded to be put in execution” by many sta- tutes (c). The peculiar office of a royal charter—when in its nature legislative—was to confer privileges, to redress grievances, to declare and affirm the common law.- Copies of such charters were deposited for safe custody in the principal monasteries and cathedral churches, and were read and published to the people (d). It was not competent to the king to avoid his own charter (¢). A proclamation is “a notice publicly given of anything Freclsm=- (y) Blackst. Great Charters, Introd. (c) Id. ; ante, p. 64, n. (x). pp. xxix. et seq. (@) See, for instance, the Conjir- (2) Chap. i. matio Cartarum, 25 Edw. 1, « 3; (a) Chap. ii. post, p. 387. (0) 2 Inst. Pref, (e) 2 Inst. Pref. Digitized by Microsoft® 374 CONSTITUTIONAL LAW. Nors to whereof the king thinks fit to advertise his subjects” (/). Bates’s aoeg,dx> Mr. Reeves (g) tells us that “proclamations had, from uonsy, very eatly times, been the usual method by which our ~~ kings signified their commands and enforced their autho- rity. They were framed for the purposes of government and of the state. They seemed a necessary part of the executive magistrate’s power ; and having grown up with the monarchy, they might in those times be looked on with reverence by the people without discovering how nearly they approached to acts of legislation.” Lord Coke (h) admonishes his readers that “ proclamations are of great force when grounded on the laws of the realm.” And Blackstone (4) observes that, “though the making of laws is entirely the work of a distinct part—the legislative branch—of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magis- trate. And therefore his constitutions or edicts concerning these points, which we call ‘ proclamations,’ are binding upon the subject where they do not either contradict the old laws or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary” (&). In these words (which Blackstone proceeds to illustrate by apt examples) is indicated the line which a constitutional lawyer of the present day would draw between a legal and an illegal proclamation emanating from the Crown. It is competent to the Crown thus to declare and enforce the (f) Toml. Law Dict. ad verb. words, be operative until annulled by (g) Hist. Eng. Law, vol. iv. p. 556. royal proclamation.—2 Inst. 742. A (A) 3 Inst. 162. statute may also, by express words, (i) 1 Com. 270. become operative when enforced by (k) A statute may, by express proclamation. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. execution of existing law—it is not competent to the Crown thus to enact or to alter the existing law (0). In early times, however, the sovereign frequently infringed by proclamations the rights and liberties of the subject, and hence for centuries was an intermittent conflict waged between the king and people. During the reign of Henry VIL, royal proclamations seem to have enjoyed higher consideration than at any former period (m) ; and in the time of his successor a signal instance of concession to the royal authority presents itself. The stat. 31 Hen. 8, c. 8, recited in its preamble “the contempt and disobedi- ence of the king’s proclamations by some who did not consider what a king, by his royal power, might do. . . and considering that many occasions might require speedy remedies, and that delaying these till a parliament met might occasion great prejudices to the nation,” it enacted that ‘the king for the time being, with advice of his council, might set forth proclamations, with pains and penalties in them, to which obedience should be given as if they had been made by Act of Parliament. This remarkable statute certainly placed restrictions on the royal power to be exercised by proclamation; for it en- acted that no man should, by virtue thereof, suffer in his estate, liberty, or person, and that the laws and customs of the realm should not be subverted thereby. Never- theless, it did permit proceedings to be taken against such as contumaciously disobeyed the king’s proclama- (2) Lord Coke says (12 Rep. 75), against law and reason, and for that that ‘‘it is a grand prerogative of the void; for que contra rationem juris king to make proclamation (for no introducta sunt non debent trahi in subject can make it without authority consequentiam.” from the king or lawful custom)”; (m) 2 Millar, Eng. Gov. pp. 409, “but we do find divers precedents 410. of proclamations which are utterly Digitized by Microsoft® 375 Norte To Bates's CasE AND THE CasE OF SuHIP- MONEY. 376 Nore To BatEs’s Cask AND THE OASE OF Sure- MONEY, CONSTITUTIONAL LAW. tions, and authorised some punishment—such as fine, forfeiture, or imprisonment, to be imposed after a convie- tion (n). This statute was repealed by 1 Edw. 6, c. 12, s.5; I cite it, however, as showing how exalted was at one time the royal prerogative m regard to the issuing of proclamations, whence we may the less wonder at the efficacy which, under the Stuart dynasty, was by the Court party sought to be ascribed to them (0). In the time of Queen Mary proclamations of an arbi- trary and illegal import were often issued(p). And the proclamations put forth under Elizabeth seem to show that the Crown then claimed a sort of supplemental right of legislation to perfect and carry out what the spirit of existing laws might require, “as well as a paramount supremacy, called sometimes the king’s absolute or sove- reign power, which sanctioned commands beyond the legal prerogative for the sake of public safety whenever the council might judge that to be in hazard” (q). During the reign of James I. proclamations were very frequently issued (7), and divers questions touching this branch of the prerogative were referred to the great officers of the Crown. Ea. gr., whether the king might by his proclamation prohibit the erection of new buildings (n) See Hume, Hist. Eng. (Edit. 1802), vol. iv. pp. 237, 238, (0) See 2 Hall. Const. Hist. Eng., 8thed., p. 24; The Case of the Seven Bishops, post. (p) 4 Reeves Eng. L. 558. for instance, 2 Inst. 62, 68, (q) Hall. Const. Hist. Eng. 8th ed. vol. i. p. 217. Referring to the reign of Elizabeth, Mr. Hume observes (Hist. Eng. vy. 463), that ‘‘in reality the Crown pos- See, sessed the full legislative power by means of proclamations, which might affect any matter even of the greatest importance, and which the Star- chamber took care to see more vigor- ously executed than the laws them- selves. The motives for these pro- clamations were sometimes frivolous and even ridiculous.” (r) See the Collection of Royal Pro- clamations, temp. Jac. 1, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. in and near to London (s). Various resolutions were come to in the case cited (s), and various propositions are laid down by Lord Coke in his report of it, limiting the power of the Crown by proclamation. The king by his procla- mation cannot alter the common or the statute law (4); the king cannot by his proclamation create into an offence that which was not an offence before—that which cannot be punished without proclamation cannot be punished with it. But the king, for prevention of offences, may by proclamation admonish his subjects that they keep the laws and do not offend against them (uw); and the dis- obeying a proclamation, when legal, has been said to constitute a substantive offence, for which the offending party may be punished (2). The Petition of Grievances (y), presented by the Com- mons A.D. 1610 to King James I, makes reference to illegal proclamations, The Commons therein insist on “the indubitable right of the people of this kingdom not to be made subject to any punishments that shall extend to their lives, lands, bodies, or goods, other than such as are ordained by the common laws of this land, or the statutes made by their common consent in parliament ;” (8) The Case of Proclamations, 12 Rep. 74; S.C. 2St. Tr. 723. printing and publishing of irreligious and seditious papers and libels,”—15 () King James 1, however, assumed to repeal by proclamation the stat. 5 Ric, 2, st. 1, v. 2, on the ground that it had fallen into desuetude. See Proclamations, temp. Jac. 1, p. 144. Edward 3 also by proclamation revoked and declared null the stat. 15 Edw. 3, Rot. Parl. vol. ii. pp. 128, 139,. " (w) See, for instance, the Procla- mation of March 26, 1702, ‘‘for re- straining the spreading false news, and St. Tr. 359. (x) Chitt. Pre. Cr. 107; Fortescue, De Laud. Leg. Ang. pp. 59, 60. As to the efficacy of proclamations, see also, per Lord Ellesmere, 2 St. Tr. 664; Parl. Hist. vol. v. p. 250. ‘*T never heard an indictment to conclude contra regiam proclama- tionem.”—Per Sir E, Coke, 12 Rep. 76. (y)-2 86. Tr. 524—6, Digitized by Microsoft® 377 Nore To BatEs's CasE AND THE CASE OF Surre- MONEY. 378 Norte To Bates’s CASE AND THE CASE OF Sure- MONEY, CONSTITUTIONAL LAW. and then they protest as follows: that “ proclamations have been of late years much more frequent than here- tofore, and that they are extended not only to the liberty, but also to the goods, inheritances, and livelihood of men —some of them tending to alter points of law, and make them new; other some made shortly after a session of parliament for matter directly rejected in the same session; other, appointing punishments to be inflicted before lawful trial and conviction,” and so forth. “ By reason whereof there is a general fear conceived and spread amongst your majesty’s people, that proclamations will by degrees grow up and increase to the strength and nature of laws, whereby not only that ancient freedom will be as much blemished (if not quite taken away) which their ancestors have so long enjoyed; but the same may also in process of time bring a new form of arbitrary government upon the realm. And this our fear is the more increased by occasion as well of certain books lately. published, which ascribe a greater power to proclamations than heretofore hath been conceived to belong unto them : as also of the care taken to reduce all the proclamations made since your Majesty's reign into one volume (z), and to print them in such form as Acts of Parliament formerly have been, and still are used to be; which seemeth to imply a purpose to give them more reputation and more establishment than heretofore they have had.” In the foregoing remonstrance by the Commons is in- serted a catalogue of some of the proclamations whereof complaint is made (a) ; and with this list may usefully be compared that given by Mr. Chitty in his work below cited (b), for by such comparison we may succeed in (2) Ante, p. 376, n. (vr). (a) 2St. Tr. 525-6. (6) Pre. Cr. pp. 184—6, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. drawing a line between legal and illegal proclamations, between those which aim at breaking through funda- mental principles by commanding the observance of matters not sanctioned by parliament, nor yet exclusively within and subject to any recognised branch of the pre- rogative, and those proclamations emanating from the king as an executive magistrate, which enjoin and enforce the performance by his subjects of existing laws, or make or alter regulations in regard to which the PERS has a peculiar and special jurisdiction. During the succeeding reigns of the Stuarts, the sove- reign frequently addressed proclamations to his subjects, sometimes affecting, virtute corone, to dispense with ex- isting laws, or with the penalties consequent on breach of them (¢), and sometimes assuming to dictate to the people in respect of matters, per se indifferent, and as to which perfect liberty of action should be allowed. Since the Revolution, the legality of royal proclamations and orders issued by the privy council has on various occasions given rise to parliamentary discussion, and enactments have sometimes been deemed necessary to indemnify those who had advised or acted under them (d). (c) See The Case of the Seven Bishops, post ; Proclamations temp. Car. I. ; Hall. Const. Hist. Eng. 8th ed. p. 6. (d) See the Debates preliminary to the passing of the stat. 7 Geo. 3, ¢. 7, entitled ‘*An Act for indemnifying such persons as have acted for the service of the public, in advising or carrying into execution the Order of Council of the 26th September last, for laying an embargo on all ships Jaden with wheat or wheat-flour, and for preventing suits in consequence of the said embargo.” (Cobbett, Parl. Hist. Eng. vol. xvi. pp. 246, et seq.) The preamble of the above statute recites that the said order ‘‘ could not be justified by law, but was so much for the service of the public, and so necessary for the safety and preserva- tion of his Majesty’s subjects, that it ought to be justified by act of par- liament, and all persons advising or acting under or in obedience to the same indemnified.” See also the Debates on the Orders in Council, a.p, 1808, 10 Cobbett, Digitized by Microsoft® 3879 Nove Tu BateEs’s CasSE AND THE CASE OF Surp- MONEY. 380 Nore To BatTEs’s CasE AND THE CasE OF Surp- MONEY. Ordinance. CONSTITUTIONAL LAW. An ordinance is defined by Mr. Hakewill (¢) as being next in degree of strength to a statute—as being a con- stitution made by the king himself, and. all the prelates, earls, and barons—not at the council table or in the king’s chamber, but sitting solemnly in parliament; and the only “essential difference between this and an Act of Par- liament is, that this hath not the assent of the Commons.” To a like effect, also, when commenting upon the 234th section of Littleton, Sir E. Coke (f) observes, that though an Act of Parliament is an ordinance, yet every ordinance is not a statute; “for every statute must be made by the king, with the assent of the Lords and Commons; and if it appear by the Act that it was made by two of them only, it is no statute” (g). Remarks such as the foregoing, though in the main accurate, must assuredly be accepted with qualification; for some ordinances, as further observed by Mr. Hakewill (h), have by estimation amongst us had the force of statutes,—for instance, the ordinance of Mer-. ton in the 20th year of Hen. III, which, though made by the king, lords, and prelates, without assent of the Parl. Debates, particularly Lord Er- skine’s speech, Jd. pp. 929, et seq. ; et vide stat. 48 Geo. 3, c. 37. (e) Ante, p. 275. (f) Co, Litt. 159 b., and Harer. Note (2) ; 3 Reeves, Hist. Eng. Law, 2nd ed. p. 147. (g) Lord Coke also observes that *‘the difference between an act of parliament and an ordinance in par- liament is, for that the ordinance wanteth the threefold consent, and is ordained by one or two of them.”—4 Inst. 25. A.D. 1642, and during the succeed- ing years, the enacting words used were: ‘‘The Lords and Commons in Parliament do ordain and declare,” or some equivalent phrase. Vide Sco- bell’s ‘* Collection of Acts and Ordi- nanceg of Parliament.” In the 5th Edw. 2, certain ‘‘or- dinances ” were passed by the prelates, earls, and barons, which were revoked in the 15th Edw. 2, on the ground that ‘‘ by the matters so ordained the royal power of our said lord the king was restrained in divers things con- trary to what ought to be, to the blemishing of his royal sovereignty and against the estate of the crown.” (h) Ante, p. 275, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 381 Commons, “hath yet by continuance of time got not only Norm ro Bartss’s the strength, but the name also of a statute.” The ninth Case axp chapter, it may be remembered, of this ordinance records the appeal made by the lords spiritual to the earls and barons, that they would consent that all such as were born before wedlock should be accounted legitimate in accordance with the canon law. But to this appeal “all the earls and barons with one voice answered that they would not change the laws of the realm which hitherto have been used and approved.” The famous statute (as it is usually called). of Quia.Emptores (18 Edw. 1, c. 1) might, according to the definition above offered, more accurately be designated an ordinance, the enacting words which there follow the preamble being— “our lord the king in his parliament at Westminster, at the instance of the great men of the realm” (no specific mention being made of the Commons), “ granted, provided, and ordained,” and so forth. A bare inspection, however, of the introductory words professing to set forth the authority of an instrument such as now alluded to, would not always enable the stu- dent rightly to determine whether it were a ‘statute or an ordinazice ; the subj ect-matter of such instrument might like- wise need to be considered, Was it meant to be permanent or temporary in its operation ? Was it meant to innovate on the established law? Were its provisions such as might not improbably call for early alteration, amendment, or abrogation (2) 2 A well-known instance illustrating what has just been said may be mentioned. In the 37th year of Edw. III. numerous petitions were presented by the Com- (4) See Hall. Midd. Ages, 11th ed. vol. iii. pp. 49—51; Rot. Parl. vol. ii. pp. 206, 253, 258, Digitized by Microsoft® THE CASE OF Surp- MONEY, 382 CONSTITUTIONAL LAW. Nors ro mons and answered by the Crown, and at the end of the cise xp then session the king demanded of the “great men and S# Commons” whether the things granted in that parliament —— —being in their nature new and not before known—should be accorded by way of ordinance or of statute; to which the reply was, that it would be well to grant by way of ordinance rather than by statute, in order that anything needing amendment might be amended in the next par- liament: and it was done accordingly—so much of the subject-matter of the petitions as was acceded to being promulgated in the form of an ordinance (k). In the succeeding year we find that such royal ordinance, having in some particulars proved grievous to the people, as well merchants as others, was reconsidered and amended (J). So in the twenty-second year of his reign, the same king replied to a petition of the Commons, that the accustomed laws and process could not be changed unless by a “new statute” (m). The mode of legislation prevalent in early times is, in the Preface to Mr. Ruffhead’s edition of the Statutes at Large, well epitomised, and in Mr. Barrington’s “Observa- tions on the more Ancient Statutes, from Magna Carta to 21 Jac. 1, c. 27” (n), is elaborately discussed. Inferences Early maode of legisla- tion. (%) Rot. Parl. vol. ii. p. 280, Nos, 38 ad fin. 39. (1) Id. p. 286, No. 11, et seg. (m) Id. p. 208, No. 30. As to the distinction between an ordinance and a statute, see further 3 Reeves, Hist. Eng. Law, 2nd ed. , vol, iii. pp. 146—7. ‘¢ Ordinances,” says Sir F. Dwar- ris (Treatise on Statutes, 2nd ed. p. 7), ‘¢will perhaps be found on inquiry to include im general patents and charters, and to indicate in early times those legislative acts or edicts of the king in his court, or assisted by his council (concilium regis ordi- nariwm), or, in cases of importance, by his great council (magnum conci- lium), which were either declaratory of the old law or directory to his jus- tices. in what manner to proceed in particular cases.” (n) Bait, 1795. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. must not too hastily be drawn from the form of an ancient statute or legislative instrument regarding the efficacy at- taching to it, or the precise source whence it emanated (0). Even in the reign of Edward I, says Mr. Ruffhead (p), when laws were sometimes “penned with a brevity and perspicuity which might do honour to more enlightened days,” the greater portion of the statutes are vague and unsettled in form, and some of them are defective in sub- stance. In many there are no words expressing by what authority they were promulgated ; in others the authority is variously described, Sometimes the laws seem to issue from the king alone,—sometimes from the king and lords jointly, without the concurring assent of the Commons. The instances subjoined—occurring temp. Henry III. and the three first Edwards—may suffice to illustrate the above remark. In the statute of Marlbridge (q), the en- acting words are :—“ The said king our lord providing for the better estate of his realm of England, and for the more speedy ministration of justice as belongeth to the office of a king, the more discreet men of the realm being called together, as well of ‘the higher as of the lower estate, it was provided, agreed, and ordained,” &. The statute of Westminster I. (7) is set forth in the preamble as the act of King Edward, made at Westminster, “ by his council and by the assent of archbishops, bishops, abbots, priors, earls, barons, and all the commonalty of the realm being thither summoned.” During the same reign, also, we meet with the following formule, professing to indi- cate the source whence emanated each respectively of the enactments cited :—The king himself providing for the (0) Vide Fortescue, De Laud. Leg. (q) Stat.de Marleberge, 52 Hen. 3. Ang. ‘by Amos, 59, 60. (r) 3 Edw, 1. (p) Pref. p. 1. Digitized by Microsoft® 333 Note To BatEs’s CASE AND THE CASE OF Suir- MONEY. 384 CONSTITUTIONAL LAW. ere te wealth of his realm and the more. full ministration of CAsz AXD justice, as to the office of a king belongeth, the more dis- THE CASE OF ‘weg, ereet men of the realm as well of high as of low degree MONEY. ~~ being called thither, it is provided and ordained, &c. (8) ; “We, therefore, to the profit of our realm, intending to provide convenient remedy by the advice of our prelates, earls, barons, and other liegemen of our kingdom, being of our council, have provided, made, and ordained,” &c. (é) ; “The king, by himself and by his council, hath ordained and established” (w); The king, “ at the instance of the great men of the realm, granted, provided and ordained” (a); The king, “in his full parliament and by his common council, hath ordained” (y) ; Rex—‘ ult et precepit” (z) —‘ad pariamentum suum concessit ordinavit et sta- tutt” (a). Somewhat later (temp. Edw. IIL), the following formule occur :—At the parliament holden at Westminster, &c., the king, “by the assent of the prelates, earls, barons, and other great men of the'realm there assembled .... and at the request of his people, hath granted and established these things underwritten, which he wills to be kept and maintained for ever” (b); The king “hath ordained and established, by the assent of the said prelates, earls, barons, and other nobles of this realm, and at the request of the ‘said knights and commons” (c). In regard to the efficacy of legislative instruments which fail distinctly to set forth that the three estates of the realm concurred in them, a conflict is noticeable amongst (s) 6 Edw. 1. (y) 20 Edw. 1, st. 3, (t) 7 Edw. 1. (2) 24 Edw. 1. (u) De Mercatoribus, 11 Edw. 1; (a) 28 Edw. 1, st. 2. 18 Edw. 1, st. 3. (b) 5 Edw. 3. (x) Quia Emptores, 18 Edw. 1, st. (c) 10 Edw. 8, st. 1 and st. 2. 1; 21 Edw. 1, st. 2. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. authorities. Upon this subject, in The Prince’s Case (d), we read as follows :—“If an Act of Parliament be penned by assent of the king and of the Lords spiritual and tem- poral and of the Commons, or itis enacted by authority of parliament, it is a good Act; but the most usual way is, that it is enacted by the king by the assent of the Lords spiritual and temporal and of the Commons ;” and again, “ There are many statutes which are indited quod dominus Rex statuit, yet if they be entered in the Parliament Roll and always allowed for Acts of Parliament, it shall be intended that it was by authority of parliament; but if an Act be penned that the king, with the assent of the Lords or with the assent of the Commons, &c., it is no Act of Parliament, for three ought to assent to it, sc., the King, the Lords, and the Commons, or otherwise it is not an Act of Parliament; and by the record of the Act it is expressed which of them gave their assent, and that excludes all other intendments that any other gave their assent; and so there is a difference between a general and particular penning of an Act of Parliament.” On the other hand, Lord Hale observes (e), that “styles that in propriety take not in the whole parliament, but are in propriety appli- cable to the king alone, or to the king and his conciliwm ordinarium, are applied to acts or grants in parliament made by the king and both Houses and true Acts of Par- liament,” and “so in truth are applied many styles and titlings that in propriety are not so applicable to the whole parliament ; yet were the businesses transacted and assented to by the whole parliament.” Such being the conflict of authorities, an inspection of the Statute Book and observance of the irregularities (d) 3 Jac. 1; 8 Rep. 1, 20b. (e) Jurisdiction of Lords, p. 20, cited Dwarr. on Stats. 2nd ed. p. 7. co Digitized by Microsoft® 385 Norte, To Barr's Case aND THE CASE or Surp- MONEY. 386 Nore To BatTeEs’s CASE AND THE CASE OF Suip- MONEY. CONSTITUTIONAL LAW. occurring in it, might perhaps lead to this conclusion, that it would be unreasonable to deny the validity of any of the earlier enactments, merely because the assent of the Commons is not totidem verbis expressed thereto, since it is evident (1) that their assent after it was allowed in terms was often over-ruled in practice; (2) that where we may safely presume their assent to have been given, it frequently was not expressed upon the roll; (8) that there was not at the period referred to any settled form of declaring the concurrence of the several estates of the realm in a legislative instrument (f). An examination of the Statute Book further shows us that the form of penning the enacting words of an Act of Parliament now in use was gradually adopted towards the close of the fifteenth and during the sixteenth century; bills, more- over, in the shape of complete statutes having been first introduced into either House in the time of Henry VI (g). In Edw. III.’s reign (4), however, and thence until the reign of Hen. V., the method of making Acts of Parliament was this:—A bill in the nature of a petition was delivered to the Commons, and by them sent to the Lords, where it was entered upon the Lords’ rolls, together with the royal assent when given (7). Of this petition, and the king’s answer to it, the judges used at the end of the parliament to draw up the substance in the form of a statute, which was afterwards entered upon the Statute Roll. (f) Statutes at Large, by Ruffhead, Pref. xvi. (g) May, Law and Pract. of Parlia- ment, Bk. I, ch. 18. (h) 3 Reeves, Hist. Eng. Law, 2nd ed. pp. 142—147; 4 Inst. 25, where Lord Coke says that ‘‘in ancient time all Acts of Parliament were in form of petitions,” (i) See stat. 21 Ric, 2, c. 16, by which authority was given to certain commissioners to examine and answer petitions to the Crown, which during the sitting of parliament had not for lack of time been determined, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. At the impeachment and trial of the Earl of Maccles- field for high crimes and misdemeanors (j), the process , observed in passing an ancient statute is thus stated :— There were two rolls, the one, in the nature of a journal, called the Parliament Roll, in which the petition of the Commons was entered with the king’s answer thereto, agreeing to the whole or some portion of its prayer, or may be wholly differing from it; on the other roll, called the Statute Roll, was entered the Act as drawn up in form by the judges, and this Act was afterwards promul- gated and proclaimed upon a writ issued to the sheriff of each county. It is thus manifest that the petition upon which an ancient statute was drawn should be perused in order that the Act itself may be understood (X). Statutes thus framed were promulgated to the public in virtue of writs issued to the sheriffs of the several counties (J). So long since, however, as the case of premunire, 39 Edw. III., upon the stat. 27 Edw. 3, c. 1, against the Bishop of Chichester, it being objected for the bishop, Ist, that the Act where- upon the writ was grounded was no statute; 2ndly, that if it were a statute it was never published in the county ; Sir R. Thorpe, C. J., answered, “Although proclamation be not made in the county, every one is bound to take notice of that which is done in parliament ; for as soon as the parliament hath concluded anything, the law intends (j) 16 St. Tr. 1889—1890. (4) Pamphlet by F. Plowden, pp. 48, 49. (2) Till the reign of Henry 7, statutes were engrossed on parchment and proclaimed by the sheriff of each county in virtue of the king’s writ. “This was the ancient law of Eng- land, that the king’s commandments issued and were published in form of writs—an excellent course and worthy to be restored.” 2 Inst. 526, ‘* Printing comes in lieu of the ancient promulgation by the sheriff.” Ruffhead, Statutes at Large, Pref, xvii. ec 2 Digitized by Microsoft® 387 Note To Bates’s Case aND ‘HE CasE oF Sxire- MONEY. 388 Note To BatTrEs’s Cask AND THE CASE OF aTP- MONEY. CONSTITUTIONAL LAW. that every person hath notice thereof, for the parliament represents the body of the whole realm, and therefore it is not requisite that any proclamation be made, seeing the statute took etfect before” (m). One great mischief incident to the former mode of legislation was, that the Acts as prepared by the judges sometimes materially differed from the petitions upon which they affected to be founded (m). Nor does there seem to have been any available method—unless by sub- sequent petition or remonstrance—of preventing or cor- recting this abuse, inasmuch as the Act in its complete and final state was not again submitted to the two inferior branches of the legislature. To remedy this glaring evil a petition was presented by the Commons in the 5th year of King Richard IL, a.p. 1381, claiming for themselves an equal participation in the drawing up of statutes. This petition sets forth, as part of the “ liberty and freedom” of the Commons, that “there should no statute nor law be made unless they should have given thereto their assent,” and the petition prays that thenceforth on complaints by the Commons no law be thereupon made and engrossed as statute, with additions, diminutions, or the insertion of material words, without assent of the Commons. And by way of answer to this petition, the king granted that “thence- forth nothing be enacted to the petitions of his Commons that be contrary of their asking, whereby they should be bound without their assent,” “saving always to our liege (m) 4 Inst. 26; &. v. Sutfon, 4 many instances this voucher was not M.&S 542. pursued; the entry on the Statute (n) In The Earl of Macelcsfield’s Roll being in terms different from that case, cited supra, p. 387, n. (j), ib on the Parliament Roll—consequently was accordingly argued that the Par- a change in the mode of passing laws liament Roll was only a voucher was afterwards found necessary, to the Statute Roll, and that in Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 389 Note TO Ba'tes’s lord his royal prerogative to grant and deny what him lust nun Case OF of their petitions and askings”’ (0). But though irregularities, the precise cause and sig- MONEY. nificance of which it may be impossible to determine, The king did for some centuries immediately succeeding the Con- the. quest occur in the process of legislation, the theory of our constitution respecting it seems accurately set forth by Fortescue in a well-known passage:—“A king of England,” he says (p), “cannot at his pleasure make any alterations in the laws of the land, for the nature of his government is not only regal but political. Had it been merely regal he would have a power to make what innovations and alterations he pleased in the laws of the kingdom, impose tallages and other hardships upon the people whether they would or no without their con- sent ;” but “it is much otherwise with a king whose government is political, because he can neither make any alteration or change in the laws of the realm without the consent of the subject, nor burthen them against their wills with strange impositions, so that a people governed by such laws as are made by their own consent and approbation enjoy their properties securely, and with- out the hazard of being deprived of them either by the king or any other.” The leading enactments in affirmance of Fortescue’s proposition here recur to mind :—The 14th chapter of the (0) See Taylor, Book of Rights, p.94. grossing of the Parliament Roll;” See also the remonstrance of the Commons, Rot. Parl. vol. 8, p. 418, No. 25, temp. Henry 4. In the 7th and 8th Hen. 4, ‘‘it was enacted at the request of the Commons that certain of the Commons House should be present at the en- Rot. Parl. vol. 3, p. 585, No. 65; e¢ vide Rot. Parl. vol. 4, p. 22, No. 22, temp. 2 Hen. 5. (py) Fortesc. de Laud. Leg. Ang., edit. by Amos, p. 26—27 ; Jd. pp. 55, 125 et seg., 136. Digitized by Microsoft® 390 Note To BaAgeEs's CasE AND THE CASE OF Sarp- MONEY. CONSTITUTIONAL LAW. Magna Carta of King John enacts that “no scutage or aid shall be imposed in our kingdom unless by the common council of our kingdom, except to redeem our person and to make our eldest son a knight, and once to marry our eldest daughter, and for these there shall only be paid a reasonable aid ;” and the 17th chapter of the same Charter sets forth that “for the holding the common council of the kingdom to assess aids (except in the three cases aforesaid) and for the assessing of scutages (q), we will cause to be sum- moned the archbishops, bishops, abbots, earls, and great barons of the realm, singly, by our letters; and, further- more, we will cause to be summoned in general by our sheriffs and bailiffs all others who hold of us in capite at a certain day, that is to say, forty days before their meeting at least, and to a certain place, and in all letters of such summons we will declare the cause of the summons. And, summons being thus made, the business shall proceed on the day appointed according to the advice of such as shall be present, although all that were summoned come not.” True it is that in the Charter of Henry III. the fore- going clauses were omitted ; but, in conformity with them, the 5th and 6th chapters of the Conjfirmatio Cartarum (r) declare that voluntary aids towards the prosecution of the wars shall not be drawn into a precedent—that aids, save such as were due and accustomed, should not thenceforth be taken but by the common assent of the realm. Fur- ther, the statute De Tallagio non concedendo (34 Edw. I.) enacts (c. 1), that “no tallage or aid shall be taken or levied by us or our heirs in our realm without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land.” The (g) 1 Bla. Com. 310. (r) 25 Edw. 1. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. Petition of Right is directed inter alia against any charge being laid upon the subject “without common consent by » Act of Parliament” (s). And the Bill of Rights, reciting, amongst other illegal acts, that money had been levied “for and to the use of the Crown by pretence of preroga- tive for other time and in other manner than the same was granted by parliament,” declares that “levying money for or to the use of the Crown by pretence of prerogative without grant of parliament for longer time or in other manner than the same is or shall be granted, is illegal.” Clearly, then, by a series of Declaratory Acts extending through five centuries, a check was from time to time attempted to be put upon an exercise by the Crown of one asserted branch of its prerogative—that of altering estab- lished law—which was most often put into activity with a view to augmenting out of the property of the subject the royal revenue, and hence one argument is drawn, almost irresistible, against the constitutional right of the sovereign thus to legislate for or tax-the public. The most dangerous and audacious inroads, however, by the sovereign on the property of the subject have been made by him in his executive capacity. Through the medium of fiscal regulations—of writs issued to the sheriffs of coun- ties throughout the realm—of peremptory instructions to the judges or ecclesiastics, did the Crown, at various periods, especially during the seventeenth century, strive to enforce practically that arbitrary power to which in theory it laid claim. By forced exactions of money under the name of benevolences and loans—by arbitrary taxation of imports—by the notorious device of ship-money, was the attempt made; by the determined opposition of parlia- (s) Sect. 10. Digitized by Microsoft® 391 Note TO BatEs’s CasE AND HE CASE OF SHip- MONEY. 392 CONSTITUTIONAL LAW. Nore 70 ment and of the people was it ultimately and signally c ane Caan or Gefeated. Ss: ei a . . ° none, Before examining in detail the shifts resorted to, and innovations made by successive sovereigns for effecting the object specified, it may be well to epitomize what is said by Sir E. Coke (¢) touching the various pecuniary assess- ments upon the subject for the benefit of the Crown known in the earliest times to, and acknowledged by, our law. The general term subsidies, he says, or aids granted by parliament, were either, 1, perpetual, or, IL, tem- porary. I. Assessments upon the subject in the nature of per- petual subsidies included (1) the custwma antiqua sive magna, which was a custom or duty originally granted by parliament (w) to King Edward I., his heirs and successors, upon the export or import of wool, woolfels, and leather ; (2) the custuma parva et nova, granted anno 31 Edw. L, in consideration of certain privileges, by the merchant strangers to the king and his heirs, ultra antiquam custumam. Anciently, no duty save for wool, woolfels, or leather was paid by the home or foreign merchant (v). In the reign of Edward IIL, indeed, much of the wool for which custom had thus been granted and paid, having been manufactured into broad cloth, a question arose whether, upon export of the manufactured material, duty proportioned to the amount of wool contained therein should be paid, and it was resolved that no custom should in this case be paid, (t) 4 Inst. 28 e¢ seg. ; et vide 2 Crown, see 1 Bla. Com. chap. 8. Inst. 77; 12 Rep. 33 ; Sheppard v. (wu) 4 Inst. 29; see 25 Edw. 1, Hartnold, Vaugh. 159; Com. Dig, c. 7. Prerogative (D. 43, D. 44). (v) 12 Rep. 33, Generally as to the revenue of the Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. because the wool by the labour and industry of man had been changed into another kind of merchandize. The export of wool, however, having afterwards been prohibited by statute (w), a subsidy was granted by parliament of broad cloth in the 21st year of Edward III. Besides the above customary payments, the Crown was entitled to butlerage—being a charge of two shillings on every tun of wine imported into the kingdom by mer- chant strangers ; and to prisage, a custom duty, payable by English merchants, of twenty shillings for one ton before, and another behind the mast, in respect of every ship having twenty tons of wine or more on board (y). In addition, moreover, to such statutory and customary dues, the Crown enjoyed the following prerogatives, tend- ing to ease its pecuniary burthens or to augment its revenues :— The prerogative of purveyance and pre-emption was a right asserted and jealously insisted on (z) by the Crown, of buying up provisions and other necessaries without their owner’s consent, through the intervention of the king’s purveyors, for the use of his royal household, at an ap- praised valuation, and in preference to all others; also of forcibly impressing the carriages and horses of bis subjects to do the king’s business on the public roads, however inconvenient to the proprietor, upon paying him a settled price (a). “The king,” says Fortescue (6) (temp. Henry VI), “by his purveyors, may take for his own use neces- (x) 11 Edw. 3, « 1; see also 27 the exercise of this prerogative, Hume, Edw. 3, cc. 8, 7, 27. Hist. Eng., vol. v. pp. 846, 347. (y) Com. Dig. Prerogative (D. 45). (a) 1 Bla. Com. 287—8, (z) See, for instance, the account of “(b) De Laud. Leg. Ang., by Amos, the contention between Queen Eliza- 134; and authorities cited Jbid., beth and her Commons in regard to _ note (¢). Digitized by Microsoft® 393 Nore To Bates’s CaSE AND THE CASE OF Sure- MONEY, Purveyance. 394 CONSTITUTIONAL LAW. Nors t0 saries for his household, at a reasonable price, to be ni AND agsessed at the discretion of the constables of the place, yowzy, whether the owners will or not; but the king is obliged "by the laws to make present payment, or at a day to be fixed by the great officers of the king’s household.” In early times, remarks a judicious modern writer (c), the king’s household was supported by specific renders of corn and other victuals from the tenants of the respective demesnes, and there was also a continual market kept at the palace gate to furnish viands for the royal use (d). This answered all purposes so long as the king’s court continued in any certain place ; but when the court re- moved from one part of the kingdom to another, as fre- quently happened, it was found necessary to send purveyors beforehand to get together a sufficient quantity of provi- sions and other necessaries for the household, and these purveyors, in process of time, greatly abused their autho- rity, and caused great oppression to the subject. To repress such abuses, and to regulate the exercise of the king’s prerogative of purveyance, statutes were from time to time enacted. By the Great Charter (e) of King John, it is declared that “no constable or other bailiff of ours shall take corn or other chattels of any man unless he presently gives him money for it, or hath respite of payment from the seller.” By the Articuli super Cartas (f), ¢. 2, after reciting that “there is a great grievance in this realm, and damage without measure, for (c) 2 Millar, Eng. Gov., p. 415; horses, carts, or timber shall not, et vide Reeves, Hist. Eng. Law, vol. without his consent, be taken by any ii. pp. 869, 370. bailiff or officer of the Crown.—y (d) 2 Inst. 542. Hen. 3, cc. 19, 21. (e) Chap. 31. See also chaps. 33 (f) 28 Edw. 1. and 34, which declare that a man’s Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. that the king and the ministers of his house” “do make great prises when they pass through the realm, and take the goods, as well of clerks as of lay-people, without pay- ing them for anything, or else much less than the value,” it is ordained that “from henceforth none do take any such prises within the realm, but only the king’s takers and the purveyors of his house,” who are required to have with them their warrant, “the which warrant they shall show unto them whose goods they take before they take anything,” and “shall take no more than is needful or meet to be used for the king, his household, and his chil- dren.” By the statute De Tallagio non concedendo (4g), it was provided that “no officer of ours, or of our heirs, shall take corn, leather, cattle, or any other goods of any manner of person without the good-will and assent of the party to whom the goods belong.” And by the stat. 25 Edw. IIL, st. 5, c. 1 (f), it was further provided that corn and victuals taken for the king’s use should be ap- praised at their rightful value. Lord Coke, commenting upon the Articuli super Cartas (1), observes that by the laws and statutes of the realm five restrictions were imposed upon the king’s purveyors, with a view to mitigating the evils caused in the performance of their functions, viz., that they should take (1) only for the king’s household, (2) with the con- sent of the owner, (3) at the market price, (4) no more than might be necessary, (5) where it might best be spared. Statutory regulations, however, in regard to the exer- cise of this branch of the prerogative would seem to have (9) 34 Edw. 1, ¢ 2. 1, ¢ 19; 28 Id. v.12; 34 Id. ce, 2 (h) See also 4 Edw. 3, cc. 3and 4; and 3; 36 Jd. st. 1, cc. 2—6, 5 Id.c.2; 10 Id. st. 2; 14 Id. st. (i) 2 Inst. 543. Digitized by Microsoft® 395 Norte To Bartes’s CaSE AND THE CasE OF Sure- MONEY, 396 Nore To Bates’ CaAsE AND Tu CASE OF Surp- MONEY, Subsidies. Tonnageand poundage. CONSTITUTIONAL LAW. been unavailing, for in the parliamentary remonstrance anno 5 Ric. II. is set forth that the Commons were from time to time “pillaged and ruined, partly by the king’s purveyors of the household and others, who pay nothing for what they take—partly by the subsidies and tallages raised upon them ” (4). Notwithstanding the greatness of the mischief thus insisted on, and the urgent language of the Commons, the Crown continued in the enjoyment of this peculiar privilege of purveyance, which originally enured to it in virtue of its feudal sovereignty, till A.D. 1660, when, having fallen into disuse during the Commonwealth, the pre- rogative was relinquished by the stat. 12 Car. 2, c. 24 (2), intitled, “An Act for taking away the Court of Wards and Liveries and Tenures in Capite, and by Knights’ Ser- vice and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof.” : II. Subsidies granted to the Crown by parliament were of two kinds :— (1.) Tonnage and poundage granted to the sovereign originally for years, though afterwards for life (m), “ for the (k) See also 28 Hen. 6,c.1; 2& 8 Edw. 6, ¢ 3. (l) Chitt. Pre. Cr. p. 213. (m) In 12 Rep. 34, we read as fol- lows: ‘‘At the beginning of the reigns of kings it hath for a long time been used by authority and consent of par- liament to grant to the king certain subsidies of tonnage and poundage for term of his life, which began in such form 2 & 3 Hen. 5, in the 31 Hen. 6, ce, 8, and 12 Edw, 4, ¢, 3, for the de- fence of the realm and maintenance of certain wars by Act of Parliament, which proves that the king by his own power cannot impose it but by consent of parliament.” Sir W. Blackstone (1 Com. 316—7) says that ‘from the time of Henry 6 till that of Charles 1 the above duties were granted for life; but the last- named sovereign unconstitutionally levied them for many years without the consent of parliament. So James 2, on his accession, issued . @ proclamation ordering the customs and excise to be paid to him as they had been to his predecessor — this Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 397 keeping and safeguard of the seas, and for intercourse of 47™70 merchants, safely to come into this realm, and safely to goa. Suip- pass out of the same.” Poundage was an ad valorem money. duty upon dry, goods, at specified rates, and tonnage was \y payable upon wine imported into or exported from the kingdom. = (2.) Aids were granted by parliament to the Crown, Aids. leviable on the land and goods of the subject, after certain fixed rates, “to such ends and for such considera- tions,” and to be paid at “such times” as in the Act granting the subsidy might appear. Tenths and fifteenths were temporary aids issuing out of personal property, granted to the king by parliament. Such an aid formerly signified the real tenth or fifteenth part of all moveables or personalty belonging to the sub- ject (n). Tenths are said to have been: first granted under Henry IL. though afterwards fifteenths were more usually granted. Further, the amount of these taxes was originally uncertain,—they were levied by assessments made at every fresh grant by the Commons. In the 8 Edw. IIL, however, by virtue of commissions issued by the Crown into every county, a new taxation was made, and recorded in the Exchequer, of every city, borough, and town in England ; and from that date, when a fifteenth had been granted by parliament, the inhabitants of each city or borough rated themselves for payment thereof according to the scale of assessment predetermined, and returned the amount when raised into the Exchequer (0). Besides legitimate methods of supplying the pecuniary requirements of the sovereign such as have been noticed, assumption of power by him being (n) 1 Bla. Com. 309, clearly illegal.—Hume, Hist. Eng., (0) 2 Inst. 77; 1 Bla. Com. 309, vol. viii. p. 216. 310. Digitized by Microsoft® 398 Note To BATES’s CaSE AND THE CASE OF Surp- MONEY. Benevo- lences. CONSTITUTIONAL LAW. others very questionable in their nature were adopted, of which may be mentioned benevolences, loans, and the infliction of excessive fines, The practice of raising money under the semblance of a voluntary loan, or benevolence, was occasionally resorted to by our kings: for instance, by Henry III. Richard IL, and Edward IV. (p). The last-named monarch, ob- serves Lord Coke (g), had a subsidy granted him by parliament in the twelfth year of his reign, and “ because he could have no more by parliament, and without a par- liament he could not have any subsidy to be levied of the lands and goods of the subject, he invented this shift or device.” In prospect of a war with France, the king called before him the wealthiest of his subjects to declare to them his necessity—his purpose to levy war for the © safety of the kingdom, and demanded of each of them a sum of money. The expedient was successful, and Was resorted to by succeeding sovereigns (r). Against the compulsory collection of benevolences, sta- tutes (s) were from time to time enacted, and the intoler- able exactions enforced by Empson and Dudley during the reign of Henry VIL, brought upon those offenders condign punishment on the accession of his son. Long after this period, however, it was insisted (¢) that gifts to the (p) Hume, Hist. Eng., vol. iii. p. 253; 2 Millar, Eng. Gov., pp. 410— 413. (q) 12 Rep. 119. (v) 12 Rep. 120. (s) See particularly 1 Ric, 3, c. 2, the preamble of which points at ‘a new imposition called a benevolence, whereby divers years the subjects and Commons of this land, against their wills and freedoms, have paid great sums of money to their almost utter destruction ;” and the body of which enacts that the king’s subjects shall thenceforth ‘‘in no wise be charged by none such charge, exaction, or im- position called a benevolence, nor by such like charge.” (t) Note by Mr. Hargrave, 2 St. Tr. 899, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. Crown out of parliament, if really voluntary, were lawful ; and, according to Lord Coke (wu), so late as the 40th » year of Queen Elizabeth, it was resolved by all the judges that a free grant to the queen without coercion was lawful. In the Case of Mr. St. John (v), before the Star Chamber, a severe judgment was passed on the accused by that arbitrary tribunal for writing and publishing a paper against a benevolence collected in the 13th Jas. I, under the authority of the Privy Council only, with- out the consent of parliament ; and Lord Bacon, in his speech for the prosecution, on an information; ore tenus, by him as Attorney-General, there lays great stress on the fact that the benevolence in question was not compulsory. There was no proportion, he says, or rate of contribution indicated—there was no menace of any that should refuse to pay it, no reproof of any that did refuse, no certifying of the names of any who resisted payment. And, further, Lord Bacon insists on the difference between a benevolence and an imposition or exaction called a benevolence— between that which “the subject of his good-will would give,” and that which “the king of his good-will would take.” 399 Norte To BateEs's CasE- AND HE CASE OF Sure- MONEY. Under King Charles I. forced loans, as we have already Forced seen (a), led to the proceedings in Darnel’s Case, and to the debates in parliament concerning the liberty of the subject. Sir E. Coke on that occasion declared (y) that “the king cannot tax any by way of loans,” and in sup- port of his opinion cited a Petition of the Commons (2), (u) 12 Rep. 120. justification of the imposition of taxes (v) 28. Tr. 899, by the Crown without consent of par- (x) Ante, p.162, Seealsothe pro- liament, a.p. 1627.—2 St. Tr. 1449. ceedings against Archbishop Abbot for (y) 3 St. Tr. 68. refusing to license Dr. Sibthorp’s ser- (2) 1 Cobbett, Parl. Hist., p. 117. mon in furtherance of a loan, andin - Digitized by Microsoft® loans, 400 Nore To BatEs’s Cask AND THE CasE OF Suip- MONEY. CONSTITUTIONAL LAW. (A.D. 1352), “ worthy to be written in letters of gold,” that “loans against the will of the subject are against reason and the franchises of the land.” “The lord,” he said, “may tax his villein high or low, but it is against the franchises of the land for freemen to be taxed but by their consent in*parliament.” Conformably to the opinion thus expressed, the Petition of Right, after setting forth that by authority of parliament in the 26th Edw. II. (a), “it is declared and enacted that from thenceforth no person should be compelled to make any loans to the king against his will, because such loans were against reason and the franchise of the land; and by other laws of this realm it is provided that none should be charged by any charge or imposition called a benevolence, nor by such like charge,” complains as follows :— “Yet nevertheless, of late, divers Commissions, directed to sundry commissioners in several counties, with instruc- tions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your Majesty, and many of them, upon their refusal so to do, have had an oath admi- nistered unto them, not warrantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance, and give attendance before your Privy Council, and in other places; and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted. And divers other charges have been laid and levied upon your people in several counties, by lords lieutenants, deputy lieutenants, commissioners for musters, justices of peace, and others, by command and direction from your Majesty, (a) Et vide Rot. Parl. vol. ii. p. 288, No. 11. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. or your Privy Council, against the laws and free customs of this realm.” And the Petition accordingly prays in this behalf (1), “That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, with- out common consent by Act of Parliament ; and (2), that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same, or for refusal thereof.” The compulsory collecting of money by the Crown, whether as a loan or a benevolence, was thus explicitly declared to be illegal, and at a later period was supplied a seeming deficiency in the statute of Richard III. (6), and the Petition of Right by the 13 Car. 2, c 4 (@), which authorised the king to issue commissions under the Great Seal, for receiving voluntary subscriptions from his subjects, and which declared that no commissions or aids of that nature can be issued or levied but by consent of Parliament. The aim of this statute, Mr. Hargrave ob- serves (d), was to condemn benevolences by solicitation of commissioners appointed by the Crown, and to affirm not merely that compulsory benevolences are unlawful, but that all commissions from the Crown to solicit and receive voluntary gifts are also unconstitutional; that the king cannot legally thus invade the property of the subject under the specious pretext that he does so with the sub- ject’s consent—for a formal solicitation from the Crown (b) Cited ante, p. 398, n. (s). for subscribing; and concludes with (c) This statute authorised the king declaring, that no commissions or aids to issue commissions under the great’ of this nature can be issued out or seal, for receiving voluntary subscrip- levied but by authority of Parlia- tions for the supply of his occasions; ment. but limited commoners to 2002. and (d) Prefatory remarks to Mr. St. peers to 4001. each, as also the time John's Case, 2 St. Tr. 900. DD Digitized by Microsoft® 401 Nore To BatEs’s CASE AND THE Case OF Sxp- MONEY. 402 Notez To BateEs’s CASE AND THE CASE OF SHIp- MONEY. Fines, &c. CONSTITUTIONAL LAW. is almost tantamount to compulsion—and a request by its commissioners or agents might be so worded or conveyed as to be equivalent to a command. The king, by virtue of his prerogative, was entitled to all fines and amercements (e) and penalties, either wholly or in part (f), and, to prevent the undue exercise of this prerogative, various statutory restrictions were imposed, For instance, the fourteenth chapter of Henry III.’s Magna Carta (g) declares that “a freeman shall not be amerced for a small fault, but after the manner of the fault—and for a great fault after the greatness thereof—saving to him his ‘contenement,’ and a merchant likewise—saving to him his merchandize.” We must understand the word “ con- tenement,” occurring in the foregoing passage, to signify that which is necessary for the support and maintenance of a man in his state or condition of life. And, so under- standing it, this well-known chapter of Magna Carta forbids the setting upon any man of an amercement heavier than his circumstances or estate would bear— saving, as Lord Coke says, in his commentary on this passage (h), to the soldier his armour, to the scholar his books, and to the villein the cart or wainage with which his ignoble service was performed. That such is the true meaning of Magna Carta may be inferred, inter alia, from the Statute of Westminster, L, 3 Edw. 1, «. 6, which enacts that no man be amerced without reasonable (e) An amercement differed from a fine in this respect, that the former are such as are arbitrarily imposed.” —Toml. Law Dict. ad verb, ‘« Amer- was assessed by the country, whereas the latter was imposed by the Court. — Griesley’s Case, 8 Rep. 39 a. Again: ‘‘ Fines are said to be pun- ishments certain, and grow expressly from some statute; but amercements ciament” ; et vide Godfrey’s Case, 11 “Rep. 43 b, 44 a. (f) Com, Dig. Prerogative (D. 54 b, 55, 58, 60). (g) Vide Mag. Cart. of John, v. 28. (h) 2 Inst. 28, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 403 cause, and according to the quantity of his trespass, that oT® 70 is to say, every freeman, saving his freehold—a merchant, ,s Gace o saving his merchandize—and a villein, saving his wainage. voxev. Magna Carta, as Lord Coke remarks (i), “extends to amercements, and not to fines imposed by any Court of Justice.’ Within the spirit and equity, however, of this enactment, fines imposed judicially must certainly be brought ; such fines ought to be moderate and “ within bounds” (&), for “where a court has a power of setting fines, that must be understood of setting reasonable fines” (0): an excessive fine “is against law, and shall not bind, for excessus im re quélibet jure reprobatur com- muni (m).” And accordingly the counsel for Mr. Haamp- den (7), who was convicted of a misdemeanor anno 36 Car. IL, urges upon the court in mitigation of punishment, that his client was possessed but of a moderate estate, and that according to Magna Carta, “there should be a salvo contenemento in all fines.” So in O'Connell v. Reg. (0), Lord Campbell refers to Magna Carta as pro- viding that “no fine shall be imposed beyond what the party is able to pay.” On many occasions which the reader of history will call to mind—especially during the seventeenth century (p)— in violation of law were ruinous fines inflicted, as well by the Star-Chamber as by the Superior Courts; and hence the declaration in the Bill of Rights that “ excessive fines ought not to be imposed” (gq), grounded on the aver- (4) 2 Inst. 27; 8 Rep. 89 b, 40a. (p) See, for instance, J. Hampden’ s (k) 18t. Tr., Pref. by Mr. Emlyn, Case, 9 St. Tr. 1058, 1126 ; Sir S. Pp. XXxv. Barnardiston’ s Case, Id., 1333, 1371; (l) Id, ibid., citing 8 Rep. 38 b. Earl of Devonshire s Case, 11 St. Tr. (m) Godfrey s Case, 11 Rep. 44 a. 1353, 1357, 1370; Williams's Case, (nm) 9 St. Tr. 1054, 1124, 13 St. Tr. 1436. (o) 11 Cl. & F. 406. (q) Enactment 10. DD 2 Digitized by Microsoft® 404 CONSTITUTIONAL LAW. Notz 70 ment (7) that such had been the practice in the reign of vee axe. King James IL, who in this and other ways, “ by the THE CASE OF uuxsy, assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the laws and liberties of this kingdom” (s). Remarks on More dangerous to the subject than any of the uncon- cipal Cases. stitutional acts already noticed were those the nature of which appears from our Leading Cases, for if the sovereign could proprio vigore by his letters patent impose taxes upon imports, and if, in accordance with the answers given by subservient judges to the questions ante (t), payment of sums assessed for the service of the Crown at its plea- sure could be enforced against the subject, not only would the subject’s right of property be rudely shaken, but his personal liberty would be exposed to the extremest peril. arcumns Perhaps the most weighty arguments urged against the pen °° ™™ prerogative in the Principal Cases are as under :— I. As to the right of the Crown to impose duties at the ports. Admitting that custom is due by the common law, it must, like other revenues accorded to the Crown, be certain, or reducible to a certainty, by some legal course. If an offensive war be contemplated, aid may be obtained from parliament, and subjects holding under military tenures would be bound to serve. Should a defensive war be necessitated by reason of invasion, “every subject within the land, high and low, whether he hold of the king or not, may be compelled, at his own charge, to serve in person” (w). (r) Preamble 11. “‘reasons for the disaffection of the (s) The practice of imposing exor- nation to the late Government,” 9 St. bitant fines is mentioned by Sir John Tr. 426, (t) P. 309 Hawles, Solicitor-General to King (u) Ante, p. 259. Chitt, Pre. Cr. William III., as the first of six op. 18; Fost. Cr. L, 158, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. An increase of the customs has, when needed, been 405 Note To Batrs’s CASE AND obtained by our kings since the time of Henry III. by grant was tase or from parliament, or by way of loan from merchants, or in consideration of liberties and immunities conceded to traders, or under the colour of grants from merchants. From the Conquest until the reign of Queen Mary not more than six impositions resembling that before us were laid by the sovereign, and these were tolerated because they were moderate in amount, laid in times of great necessity, and to endure for a very short period. Each of such impositions, nevertheless, was complained of, and upon complaint was taken away. The impositions laid by Queen Mary in excess of what had been granted to her by parliament were complained of in the first year of Queen Elizabeth (x), and “no sanc- tion, judicial or extrajudicial, was ever obtained” in her reign for this excess of the prerogative (y). Lastly. The king’s power to impose, even if it existed at common law (2), was expressly taken away by sta- tute (a). Srir- MONEY, II. Regarding the right of the Crown to levy ship- Arguments against the money, the main inquiry must be, whether the method ! adopted was in conformity with our law and constitution. Now the methods provided by law for defence of the realm, whether by sea or land, were, Ist, by tenure of land ; 2ndly, by certain prerogatives vested in the Crown, and the profits and emoluments, such as wards, marriages, escheats, and forfeitures thence resulting; 3rdly, by parti- (x) Dyer, 164. subject with an imposition where he (y) Per Mr. Hargrave, 2 St. Tr. has no benefit by it, or a quid pro 377, 378 ; 1 Hall. Const, Hist. Eng., quo.” Com. Dig. Prerogative (D. 48): 8th ed., pp. 316, 317. see Chitt. Pre, Cr. 386. (2) ‘‘The king cannot charge the (a) Ante, pp. 288 e¢ seq. Digitized by Microsoft® vying of . iP: le ship-money * 406 CONSTITUTIONAL LAW. Nore To : ‘ in time of Nore 7? cular supplies of money for defence of the sea Ae AND danger, sc., the great and petty customs, aids, subsidies, wouEY, tonnage and poundage, and the service of the Cinque “~~ Ports. In extraordinary emergencies our kings have either had recourse to parliament, or have obtained sup- plies of money (1) by loans and benevolences, (2) by anticipating their revenues; but prior to the time of Charles I. had on no occasion asserted a prerogative claim to ship- money. Other arguments against the claim are founded (1) on express statutes (b), which in various ways provide for the defence of the realm, (2) on the constitutional prin- ciple that the king cannot, without his consent, take away the property of the subject (c). Of the prerogatives respectively asserted by James I. and his son to impose and to levy ship-money, each was in turn successfully resisted and annulled. Against the former, as we have already seen (d), the Commons most urgently remonstrated, and by successive statutes it was altogether repudiated and denied. For the stat. 16 Car. 1, ce. 8, granting tonnage and poundage to the king, declared and enacted as follows :—That “it is and hath been the ancient right of the subjects of this realm that no subsidy, custom, impost, or other charge whatsoever, ought [to] or may be laid or imposed upon any merchandize exported or imported by subjects, denizens or aliens, without common consent in parliament.” Moreover, as observed by Mr. Har- grave (¢), “One of the first Acts (f) after the Restoration was a grant of tonnage and poundage, with words which renewed a part of the former declarations against taxing (6) Enumerated, ante, pp. 323, et (d) Ante, p. 302. seq. (e) 2S8t. Tr. 373. (c) Ante, p, 234, “(f) 12 Car. 2, ¢. 4, », 6. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. by prerogative; for it anxiously recited, that ‘no rates can be imposed on merchandize imported or exported by subjects or aliens, but by common consent in par- liament.” And the Bill of Rights, as we have previ- ously shown, emphatically declared against all prerogative taxation (g). The asserted right of the Crown to levy ship-money was extinguished by the stat. 16 Car. 1, c 14 (h), and is likewise refuted by the language of the Bill of Rights. Such being the signal triumph of constitutional princi- ples over doctrines irrational and oppressive, this Note may fittingly conclude in the remarkable language of Lord Hale (2), who says, “It is a thing most certain and unques- tionable, by the law of England,” that “no common aid or tax can be imposed upon the subjects, without consent in parliament; and no dispensation or non obstante can avail to make it good or effectual ; no, not for the maintaining of a military force, though in case of necessity. And that man that will teach, that in all these cases a tacit con- dition is implied, to let loose laws of this importance, and to subject the estates and properties of the subjects to arbitrary impositions, notwithstanding the solemnest en- gagements to the contrary—l. Takes upon him to be wiser than the king himself, who hath not only granted, but judged the contrary—2. Takes upon him to be wiser than all the estates of the kingdom, as neither just or prudent advisers for the good and safety of the kingdom —8. Goes about to break down the security of all men’s (g) Ante, p. 391. As regards the (h) Ante, p. 369. right of the Crown to levy taxes on a (i) See his ‘Reflections on Mr. conquered country, see Campbell v. Wobbes’s Dialogue of the Law,” cited Hall, 20 St. ‘Tr, 239, cited ante, by Mr. Hargrave, 2 St. Tr. 379. p. 55. mo ; ; Digitized by Microsoft® 407 Note To BatEs'3 CasE AND THE CASE OF Surp- MONEY. 408 CONSTITUTIONAL LAW. Nore ro properties and estates—4. Doth mischievously insinuate mene Axe jealousies in the minds of men, as if all the laws of the uany. kingdom might be abrogated, when the king pleaseth ; and thereby does the king and his government more mischief than he can ever recompence.” THE CASE OF THE SEVEN BISHOPS (4), 12 St. Tr. 183 (J). (4 Jac. 2, a.p. 1688.) RIGHT OF THE CROWN TO DISPENSE WITH EXISTING LAWS. The sovereign comnot, of his own authority, dispense with existing laws. It is the right of every subject of the realm to petition. : Tn the reign of James IT. various statutes of an oppres- sive character, affecting such as were not members of the Church of England, were in operation (m). On April 4th, 1687, the king issued a declaration, as follows—that none of these laws were to be put in execution :— First decla It having pleased Almighty God, not only to bring us duigence. to the imperial crowns of these kingdoms through the greatest difficulties, but to preserve us by a more than ordinary providence, upon the throne of our royal ances- tors, there is nothing now that we so earnestly desire, as to establish our government on such a foundation as may make our subjects happy, and unite them to us by incli- (k) Sancroft, archbishop of Canter- (2) 8. C., 8 Mod. 212, bury ; Lloyd, bishop of St. Asaph ; Turner, bishop of Ely ; Lake, bishop of Chichester; Kenn, bishop of Bath and Wells ; White, bishop of Peter- borough; Trelawney, bishop of Bristol. (m) Uniformity Acts, 1 Eliz, c. 2; 13 & 14 Car. 20. 4; Corporation Act, 13 Car. 2, stat. 2,¢. 1; Five Mile Act, 17 Car. 2, c. 2; Conven- ticle Act, 16 Car. 2, ¢. 4; 22 Car. 2, ce. 1; Test Act, 25 Car, 2,6. 2. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 409 nation as well as duty, which we think can be done by no TE Case means so effectually, as by granting to them the free ex- ercise of their religion for the time to come, and add that to the perfect enjoyment of their property, which has never been in any case invaded by us since our coming to the crown; which being the two things men value most, shall ever be preserved in these kingdoms during our reign over them, as the truest methods of our peace, and our glory. We cannot but heartily wish, as it will easily be believed, that the people of our dominions were members of the Catholic Church, yet we humbly thank Almighty God, it is, and hath long time been our constant sense and opinion (which upon divers occasions we have declared), that conscience ought not to be constrained, nor people forced in matters of mere religion. It has ever been directly contrary to our inclination, as we think it is to the interest of government, which it destroys by spoiling trade, depopulating countries, and discouraging strangers; and finally, that it never obtained the end for which it was employed. And in this we are the more confirmed by the reflections we have made upon the conduct of the four last reigns. For after all the frequent and pressing endeavours that were used in each of them, to reduce these kingdoms to an exact conformity in religion, it is visible, that success has not answered the design; and that the difficulty is invincible, We therefore, out of our princely care and affection unto all our loving subjects, that they may live at ease and quiet, and for the increase of trade, and en- couragement to strangers, have thought fit, by virtue of our royal prerogative, to issue forth this our declaration of indulgence, making no doubt of the concurrence of our two houses of parliament, when we shall think it conve- nient for them to meet. In the first place, we do declare, that we will protect and maintain our archbishops, bishops, and clergy, and all other our subjects of the Church of England, in the free exercise of their religion, as by law established, and in the quiet and full enjoyment of all Digitized by Microsoft® OF THE SevEN BisHops, 410 CONSTITUTIONAL LAW. Tue Case their possessions, without any molestation or disturbance orf THE Bevex whatsoever. We do likewise declare, that it is our royal will — and pleasure, that from henceforth the execution of all and all manner of penal laws in matters ecclesiastical, for not coming to church, or not receiving the sacrament, or for any other nonconformity to the religion established, or for or by the reason of the exercise of religion in any manner. whatsoever, be immediately suspended, and the further execution of the said penal laws, and every of them is hereby suspended. And to the end that by the liberty hereby granted, the peace and security of our government, in the practice thereof, may not be endangered, we have thought fit, and do hereby straitly charge and command all our loving subjects, that as we do freely give them leave to meet and serve God after their own way and manner, be it in private houses, or places purposely hired or built for that use, so that they take special care that nothing be preached or taught amongst them which may any ways tend to alienate the hearts of our people from us or our government, and that their meetings and assemblies be peaceably, openly, and publicly held, and all persons freely admitted to them; and that they do signify and make known to some one or more of the next justices of the peace, what place or places they set apart for those uses. And that all our subjects may enjoy such their religious assemblies with greater assurance and protection, we have thought it requisite, and do hereby command, that no disturbance of any kind be made or given unto them, under pain of our displeasure, and to be further proceeded against with the uttermost severity, And forasmuch as we are desirous to have the benefit of the service of all our loving subjects, which by the law of nature is inseparably annexed to and inherent in our royal person, and that none of our subjects may for the future be under any discouragement or disability (who are otherwise well in- clined and fit to serve us) by reason of some oaths or tests that have been usually administered on such occasions, we Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. do hereby further declare, that it is our royal will and pleasure, that the oaths commonly called the oaths of supremacy and allegiance, and also the several tests and declarations mentioned in the Acts of Parliament made in the 25th and 30th years of the reign of our late royal brother King Charles IL, shall not at any time hereafter be required to be taken, declared, or subscribed by any person or persons whatsoever, who is or shall be employed in any office or place of trust, either civil or military, under us, or in our government. And we do further declare it to be our pleasure and intention, from time to time hereafter, to grant our royal dispensations under our great seal, to all our loving subjects so to be employed, who shall not take the said oaths, or subscribe or declare the said tests or declarations in the above-mentioned acts, and every of them. And to the end that all our loving subjects may receive and enjoy the full benefit and advan- tage of our gracious indulgence hereby intended, and may be acquitted and discharged from all pains, penalties, for- feitures, and disabilities by them or any of them incurred or forfeited, or which they shall or may at any time here- after be liable to, for or by reason of their nonconformity, or the exercise of their religion ; and from all suits, trou- bles or disturbances for the same ; we do hereby give our free and ample pardon unto all nonconformists, recusants, and other our loving subjects for all crimes and things by them committed or done, contrary te the penal laws for- merly made relating to religion, and the profession or exercise thereof; hereby declaring, that this our royal pardon and indemnity shall be as good and effectual to all intents and purposes, as if every individual person had been therein particularly named, or had particular pardons under our great seal, which we do likewise declare shall from time to time be granted unto any person or persons desiring the same; willing and requiring our judges, justices, and other officers, to take notice of and obey our royal will and pleasure herein-before declared, And Digitized by Microsoft® 411 THE Case OF THE SEVEN BisHOrs. 412 THE Case OF THE SEvEN BIsHors. Second de- elaration of indulgence, CONSTITUTIONAL LAW. although the freedom and assurance we have hereby given in relation to religion and property, might be sufficient to remove from the minds of our loving subjects all fears and jealousies in relation to either; yet we have thought fit further to declare, that we will maintain them in all their properties and possessions, as well of church and abbey lands, as in any other their lands and properties whatso- ever.” Nothing having been actually done to give effect to the foregoing declaration, the king on April 27th, in the follow- ing year, issued another in the terms following :— “Our conduct has been such in all times, as ought to have persuaded the world, that we are firm and constant to our resolutions ; yet, that easy people may not be abused by the malice of crafty, wicked men, we think fit to declare, that our intentions are not changed since the 4th of April, 1687, when we issued out our declaration for liberty of conscience in the following terms :— [Here followed a copy of the previous declaration. ] “ Ever since we granted this indulgence, we have made it our principal care to see it preserved without distinc- tion, as we are encouraged to do daily by multitudes of addresses, and many other assurances we received from our subjects of all persuasions, as testimonies of their satisfaction and duty, the effects of which we doubt not but the next parliament will plainly show; and that it will not be in vain that we have resolved to use our utter- most endeavours to establish liberty of conscience on such just and equal foundations as will render it unalterable, and secure to all people the free exercise of their religion for ever; by which future ages may reap the benefit of what is so undoubtedly for the general good of the whole kingdom. It is such a security we desire, without the burthen and constraint of oaths and tests, which have been unhappily made by some governments, but could never support any. Nor should men be advanced by such means to offices and employments, which ought to be the Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 413 reward of services, fidelity and merit. We must conclude, TH Case that not only good Christians will join in this, but who- ever is concerned for the increase of the wealth and power of the nation. It would perhaps prejudice some of our neighbours, who might lose part of those vast advantages they now enjoy, if liberty of conscience were settled in these kingdoms, which are above all others most capable of improvements, and of commanding the trade of the world. In pursuance of this great work, we have been forced to make many changes both of civil and military offices throughout our dominions, not thinking any ought to be employed in our service, who will not contribute towards the establishing the peace and great- ness of their country, which we most earnestly desire, as unbiassed men may see by the whole conduct of our government, and by the condition of our fleet, and of our armies, which, with good management, shall be constantly the same, and greater, if the safety or honour of the nation require it. We recommend these considerations to all our subjects, and that they will reflect on their present ease and happiness, how for above three years, that it hath pleased God to permit us to reign over these king- doms, we have not appeared to be that prince our enemies would have made the world afraid of; our chief aim having been not to be the oppressor, but the father of our people, of which we can give no better evidence than by conjuring them to lay aside all private animosities, as well as groundless jealousies, and to choose such members of parliament as may do their part to finish what we have begun, for the advantage of the monarchy over which Almighty God hath placed us, being resolved to call a par- liament, that shall meet in November next at farthest,” A week after the above proclamation (May 4th, 1688), the following Order in Council was issued :-— OF THE SEVEN BIsHOPs. “It is this day ordered by his Majesty in Council, that order in his Majesty’s late gracious declaration, bearing date the 27th of April last, be read at the usual time of divine Digitized by Microsoft® Council. 414 CONSTITUTIONAL LAW. Tus Case service, upon the 20th and 27th of this month, in all Bevex churches and chapels within the cities of London and po Westminster, and ten miles thereabout ; and upon the 3rd and 10th of June next, in all other churches and chapels throughout this kingdom. And it is hereby further ordered, that the right reverend the bishops cause the said declara- tion to be sent and distributed throughout their several and respective dioceses, to be read accordingly.” The above Order in Council was gazetted May ‘7th, allowing the bishops and clergy scarcely a fortnight for deciding as to the course they should pursue. Various meetings were, however, held, and letters were despatched to many of the bishops, requesting their presence in London to confer with the Archbishop of Canterbury. Of these letters some were intercepted, and of the prelates some were unable to attend; nevertheless on May 18th, a meeting of eminent divines took place at Lambeth, in pursuance of which a petition was prepared by the Arch- bishop in the following terms :— qhe Batt “To the King’s most excellent Majesty. “The humble petition of William Archbishop of Canter- bury, and of divers of the suffragan Bishops of that province, now present with him, in behalf of themselves and others of their absent brethren, and of the Clergy of their respective Dioceses, ‘“Humbly sheweth ; that the great averseness they find in themselves to the distributing and publishing in all their churches your Majesty’s late declaration for liberty of conscience, proceedeth neither from any want of duty and obedience to your Majesty—(our holy mother, the Church of England, being both in her principles, and in her constant practice, unquestionably loyal, and having, to her great honour, been more than once publicly acknow- ledged to be so by your-gracious Majesty),—nor yet from any want of due tenderness to dissenters, in relation to whom they are willing to come to such a temper as shall be thought fit, when that matter shall be considered and Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. settled in parliament and convocation. But among many other considerations, from this especially, because that declaration is founded upon such a dispensing power, as hath been often declared illegal in parliament, and parti- cularly in the years 1662, and 1672, and the beginning of your Majesty's reign ; and is a matter of so great moment and consequence to the whole nation, both in church and state, that your petitioners cannot in prudence, honour, or conscience, so far make themselves parties to it, as the distribution of it all over the nation, and the solemn publication of it once and again, even in God’s house, and in the time of his divine service, must amount to, in common and reasonable construction. “Your petitioners therefore most humbly and earnestly beseech your Majesty, that you will be graciously pleased not to insist upon their distributing and reading your Majesty's said declaration :—And your petitioners (as in duty bound) shall ever pray, &c.” (7). In the evening of the same day (May 18), the petition being finished, all the subscribers (except the archbishop, who had been forbidden the court almost two years be- fore) went over to Whitehall to deliver it to the king. In order thereto the Bishop of St. Asaph went first to the Earl of Middleton (principal secretary), in the name of all the rest, to desire his assistance in introducing them to his Majesty ; but he had been ill for a fortnight before, and was confined to his chamber. Then St. Asaph (his brethren staying at the Earl of Dartmouth’s house) went, and made the like application to the Earl of Sunderland, (n) Signed W. Cant., W. Asaph, Approbo H. London, May 23, 1688. Fran, Ely, Jo, Cicestr., Tho. Bath May 23, William Norwich. and Wells, Tho, Petriburgens, Jon. May 21, Robert Gloucester, Bristol. May 26, Seth Sarum. On two other copies of the above P. Winchester. petition, one of which is in the arch- Tho. Exon, May 29, 1688. bishop’s hand, are the following sub- See 1 Gutch, Collectanea Curiosa, scriptions :— 337. Digitized by Microsoft® 415 THE Cask OF THY SEVEN BIsHOPs. 416 CONSTITUTIONAL LAW. Tar Case desiring him to peruse the petition, and acquaint his frvex Majesty with it, that he might not be surprised at the — delivery of it ; and withal to beseech his Majesty to assign the time and place, when and where the bishops might all attend him, and present their petition. The earl refused to inspect the petition, but acquainted the king with their desire ; and they were presently brought to the king in his closet within his bed-chamber: where the Bishop of St. Asaph with the rest (all being upon their knees), delivered their petition to his Majesty. The king was pleased (at first) to receive the petitioners and their petition graciously, and upon the first opening of it to say, this is my lord of Canterbury’s own hand: to which the bishops replied, yes, sir, it is his own hand. But the king, having read it over, and then, folding it up, told (0) them angrily, that he considered it a standard of rebellion, that God had given him the dispensing power and he would maintain it, and that there were seven thousand men of the Church of England who had not bowed the knee to Baal. He then dismissed them with threats. The same evening the document appeared in print in every part of London (p). On the Sunday morning specified in the declaration it was read in four churches only throughout London and its neighbourhood, and thereupon from each of such churches the congregation departed in disgust (q). (0) ‘‘Upon the reading of it the king startled, and shewed himself to immediately retired.” Kennett, Hist. Eng., vol. 3, p. 511, 2nd ed. be very much incensed, and made this answer in a very angry manner : L have heard of this before, but did not believe it. I did not expect this from the Church of England, especially from some of you. If I change my mind, youshall hear from me ; if not, I expect my command shall be obeyed, The bishops replied, we resign our- selves to the will of God; and then (p) 2 Macaulay, Hist, Eng. 358. Burnet says this did not happen through any act of the bishops, but must have been done by some of those to whom the king shewed it. t Bur- net, Hist. of his own Times, 741; vide Oldmixon, 732, (q) 2 Rapin, 763; 83 Kennett, Hist. Eng, 511, Digitized by Microsoft® ' DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 417 Thus things for some time remained, until Sunday, May Tax Case 27th, late in the evening of which day one of his Majesty's messengers served the Archbishop of Canterbury with the following summons, signed by Sunderland, the president of the council :— “These are in his Majesty’s name to require William Lord Archbishop of Canterbury, to appear personally before his Majesty in council upon the 8th day of June next, at 5 o'clock in the afternoon, to answer to such matters of misdemeanor as on his Majesty’s behalf shall then and there be objected against him : and you are hereby required to summon the said William Lord Archbishop of Canter- bury to appear accordingly: and for so doing this shall be your warrant.” As many of the petitioners as were in town (viz., the Bishops of Ely, Chichester, and Peterborough) were at the same time served with the like summons by other of the king’s messengers ; and it was sent after the rest, who had gone home into their dioceses. On Friday, June 8th, at 5 o’clock in the afternoon, his Majesty came into the privy council, and about half an hour afterwards the archbishop and six bishops, who were attending in the next room, were called into the council chamber, and graciously received by his Majesty. The Lord Chancellor took a paper then lying on the table, and showing it to the archbishop, asked him in words to this effect—(r) (r) Tindal, in a note to his trans- lation of Rapin, says: ‘‘It seems as the bishops were going to the council, they were advised to remember, that no man was obliged by the law to accuse himself. Accordingly, when the king in council, holding the peti- tion in his hand, asked them whether they had signed that paper? they made a low bow and said nothing. What! says the king, do you deny your own hands? Upon which they silently bowed again; then the king told them, if they would own it to be their hands, upon his royal word, not a hair of their head should be touched ; whereupon the archbishop said, Relying on your Majesty’s word, I confess it to be my hand. And so said all the rest. Then being ordered to withdraw, when they were called in again, they found the king vanished’ EE Digitized by Microsoft® OF THE SEvEN BisHoprs. 418 CONSTITUTIONAL LAW. tmz case Ig this the petition that was written and signed by Seven your grace, and which these bishops presented to his et Majesty ? The archbishop received the paper from the Lord Chan- cellor, and addressing himself to his Majesty, said to this purpose— Sir, Iam called hither as a criminal; which I never was before in my life, and little thought I ever should be, especially before your Majesty: but since it is my un- happiness to be so at this time, I hope your Majesty will not be offended, that I am cautious of answering questions. No man is obliged to answer questions that may tend to the accusing of himself. His Majesty called this chicanery, and hoped he would not deny his hand. The archbishop still insisted upon it, that there could be no other end of this question, but to draw such an answer from him, as might afford ground for an accusa- tion ; and therefore desired there might be no answer required of him. The Bishop of St. Asaph said, All divines of all Christian churches agree in this, that no man in our circumstances is obliged to answer any such question. The king still pressing for an answer with some seeming impatience, the archbishop said, Sir, though we are not obliged to give any answer to this question, yet, if your Majesty lays your commands upon us, we shall answer it, in trust upon your Majesty’s justice and genero- sity, that we shall not suffer for our obedience, as we must, if our answer should be brought in evidence against us. His Majesty said, No; I will not command you ; if you will deny your own hands, I know not what to say to you, &c, The Lord Chancellor said, Withdraw. After about half a quarter of an hour they were called in again: then the Lord Chancellor said, his Majesty has commanded me and Jefferies in the chair; who, using particulars from the late Bishop of them very roughly, sent them to the Durham’s own mouth.” 2 Rapin, Tower. The translator had these 763, note, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 419 to require you to answer this question—Whether these be Tae Cass himself also said, I command you to answer this question. Then the archbishop took the petition, and having read it over, said, I own that I writ this petition, and that this is my hand. Then the Lord Chancellor asked each of the bishops ; and they all acknowledged their hands, and that they delivered this petition. Then they were commanded to withdraw. After a while they were called in a third time, and were then told that a criminal information for libel would be exhibited against them in the King’s Bench, and were called on to enter into recognisances. They re- fused to do so, insisting on their privilege as peers. They were threatened with being sent to the Tower if they persisted in their refusal; this threat having no effect upon them, the following warrant was drawn up for their com- mittal by the privy council -— “These are in his Majesty's name and by his command to require you to take into your custody the persons of William Lord Archbishop of Canterbury, William Lord Bishop of St. Asaph, Francis Lord Bishop of Ely, John Lord Bishop of Chichester, Thomas Lord Bishop of Bath and Wells, Thomas Lord Bishop of Peterborough, and Jonathan Bishop of Bristol, for contriving, making and publishing a seditious libel in writing, against his Majesty, and his government, and them safely to keep in your custody, until they shall be delivered by due course of law: for which this shall be your sufficient warrant. At the Council Chamber in Whitehall, this 8th day of June, 1688. . “To the Lieutenant of the Tower of London. “[Signed by Jefferies, Sunderland, and several other members of the privy council].” The seven bishops were accordingly sent to the Tower by water, and kept there till the first day of term (June 15th), when they were brought before the King’s Bench for trial, EE2 Digitized by Microsoft® OF THE your hands that are set to this petition? His Majesty : 420 Tuz Case OF THE SEVEN BisHors. Informa- tion, CONSTITUTIONAL LAW. The presiding judges were Sir Robert Wright, C. J. (9), Holloway, J. (¢), Powell, J. (w), and Allybone, J. (w). The counsel for the Crown were Sir Thomas Powis, A.G., Sir William Williams, 8.G., Sir Bartholomew Shower (Re- corder of London), Serjt. Baldock, Serjt. Trinder, and Mr. Wright. For the defendants, Sir Robert Sawyer, My. Finch, Sir Francis Pemberton, Sir Cresswell Levinz, Mr. Pollexfen, Sir George Treby, and Mr. Somers. When the bishops were before the Court, the writ and return were read, and after much discussion as to whether the warrant of committal was legal, and whether the de- fendants could be called on to plead, the proceedings of the day terminated by the bishops all pleading Not guilty, and entering into their own recognisances to appear for trial that day fortnight (June 29th). On that day, as soon as the defendants had answered to their names, the clerk of the Court read the following information :— “Memorandum, That Sir Thos. Powis, knt., Attorney General of our lord the king, who for our said lord the king in this behalf prosecutes, came here in his own person into the court of our said lord the king, before the king himself at Westminster, on, &c.; and on the behalf of our said lord the king, out of his signal clemency, and gra- cious intention towards the subjects of his kingdom of England, by his royal prerogative, on the 4th day of April, in the 8rd year of the reign of our said lord the king, at Westminster in the county of Middlesex, did publish his royal Declaration, intituled, ‘His Majesty’s Gracious De- claration to all his loving Subjects for Liberty of Con- science,’ bearing date the same day and year, sealed with the great seal of England, in which Declaration is con- tained, &c. (y) “And the said Attorney General of our said lord the (s) 7 Foss, Judges of England, 28, (x) Ib., 209. See 1 Gutch, Col- (t) 1b., 122, ~ lectanea Curiosa, 393. () 7b, 337. (y) Ante, p. 408, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 421 king, further giveth the court here to understand and be Tae Case informed, That afterwards, to wit, on the 27th day of April, in the 4th year of the reign of our said lord the king, at Westminster aforesaid, in the county of Middlesex “aforesaid, our said lord the king, out of his like clemency and gracious intention towards his subjects of his kingdom of England, by his royal prerogative, did publish his other royal Declaration, intituled, ‘His Majesty’s Gracious De- claration, bearing date the same day and year last men- tioned, sealed with his great seal of England; in which Declaration is contained, &c. (2). “Which said royal Declaration of our said lord the king last mentioned, our said lord the king afterwards, to wit, on the 80th day of April, in the 4th year of his reign aforesaid, at Westminster aforesaid, in the county of Middlesex afore- said, did cause to be printed and published throughout all England ; and for the more solemn declaring, notification, and manifestation of his royal grace, favour, and bounty towards all his liege people, specified in the Declaration last mentioned, afterwards, to wit, on the 4th day of May, in the 4th year of his reign, at Westminster aforesaid; in the county of Middlesex aforesaid, our said lord the king in due manner did order, &c. (a). “ And further, the said Attorney General, &c., giveth the court here to understand and be informed, that after the making of the said order, to wit, on the 18th day of May, in the 4th year of the reign of our said lord the king, at Westminster aforesaid, in the county of Middlesex afore- said, [the defendants] did consult and conspire among them- selves to diminish the regal authority, and royal preroga- tive, power and government of our said lord the king, in the premises, and to infringe and elude the said order; and in prosecution and execution of the conspiracy afore- said, they the said [defendants], with force and arms, &c., at, &c., falsely, unlawfully, maliciously, seditiously, and scan- (2) Ante, p. 412. = (a) Ante, p. 413, Digitized by Microsoft® OF THE SEVEN BisHors. 422 CONSTITUTIONAL LAW. tar Case dalously did frame, compose and write, and caused to be OF THE SEVEN BIsHopPs, framed, composed and written, a certain false, feigned, malicious, pernicious, and seditious libel in writing, con- cerning our said lord the king, and his royal Declaration and order aforesaid, (under pretence of a petition,) and the same false, feigned, malicious, pernicious, and seditious libel, by them the aforesaid [defendants], with their own hands respectively bemg subscribed, on the day and year, and in the place last mentioned, in the presence of our said lord the king, with force and arms, &c. did publish and cause to be published; in which said false, feigned, malicious, pernicious, and seditious libel is contained (6), ‘The humble petition, &c. [prout before in the petition, to these words ‘ reasonable construction ’] in manifest con- tempt of our said lord the king, and of the laws of this kingdom, to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity, &c. Whereupon the said Attorney General of our said lord the king, on behalf of our said lord the king, prays the advice of the Court here in the premises, and due process of law to be made out against the aforesaid [defendants] in this behalf, to answer our said lord the king in and concerning the premises, &c.” Mr. Wright then opened the pleadings, and the Attorney General spoke as follows :— May it please your lordship, and you gentlemen of the jury, you have heard this information read by the clerk, and it has been likewise opened to you at the bar; but before we go to our evidence, perhaps it may not be amiss for us, that are of counsel for the king, now in the begin- ning of this cause, to settle the question right before you, as well to tell you what my lords the bishops are not prosecuted for, as what they are. First, I am to tell you, and I believe you cannot yourselves but observe, that my (2) It may be observed that the ment, and the prayer at the end of address to the king atthe commence- _the petition, are here omitted. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 423 lords are not prosecuted as bishops, nor much less are they Tsr Case prosécuted for any point or matter of religion, but they are prosecuted as subjects of this kingdom, and only for a temporal crime, as those that have injured and affronted the king to his very face; for it is said to be done in his own presence. In the next place, they are not prosecuted for any nonfeasance, or not doing or omitting to do any- thing, but as they are actors, for censuring of his Majesty and his government, and for giving their opinion in matters wholly relating to law and government: and I cannot omit here to take notice, that there is not any one thing that the law is more jealous of, ‘or does more care- fully provide for the prevention and punishment of, than all accusations and arraignments of the government. No man is allowed to accuse even the most inferior magistrate of any misbehaviour in his office, unless it be in a legal course, though the fact is true. No man may say of a justice of peace to his face, that he is unjust in his office (c). No man may tell a judge, either by word or petition, you have given an unjust, or an ill judgment, and I will not obey it; it is against the rules and law of the kingdom. No man may say of the great men of the nation, much less of the great officers of the kingdom, that they do act unreasonably or unjustly, or the like ; least of all may any man say any such thing of the king; for these matters tend to possess the people, that the government is ill administered ; and the consequence of that is, to set them upon desiring a reformation; and what that tends to, and will end in, we have all had a sad and too dear bought experience; the last age will abundantly satisfy us, whither such a thing does tend. Men are to take their proper remedies for redress of any grievances they lie under, and the law has provided sufficiently for that. These things are so very well known to all men of the law, and indeed to all the people of England of any under- (c) See Serjt. Levinz’s speech, post, p. 464. Digitized by Microsoft® OF THE SEVEN BisHors, ADs CONSTITUTIONAL LAW. Tar Case standing, that I need not, nor will, stand any longer upon OF THE SEVEN BisHops. it, but come to the matter that is now before you, gentle- men, to be tried. The fact that we have laid we must prove, rather to keep the formality of a trial, than to pretend to inform you or tell you what you do not know: it is publicly notorious to the whole world; but because we must go on in the regular methods of law, we shall prove the facts in the order they are laid im the information. First, we take notice, that his Majesty, of his great clemency and goodness to his people, and out of his desire that all his subjects might live easily under him (of which I think never prince gave greater or more plain evidence of his intentions that way), on the 4th of April, 1687, did issue forth his royal Declaration for liberty of conscience. This matter, without question, was welcome to all his people that stood in need of it; and those that did not, could not but say, the thing in the nature of it was very just and gracious ; but presently it must be surmised, that the king was not in earnest, and would not, nor could, make good his promise: but to take away all surmises, his Majesty was pleased by his Declaration of the 27th of April last, not only to repeat his former declaration, but likewise to renew his former promises to his people, and to assure them that he still was, and yet is, of the same opinion that he had at first declared himself to be of; nay, we further show you, that to the end that this.thing might be known to all his people, even to the meanest men, who, it may be, were not willing or able to buy the Declaration, and that the king himself might be under higher obliga- tions, if it were possible, than his own word, he was desirous it should be repeated in the churches, and read in that sacred place, that all his people might hear what he had promised, and given his own sacred word for; and he himself might be under the solemn tie and obligation to keep his word, by remembering that his promises had, by his own command, been published in the time of divine service, in the house of God; and thereupon was the Order Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 425 of Council made, that has been likewise read to you, which Tue Cass does direct, that it should be read in all the churches and chapels in the kingdom; and you have heard, and we shall prove what a return his Majesty has had for this grace and kindness of his: you ‘Il find, when they come to read that which they call a petition, all their thanks his Majesty had for his favour and goodness to his people, ’tis only hard words, and a heavy accusation, such as a private person would be'little able to bear. I will not aggravate the matter, but only say thus much, that-his Majesty, who was always a prince of as great clemency as ever this kingdom had, and who was represented for all that as a prince of the greatest cruelty, before his accession to the crown, by his enemies, is now accused by his friends for this effect of his mercy. My lord, and gentlemen of the jury, his Majesty resented this ill usage so far, that he has ordered, and thought fit to have a public vindication of his honour in this matter, by this trial ; and we shall go on to our proofs, and we do not doubt but you will do his Majesty (as you do all other persons) right. The declarations of indulgence were then read and proved, also the warrant for their being read in the churches. The original petition was put in, and much time spent in endeavouring to prove the handwriting of the bishops, which was at last done by calling Mr. Blathwayt, a clerk of the privy council, who had been present when the _ defendants were questioned by the king, and he swore. that, each of them had owned his signature (d). (d) The mode of proving a person’s handwriting is either by calling a witness who has seen him write, or one who is acquainted with his hand- writing, by having seen it in the ordinary course of business, or by having corresponded with him; Tay- lor on Evidence, 4th ed., 1557. The Common Law Procedure Act, 1864, 8. 27, enacts that ‘‘comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting the same may be submitted Digitized by Microsoft® F THE eaten Bissops, 426 CONSTITUTIONAL LAW. Ta: Cass The petition was then read, and this being done, there eaves was no proof forthcoming that it had been written in ISHOPS, — ' Middlesex ; the fact indeed was that it had been written in Surrey. The -next thing accordingly was to prove a publication in Middlesex. .The Court agreed that the presentation to the king was a publication in law (e), but there was no to the Court, and given as evidence of the genuineness or otherwise of the writing in dispute.” This provision, which only applied to Civil Courts, has been extended to Criminal cases by 28 Vict., c. 18, s. 8. (e) In Lamb's Case, 9 Rep. 59 b, it was resolved that ‘‘ every one who shall be convicted, either ought to be a contriver of a libel, or a pro- curer of the contriving of it, or a malicious publisher of it, knowing it to be a libel; for if one reads a libel, that is no publication of it, or if he hears it read, it is no publication of it, for before he reads or hears it, he cannot know it to be a libel ; or if he hears or reads it, and laughs at it, it is no publication of it; but if after he has read or heard it, he repeats it, or any part of it, in the hearing of others, or after that he knows it to be a libel, he reads it to others, that is an unlawful publication of it; or if he writes a copy of it, and does not publish it to others, it is no pub- lication of the libel; for every one who shall be convicted ought to be a contriver, procurer, or publisher of it, knowing it to be a libel. But it is great evidence that he published it, when he, knowing it to be a libel, writes a copy of it, unless afterwards he can prove that he delivered it to a magistrate to examine it; for then the act subsequent explains his inten- tion precedent.” This seems far more reasonable than the opinion of the judges in R. v. Paine, 5 Mod. 163, where it was laid down that ‘‘if one repeat and another write a libel, and a third approve what is wrote, they are all makers of it.” Although in this last case the Court were of opinion that the making a libel is an offence, though never published, it is now well established that merely writing a libel is no offence unless it be pub- lished, #.¢€., communicated to the public or some person. The law on this point will be found laid down in Wenman v. Ash, 13 ©. B. 836, where it was held a publication to send a libel in a letter to the plain- tiffs wife. When a libel has once been written or printed, any mode of exhibiting it or making it public will be considered a publication in law, and it would seem that the fact of causing a libel to be printed (if the author did not print it with his own hands), would be a publication. Burdett v. Abbot, 14 East, 1, 153. In R. v. Burdett, 4 B. & A. 95, it was held by three judges out of four, that a delivery at the post- office of a sealed letter containing a libel is a publication in the county where the post-office is situate. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 427 evidence of that publication. Various witnesses were Tu Case called to prove it, but without success; and the Chief Jus- tice had actually begun to sum up, when he was inter- rupted by one of the counsel for the defendants, and during the discussion which took place it was announced that the Karl of Sunderland could prove the presentation to the king. The Court having adjourned till the earl appeared, he was sworn, and the trial proceeded i in the following manner :— Att.-Gen. We have brought the case to this point, that this petition came to the king’s hands; that it is a petition written by my lord archbishop and subscribed by the rest of my lords the bishops ; but there is a difficulty made, whether this petition thus prepared and written was by them delivered to the king, and whether my lords the bishops were concerned in the doing of it, and were privy, or parties to the delivery? Now that which I would ask your lordship, my lord president, is, whether they did make their application to your lordship to speak to the king ? Sol.-Gen. Did they make their application to your lord- ship upon any account whatsoever ? Lord President. My lord, my lord bishop of St. Asaph, and my lord bishop of Chichester came to my office, and told me they came in the names of my lord archbishop of Canterbury, and the bishops of Ely, Bath and Wells, Bristol, and Peterborough, and themselves, with a petition, which they desired to deliver to his Majesty, and they did come to me to know which was the best way of doing it, and whether the king would give them leave to do it or not? They would have had me read their petition, but I refused it, and said, I thought it did not at all belong to me, but I would let the king know their desire, and bring them an answer immediately, what his pleasure was in it; which I did. I acquainted the king, and he commanded me to let my lords the bishops know, they Digitized by Microsoft® OF THE SEVEN BisHops, 428 CONSTITUTIONAL LAW. Tae Case might come when they pleased, and I went back and told Seven them so; upon which they went and fetched the rest of oes dhe bishops, and, when they came, immediately they went into the bed-chamber, and into another room, where the king was. This is all that I know of the matter. Sol. Gen. About what time was this, pray, my lord ? Lord President. I believe there could not be much time between my coming from the king, and their fetching their brethren, and going in to the king. Sol. Gen. They were with the king that day ? Lord President. Yes, they were. Sol. Gen. Was this before they appeared in council ? Lord President. Yes, it was several days before. Just. Allybone. Did they acquaint your lordship that their business was to deliver a petition to the king ? Lord President. Yes, they did. Sol. Gen. And they would have had my lord read it, he Says. Att. Gen. And this was the same day that they did go in to the king? Lord President. The very same day, and I think the same hour ; for it could not be much longer. L. CG. J. Will you ask my lord president any question, you that are for the defendants ? Sir R. Sawyer. No, my lord. L. C. J. Truly, I must needs tell you, there was a great presumption before, but there is a greater now, and I think I shall leave it with some effect to the jury. I cannot see but here is enough to put the proof upon you. They came to the lord president, and asked him how they ‘ might deliver a petition to the king: he told them he would go and see what the king said to it. They would have had him read their petition, but he refused it: he comes and tells them the king said they might come when they would : then those two that came to my lord president went and gathered up the other four (the archbishop indeed was not there), but they six came, and my lord Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 429 president gave directions they should be let in, and they T#= Cass did go into the room wuere the king was. Now this, with the king’s prolucing the paper, and their owning it at the council, is such a proof to me, as I think will be evidence to the jury of the publication. Sur R. Sawyer. May it please your lordship, and you gentlemen of the jury, you have heard this charge which Mr. Attorney has been pleased to make against my lords the bishops, that they did conspire to diminish the royal authority, and regal prerogative, power, and government of the king, and to avoid the order of council; and in pro- secution of this, did falsely, maliciously and seditiously make a libel against the king, under pretence of a peti- tion, and did publish the same in the king’s presence. This, gentlemen, is a very heinous and heavy charge ; but you see how short their evidence is: the evidence they bring forth is only, that my lords the bishops pre- sented the paper to the king in the most private and humble manner they could: that which they have been so many hours a proving, and which they cry up to be as strong an evidence as ever was given, proves it to be the farthest from sedition in the doing of it that can be: and you see what it is, it was a petition to be relieved against an order of council, which they conceive they were aggrieved by. This petition is set forth to be a scandalous matter, but it only contains their reasons, whereby they would satisfy his Majesty why they cannot comply in a concurrence with his Majesty’s pleasure ; and therefore they humbly beseech the king, and beg and request him (as the words of it are) that his Majesty would be pleased not to insist upon their distributing and reading of this declaration : so the petitioners, on behalf of themselves and the whole clergy of England, beg of the king that he would please not to insist upon it. Gentlemen, you may observe it, that there is nothing in this petition that contains anything of sedition in it; Digitized by Microsoft® OF THE SEVEN BIsHops. 430 CONSTITUTIONAL LAW. Tae Case and it would be strange this petition should be /elo de se, Seven and by one part of it destroy the other. It is laid indeed BisHors. + the information, that it was with intent and purpose to diminish the king’s royal authority ; but I appeal to your lordship, the court, and the jury, whether there be any one word in it, that any way touches the king’s pre- rogative, or any tittle of evidence that has been given to make good the charge. It is an excuse barely for their non-compliance with the king’s order, and a begging of the king with all humility and submission, that he would be pleased not to insist upon the reading of his Majesty’s declaration upon these grounds, because the dispensing power upon which it was founded, had been several times in parliament declared to be against law, and because it was a case of that consequence that they could not in prudence, honour, or conscience concur in it. My lord, Mr. Attorney has been pleased to charge in this information, that this is a false, malicious, and sedi- tious libel: both the falsity of it, and that it was mali- cious and seditious, are all matters of fact, which, with submission, they have offered to the jury no proof. of, and I make no question but easily to demonstrate the contrary. For I think it can be no question but that where any subject is commanded by the king to do a thing which he conceives to be against law, and against his conscience, he may humbly apply himself to the king, and tell him the reason why he does not that thing he is commanded to do, why he cannot concur with his Majesty in such a command. That which Mr. Attorney did insist upon in the be- ginning of this day was, that, in this case, my lords the bishops were not sued as bishops, nor prosecuted for their religion. Truly I do not know what they are sued for else: the information is against them as bishops, it is for an act they did as bishops, and no otherwise ; and for an act they did, and do conceive they lawfully might do with Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 431 relation to their ecclesiastical polity, and the government Tus Casr of their people as bishops. The next thing that Mr. Attorney offered was, that it was not for a non-feasance, but for a feasance. It is true it is for a feasance in making of the petition, but it was to excuse a non-feasance, the not reading according to the order; and this sure was lawful for all the bishops as subjects to do; and I shall show it was certainly the duty of my lords the bishops, or any peer of this realm, to do the same in a like case. It was likewise said, they were prosecuted here for affronting the government, and inter- meddling with matters of state; but I beg your lordship and the jury to consider, whether there is one tittle of this mentioned in the petition, or any evidence given of it. The petition does not meddle with any matter of state, but refers to an ecclesiastical matter, to be executed by the clergy, and to a matter that has relation to eccle- siastical causes; so that they were not busybodies, or such as meddled in matters that did not relate to them, but in that which was properly within their sphere and jurisdiction. But after all, there is no evidence, nor any sort of evi- dence that is given by Mr. Attorney, that will maintain the least tittle of this charge; and how he comes to leave it upon this sort of evidence I cannot tell; all that it amounts to is, that my lords the bishops, being grieved in this manner, made this petition to the king in the most private and respectful manner ; and for him to load it with such horrid black epithets, that it was done libel- lously, maliciously, and scandalously, and to oppose the king and government, ’tis very hard ; ’tis a case of a very extraordinary nature, and I believe my lords the bishops cannot but conceive a great deal of trouble, that they should lie under so heavy a charge, and that Mr. Attorney should draw so severe an information against them, when he has so little proof to make it out. We say, in short, that this petition is no more than Digitized by Microsoft® OF THE SEVEN BIsHops. 432 CONSTITUTIONAL LAW. Twe Cass what any man, if he be commanded to do anything, eves, might humbly do, and not be guilty of any crime: and, —" as to the matter of our defence, it will consist of these heads: We shall consider— I. The matter of this petition. II. The manner of delivering it, according as they have given evidence here. - III. The persons that have delivered this petition. And we hope to make it appear, beyond all question, that the matter contained in this petition, is neither false nor contrary to law, but agreeable to all the laws of the land in all times. We shall likewise show (though that. appear sufficiently already) that the manner of delivering it was so far from being seditious, that it was in the most secret and private manner, and with the greatest humility and duty imaginable. And then as to the persons, we will show that they are not such as Mr. Attorney says, who meddle with matters of state, that are out of their sphere ; but they are persons concerned, and concerned in interest in the case, to make this humble application to the king. The matter I. For the matter of the petition, we shall consider two tion. things. 1. The prayer, which is this; They humbly beg and desire of the king, on behalf of themselves and the rest of the clergy, that he would not insist upon the reading and publishing of this declaration. Surely there is nothing of falsity in this, nor anything that is contrary to law, or unlawful for any man that is pressed to anything, especially by an order of council; and this is nothing but a petition against an order of council ; and if there be an order that commands my lords the bishops to do a thing that seems grievous to them, surely they may beg of the king that he would not insist upon it. As for this matter, they were so well satisfied about it, and so far from thinking that it was any part of a libel, that they left it out of the information, and so Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 433 have made a deformed and absurd story of it, without Tax case head or tail, a petition directed to nobody, and for nothing, it being without both title and prayer; so that this is plain, it was lawful to petition. 2. The next thing is, the reasons which my lords the bishops come to acquaint the king with, why in honour and conscience they cannot comply with, and give obedience to this order ; and the reasons are two. The first reason assigned, is, the several declarations that have been in parliament (several of which are men- tioned) that such a power to dispense with the law, is against law, and that it could not be done but by an Act of Parliament : for that is the meaning of the word illegal, that has no other signification but unlawful: the same word in point of signification with the word ) has in the next place to be considered. (a) In 1766, in consequence of ap- prehended famine, the Crown laid an embargo on corn. It was, however, held in Parliament that though the measure was expedient and proper, it was illegal, and that an Act of in- demnity was necessary.—16 Parl. Hist. 245, et seg.; 2 Campb. Chief Just. 468; 1 Massey, Hist. Eng. 800 ; ante, p. 379 n. (d). In a speech made in the debate on this point in the Lords it was said ; ‘We are, as it were, surprised into a debate on the dispensing power, and what astonishes me still more, we are got, at least some of us, into a vindication and defence of it, a thing I had long thought so odious in its very name, but so settled in the notions of it, and so exploded in theory, as well as practice, that no- body ever thought of it but to hate it, and to thank God it was utterly ex- terminated out of the pure solar sys- tem of the English Government and English liberty.”—16 Parl Hist. 251. (b) In treating this subject, peti- tions addressed to the Crown and to either House of Parliament, are re- ferred to indiscriminately, as the law respecting them is identical. The Tumultuous Petitioning Act treats them both in the same way, and the Bill of Rights is always considered applicable to both ; while the prac- tice is for the petitioner to address whichever braneh of the legislature he prefers. In early times petitions seem to have been generally addressed to the sovereign, probably from the notion that he was more powerful, and therefore more likely to be able to grant what was prayed in them. As regards the mode of presenting petitions at the present day, we may notice that the sovereign sometimes receives them personally, and some- times through different officers at- tached to his court or person ; whereas parliament appoints receivers and triers of petitions. — Vide Hale, Jurisdiction of the Lords, 75—79; Elsynge on Parliaments, 262, e¢ seq.; May, Parl. Pract. 501; Palgrave, Authority of the King’s Council, 63. In 5 Edw. 1, it was ordered that the petitions should be considered, in the first instance, by the judicial officers to whose department they be- longed, and not brought before the king and council, unless relating to matters of weight and importance. Another regulation was established 21 Edw. 1. Receivers were then ap- pointed by the king, and petitions to the Crown were to be examined and sorted into five bundles—for the Chancery, the Exchequer, the jus- tices, king and council, and such as had before received an auswer; and thus were they to be reported (ra- portées) to the king, — Palgrave, Authority of the King's Council, 23. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. One of the most valuable privileges possessed by the subject is that of petitioning the Crown (c) and Parliament. It seems to have been exercised from the very earliest times, and to be recognised in Magna Carta(d). It is said there are to be found in the Tower, petitions of the time of Edward I.; and there seems reason to suppose that before that period persons aggrieved came personally to prefer their complaints before the council of the realm (¢). These early petitions, however, seem to have been for the redress of private grievances, and the prac- tice of petitioning on political subjects does not appear to have come into vogue till the time of the great rebellion (/). Many petitions, most numerously signed, were presented both to the king and to the Long Parliament. That assembly, however, while it thanked those who supported its opinions, nevertheless reproved and punished several who were bold enough to present petitions of which it did not approve (g) ; and Charles himself did not hesitate to tell petitioners that the matters respecting which they petitioned were no business of theirs (h). Petitions were not looked upon with favour at the time of the Restoration ; and, probably with a vivid recollection of those preferred in the preceding reign, an Act (2) was early passed against tumultuous petitioning. Thereby it was enacted that not more than twenty names should be signed to any petition to the king or either House of Par- (c) May, Parl. Pract. 503. Majesty. May, Parl. Pract. 64. (d) ‘Null negabimus aut differe- (f) 1 May, Const Hist. 436, mus rectum vel justitiam.”—Magna (g) Clarendon, Hist. of the Rebel- Carta of John, v. 44; of Hen. 3, ¢.29. lion, ii, 225, 248. (Ed. Oxford, _(¢) May, Parl. Pract. 508. Each 1826.) Comm. Journ, v. 354, 867, peer, as one of the hereditary coun- 368. sellors of the Crown, is individually (h) Rushworth Coll. v, 459—462. privileged to have an audience of her (i) 18 Car, 2, st. 1, & 5, Digitized by Microsoft® 509 Note To THE SEVEN Bisuors’ Casr. 510 Nore To THE SEVE N BisHoprs’ Case. CONSTITUTIONAL LAW. liament, for any alteration of matters established by law in Church or State ; unless the contents thereof were pre- viously approved, in the country by three justices, or the majority of the grand jury at the assizes or quarter ses- sions, and in London by the Lord Mayor, aldermen, and common council (4); and that no petition should be delivered by a company of more than ten persons ; on pain in either case of incurring a penalty not exceeding 1001. and three months’ imprisonment. Notwithstanding this discouragement, some few peti- tions continued to be presented ; and in December, 1679, in consequence of the dissatisfaction of the nation at the repeated prorogations of parliament, great endeavours were used to get numerous signatures to petitions, praying that parliament might really meet on the day to which it had previously been prorogued (January 26th) (J). This coming to the knowledge of the court, the Lord Mayor and aldermen of the city of London were summoned before the Privy Council, and directed to proceed against all per- sons who either signed these petitions, or went about to collect signatures for them. The Lord Mayor replied that he knew of no law to justify them in so doing, as the people had a right to petition for the redress of griev- ances. Two days afterwards (on the suggestion of the infamous Jefferies, then recorder), a royal proclamation (m) (zk) “This may be one reason (among others) why the corporation of London has, since the restoration, usually taken the lead in petitions to parliament for the alteration of any established law.” —4 Bla. Com. 147. () Echard, Hist. Eng, 986, 1 Ralph, Hist. Eng. 490. (m) ‘*The recorder Jefferies then moved, that his Majesty would, by proclamation, prohibit the framing and presenting any such petitions, and command all the peace officers to punish every person acting to the contrary . . . Upon this hint of the recorder’s, the Lord Chief Justice North refined, by saying, that the proclamation ought, by no means, Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. was issued, forbidding all persons to sign such petitions under pain of punishment (7). to prohibit the petitioning his Ma- jesty in any case, much less in the case of parliament. But it might take notice of certain ill people, who, upon the specious pretence of petition- ing, went about in a seditious and tumultuous manner, gathering hands to certain papers, &c. ; and then for- bid all such tumultuous and seditious proceedings, and enjoin magistrates to punish all such offenders, This scheme was adopted, and the new Attorney-General, Sir Cresswell Le- vinz, received orders to draw up such a proclamation ; but he declined it, objecting that he did not well understand what the Lord Chief Jus- tice meant, and desiring of his Ma- jesty that his lordship might draw up the proclamation himself. But this was against form, so the burthen rested upon the Attorney, or rather it seemed to do so, for the Chief Jus- tice lent his shoulder in private, though he excused himself in public, and the result of their joint labours,” was as in (); 1 Ralph, Hist. Eng. 491. Roger North seems particularly to admire the skill shown in drawing up this proclamation, saying: ‘‘It is obvious enough to any, that knows the course of affairs in England, to discern the art and caution of this draft; therefore it would be super- fluous to comment upon it.” He nevertheless illustrates his meaning by reference to the wording of the proclamation.—1 Examen, 547. (n) This proclamation was in the following terms :— ‘‘ Whereas his Majesty hath been informed that divers evil-disposed pergons at this time endeavour in several parts ‘of this kingdom, to frame petitions to his Ma- jesty for specious ends and purposes relating to the public, and therefore to collect and procure to the same the hands or subscriptions of multitudes of his, Majesty’s subjects ; which pro- ceedings are contrary to the common and known laws of this land ; for that it tends to promote discontents among the people, and to raise sedition and rebellion. His Majesty considering the evil consequences that may hap- pen if such offences should go unpun- ished; and lest that any of his good subjects should be inveigled by plau- sible pretences, or should, through in- advertency or ignorance, be engaged to a breach of the laws, in any of the particulars aforesaid ; his Majesty hath therefore thought fit (by the advice of his privy council) to declare and make the same known, by this his royal proclamation, and doth hereby strictly charge and command all and every his loving subjects, of what rank or degree soever, that they pre- sume not to agitate or promote any such subscriptions, nor in anywise join in any petition of that manner to be presented to his Majesty, upon peril of the utmost rigour of the law, that may be inflicted for the same. And his Majesty doth further command all magistrates, and other officersto whom it shall appertain to take effectual care, that all such offenders against the law be prosecuted, and punished ac- cording to their demerits.” —1 Ralph, Hist. Eng. 491. Digitized by Microsoft® 511 NotE To TUE SEVEN BrsHopg’ Case. *512 Nore To THE SEVEN Bisyors’ Caspr, CONSTITUTIONAL LAW. Notwithstanding this proclamation, various petitions continued to be presented, which gave rise to some coun- ter addresses to the throne, expressing an abhorrence (0) of seditious persons, pernicious principles, and tumultuous petitioning. In the tyrannical reign of James II. we do not hear much of petitions, but on the accession of William and Mary, this valuable privilege was expressly sanctioned and secured in the Bill of Rights (p), which declares “ that it is the right of the subjects to petition the king; and all commitments and prosecutions for such petitioning are illegal.” Since then no one has ventured to say that petitioning is illegal in itself, though it is comparatively in modern times that very numerous petitions have been sent up as a means of expressing the opinion of the nation on questions of general interest and importance. The House of Commons indeed for a long time showed itself extremely jealous of any semblance of interference with its functions, and was in the habit till quite recently of rejecting any petition, of which it did not happen to approve. For instance in 1772 when a petition was pre- sented to the House, signed by about two hundred and fifty of the clergy and by several members of the profes- sions of law and physic, praying for relief from subscrip- tion to the thirty-nine articles, it was rejected (q). Not only, however, is the right to petition now recog- nised, but the act of petitioning is free to all (7), and (0) About this time, consequently, the two principal parties in the coun- try were called Petitioners and Ab- horrers (8 Hume, 126; 1 Ralph, 494), which names were then or soon after changed to Whig and Tory; 2 Rapin, 712; Echard, 988; 1@ooke, History of Party, 108. (p) 1 Will. & M., Sess. 2, ¢. 2. (q) Ann. Reg. 1772; 86,.* (r) Though in 1810 there was some ill feeling excited in the corporation of London by the king's refusing to receive a petition from them, reflect; Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. parliament will receive any petition respectfully worded (s), and complying with the forms of the House, whilst the statute of 13 Car. 2, has nearly become a dead letter, and under ordinary circumstances, no one dreams of enforcing that Act (intended to prevent violent and tumultuous petitioning), or of enquiring when a petition is presented, whether its conditions have been complied with. How- ever on the trial of Lord George Gordon, Lord Mansfield expressly decided that the said statute had not been repealed (¢), and on the presentation of the great Chartist petition in 1848, the Act was cited (w) when the large body of petitioners were prohibited from marching to present it to the House.! There is one point on which both Houses of Parliament are very particular, and properly so, namely in insisting that any forgery or fraud in the preparation of petitions, or in the signatures attached to them, or the being privy to, or cognizant of such forgery or fraud be punished as a breach of privilege (x). Such frauds seem to have been coeval with political petitioning itself, for we find Lord Clarendon complaining in reference to the petitions pre- sented to parliament A.D. 1640, touching Church govern- ment and the Episcopacy, as follows :—“ It was a strange disingenuity, that was practised in the procuring those petitions ; which continued ever after in the like addresses. ing on the mode in which the Penin- sular war was conducted, yet it was never suggested on either side, that there was, or could be any doubt as to the right to petition, and the only point in dispute was, one of form, viz., whether the petition should be pre- sented directly, or through the medium of a Sceretary of State.—Ann, Reg. 1810, 243. (s) In 1840 a petition from one Stockdale was rejected on the ground that it contained an intentional and deliberate insult to the House.—95 Com. Journ. 193, : (é) Dougl. 592; 218t. Tr. 646; Bowyer, Eng. Const, 584. (uw) Post, p. 519. (x) May, Parl. Prac, 508. Digitized by Microsoft® 513 Nore To THE SEVEN BIsHops’ _ CASE. 514 CONSTITUTIONAL LAW. ee The course was, first, to prepare a petition very modest Bessors’ and dutiful for the form; and for the matter not very ~~ unreasonable, and to communicate it at some public meet- ing, where care was taken it should be received with approbation ; the subscription of very few hands filled the paper itself, where the petition was written, and therefore many more sheets were annexed, for the reception of the number, which gave all the credit, and procured all the countenance to the undertaking. When a multitude of hands was procured, the petition itself was cut off, and a new one framed, suitable to the design in hand, and annexed to the long list of names which were subscribed to the former. By this means many men found their names subscribed to petitions of which before they had never heard” (2). The practices condemned by Lord Clarendon seem to have continued, for we find that in 1774 a committee of the House of Commons appointed to examine a petition presented from the town of Barnstaple, ascertained that the names of several persons had been affixed to such petition without their knowledge or consent (a), and in consequence almost directly afterwards it was resolved by the House (6) on June 2nd “that it is highly unwar- rantable, and a breach of the privilege of this House, for any person to set the name of any other person to any petition to be presented to this House.” And more recently there have been instances of persons being committed for this offence (c). Before leaving this subject, it may be right to notice the three most celebrated petitions presented to parliament (2) Clarendon Hist. Rebellion, i. (c) 80 Comm. Journ. 445; 82 2, 357, Oxford ed. 1826, 561, 582; 98 2b, 523, 528; 106 ib, (a) 34 Comm. Journ. 799, 198, 289 ; 82 Lords’ Journ. 367, 478. (0) 34 Comm. Journ. 800. See the Chartist Petition, post, p. 519. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. during the preceding and present centuries, viz., the Kentish Petition in 1701, Lord George Gordon’s petition, or the petition of the Protestant Association, in 1780, and that of the Chartists in 1848, . In the year 1701 there was a serious misunderstanding The Ker between the Lords and Commons caused by the impeach- ment of the peers concerned in the Partition treaty, and party spirit was running high throughout the country. In the county of Kent especially, considerable disapproba- tion was expressed of the conduct of the Commons (d), and on April 29th at the Quarter Sessions a petition to that House was drawn up by the chairman at the request of the grand jury, and signed by twenty-three justices and very many other persons (¢). It professed to set forth the dangerous state of the kingdom, and, saying that the safety of the country depended on the wisdom of its repre- sentatives, besought them to attend to the voice of the people, to turn their loyal addresses into bills of supply, and so enable the king to assist his allies (/). (d) 2 Ralph, 946 ; 3 Rapin (Tindal’s Continuation), 471. (e) 11 Somers, Tracts, 244. (f) ‘*We the gentlemen, justices of the peace, grand jury, aud other free- holders at the General Quarter Ses- sions of Maidstone in Kent, deeply concerned at the dangerous state of this kingdom, and of all Europe; and considering that the fate of us and our posterity, depends upon the wis- dom of our representatives in parlia- ment, think ourselves bound in duty humbly to lay before this honourable House the consequence, in this con- juncture of your speedy resolution, and most sincere endeavour, to answer the great trust reposed in you by your country ; And inregard that from the experience of all ages it is manifest no nation can be great or happy, with- out union, we hope that no pretence whatsoever shall be able to create a misunderstanding among ourselves, or the feast distrust of his most sacred Majesty ; whose great aciions for this nation are writ in the hearts of his subjects, and can never, without the blackest ingratitude, be forgot. We most humbly implore this honourable House to have regard to the voice of the people, that our religion and safety may be effectually provided for, that your loyal addresses may be turned into bills of suppply, and that his most sacred Majesty (whose propitious and Lu Digitized by Microsoft® 515 Note Tu tHe SEVEN BIsHops’ CasE. Kentish 516 Nore To THE SEVEN BisHops’ CASE. CONSTITUTIONAL LAW. The petition was presented on May 8th by five of the justices in the names of the rest. They were called into the House and asked if they owned it ; on answering that they did, they were ordered to withdraw, and the petition was read, whereupon it was resolved “that the said peti- tion is scandalous, insolent and seditious, tending to destroy the constitution of parliaments, and to subvert the established government of this realm” (g), and these five gentlemen were ordered into the custody of the sergeant- at-arms (h), During the discussion which followed the presenting unblemished reign over us we pray God long to continue) may be en- abled powerfully to assist his allies, before it is too late.” 2 Ralph, 947. (g) 13 Comm. Journ. 518; 5 Parl. Hist. 1251. Mr. Humphrey Mackworth, M.P., in a pamphlet on the Commons of England, thus comments on the Tu- multuous Petitioning Act: ‘That not only the number of persons is re- strained, bnt the occasion also for which they may petition; which is for the alteration of matters estab- lished in Church or State, for want whereof some inconvenience doth arise to that county from which the petition shall be brought. For it is plain by the express words and mean- ing of that statute, that the grievance, or matter of the petition, must arise in the same county as the petition itself; they may indeed petition the king for a parliament to redress their grievances; and they may petition that parliament to make one law that is advantageous, and repeal another that is prejudicial to the trade or in- terest of that county, Lut they have no power by this statute, nor by the constitution of the English Go- vernment, to dircct the parliament in the general proceedings concerning the whole kingdom ; for the law de- clares, that a general consultation of all the wise representatives of parlia- ment, ismore for the safety of Eng- land, than the hasty advice of a num- ber of petitioners of a private county, of a grand jury, or of a few justices of the peace, who seldom have a true state of the case represented to them . . .. 2. But ad- mitting a petition to be made upon a lawful occasion, to redress a real grievance arising in that county, and to be made pursuant to the said sta- tute ; yet no subject can pretend toa right under the pretence of a petition to reflect on the honour and justice of the parliament, or to condemn and ex- pose their proceedings.” —‘‘ A Vindica- tion of the Rights of the Commons of England, by a Member of the Honour- able the House of Commons,” 2nd Ed. 1701, 39. (2) 2 Ralph, Hist, Eng, 947. Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. a 17 of this petition, some members of the House endeavoured Nome 70 HE SEVEN to persuade the five who had presented the petition, to aoe ASE, avoid ulterior consequences by apologizing and making submission to the House. This, however, they refused to do, answering, “We are humbly of opinion that it is our right to petition this honourable House, according to the statute of 13 Car. 2. As to the matter of our petition, we declare that we intend nothing offensive to this honourable House ” (2). The commitment of the five Kentish Justices caused great dissatisfaction throughout the country, and a very violent address was thereupon presented to the House, in a letter (4), strongly remonstrating with them on their conduct. Nevertheless the five presenters of the Kentish petition were not released till the prorogation of parlia- ment in the month of June ensuing. The next celebrated petition worthy of being noticed is L that of the Protestant Association presented by Lord Petition. George Gordon, 4.D. 1780. The year before, an Act (2) had been passed mitigating some of the penalties imposed on the Roman Catholics by previous legislation. This Act gave great offence to many, and a large body of persons with Lord George Gordon at their head, formed themselves into a society called The Protestant Association (m), and ord George Gordon’s (i) 11 Somers, Tracts, 248; 2 Ralph, 947. (k) 5 Parl. Hist. 1251; 3 Rapin (Tind. Con.), 476; 3 Kennet, 809. (1) 18 Geo. 3, c. 60. (m) The Gentleman’s Magazine for a.p. 1780, says, (p. 265), that the Protestant Association was at first composed of most worthy protestants who only sought by legal means to obtain security against any abuse of the law passed in favour of the Ca- tholics ; and that after Lord George Gordon had put himself at the head of it, and begun drawing together large crowds of people, the society was de- serted by those temperate and consci- entious men, who at first composed the majority of the Association, Digitized by Microsoft® 518 Nore To THE SEVEN BisHors’ Casz. CONSTITUTIONAL LAW. by them a petition was drawn up, which his lordship pro- mised to present to the House of Commons, on condition that at least twenty thousand persons should accompany him (n). With this view he convened a meeting of the Association in St. George’s Fields on June 2nd, which was attended by an immense rabble; the crowd being divided into three parts, accompanied his lordship to the House, where he presented the petition, and demanded that it should be taken into instant consideration. Though the mob attacked several members, and were guilty of the greatest intimidation, the House had the spirit to reject almost unanimously (0) the motion. The mob continued to besiege the House till driven away by the military ; when they went to other parts of the metropolis, and for some days committed outrages. The following year Lord George Gordon was tried for high treason (p), in having levied war against his Majesty. It was contended by his counsel at the trial that there was nothing illegal in his presenting the petition with so large a band of followers, inasmuch as the statute of Charles IT. against tumultuous petitioning had been repealed by the Bill of Rights; but this proposition, as already stated (q), was negatived by Lord Mansfield (r). The prisoner was acquitted, though (n) Ann. Reg. 1780, 190, 254; 2 Massey, Hist. 456; 3 Belsham, Hist. Geo. III. 31; 7 Mahon, Hist. Eng. 17. (0) 87 Comm. Journ, 901. (p) Ann. Reg. 1781, 217; 21 St. Tr. 485; Dougl. 590. (g) Ante, p. 513. (vr) Lord Mansfield in his charge to the Grand Jury, directed them that ‘*to petition for the passing or repeal of any Act is the undoubted inherent birthright of every British subject, but under the name and colour of petitioning to assume command, and to dictate to the legislature, is the annihilation of all order and govern- ment. Fatal experience had shown the mischief of tumultuous petition- ing, in the course of that contest, in the reign of Charles I., which ended in the overthrow of the monarchy, and the destruction of the constitu- tion, and one of the first laws after the restoration of legal government, was a statute passed in the 13th year Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. 519 many persons were convicted and punished who had par- Nore 10 ticipated in the riots (s). “Bisnors The next petition calling for remark is that of the — Chartists, A.D, 1848, in favour of the five points of the Petition, Charter, viz, Annual Parliaments, Universal Suffrage, Equal Electoral Districts, No: Property Qualification (t), and Payment of Members. _ About the time of the great political disturbances (w) throughout Europe, the Chartists, with Feargus O’Connor (MP. for Nottingham) at their head, convened a monster meeting to be held on Kennington. Common on April 10th, to be followed by a procession to Westminster, to present the petition. Notices were posted by the police, citing the Act of Charles II. (@), that not more than ten persons might go to present a petition, and warning the populace that they would not be allowed to form the pro- cession to Westminster. The events of that day are well known, and it would be foreign to the purpose of this work to relatethem. By the precautions taken the affair passed off peaceably, and the great petition said to contain upwards of five millions of signatures (y) was presente to the House. of Charles IT. (cap. 5), enacting, that no petition to the king, or either upon the subject of petitioning, the desire of that petition was to be House of parliament, for alteration of matters. established by law in church or state (unless the matter thereof be approved by three justices or the grand jury of the county), shall be signed by more than twenty names or delivered by more than ten persons. ‘Tn opposition to this law, the peti- tion in question was signed and deli- vered by many thousands, and in defi- ance of principles more ancient aud more important than any regulations, effected by the terror of the multitude that accompanied it through the streets, classed, arranged, and distin- guished as directed by the advertise- ments.” 21 St, Tr, 487. (s) Ann. Reg. 1780, 285. (t) The property qualification for members of parliament has since been abolished by stat. 21 & 22 Vict. u. 26. (wu) Ann. Reg. 1848, 124. (x) Ann. Reg. 1848, Chron. 51. (y) Very exaggerated statemenis Digitized by Microsoft® 520 Note To THE SEVEN BrsHoprs’ Case. Nature of a seditious libel. CONSTITUTIONAL LAW. III. A libel has been defined to be “ any writing, picture, or other sign, which immediately tends to injure the character of an individual, or to occasion mischief to the public” (z). Sedition is understood to comprise within its meaning all offences against the king and the government which are not capital and do not amount to the crime of trea- son (a); and all contemptuous, indecent, or malicious observations upon the person of the king or his govern- ment, whether by writing or speaking, or by tokens, cal- culated to lessen him in the esteem of his subjects, to weaken his government, or to raise jealousies of him among the people, will fall underthe notion of sedi- tion (0). From the above definitions may tolerably well be inferred what is the offence of seditious libel; it is how- ever susceptible of an elastic meaning, and accordingly the Crown when strong enough has been in the habit of punishing almost every obnoxious criticism on the acts of government as constituting a seditious libel (¢). however were promulgated as to the numbers of those who had signed this petition. It contained moreover many signatures which, on examina- tion, were found to be fictitious. 103 Comm. Journ. 442; Ann. Reg. 1848, 126, Chron. 53, 54. (z) 1 Stark. on Libel, 9. (a) Tomlin, Law Dict. tit. ‘‘ Sedi- tion.” (b) Ib. In Lord Cromwell's Case, 4 Rep. 18, sedition is defined to be scorsum itio when a man takes a course of his own, 1 Rushworth, Hallam, Const. Hist. 227. Dr. Tutchin, in the reign of Queen Anne, was convicted for uttering a seditious libel, in which among other things he complained of the mismanagement of the navy, and expressed an opinion that some of our officials were bribed by France. Lord Holt, in summing up, told the Jury, ‘‘To say that cor- rupt officers are appointed to admi- nister affairs is certainly 9. reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the Coll. App. 19. Yc) 2 May, Const, Hist. 99; 3 government, no government can sub- sist. For it is very necessary to all Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT: Formerly it was scarce safe to express political opinions anywhere out of parliament, and even .there at one time our monarchs were in the habit of repressing liberty of speech, though that right was early claimed, and has since been successfully maintained (d). Out of parliament I repeat it was, during long periods of our history, unsafe for any one to venture to assert that the system of government was imperfect (e). A statement of opinions, for the utterance of which persons have been severely punished, might now astonish the unlearned. A respectable attorney was indicted for having said in a coffee-house, in discussing the French revolution, “I am for equality. I can see no reason why any man should not be on a footing with another, it is every man’s birth- right ;” and on being asked what he meant by equality, replied, “I mean no king; the constitution of this country is a bad one.” governments that the people should have a good opinion of it. And no- thing can be worse to any government than to endeavour to procure animo- sities, as to the management of it ; this has always been looked upon as a crime, and no government can be safe without it be punished.”—Tutchin’s Case, 14 St. Tr. 1103, 1127. (d) The Commons ever enjoyed the privilege of freedom of speech, though it was never desired by any of the ancient speakers till 33 Hen. 8.— Elsynge on Parliaments, 175, 176. (e) Binns was tried, but acquitted, for saying that universal suffrage and annual parliaments were most condu- cive to the happiness of the people, that they should obtain it by every peaceable means in their power, but He was found guilty, sentenced if it became necessary to use force he hoped there was not one who would not be ready to shed the last drop of his blood in the cause.—Binns’ Case, 26 St. Tr. 598. In the year 1783, Sir William Jones, afterwards one of the India judges, wrote a dialogue between a scholar and a farmer, as a vebicle for explaining to common capacities the great principles of society and govern- ment, and for showing the defects in the representation of the people in the British Parliament. His brother-in- law, the Dean of St. Asaph, had this printed, and was tried for publishing a seditious libel ; he was found guilty, though judgment was afterwards ar- rested.—Dean of St. Asaph’s Case, 21 St. Tr. 847. Digitized by Microsoft® 521 Note To THE SEVE BtsHo Case. 522 NOotE ‘To THE SEVEN BisHors’ Casr. CONSTITUTIONAL LAW. to six months’ imprisonment, to stand in the pillory, and to be struck off the roll (/). Such expressions as these have also been held seditious. “I highly approve of the revolution in France, and I do not doubt but that it has opened the eyes of the people of England” (g), and “His Majesty was placed upon the throne upon condition of keeping certain laws and rules, and if he does not observe them, he has no more right to the throne than the Stuarts had” (h). It would be weary- ing to recite the comparatively innocent speeches that were stigmatized as seditious in the reign of George III. ; per- haps the climax was the case of a loyal yeoman of Kent, who when intoxicated having applied abusive language to the king, was for this indiscretion indicted at the sessions, and sentenced to a year’s imprisonment. A complaint having been made to the Lord Chancellor Loughborough, touching the severity of this sentence, his lordship refused to interfere, upon the ground that “to save the country from revolution the authority of all tribunals high and low must be upheld ” (¢). Since the time referred to, when terror excited by the French revolution drove the government nearly mad, common sense, together with the determination of juries (k) not to convict on ridiculous charges, has caused a more (f) Frost's Case, 22 St. Tr. 471. (g) BR. v. Winterbotham, 22 St. Tr. 823, (h) Ib. (i) 6 Camp. Lives of the Chan- cellors, 265. (&) The judges were at one time (though not without remonstrance) in the habit of directing juries that the only point for them to consider in a trial for libel, was whether the de- a fendant published the letter or paper in question, and whether the innuen- does imputing a particular meaning to particular words were correct, but that whether the publication was libellous or innocent, was a pure question of law, on which the opinion of the Court might be taken, but with which the jury had nothing to do. This doctrine was for w long time both assailed and maintained, till the Digitized by Microsoft® DUTIES OF THE SOVEREIGN TOWARDS THE SUBJECT. rational construction of language charged as libellous to prevail. Words are not now considered seditious, because they merely criticize the government, ordinary decency of expression being all that is requisite to ensure immunity. dispute was set at rest. by Fox’s Libel Act (32 Geo. 8, c. 60), which{declares and enacts that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue upon the indictment or information, and shall not be required or directed by the Court or judge to find the defendant guilty, merely on proof of the publi- cation of the paper charged to be w libel, and of the sense ascribed to the same in the indictment or informa- tion. Provided that on every such trial the Court or judge shall, ac- cording to their discretion, give their opinion and direction to the jury on the matter in issue in like manner as in other criminal cases.— Vide 2 May, Const. Hist. 109—117 ; Forsyth, Trial by Jury, 268—282 ; 16 Parl. Hist. 13821; Letters of Junius, No. 41; Lord Jobn Russell, Essay on English Government, 391; 5 Camp. Lives of the Chancellors, 295; 2 Camp. Chief Justices, 478— 493, 540; 22 St. Tr. 294 et seq. Digitized by Microsoft® 523 Norte To THE SEVEN BrsHors’ CasE. CONSTITUTIONAL LAW. PART IL. RELATION OF THE SUBJECT TO THE EXECUTIVE. Havine spoken of the relation of the subject to the sovereign, I would now speak of his relation to the exe- cutive department, which puts in motion and aids in working the complicated machinery organised by the legislative body. The executive consists mainly of public officers or servants, divisible into three classes: the poli- tical; the military and naval; the judicial. And my aim will be to show in what position the subject stands rela- tively to these officials—what are his rights against—what his liabilities to them—what are the privileges and immu- nities, if any, which the State extends to them—what considerations of public policy influence it in dealing with them. The enquiry indicated naturally succeeds that which has been instituted as to the relation of the subject to the sovereign. It naturally precedes that which must presently be instituted respecting the relation of the subject to parliament. At the head of the executive, according to our consti- tution, stands the sovereign. He it is who in theory nominates and dismisses all officials—such as we shall be now concerned with—se. a Secretary of State—the governor of a colony or dependency—an officer military or naval— or one clothed with judicial functions :—any limitation of this high prerogative being imposed by parliament and assented to by the sovereign, as a component member of the legislature—for example in the case of Judges of our Superior Courts, whose commissions are made out Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. quamdiu se bene gesserint, and who are removable ‘only on address by both Houses of Parliament (a) ; this restric- tion of the constitutional powers of the Crown having been needed to ensure the independence of the Bench, and to render abortive such sinister tampering with it as had been prevalent under the Stuart dynasty. When determining the liability of any public functionary for damage caused by his act to a fellow-subject, a seeming conflict between principles will be noticeable, and an anxiety in the breast of our law on the one hand to assist the suitor, who perchance complains of wrong—on the other to protect the officer, who in inflicting an apparent injury has perchance but done his duty. LEACH v. MONEY; 19 St. Tr. 1001 (5). (6 Geo. 8, A.D. 1765). SEIZURE OF THE PERSON. A general warrant issued by a Secretary of State to search for and seize the author (not named) of a sedi- tious libel is illegal (c). This was an action of trespass brought in the Court of Common Pleas by Dryden Leach, against three king’s messengers, John Money, James Watson, and Robert Blackmore, for breaking and entering the plaintiff’s house, and imprisoning him, without any lawful or probable cause; to the plaintiff’s damage of 2,0001. The defendants pleaded two pleas. Ist, Not Guilty, on which issue was joined. 2nd, a special justification, as to the breaking and entering of the plaintiff’s dwelling- house, and staying and continuing therein for six hours, and (a) 12 & 13 Will. 3, ¢ 2, s. 3. Court was expressed in conformity (b) 8.C, 8 Burr. 1692, 1742: 1 W. with the proposition above stated, Bla. 555. the case, it will be found (post, p. 547), (c) Although the opinion of the was decided on another ground. Digitized by Microsoft® Leach vw Money. Declaration. Pleas. 526 Leacw B Money, CONSTITUTIONAL LAW. making the assault upon him, and seizing, taking, and imprisoning him, and keeping and detaining him in prison for four days: as to all which, they say, That before the commitment of the supposed trespass, viz., on 19th April, 1763, the king made a speech from the throne, &c., in which speech was contained the following declaration, &c, That on the 28rd April, 1763, a certain seditious and scandalous libel or composition, intitled, “The North Briton, No. 45,” was unlawfully and seditiously composed, printed and published, concerning the king and his said speech ; in which libel were contained, &c, That the Earl of Halifax was then one of the Privy Council, and one of his Majesty’s principal Secretaries of State; and that information was given to him of the said publication of the aforesaid libel ; and the said libel was then shewn and produced to the said earl; and he thereupon in due manner issued his warrant in writing under his hand and seal, directed to Nathan Carrington and these three defendants, who were then four of his Majesty's messengers in ordinary; by which warrant, the said earl did in his Majesty’s name authorize and require them, taking a constable to their assistance, to make strict and diligent search for the said authors, printers and publishers of the aforesaid seditious libel, intitled, “The North Briton, No. 45, April the 23rd, 1763 ;” and them or any of them having found, to appre- hend and seize, together with their papers,.and to bring in safe custody before the said earl, to be examined con- cerning the premises, and to be further dealt with accord- ing to law: in the due execution whereof, all mayors, sheriffs, justices of the peace, constables, and all others his said Majesty’s messengers, officers civil and military, and loving subjects whom it might concern, were to be aiding and assisting to them the said Nathan Carrington, John Money, James Watson, and Robert Blackmore, as there should be occasion. The defendants further say, that for forty-four weeks and upwards before the issuing of the said warrant, certain weekly compositions, intitled, “The Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. North Briton,” and respectively numbered in a progressive order, had been printed and published on Saturday in every week; and that the said seditious libel, intitled, “The North Briton, No. 45, Saturday, April the 23rd, 1763,” was one of the said weekly compositions. They say that the plaintiff followed and exercised the art and business of a printer; and did in fact print and cause to be printed one of the said weekly compositions, intitled, “The North Briton ;” to wit, the North Briton, No. 26, and that after the issuing of the-aforesaid warrant, and before the committing of the said supposed trespass, to wit, on the 27th of April, 1763, information was given to them the defendants, “That the said Dryden Leach and his servants were the printers of the aforesaid seditious libel, intitled, The North Briton, No. 45, Saturday, April the 28rd, 1763.” Wherefore the defendants, being his Majesty’s messengers in ordinary as aforesaid, took to their assistance a certain constable, to wit, one Thomas Freeman, who was then a constable of the parish of St. Margaret, Westminster, in the county of Middlesex, to aid them in the execution of the warrant ; and, together with the said constable, entered into the aforesaid dwelling- house of the said Leach, in which the said Leach carried on his aforesaid business of a printer, the door thereof being then open, to search for the printers of the said seditious libel, in order to carry them before the said Earl of Halifax, to be examined concerning ‘the same: and thereupon, the said defendants, together with the constable aforesaid, did then and there find, within the same house, a newly-printed copy of one of the said weekly composi- tions, intitled, “The North Briton,” and also an unfinished copy of part of another of the said compositions then also newly printed, and which said newly-printed copies were part of a new.edition, which. the said Leach and his ser- vants were then and there re-printing, of the aforesaid weekly compositions. Whereupon the defendants, together with the constable above named, did gently lay their hands Digitized by Microsoft® 527 Leacu. Le Money. Leacu wv Money. CONSTITUTIONAL LAW. on the said Leach, and seized and took him into their custody, in order to bring him before tho said Earl of Halifax, to be examined concerning the said seditious libel ; and in so searching for the printers of the seditious libel, and seizing and taking the said Leach as aforesaid, did then and there necessarily stay and continue in the said house of the said Leach for the space of six hours, part of the time in the declaration mentioned. And because the said Earl of Halifax was, during all the said space of four days, part of the aforesaid five days in the declaration mentioned, employed in other business belong- ing to his said office of Secretary of State, so that the said Leach could not then or during the said four days be brought before the said earl for the purpose aforesaid, they the said defendants, together with the constable aforesaid, did keep and detain the said Leach in their custody for the said space of four days, part of the said time “in the declaration mentioned, in order to carry him before the said Earl of Halifax for the purpose aforesaid. They further say, that at the end of the aforesaid four days, and not before, upon the examination of the said Leach and certain other persons who were then and there examined concerning the premises, it appeared to the said Earl of Halifax, “that the said Leach did not print the said seditious libel intitled, The North Briton, No. 45, Saturday, April the 23rd, 1763:” and thereupon, the defendants, by the command of the said Earl of Halifax, did then and there release the said Leach out of their custody, and discharged and set him free from that im- prisonment. Which are the same breaking and entering of the aforesaid dwelling-house of the said Leach, in the declaration mentioned, in which, &c., and staying and continuing therein for the space of six hours, part of the time in the same declaration mentioned; and also as to the making of the aforesaid assault upon the said Leach, and seizing, taking and imprisoning of the said Leach, and detaining him in prison for the space of four days, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. part of the said time in the said declaration mentioned, above supposed to have been done by the defendants, whereof the said Leach hath above complained against them. And this the defendants are ready to verify. Wherefore they pray judgment, if the said Leach ought to have or maintain his aforesaid action thereof against them, &c. The plaintiff replied to the said plea in bar, as to the breaking and entering the dwelling-house, and staying and continuing there six hours (part of the time in-the declaration mentioned), and also as to the making of the assault upon him, and seizing, taking, and imprisoning of him, and keeping and detaining him in prison four days (part of the time in the declaration mentioned), de injuria (d). And upon this issue was joined. The cause came on to be tried before Pratt, C.J., on the 10th of December, 1763, at Guildhall: when the jury found a verdict for the plaintiff upon both issues; and gave him damages £400, besides his costs and charges, &c. On the 16th of June, 1764, judgment was signed for the plaintiff, for £400 damages, and £51. 16s. 8d. costs, . 529 LEACH Vv. Money. At the trial, a bill of exceptions was tendered on behalf Writ of of the defendants, and a writ of error was afterwards brought by them, which alleged as follows :— That upon the trial, the counsel for the plaintiff Leach, in order to prove the defendants guilty of the trespass, gave in evidence, that on the 29th of April, 1763, the defendants entered the plaintiff's dwelling-house, searched it, and continued in it four hours; seized and took Leach into their custody against his will and consent ; and kept and detained him in their custody against his will and consent for four days: which was all the trespass, assault, and imprisonment committed by the defendants, or any of them. Whereupon their counsel, in order to bar the (d) By this replication the plaintiff plying is now substituted a traverse. traversed all the material facts alleged See the C. L. Proc. Act, 1852, ss. 77, in justification. For thisform of re- 79, M M Digitized by Microsoft® Evidence for plaintiff. 530 Lraci v Moyny. Evidence for defend- ants. CONSTITUTIONAL LAW. * said action, and to acquit them thereof under the general issue above pleaded, gave in evidence and proved, that before the committing of the trespass, the king made a speech from the throne, &c., containing the several ex- pressions stated in the second plea of the defendants ; and that afterwards and before the supposed trespass a paper intitled, “The North Briton, No. 45,” &c., was printed and published ; and that the same contained the several matters set forth in their said second plea (e) :-and it was proved on their behalf, that the Earl of Halifax was, all that time, one of his Majesty’s principal Secretaries of State, and one of the Privy Council ; and that information was given to him of the said publication of the above- mentioned paper ; and the same was then shown to him ; and that thereupon the said earl issued his warrant in writing, under his hand and seal, directed to Nathan Carrington and the defendants, who were then four of his Majesty's messengers in ordinary. And their counsel then produced and gave in evidence the warrant aforesaid, which was in the words and figures following, that is to say, “George Montague Dunk, Earl of Halifax, &c., one of the lords of his Majesty’s most honourable Privy Council, &e., and principal Secretary of State, &:—These are in his Majesty’s name to authorise and require you, taking a constable to your assistance, to make strict and diligent search for the authors, printers, and publishers of a sedi- tious and treasonable paper, intitled, ‘The North Briton, No, 45, Saturday, April 28, 1763. Printed for G. Kearsly in Ludgate Street, London ;’ and them or any of them having found, to apprehend and seize, together with their papers, and to bring in safe custody before me, to be examined concerning the premises, and further dealt with according to law. In the due execution whereof, all mayors, sheriffs, justices of the peace, constables, and all others his Majesty’s officers civil and military, and loving (e) Ante, p. 525. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 531 subjects whom it may concern, are to be aiding and assist Luscn ing to you, as there shall be occasion. And for your so Moxey. doing. this shall be your warrant. Given at St. James’s, ~_ the 26th day of April, 1763, in the third year of his Majesty’s reign. Dunk Halifax. To Nathan Carrington, John Money, James Watson, and Robert Blackmore, four of his Majesty’s messengers in ordinary.” And it was further proved on behalf of the said defendants, that several of the like warrants had been granted, at different times, from the time of the Revolution to the present time, by the principal Secretaries of State, and had been executed by the messengers in ordinary for the time being ; and that the paper in the said warrant described was the said paper so printed and published as aforesaid ; and that the warrant aforesaid, before the committing of the supposed trespass, to wit, on the 26th day of April aforesaid, in the year of our Lord 1763, was delivered to the defendants, tobe executed ; and, that they were then three of his Majesty's messengers in ordinary, and still are so. It was also proved, on their behalf, that for forty weeks and upwards next before the issuing of the afore- said warrant, certain weekly compositions, intitled, “ The North Briton,” had been printed and published on Satur- day in every week ; and that the aforesaid paper, intitled, “The North Briton, No. 45,.Saturday, April 23, 1763,” described in the said warrant, being one of the said weekly compositions, was printed and published before the issuing of the said warrant, to wit, on the 23rd day of April, 1763; and that after the issuing of the above-mentioned warrant, and before the committing of the said supposed trespass, to wit, on the 28th day of April, in the year aforesaid, the defendants were informed by Nathan Carrington, one other of the messengers in the said warrant named, and one of the persons to whom the said warrant was directed, that from the information he had received, he was of opinion that the said Dryden Leach, who then and long before was, and still is a printer in the city of London MM 2 Digitized by Microsoft® 532 CONSTITUTIONAL LAW. Lasse Cicresaia, was the printer of the said weekly compositions, Moxer. intitled, “The North Briton;” for that he the said Car- rington had been informed that one Mr. Wilkes, a person supposed to be the author of the said weekly compositions, had been seen frequently to go into the said Leach’s house ; and that an old printer, whose name he the said ‘Carrington did not mention to the defendants, had told him that the said Leach was the printer of the said com- positions; and that thereupon the defendants took to their assistance a constable, and with the constable entered Leach’s dwelling-house (the door being open) to search for the said Leach and his books and papers; and to bring him, together with his books and papers, in safe custody, before the said Earl of Halifax, to be examined concerning the premises, and to be further dealt with according to law; and upon that occasion did search the said house, and necessarily continued therein for the said space of four hours. And it was further given in evidence and proved, on the part of the defendants, that upon that search, the defendants did find Leach in the said house, and did also then find a newly-printed sheet, containing a copy of one of the said weekly compositions, intitled, “The North Briton, No. 1,” and part of a copy of another of the said weekly compositions, intitled, “The North Briton, No. 2,” which sheet was printed by the said Leach. And it was further proved, that the said Leach did also print one of the said weekly compositions, intitled, “The North Briton, No. 26.” And the defendants, with the assistance of the constable, did seize and take into their custody the said Leach, in order to bring him in safe custody before the said Earl of Halifax, to be examined concerning the premises ; and on that occasion did keep and detain him in their custody for the space of four days ; at the end of which time, it appearing by the examinations of divers persons then taken, touching the author, printer, and “publisher of the said paper, that the said Leach was not the author, printer, or publisher thereof, the defendants Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 533 by the command of the said Earl of Halifax, released and Leacr discharged him from that imprisonment: but the said Moxey. Leach was never carried before or examined by the said Earl of Halifax. And that the entering the house of the said Leach, and searching the same, and taking into and detaining in their custody him the said Leach in the manner and on the occasion hereinbefore stated, were the whole of the trespass, assault and imprisonment, com- mitted by the said defendants, or any of them. But it was proved on the part of the said Leach, that he was not the author, printer, or publisher of the said paper, intitled, “The North Briton, No. 45,” in the said warrant men- tioned, nor of any other numbers of the said weekly com- positions, except as before stated. Whereupon the counsel for the defendants insisted before the said Chief Justice, that the said several matters so produced and given in evidence on their part as aforesaid, were sufficient, and ought to be admitted and allowed as decisive evidence to entitle them to the benefit’ of the statute of 24 Geo. IL, intitled, “ An Act for rendering justices of the peace more safe in the execution of their office, and for indemnifying constables and others acting in obedience to their war- rants” (f); and that therefore the said Leach ought to be barred of his aforesaid action, and the defendants acquitted thereof. And thereupon the defendants, by their counsel aforesaid, did then and there pray of the Chief Justice to admit and allow the matters and proof so produced and given in evidence for the defendants as aforesaid, to be conclusive evidence to entitle the defendants to the benefit of the statute aforesaid, and to bar the said Leach of his action aforesaid. But to this, the counsel for the plaintiff then and there insisted before the Chie Justice, that the matters and evidence aforesaid so produced and proved on the part of the defendants as aforesaid, were not sufficient, nor ought to be admitted or allowed to entitle the de- (f) Post. Digitized by Microsoft® 534 CONSTITUTIONAL LAW. wt a fendants to the benefit of the statute aforesaid, or to bar Moxey. the said Leach of his aforesaid action; and that neither the defendants, or any of them, nor the said Earl of Halifax, were or was within the words or meaning of the stat. 7 Jac. 1, ¢. 5, intitled, “An Act for ease in pleading against troublesome and contentious suits prosecuted against justices of the peace, mayors, constables, and cer- tain other his Majesty’s officers, for the lawful execution of their office ;” nor of the stat. 21 Jac. 1, c. 12, being an Act to enlarge and make perpetual the preceding statute ; nor of the said stat. 24 Geo. 2,c. 44; nor in any wise entitled to the benefit of any of those statutes. And the counsel for the said Leach further insisted, that the seizure and imprisonment of the said Leach were not made and done in obedience to the said warrant; nor had the de- féndants, or any of them, in that behalf, any authority Rulingof thereby: And the Chief Justice did then and there Justice, declare and deliver his opinion to the jury aforesaid, “that the several matters so produced and proved on the part of the defendants were not, upon the whole case, sufficient to bar the said Leach of his aforesaid action against them ;” and, with that opinion, left the same to the jury. Where- upon the counsel for the defendants did then and there, on behalf of the defendants, except to the aforesaid opinion of the Chief Justice; and insisted on the said several matters and proofs as an absolute bar to the aforesaid action, by virtue of the last-mentioned statute. intuor ‘This case was first argued by Mr. De Grey, S.G., for the plaintiffs in error ; and by Mr. Dunning for the defendant in error. Mr. De Grey argued as under :— I. The defendants had a right to plead the general issue, and to give the special matter in evidence, under 7 Jac, 1, c.5. Or, in other words, Lord Halifax, the Secretary of State, was a justice of the peace within the intention of that Act. II. The evidence was sufficient to entitle the defendants Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. to a verdict. Which will take in both the validity of the” warrant itself, and the manner of.executing it, III. They were also entitled to a verdict within the meaning of 24 Geo. 2, c. 44, the plaintiff not having observed the terms required by that statute. 1. Before the stat. 7 Jac. 1, c 5, a matter of special justification could not be given in evidence by a justice of the peace, upon the general issue pleaded by him. The- question is—Who were meant in that Act of Par- liament, by justices of the peace ? Some persons were, from ancient times, so, by office , some are so by special commission ; some, by corporation- charters ; some by tenure; some by prescription. In the time of Edward III, other persons were autho- rised to act within particular districts. But the great officers of state had the jurisdiction, as incident to their offices. So had, in some degree, coroners and other inferior officers. The Secretary of State must have had it as incident to an office, so ancient as to be coeval with the Crown itself. In cases of treason, and of felony, the courts of law recognise his authority: and there is equal reason for it, in cases of misdemeanor ; which affect government, and disturb the public peace. A seditious libel is an offence against government and the public peace; and effectually undermines govern- ment. A Secretary of State is a sentinel for the public peace : it is his duty to prevent the violation of it, and to bring offenders to justice ; and it is necessary that he should be invested with this power, in order to enable him to execute" his duty. The case of R. v. Kendal (g) has settled this point, as (g) 1 Salk. 847; 8. C. 5 Mod. 78; 12 Id. 82; Comberb. 343 ; 12 St. Tr. 1299 ; Skin. 596; Holt, 144, Digitized by Microsoft® 535 LEACH v Money. 536 CONSTITUTIONAL LAW. Inacn to treason : for it was there held, that “Secretaries of Moxey. State might commit for suspicion of treason, as conserva- ~~ tors of the peace did at common law; and that it was incident to the office, as itis to the office of justices of peace, who do it ratione officio.” And the commitment to a messenger was there held good. In Reg. v. Derby (h), for publishing a scandalous and seditious libel called “The Observator,” the two points above mentioned were admitted by Mr. Lechmere, who was counsel for the defendant. He agreed the power of a Secretary of State to commit for treason or felony; and that a messenger was a proper officer. And in that case the Court held the warrant good and legal. In &. v. Harbury (2), the defendant had been arrested and committed by warrant of a Secretary of State; and his papers seized, which he applied to have restored ; Lord Hardwicke held, that they could not be restored, in a summary way, on motion, The warrant there was “to search for the papers, and to bring the author before the Secretary of State” (4). 2, If the special matter may be given in evidence, then the question will be, whether this matter given in evidence would, if it had been pleaded, amount to a justification. It is objected that the warrant is not legal ; and that it was ill executed. Ist. As to the warrant itself—No such action has ever been brought upon these warrants, by persons appre- hended by virtue of them : or, at least, there is none upon record. It is said, that this warrant is too extensive in the de- scription of the person: and that it has been abused. Answer.—The power is not illegal: and the abuse of it (h) Fortesc. 140. that the Secretary of State was a con- (4) Fortese. 37, S.C. (nom. R. v. — servator of the peace (see post), and Erbury) 8 Mod. 177. so entitled to protection under various (£) Counsel then proceeded to argue statutes. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. is no objection to the warrant itself. Such warrants are agreeable to long practice and usage. Whatever the present determination may be, in point of law, it will be in the breast of the legislature to set it right. The power of justices of peace to commit before indict- ment, stands supported only by practice and usage. Holt, C. J., says, “Formerly, none could be taken up for a misdemeanor, till indictment found: but now the practice all over England is otherwise” (2). And per Hale (m), “that practice is become a law.” The greatest judges have bailed persons taken up upon these warrants ; and they have not been objected to, by either courts, or counsel of the greatest eminence : where- as, if they were not legal, the persons apprehended upon them ought to have been discharged (n). The Court will not make orders upon illegal warrants: consequently, they saw no objection to them. Even the greatest friends to the Revolution have not objected to these warrants, From whence it must be inferred, that no objection lies against them. On 6th July, 1641, in the case of Sir John Elliott (0), the House of Commons resolved, that it was a breach of privilege: but they did not vote it illegal. In Miss Blandy’s case (p), her bureau was broken open : and her papers seized ; and given in evidence. Indecent prints or books may be seized by a magistrate: and they often have been so. Evidence taken from felons or other criminals may be produced against them ; though a criminal shall not be compelled to produce such evidence against himself. It is said, that this warrant is illegal, because it is general, to take up the author, printer, or publisher. But it is legal to issue and execute a warrant against a person " (2), Anon. 6 Mod. 178, (0) 8 St. Tr. 298. (m) P.C. vol. ii. p. 108. (p) 18 St. Tr. 1117. - (ny 1 Hale, P. C. 578, Digitized by Microsoft® 537 Lracnh Vv. Money. 538 : CONSTITUTIONAL LAW. Leach unknown, but only described. Indeed the magistrate Moxey. issues it, and the officer must execute it, at his peril. ~~ And though the warrant includes seizing the papers, yet that. part of it has not been executed: and the bare inser- tion of it shall not affect the officer who executed the other part of the warrant. The facts are these—A warrant was directed to four messengers: Carrington, one of them, is informed that Leach was the printer: and that the reputed author was frequently at Leach’s house. The other three act on this information. And this information was not groundless : for they found a sheet of another number, wet and just printed. They take him up and carry him to Lord Halifax’s office ; who was not then at leisure to examine him: but when he did examine him (four days after), he discharged him. Here was probable cause for taking him up. A justice of the peace having jurisdiction, may grant a proper warrant on probable cause: and ministerial officers (constables, &c.) are not to be affected by the illegality of the warrant, in other parts of it. This warrant was executed honestly, and upon a probable cause, 3. The plaintiff's action is sufficiently barred by 24 Geo. 2, c. 44, for want of observing the terms required by it. He neither proved notice, as sect, 3 requires, nor made the demand required by sect. 6. The defendants have acted in obedience to the warrant of a magistrate who is a justice of the peace within the meaning of this Act; and by his order, and in his aid. The only doubt is, whether the action is brought for any- thing done in obedience to the warrant ; or not. The defendants have obeyed it, to the best of their power. However, as they have acted under colour of the war- rant, meaning to obey it, they are not answerable, although they may have erred in execution of it. They are pro- tected by this Act, if they have acted bond fide; even Digitized by Microsoft® RELATION OF .THE SUBJECT TO THE EXECUTIVE. though the warrant and the execution be illegal. They are not to judge of arduous points of law; the statute means to protect them from it. The previous step to bringing this action was not taken; viz., the demanding a perusal and copy of the warrant, and showing a refusal of it. If there was a fault, or negligence, or ness in this proceeding, the fault was in the magistrate: there was none in the officer who executed it. And the requisite steps have not been taken, in order to maintain the suit. Therefore the plaintiff is barred of this action. Mr. Dunning, contra—for Mr. Leach, the plaintiff below. The first question is, whether this be a case within 24 Geo. 2, ¢. 44, Which question will involve the question, whether it be within the Acts 7 Jac. 1, c. 5, or 21 Jac. 1, ec, 12. All these statutes, being in part materid, must receive the same construction ; and they are all inapplicable to the present case. He then made three sub-divisions of his first question : viz. :— 1st. Whether Lord Halifax, being ee of State, is a conservator or justice of peace, within the true intent and meaning of the stat. 24 Geo, 2, ¢ 44, 2ndly. Whether the defendants are constables, head- boroughs, or officers, &c., within the intent and meaning of that Act. 3rdly. Whether this action is brought and properly pursued, within the true intent and meaning of it; and for a matter done in obedience to the warrant. ‘1st—Lord Halifax is not a justice of the peace within 24 Geo. 2, c. 44. He is not so by commission: he is not so, as incident to his office, either of Secretary of State, or of Privy Counsellor. But it has been said, he is a conservator of the peace ; and therefore within the meaning of the Act. Digitized by Microsoft® Leacu v Money. 540 CONSTITUTIONAL LAW. Leacn I deny the principle and also the conclusion. I admit Moxey, the case of R. v. Kendal (q), though the reasons of it do "not appear: that a Secretary of State has a power to commit for high treason. I deny that a Secretary of State is a conservator of the peace. He has only a power of committing for high treason, as conservators of the peace had in other cases, and R, v. Kendal carries it no further, All the Crown writers are silent on the subject of a Secretary of State having this jurisdiction. None of them even hint that a Secretary of State is a conservator of the peace. Staundford, Fitz-Herbert, Lambard, &c., say no such thing. Lambard (7) gives the list of those officers who are con- servators of the peace: but there is no mention ‘therein of Secretaries of State. Serjeant Hawkins (s) copies the same list, without adding Secretaries of State. There is no proof or pretence that the conservatorship of the peace is incident to their office: nor is there any usage to support such a notion. Their claim of a power to grant such warrants as the present one, is not pretended to be older than the Revolution. If they were justices of the peace, or conservators of the peace, they would be bound to execute the powers given to justices, or residing in constables: and the y would be subject to the control of this Court. The offices are different in creation, constitution, and execution. The very language of the warrant shows that the Secre- tary of State did not consider himself as a justice, conser- vator, or constable. This statute is not to be extended beyond the letter of it: it is not within the maxims or reasons of extension of Acts of Parliament. So much for the noble lord. (q) Ante, p. 535, (r) Lib, io 8. (s) P. C. Bk. tie. 8, s, 2. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 2ndly.—As to the messengers—They do not fall within the words or meaning of the stat. 7 Jac. 1, c. 5, which is confined to officers who are persons known in our law, and bound to execute the warrant of a justice of the peace. The king’s messengers in ordinary are persons unknown to our law, and mere volunteers in executing warrants of justices. The words, “other officers,” &., used in the statute mean borsholders, &c., officers of the same sort as con- stables and tithingmen; not king’s messengers. These persons cannot be considered as aiding and assisting the constables. The warrant and the fact are quite the reverse: the constables are directed to assist them. This warrant is not under the hand and seal of a justice of peace. Therefore the Act does not protect the defendants. 3rdly.—Nor is the act done in obedience to this warrant. The warrant was to “apprehend the author, printer, or publisher :” but they have executed it upon a person who was not the author, printer, or publisher. Consequently, as they have not acted under it, they cannot be protected by it. The obedience to the warrant is the condition of the protection which the Act gives to the officer. There- fore, the condition failing, the protection does not take place. Here is no probable cause, nor any reason for justifying the officer under a probable cause. It is not like the cases of apprehending traitors or felons. Here is only information from one of their own body, that the author of the paper had been seen going into Leach’s house; and that Leach was the printer of the composition in general ; not of this particular paper. But though neither this hearsay information was in itself true; nor would the consequence follow, if it had been true; yet they thereupon arrest and imprison an Digitized by Microsoft® 541 Leach v. Money. 542 LEAcH Vv. Money. CONSTITUTIONAL LAW. innocent man. Therefore these men themselves are to answer for doing this: not the person who issued the warrant. The warrant did not command nor authorise them to do what they have done. It is necessary for them to show an acting in obedience to the warrant: otherwise they are not within the protection of the Act. [In proof of which he cited two cases ; one by the name of Lawson or Dawson v. Clerk (t); and the other a Norwich case, where a bailiff had executed the warrant out of the proper jurisdiction. | Besides, the party apprehended was not carried before Lord Halifax, or dealt with according to law. Surely this was the act of the officer; not of the person who signed the warrant. And no reason is given, stated, pre- tended, or even existed, why this matter was so transacted. Therefore there was no probable cause or reason whereupon to ground a justification of this their conduct. So that, even allowing the Secretary of State to bea justice of the peace, and the officers to be constables; yet the action lies against the plaintiffs in error, who have acted in this unjustifiable manner. It appears therefore, that even if they had a defence upon the merits, they have not properly pleaded it. How- ever, in fact they had no defence upon the merits: the plaintiff Leach was neither author, printer, nor publisher of the paper; nor at all within the description of the warrant. But the warrant itself is illegal. It is against the author, printer, and publisher of the paper, generally, without naming or describing them ; and not founded on any charge upon oath : it is also to seize his papers; that is, all his papers. No justice of the peace has power to issue such a war- rant. Therefore Lord Halifax could not do it as a justice of the peace. Nor is there any pretence of usage to (t) See 1 W. Bla. 568, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. support such a claim of doing it as Secretary of State, further back than the Revolution. It lies upon the defendants below to prove their claim, and to show their authority. The practice of a particular magistrate cannot control the law. Communis error is not, in this case, sufficient to make law. It is the duty, and it is therefore, doubt- less, the inclination of the Court to stop the mischief, as soon as it is complained of to them. If “ author, printer, and publisher,” without naming any particular person, be sufficient in such a warrant as this: is; it would be equally so, to issue a warrant generally, “to take up the robber or murderer of such a one.” This is no description of the person; but only of the offence : it is making the officer to be judge of the matter, in the place of the person who issues the warrant. Such a power would be extremely mischievous, and might be productive of great oppression. . To ransack private studies in order to search for evi- dence, and even without a previous charge on oath, is contrary to natural justice, as well as to the liberty of the subject: and it is as useless as it is cruel, in the case of libels; because it is the publication only that makes the crime of a libel. To search a man’s private papers ad libitum, and even without accusation, is an infringement of the natural rights of mankind. And this is a warrant to seize all a man’s papers, without any particular relation even to the crime they would suppose him chargeable with («). No case of this sort has ever undergone judicial discus- sion and determination. And as the Court does not interpose in cases not objected to, no arguments can be drawn from such as passed sub silentio, All the writers upon the Crown law say, that there must be an accusation; that the person to be apprehended (u) See Wilkes v. Wood, post, p. 548; Entick v. Carrington, post, p. 558. Digitized by Microsoft® 543 Leacu Vv Money. 544 LEACH Vv Money. CONSTITUTIONAL LAW. must be named; and that the officer is not to be left to arrest whom he thinks fit (a). Here, it is left to the officer, to take up any person whom he himself suspects. Lord Chief Justice Scroggs was impeached for issuing such warrants as this is (y). Therefore he prayed judgment for the defendants in error. Mr. De Grey, S.G., having been heard in reply on behalf of the plaintiffs in error, Lord Mansfield, C. J., observed -— A bill of exceptions supposes the evidence true ; and questions the competency or propriety of it. Whether there was a probable cause or ground of sus- picion, was a matter for the jury to determine: that is not now before the Court. So—whether the defendants de- tained the plaintiff an unreasonable time. But if it had been found to have been a reasonable time, yet it would be no justification to the defendants ; because it is stated, that this man was neither author, printer, or publisher: and if he was not, then they have taken up a man who was not the subject of the warrant. The three material questions are—Ist. Whether a Secre- tary of State, acting as a conservator of the peace by the common law, is to be construed within the statutes of James J. and of the last king. The protection of the officers, if they have acted in obedience to the warrant, is consequential, in case a Secre- tary of State is within these statutes. As to the arrest being made in obedience to the warrant, or only under colour of it and without authority from it—this question depends upon the construction of the warrant ; whether it must not be construed to mean such persons as are under a violent suspicion of being guilty of the charge; (for they cannot (a) Hale P. 0. 580, 586; Hawk. P.C, Bk. ii. c. 13, s. 10, (y) 8 Ste Tr. 195, 197. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. be conclusively considered as guilty, till after trial and con- viction.) The warrant itself imports only suspicion; for, it .says,—“to be brought before me, and examined, and dealt with according to law,” and this suspicion must eventually depend upon future trial. Therefore the warrant does not seem to me to mean conclusive guilt, but only violent sus- picion. If the person apprehended should be tried and acquitted, it would show that he was not guilty, yet there might be sufficient cause of suspicion. Mr. Dunning .says, very rightly, that to bring a person within this 24 Geo. 2, the act must be done in obedience to the warrant. The last point is, whether this general warrant be good. One part of it may be laid out of the case: for, as to what relates to the seizing of papers, that part of it was never executed ; and therefore it is out of the case. It is not material to determine whether the warrant be good or bad ; except in the event of the case being within 7 Jac. 1, but not within 24 Geo. 2. At present—as to the validity of the warrant, upon the single objection of the uncertainty of the person, being neither named nor described—the common law, in many cases, gives authority to arrest without warrant; more especially, where taken in the very act: and there are many cases where particular Acts of Parliament have given authority to apprehend under general warrants, as in the case of writs of assistance, or warrants to take up loose, idle, and disorderly people. But here, it is not contended, that the common law gave the officer authority to apprehend ; nor that there is any Act of Parliament which warrants this case. Therefore it must stand upon principles of common law. It is not fit that the receiving or judging of the informa- tion should be left to the discretion of the officer. The magistrate ought to judge, and should give certain directions to the officer. This is so upon reason and convenience. Then as to authorities—Hale and all others hold such an NWN Digitized by Microsoft® 545 Lracu % Money. 546 Lracu v Money. CONSTITUTIONAL LAW. uncertain warrant void (z), and there is no case or book to the contrary. It is said, that the usage has been so; and ‘that many such warrants have been issued, since the Revo- lution, down to this time. But a usage, to grow into law, ought to be a general usage, communiter usitata et approbata; and which, after a long continuance, it would be mischievous to overturn. This is only the usage of a particular office, and contrary to the usage of all other justices and conservators of the peace. There is the less reason for regarding this usage, because the form of the warrant probably took its rise from a positive statute, and the former precedents were inadver- tently followed after that law was expired. Mr. Justice Wilmot declared that he had no doubt, nor ever had, upon these warrants; he thought them illegal and void. Neither had the two other judges, Mr. Justice Yates, and Mr. Justice Aston, any doubt of the illegality of them: for no degree of antiquity can give sanction to a usage bad in itself. And they esteemed this usage to be so. They were clear and unanimous in opinion that this warrant was “illegal and bad. The Case standing over for further argument on Friday the 8th of November, 1765 : Mr. Yorke, Att. Gen., on behalf of the plaintiffs in error, began to enter into his argument; but when he came to mention the two cases cited by Mr. Dunning, both of which were determined before Lord Mansfield, upon the 24 Geo. 2, c. 44, one of them at Norwich summer assizes, 1761 ; (where damages were given); the other of them (a), ona warrant under the, Vagrant Act, 17 Geo. 2, (where his lord- ship held, that the defendant ought to show that the officer had acted in obedience to the warrant, and he did so ;) he seemed to intimate that this objection of their not having. (2) Ante, p. 587, (a) Dawson v. Clerk, ante, p. 42. Digitized by Microsoft® RELATION OF THE SUBJECT, TO THE EXECUTIVE. done so in the present case, was too great a difficulty for him to encounter; and therefore rested the matter where it was, without proceeding any further in his argument. Lord Mansfield, C. J, remembered both these cases, and said he still continued of the same opinion. Where the justice cannot be ‘liable, the officer is not within the protection of the Act. The case in Middlesex concludes exactly to the present. case. For, here the warrant is to take up the author, printer, or publisher; but they took up a person who was neither author, printer, nor publisher; so that case was a warrant to take up a disorderly woman, and the defendant took up a woman who was not so (b). And he held the same opinion now, he said, as he did before, in the case at Norwich. This makes an end of the case ; for this is a previous question, and the foundation of the defence fails. The consequence is, that the judgment must be affirmed. The other judges assenting, the judgment was accordingly affirmed (c). (6) See Hawk. P.C. (ed. by Leach) Bk. 2, ¢, 18,8. 31. (c) ‘* Thus this Case went off, with- out any judicial decision on any of the chief points which were raised in it. The only point professed to be regu- larly adjudged was, that the warrant in question had not been pursued. - ether a secretary of state is a con- servator of the peace ex officio, and as such within the equity of the statutes in favour of justices of the peace ; whether he has power to commit for any offence under high treason; whe- ther a single privy counsellor has a right to commit in any case ; whether a warrant for the seizure of papers could not be justified in the case of a seditious libel; and whether a general warrant, neither naming the offender, nor otherwise describing him, except by relation to the offence committed, could be maintained at common law ; all these important questions were left unadjudged. However, enough was said by the Court on the last of _them to evince, that all the four judges thought general warrants to seize; the person universally illegal, except where the granting of them was specially authorized by Act of Parliament ; and from the attorney- general’s readiness in yielding another point to avoid a decision of that con- cerning the legality of general war- rants, it may be conjectured, that he despaired of being able to support them.”—-Note by Mr. Hargrave, 19 St. Tr. 1028, NN 2 Digitized by Microsoft® 547 Leacu vw Money. 548 CONSTITUTIONAL LAW. WILKES v. WOOD, 19 St. Tr. 1153 (d). (3 Geo. 8, a.p. 1763.) SEIZURE OF PAPERS. A general warrant issued by a Secretary of State to search for and seize the papers of the author (not named) of a seditious libel is illegal (e). This was an action of trespass, for entering the plaintiff's house, breaking his locks, and seizing his papers, &c. Mr. Gardiner, in opening the case, stated that on the 30th of April last, Mr. Wood, with several of the king’s messengers, and a constable, entered Mr. Wilkes’s house ; that Mr. Wood was aiding and assisting the messengers, and gave directions concerning breaking open Mr. Wilkes’s locks, and seizing his papers, &c., for which Mr. Wilkes laid his damages at 50001. Serjeant Glynn then enlarged on the circumstances of the case, and remarked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject in this country. In vain has our house been declared, by the law, our asylum and defence, if it is capable of being entered, upon any frivolous or no pretence at all, by a secretary of state. Mr. Wilkes, unconvicted of any offence, has undergone the punishment. That, of all offences that of a seizure of papers was the least capable of reparation ; that, for other offences, an acknowledgment might make amends; but that for the promulgation of our most private concerns, affairs of the most secret per- sonal nature, no reparation whatsoever could be made. That the law never admits of a general search-warrant. (d) 8. OC. Lofft. 1. (e) The warrant directed the mes- sengers (taking a constable to their assistance) ‘‘to make strict and dili- gent search for the authors, printers, and publishers of a seditious and trea- sonable paper entitled, ‘The North Briton,’ No. 45, &c., and these or any of them having found, to appre- hend and seize together with their papers.”—(See Wilkes’s Case, 19 St. Tr. 981). Under the above warrant Mr, Wilkes was arrested and his papers were seized. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. That in France, or Spain, even in the Inquisition itself, they never delegate an indefinite power to search, and that no magistrate is capable of delegating any such power. That some papers, quite innocent in themselves, might, by the slightest alterations be converted to criminal action. Mr. Wilkes, as a member of parliament, demanded the more caution to be used, with regard to the seizure of his papers, as it might have been naturally supposed, that one of the legislative body might have papers of a national ‘ concern, not proper to be exposed to every eye. When we consider the persons concerned in this affair, it ceases to be an outrage to Mr. Wilkes personally, it is an outrage to the constitution itself. That Mr. Wood had talked highly of the power of a secretary of state ; but he hoped, by the verdict, he would be brought to think more meanly of it. That if the warrants were once found to be legal, it would fling our liberties into a very unequal balance. That the constitution of our country had been so fatally wounded, that it called aloud for the redress of a jury of Englishmen. That their resentment ayainst such proceedings was to be expressed by large and exemplary damages; that trifling damages would put no stop at all to such proceedings : which would plainly appear, when they considered the persons concerned in the present prosecution, persons, who by their duty and office should have been the protectors of the constitution, instead of the violaters of it. Mr. Eyre, Recorder of London, observed that the present cause chiefly turned upon the question, whether a secretary of state has power to force persons’ houses, break open their locks, seize their papers, &c. upon bare suspicion of a libel, by a general warrant, without name of the person charged. A strange question to be agitated in these days, when the constitution is so well fixed, when we have a prince upon the throne, whose virtues are so great and amiable, and whose regard for the subject is such, that he must frown at every encroachment upon his liberty. Nothing can be more unjust in itself, than that the proof Digitized by Microsoft® 549 WILKES vw. Woop. —_— 550 CONSTITUTIONAL LAW. ames of Bt man’s guilt shall be extracted from his own bosom. woor. No legal authority, in the present case, to justify the action. No precedents, no legal determinations, not an Act of Parliament itself is sufficient to warrant any proceeding’ contrary to the spirit of the constitution.. Secretary Williamson, in Charles II.’s time, for backing an illegal warrant, was sent to the Tower by the House of Commons (f). The jury, he observed, had no such power to commit; he knew it well; but, for his part, he wished. they had, as he was persuaded they would exercise it, in the present case, as it ought to be. On the famous certificate in Queen Elizabeth’s time (9), how far a man might be detained by a warrant of a privy counsellor, the answer of the judges, even in those days, confined it to high treason only, and the power to arrest to_ be derived from the personal command of the king, or a privy counsellor. He then congratulated the jury that they had now in their power the present cause, which had been by so much art and chicanery so long postponed. Seventy years had now elapsed since the Revolution, without any occasion to inquire into this power of the secretary of state, and he made no doubt but the jury would effectually prevent the question from ever being revived again. He therefore recommended them to em- brace this ‘opportunity (lest another should not offer in haste) of instructing those great officers in their duty, and that they (the jury) should now erect a great sea mark, by which our state pilots might avoid, for the future, those rocks upon which they now lay shipwrecked. The first witness for the plaintiff was Matthew Brown. —Says that he is butler to Mr. Wilkes. That on the 30th of April last, about nine o’clock in the morning, Watson, Blackmore, Money, and Mann, king’s messengers, and Chisholm, a constable, came to Mr. Wilkes’s house. That about noon, Mr. Wood (the defendant) and Mr. Stanhope came; that Mr. Wood asked Mr. Watson, “Have you (f) Cuobbett, Parl. Hist. vol. 4, 1028, (yg) Ane, p. 202 Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE. locked up all the rooms where Mr. Wilkes’s papers are ?” He answered, “Yes; I have got the key of the: study.” That Mr. Wood and Mr. Stanhope then went into the parlour.. That Mr. Wood staid that time about half anh hour; that when he went away he gave orders to the messengers, that no one should come in or go out till he returned, but bade them lock up all the doors. That he came back again in about an hour. That in the mean time several of Mr. Wilkes’s: friends came, and were denied admittance by the constable ; that Watson, the messenger, upon being called upon by these gentlemen to produce his orders for refusing them admittance, said he had only a verbal order from Mr. Wood. That the messengers, how- ‘ever, did at last permit the gentlemen to come in. That Mr. Wood then called for a candle, which. was brought him, and he and Mr. Stanhope went up stairs, with Money and Blackmore, the. messengers, who appeared to take their orders from Mr. Wood. and Mr. Stanhope. That’ they rummaged all the papers together they could find, in and about the room ; that they (the messengers) fetched a sack, and filled it with. papers, That Blackmore went down stairs, and fetched a smith to open the locks. That Mann, a messenger, then came, and would whisper Mr. Wood, who bade him speak out; he said he brought orders from Lord Halifax to seize all manuscripts. That the smith then came, and, by the direction of Blackmore, the mes- senger, opened four locks of the lower drawers of a bureau; that they took out all the papers in those drawers, and a pocket-book of Mr. Wilkes’s, and put them all into the sack together, and sealed up the sack. That witness was present during all this time; that the messengers were obedient, and paid an entire repardl to the directions of Mr. Wood and Mr. Stanhope. That Mr. Wood, upon the whole, might be near two hours and a half in Mr. Wilkes’s house. That no kind of inventory was made of the papers whieh were put into the sack. The foregoing evidence having been generally confirmed Digitized by Microsoft® 551 WILKES » Woop. 552 CONSTITUTIONAL LAW. Wruxes by other witnesses, the Solicitor-General addressed the Woop. jury for the defence, which he divided into two parts ; 1st, he maintained the plea of not guilty; but if the jury should be of opinion that would not stand good, and that the evidence he should bring would not be capable of setting aside the evidence already produced in court on the other side, he then, 2ndly, relied on the special justifi- cation. He was at a loss, he said, to understand what Mr. Wilkes meant by bringing an action against Mr. Wood, as he was neither the issuer of the warrant, nor the execu- tioner of it. If the constitution had been in such an egregious manner attacked, why not bring the secretaries of state themselves into court? Why should Mr. Wilkes commence separate actions against each person? Is Mr. Wilkes, at any event, entitled to tenfold damages? This was the first time he ever knew a private action repre- sented as the cause of all the people of England. If the constitution has, in any instance, been violated, the crown must be the prosecutor, as it is in all criminal cases. The constitution does not consist in any one particular part of the law; the whole law is the constitution of the country, and a breach in one part of the law is as much a violation of the constitution as of another. Though so much has been said on the other side, with regard to the injury that might result from the promulgation of secrets, no proof had been brought of anything being promulgated that was not proper to be so. He then went upon the argument touching the warrant, and observed that these warrants had been issued as far back as the courts of justice could lead them. That the late Act of George II. (h) , for taking up vagrants allowed a general search-warrant, and he never knew it was esteemed an infringement of our constitution. That these warrants had existed before, at, and since the Revo- lution, and had been till this case unimpeached ; that if so contradictory to the constitution of this country, they could never have remained to this time. (h) Vide 17 Geo. 2, « 5, s. 6. Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE. 553. He then went on to make remarks on the evidence Wxss which had been given by the plaintiff; remarked that the Woon. question of liberty had nothing to do with the present. -cause, which only respected the seizure of papers. That the messengers went bunglingly about their business ; Mr. Wood was only sent to see they did their duty. He then went on to make remarks on the “North Briton,” No. 45. If Mr. Wilkes should be proved to be the author of that paper, which he was confident he should be able to prove, to the full satisfaction of the court and jury; so far from thinking him worthy of exemplary damages, he was certain they would view him in his true and native colours, as a most vile and wicked incendiary, and a sower of dissension amongst his Majesty’s subjects. He then observed that the freedom of this country consists, that there is no man so high, that he is out of the reach of the law, nor any man so low, that he is beneath the protection of it. That the warrant was legal in itself; that the authority of a secretary of state was sufficiently established. That damages should always be reckoned according to the injury received; a jury that acted on any other principle certainly forswore themselves. Lord Halifax then came into court, and, being sworn, said, that he did receive information concerning No, 45. That he did issue warrants in consequence of such infor- mation. That he did desire Mr. Weston, his secretary, to go to Mr. Wilkes’s, and see that the messengers did their duty; that Mr. Weston declined, beseeching his lordship to excuse him on account of his ill state of health ; that he then did desire Mr. Wood to go, who accordingly went. That he had reason to believe that Mr. Wilkes was the author of No. 45. That he had information previous to the apprehending of Mr. Wilkes. That this information tended to prove Mr. Wilkes the author of No. 45. Upon the Lord Chief Justice expressing a desire to be ‘informed by his lordship concerning the nature of the information said to be received at his office, and about Digitized by Microsoft® 554 CONSTITUTIONAL LAW. Wes which his lordship appeared rather shy, the Solicitor- General Wooo. produced an affidavit of Walter Balff, a printer in the Old Bailey, which was read. It had in general a tendency to prove Wilkes the author and Balff the printer of No. 45. Upon Lord Halifax being cross-examined, he said that Mr. Weston is his own secretary, and that Mr. Wood was Lord Egremont’s secretary. That the warrant for the apprehension of Mr. Wilkes was made out on the 26th of April last, and the information he now fixes to have been received on the 29th of April, and the arresting Wilkes’s person on the 30th day of April. [The: king’s speech at the close of the last session of parliament, and the North Briton, No. 45, were read.] Oral evidence was then given to connect Mr. Wilkes generally with the publication of the “North Briton.” This was objected to as not tending directly to show that he was the author of. No. 45; it was however allowed by the Lord Chief Justice “to be a good corroborating chain,” but his lordship observed that if the defendant’s counsel “ failed in the last link the whole would fall to the ground.” Evidence was afterwards adduced tending specifically to establish that Wilkes was the author of No. 45. The counsel for the defendant then went into the legality of the warrant, and many precedents of the same kind of warrants were produced in court,; to prove such warrants the constant uninterrupted course of the secre- tary’s office from the Revolution. [The warrants from Lord Halifax, for apprehending the authors, printers, and publishers of the North Briton, No. 45, were likewise read.] Lovel Stanhope, Esq., says that he came to Mr. Wilkes's house immediately after he was carried away to Lord- Halifax’s ; that he went with Mr. Wood, and stayed there half an Hout: that he was there but once, and stayed till the papers were sealed up; that he never went out of the study ; that Mr. Wood was in the study but part of the time, and did nothing at all but observe what passed ; that Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, 555 he (Mr. Wood), gave no orders to break locks by any kind Wruaces of means, nor gave the messengers any orders or directions at all, but only bade them do their duty, and use civility. That Mr. Wood was ‘not in the room when the smith was sent for, nor gave any orders for that purpose, as Mr. Stanhope observed; that Mr. Wood was not present when the locks were opened. But that it was Blackmore, the messenger, who broke open ‘the locks. That Mr. Wood went'to Mr. Wilkes merely at the instance of Lord Halifax, in order to enforce a due and proper obedience to and execution of the warrant, and to prevent the messengers from committing any blunders. That a debate arising, whether a table with a locked drawer should be removed entire or be opened, Mr. Mann was sent to Lord Halifax for directions, and brought word that the drawers must be opened. Upon being cross-examined, the witness said that the messengers were to take manuscript papers only, and not meddle. with improper. matters, such as printed books, papers, &c. That he did think it incumbent upon him to see that all the proper papers should be removed. Serjeant Glynn in his reply observed, that what he had to remark he should divide under two heads, Ist, as to the defence which had been set up of not guilty; and, 2ndly, make observations on the special justification that had been pleaded. The evidence proved, uncontroverted, that Mr. Wood was the prime actor in the whole affair. Was it possible to suppose that aman of Mr. Wood’s character and known abilities should be sent only with a message that any menial servant could have delivered as well; and that he should have nothing else to’ do with the affair. He then went upon the point of justification, and observed that as to Mr, Wilkes being the author of No. 45, they had totally failed in any kind of proof whatsoever; or if they had produced the appearance of a proof, it was quite aside to ' the present question, That Mr. Wilkes could not be Digitized by Microsoft® Woon. 556 WILKES % Woon. CONSTITUTIONAL LAW. supposed or even suspected of any design against the present establishment ; that he was educated in and had always adopted Whig principles; that he was known to be attached to and to have the highest opinion of the present prince on the throne, which he had often and upon many occasions declared; and his conduct had always been answer- able to these declarations. He then observed that various hands were employed in most periodical works ; that Mr. Wilkes was not denied to be the author of some of the North Britons; but that it was not likely he was the author of No. 45. He then observed as to the warrant, that it was destitute of those things necessary to make it legal: that a previous information was always necessary. That the defendants had nothing to entitle them to a verdict. That the case was a wound given to the consti- tution, and demanded damages accordingly: that Mr. Wilkes’s papers had undergone the inspection of very improper persons to examine his private concerns, and called for an increase of damages on that score. The evidence brought of precedents of these warrants only show how easy things may creep into our constitution, subversive of its very foundation. He closed with telling the jury he made no doubt but they would find a verdict for the plaintiff, with large and exemplary damages. The Lord Chief Justice Pratt summed up the evidence, and observed that this was an action of trespass, to which the defendant had pleaded first Not Guilty, and then a special justification. He then went through the particulars relating to the justification, the king’s speech, the libel No. 45. Information given, that such a libel was published; Lord Halifax granting a warrant; messengers entermg Mr. Wilkes’s house; Mr. Wood directed to go thither only with a message, and remaining altogether inactive in the affair. If the jury should be of opinion that every step was properly taken as represented in the justification, and should esteem it fully proved, they must find a verdict for the defendant. But if on the other hand they should view Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Mr. Wood as a party in the affair, they must find a verdict for the plaintiff, with damages. This was a general direc- tion his lordship gave the jury, and he then went into the particulars of the evidence. His lordship then went upon the warrant, which he declared was a point of the greatest consequence he had ever met with in his whole practice. The defendants claimed a right, under precedents, to force persons’ houses, break open escritoirs, seize their papers, &c, upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders’ names are speci- fied in the warrant, and therefore a discretionary power is given to messengers to search wherever their suspicion may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it cer- tainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject. And as for the precedents, will that be esteemed law in a secretary of state which is not law in any other magis- trate of this kingdom? If they should be found to be legal, they are certainly of the most dangerous conse- quences; if not legal, must aggravate damages. Notwith- standing what Mr. Solicitor General has said, I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it: in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself (2). As to the proof of what papers were taken away, the plaintiff could have no account of them; and those who were able to have given an account (which might have (2) As to this remark, see Broom’s Comm. C. L. 8rd ed. p. 843. Digitized by Microsoft® 557 WILKES v. ‘Woop. 558 WILKES v Woon. Declaration. CONSTITUTIONAL LAW. been an extenuation of their guilt) have produced none. It lies upon the jury to allow what weight they think proper to that part of the evidence. It is my opinion the office precedents, which have been produced since the Revolution, are no justification of a practice in itself illegal, and contrary to the fundamental principles of the constitu- tion ; though its having been the constant practice of the office, might fairly be pleaded in mitigation of damages. . His lordship then told the jury they had a very material affair to determine upon, and recommended them to be cautious in bringing in their verdict. The Jury, after withdrawing for near half an hour, returned, and found a general verdict upon both issues for the plaintiff, with 10001. damages (4). ENTICK v. CARRINGTON, 19 St. Tr. 1080 (2). (6 Geo. 3, a.v. 1765.) SEIZURE OF PAPERS. A warrant, issued by a Secretary of State, to seize the papers of the author (named) of a seditious libel, is ilegal (m). This was an action of trespass, in the Common Pleas, by John Entick, clerk, against Nathan Carrington and three other messengers in ordinary to the king, in which the (k) After the verdict was recorded, the Solicitor General offered to prefer a Bill of Exceptions, which the Lord Chief Justice refused to accept, saying it was out of time. The damages above awarded by the jury would not be deemed ‘‘excessive.” See Beardmore v. Carrington, 2 Wils. 244; Huckle v. Money, 19 St. Tr. 1404-5 ; Wilkes v. Lord Halifax, Id. 1406—1415, where the damages awarded were 40001. () 8. C. 2 Wils. 275, (m) The warrant in this case di- rected the defendants to search for and seize the plaintiff, and to- bring him, together with his books and papers, before the secretary of state, post. p. 564. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 559 plaintiff declared that the defendants, on the 11th day of Bamix November, in the year of our Lord 1762, at Westminster, Cantina in Middlesex, with force and arms broke and entered the =— dwelling-house of the plaintiff in the parish of St. Dunstan, Stepney, and continued there four hours without his con- sent and against his will, and all that time disturbed him ‘in the peaceable possession thereof, and broke open the doors to the rooms, the locks, iron bars, &c., thereto affixed, and broke open the boxes, chests, drawers, &c., of the plaintiff in his house, and broke the locks thereto affixed, and searched and examined all the rooms, &c., in his dwelling-house, and all the boxes, &¢., so broke open, and read over, pried into and examined all the private papers, books, &c., of the plaintiff there found, whereby the secret affairs, &c., of the plaintiff became wrongfully discovered and made public; and took and carried away 100 printed charts, 100 printed pamphlets, &c., of the plaintiff there found, &c, to the plaintiff's damage of 20008. The defendant pleaded, Ist, not guilty to the whole Picas. declaration, whereupon issue was joined. 2ndly, as to the breaking and entering the dwelling-house, and continuing four hours, and all that time disturbing plaintiff in the possession thereof, and breaking open the doors to the rooms, and breaking open the boxes, chests, drawers, &c., of plaintiff in his house, and the searching and examining all the rooms, &c., in his dwelling-house, and all the boxes, &c., so broke open, and reading over, prying into, and examining the private papers, books, &c., of plaintiff there found, and taking and carrying away the goods and chat- tels in the declaration mentioned there found, &c., the defendants said that the plaintiff ought not to have his action against them, because they said that before the supposed trespass, on the 6th of November, 1762, and before, until, and all the time of the supposed trespass, the Earl of Halifax was, and yet is one of the lords of the king’s Privy Council, and one of his principal Secretaries. Digitized by Microsoft® 560 CONSTITUTIONAL LAW. Exmcx of State, and that the earl before the trespass on the 6th carrina- of November, 1762, made his warrant under his hand and *** seal directed to the defendants, by which the earl did in the king’s name authorize and require the defendants, taking a constable to their assistance, to make strict and diligent search for the plaintiff, mentioned in the said warrant to be the author, or one concerned in the writing of several weekly very seditious papers, intitled, “The Monitor or British Freeholder, No. 357, &c., &c., London, printed for J. Wilson and J. Fell in Paternoster-row,” con- taining gross and scandalous reflections and invectives upon his Majesty's Government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring, together with his books and papers, in safe custody before the said earl, &., to be examined concerning the premises, and further dealt with accord- ing to law; in the due execution whereof all mayors, sheriffs, justices of the peace, constables, and all other his Majesty’s officers civil and military, and loving subjects, whom it might concern, were to be aiding and assisting to them the defendants, as there should be occasion. And the defendants further said, that afterwards, and before the trespass, on the same day and year, the warrant was delivered to them to be executed, and thereupon they on the same day and year in the declaration mentioned, in the day time, about eleven o'clock, being the said time when, &ec., by virtue and for the execution of the said warrant, entered the plaintiff's dwelling-house, the outer door thereof being then open, to search for and seize the plaintiff and his books and papers, in order to bring him and them before the said earl, according to the warrant ; and the defendants did then and there find the plaintiff, and seized and apprebended him, and did search for his books and papers in his house, and did necessarily search and examine the rooms therein, and also his boxes, chests &c., there, in order to find and seize his books and papers, and to bring them along with the plaintiff before the said Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 561 earl, according to the warrant; and upon the said search Evrick did then in the said house find and seize the goods and Cannixo- chattels of the plaintiff in the declaration mentioned, and = on the same day did carry the said books and papers to a house at Westminster, where the said earl then and long before transacted the business of his office, and delivered the same to Lovel Stanhope, Esq., who then was and yet is an assistant to the earl in his office of Secretary of State, to be examined, and who was then authorised to receive the same from them for that purpose, as it was lawful for them to do; and the plaintiff afterwards (to wit) on the 17th of November in the said year was discharged out of their custody ; and in searching for the books and papers of plaintiff the defendants did necessarily read over, pry into, and examine the said private papers, books, &c., of plaintiff, in the declaration mentioned, then found in his house ; and because at the said time, when, &c., the said doors in the said house leading to the rooms therein, and the said boxes, chests, &c., were shut and fastened so that the defendants could not search and examine the said rooms, boxes, chests, &c., they, for the necessary searching and examining the same, did then necessarily break and force open the said doors, boxes, chests, &c., as it was law- ful for them to do; and on the said occasion the defend- ants necessarily stayed in the house of plaintiff for the said four hours, and unavoidably during that time dis- turbed him in the possession thereof, they the defendants doing as little damage to plaintiff as they possibly could, which are the same breaking and entering the house of plaintiff, &c., whereof the plaintiff above complained, &c., wherefore they prayed judgment, &c. To the above plea of justification the plaintiff replied Replication. de injurid (0): There was another plea of justification like the first, with this difference only, that in the last plea it was alleged that the plaintiff and his papers, &&., were (0) Ante, p, 529 (d). Digitized by Microsoft® 562 INTIcK™ vw. CARRING- TON. Special ver- dict. CONSTITUTIONAL LAW. carried before Lord Halifax. To this plea also the plaintiff replied de injurid. This cause was tried at Westminster Hall before the Lord Chief Justice, when the jury returned a Special Ver- dict to the following purport. “The jurors upon their oath say, as to the issue first joined (upon the plea of not guilty to the whole trespass in the declaration) that as to the coming with force and arms, and also the trespass in declaration, except the breaking and entering the dwelling-house of the plaintiff, and continuing therein for the space of four hours, and all that time disturbing him in the possession thereof, and searching several rooms therein, and in one bureau, one writing-desk, and several drawers of the plaintiff in his house, and reading over and examining several of his papers there, and seizing, taking, and carrying away some of his books and papers there found, in the declaration complained of, the said defendants are not guilty. As to breaking and entering the dwelling-house, &c. (above excepted) the jurors on their oath say, that at the time of making the following information, and before and until and at the time of granting the warrant hereafter mentioned, and from thence hitherto, the Earl of Halifax was, and still is, one of the lords. of the king’s Privy Council, and one of his principal Secretaries of State, and that before the time in the declaration mentioned, viz., on the 11th of October, 1762, at St. James's, Westminster, one Jonathan Scott of London, bookseller and publisher, came before Edward Weston, Esq., an assistant to the said earl, and a justice of peace for the city and liberty of Westminster, and there made and gave information in writing to and before the said Edward Weston against the said John Inf:rmation before a justice of tke peace. Entick and others, the tenor of which information now produced and given in evidence to the jurors, followeth in these words and figures, to wit, ‘The voluntary information of J. Scott. In the year 1755, I proposed setting up a paper, and mentioned it to Dr. Shebbeare, and in a few Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 563 days one Arthur Beardmore, an attorney-at-law, sent for Estiex me, hearing of my intention, and desired I would mention Cannio: it to Dr. Shebbeare, that he Beardmore and some others of his friends had an intention of setting up a paper in the city. Shebbeare met Beardmore and myself and Entick (the plaintiff) at the Horn tavern, and agreed upon the setting up the paper by the name of the Monitor, and that Dr. Shebbeare and Mr. Entick should have 2001. a-year each. Dr, Shebbeare put into Beardmore’s and Entick’s hands some papers, but before the papers ap- peared Beardmore sent them back to me (Scott). Sheb- beare insisted on having the proportion of his salary paid him; he had '500., which I (Scott) fetched from Vere. and Asgill’s by their note, which Beardmore gave him; Dr. Shebbeare upon this was quite left out, and the monies have been continued to Beardmore and Entick ever since, by subscription, as I supposed, raised I know not by whom: it has been continued in these hands ever since. Shebbeare, Beardmore, and Entick all told me that the late Alderman Beckford countenanced the paper: they agreed with me that the profits of the paper, paying all charges belonging to it, should be allowed me. In the paper of the 22nd of May, I apprehend the character of Sejanus meant Lord Bute: the original manuscript was in the hand-writing of David Meredith, Mr. Beardmore’s clerk. I before received the manuscript for several years till very lately from the said hands, and do believe that they continue still to write it. J. Scott, St. James’s, 11th October, 1762.’ ‘The above information was given voluntarily before me, and signed in my presence by J. Scott. J. WESTON,’ “ And the jurors further say, that on the 6th of Novem- ber, 1762, the said information was shown to the’ Earl of Halifax; and thereupon the earl did then make and issue his warrant directed to the defendants, then and still being the king’s messengers, and duly sworn to that office, 002 Digitized by Microsoft® 564 CONSTITUTIONAL LAW. uyrcx for apprehending the plaintiff, &c., the tenor of which war- Canrino- rant produced in evidence to the jurors, follows in these words “and figures : ‘George Montagu Dunk, Earl of Halifax, &e. que Sere: one of the lords of his Majesty’s honourable Privy Council, State's war inci ‘ ‘e in his States war &c., and principal Secretary of State, &c., these are 1 plaintiff, his Majesty's name to authorise and require you, taking a papers;— constable to your assistance, to make strict and diligent search for John Entick, the author, or one concerned in writing of several weekly very seditious papers, intitled “The Monitor, or British Freeholder,” Nos. 357, &c., Lon- don, printed for J. Wilson and J. Fell, in Paternoster Row, which contain gross and scandalous reflections and invec- tives upon his Majesty's Government, and upon both Houses of Parliament; and him, having found, you are to seize and apprehend, and to bring, together with his books and papers, in safe custody before me to be examined concerning the premises, and further dealt with according to Jaw ; in the due execution whereof all mayors, sheriffs, justices of the peace, constables, and other his Majesty's officers civil and military, and loving subjects whom it may concern, are to be aiding and assisting to you as there shall be occasion ; and for so doing this shall be your war- rant. Given at St. James’s the 6th day of November, 1762, in the third year of his Majesty’s reign, Dunk Hali- fax. To Nathan Carrington, James Watson, Thomas Ardran, and Robert Blackmore, four of his Majesty’s mes- sengers in ordinary.’ And the jurors further say, the earl dclivered to caused this warrant to be delivered to the defendants to iieere be executed. And that the defendants afterwards on the cool ty 11th of November, 1762, at 11 o’clock in the day time, by hen virtue and for execution of the warrant, but without any constable taken by them to their assistance, entered the house of the plaintiff, the outer door thereof being open, and the plaintiff being therein, to search for and seize the plaintiff and his books and papers, in order to bring him and them before the earl, according to the warrant; and the defendants did then find the plaintiff there, and did Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 565 seize and apprehend him, and did there search for his Eymc« books and papers in several rooms and in the house, and Canninc- im one bureau, one writing desk, and several drawers of the — plaintiff there, in order to find and seize the same, and bring them along with the plaintiff before the earl, accord- ing to the warrant, and did then find and seize there some of the books and papers of the plaintiff, and perused and read over several other of his papers which they found in the house, and chose to read, and that they necessarily con- tinued there in the execution of the warrant four hours, and disturbed the plaintiff in his house, and then took him and his said books and papers from thence, and forthwith gave notice at the office of the said Secretary of State in Westminster unto Lovel Stanhope, Esq., then before, and still being, an assistant to the earl in the examinations of They carried persons, books and papers seized by virtue of warrants fo s fotavel issued by Secretaries of State, and also then and still being cele a justice of peace for the city and liberty of Westminster jo and county of Middlesex, of their having seized the plain- eee tiff, his books and papers, and of their having them ready to be examined, and they then and there, at the instance of the said Lovel Stanhope, delivered the said books and papers to him. And the jurors further say, that, on the 13th of April, in the first year of the king, his Majesty by his letters patent under the great seal, gave and granted to the said Lovel Stanhope the office of law-clerk to the Secretaries of State. And the king did thereby ordain, constitute, and appoint the law-clerk to attend the offices, of his Secretaries of State, in order to take the depositions of all such persons whom it may be necessary to examine upon affairs which might concern the public, &c. (and then the verdict set out the letters patent to the law-clerk in hee verba) as by the letters patent produced in evi- dence to the jurors appears. And the jurors further say, that Lovel Stanhope, by virtue of the said letters patent long before the time when, &c., on the 13th of April, in the first year of the king, was, and ever since hath been Digitized by Microsoft® 566 CONSTITUTIONAL LAW. Esncx and still is, law-clerk to the king’s Secretaries of. State, canwwc- and hath executed that office all the time. And the jurors =" further say, that at different. times from the time of the Native Revolution to this present time, the like warrants with tneRecn that issued against the plaintiff, have been . frequently tation, granted by the Secretaries of State, and executed by the messengers in ordinary for the time being, and that each of the defendants did respectively take at the time of being appointed messengers, the usual oath, that he would be a true servant to the king, &., in the place of a mes- Nodemand Senger in ordinary, &c. And the jurors further say, that by plaintatt no demand was ever made or, left at the usual place of of tea abode of the defendants, or any of them, by the plaintiff, did plaintiff or his attorney or agent in writing of the perusal and copy potion! wai of the said warrant, so issued against the plaintiff as afore- months Said, neither did the plaintiff commence or bring his said acts doue by action against the defendants, or any of them, within. six defendants. calendar months next after the several acts aforesaid, and each of them were and was done and committed by them as aforesaid ; but whether, upon the whole matter as afore- said by the jurors found, the said defendants are guilty of the trespass. hereinbefore particularly specified in breaking and entering-the house of-the plaintiff, &e, or the said plaintiff ought. to maintain his said action against them; the jurors are altogether ignorant, and pray the advice of the Court thereupon. And if upon the whole matter aforesaid by the jurors found, it shall seem to the Court that the defendants are guilty of the said trespass, and that the plaintiff ought to maintain his action against them, the jurors say upon their said oath, that the defend- ants are guilty of the said trespass in manner and form as the plaintiff hath thereof complained against them; and they assess the damages of the plaintiff by occasion thereof, besides his costs and charges by him about his suit in this behalf laid out to 300/. and for those costs and charges, to 40s. But if upon the whole matter by the jurors found, it shall seem to the Court that the said defendants Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 567 are not guilty of the said trespass; or that the plaintiff Ewticx ought not to maintain his action against them; then the canninc- jurors do say upon their oath that the defendants are not guilty of the: said trespass:in: manner and form as the plaintiff hath thereof complained against them. “And as to the last issue on the second special justifi- the last cation, the jury find for the plaintiff, that the defendants for plane in their own wrong broke and entered, and did the tres- pass, as the plaintiff in his replication has alleged.” This Special Verdict was twice solemnly argued at the Judgment. bar (p) ; and after time taken to consider, Lord Camden, C. J., delivered ee qeteen of the Court us the plaintiff, as follows : This record hath set up two fein to the action, on both of which the defendants have relied. 2 The first arises from the: facts disclosed in the special verdict; whereby the :defendants put their case:upon the statute of 24 Geo. IL, insisting, that they have nothing to do with the legality of the warrants, but that they ought to have been acquitted as: officers within the. meaning of that Act.. tet The second dias ent upon the legality of the warrants; for this being a justification at, common law, the officer is answerable if the magistrate has :no juris- diction. : These two detemens hare drawn several points. into question, upon which the public, as well.as the parties, have a right to our opinion. Under the first, it is incumbent upon the defendants to shew, that they are officers within the meaning of the Act of.. Parliament, and likewise. ia they have: acted. in obedience to the warrant. The question, whether. officers or not, involves snot ; whether the Secretary of State, whose ministers they are, can be deemed a justice of the peace, or taken within the (p) These arguments have, to avoid repetition, been omitted. Digitized by Microsoft® 568 CONSTITUTIONAL LAW. nice equity of the description ; for officers and justices are here Ceeae correlative terms: therefore either both must be comprised — or both excluded. This question leads me to an inquiry into the authority of that minister, as he stands described upon the record in two capacities, viz., Secretary of State and Privy Coun- sellor. And since no statute has conferred any such jurisdiction as this before us, it must be given, if it does really exist, by the common law; and upon this ground he has been treated as a conservator of the peace. The matter thus opened, the questions that naturally arise upon the special verdict, are : I. Whether in either of these characters, or upon any other foundation, he is a conservator of the peace. II. Admitting him to be so, whether he is within the equity of the 24 Geo, 2, ¢, 44, These points being disposed of, the next in order is, III. Whether the defendants have acted in obedience to the warrant. IV. In the last place, the great question upon the justi- fication will be, whether the warrant to seize and carry away the plaintiff’s papers is lawful. zonenar I. The power of this minister, in the way wherein it has of State been usually exercised, is pretty singular. considered. . . : : ' If he is considered in the light of a privy counsellor, although every member of that board is equal¥y entitled to it with himself, yet he is the only one of that body who exerts it. His power is so extensive in place, that it spreads throughout the whole realm ; yet in the object it is so confined, that except in libels and some few state crimes, as they are called, the Secretary of State does not pretend to the authority of a constable. To consider him ag a conservator. He never binds to the peace, or good behaviour, which seems to have been the principal duty of a conservator; at least he never does it in cases where the law requires those sureties. But he commits in certain other cases, where it is very Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. doubtful, whether the conservator had any jurisdiction whatever. His warrants are chiefly exerted against libellers, whom he binds in the first instance to their good behaviour, which no other conservator ever attempted, from the best intelligence that we can learn from our books. And though he doth all these things, yet it seems agreed, that he hath no power whatsoever to administer an oath or take bail. This jurisdiction, as extraordinary as I have described it, is so dark and obscure in its origin, that counsel have not been able to form any certain opinion whence it sprang. Sometimes they annex it to the office of Secretary of State, sometimes to the quality of privy counsellor; and in the last argument it has been derived from the king’s royal prerogative to commit by his own personal com- mand. . Whatever may have been the true source of this autho- rity, it must be admitted, that at this day he is in the full legal exercise of it; because there has been not only a clear practice of it, at least since the Revolution, confirmed by a variety of precedents ; but the authority has been recognized and confirmed by two cases in the very point since that period: and therefore we have not a power to unsettle or contradict it now, even though we are persuaded that the commencement of it was erroneous. And yet, though the enquiry I am now upon cannot be attended with any consequence to the public, it is never- theless indispensable ; for I shall trace the power to its origin, in order to determine whether the person is within the equity of the 24th Geo, IT. Before I argue upon that point, or even state the ques- tion, whether the Secretary of State be within that Act, we must know what he is. This is no very agreeable task, since ‘it may possibly tend to create, in some minds, a doubt upon a practice that has been quietly submitted Digitized by Microsoft® 569 ENTICK vw CARRING- TON. 570 CONSTITUTIONAL LAW. Bxricx to, and which is of no moment to the. liberty of the sub- Canninc. ject; for so long as the proceedings under these warrants are. properly regulated by law, the public is very little concerned in-the choice of that person by whom they are issued. A Secretary. of State :is in oth ihe king’s piuaie secre- tary. He is the keeper of the signet and seal used for the king’s private letters, and backs the sign manual in transmitting grants to the privy seal. This seal is taken notice of in Articuls super Cartas, c. 6,and my Lord Coke in his comment upon that. chapter. (q), :describes the secretary as.[ have mentioned. . He says he has four clerks, that sit at his board; and that the law in some cases takes: notice of the signet; for a ne emeat regno may be by commandment under the privy seal, or under the signet; and in. this case the subject ought to take notice of it; forit is but a signification of the king’s com- mandment. If at the time my Lord Coke wrote his 2nd Institute he had been acquainted with. the authority that is now ascribed to the. secretary, he would certainly have mentioned it in this place.. It was too important a branch of the office to be omitted ; and his silence therefore is a strong argument, to a man’s belief at least, that no such power existed at that time.. He has likewise taken notice of: this officer in The Prince’s Case.(r). . He is mentioned in the stat. 27 Hen. 8, c. 11, and in the statute of the same king touching precedency (s), and it is observable, that he is called in these two statutes by the single name of secretary, without the addition, which modern times have given him, of the dignity of a state-ofticer. » Ido not know, nor do I believe, that he was anciently a member of the privy council; but.if he was,.he was not even in the times of James I. and Charles L, accord- ing to my Lord Clarendon, an officer of such magnitude as he grew up to after the Restoration, being only (Q 2 Inst. 556, (r) 8 Rep. 1. _(s) 31 Hen, 8, ¢. 10. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. employed, by this account, to make up dispatches at the conclusion of councils, and not to govern or preside in those councils. . It is not difficult to account for the growth of. this minister’s importance. He became naturally significant from the time that all the courts in Europe began to admit. resident ambassadors; for upon the establishment of this. new..policy, that whole foreign correspondence passed through the secretary’s hands, who by this means grew to.be an instructed and confidential minister. This being the true description of his employment, I see no.part of it that requires. the authority of a magis- trate. The custody of a signet can imply no such thing; nay, the contrary would rather be inferred from this cir- cumstance ; because if his power to commit was inherent in his office, his warrants would naturally be stamped with that seal; and in. this light. the privy seal, one should think, would have had the preference, as being highest in dignity and of more consideration in law. Besides all this, it is not in my opinion consonant to the wisdom or analogy of our law, to give:a power to commit, without a power to examine upon oath, which to this.day the Secre- tary of State doth not presume to exercise. Rokeby, J.— in the case of &. v. Kendal. (#) says, that. the one is inci- dent to the other; and I am strongly of that opinion: for how can he commit, who is not able to examine upon oath (uw). What magistrate can be found, in our law, so defectively constituted? The only instance of this kind, that can be produced, is the practice of the House of Com- mons. . But this instance .is no precedent for other cases. The rights: of that.assembly are original and self-created ; they are paramount to our jurisdiction, and above the reach of injunction, prohibition, or error (#). So that I still say, notwithstanding that :particular case, there is no (t) 5 Mod. 78. Bk, 2, c. 16, s. 4. (u) See Hawk. P. C., ed. by Leach, (z) Id. Bk. 2, c. 15, 8. 73. Digitized by Microsoft® 571 ENTICK Vv CARRING- TON, 572 CONSTITUTIONAL LAW. Exncx magistrate in our law so framed, unless the Secretary of cantxe- State be an exception. Now Mr. Justice Rokeby and == myself, though we agree in the principle, form our conclu- sions in a very different manner. He from the assumed power of committing, which ought first to have been proved, infers the incidental power of administering an oath. I on the contrary, from the admitted inca- pacity to do the latter, am strongly inclined to deny the former. Again, if the Secretary of State is a common law magistrate, one should naturally expect to find some account of ‘this in our books, whereas his very name is unknown; and there cannot be a stronger argument against his authority in that light, than the unsuccessful attempts that have been made at the bar to transform him into a conservator. These attempts have given us the trouble of looking into those books that have preserved the memory of these magistrates, who have been long since deceased and forgotten. Fitzherbert, Crompton, Lambard, Dalton, Pulton, and Bacon, have all been searched to see, if any such person could be found amongst the old conservators. It is not material to repeat the whole number, and to range them in their several classes ; but it will be sufficient to enumerate the principal ones ; because they may be referred to some other part of the argument. The king is mentioned as the first. Then come the chancellor, the treasurer, the high steward, the master of the rolls, the chief justice and the justices of the King’s Bench; all the Judges in their several courts, sheriffs, coroners, constables ; and some are said to be conserva- tors by tenure, some by prescription, and others by com- mission (y). But no Secretary of State is to be found in the catalogue ; and I do affirm, that no treatise, case, record, or statute, has ever called him a conservator, from (y) Toml. L. Dict. ‘‘ Conservator of the Peace.” Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. the beginning of time down to the case of Rex v. Kendal. The first time, he appears in our books to be a granter of our warrants is in 29 & 30 Eliz., where the return to a Habeas Corpus was a commitment by Sir Francis Walsingham, principal secretary, and one of the privy council (z). The Court takes this distinction. Where a person is committed by one of the privy council, in such case the cause of the commitment should be set down in the return; but, on the contrary, where the party is com- mitted by the whole council, there no cause need be alleged. The Court upon this ordered the return to be amended, and then the return is a commitment by the whole council. There is a like case a little prior in point of time (@), where the commitment is by Sir Francis Walsingham, one of the principal secretaries, &c. Because the warden of the Fleet did not return for what cause Hellyard was committed, the Court gives him day to mend his return, or otherwise the prisoner should be delivered. Nobody who reads this case can doubt, but that the, &c., must be supplied by the addition of privy counsellor, as in the other case. These authorities shew, that the judges of those days knew of no such committing magistrate as a Secretary of State. They pay no regard to that office, but treat the commitment as the act of the privy counsellor only ; and to shew further that the privy counsellor as such was the only acting magistrate in state matters, all the twelve judges two years afterwards were obliged to remonstrate against the irregularities of their commitments, but take no notice of any such authorities practised by the Secre- taries of State (0). Tn the 3rd year of the reign of King Charles I, when (2) Howells Case, 1 Leon. 70, 71. (a) Hellyurd’s Case, 2 Leon. 175. (8) Ante, p. 202. Digitized by Microsoft® 573 ENtTIcK wu, CaRRING- TON. 5k CONSTITUTIONAL LAW. Evrick the House of Commons started that famous dispute upon canmxc- the right claimed by the king and the privy council to = commit without shewing cause (c), it is natural to expect that the secretary’s warrant should have been handled, or at least named among the state commitments. But there is not throughout that long and learned discussion one word said about him, or his name so much as men- tioned ; and the Petition of Right, as well as all the proceedings that produced it, is equally silent upon the subject. Again, when in the 16th year of the same king’s reign the Habeas Corpus was granted by Act of Parlia- ment (d), upon all state commitments, and where the omission of one mode of committing would have been fatal to the subject, and frustrated all the remedy of that Act, and where they have enumerated not only every method of committing that had been exercised, but every other that might probably exist in after times ; yet: the commitment by a Secretary of State is not found amongst the number. If then he had power of his own to commit, this famous Act of Parliament was waste paper, and the subject still at the mercy of the Crown, without the benefit of the Habeas Corpus ; a supposition altogether incredible: for who can believe, that this par- tiament, so jealous, so learned, so industrious, so enthu- siastic of the liberty of the subject, when they were making a law to relieve prisoners against the power of the Crown, should bind the king, and leave his Secretary of State at large ? Whoever attends to all these observations will see clearly, that the Secretary of State in those days never exercised the power of committing in his own right; I say, in his own right, because that he did in fact commit, and that frequently even at the time when the matter of the Habeas Corpus was agitated in the 8rd of King (c) See Darnel’s Case, ante, p.162. (d) 16 Car. 1, ¢ 10, x. 8 Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Charles I, will appear from a passage in the Hphemeris Parliamentaria (e). This passage, when it comes to be attended to, will throw great light upon the present enquiry. It is sufficient of itself to convince me, from what source this practice first arose. It was from a dele- gation of the king’s royal prerogative to commit by his own power, and from the king devolved in point of execu- tion upon the Secretary of State. The passage I allude to is a speech of secretary Cook. Whilst the parliament were disputing the king’s autho- rity to commit, either by himself or by his council, without shewing the cause, the king, who was desirous to pacify those discontents, and yet unwilling to part with his pre- rogative, sent a message to the House of Commons to assure them, that if they would drop the business, he would promise them, upon his royal word, not’ to use this prerogative contrary to law. Secretary Cook delivers this message,‘and then the book proceeds in these words. After speaking of himself and the nature of his place, he says, “Give me leave freely to tell you, that I know by experience, that by the place I hold under his Majesty, if I will discharge the duty of my place and the oath I have taken to his Majesty, I must commit, and neither express the cause to the gaoler, nor to the judges, nor to any counsellor in England, but to the king himself. Yet do not think, I go without ground or reason, or take this power committed to me to be unlimited. Yea rather to me it is charge, burthen, and danger; for if I by this power commit the poorest porter, if Ido not upon a just cause, if it may appear, the burthen will fall upon me heavier than the law can inflict ; for I shall lose my credit with his Majesty and my place: and I beseech you con- sider, whether those that have been in the same place, have not committed freely, and not any doubt made of it, or any complaint made by the subject.” (e) P. 162; Cobbett, Parl. Hist., vol. 2, p. 343. Digitized by Microsoft® 575 ENTIcK v CaRRING- TON, —_— 576 CONSTITUTIONAL LAW. Extick To understand the meaning of this speech, I must briefly Cannmna- remind you of the nature of that famous struggle for the — liberty of the subject’ between the Crown and the Parlia- ment, which was then in agitation. The points in controversy were these: whether a sub- ject committing by the king’s personal command, or by warrant of the privy council, ought to express the cause in the warrant, and whether the subject in that case was bailable. The matter in dispute was confined to those two com- mitments. The Crown claimed no such right for any other warrant; nor did the Commons demand redress against any other. The statute of Westminster I., which was admitted on all sides to be the only foundation upon which the pretensions of the Crown were built, speaks of no other arrests in the text, but the king’s arrest only ; and the comment of law had never added -any other arrest by construction, but that only of the privy council. No other commitment whatever was deemed by any man to be within the equity of that Act. The case, cited upon that occasion, speaks of no other commit- ments but these. Nay the House of Lords, who passed a resolution in the heat of this business in favour of the king’s authority, resolved only, that the king or his council could commit, but meddled with no other com- mitment (f). Secretary Cook tells them in this public manner, that he made a daily practice of committing without shewing the cause; yet the House takes no notice of any secretary’s warrant as such, nor is the secretary's name mentioned in the course of all those proceedings. What then were those commitments mentioned by the secretary ? They were certainly such only, as were per speciale mandatum domini regis. They could be no other. They were the commitments then under debate. They, and they only, were referred to by the king’s mes- (f) See Cobbett, Parl. Hist., vol. 2, pp. 351 et seq. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. sage, and were consequently the subject matter of the secretary's apology; for no other warrant claimed that extraordinary privilege of concealing the cause. This observation explains him, when he calls it a power committed to him; which I construe, not as annexed to his office, but specially delegated. This accounts too for his notion, that the law could not touch him; but that if he abused his trust, he should lose his credit. with the king and his place, which he describes as a heavier punishment than the law could inflict upon him. Upon this ground it will be easy to explain the notable singu- larities of this minister’s proceeding, which are not to be reconciled to any idea of a common-law magistrate. Such are his meddling only with a few state-offences, his reach over the whole kingdom, his committing without the power of administering an oath, his employment of none but the messenger of the king’s chamber, and his command to mayors, justices, sheriffs, &c., to assist him; all which particularities are congruous enough to the idea of the king’s personal warrant, but utterly inconsistent with all the principles of magistracy in a subject. If on the other hand it can be understood, that he could and did commit without showing the cause in his own right and by virtue of his office, then was his warrant admitted to be legal by the whole house, and without cen- sure or animadversion. It was neither condemned by the Petition of Right, nor subject to the Habeas Corpus Act of Charles I. The truth of the case was no more than this. The council board were too numerous to be acquainted with every secret transaction that required immediate confine- ment; and the delay by summoning was inconvenient in. cases that required dispatch. The Secretary of State, as most entrusted, was the fittest hand to issue sudden war- rants ; and therefore we find him so employed by Queen Elizabeth under the quality of a privy counsellor. But when the attempt. failed, the judges declaring that he PP Digitized by Microsoft® 577 ENTICK Vv CaRRING- TON. 578 CONSTITUTIONAL LAW. Bwrick must shew the cause, and that they would remand none Carrma- of his prisoners in any case but that of high treason, those TON, — warrants ceased, and then a new method was taken by making him the instrument of the king’s speciale man- datum ; for that is the form in which all warrants and returns were drawn, that were produced upon that famous argument. Having thus shewn, not only negatively that this power of committing was not annexed to the secretary’s office, but affirmatively likewise that he was notifier or counter- signer of the king’s personal warrant acting in alio jure down to the time of the 16th of Charles I, and conse- quently to the Restoration, for there was no secretary in that interval, I have but little to add upon this head, but observing what passed between that time and the case of Rea v. Kendal. The Licensing Act (g) gave him his first right: to issue a warrant in his own name; not indeed to commit per- sons, but a warrant to search for papers. Whether upon this new power he grafted any authority to commit per- sons in his own right, as it should seem he did by the precedents produced the other day, is not very material. But it is remarkable, that during that interval he ad- hered in some cases to the old form, by specifying the express command of the king in this warrant. With respect to the cases that have passed since the Revolution, such as Rew v. Kendal, Rex v. Derby, and Rew v. Earbery, I shall take no other notice of them in this place, than to say, they afford no light in the present inquiry by shewing the ground of the officer’s authority, though they are strong cases to con- firm it. . But before I can fairly: conclude, that the Secretary of State’s power was derived from the king’s personal prero- gative and from no other origin, I must examine, what (g) 13 & 14 Car. 2, ¢. 83, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. has passed relative to the power of a separate privy coun- 579 ENTE sellor in this respect. This is the more necessary to be Cannane- done, because my Lord Chief Justice Holt has. built all his authority upon this ground ; and the subsequent cases, instead of striking out any new light upon the subject, do all lean upon and support themselves by my Lord Chief Justice Holt’s opinion in Rew v, Kendal. I will therefore fairly state all that I have been able to discover touching the matter; and then, after I have declared my own opinion, shall leave others to judge for themselves. -In the first place it is proper to observe, that a privy counsellor cannot derive his authority from the statute of Westminster I., which recites an arrest by the command of the king to be one of those cases that were irreple- viseable by the common law. The principal commentator upon these words is Staundford (h), who says, as to the commandment of the king, this'is to be understood of the commandment of his own mouth, or of his. council, which is incorporate to him, and speaks with the mouth of the king himself; for otherwise, if you will take these words of commandment generally, you may say that. every Capias in a personal action is the command of the king. Lambard in his chapter of Bailment, where he cites this Act of Parliament, gives it the same construction, by allowing a commitment by the council to be within the equity of these. words, “commandment of the king” (2). Thus far and no further, did the Crown lawyers in the 3rd of King Charles I. endeavour to extend the text of the law; and it is plain from the cases before cited, that. the judges in Queen Elizabeth’s time were of the same opinion, that the argument. could not ‘be extended in favour of the single counsellor ; because they held, that he is bound to shew the cause upon his warrant, as distin- guished fromthe other. warrants, where they admit the cause need not be shewn. (2) Pl. Cr. fo. 72, b. (i) Lamb. Hirenarch, Bk. 3, chap. a PP Digitized by Microsoft® 580 ENTICK v. CaRRING- TON, CONSTITUTIONAL LAW. If he is not then entitled by this statute, is he em- powered by the common law? They, who contend he is, would do well to shew some authority in proof of their opinion. It is clear he is not numbered among the con- servators. It is as clear that he is not mentioned by any book as one of the ordinary magistrates of justice with any such general authority. The first place in which anything of this kind is to be found is the Year-Book of Henry VI, where the sheriff returns a detainer under the warrant of duos de concilio pro rebus regem tangentibus. This proof has an unlucky defect in it; because the reading is doubtful, the word dnos, as it is written, standing ‘as well for dominos as for duos ; so that till the reading is settled, which is beyond my skill, the authority must be suspended. The next time you meet with a privy counsellor in the light of a magistrate is in the statute Edw. 6, c. 12, s. 19, where one of the privy council is empowered to take the accusation in some new treasons therein mentioned; and he is for this purpose joined with the justice of assize and justice of the peace. The like power is given him by stat. 5 & 6 Edw. 6, c¢. 11,s. 10, in a like case; and I find in Kelyng (k), that when the judges met to resolve certain points before the trial of the regicides, they resolved that a confession upon examination before a privy counsellor, though he be not a justice of the peace, is a confession within the meaning of the stat.5 & 6 Edw. VI. That Act of Parliament had provided (2) that no person should be attainted of treason but upon the testimony of two lawful accusers, unless the said party arraigned should willingly without violence confess the same. Tt seems to me that the ground upon which the judges proceeded in this resolution, was the express power given to the privy council in the clause next but one before that just mentioned, where the Act enables them to take the accusation in the new treasons there mentioned. (k) P. 19. (2) Sect. 12. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Whether they reasoned in that way, or whether they conceived that the power there given was a proof of some like power which they enjoyed to take accusation in the case of treasons at the common law, the book has not explained ; so that hitherto this authority in the case of high treason stands upon a very poor foundation, being in - truth no more than a conjecture of law without authority to support it. The next authorities are the cases already recited, which to the present point prove nothing more than this: that the judges do admit a power in a privy counsellor to commit without specifying in what cases. They demand the cause, and a better return; whereupon Sir Francis Walsingham, instead of relying upon his power as privy counsellor, returns a new warrant signed by the whole board. . Two years after this came forth that famous resolution of all the judges, 34th of Elizabeth (m). There is no occa- sion to observe how arbitrary the prerogative grew, and how fast it increased towards the end of this Queen’s reign. It seems to me as if the privilege claimed by the king’s personal warrant, and from him derived to the council- board, by construction, had somehow or other been adopted by every individual of that board; for, in fact, these warrants became so frequent and oppressive, that the courts of justice were obliged at last to interpose. However they might be overborne by the terror of the king’s special command, either in or out of council, they had courage enough to resist the novel encroachments of the separate members; and therefore they did in the Courts of King’s Bench and Common Pleas set at large many persons so committed ; upon which occasion, a ques- tion being put to the judges to specify in what cases the prisoner was to be remanded, they answer the question with a remonstrance of their own against the illegal war- (m) Anderson, 297 ; cited ante, p. 202. Digitized by Microsoft® 581 Entick v CaRRING- TON. 582 CONSTITUTIONAL LAW. Evncx rants granted by the privy counsellors. The preamble cannixe- relates entirely to these commitments, wherein they desire *“* that some good order may be taken, that her highness’s subjects may not be committed or detained in prison by commandment of any nobleman against the Jaws of the realm. The question is this: In what cases prisoners sent to custody by her Majesty, her council, or any one or more of her council, are to be detained in prison, and not to be delivered by her Majesty’s courts or judges. The answer is, “We think that if any person be com- mitted by her Majesty's command from her person, or by order from the council-board, or if any one or two of her council commit one for high treason, such persons so in the case before committed may not be delivered by any of her courts without due trial by the law and judgment of acquittal had. Nevertheless the judges may award the queen’s writs to bring the bodies of such persons . before them ; and if upon return thereof the cause of their com- mitment be certified to the judges, as it ought to be, then the judges, in the cases before, ought not to deliver him, but to remand the prisoner to the place from whence he came, which cannot conveniently.be done unless notice of the causes in: generality, or else specially, be given to the keeper or gaoler that shall have the custody of such prisoner.” There is a studied obscurity in this opinion, which shews how cautious the judges were obliged to be in those dangerous times ; for whether they meant to acknowledge a general power in the king or his council to commit, as distinguished from a special power in one or more of his council to commit only in the case of high treason; or whether this case of high treason is to:be referred to all the commitments as the only unbailable case; or again, whether in the superior commitment by the royal person or his council, they would deliver the prisoner though no cause was specified; or if one of the council committed Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. for offences below high treason where they declare they would not remand, yet whether they would absolutely dis- charge or only upon bail, is altogether either ambiguous or uncertain. It is evident to me that the judges did not intend to be understood touching these matters; and the only pro- positions that are clearly laid down in this resolution are these :— 1st. That they would never remand upon the counsellor’s commitment but in high treason ; 2ndly. That the cause ought to: be shewed in all cases, This ‘resolution grew to be much agitated afterwards in the 3rd:of Charles L; and had the honour, like other dark oracles, to.be cited on both sides. Thus much it was necessary to observe upon this famous opinion ; because it was upon this opinion that Lord Chief Justice’ Holt principally relied (mn)... At this time it is apparent that all the privy counsellors exercised: this right in common, Whatever it-was, the complaint shews it was a general practice and a. privilege enjoyed by all.the mem- bers of that board; whence it is natural to suppose that if the power was well founded,.the same. practice would have continued to this time in the same way, seeing how tena- cious ‘all men are of those things that are called rights and privileges. Instead of this, it.doth not appear that the council from that era have ever asserted. their rights; and now af last, when the Secretary of State has revived the claim for the common benefit, as.it should seem, of the whole body, no:other person has followed this example, or knows to this moment that. he sis.entitled to such right. Anybody. who. considers what.:the consequence must have -been from these determinations of the judges, might ven- ture. to affirm that the privy counsellor’s- warrant from this period ceased and grew out of use; for as the cause in this case was necessary to: be specified, and the prisoner was _(n) R. v. Kendal, 5 Mod. 81—84. Digitized by Microsoft® 583 ENTICK %. CaRRING- TON. — 584 ENTICK vw, CARRING- TON. CONSTITUTIONAL LAW. never to be remanded but in the case of high treason, that warrant became at once unserviceable, and the Crown was forced to resort to the royal mandate or the board-warrant, which, notwithstanding the case in Anderson, was still in- sisted to be unbailable and good without a cause. Hence happened that in the great debate in the 3rd of King Charles I. no privy counsellors warrants do once occur, but instead thereof you find the secretary of state dealing forth the king’s royal mandate, and the privy counsellor’s authority at rest. The only reason why I touch upon these proceedings is for the sake of observing that no notice is taken in those arguments of the privy counsellor’s right to commit; and yet the power of the king himself, and of his council, by the statute of Westminster I, is largely discussed, and so fully handled, that if the warrant of one privy counsellor had then been in use it must have been brought forth in the argument ; for, if it could have served no other pur- pose, it would have been material in order to mark the distinction between that and the warrant of the whole board. From these observations I conclude, that these warrants were then deceased and gone, and would probably have never made their appearance again even in description, if the stat. 16 Charles 1, c. 10, had not recalled them to memory, not as things either then in use or admitted to be legal, but as one of the modes of commitment’ which might be again revived, because it had been formerly prac- tised (0). Therefore when this form of warrant appears, as it does in the catalogue of other forms, both legal and illegal, no argument can be raised from a pretended recog- nition of this particular warrant ; since it was necessary to name every mode that ever had been used by the king, the council, or the Star Chamber, in order to make the remedy by Habeas Corpus universal. (0) See Hawk. P. C., ed. by Leach, Bk. 2, ¢, 15, s. 71. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. But if there can be a doubt whether this Act of Parlia- 585 Eanie ment is to be deemed a recognition of this authority, there Carina: is a passage in the Journal of the House of Commons that proves the contrary in direct terms. Whilst this bill was passing, the House makes an amendment, which appears by the question put to be this: Whether the House should assent to the putting the word “ liberties” out of the bill. But. as the passage in the bill is not mentioned in the Journals, it must be collected by inferences. By the phrase “left out of the bill,” I presume it was permitted to stand in the preamble. Now when you look into the preamble, the word “liberties” is there to be found in that part of the preamble which recites this usurpation of the Privy Council upon the liberties as well as the pro- perties of the subject; whereas the enacting clause con- demns only the jurisdiction of that board, so far as it assumed a jurisdiction over the property of the subject ; whence I collect that the word “liberties” stood in that clause ; and the passage that follows in the Journal does strongly confirm it. The words are these: “ Resolved upon the question, that this House does assent to the putting of the word ‘liber- ties’ out of the bill concerning the Star-Chamber and council pleadings; because the House has a bill to be drawn to provide for the liberty of the subject in a large manner. Mr, Serjeant Wild and Mr. Whitelock are ap- pointed to draw a bill to that purpose upon the several points that have been here this day debated. “Resolved upon the question, that the body of the lords of the council, nor any one of them in particular as a privy counsellor, has any power to imprison any free- born subject, except in such cases as they are warranted by the statutes of the realm.” It is pretty plain from this passage, that the debate turned upon the meaning of the statute of Westminster L, and the resolution of the judges in Anderson, about which Digitized by Microsoft® 586 . CONSTITUTIONAL LAW. Exrcx it is not fit'to give any opinion ; my design by citing this Carnie. passage being only to shew, that this Act of Parliament “does not even:‘prove the actual practice of such warrants at that time, much less does recognize their legality. What: follows is. still more remarkable touching this business, upon a doubt started in the trial of the Seven Bishops.(p). They were committed by a warrant signed by no less than thirteen privy counsellors ; but the warrant did not appear to be: signed by-them in council, The ‘objection taken was, that the warrant was void, being signed: only by the: privy counsellors. separately, and not ina body. If any man in Westminster Hall at that time had understood, that one or more privy counsellors had a right to-commit for a misdemeanor, that. would have ‘been a flat: answer to the objection ;. but they are so far from insisting upon this, that all the king’s counsellors, as well as the Court, do admit the warrant would have been void, if it:could be taken to be executed ‘by them out of -council. -The: Solicitor General. upon. that occasion cites the 16 Charles 1, c. 10, which statute is produced. and read,.and yet no argument is taken thence to prove the authority of the separate lords, though the Act is before them. Mr. Pollexfen in the course of the debate says, “We do all pretty well agree, for aught I can perceive, in two things. We do not deny, but that the council-board has power to commit. They on the other side do’ not affirm, that the lords of the council can commit out of the council. “ Attorney General. Yes, they may as justices of the peace. -. Polleafen. This is not pretended to be so here. D.C. J. No, no, that is-not the case.” ‘The Court at last got rid of:the objection, by: presuming the warrant to have been executed in council. There cannot be a stronger authority than this I have (p) Ante, p. 408. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 587 now cited for’the present purpose. The whole body of ExricK the law, if I may use the phrase, were as ignorant at that Canmiva- time of a privy counsellor’s:right to commit in the case of a libel, as the whole body of privy counsellors are at this day. The counsel on both sides.in that cause were the ablest of their time, and few times have produced abler. They had been concerned in all the state-cases during the whole reign of. King-Charles II, on one side or the other; and to suppose that all these persons could be utterly ignorant of this extraordinary power, if it had been either legal or even practised, is a supposition not to be maintained. This is the whole that I have been able to find, touch- ing the power of one or more privy counsellors to commit; and to sum up the whole of this business in a word it stands thus : The two cases in Leonard (g) do pre-suppose some power in a privy counsellor to. commit, without saying what; and the case in Anderson (7) does plainly recognize such a power in high treason: but with respect to his jurisdiction in other offences, do not find it was either claimed or exercised. In consequence of all this reasoning, I-am forced to deny the opinion of my Lord Chief Justice Holt (s) to be law, if it shall be taken to extend beyond the case of high treason. But there is no necessity to understand the ‘book in a more general sense; nor is it fair indeed to give the words a more large construction: for as the con- clusion ought always to be grounded on the premises, and the premises are confined to the case of high treason only, the opinion ‘should naturally conform to tHe cases cited, more especially as the case there before the Court was a case of high. treason, and they were under no necessity to lay:down the doctrine larger than the-case required.—_Now ‘whereas it has been argued, that if you admit a power of committing in high treason, the power of committing in (q) Ante, p. 573. (r) Ante, p. 581. (s) BR. v. Kendal, 5 Mod. 78. Digitized by Microsoft® 588 CONSTITUTIONAL LAW. Exncx lesser offences follows & fortiori ; I beg ‘leave to deny cannio- that consequence, for I take the rule with respect to all “* special authorities to be directly the reverse. They are always strictly confined to the letter; and when I see therefore, that a special power in any single case only has been permitted to a person, who in no other instance is known or recorded by the common law as a magistrate, I have no right to enlarge his authority one step beyond that case. Consider how strange it would sound, if I should declare at once, that every privy counsellor without exception is invested with a power to commit in all offences, without exception, from high treason down to trespass, when it is clear that he is not a conservator. It might be said of me, He should have explained himself a little more clearly, and told us where he had found the description of so singular a magistrate, who being no con- servator was yet in the nature of a conservator. I have now finished all I have to say upon this head ; and am satisfied, that the Secretary of State hath assumed this power as a transfer, I know not how, of the royal authority to himself; and that the common law of Eng- land knows no such magistrate. At the same time I declare, wherein my brothers do all agree with me, that we are bound to adhere to the determination of R. v. Derby and R. v. Harbury; and I have no right to overturn those decisions, even though it should be admitted, that the practice, which has subsisted since the Revolution, had been erroneous in its commencement. The Secretary of State having now been considered in the two lights of Secretary and Privy Counsellor, and likewise as the substitute of the royal mandate; in the two first he is clearly no conservator; in the last, if he can be supposed to have borrowed the right of conserva- torship from the Sovereign himself, yet no one will argue or pretend, that so great a person, one so high in authority, can be deemed a justice of the peace within the equity of the 24th of Geo. I. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 589 However, I will for a time admit the Secretary of Ennio State to be a conservator, in order 10 examine, whether cantine- in that character he can be within the equity of this -—— Act. IL Upon this question, I shall take into consideration Is the Se- tary of the 7 Jac. 1, c. 5, because, though it is not material upon State within this record to determine, whether the special evidence can of 2 Geo. 2 be admitted under the general issue of not guilty, the” defendant having in this instance justified; yet as that Act is made in videnn matertd, and for the benefit of the same persons, the rule of construction observed in that will in great measure be an authority for this. The 24th of Geo, IT. is entitled, “ An Act for the render- ing justices of the peace more safe in the execution of their offices, and for indemnifying constables and others acting in obedience to their warrants.” The preamble runs thus: “ Whereas justices of the peace are discouraged in the execution of their offices, by vexatious actions brought against them, for or by reason of small and involuntary errors in their proceedings ; and whereas it is necessary that they should be, as far as is consistent with justice and the safety and liberty of the subjects over whom their authority extends, rendered safe in the execu- tion of the said office and trust; and whereas it is also necessary, that the subject should be protected from all wilful and oppressive abuse of the several laws committed to the care and execution of the said justices of peace.” Then comes the enacting part. The only granter of the warrant in the enacting part, as well as the preamble, is the justice of the peace. The officers, as they are described, are constables, headboroughs, and other officers or persons acting by their orders, or in their aid. If any person acting in obedience to such warrant, and producing the said warrant upon demand, is afterwards prosecuted for such act, the statute says, he shall be acquitted, upon the production of such warrant. The counsel for the. defendants say, the secretary and Digitized by Microsoft® 590 CONSTITUTIONAL LAW. ance the messengers are both within the equity of this Act. carnixo- The first is a justice of the peace, because he is a conser- — vator.. If go, the latter is his officer, which I will admit. The proposition then is, that conservators are within the equity of this Act. They are clearly not within the letter, for justice and conservator are not convertible terms; and though it should be admitted, that a justice of the peace is still a conservator, yet a conservator is not a justice. The defendants have argued upon two rules of con- struction, which in truth are but one. 1. Where in a general Act a particular is put as an example, all other persons of like description shall be comprised. 2. Where the words of a statute enact a thing, it enacts all other things in like degree. In Plowden (¢), several cases are cited as authorities under these rules of construction ; as, that the Bishop of Norwich in one Act shall mean all bishops; that the warden of the Fleet shall mean all gaolers; that justices of a division mean all justices of the county at large, that guardian in socage after the heir’s attaining fourteen, shall be a bailiff in account; that executors shall include admi- nistrators, and tenant for years a tenant for one year or any less time; with several other instances to the like purpose. In the first place, though the general rule be true enough, that where it is clear the person or thing expressed is put by way of example, the judges must fill up the catalogue ; yet we ought to be sure, from the words and meaning of the Act itself, that the thing or person is really inserted as an example. This is a very inaccurate way of penning a law; and the instances of this sort are scarce ever to be found, except in some of the old Acts of Parliament. And wherever this rule is to take place, the Act must be (t) Pp. 37, 167, 467. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. general, and the thing expressed must be particular ; such as those cases of the warden of the Fleet and the Bishop of Norwich: whereas the Act before us is equally general in all its parts, and requires no addition or supply to give it the full effect. Therefore if this way of arguing can be maintained by either of these rules, it must fall under the second, which is, that where the words of a statute enact a thing, it enacts all other things in like degree. Tn all cases that fall within this rule, there must be a perfect resemblance between the persons or things ex- pressed and those implied. Thus for instance, admini- strators are the same thing with executors; tenant for half a year and tenant for years have both terms for a chattel interest, differing only in the duration of the term ; and so of the rest, which I need not repeat one by one: and, in all these cases, the persons or things to be implied are in all respects: the objects of the law as much as those expressed. Does not every body see from hence that you must first examine the law before you can apply the rule of construction? For the law must not be bent by the construction, but that must be adapted to the spirit and sense of the law. The fundamental rule then, by which all others are to be tried, is laid down in Wim- bish v. Tatlbois.(w), according to which the best guide is to follow the intent of the statute. Again, according to Plowden (a), the construction is to be collected out of the words according to the true intent and meaning of the Act, and the intent of the makers may be collected from the cause or necessity of mane the Act, or by foreign circumstances. Let us try the present case by these rules; and let the justice of the peace stand for a moment in this Act as a magistrate at large ; and then compare him, as he is here described, with the conservator. The justice here is a magistrate. fntendiel with. the (x) Plowd. 57, 58, (x) Pp. 205, 231. Digitized by Microsoft® 591 Entick % CARRING- TON. 592 CONSTITUTIONAL LAW. Eyrick execution of many laws, liable to actions for involuntary Carrmec- errors, and actually discouraged by vexatious suits; in TON, . . . . ee — respect of which perilous situation he is intended to be rendered more safe in the execution of his office—He is besides a magistrate, who acts by warrant directed to con- stables and other officers, namely, known officers who are bound to,execute his warrants. Now take the conservator—He is intrusted with the execution of no laws, if the word “law” is understood to mean statutes, as I apprehend it is. He is liable to no actions, because he never acts; the keeping of the peace being so completely transferred to and so engrossed by the justice, that the name of conservator is almost forgot. He is far from being discouraged by actions. No man ever heard of an action brought against a conservator as such ; unless you will call a constable a conservator, which will not serve the present purpose, because these persons can hardly be deemed justices within the Act. Again, how does it appear that the conservator could either grant a warrant like the present, or command a constable to execute it? These powers are at least very doubtful; but I think I may take it for granted that the conservator could not command a messenger of the king’s chamber. Did then this Act of Parliament refer to magistrates of known authority and daily employment, or to antiquated powers and persons known to have existed by historical tradition only? Did it mean to redress real grievances, or those that were never felt? Ad ea, que frequenter accidunt, jura adaptantur. From this comparison it may appear how little there is to drag the conservator into the law, who hardly corre- sponds with the justice of the peace in any one point of the description. But further, it is unfortunate for the conservators upon this question that one half of them are the objects of the statute by name, as constables, &., and yet not one of their acts as conservators is within the provision. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. And now give me leave to ask one question. Will the Secretary of State be classed with the higher or the lower conservator ? If with the higher, such as the king, the chancellor, &¢., he is too much above the justice to be within the equity. If with the lower, he is too much below him, And as to the sheriff and the coroner, they cannot be within the law, because they never grant such warrants as these. So that at last, upon considering all the con- servators, there is not one that does not stand most evidently excluded, unless the Secretary of State himself shall be excepted. But if there wanted arguments to confute this preten- sion, the construction that has prevailed upon the 7 Jac. I. would decide the point. That is an Act of like kind to relieve justices of the peace, mayors, constables, and cer- tain other officers, in troublesome actions brought against them for the legal execution of their offices; who are enabled by that Act to plead the general issue. Now that law has been taken so strictly, that neither churchwardens nor overseers were held to be within the equity of the word “constables,” although they were clearly officers, and acted under the justices’ warrants. Why? Because that Act, being made to change the course of the common law, could not be extended beyond the letter. If then that privilege of giving the special matter in evidence upon the general issue is contrary to the common law, how much more sub- stantially is this Act an innovation of the common law, which indemnifies the officer upon the production of the warrant, and deprives the subject of his right of action ? It is impossible that two Acts of Parliament can be more nearly allied or connected with one another than that of 24 Geo. II, and that of 7 James I. The objects in both are the same, and the remedies are similar in both, each of them changing the common law for the benefit of the parties concerned. The one in truth is the sequel or second part of the other. The first not being an adequate remedy in case of the several persons therein mentioned, @Q Digitized by Microsoft® 593 EnTick Vv CARRING- TON. 594 ENtIcK a, CaRRING- TON, Did the de- fendants actin obe- dience to the war- rant? CONSTITUTIONAL LAW. the second is added to complete the work, and to make them as secure as they ought to be made from the nature of the case. If by a contrary construction any person should be admitted into the last that is not included in the first, that person, whoever he is, will be without the privilege of pleading the general issue, and giving the special matter in evidence, which the latter would have certainly given by express words, if the parliament could have imagined he was not comprised in the first. Upon the whole, we are all of opinion that neither Secretary of State, nor the messenger, is within the mean- ing of this Act of Parliament. III—But if they were within the general equity, yet it behoved the messengers to show that they have acted in obedience to the warrant; for it is upon that condition that they are intitled to the exemption of the Act. When the legislature excused the officer from the perilous task of judging, they compelled him to an implicit obedience, which was but reasonable : so that now he must follow the dictates of his warrant, being no longer obliged to inquire whether his superior had or had not any jurisdiction. The late decision of the Court of King’s Bench in the Case of General Warrants (y) was ruled upon this ground, and rightly determined. This part of the case is clear, and shall be dispatched in very few words. Ist, the defendants did not take with them a constable, which is a flat objection. They had no business to dispute either the propriety or the legality of this direction in the execution of the warrant ; nor have their counsel any right to dispute it here in their behalf. They can have no other plea, under this Act of Parliament, than ignorance and obedience. 2ndly, they did not bring the papers to the Earl of Halifax, to be examined according to the tenor of the war- (y) Money v. Leach, ante, p. 525. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 595 rant, but to Mr. Lovel Stanhope. This command ought Ewricx to have been literally pursued ; nor is it any excuse to say Carmina: now, as they do in their plea, that Mr. Lovel Stanhope was an assistant to the Earl of Halifax. If he is a magis- trate he can have no assistant, nor deputy, to execute any part of that employment. The right is personal to him- self, and a trust that he can no more delegate to another than a justice of the peace can transfer his commission to his clerk. T shall say no more upon this head. But I cannot help observing that the Secretary of State, who has not been many years intrusted with this authority, has already eased himself of every part of it, except the signing and sealing the warrant. The law clerk, as he is called, examines both persons and papers. He backs or discharges. This is not. right. I could wish for the future that the secretary would discharge this part of his office in his own person. IV.—The question that arises upon the special verdict Was the warrant being now dispatched, I come in my last place to the jus- legal? tification ; for the defendants, having failed in the attempt made to protect themselves by the stat. 24 Geo. 2, ¢. 44, are under a necessity to maintain the legality of the war- rant under which they have acted, and to show that the Secretary of State, in the instance now before us, had a jurisdiction to seize the defendants’ papers. If he had no such jurisdiction, the law is clear, that the officers are as much responsible for the trespass as their superior. This, though it is not the most difficult,is the most interesting question in the cause; because if this point should be determined in favour of the jurisdiction, the secret cabinets and bureaus of every subject in this king- dom will be thrown open to the search and inspection of a messenger, whenever the Secretary of State shall think fit to charge; or even to suspect, a person to be the author, printer, or publisher of a seditious libel. The messenger, under this warrant, is commanded to seize the person described, and to bring him with his QQ2 Digitized by Microsoft® 596 ENTICK vw. CARRING- TON. CONSTITUTIONAL LAW. papers to be examined before the Secretary of State. In consequence of this, the house must be searched ; the lock and doors of every room, box, or trunk must be broken open ; all the papers and books without exception, if the warrant be executed according to its tenor, must be seized and carried away; for it is observable that nothing is left either to the discretion or to the humanity of the officer. This power so assumed by the Secretary of State is an execution upon all the party’s papers, in the first instance. His house is rifled; his most valuable secrets are taken out of his possession, before the paper for which he is charged is found to be criminal by any competent juris- diction, and before he is convicted either of writing, pub- lishing, or being concerned in it. This power, so claimed by the Secretary of State, is not supported by one single citation from any law book extant. It is claimed by no other magistrate in this kingdom but himself: the great executive hand of criminal justice, the Lord Chief Justice of the Court of King’s Bench, Chief Justice Scroggs excepted (z), never having assumed this authority. The arguments, which the defendants’ counsel have thought fit to urge in support of this practice, are of this kind. That such warrants have issued frequently since the Revolution, which practice has been found by the special verdict ; though I must observe that the defendants have no right to avail themselves of that finding, because no such practice is averred in their justification. That the case of the warrants bears a resemblance to the case of search for stolen goods. They say, too, that they have been executed without resistance upon many printers, booksellers, and authors, who have quietly submitted to the authority; that no action hath hitherto been brought to try the right ; and (2) Post, p. 605, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. that although they have been often read upon the returns of habeas corpus, yet no court of justice has ever declared them. illegal. And it is further insisted, that this power is essential to government, and the only means of quieting clamours and sedition. These arguments, if they can be called arguments, shall be all taken notice of, because upon this question I am desirous of removing every colour of plausibility. Before I state the question, it will be necessary to de- scribe the power claimed by this warrant in its full extent. Tf honestly exerted, it is a power to seize that man’s papers who is charged upon oath to be the author or pub- lisher of a seditious libel; if oppressively, it acts against every man who is so described in the warrant, though he be innocent. It is executed against the party, before he is heard or even summoned; and the information, as well as the informers, is unknown. It is executed by messengers with or without a constable (for it can never be pretended that such is necessary in point of Jaw) in the presence or the absence of the party, as the messengers shall think fit, and without a witness to testify what passes at the time of the transaction ; so that when the papers are gone, as the only witnesses are the trespassers,.the party injured is left without proof. If this inquiry falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole trans- action is so guarded against discovery, that if the officer should be disposed to carry off a bank-bill he may do it with impunity, since there is no man capable of proving either the taker or the thing taken. It must not be here forgot that no subject whatsoever is privileged from this search ; because both Houses of Par- lament have resolved that there is no privilege in the case of a seditious libel (a). (a) 29 Comm. Journ. 689 ; Cobhett, Parl. Hist., vol. 15, pp. 1362 et seq. Digitized by Microsoft® 597 Entick v CARRING- TON. 598 CONSTITUTIONAL LAW. ENTICK Nor is there pretence to say that the word “ papers” here canmxc- mentioned ought in point of law to be restrained to the —~ libellous papers only. The word is general, and there is nothing in the warrant to confine it; nay, I am able to affirm that it has been upon a late occasion executed in its utmost latitude: for in the case of Wilkes v. Wood (6), when the messengers hesitated about taking all the manu- scripts, and sent to the Secretary of State for more express orders for that purpose, the answer was, “all must be taken, manuscripts and all.” Accordingly all was taken, and Mr. Wilkes’s private pocket-book filled up the mouth of the sack. I was likewise told in the same cause by one: of the most experienced messengers, that he held himself bound by his oath to pay an implicit obedience to the commands of the Secretary of State ; that in common cases he was contented to seize the printed impressions of the papers mentioned in the warrant; but when he received direc- tions to search further, or to make a more general seizure, his rule was to sweep all. The practice has been corre- spondent to the warrant. Such is the power, and therefore one would naturally expect that the law to warrant it should be clear in pro- portion as the power is exorbitant. If it is law, it will be found in our books; if it is not to be found there, it is not law. The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law, are various. Distresses, execu- tions, forfeitures, taxes, &c., are all of this description ; wherein every man by common consent gives up that right for the sake of justice and the general good. By the laws (b) Ante, p, 548, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 599 of _England every invasion of private property,,be it ever ENTICK so minute, is a trespass. No man can set. his foot upon Cantina. my ground without my licence but he, is liable to an action, though the damage be nothing; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some: positive: law has empowered or excused him. The justification is sub- mitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the. principles of common law. If no such excuse can be found or produced, :the silence of the books is an authority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted, If that cannot be done, it is a trespass. Papers are the owner’s goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an Inspection ; and tholigh, the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, ‘the secret nature of those goods will be an aggravation of the: trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society. But though it cannot be maintained by any direct law, yet it. bears a resemblance, as was urged, to the known case of search and seizure for stolen goods, I answer, that the difference is apparent. In the one, I am permitted to seize my own goods, which are placed in the hands of a public officer till the felon’s conviction shall intitle me to restitution. In the other, the party’s own Digitized by Microsoft® 600 CONSTITUTIONAL LAW. Extcx property is seized before and without conviction, and he carrixa- has no power to reclaim his goods, even after his innocence “is cleared by acquittal. The case of searching for stolen goods crept into the law by imperceptible practice. It is the only case of the kind that is to be met with. No less a person than my Lord Coke denied its legality (c); and therefore if the two cases resembled each other more than they do, we have no right, without an Act of Parliament, to adopt a new practice in the criminal law, which was never yet allowed from all antiquity. Observe, too, the caution with which the law proceeds in this singular case.—There must be a full charge upon oath of a theft committed—The owner must swear that the goods are lodged in such a place.—He must attend at the execution of the warrant,.to show them to thé officer, who must see that they answer the description —And, lastly, the owner must abide the event at his peril: for if the goods are not found, he is a trespasser ; and the officer being an innocent person, will be always a ready and con- venient witness against him (d). On the contrary, in the case before us nothing is de- scribed nor distinguished: no charge is requisite to prove that the party has any criminal papers in his custody: no person present to separate or select : no person to prove in the owner's behalf the officer’s misbehaviour.—To say the truth, he cannot easily misbehave unless he pilfers; for he cannot take more than all. If it should be said that the same law which has with so much circumspection guarded the case of stolen goods from mischief, would likewise in this case protect the sub- ject by adding proper checks ; would require proofs before- hand ; would call up the servant to stand by and overlook ; would require him to take an exact inventory, and deliver a copy: my answer is, that all these precautions would (c) 4Inst. 176. (d) See Hawk. P. C., ed. by Leach, Bk. 2, chap. 18, s. 17. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 601 have been long since established by law, if the power itself Exmiox had been legal ; and that the want of them is an undeni- Canniva- able argument against the legality of the thing. What would the Parliament say if the judges should take upon themselves to mould an unlawful power into a convenient authority by new restrictions? That would be not judgment, but legislation. I come now to the practice since the Revolution, which has been strongly urged, with this emphatical addition : that an usage tolerated from the era of liberty, and_conti- nued downwards to this time through the best ages of the constitution, must necessarily have a legal commencement. Now, though that pretence can have no place in the ques- tion made by this plea, because no such practice is there alleged ; yet I will permit the defendants for the present to borrow a fact from the special verdict, for the sake of giving it an answer. If the practice began then, it began too late to be law now. If it was more ancient, the Revolution is not to answer for it; and I could have wished that upon this occasion the Revolution had not been considered as the only basis of our liberty. The Revolution restored this constitution to its first principles. It did no more. It did not enlarge the liberty of the subject, but gave it a better security. It neither widened nor contracted the foundation, but repaired and perhaps added a buttress or two to the fabric; and if any minister of state has since deviated from the principles at that time recognized, all that I can say is that, so far from being sanctified, they are condemned by the Revolution. With respect to the practice itself, if it goes no higher, every lawyer will tell you it-is much too modern to be evidence of the common law; and if it should be added, that these warrants ought to acquire some strength by the silence of those Courts, which have heard them read so often upon returns without censure or animadversion, I am able to borrow my answer to that pretence from the Digitized by Microsoft® 602 -CONSTITUTIONAL LAW. Evrick Court of King’s Bench, which lately declared with great Cannio. unanimity in the. Case of General Warrants (e), that as — no objection was taken to them upon the returns, and the matter passed sub silentio, the precedents were of no weight. I most heartily concur in that opinion; and the reason is more pertinent here, because the Court had no authority in the present case..to determine against the seizure of papers which was not before them ; whereas in the other they might, if they had thought fit, have declared the warrant void, and discharged the prisoner ex officio. This .is the first instance. I have met with where the ancient immemorable law of the land, in a public matter, was attempted. to be proved by the practice of a private office. The names and rights of public magistrates, their power and forms of proceeding as they are settled by law, have been long since written, and are to be found in books and records. Private customs, indeed, are still to be sought from private tradition. But who ever conceived a notion that any part of the public law could be buried in the obscure practice of a particular person ? To search, seize, and carry away all the papers of the subject upon the first warrant: that such a right should have existed from the time whereof the memory of man runneth not to the contrary, and never yet have found a place in any book of law, is incredible. But if so strange a thing could. be supposed, I do not see how we could declare the law upon such evidence. But still it is insisted that there has been a general sub- mission, and no action brought to try the right. I answer, there has been a submission of guilt and poverty to power and the terror of punishment. But it would be strange doctrine to assert that all the people of this land are bound to acknowledge that to be universal law which.a few criminal booksellers have been afraid to dispute. (e) Ante, p. 546, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. The defendants upon this occasion have stopped short at the Revolution. But I think it would be material to go further back, in order to see how far the search and’ seizure of papers have been countenanced in the antece- dent reigns. First, I find no trace of such a:warrant as the present before that period, except a very few that were produced the other day in the reign of King Charles IT. But there did exist a search-warrant, which took its rise from a decree of the Star-Chamber. The decree is found at the end of the 38rd volume of Rushworth’s Col- lections (f). It was made in the year 1636, and recites an older decree upon the subject in the 28th of Elizabeth, by which probably the same power of search was given. By this decree the messenger of the press was em- powered to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate. It was very evident that the Star-Chamber, how soon after the invention of printing I know not, took to itself the jurisdiction over public libels, which soon grew to be the peculiar business of that court. Not that the courts of Westminster Hall wanted the power of holding pleas in those cases; but the Attorney-General for good reasons chose rather to proceed there; which is the reason why we have no cases of libels in the King’s.Bench before the Restoration. The Star-Chamber from this jurisdiction presently usurped a general superintendence over the press, and exercised a legislative power in all matters relating to the subject. They appointed licensers ; they prohibited books; they inflicted penalties; and they dignified one of their officers with the name of the messenger of the press, and among other things enacted this warrant of search. (f) Et vide Rush. Coll, Part II. vol. i. p. 404. Digitized by Microsoft® 603 ENTICK wm CaRRING- TON. 604 CONSTITUTIONAL LAW. Estick After that court was abolished, the press became free, CaRRine- but enjoyed its liberty not above two or three years ; for — the Long Parliament thought fit to restrain it again by ordinance. Whilst the press is free, I am afraid it will always be licentious, and all governments have an aversion to libels. This parliament, therefore, did by ordinance restore the Star-Chamber practice ; they recalled the licences, and sent forth again the messenger. It was against the ordinance, that Milton wrote that famous pamphlet called Areopagitica. Upon the Restoration, the press was free once more, till the 13th and 14th of Charles II, when the Licensing Act (g) passed, which for the first time gave the Secretary of State a power to issue search warrants: but these warrants were neither so oppressive nor so inconvenient as the present. The right to enquire into the licence was the pretence of making the searches; and if during the search any suspected libels were found, they and they only could be seized. This Act expired the 32nd year of that reign, or there- abouts. It was revived again in the Ist year of king James II., and remained in force till the 5th of king William, after one of his parliaments had continued it for a year beyond its expiration. I do very much suspect that the present warrant took its rise from these search warrants that I have been describing ; nothing being easier to account for than this engraftment; the difference between them being no more than this, that the apprehension of the person in the first was to follow the seizure of papers, but the seizure of papers in the latter was to follow the apprehension of the person. The same evidence would serve equally for both purposes. If it was charged for printing or publishing, that was sufficient for either of the warrants. Only this material difference must always be observed between them, that the search warrant only carried off the criminal papers, whereas this seizes all. (g) 18 & 14 Car. 2, ¢. 33, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. “605 When the Licensing Act expired at the close of King Evrice Charles II.’s reign, the twelve judges were assembled at Canina- the king’s pommanl to discover whether the press might not be as effectually restrained by the common law, as it had been by that statute. I cannot help observing in this place, that if the Secre- tary of State was still invested with a power of issuing this warrant, there was no occasion for the application to the judges: for though he could not issue the general search warrant, yet upon the least rumour of a libel he might have done more, and seized everything. But that was not thought of, and therefore the judges met and resolved : Ist. That it was criminal at common law, not only to write public seditious papers and false news ; but likewise to publish any news without a licence from the king though it was true and innocént. ; 2ndly. That libels were seizable. This is to be found in the State Trials (h) ; and because it is a curiosity, I will recite the passages at large. At the Trial of Harris for a libel, per Scroggs Chief Justice :— “Because my brethren shall be satisfied with the opinion of all the judges of England what this offence is, which they would insinuate, as if the mere selling of books was no offence ; it is not long since that all the judges met by the king’s commandment, as they did some time before : and they both times declared unanimously, that all persons that do write, or print, or sell any pamphlet that is either scandalous to public or private persons, such books may be seized, and the persons punished by law ; that all books which are scandalous to the government may be seized, and all persons so expounding may be punished: and further, that all writers of news, though not scandalous, seditious, nor reflective upon the government or state, (A) 7 St. Tr. 929. Digitized by Microsoft® TON. 606 CONSTITUTIONAL LAW. Eyck yet if they are writers, as they are few others, of false Canna, news, they are indictable and punishable upon that account.” It seems the Chief Justice was a little incorrect in his report; for it should seem as if he meant to punish only the writer of false news. But he is more accurate after- wards in the trial of Carre for a libel (¢). “ Sir G. Jefferies, Recorder. All the judges of England having met together to know whether any person what- soever may expose to the public knowledge any matter of intelligence, or any matter whatsoever that concerns the public, they give it in as their resolution that no person whatsoever could expose to the public knowledge any- thing that concerned the affairs of the public, without licence from the king, or from such persons as he thought fit to entrust with that power.” “Then Scroggs takes up the subject, and says, The words I remember are these. When by the king’s com- mand we were to give in our opinion, what was to be done in point of regulation of the press, we did all subscribe, that to print or publish any news-books or pamphlets, or any news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be pro- ceeded against by law for an illegal thing. Suppose now that the thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicite done, and the author ought to be convicted for it.” These are the opinions of all the twelve judges of Eng- land ; a great and reverend authority. Can the twelve judges extrajudicially make a thing law to bind the kingdom by a declaration that such is their opinion ?—I say, No.—It is a matter of impeachment for any judge to affirm it. There must be an antecedent principle or authority from whence this opinion may be fairly collected ; otherwise the opinion is null, and nothing (i) 7 St. Tr. 1197. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. but ignorance can excuse the judge that subscribed it. 607 HL Out of this doctrine sprang the famous general search-. Cannine- warrant that was condemned by the House of Commons ; and it was not unreasonable to suppose that the form of it was settled by the twelve judges that subscribed the opinion. The deduction from the opinion to the warrant is obvious. If you can seize a libel, you may search for it: if search is legal, a warrant to authorize that search is likewise legal: if any magistrate can issue such a war- rant, the Chief Justice of the King’s Bench may clearly do it. It falls here naturally in my way to ask whether there be any authority besides this opinion of these twelve judges to say that libels may be seized? If they may, I am afraid that all the inconveniences of a general seizure will follow upon a right allowed to seize a part. The search in such ‘cases will be general, and every house will fall under the power of a Secretary of State to be rammaged before proper conviction—Consider for a while how the law of libels now stands. Lord Chief Justice Holt and the Court of King’s Bench have resolved in Rex v. Bear (j), that he who writes a libel, though he neither composes nor publishes it, is criminal. Lord Coke (k) cites it in the Star-Chamber, that if a libel concerns a public person, he that hath it in his custody ought immediately to deliver it oF a magis- trate, that the author may be found out. In the case of Lake v. Hutton (, it is observed that a libel, though the contents are true, is not to be justified ; but the right way is to discover it to some magistrate or other, that he may have' cognizance of the cause. In Ventris (m), it is said that the having a libel, and not discovering it to a magistrate, was only punishable in (j) Carth, 407, S.C. 1 Lord (R) 5 Rep, 125, Raym. 414; 12 Mod. 299; 2 Salk. (1) Hob. 252. 417, 646. (m) Vol. i., p. 81, Digitized by Microsoft® 608 Entick CaARRING- TON, CONSTITUTIONAL LAW. the Star-Chamber, unless the party maliciously publish it. But the Court corrected this doctrine in R. v. Bear, where it said, though he never published it, yet his having it in readiness for that purpose, if any occasion should happen, is highly criminal: and though he might design to keep it private, yet after his death it might fall into such hands as might be injurious to the government; and therefore men ought not to be allowed to have such evil instruments in their keeping (n). In Salkeld’s report of the same case (0), Holt, C. J., says, if a libel be publicly known, a written copy of it is evidence of a publication. If all this be law, and I have no right at present to deny it, whenever a favourite libel is published (and these compositions are apt to be favourites) the whole kingdom in a month or two becomes criminal, and it would be difficult to find one imnocent jury amongst so many mil- lions of offenders. . I can find no other authority to justify the seizure of a libel, than that of Scroggs and his brethren. If the power of search is to follow the right of seizure, everybody sees the consequence. He that has it or has had it in his custody; he that has published, copied, or maliciously reported it, may fairly be under a reasonable suspicion of having the thing in his custody, and conse- quently become the object of the search-warrant. If libels may be seized, it ought to be laid down with pre- cision, when, where, upon what charge, against whom, by what magistrate, and in what stage of the prosecution. All these particulars must be explained and proved to be law, before this general proposition can be established. As therefore no authority in our books can be produced to support such a doctrine, and so many Star-Chamber decrees, ordinances, and Acts have been thought necessary to establish a power of search, I cannot be persuaded, that such a power can be justified by the common law. (n) Carth, 409. (0) Salk. 418, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 609 I have now done with the argument which has endea- Evrick voured to support this warrant by the practice since the cannie- Revolution. It is then said, that it is necessary for the ends of government to lodge such a power with a state officer , and that it is better to prevent the publication before than to punish the offender afterwards. I answer, if the legis- lature be of that opinion, they will revive the Licensing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions, Serjeant Ashley was committed to the Tower in the 8rd of Charles I. by the House of Lords only for asserting in argument, that there.was a “law of State” different from the common law (p); and the Ship-money judges were impeached for holding, first, that State necessity would justify the raising money without consent of parliament ; and secondly, that the king was judge of that necessity. If the king himself has no power to declare when the law ought to be violated for reason of State, I am sure we his judges have no such prerogative. Lastly, it is urged as an argument of utility, that such a search is a means of detecting offenders by discovering evidence. I wish some cases had been shown, where the law forceth evidence out of the owner’s custody by process. There is no process against papers in civil causes. It has been often tried but never prevailed. Nay, where the adver- sary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action. In the criminal law such a proceeding was never heard of; and yet there are some crimes, such, for instance, as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than libel- (p) 38t. Tr. 151, RR Digitized by Microsoft® TON, 610 ENtick v CaRRING- TON. CONSTITUTIONAL LAW. ling. But our law has provided no paper-search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain, that the law obligeth no man to accuse himself ; because the necessary means of compelling self- accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty. Observe the wisdom as well as mercy of the law. The strongest evidence before a trial, being only ex parte, is but suspicion ; it is not proof. Weak evidence is a ground of suspicion, though in a lower degree ; and if suspicion at large should be a ground of search, especially in the case of libels, whose house would be safe ? If, however, a right of search for the sake of discovering evidence ought in any case to be allowed, this crime above all others ought to be excepted, as wanting such a disco- very less than any other. It is committed in open day- light, and in the face of the world ; every act of publication makes new proof; and the solicitor of the treasury, if he pleases, may be the witness himself. The messenger of the press, by the very constitution of his office, is directed to purchase every libel that comes forth, in order to be a witness, Nay, if the vengeance of Government requires a produc- tion of the author, itis hardly possible for him to escape the impeachment of the printer, who is sure to seal his own pardon by his discovery. But suppose he should happen to be obstinate, yet the publication is stopped, and the offence punished. By this means the law is satisfied, and the public secured, I have now taken notice of everything that has been urged upon the present point ; and upon the whole we are Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. all of opinion, that the warrant to seize and carry away the party’s papers in the case of a seditious libel, is illegal and void, Before I conclude, I desire not to be understood as an advocate for libels. All civilized governments have pun- ished calumny with severity ; and with reason ; for these compositions debauch the manners of the people; they excite a spirit of disobedience, and enervate the authority of Government; they provoke and excite the passions of the people against their rulers, and the rulers often- times against the people. After this description, I shall hardly be considered as a favourer of these pernicious productions. I will always set: my face against them, when they come before me; and shall recommend it most warmly to the jury always to convict when the proof is clear. They will do well to con- sider, that unjust acquittals bring an odium upon the press itself, the consequence whereof may be fatal to liberty ; for if kings and great men cannot obtain justice at their hands by the ordinary course of law, they may at last be provoked to restrain that press, which the juries of their country refuse to regulate. When licentiousness is tole- rated, liberty is in the utmost danger; because tyranny, bad as it is, is better than anarchy; and the worst of governments is more tolerable than no government at all. 611 ENTICK Vv. CaRRING- TON. In the year 1764 and the two following years the lega- Proceedings in Parlia- lity of General Warrants was from time to time under the ment. consideration of parliament, and during the debates in the House of Commons upon this subject, it was argued, inter alia, as follows :—(p) That if general warrants describing the offence do not give officers aright to seize the innocent, they throw in the way of messengers a temptation to inquire into the life and character of persons, and thus tend to convert these subordinate ministers of justice into so many spies and (p) Cobbett, Parl. Hist. vol.15, pp. 1393 et seg.; vol. 16, pp. 6 et seg. RR2 Digitized by Microsoft® 612 ENtick wy. CarRING- TON. CONSTITUTIONAL LAW. informers, and that such an enquiry, even when conducted in the discreetest manner, might injure the most virtuous in their reputation and fortune. That if a general warrant for seizing the authors, printers, and publishers of a libel, seditious and treason- able in the eye of a minister, be liable to objection, one for seizing their papers is still more so, since papers may be treated in a manner highly injurious to their owners before they can get into the hands of a minister who, to glut his revenge, may combine or disjoin them, so as to make of them engines capable of working the destruction of the most innocent persons. That even a particular warrant to seize seditious papers alone, without mentioning the titles of them, may prove highly detrimental, since in that case all a man’s papers must be indiscriminately examined, and such examination may bring things to light which it may not concern the public to know, and which yet it may prove highly detri- mental to the owners to have made public. That great as might be the mischiefs to individuals of general warrants for seizing the persons and papers of those guilty of writing seditious and even treasonable libels; the mischiefs attending general warrants against the printers and publishers of such libels, unless these libels carry something seditious or treasonable in their very title, or they have been legally declared such, must be still greater to the public, since, if such warrants were allowed, printers and publishers to be safe must read everything passing. through their hands, and of course would print or publish very little, the consequence of which must be a “suppression of the press,” an evil more preju- dicial to the public than almost any abuse of it can be. That the cases, if any, in which it might be proper to endeavour to secure by a general warrant the persons, and by almost any warrant the papers of those con- cerned in the writing, printing, and publishing of seditious, and what a minister might think proper to style treason- Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. able libels, are so few that they may be justly ranked amongst those very uncommon events against which the legislature has not thought proper to make any provision. And it was accordingly resolved (qg), “That a general warrant for apprehending the author, printer, or publisher of a libel being illegal, except in cases provided for by Act of Parliament, is, if executed on the person of a member of this House, also a breach of the privilege of this House” (vr). “That the seizing or taking away the papers of the author, printer, or publisher of a libel, or the sup- posed author, printer, or publisher of a libel, is illegal ; and that such seizing or taking away the papers of a member of this House is a breach of the privilege of this House.” The Resolutions of the House of Commons above set out, conjointly with the opinions strongly expressed by the most eminent contemporary Judges, not merely in the Principal Cases but also on other like occasions (s), seem to have conclusively set at rest the question as to the legality of general warrants issued by a Secretary of (g) 80 Comm. Journ. pp. 753, 772. A.D. 1776, April 22 & 25. (r) See the debates respecting the legality of general warrants, Cobbett, Parl. Hist. vol. 15, pp. 1393 et seq.; vol. 16, pp. 6 et seg.; 207—209 (s) In Huckle v. Money, 19 St. Tr. 1404, 1405, where the plaintiff was a journeyman printer, the jury found a verdict for him, with 3007. damages ; and upon a motion for a new trial for the excessiveness of the damages, Lord Chief Justice Pratt, in delivering his opinion, is reported to have expressed himself as follows: ‘‘The personal injury done to the plaintiff was very small; so that if the jury had been confined by their oath to consider the mere personal injury ouly, perhaps 202. damages would have been thought damages sufficient ; but the small in- jury done to the plaintiff, and the inconsiderableness of his station and rank in life did not appear to the jury in that striking light, in which the great point of law touching the liberty of the subject appeared to them at the trial. They sawa magistrate over all the king’s subjects, exercising arbi- trary power, violating Magna Carta, and attempting to destroy the liberty of the kingdom, by insisting upon the legality of this general warrant before them : they heard the king’s counsel, and saw the solicitor of the Treasury endeavouring to support and maintain. the legality of the warrant in a tyran- nical and severe manner. These are Digitized by Microsoft® 613 Entick wy CARRING- TON. Resolutions of the House of Commons Nore To Entics v. CaRRING- TON, ETC. 614 CONSTITUTIONAL LAW. Nore so State, in that capacity and under circumstances such Canina. 28 have appeared. At the trial, indeed, a.p. 1776, of the TON, ETC. action Sayre v. The Karl of Rochford (uw) for false im- prisonment and seizure of the plaintiff’s papers, the pleas in justification alleged that the defendant was, at the time when the occurrence complained of took place, one of the lords of his Majesty's Privy Council, and one of his Majesty’s principal Secretaries of State; and that, upon an information upon oath, by one Richardson, against the plaintiff, for treasonable practices, the defendant did issue his warrant to arrest the plaintiff for high treason, and to seize his papers; and did issue another warrant to commit him close prisoner to the Tower ; wherein the ground of commitment was stated to be “treasonable practices.” In this case there could be no doubt that the original warrant, so far as it related to a seizure of the plaintiff’s papers, was illegal, nor does any serious con- tention in support of that direction in it seem to have been made ; the verdict passed in favour of the plaintiff, with 10002. damages, although judgment was finally entered for the defendant owing to a miscarriage at the trial in regard to the reception of evidence. We may, the ideas which struck the jury on the trial ; and I think they have done right in giving exemplary damages. To enter a man’s house by virtue of a nameless warrant in order to procure evidence, is worse than the Spanish inquisition, a law under which no Englishman would wish to live an hour: it was a most daring public attack made upon the liberty of the subject. I thought that the 29th chapter of Magna Carta, Nudllus liber homo capiatur vel imprisonetur, £c., nec super eum ibimus, dc., nist per legale judictum parium suorwm vel per legem terra, &c., which is pointed against arbitrary power, was violated. I cannot say what damages I should have given if I had been upon the jury, but I directed and told them they were not bound to any certain damages. . . . . Upon the whole, I am of opinion the damages are not excessive.” See also, per Wilmot, C.J., Wilkes v. Lord Halifax, 19 St, Tr, 1406— 1415. (u) 19 St. Tr. 1286. Digitized by Microsoft® RELATION OF THE SUBJECT. TO THE EXECUTIVE. 615 therefore, accept Mr. Burke’s remark (a) as strictly Nor= 7 accurate, that “the lawful secrets of business and friend- 4,,?ixo. ship were rendered inviolable,” by the foregoing Resolution *%="* of the House of Commons condemnatory of the seizure of papers. The law, as now recognised upon the subject before us, may thus, without undue repetition (y), be epitomised. The Sovereign cannot personally arrest a man or commit a man by word of mouth (2), though he may do so by matter of record (a), or warrant setting forth the offence charged in order that the Court may determine whether it be known to our law; if so, whether it be bailable or not. The power thus inherent in the Sovereign has, by him in practice been delegated to his Privy Council, or to his Secretary of State; the power of this high official to interfere with the subjects’ liberty being restricted to cases only where treason or treasonable practices (6) are assignable, as showing ground for its exercise. His power does not extend to authorise the seizure of papers of an accused, The right asserted by a Secretary of State to seize, open, Heating and peruse letters passing through the Post Office, was some years since investigated in Parliament with jealous appre- hension (¢), as being akin to the claim to seize papers so forcibly repudiated by Lord Camden. It was found, how- ever, on investigation, that the exercise of such a power (x) Short Account of a late Short 742, where Lord Kenyon, C. J., ob- Administration, Burke’s Works (Ed. serves: ‘‘I have no difficulty in say- 1852), vol. iii. p. 1. ing that the Secretaries of State have (y) Compare ante, pp. 165, 176-7, the right to commit. This right was 188-9, 192-8, 210, 214. ¢ vide noteven doubted by Lord Camden.” the three Principal Cases. Acc. Judgm. Harrison v. Bush, 5 K. (z) 2 Inst. 186. & B. 358. (a) Id. (c) See particularly Hansard, vol. (8) R. v. Despard, 7 T. BR. 736, — Iaxv. pp, 892, 974, 12645 vol. Ixxvii. Digitized by Microsoft® 616 CONSTITUTIONAL LAW. Nore to can be traced from the earliest institutions in this country Carving. for the conveyance of letters, and from Orders in Council, row Fre. A.D. 1626 and 1627 (d). That upon the first establish- ment, by ordinance (¢), of a regular Post Office, such insti- tution was stated to be the best means for discovering and preventing many dangerous and wicked designs against the Commonwealth. That in letting to farm the Post Office to individuals, and in proclamations of the 25th of May, 1663, and 25th of August, 1683, the power in question is distinctly claimed and reserved. That the terms in which the provisions of the stat. 9 Ann. c, 10 upon this subject, are enacted, can only be explained upon the supposition that such power was at that time fully recognised, inasmuch as the said Act gives no power to the Secretary of State to detain or open letters, but prohibits others from doing so, except by an express warrant in writing, under the hand of the Principal Secre- tary for every such opening or detaining (f). And that the subsequent statutes, 35 Geo. 3, c. 62, and 7 Will. 4.& 1 Vict. c. 86 (g), adopted nearly the same form of recognition. The power claimed by a Secretary of State to open letters, appears, therefore, to have been exercised from a very early period, and to have been recognised by several pp. 668 et seg., $34, 932; vol. lxxix. p. 307. (d) Report from the Secret Com- ‘mittee (Lords) relative to the Post Office, August, 1844. See Hansard, vol. Ixxvi. p. 311. (e) Ordinance, a.p. 1656, c.30, Pre- amble ; Scobell, p. 511. (f) 9 Ann. c. 10, s. 40; the words of the exception are: ‘‘ Except by an express. warrant in writing under the hand of one of the principal Secreta- ries of State for every such opening, detaining, or delaying.” (g) S. 25, which, declaring penal the unauthorised detention of letters in the Post Office, contains, inter alia, @ proviso that ‘‘nothing herein con- tained shall extend to the opening or detaining or delaying of a post-letter in obedience to an express warrant in writing under the hand of one of the principal Secretaries of State.” Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Acts of Parliament. It has been exerted for effecting -either of two purposes. First of tracing persons accused of offences, or property embezzled by suspected offenders ; -such warrants having been issued whenever application has been made (h) to the Under Secretary of State, upon grounds which have seemed to the Principal Secretary to justify such proceeding ; and having in some instances led to the apprehension and conviction of offenders, and to the recovery of property. Secondly, warrants, such as are now under our notice, have been issued by the Secretary of State at periods when the circumstances of the country have seemed to threaten public tranquillity, and with a view to promoting the interests of the community (2), 617 Norte To Entick vw. CaRRING- TON, ETO Around persons clothed with an official character is cast Protection by our customary law a peculiar protection ; whether the alleged liability arise out of contract or out of tort, o grounds of political expediency, some special protection -is extended to them. is extended to public officers on n grounds of policy. In Gidley v. Lord Palmerston (k), the action—in as- Contract. sumpsit—was brought by plaintiff as executor of a deceased clerk in the War Office, against the defendant, who was then Secretary-at-War, to recover the arrears of a retired allowance, payable to the deceased annually out of monies voted by Parliament, and placed at the disposal of the Secretary, for defraying charges such as mentioned, and it was sought to make the defendant liable, as having im- pliedly promised that he would pay to the deceased or to the plaintiff as his executor the annual sum which had been specifically voted by Parliament for that purpose. On behalf of the plaintiff, it was argued that the money voted (2) Usually by magistrates or by (i) See Report, supra, u. (d). solicitors conducting prosecutions, (k) 3 Brod. & B. 275. Digitized by Microsoft® 618 CONSTITUTIONAL LAW. Norz 70 by Parliament for the deceased had, by virtue of such vote, ENTICK Carving. Decome vested in him, and that it was held by the de- tom, tc. fondant, in order that it might be applied under the terms in which it had been appropriated. The Court held, how- ever, that the action was not maintainable. The duty owing by the defendant to the plaintiff was (observed the Court) alleged to have arisen in an official and public character, not to have resulted from any relation to or employment by the plaintiff, or under any undertaking to be personally responsible to him. “There is therefore,” pro- ceeded the Court, “ no duty from which the law can imply a promise to pay to the testator during his life, or to his executor after his death, nor can money be said to have been had and received to the use of the testator; which money belonged to the Crown, being received as the money of the Crown, and the party receiving it being responsible only to the Crown in his public character.” But besides this somewhat technical reasoning, a broader ground was in this case presented for the judgment of the court. “An action will not lie against a public agent, for anything done by him in his public character or employment, though alleged to be, in the particular instance, a breach of such employment, and constituting a particular and personal liability”; for “such persons are not understood personally to contract.” On principles of public policy an action will not lie against a person acting in a public character and situation, which from its very nature might expose to an infinite multi- plicity of actions—to an action at the instance of any person who might suppose himself aggrieved ; the very liability to such suits would, in all probability, prevent any prudent person from accepting a public situation at the hazard of peril to himself. Public servants, therefore, are not Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 619 understood personally to contract, the presumption being Norn to rather that they contract on behalf of Government and 40.4. the Crown (). mony aC Then as regards the liability of a public servant—of one Tort. clothed with an official character—ex delicto, It is clear that for an act per se wrongful and injurious to another, for an injury in the strict legal sense of that term, he will be liable. And even where the Sovereign, as head of the Executive, or the Government may be irresponsible through lack of remedy appropriate, it will by no means follow that Rogers v. Dutt (m) may be con- sulted upon this subject.—There the owner of a steam tug sued the defendant, who was an officer in the public service of the East India Company, styled Superintendent of Marine, to recover for damage caused by an order issued by defendant in his official capacity forbidding the officers of the Bengal Pilot Service to allow the plaintiff’s tug to take any ship in tow, of which they should have charge. The action, it was urged, would lie upon this ground, that the plaintiff had vested in him a right to employ his vessel in towing—a right of exercising his lawful trade or calling without undue hindrance or obstruction from others (7), and that this right, vested in plaintiff, had been invaded by the defendant. The Court held, however, that there was no injuria, nothing which could give a right of action, the agent likewise is so. (1): See Unwin v. Wolseley, 1 T. R. 674; Macbeathv. Haldimand, Id.172. (m) 13 Moo. P. C. C. 209, cited, Judgm. 16 C. B. N. S. 360-1. (n) The Case of Monopolies, 10 St. Tr, 312; 8. C. 11 Rep. 84, and The Tailors’ Case, 11 Rep. 53, were cited in support of the argument, supra ; in the latter of which it was resolved, that at the common Jaw no man can be prohibited from working at any legal trade, for the law abhors idle- ness; and again, it was resolved that without an Act of Parliament none ean be in any manner restrained from working at a lawful trade. It was, however, in Rogers v. Dutt, vainly attempted to bring the case, sub judice, Digitized by Microsoft® 620 CONSTITUTIONAL LAW. Nore ro fully admitting, nevertheless, that if there had been ENTI ce evidence of injury, the defendant could not have shielded CarRIna- nw ¥t. himself from responsibility behind the Government, whose servant he was. Let us assume, observed the Court, that the particular act complained of is to be viewed as the act of Government, and that in the part which defendant took he acted merely as the officer of the Government, intending to discharge his duty as a public servant with perfect good faith, and without malice, particular or general, against the plaintiff. Even on this assumption, if the act of the defendant was in itself wrongful as against the plaintiff, and produced damage to him, he (the plaintiff) must have the same remedy by action against the doer whether the act was his own, spontaneous and unautho- rised, or whether it was done by order of the superior power. The civil irresponsibility of the supreme power for tortious acts could not be theoretically maintained with any show of justice, if its agents were not personally re- sponsible for them; in such cases the Government is morally bound to indemnify its agent, and it is hard on such agent where this obligation is not satisfied ; but the right to compensation in the party injured is paramount to this consideration (0) ; that is to say, special circumstances may render even a public servant personally responsible for acts bond fide done by him on behalf of the public, which, in contemplation of law, injuriously affect another. Such is the rule, cautiously stated by one of the highest tribunals, which is to guide us in determining the liability ex delicto of the Executive towards the subject. The head of the Executive we know (p) cannot in virtue of within the scope of the principle thus See Bartlett v. Baker, 34L. J. Ex. 8. affirmed in the time of James I. (p) Ante, p. 244; et vide Note to (0) Judgm. 18 Mvo. P. C. C. 236. Sutton v. Juhnstone, post. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. . the ordinary maxim respondeat superior be made answer- able for the remissness or negligence of its servants; and without special appeal to the authorities, it might safely be conceded that the command of the Sovereign conveyed to his minister to do an act within the functions of such minister, and within the constitutional powers. of the Crown, would bar any remedy by action against the minister, at suit of one feeling himself aggrieved and damaged by the act(q). If this were not so, how could the executive machinery work at all ?—how could public functions be freely, fully, and faithfully discharged ? Instances of immunity induced by obedience to the orders of Government and the Crown will, in succeeding Notes, abundantly present themselves; the doctrine as above enunciated in Rogers v. Dutt may for our immediate purpose be sufficient. Lastly, as on the one hand our law will condignly punish 621 Norte To ENTICK %. CaRRING- TON, ETC. Criminal Habili iability persons who presume to libel the servants of the State (1), of public so will it require from those on whom public duties are de- volved a strict account. Great offenders, on impeachment by the House of Commons (s), minor criminals, in the ordinary course of justice, will for corrupt practices, fraud, or peculation, be severely visited. In Rex v. Bembridge (t) an information had been filed by the Attorney General against the defendant, for mal- versation as accountant in the office of the Paymaster- General of the Forces and as one of his deputies. The office held by the defendant was one of public trust and (q) See per Cockburn, 0.J., Dickson 81 Jd. 1169. vy. Viscount Combermere, 3° Fost. & (s) See Trial of Viscount Melville, Fin, 585, cited post. 29 St. Tr. 549. (r) See, for instance, R. v. Cob- (i) 22 St. Tr. 1; BR. v. Jones, 31 Id. bett, 29 St. Tr. 1; R. v. Fitzpatrick, 251; R. v. Duncombe, 13 Id. 1062. Digitized by Microsoft® servant, 622 CONSTITUTIONAL LAW. Nor: 70 confidence ; he was employed in the passing and checking Canvine. of accounts, involving large sums belonging to the public, tox, Frc. and he was proved to have been guilty of corruptly and. fraudulently concealing specific amounts, due to the public from,—and which were a charge upon—the Paymaster- General. The gist of the offence alleged against the defendant, therefore, was the corrupt and fraudulent breach of a public duty, and the Court were here called upon to apply established principles to a state of facts which, as it would seem, had never before in specie occurred ; for Lord Mansfield, C. J., on motion made for a new trial of the case, or in arrest of judgment, thus expressed himself. Though the principle upon which this prosecution is instituted may be as old as the con- stitution, yet the specific case is new, and no instance precisely and exactly the same is found upon the records of Westminster Hall; therefore it is important that the facts of this case, the evidence by which they are supported, the guilt which arises out of them, and the law to be consequently applied, should be known with accuracy and precision. Lord Mansfield accordingly proceeded to lay down two principles for our guidance under circum- stances such as were sub judice. Ist. If a man accepts an office of trust and confidence concerning the public, especially when attended with profit, he is answerable to the Crown for his execution of that office, and, if so, he can only be answerable in a criminal prosecution, for the Crown cannot otherwise punish mis- behaviour. The distinction between the two modes of procedure, by information or indictment and by action, is in this part of his judgment clearly illustrated by Lord Mansfield, who cites a precedent of an information against the custos brevium, a clerk of the Court of Common Pleas,. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. whose office was to receive and file writs returnable in that Court, for so negligently keeping the records that one of them was lost; and, remarks his lordship, had this officer been the steward of a manor, who had lost one of his lord’s rolls, an action would have lain against him ; but, the duty of this officer concerning the public, the negligence or default, was matter for an information. Qndly. Another principle is this: where there is a breach of trust, a fraud, or imposition in a matter con- cerning the public which, as between subject and subject, would only be actionable; yet, as it concerns-the Crown and the public, it is indictable ; and in accordance with this proposition, it has been held (uw) that a man who collects anything pro bono publico, if he does not apply it accord- ingly, may be indicted ; and again, that “if a man-be made an officer (4.¢. official) by Act of Parliament, and misbehave himself in his office, he is indictable for it at Common Law, and any public officer is indictable for misbehaviour in his office” (v). So in the case of Bembridge, the defendant was convicted of, and punished for, a misdemeanor (w). I HILL v. BIGGE, 3 Moo. P.C. C. 465. (5 Vict. a.p. 1841.) LIABILITY OF THE GOVERNOR OF A DEPENDENCY. An action of debt 1s maintainable in the Court of First Instance in the island of Trinidad against the Governor of the island. This case came on appeal from the Court of First (u) Rolle R. fo. 2. from those disclosed in the Principal (v) 6 Mod. 96. Cases above annotated, will be con- (w) The liability of a Secretary of sidered in the Note to Sutton v. John- State under circumstances different stone, post. Digitized by Microsoft® 623 Note To ENTICK vw CaRRING- TON, ETO. 624 Hint uv. Brace. CONSTITUTIONAL LAW. Instance of Civil Jurisdiction of the island of Trinidad, before the Judicial Committee of the Privy Council, the facts being as under :— The appellant, the Right Hon. Sir George Fitzgerald Hill, on the 10th of November, 1825, became bound by his writing obligatory to Philip Rundell, John Bridge, Edmond Waller Rundell, and Thomas Bigge of the City of London, jewellers, and co-partners, in the sum of 8251. 13s. Irish money. ? The appellant, some time after giving the said bond, became Lieutenant-Governor of the island of Trinidad and its dependencies. On the 24th of June 1837, the respondents, Thomas Bigge and Edmond Waller Rundell, the surviving partners of Rundell, Bridge, and Co. brought their action in the Court of First Instance of Civil Jurisdic-. tion of the island of Trinidad, for the recovery of the above debt. On the 13th of July, 1837, the appellant came into Court under protest, and pleaded that the said Court ought not to hear or take further cognizance of the action, because, at the time of the commencement of the said action, he was, and still continued, Lieutenant- Governor of the Island of Trinidad, and its dependencies, and that he was therefore not liable to be sued in the said Court. The respondents demurred to the plea, and prayed judgment. On the 17th of November, 1837, the cause was tried, and the Court, after hearing counsel in support of and against the exception pleaded by the appellant, on the 20th of the same month, ordered judgment to be entered up in favour of the respondents against the appellant, for the amount of the debt with interest, and all costs. From this judgment the present appeal was brought. Mr. Burge, Q.C., and Dr. Addams, for the appellant. The appellant being Lieutenant-Governor of the Colony, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. is exempted from being called on for liabilities in the colony over which he is placed. By the terms of his com- mission, he is vested with the legislative as well as the executive power (#) ; his exemption cannot, therefore, be merely personal, as from arrest, but is much higher ; he is not within the jurisdiction of the courts; they are incom- petent to entertain a suit, or to pronounce judgment therein against him. This privilege is not one merely of municipal law, but is founded on a higher title, viz., the law of nations. Thus Puffendorf (y) says, if the subject be aggrieved by a Sovereign, he cannot maintain an action, or oblige him to redress: he may persuade him if he can. The same position is laid down by Locke (¢), who observes, it is better a private mischief should ensue to an individual, than that the peace and security of government should be violated by an attack upon the magistrate exercising the power of state; and by the law of this country, if redress is sought for an injury committed by the Crown, it must be, if there is any redress, by petition of right (a). The stat. 11 & 12 Will. 3, c. 12, made to punish gover- nors of plantations, for crimes committed by them in such plantations, recites that a due punishment is not provided for such offences, and that governors, &., have taken advantage thereof, “not deeming themselves punishable for the same here, nor accountable for such their crimes and offences to any person within their respective governments and commands.” Now if there was no jurisdiction against a governor in criminal matters, before the statute, d fortiori, none could have existed in civil cases, and the statute is confined to criminal offences only. The authority of the Governor of Trinidad is derived from a proclamation of the 19th of June, 1813 (b). By (x) Stokes, Brit. Colonies, pp. 150, § 205. 154, 187, (a) 8 Bla. Com. pp. 254-5. (y) Lib 7, ¢. 6, § 2 Lib. 8, ¢.10, § 6. (6) West Ind. Com. Trinidad, App. (2) Essay on Government, Part I. op. 176; 1 Howard, Col. L. 531. ss Digitized by Microsoft® 625 Ain. Vv. Bioos. 626 Hitt ww. BIace. CONSTITUTIONAL LAW. that, all the powers of the executive government within the island are vested solely in the governor for the time being ; and all such judicial powers as, previous to the surrender of the island, were exercised by the Spanish governors, are to be exercised by the governor then appointed. This includes the authority and jurisdiction of the Court of Audiencia. By the constitution of the colony under the Spanish Government, the Court of Audiencia had original, civil, and criminal jurisdiction over all the inhabitants of the island (c), so that the governor is, by the proclamation of June, 1813, invested with like power ; can arrest, grant, or repeal the writ of habeas corpus, try actions, and do all such acts as belong to the supreme authority, acting judi- cially as well as executively. Now, is this consistent with his being liable to be sued in an action of debt? The doc- trine of the inviolability of a governor is derived from the Civil Law; it is expressly provided for—In jus vocari. non oportet, neque consulem, neque prefectwum, neque pretorem, neque proconsulem, neque coeteros magistratus, qui imperium habent, qui et coercere aliquem possunt, et jubere im carcerem duci; (d), and has been adopted by the Spanish law (e), which is the authority in Trinidad. In Fabrigas v. Mostyn (f), Lord Mansfield, C. J., assign- ing the grounds of his judgment, says:—“Now in this case no other jurisdiction is shewn even by way of argu- ment: and it is most certain that if the king’s court cannot hold plea in such a case, there is no other court upon earth that can do it, for it is truly said that the governor is in the nature of a viceroy, and of necessity part of the privileges of the king are communicated to him during the time of his government. No criminal prosecution lies against him, and no civil action will lie against him: because, what would the consequence be? Why, if a civil action lies against him, and a judgment is (c) West Ind. Com. Trinidad, p. (e) 1 White, New Recopilacion, 372. 18, (f) 1 Cowp. 161; S. C. 20 St. Tr. (d) Dig. lib. 2, tit. 4, § 2. 81, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. obtained for damages, he might be taken up and put in prison on a capias; and therefore locally, during the time of his government, the Courts in the island cannot hold plea against him.” That was an action brought in England against a Governor of Minorca for trespass and false imprisonment, and the very circumstance of its being held to lie in the Courts here, clearly shows that it could not be brought in the Courts there—the argument of the Lord Chief Justice is conclusive. In Tandy v. Earl of Westmoreland (g), an action was brought against the defendant for an act done by him as Lord-Lieutenant of Treland, and the subpeena after solemn argument was quashed. The action was brought in Ireland, and Lord Fitzgibbon, C. B., was clearly of opinion that no such action lay, and gave judgment accordingly. The point has been expressly decided in Canada in Harvey v. Lord Aylmer (h): there an action of debt was brought against the defendant by a servant; the claim being ‘for wages, and damages for the non-payment thereof. The defen- dant pleaded that he was governor of the province of Lower-Canada, and averred that so long as he continued to execute the said office and trust, no suit nor action could be had or maintained against him in any of his Majesty’s courts within the province, for any matter or thing whatsoever; and the Court allowed the exception, and dismissed the action, Sewell, C. J., observing that there was no room to doubt the validity of the exception which had been filed. The Court were of opinion that the case of Fabrigas v. Mostyn was alone sufficient to determine the question, but they cited all the authorities, and stated two cases of a similar nature, which had already been decided in the Upper Province of the country. The incon- venience of the rule forms no argument, against it: the subject cannot be said to be without remedy, for he may petition for the governor’s removal, and the Crown might (9) 27 St. Tr, 1246. () 1 Stuart, Cases in K. B, in Lower Canada, 542. ss 2 Digitized by Microsoft® 627 Hin Vv. Biacu. 628 HILi we BiacE. CONSTITUTIONAL LAW. put him on terms to do justice if it thought fit—the inconvenience is only similar to the case here of the will of the Sovereign ; there is no law prohibiting the king from making a testamentary disposition of his property, but there is no Court capable of administering such pro-- perty, or of granting probate of such a will; that is a practical hardship both upon the Sovereign and the parties who would be beneficially entitled (7). Mr. Erle, Q.C., and Mr. Merivale, for the respondents, The proposition contended for by the appellant cannot be supported on principles either of law or justice. It is neither consistent with the law of England nor the law of Spain, which is in some measure the rule by which this case must be governed. The protection sought, would give impunity to every governor of a colony for any act com- mitted by him in the colony over which he is set; and release him from every contract or civil obligation. This exemption from the responsibilities of an ordinary citizen is founded on a supposed identity of the office of Governor and that of Sovereign. But the privilege claimed would be even then too high, for the Sovereign has no such extra- vagant prerogative, and there is no real analogy between the two offices. The authority of a governor is derived from the Crown ; it is delegated, and not inherent, and is defined by the commission and instructions. By the usual form of the commission (%), the governor is captain-general of the forces by sea and land within his province ; he is one of the constituent parts of the General Assembly of his pro- vince ; he has the custody of the great seal, with the same power as the Lord Chancellor of England ; he is the ordinary within his province, and presides in the Court of Error, of which he and the council are judges, and he is vice-admiral within his province, but does not sit in the Court of Vice-Admiralty, there being a judge of that (i) 1 Addams, 255; Re Goods 15:8. C. 3Sw. & Tr. 199. of George IIL, 32 L. J. P.M. & A. (k) Stokes, British Colonies, 150. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. court. The instructions formerly issued to the governor of Trinidad are to be found in the memorable trial of General Picton (1) for a misdemeanor, in which the ques- tion turned upon the legality of the application of the torture by the law of Spain, and the liability of the governor for applying it. The case was thrice argued upon the special verdict, but no decision was pronounced by the Court. There is however nothing throughout these length- ened proceedings to give colour to the supposition that he could not be proceeded against, because he was viceroy of the colony—no such ground was taken : the sole question was, whether it was a judicial act, and if so, whether the act done was according to the laws of Spain. The powers of captains-general, governors or viceroys in Spain, are de- rived from cedulas (royal provisions) or instructions, as in this country (m), and no such privilege as that contended for here, is to be found in the books containing either the instructions or the laws relating to them. On the contrary, by the Recopilacion de leyes (1) it is provided that those who shall think themselves aggrieved by the acts of the viceroy, or president, may appeal to the Audience, that is, the Royal Tribunal, and neither shall such viceroy prevent such appeals, or be present at them (0). The stat. 11 & 12 Will. 3, ¢ 12, is a declaratory Act. The preamble recites that the governors, &c., “not deem- ing themselves liable”—that is no declaration that they were not liable; but the enacting part clearly shews the object of the Act, which was to enable parties to proceed in the Court of King’s Bench here for offences committed in the colonies, and is analogous to the provisions of the Piracy Acts for offences committed on the high seas. The absence of any provision in that Act against civil injuries is a strong inference that governors were amenable for such before the Act. Lord Bellamont’s Case (p), Comyn (1) 30 St. Tr. 225, 500. (n) Lib. IL, tit. 15, . 35. (m) 1 White, New Recopilacion, 367 (0) 2 White, New Recopilacion, 31. —372. (p) 2Salk. 625. Digitized by Microsoft® 629 AIL %. Biaae. 630 HIti Om Bicas. ' CONSTITUTIONAL LAW. v. Sabine (q) and Fabrigas v. Mostyn, all shew such liability to attach to the office of governor. Harvey v. Lord Aylmer is no authority here; it is manifest that Sewell, C.J., proceeded upon a misapprehension of the case of Fabrigas v. Mostyn; he states that to be decisive of the non-liability of a governor; but the whole tenor of Lord Mansfield’s reasoning and judgment is against such a conclusion. In Tandy v. Earl of Westmoreland, the act complained of was a political act, and for such, a governor or viceroy would not be liable any more than a judge for a judicial act (r); but that is not this case: the question here is whether the appellant can screen himself from an action upon his bond on the plea that he is governor of the colony in which the action is brought ? He may be free from arrest: that is the common case of members of parliament, ambassadors, servants, soldiers, and others engaged in the service of the Sovereign or that of the State (s): but though such persons have freedom from arrest, can it be argued that their property is not lable ? that judgment may not be had or execution issued against their goods and chattels, or even their lands? What reason is there against a similar rule here? There is, however, no pretence for presuming such exemption, for by the law of Trinidad there is no power of arrest before judgment; and, after judgment, execution operates against both personal and real property before the person can be attached (4). With respect to the practice of the civil law, the passages quoted from the Digest must be taken with great limitation. The officers, under the Roman law, nearest answering to our governors of colonies, were the presidents or presides, who were sent into the provinces directly under the control of the Emperor (w), and though they could not be sued in any court of law, if they were vested with jurisdiction, and had a coercive and punitive (q) Cited 1 Cowp. 169, 175. 239, (r) Post. (t) Trin. Com. Rep. 12, 16, 69, 91. (s) T, Raym, 152; 3 Bla. Com. (uw) Dig. lib. 1, tit. 18, $1 & 6. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. power during the time of their office, yet at its expiration 631 — they might (a), and were obliged to remain fifty days in Broce. the cities or provinces over which they presided, after the expiration of their office, to enable the provincials to prefer any claim or complaints against them. Grotius (y) confines the question of the non-liability of kings, to such as are entrusted with legislative power, and distinguishes between the acts done by a person having such authority “in his legislative or in his private capacity : in the latter there is no exemption (2). Lord Brougham, after stating the facts, delivered the suagment. opinion of the Court as follows — The question raised in this case is, whether an action will lie against the governor of a colony, in the courts of that colony, while he is such governor, for a cause of action wholly unconnected with his official capacity, and accruing out of the colony before his government com- menced ?—and this question appears to be one, whatever may be its importance, of no great difficulty. ° It may safely be affirmed that they who maintain the exemption of any person from the law, by which all the king’s subjects are bound, or, what is the same thing, from the jurisdiction of the courts which administer that law to all besides, are bound to show some reason or authority, leaving no doubt upon the point. The reference to analogies, or the supposition of incon- venient consequences, must be much more pregnant than any that can be urged in this case, to support or even to countenance such claim. If it be said that the governor of a colony is quasi sovereign, the answer is, that he does not even represent the Sovereign generally, having only the functions delegated to him by the terms of his com- mission, and being only the officer to execute the specific powers with which that commission clothes him :—“ The governor,” said De Grey, C.J., in Fabrigas v. Mostyn, “is (a) Dig. lib. 5, tit. 1, § 48. (y) Grot. lib. 2, «. 14, § 1. (2) 2 Rutherf, Inst. 262-4. Digitized by Microsoft® 632 HILt wv. Bicce CONSTITUTIONAL LAW. the king’s servant : his commission is from him, and he is to execute the powers he is invested with under that com- mission ; which is to execute the laws of Minorca, under such taetractlons as the king shall make in council.” It is proper to observe, that this was the case of the governor of a province once belonging to the crown of Spain, as Trinidad formerly did; and that one of the arguments of the defendant put his claim upon the highest ground, namely, that he was by the Spanish law and constitution’ absolute within a district at least of his government, having “supreme power vested in him, and being only accountable to God.” Again this Court, in Cameron v. Kyte (a), when a claim to represent the Sovereign and. hold the royal power by delegation was set up, refused to allow it, and considered him as only an officer with a limited authority. Their lordships, in deciding that case referred to a dictum of Sir William Scott (6), that a naval commander may be reasonably supposed to carry with him such a portion of the sovereign authority as shall be necessary to provide for the exigencies of the service. But they said that this observation is plainly applicable only to the case of a commander carrying on war in a remote quarter, and the authority necessarily incident to that situation, and can have no application to the case of a colonial governor. Nor must we forget, in reference to the position of the supreme power in the State, that by our law and constitution it is not in the Sovereign, but in the parliament, the Sovereign himself being liable to be sued, though in a particular manner; and if his liability be such, even as much restricted as some have occasionally maintained, it would still be greater than the appellant's argument supposes the liability of a governor to be. The consequences imagined to follow from holding the governors liable to action like their fellow subjects are incorrectly stated, and, if true, would not decide the ques- (a) 3 Knapp, P. C. C. 382. (0 The Rolla, 6 Robinson, Adm. R. 364. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. tion. For it by no means follows that because an action may be maintained and judgment recovered, therefore the same process must issue against the governor as against another person, pending his government. His being liable to be taken in execution is not the necessary consequence of his being liable to have a judgment against him. There were anciently more instances than happily now, of persons privileged from legal process ; but there still are some such exemptions, as privilege of peerage and of parliament, and of persons in attendance upon the Sovereign, and-upon courts of justice. None of these privileges protect from suits, all more or less protect from personal arrest in execution, or judgment recovered by suit. Indeed the old, and we may now say obsolete writ of protection, which the king granted to his servants and debtors, purported to be a protection from all pleas and suits; yet the courts held that no one should thereby be delayed in his action, but only that execution should be stayed after judgment (c). It may be observed in passing, that those protections were a provision made by the old law for the security of persons in the foreign service of the Crown: as commanders of armies, am- bassadors, and doubtless governors of the continental dominions also (d). It therefore is not at all necessary that in holding a governor liable to be sued, we should hold his person liable to arrest while on service—that is, while resident in his government. It is not even neces- sary that we should meet the suggestion of his goods in all circumstances being liable to be taken in execution— though that is subject to a different consideration. Next: Suppose all these alleged consequences had been accurately stated, they could not necessarily decide the ques- tion : many cases might be put, of as great inconvenience, and even of as great violence done to public feeling, and as great mischief to the public service, by the execution of (¢) Cro. Jac. 477; 25 Edw 3, st. 5, v. 19. - (a) Co. Litt, 130, a. & Digitized by Microsoft® 633 HILL vw Biacr. 634 HItu Bice. CONSTITUTIONAL LAW. legal process, as any in the cases that have been put. Yet in none of these circumstances can it for a moment be pretended that the law is not to take its course. The imconvenience which would :result from a general officer or an ambassador being taken in execution, on the eve of his departure on service abroad, or the mischiefs that would ensue to the administration of justice from a judge being taken in execution almost at any time, are quite undeniable; but equally certain it is, that these incon- veniences offer no argument whatever against the unques- tionable liability of all those functionaries to undergo, like the rest of the king’s subjects, the process of the law. Indeed, it is manifest that if these alleged consequences prove anything, they prove too much; they go to set up an exemption from suit im the courts of this country during the continuance of the governor’s functions. For nothing that happens to him within the limits of his own government could be much more injurious to his authority than his being outlawed in the Courts of Westminster, or having judgments against him there; supposing he prevented the outlawry by appearing to the action. Then, is there any authority of decided cases for the position in question? It is unnecessary to say anything of Tandy v. Earl of Westmoreland, because the question there arose upon an act of the Lord-Lieutenant in his capacity of governor, and because there would be no safety in relying upon the report of the case; it ascribes dicta to the Court, which there is every reason to suppose must be inaccurately reported, dicta in some of which it is impossible to concur. The case of Fabrigas v. Mostyn, when it came by error into the King’s Bench, furnishes the only thing like authority for the contention of those who seek to impeach the judgment under review, and it is not pretended that the decision is upon the point now in question, An action of trespass and false imprisonment having been ° Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. brought against the Governor of Minorca, he pleaded first the general issue, and then a justification: that he had, as governor, and in the discharge of his duty, imprisoned and removed plaintiff, to prevent and put down a riot and mutiny in which he was engaged. To this special plea there was a replication de injurid (e), and both issues were found for plaintiff, whereupon the defendant having tendered a bill of exceptions on the ground that the learned judge who tried the cause ought to have directed the jury to find for the defendant, because he had acted as Governor of Minorca, and was not liable to be sued in the courts of England for acts done in Minorca, a writ of error was brought in B. R., and the Court gave judgment for the defendant in error, (plaintiff below,) holding it quite clear that an action will lie, and that the learned judge did right in not directing the jury as required by the defendant. There having been no evidence to support the plea of justification, there could be no objection taken to the finding of the jury, and a motion for a new trial in the Common Pleas had been refused, whether made against the verdict or against the judge’s direction does not distinctly appear. Nor indeed is it quite clear from the report, in which way the governor's counsel really meant to shape their case ; and this, though three elaborate arguments had been held, is observed upon by the Court in passing the judgment. This much, however, is quite certain—that the decision is not against the liability of Governor Mostyn, to be sued in the island during his government, even for acts of state done by him, much less for a private debt—contracted in his individual capacity, before his government commenced. It is only a decision that he was liable to be sued in Eng- land for personal wrongs done by him while Governor of Minorca. Nor does the decision thus given rest upon-any doc- (e) Ante, p. 529, n. (d). Digitized by Microsoft® HILL V BiccE. 636 HILu Vv. BiccE. CONSTITUTIONAL LAW. trine denying his liability to be sued in the island. There is no doubt a dictum of Lord Mansfield in giving the judgment,—that “the governor is in the nature of a viceroy, and that therefore locally during his government no civil or criminal action will lie against him.” And the reason, and the only reason, given for this position is, because upon process he would be subject to imprison- ment. With the most profound respect for the authority of that illustrious judge it must be observed, that, as has been shewn, the governor being liable to process during his government, would not of any necessity follow from his being liable to action, and that the same argument might be used to shew that an action lies not against persons enjoying undoubted freedom from arrest by reason of privilege. But the decision in the case does not rest on this dictum: on the contrary, Lord Mansfield goes on to say that another reason of a different kind “would alone be decisive,” and indeed the dictwm itself is intro- duced as if the question had arisen upon a plea in abate- ment to the jurisdiction—whereas it arose not on the pleadings at all, as his lordship more than once remarked. Nothing can be more clear than, the action being of a transitory nature, its being maintainable in Minorca would not have prevented it from lying in England also. It isa possibility that the expressions used may have been some- what altered in the report. It certainly represents Lord Mansfield (f) to have treated the manner in which the Privy Council deals with colonial law, as a similar case to that of courts having to examine questions of foreign law, which is proved as matter of fact. But, supposing the report is quite accurate in all respects, the decision in no way supports the contention of the Appellant. A case was decided in parliament at the end of Charles IL.’s reign—Dutton v. Howell (g)—which Governor Mostyn’s counsel relied much upon, and in which the (f) Cowp. 174. (y) Show. P. C, 24. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. judgment of all the judges (for it had been brought from the Exchequer Chamber and King’s Bench) was reversed, and a governor held not liable to be sued in England, for imprisoning a person guilty of official delinquency under his government. It is quite clear that this case afforded no precedent for Governor Mostyn, much less for the defence to the present action. It went on the ground of the governor and his council having acted judicially ; and though the counsel for the plaintiff in error before the . House of Lords urged, among other things, that governors of Scotland and Ireland could not be sued, so did they also contend, that it would be equally dangerous to sue Privy Councillors, a position probably as much disre- garded by the ‘House of Lords, who reversed the judg- ment, as it certainly had been, with the other arguments of the same caste, by the judges of the three courts who had pronounced it. It is unnecessary to say anything respecting the statu- tory provision of 11 & 12 Will. 8, c 12, which in one view makes rather more against the appellant than it does for him, nor respecting the alleged judicial powers of the Governor of Trinidad, as he appears not to stand in the situation which has been supposed. It cannot be alleged that the process runs in his name; and even if he were (which he is not) the Court of Error, that would not decide that he cannot be sued. The judges of courts in this country, which have the most unquestionable jurisdiction in certain actions, are themselves liable to be sued in such courts ; and cases might easily be figured, in which great difficulty would arise how to try suits brought against them in consequence of their official position: but the possibility of such difficulties, whatever legislative enact- ments it might give rise to upon its nearer approach, can never surely be urged as a reason for denying what all men know to be the law, namely, that those parties are liable to be sued. The judgment appealed from must, therefore, be Digitized by Microsoft® 637 HILt vw BIaar. 638 CONSTITUTIONAL LAW. Hux affirmed, and their lordships see no reason for varying Broce. from the general rule. It must, therefore, be affirmed ~~ -with costs. Noreto It is now clearly established, that the governor of a HILL . Biogn, dependency is liable both civilly and criminally for his — conduct in such government. oe. As regards his liability civilly, an action was, in an old governor’ cage (h), held to lie against the President of Calcutta for procuring a foreign prince to imprison the plaintiff; and in Macbeath v. Haldimand (i), hereafter mentioned (h), it was not contended that the position of defendant as Governor of Quebec afforded him immunity. A most important reported case respecting the liability of the governor of a dependency is Fabrigas v. Mostyn (1) (a.D. 1773). The plaintiff in this case was a native of, and resident in, Minorca, and the defendant was governor of that island. During the period of his government the plaintiff was seized by defendant’s orders, kept in close confinement for six days, and afterwards banished (being put on board ship and taken to Carthagena in Spain) for twelve months. The defendant justified his conduct by pleading that the plaintiff was unlawfully endeavouring to raise up a mutiny and sedition in the island, which compelled him (the defendant) to imprison and banish plaintiff The jury found a verdict for the plaintiff, and expressly stated that he had not been guilty of mutiny or sedition, and had not acted in any way tending thereto. (h) Rafael v. Verelst, 2 W. Bla. stone, post. 983, 1055. (2) 20 St. Tr. 81; S.C. Cowper, (i) 1T. R. 172. 161. (k) See Note to Sutton v. John- Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE... 639 The case was afterwards taken into Error, where it was gm 7° contended that the Court had no jurisdiction to try the cause, upon grounds which will sufficiently appear from the following abridgment of Lord Mansfield’s judgment : This, observed his lordship, was an action for an assault and false imprisonment by the defendant upon the plaintiff. To the declaration the defendant put in two pleas: Ist, Not Guilty ; and 2ndly, that he was Governor of Minorca, by letters patent from the Crown, and that the plaintiff was raising sedition and mutiny; in consequence of which he did imprison him and send him out of the island, which he alleges he had an authority to do, for that sedition and mutiny that he then was raising. To this plea the plaintiff does not demur, nor does he deny that it would be a justi- fication, in case it was true; but he denies the truth of the fact, and puts in issue whether the fact of the plea was true. The judge left it to the jury upon the facts of the case; and they found for the plaintiff. The defendant then tendered a bill of exceptions, upon which bill of exceptions it comes before us, And the great difficulty I have had upon both these arguments is, to be able clearly to comprehend what question it is that is meant seriously to be brought before the court for their judgment. If I understand the counsel for governor Mostyn right, what they say is this : the plea of Not Guilty is totally immaterial, and the plea of justification is totally immaterial, for it appears on the plaintiff's own showing that this matter arose in Minorca ; and the replication to the plea admits it: and it likewise appears that the defendant was Governor of Minorca ; and as the imprisonment arose in Minorca by the authority of the defendant, the judge ought to have stopped all evidence whatsoever, and have directed the jury imme- Digitized by Microsoft® Hin. v Bicer. 640 CONSTITUTIONAL LAW. Nore 70 diately to have found for the defendant. Why? There 4 * are three reasons given. One of them insisted upon in — the first argument (but abandoned to-day) is, that the plaintiff is a Minorquin, born in the island of Minorca. To dispose of that objection at once, I shall only say that it is wisely abandoned to-day. A Minorquin; what then? Has not a subject of the king, born at Minorca, as good a right to apply to the king’s court of justice, as a person born within the sound of Bow-bell, in Cheapside? If there is no other objection to him, would that make any? To be sure not. But it is abandoned, so I shall lay it out of the case. The two grounds which are enforced to-day are, if I take them right, Ist, that the defendant was Governor of Minorca, and therefore for no injury whatsoever that is done by him, right or wrong, can any evidence be heard, and that no action can lie against him; 2ndly, that the injury was done out of the realm. I think these are the whole amount of the questions that have been laid before the Court. Now as to the first, there is nothing so clear as that in an action of this kind, which is for an assault and false imprison- ment, the defendant, if he has any justification, must plead it; and there is nothing more clear than that, if the Court has not a general jurisdiction of the matter, he must plead to that jurisdiction, and he cannot take advantage of it upon the general issue. The point that I shall begin with is the sacredness of the person of the governor. Why, if that was true, and if the law was so, he must plead it. This is an action of false imprisonment : primd facie, the Court has jurisdic- tion. If he was guilty of the fact, he must show a special matter that he did this by a proper authority. What is his proper authority? The king’s commission to make Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 641 him governor. Why, then he certainly must plead it: but, Neri however, I will not rest the answer upon that. It has been singled out, that in a colony that is beyond the seas, but part of the dominions of the Crown of England, though actions would lie for injuries committed by other persons, yet it shall not lie against the governor. Now I say, for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor. In every plea to the jurisdiction, you must state a jurisdiction ; for if there is no other method of trial, that alone will give the king’s courts jurisdiction. Now in this case no other juris- diction is shewn, even by way of argument ; and it is most certain, that if the king’s courts cannot hold plea in such a case, there is no other court upon earth than can do it: for it is truly said, that a governor is in the nature of a vice- roy (m), and, of necessity, part of the privileges of the king are communicated to him during the time of his govern- ment. No criminal prosecution lies against him, and no civil action will lie against him; because, what would the consequence be? Why, if a civil action les against him, and a judgment is obtained for damages, he might be taken up and put in prison on a capias; and therefore, locally, during the time of his government, the courts in the island cannot hold plea against him. If he is out of the govern- ment, he leaves it ; he comes and lives in England, and he has no effects there to be attached: then there is no remedy whatsoever, if it is not in the king’s courts. But there is another very strong reason, which would alone be decisive. This is a charge against him, which, though a civil injury, has a mixture of criminality in it: it is an assault ; which is criminal by the laws of England, and is (m) This proposition is untenable; ante, p. 631; post, p. 645. TT Digitized by Microsoft® vw Biacz. 642 CONSTITUTIONAL LAW. Nors 0 an abuse of that authority given him by the king’s letters Dew, patent under the great seal. If by the authority of that —— capacity in which he stood he has done right, he is to lay that before the Court by a proper plea, and the Court will exercise their judgment whether that is not a sufficient justification. In this case, if the justification had been proved, perhaps the Court would have been of an opinion that it was a sufficient answer, and he might have moved in arrest of judgment afterwards, and taken the opinion of the Court; but the Court must be of opinion that it is a sufficient answer, and that the raising a mutiny in a garri- son, though in time of peace, was a reason for that sum- mary proceeding, in taking him up and sending him out of the island. I could conceive cases in time of war, in which a governor would be justified, though he acted very arbitrarily, in which he could not be justified in time of peace (7). There may be some cases arising abroad, which may not be fit to be tried here; but that cannot be the case of a governor injuring a man, contrary to the duty of his office, and in violation of the trust reposed in him by the king’s commission. And therefore, in every light in which I see this matter, it holds emphatically in the case of a governor, if it did not hold in respect of any other man within the colony, province, or garrison. But to make questions upon matters of settled law, where there have been a number of actions determined, which it never entered into a man’s head to dispute—to lay down in an English court of jus- tice such monstrous propositions as that a governor, acting by virtue of letters patent under the great seal, can do what he pleases ; that he is accountable only to God and (n) With regard to the argument of necessity, here put forward, see Note to Sution v. Johnstone, post, ad jinem, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 643 his own conscience—and to maintain here that every Riis Gs governor in every place can act absolutely; that he may spoil, plunder, affect their bodies and their liberty, and is accountable to nobody—is a doctrine not to be maintained; for if he is not accountable in this court, he is accountable nowhere. The king in council has no jurisdiction of this matter ; they cannot do it in any shape ; they cannot give damages, they cannot give reparation, they cannot punish, they cannot hold plea in any way. Wherever complaints have been before the king in council, it has been with a view to remove the governor; it has been with a view to take the commission from him which he held at the plea- sure of the Crown. But suppose he holds nothing of the Crown, suppose his government is at an end, and that he is in England, they have no jurisdiction to make reparation to the party injured ; they have no jurisdiction to punish in any shape the man that has committed the injury : how can the argument be supported, that, in an empire so extended as this, every governor in every colony and every province belonging to the Crown of Great Britain, shall be absolutely despotic, and can no more be called in question than the king of France? and this after there have been multitudes of actions in all our memories against governors, and nobody has been ingenious enough to whisper them, that they were not amenable. In a case in Salkeld (0), there was a motion for a trial at bar in an action of false imprisonment against the Governor of New York; and it was desired to be a trial at bar, because the Attorney-General was to defend it on the part of the king, who had taken up the defence of the governor. That case plainly shows that such an action (0) Lord Beliamont’s Case, 2 Salk. 625, TT2 Digitized by Microsoft® vw Biaae. 644 Note To HILi v. BIGGE. CONSTITUTIONAL LAW. existed ; the Attorney-General had no idea of a governor being above the law. Powell, J., says, in the case of Way v. Yally (p), that an action of false imprisonment had been brought here against the governor of Jamaica for an imprisonment there; and the laws of the country were’ given in evidence. The Governor of Jamaica in that case never thought that he was not amenable. He defended himself. He showed, I suppose, by the laws of the country, an act of the assembly which justified that imprisonment ; and the Court received it, to be sure, as they ought to do. Whatever is a justification in the place where the thing is done, ought to be a justification where the case is tried. I remember an action against Governor Sabine, and he was very ably defended. Nobody thought the action did not lie against him. He was Governor of Gibraltar, and he barely confirmed the sentence of a court-martial, which tried one of the train of artillery by martial law. Governor Sabine affirmed the sentence. This plaintiff was a car- penter in the train. It was proved at the trial, that the tradesmen that followed the train were not liable to mar- tial law; the Court were of that opinion; and therefore the defendant was guilty of a trespass in having a share in that sentence which punished him by whipping. The rest of Lord Mansfield’s well-known judgment in Fabrigas v. Mostyn, has reference to the question of venue, and upholds the doctrine, since clearly established, that an action is maintainable here for an assault com- mitted abroad (q). (p) 6 Mod. 194. 5th ed., pp. 682 e¢ seg.; and in (q) The whole question of venue in Scott v. Lord Seymour, 1 H. & C. transitory actions (whether arising 219; et vide The Submarine Tele- from proceedingsinEnglandor abroad) graph Co. v. Dickson, 15 ©. B. N. j8 discussed at length in the Note to §. 759. Mostyn v. Fabrigas, 1 Smitb, L. C. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Though the main point decided in Fabrigas v. Mostyn Nore ro was unquestionably well decided, yet, viewed by the light of subsequent decisions, some of the remarks there attri- buted to Lord Mansfield cannot be accepted as correct. The comparisons of the functions of a governor with those of the Sovereign, attempted to be drawn would seem to be fallacious, not only from the judgment delivered by Lord Brougham in the Principal Case (7) ; but also from Cameron v. Kyte (s), where a question arose as to the. validity of an act of the Governor of Berbice, and it was held that the governor of a colony has not by virtue of his appointment the sovereign. authority delegated to him; that an act done by him, unauthorized either by his com- mission, or expressly or impliedly by his instructions, is not equivalent to such an act done by the Crown itself; and is consequently invalid. Parke, B., delivering the judgment of the Privy Council in Cameron v. Kyte, thus expressed himself :—“If a governor had by virtue of that appointment, the whole sovereignty of the colony delegated to him as a viceroy, and represented the king in the government of that colony, there would be good reason to contend that an act of sovereignty done by him would be valid and obli- gatory upon the subject living within his government, provided the act would be valid if done by. the Sovereign himself, though such act might not be i in conformity with the instructions which the governor had. Teceived for the regulation of his own conduct. | The breach of those instructions might well be contended, on this supposition, to be matter resting between the Sovereign and his deputy rendering the latter liable to censure or punishment, but (r) Ante, p. 681. (s) 3 Knapp, P. C. C. 832, Digitized by Microsoft® 645 Se ‘Bice E. 646 CONSTITUTIONAL LAW. Nom 70 not affecting the validity of the act done, But if the governor be an officer merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the power so given to him, would be finally void, and the courts of the colony over which he presided could not give it any legal effect. We think the office of governor is of the latter description, for no authority or dictum has been cited before us to shew that a governor can be considered as having a delegation of the whole royal power in any colony, as between him and the subject, when it is not expressly given him by his commission. And we are not aware that any com- mission to colonial governors conveys such an extensive Vv. Biaae. authority.” : Also in Elphinstone v. Bedreechund (é) in discussing the liability of commissioners appointed in a conquered country, the Court said “there was nothing in the character of either of the defendants to render them irresponsible. In Fabrigas v. Mostyn and Campbell v. Hall (u), governors were held liable for acts they had done without legal authority. .A commissioner is at most only equal to a governor; perhaps his office is rather inferior; at any rate he cannot pretend to a greater degree of irresponsibility.” Ceieteal As regards the criminal responsibility of the governor agovernor. of a colony or dependency for an act done by him whilst discharging the functions of his office, I would invite attention to the stat. 11 & 12 Will. 3, c. 12, intituled “An Act to punish Governors of Plantations in this Kingdom for Crimes by them committed in the Plantations.” The preamble of that statute is remarkable—it recites that (t) 1 Knapp, P. ©. C. 345, 346, (u) 20 St. Tr. 289. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE 647 a due punishment is not provided for several crimes Norz 10 and offences committed out of this realm of England, whereof divers governors of plantations and colonies have taken advantage, and have committed crimes and offences—not deeming themselves punishable ‘for the same here, nor accountable for such their crimes and offences to any person within their respective govern- ments; and, for remedy thereof, it is enacted that such offences shall be tried in the Court of King’s Bench in England (2). The two most celebrated cases, shewing the criminal liabi- lity of the governor of a dependency, are those of General Picton and Governor Wall General Picton (y) was indicted for having, while Governor of Trinidad, illegally inflicted torture on one Luisa Calderon, to compel her to confess a crime of which she was accused. This fact having been proved in evidence, it was argued for the defence, that after Trinidad had been ceded to the English Crown, ‘the pre-existing Spanish law remained in force, and that what the defendant had done was authorized under such law. After much conflicting evidence respecting the Spanish law, and as to how much of that law had applied to Trinidad before its cession to the English, Lord Ellen- borough, C. J., in summing up left to the jury the ques- tion whether the application of torture formed part of the law of Trinidad at the time of the cession of that island. They found “there was no such law as this existing at the (2) See also stat. 42 Geo. 3,¢. 85, Great Britain, shall commit any in- s. 1, which extends the provisions of — dictable offence in the execution of or the Act of William III. to persons in under colour of his office, he may be public employment abroad, and en- prosecuted for the same in the Court acts that if any person employed in of King’s Bench. the service of the Crown, in any civil (y) 80 St. Tr. 225. or military station or capacity out of Digitized by Microsoft® HILt vw BiccE. 648 Note To Hit vU BIcce. CONSTITUTIONAL LAW. time of the cession.” On which finding a verdict of guilty was recorded. A rule for a new trial was afterwards moved for, on the grounds that the law of Spain had been misrepresented at the trial, and that the defendant had been acting in a judicial capacity at the time when the misdemeanor charged was alleged to have been committed (2). In showing cause against the rule, it was contended that even if torture had been lawful when Trinidad was ceded, it was nevertheless unlawful so soon as the island became British territory (a), by analogy to the principle that a slave becomes free directly he sets foot in this country (6). The rule was made absolute, Lord Ellenborough saying that this was a case of great importance, and that, if possible, it would be desirable to have a special verdict in order that the question might be argued whether the application of torture could be consistent with the law of Great Britain. On the second trial the jury found a special verdict setting out the facts of the case, and expressing their in- ability to decide whether the defendant was guilty or not. Mr. Nolan, arguing for the prosecution, on the special verdict, contended that the Spanish law authorizing torture, could not have continued to exist, as being con- trary to the fundamental principles of the British consti- tution, and citing the statute 11 & 12 Will. 3, c. 12, he argued that this was a strong legislative declaration that every colonial governor was bound to conform himself to (2) As to the liability of a judge (a) See Note to Calvin’s Case, ante, when acting in a judicial capacity, pp. 53, 54. see Kemp v. Neville, and the Note (2) Sommerseit’s Case, ante, p. 65. thereto, post. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 649 the law of this country in the administration of his govern- Nor 70 ‘ment, under the penalty of being here responsible for his misbehaviour (c). In the case of Governor Wall (d), a conviction was had against the accused for murder, caused by the infliction of excessive corporal punishment on the deceased, there being evidence to show that the act of homicide had been mali- cious. And in this case, M‘Donald, C. B., charged the jury precisely as he might have done at an ordinary trial for murder, with this addition—that alluding to the defen- dant’s official character—he remarked that the case . before them was of peculiar importance “for on the one hand * * * when a well-intentioned officer is at a great distance from his native country, having charge of a member of that country, and it shall so happen that circumstances arise which may alarm and disturb the strongest mind, it were not proper that strict- ness and rigour in forms and in matters of that sort should be required, where you find a real, true, and genuine inten- tion of acting for the best for the sake of the public. You see they are in a situation distant from assistance and from advice; in these circumstances, if a man should be go much thrown off the balance of his understanding, as not to conduct himself with the same care and attention that any one in the county of Middlesex would be required to do, and does not exceed greatly the just and proper line of his duty, allowance for such circumstances ought unques- tionably to be given to him. “But on the other hand, it is of consequence, that where a commander is so circumstanced—that is, at a distance (c) In Hil. Term, 1812, the defen- ther order, and after this no other dant’s recognizances were ordered to _ proceedings were taken in the above be respited till the Court should fur- case, (2) 28 St. Tr. 51, Digitized by Microsoft® ILL v BIaGE. 650 Nove To HI e Biecer. Declaration. CONSTITUTIONAL LAW. from his native country, at a distance from inspection, — at a distance from immediate control,—and not many British subjects being there,—if he shall, by reason of that distance, wanton with his authority and his com- mand, it will certainly be the duty of the law to control that, and to keep it within proper bounds. The protection therefore of subjects who are serving their country at that distance, on one hand, is one of the objects you are to have in view to-day ; the protection of a well-intentioned officer,—if such he be—who does not by his conduct disclose a malevolent mind, but may disclose human infir- mity to a certain extent, who, being in trepidation and alarm of mind, overlooks some things he ought otherwise to have regarded,—such a man’s case is on the other hand deserving of great attention.” The cases above cited seem to have settled the law concerning the liability, civil or criminal, of the governor of a colony or dependency, nor does any material point bearing on it appear very recently to have been discussed, SUTTON v. JOHNSTONE, 1 T. R. 493 (e). (24 Geo. 3, a.p. 1784.) LIABILITY OF OFFICER IN THE SERVICE OF THE CROWN. The Commander of a squadron who maliciously and without reasonable or probable cause brings before a Court Martial the Captain of a vessel under his orders, for an alleged breach of duty, is not, for so doing, liable to an action at suit of his subordinate. This was an action on the case in which Evelyn Sutton, Esq., declared against George Johnstone, Esq. For that (e) 8. C. 1 Brown, P. C. 76, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 651 whereas, on the 16th of April, 1781, and long before, and Sorrow afterwards, there were open war and hostilities between Joueroxe. our Sovereign Lord George III., now King of Great Bri- tain, &., and the French King, his most Catholic Majesty, and the States-General of the United Provinces: And whereas, during such war and hostilities, and before the committing of the several grievances hereinafter-men- tioned, (that is to say,) on the said 16th of April, 1781, a squadron of ships and vessels of war, of and belonging to our said Sovereign Lord the King, had been sent out and employed under the command of the said George, as Com- mander-in-Chief of the said squadron, upon a particular service, and expedition against his said Majesty’s enemies; and the said squadron, under the command of the said George, had proceeded in the course of such service and expedition to Port Praya Bay, otherwise Port Praya Road, in the island of Saint Jago, in foreign parts: And also whereas the said Evelyn before and on, &c., was captain and commander of one of his said Majesty’s ships of war, called the Isis, being one of the said squadron, and, as such, under the command of the said George, as Commander-in-Chief of the said squadron, and which said ship, called the Isis, was also in the said squadron in the said service and ex- pedition, of the said Port Praya Bay, &c.: And whereas, before the committing of the said several grievances here- inafter-mentioned, and whilst the said squadron under the command of the said George, as Commander-in-Chief thereof, was in the said Port Praya Bay, &c., to wit, on, &c., the said squadron was attacked in a hostile manner by a squadron of ships and vessels of war of great force, belonging to the French King, under the command of Monsieur Suffrein, as Commander-in-Chief of the said French squadron, in consequence of which an action or engagement then and there took place between his said Majesty’s squadron, under the command of the said George, as Commander-in-Chief of the said squadron, and the said squadron belonging to the French King, under the com- Digitized by Microsoft® 652 Sune CONSTITUTIONAL LAW. mand of the said Monsieur Suffrein ; and in which action Jonustowe, or engagement the said ship called the Isis was greatly damaged : And whereas also the said squadron belonging to the French King, &c., after such action or engagement on, &c., sailed away fro and left his said Majesty’ S squadron, under the command of the said George, in the said bay or road; and the commanders of the said ships and vessels of his said Majesty's squadron were thereupon ordered by the said George, as Commander-in-Chief of the said squadron, to cut or slip their cables, and put to sea after the said squadron belonging to the French King, &c.: And whereas the said squadron under the command of the said George, did afterwards on the same day and year last aforesaid put to sea after the said squadron belonging to the French King; and the said George as such Com- mander-in-Chief as aforesaid then and there, by signal for that purpose, caused the said squadron under his command to be formed in line of battle, and bore down with his said squadron under his command upon the said enemy about sun-set of the same 16th April, 1781, in order to engage the said enemy, but no further engagement between the said squadrons took place; and the said squadron, under the command of the said George, re- turned to Port Praya Bay aforesaid. And although he the said Evelyn, during the whole of the said engagement with the said French squadron, and the said pursuit, and bearing down upon the said French squadron, as afore- said, and during the whole of the said 16th April, 1781, behaved and conducted himself as a gallant, good, loyal, obedient, and faithful captain and commander of the said ship of war called the Isis, and did his duty, as such, to the best of his power, skill, and ability, and the state and condition of the said ship the Isis, and was never guilty of delaying and discouraging the public service on the 16th April, 1781, or at any other time, nor of wilfully or wil- lingly disobeying the verbal orders or public signals of the said George in any respect, nor of wilfully and improperly Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. falling astern, and not keeping up in the line of battle, according to the signal then abroad, after the Isis had joined the squadron, and cleared the wreck of the foretop- mast, when he the said George bore down upon-the enemy about sun-set of the said 16th April, 1781, nor of any other neglect, disobedience, misconduct, or misbehaviour, as captain of the said ship called the Isis; yet the said George, well knowing the premises, but maliciously, injuriously, and wrongfully, contriving, and intending, to hurt the said Evelyn in his good name, fame, character, and reputation, as a captain and commander of a ship of war in his Majesty’s service, and to cause him to be sus- pected of cowardice, treachery, disloyalty, disobedience of orders, neglect, and misconduct, and to bring him into great disgrace, infamy and contempt, with all his Majesty’s subjects, and to deprive him of his rank and station of captain and commander of the said ship called the Isis, and of the profits, advantages, and emoluments, thereto belonging; and to subject him, the said Evelyn, to the pains and penalties by the laws and statutes of this realm inflicted upon captains and commanders of ships of war guilty of cowardice, disobedience of orders, neglect, mis- conduct, and other the crimes aforesaid, and to put him the said Evelyn to great labour and trouble of body and mind, and to great charges and expenses of his money, and to impoverish and ruin him the said Evelyn; he, the said George, so being such Commander-in-Chief as afore- said, afterwards, to wit, on the 22nd April, 1781, aforesaid, at Port Praya Bay aforesaid, to wit, at London aforesaid, in the parish of Saint Mary-le-bow, in the ward of Cheap, ‘falsely and maliciously, and without any reasonable or probable cause, charged and accused the said Evelyn with having, on the said 16th April, 1781, on the occasions and service aforesaid, committed the crimes and offences here- after next mentioned (that is to say), disobedience of his the said George’s verbal orders, and public signals, in not cutting his, the said Evelyn’s cables (meaning the cables Digitized by Microsoft® 653 Svurro Uv JOHNSTONE. 654 CONSTITUTIONAL LAW. Sorrox of the said ship the Isis), and putting to sea after the Jonxstone. enemy, as he, the said George, had directed ; and for fall- ing astern after he, the said Evelyn, had joined the squadron, under the command of the said George as afore- said ; and not keeping up in the line of battle, after he, the said Evelyn, had cleared the wreck of the foretopmast, when he, the said George, made the signal for the line-of- battle abreast, and bore down on the enemy at sun-set ; by which disobedience and neglect, as the said George charged and alleged, the enemy were enabled to take their disabled ships in tow, to lead the squadron under the command of the said George far to leeward of the island (meaning the island of Saint Jago), to draw matters on in such a train, that it became impossible to engage them with the whole force of the said squadron under the command of the said George before the close of day, and in case of following the enemy until the morning, or attacking them in the night, the said George must have given up all hopes of ever rejoining the transports and East India ships under the said George’s convoy, whereby an opportunity was lost of improving the victory, the said squadron, under the command of the said George, had obtained: and the said George, as such Commander-in- Chief as aforesaid, afterwards, to wit, on the said 22nd April, in the year aforesaid, at Port Praya Bay, to wit, at London aforesaid, &c., out of his further malice to the said Evelyn, did, under colour and pretence of the said sup- posed crimes and offences, falsely, maliciously, wrongfully, and injuriously, and without any reasonable or probable cause, put, and cause to be put, him, the said Evelyn, under an arrest and imprisonment, in order that he, the said Evelyn, might be tried by a court-martial for the same supposed crimes and offences; and did also wrong- fully, maliciously, and injuriously, and without any reason- able or probable cause, under colour and pretence of the said supposed crimes and offences, suspend and remove him, the said Evelyn, from his said office, post, and rank, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. of captain and commander of the said ship the Isis, until 655 Surron v. a court-martial should be held for the trial of the said JOHNSTONE. Evelyn, for the same supposed crimes and offences; and maliciously, and without any reasonable or probable cause, sent, and caused to be sent, him, the said Evelyn, so being under the said arrest, imprisonment, and suspen- sion, unto the East Indies, and from thence to Great Britain, in order to be tried by a court-martial, for the said supposed crimes and offences; and maliciously, and without any reasonable or probable cause, kept, and caused him, the said Evelyn, to be kept, under such arrest, im- prisonment, and suspension, for a long space of time, to wit, from the said 22nd of April, 1781, until the 11th December, 1783, and until the time of the trial and acquittal hereafter next mentioned ; and the said George, out of his further malice towards him, the said Evelyn, and contriving and intending as aforesaid, afterwards, to wit, on the 1st December, 1783, at London aforesaid, in the parish and ward aforesaid, falsely, maliciously, and without any reasonable or probable cause, caused, and procured the said Evelyn to be tried by and before a court- martial, for that purpose duly assembled, on board his Majesty’s ship Princess Royal, before John Montague, ” Esq., Admiral of the blue squadron of his Majesty’s fleet, &c., and others, for the said supposed crimes and offences, and upon a false, malicious, and injurious charge, exhi- bited against the said Evelyn, as late commander of his Majesty’s ship Isis, by the said George, as late Com- mander-in-Chief of his said Majesty’s ships and vessels employed on the said service, for delaying and discouraging the public service, on which he, the said Evelyn, was ordered on the said 16th of April, 1781, and for disobey- ing his the said George’s verbal orders, and public signals, in not causing the cable of his Majesty’s ship Isis, then under his, the said Evelyn’s, command, to be cut or slipped immediately after his, the said Evelyn’s, getting on board in order to put to sea after the enemy, as he Digitized by Microsoft® 656 CONSTITUTIONAL LAW. auanie the said George, had directed, and also for falling astern JouNstoxE, and not keeping up in the line of battle according to the signal then abroad, after the Isis had joined the squadron, and cleared the wreck of the foretopmast when he, the said George, bore down upon the enemy, about sun-set of the said 16th April; at which said trial, the said court- martial, having heard the witnesses produced in support of the said charge, and by the said Evelyn in his defence, and having heard what the said Evelyn had to urge in his defence, and having maturely and deliberately weighed and considered the whole, was of opinion that it appeared to them, that the said Evelyn did not delay or discourage © the public service, on which he was ordered, on the said 16th April, 1781; that, from the circumstances proved of the condition the Isis was in, it appeared to the said court-martial, that the said Evelyn was justifiable in not immediately cutting or slipping the cable of the Isis, after his getting on board her on that day ; and that, after the wreck of the foretopmast had been cleared, the said Evelyn did his utmost to regain his station in the line of battle ; and that the Isis was in her station about sun-set of that day; the Court did therefore adjudge the said Evelyn to be honourably acquitted of the whole of the said charge, and he was thereby honourably acquitted accordingly ; by means of which said false, malicious, and wrongful proceedings of the said George, he, the said Evelyn, not only suffered and endured a long and grievous imprisonment for a long space of time (to wit), for the space of two years, seven calendar months, and nineteen days, but during that time lost and was deprived of divers sums of money, amounting in the whole to a large sum (to wit), 20,000. of lawful money of Great Britain, which he would otherwise have gained, if he had not been suspended and removed by the said George from his rank and post of captain and commander of the said ship called the Isis, from prizes and captures, which were taken and made from the enemy by the said ship the Isis, and the other Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE. ships of the said squadron, under the command of the said George, in the course of the said service and expedition, and during the said arrest and suspension of him, the said Evelyn, for the time aforesaid; and also suffered, sus- tained, and underwent, great hardships, from grief, vexa~ tion, and anxiety of body and mind, and was thereby put to great and heavy charges and expenses of his money, amounting in the whole to a large sum of money (to wit), the sum of 5000J. of like lawful money, in and about the defending himself against the said false and mali- cious charge and accusation of the said George, and the manifestation of his innocence in the premises; and was also thereby greatly aggrieved, hurt, and damnified, in his good name, fame, character, and reputation, to wit, at London aforesaid, in the parish and ward afore- said. The second count was similar to the first, except in this particular, that it omitted to allege, as part of the defend- ant’s accusation, the consequence of the disobedience of the orders, namely, that the enemy were enabled to take their disabled ships in tow, &c., and that an opportunity was lost of improving the victory which the commodore had gained. The third count, after reciting the war, the expedition to Port Praya, the relative situation of the parties, the engagement, the order given to all captains to cut or slip their cables, and pursue the enemy, the putting to sea after the enemy, the signal for the line of battle, the bear- ing down upon the enemy, the returning of the squadron to Port Praya Bay, proceeded as follows: And whereas the said George, as such Commander-in-Chief, as aforesaid, after the said 16th of April, 1781, and whilst the said squadron remained under the command of the said George in foreign parts, as aforesaid, (to wit), at the said Port Praya Bay, &., on the 22nd of April, 1781, charged and accused the said Evelyn of being guilty of other misconduct and neglect on the said 16th of April, 1781, on the occasions UU Digitized by Microsoft® 657 Sorron v JOHNSTONE, 658 * CONSTITUTIONAL LAW. Surrox and service aforesaid (that is to say), for disobedience of JonNSTONE. the verbal orders of the said George, and of the public signals of the said George, in not cutting his cables (eneaniniy the cables of the said ship Isis), snd putting to sea after the enemy, as he, the said George, had directed, and for falling astern after the said Evelyn had joined the squadron, and not keeping up in the line of battle after he, the said Evelyn, had cleared the wreck of the foretop- mast, when he, the said George, made the signal for the line of battle abreast, and bore down on the enemy at sun-set ; by which disobedience and neglect, as the said George charged and alleged, the enemy were enabled to take their disabled ship in tow, to lead the squadron under the command of the said George far to leeward of the island of Saint Jago, to draw matters on in such a train, that it became impossible to engage them with the whole force of the squadron under the command of the said George before the close of day, and in case of follow- ing the enemy until the morning, or attacking them in the night, the said George must have given up all hopes of ever rejoining the transports and East India ships under the said George’s convoy, whereby an opportunity was lost of improving the victory the said squadron under the command of the said George had obtained; and upon the said charge did then and there put, and cause to be put, the said Evelyn under an arrest and imprisonment, in order to be tried by a court-martial for the said last- mentioned supposed misconduct and neglect ; and upon the said charge did also then and there suspend and remove the said Evelyn from his place, rank, and station of captain and commander of the said ship the Isis, until such court-martial could be held for the trial of the said Evelyn: And, although it was the duty of the said George, as such Commander-in-Chief as aforesaid, to have holden, or caused to have been holden, a court-martial for the trial of the said Evelyn, for the said supposed neglect and misconduct of the said Evelyn, when and so soon as Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. he reasonably and conveniently could, after the said 659 Pe charge, arrest, and suspension: And although the said Jounsrowe, George, as such Commander-in-Chief, might reasonably and conveniently, after the said charge, arrest, and sus- pension, have holden, and caused to have been holden, a court-martial for the trial of the said Evelyn, for the said supposed neglect and misconduct, during the stay of the said squadron under the command of the said George at Port Praya Bay, as well as often after the departure of the said squadron from Port Praya Bay, whilst the same remained under the command of the said George, in foreign parts as aforesaid, there being, during all such time, a competent number of officers, of and in the said squadron under the command of the said George, to com- pose such court-martial: And although the said George was, during that time, frequently requested by the said Evelyn, to hold, and cause to be holden, such court- martial for the trial of the said Evelyn as aforesaid, to wit, at London aforesaid, in the parish and ward aforesaid : Yet the said George, well knowing the premises, but con- triving, and wrongfully, injuriously, and maliciously, in- tending to hurt, aggrieve, vex, oppress, injure, and dam- nify, the said Evelyn, and to cause him to be kept under such arrest and imprisonment, and to be suspended and removed from his said rank, station, post, and office, of captain and commander of the said ship the Isis, for a long and unreasonable space of time; and during such time to deprive the said Evelyn of the benefits, profits, and advantages appertaining to such rank, station, post, and office, and to injure him in his good name, fame, cha- racter, and reputation, and to bring him into great con- tempt and infamy among all the officers and men of bis said Majesty's squadron, under the command of the said George as aforesaid ; he, the said George, wilfully, wrong- fully, and injuriously, and contrary to the duty of the said George as such Commander-in-Chief as aforesaid, omitted, neglected, and refused to hold, or cause to be holden, a uv2 Digitized by Microsoft® 660 Surron CONSTITUTIONAL LAW. court-martial for the trial of the said Evelyn as aforesaid, Jouxsroxz. during the stay of the said squadron under the command of the said George at Port Praya Bay, or at any time after the departure of the same squadron from Port Praya Bay, whilst the same remained under the command of the said George in foreign parts as aforesaid ; and thereby wilfully, wrongfully, and injuriously, kept and detained him, the said Evelyn, so under the said arrest, imprisonment, and suspension, for a long and unreasonable space of time, and until the trial and acquittal hereafter mentioned ; and the said Evelyn says, that he afterwards (to wit), on the Ist of December, 1783, to wit, at London aforesaid, in the parish and ward aforesaid, was tried by a court-martial, duly assembled and held in that behalf, for the said supposed neglect and misconduct, and was by the said court-martial then and there honourably acquitted thereof; by means of which said wilful, wrongful, and injurious neglect, omission, and refusal of the said George, to hold, or cause to be holden, a court-martial for the trial of the said Evelyn as aforesaid, in a reasonable and convenient time as aforesaid, he, the said Evelyn, not only suffered and endured a long and unreasonable imprisonment, but during that time lost and was deprived of divers sums of money, amounting in the whole to a large sum (to wit), 20,000/., which he would have gained if he had been tried as aforesaid in a reasonable and convenient time after the said arrest and suspension, from prizes and captures which were taken and made from the enemy by the said ship the Isis, and other ships of the said squadron, under the command of the said George, in the course of the said service, and expedition ; and also suffered, sustained, and underwent great hardships, pain, grief, vexation, and anxiety of body and mind, and was thereby put to great and heavy charges and expenses of his money, and was greatly aggrieved, hurt, and damnified, in his good name, fame, character, and reputation, to wit, at London afore- said, in the parish and ward aforesaid. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 661 The fourth count differed from the third in the same Svrtow manner that the second differed from the first. Jounsrone, To the foregoing declaration the defendant pleaded Not rica. _ Guilty. This cause was twice tried before the Chief Baron (/) veratct. at Guildhall, by special juries ; on the first trial the jury found a verdict for the plaintiff, with 50001. damages, and on the latter they gave 60001. Afterwards a motion was made in the Court of Exche- motion in quer, in arrest of judgment, and on the 15th June, 1785, judgment Eyre, B., delivered the unanimous opimion of the Court in favour of the plaintiff, upon the grounds following :— As to the first count of the declaration, it is objected, in arrest of judgment, that no action for a malicious pro- scution will lie for a subordinate officer against the com- ander of a squadron for improper conduct while under his command ; that no action lies for a subordinate officer against his superien officer, for an act done in the course of discipline, and under powers incident to his situation. These propositions have been supported by arguments drawn from the analogy the case is supposed to bear to the case of a judge, a juror, and the Attorney-General in respect of his power to file informations ex officio, and from general principles of public policy and convenience, there being no adjudged case or other authority in our law that can be made to bear upon the point, so as to give it any support: on the contrary, it was necessary to press into the service distinctions and refinements, in order to take the case out of the class of eee cases bearing very strongly the other way (g). The principle of the action, which is pretty clear ly ascertained in the two cases infra (h) is general and uni- (f) Sir J. Skynner. 161; S.C. 20 St. Tr. 81, cited ante, (g) Wall v. McNamara, cor. Lord p. 638. Mansfield, Sittings after Mich. Term, (A) Savil v. Roberts, 1 Salk. 13; 1783, cited 2 Gilb. on Evid. by Lofft, Jones v. Gwynn, 10 Mod. 148, 214 p. 558; Fabrigas v. Mostyn, Cowp. 8. C. Gilb. 185. Digitized by Microsoft® 662 CONSTITUTIONAL LAW. Sorron versal, In the cases alluded to of judges and jurors, it Jounsrone. cannot apply, because the law gives faith and credence to what they do; and therefore there must always, in what they do, be cause for it; and there never can be any malice in what they do. The presumption of law, that judges and jurors do nothing causelessly and maliciously, does not derogate from the universality of the principle, that where it can be shewn that one man has causelessly and maliciously accused another of a crime, or has other- wise vexed him by causelessly and maliciously exercising upon him, to his damage, powers incident to his situation of superior, the injured party is entitled to redress by this species of action. The Commander-in-Chief of a squadron of ships of war is in the condition of every other subject of this country, who, being put in authority, has responsi- bility: annexed to his situation. ‘The propositions, which attempt to establish a distinction for him, are dangerously loose and indefinite. It is said, _ subordinate officers may be brought to a court-martial for improper conduct, and that no action lies for anything done in a course of discipline, or under powers incident to situa- tion. If, by “improper conduct,” be meant a breach of the articles for the government of the navy ; if, by “a course of discipline,” be meant exacting that which the discipline of the navy requires; if, by “what is done under powers,” be meant that which is warranted to be done under those powers ; it will be agreed, simply for doing any of those acts no action will lie; for those are lawful acts in them- selves, and there is nothing added to make them unlawful in the particular case. But in respect of the first branch of this proposition, if it be meant that a Commander-in- Chief has a privilege to bring a subordinate officer to a court-martial for an offence which he knows him to be innocent of, under colour of his power, or of the duty of his situation to bring forward inquiries into the conduct of his officers, the proposition is too monstrous to be debated. Under the second branch of it, it may not be fit, in Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 663 point of discipline, that a subordinate officer should dispute Beran the commands of his superior, if he were ordered to go to JouNstove, the masthead; but if the superior were to order him thither, iencwiny that from some bodily infirmity it was impossible he should execute the order, and that he must inevitably break his neck in the attempt, and it were so to happen, the discipline of the navy would not protect that superior from being guilty of the crime of murder. And one may observe in general, in respect of what is done under powers incident to situations, that there is a wide difference between indulging to situation a latitude touch- ing the extent of power, and touching the abuse of it. Cases may be put of situations so critical that the power ought to be unbounded ; but it is impossible to state a case where it is necessary that it should be abused; and it is the felicity of those who live under a free constitution of government, that it is equally impossible to state a case where it can be abused with impunity. The counsel for the defendant were disposed to agree to this general doctrine, provided that the question was not to be discussed in an action at law, which unavoidably brings the inquiry into a matter of fact before a jury. We enter into all the difficulties in the situation of an officer, whose honour and fortune may come to be so staked. But considerations of this nature cannot exclude the established jurisdiction of the country. Men of honour will do their duty, and will abide the consequences. The next objection taken to this count was, that this. being an action founded on the want of probable cause for making the charge, the action fails; because upon the face of the record, and upon the plaintiff’s own shewing, there was probable cause. It is upon the.face of the sentence of the court-martial that the probable cause is said to appear; part of the charge being for disobedience of orders, in not slipping the cable of the Isis, immediately after the plaintiff got on board: the language of the sentence is, that, from the cucumstances proved of the Digitized by Microsoft® 664 CONSTITUTIONAL LAW. Srrox condition the Isis was in, it appeared to the court-mar- Joansrone, tial that the plaintiff was justifiable in not immediately cutting or slipping the cable after his getting on board ; from whence it was collected, that it appears that the plaintiff did disobey the orders of the defendant, and that he was driven to justify himself by circumstances, and that his acquittal proceeded, not upon the ground of his not having disobeyed, but on the ground of his justification. Upon this part of the case there has been some hesita- tion amongst us. Reynolds v. Kennedy (4) gave consider- able countenance to the objection. It was a case in error from the King’s Bench in Ireland : an action was brought for maliciously, and without probable cause, prosecuting for condemnation brandy seized as forfeited; the decla- ration stated that the brandy was condemned by the sub-commissioners, and that that condemnation was most rightfully reversed, on appeal to the commissioners. The judgment was arrested in the Court of King’s Bench in Treland and that judgment affirmed here ; and it was said by Lee, C. J., “the plaintiff has, by his own declaration, shewn that the prosecution was not malicious, because the sub-commissioners gave judgment for the defendant; and therefore we cannot infer any malice in him.” Perhaps it would have been more correctly stated, if they had said, and therefore we will infer that there was probable cause for prosecuting that brandy to condemnation. To my apprehension, I confess, the fact of the orders having been disobeyed seems fairly to be collected from the sentence, which takes upon itself to justify the not obeying, and to make that the ground of the acquittal. However, admit- ting, for the sake of argument, that probable cause did appear upon this record for making a charge of disobe- dience of orders, it cannot operate to arrest this judgment. The defendant is charged, by this count in the declara- tion, with having maliciously, and without probable cause, @) 1 Wils. 232, Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE, brought the plaintiff to a court-martial upon one entire charge, but consisting of two distinct articles, under two separate articles for the government of the navy; the first, for delaying the public service; the second, for disobedi- ence of orders. I have observed that the sentence of the court-martial acquits him generally of the first. They say he did not delay the service. It is impossible therefore to find in the sentence probable cause for this part of the charge. Then it will stand thus: the plaintiff charges the defendant with having maliciously, and without probable cause, brought the plaintiff to a court-martial upon one charge, for which there was no probable cause, and upon another charge, for which there was probable cause; the declaration is therefore felo de se with respect to the latter, but good as to the former. In that case, after a verdict, the jury must be taken to have given damages for that part of the case only which is actionable. This is familiar in the case of the action for words. The words in one count may consist of several distinct paragraphs or periods, some actionable, some not; it is no objection, after a ver- dict, that some of the words given in evidence, and charged in that count, are not actionable; if there be actionable words to which the damages can be applied, the jury are presumed to have given their damages for the words which are actionable. It is enough to sustain a judgment upon this count, that a cause of action appears in it ; that which does not amount to a cause of action, is merely surplusage. It is further objected to this count that the assignment of the special damage is ill laid. The count states, that the plaintiff lost a large sum of money, viz., 20,000/., which he would have gained, if he had not been suspended and removed from his rank and post of captain of the Isis, from prizes taken by the Isis and the other ships of the squadron, in the course of the service, and during his arrest and sus- pension. It is objected that there is no averment or alle- gation of title to prize money; that it does not follow from the fact stated that the prize money was lost ; that by law Digitized by Microsoft® 665 Surron v JOHNSTONE, 666 CONSTITUTIONAL LAW. Surrov the prize money was not lost, and that the jury have JouNstons. therefore found damages which by law could not be found. Weare clearly of opinion that this objection must be over- ruled. The damages are well assigned by stating that the loss happened by reason of the wrong complained of ; the rest is matter of evidence; and if anything which can now be suggested would have proved the loss to have happened by that mean, after verdict we must suppose that proof to have been given. The objection therefore resolves itself into the last branch of it, viz. that the jury have found damages which could not possibly arise in the case, and could not therefore by law be found. To support which proposition, it has been argued that a suspended captain is entitled to the prize money for captures made during the time of his suspension. The proclamation must be the rule by which this point is to be decided. By the procla- mation, the captain of a king’s ship, who shall be actually on board at the taking of any prize, shall have a certain proportion. Is one who had been suspended and removed from his rank and post of captain, and was in that state of suspension when the prize was taken, the captain of such ship actually on board at the taking of such prize? It is enough to state the question; it answers itself. Not having original jurisdiction in matter of prize, we cannot decide that question so as to affect the right of prize money; but we are obliged to decide it as far as it is incidental matter in this cause, and for the purpose of this cause. And premising this, we hold, in this case, that the plaintiff, by reason of his suspension and removal, did lose the prize money which he would have gained from prizes taken by the Isis and other ships during his suspension, and conse- quently that this is well assigned as special damage in this action. It is objected on the third count of this declaration, the grievance complained of in which is, the refusing and neglecting to hold a court-martial for the trial of the plaintiff, while the squadron was under the defendant’s Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 667 command, and then keeping him under arrest till his trial sorrow in Great Britain, that this is damnum sine injurid; that sounsroys. the law has fixed no time, short of the term of three years, within which courts-martial are to be held; and therefore it could not be the duty of the commander to hold a court- martial at any time within that period, or so soon as he reasonably and conveniently could after the charge exhi- bited, and consequently that the averments, that it was the duty of the defendant to hold such court-martial; that the defendant might reasonably and conveniently have held a court-martial ; and that he wilfully, wrongfully, and injuriously, and contrary to his duty, omitted, neglected, and refused to hold such court-martial; cannot give to the plaintiff a cause of action. The answer to thiy objection is, that every breach of a public duty, working wrong and loss to another, is an injury, and actionable ; that the three years are only a limitation of time, beyond which no court- martial shall be held; consistent with which it may be the duty of those who have power to hold courts-martial to hold them within a much shorter space. It is a familiar qualification of powers of various kinds, that they should be executed within a reasonable time. Suspension and arrest being incident to the power of holding a court- martial, it seems an essential ingredient in such a power, and absolutely necessary to qualify the rigour of it, that it should be executed in a reasonable time; otherwise a power of holding a court-martial would necessarily involve in it a power to imprison for three years previous to the trial, which could not be borne. The usage of the navy might have made it the duty of the Commander-in-Chief, in a case where it did not speak so strongly for itself: how it becomes his duty, is to be shewn in evidence, in proof of the averment that it was his duty, and, after verdict finding that it was his duty, must be taken to have been sufficiently proved: It must also be taken to have been proved that there was no impediment in the way, and, under these circumstances, the not holding a Digitized by Microsoft® 668 CONSTITUTIONAL LAW. Surrox court-martial, and.the plaintiffs having sustained loss and Jouxstoxe, damage thereby, both which circumstances we must con- Writ of Error. sider as proved, constitute a good cause of action, upon which judgment may be now given. The Court are therefore of opinion, that the rule for arresting this judgment is to be discharged. In Michaelmas Term, 1785, the defendant brought a writ of error upon the above judgment in the Exchequer Chamber, assigning as errors:—1l. That the declaration aforesaid, and the matters therein contained, are not suffi- cient in law for the plaintiff to have or maintain his action against the defendant ; and so the judgment in form afore- said rendered, and all the proceedings thereon, are wholly void and erroneous in law. 2. That by the record it appears, that the judgment in form aforesaid rendered, was rendered for the plaintiff against the defendant, whereas, by the law of the land of this kingdom of England, that judgment ought to have been rendered for the defendant against the plaintiff. 3. That, in giving the -judgment aforesaid, damages have been -assessed against the de- fendant generally for all and each of the said supposed offences in the declaration mentioned ; whereas it mani- festly appears in and by the deolaratian and record, that the plaintiff had reasonable and probable cause to arrest, suspend, and bring the defendant to trial by a court- martial, 4. That in giving the judgment aforesaid, the Barons of the Exchequer have decided upon a question not cognizable in a court of law, inasmuch as it appears, in and by the record, that the supposed offences, in the decla- ration mentioned, were committed by the defendant, as Commander-in-Chief of a squadron of his Majesty's ships of war, in the due course of discipline, and under powers legally incident to his station as such Commander-in-Chief, and whilst the plaintiff was serving as an officer in the squadron under the command of the defendant. 5. That damages have been assessed against the defendant for the said supposed loss of prize money by the plaintiff; whereas Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUIIVE. 669 the plaintiff hath not, by reason of the premises in the Svztw declaration mentioned, lost or been deprived of any of the Jousstoxs, said prize money, but is still entitled thereto. 6. That damages have been assessed against the defendant for a delay in bringing the plaintiff:to trial by a court-martial ; whereas, by the law of the land, an action will not lie for any such delay as is charged in the declaration. This case was argued on the 2nd of February, 1786, before Lord Manstield, C. J. (%), and Lord Loughborough, C.J. (1), by Dallas for the plaintiff in error, and Bower, for the defendant ; and again by Erskine for the defendant in error: Scott was to have argued for the plaintiff in error, but the Court were satisfied upon the former ‘argument, The counsel for the plaintiff in error did not, in arguing Argument this case, confine himself to the order in which the errors were assigned. He argued thus :— As to the second error, the Commander-in-Chief of a squadron of ships of war is bound, as such, to superintend and regulate the conduct of those under his command, to arrest and bring them to trial before a court-martial for all offences committed against the articles for the govern- ment of the navy, or the custom of the same; and if he omit to do it, where there is cause, he is himself liable to be punished for the neglect. He is, therefore, in this respect, different from any private accuser. It appears on the record that the plaintiff in error acted in this capa- city; nor is it alleged that he has done any single act without legal powers, which would have made it necessary to bring a different action: but it is charged that he per- verted those powers, with which by law he was invested for purposes of public utility and advantage, to the ends of malice and oppression; and that the defendant in error has thereby suffered the injury of which he complains. Notwithstanding, the jury have found a verdict for the (i) K. B. (2) ©. PB. Digitized by Microsoft® for plaintiff in error. 670 7 CONSTITUTIONAL LAW. Surrow defendant in error; and the averments in the declaration, Jonvarowe, namely, that the plaintiff in error accused the defendant falsely and maliciously, and without any reasonable or probable cause, must now be taken to be true; and it must likewise be taken to be true that the defendant in error has sustained an injury to the extent found by the verdict ; yet in point of law the judgment cannot be supported. An action cannot be maintained against the Commander- in-Chief of a squadron of ships of war for accusing, arrest- ing, and bringing to trial a subordinate officer, he having by law an authority so to do, notwithstanding that the perversion of his authority is made the ground of the action, as in the present case ; or, in other words, an action on the case for a malicious prosecution will not lie at the suit of a subordinate, against his commanding officer, for an act done in the course of discipline, and under the powers legally incident to his situation. This doctrine is apparently repugnant to a maxim of law; that there is no wrong without a remedy; but this, though generally, is not universally, true; and a great variety of cases exist to which it does not apply ; or, at least, in which the remedy cannot be in the shape of a civil action to recover damages for the injury sustained. There are many instances, in some of which it is universally held, and in others has been expressly adjudged, that an action on the case for a malicious prosecution will not lie, though the act com- plained of be admitted to be malicious. The principle of all such cases is, that the law will rather suffer a private mischief than a public inconvenience. As there is no adjudged case expressly in point, it must be shewn that, by analogy, and on principles of public policy and conve- nience, as recognised in courts of justice, this action can- not be maintained. No action will lie against a judge for any act done in his judicial capacity ; nor against a grand juryman for presenting or finding a bill of indictment ; nor against a petit juryman for his verdict; though the Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 671 act done should be charged to be wrongful and malicious. 5°™?* This doctrine, and the reasons of it, are stated in Floyd v. JouNstox®. Barker (m), where one of the defendants was a justice of the grand sessions in the county of Anglesea ; there it was resolved by the Lord Chancellor, the two Chief Justices, the Chief Baron, and all the Court of Star-chamber, that “when a grand inquest indicts one of murder or felony, and after the party is acquitted, yet no conspiracy lies for him who is acquitted against the indictors, for this that they are returned by the sheriff, by process of law, to make inquiry of offences upon their oath, and it is for the service of the king and commonwealth.” Stowball v. Ansell (n) was an action on the case against a juryman for maliciously indicting the plaintiff of barratry. After a verdict for the plaintiff, on a motion in arrest of judg- ment, it was resolved that the action did not lie, although it was laid malitiosé. From Floyd v. Barker it appears that the law raises a presumption in favour of jurors, and will not even-admit proof to the contrary ; departing herein from the common maxim, that the presumption shall only stand till the contrary be proved. This rule must have been adopted on the principle stated by Lord Coke, namely, that it would deter jurors from the public service if they were liable to such an action in every case, where, in the opinion of the parties against whom they had decided, their decision proceeded from malicious mo- tives. If such actions could be maintained, the multi- plicity of them would render it impossible for a judge or juror to discharge the duties of his office. The exemption is, therefore, established on behalf of the public, and results from principles of: policy and convenience. The prosecutor of a malicious indictment is liable to an action on the case for a malicious prosecution, in preferring such an indictment before a grand jury ; yet if the same person, serving on the grand jury, were maliciously to present, or (m) 12 Rep. 23, 24. (n) Comberb. 116. Digitized by Microsoft® 672 Surron v CONSTITUTIONAL LAW. to find, such an indictment, no action would lie. Thus it JonNstone. is clear, that the same act, done by the same person, and proceeding from the same evil motive, is, or is not, action- able, according to his acting in a private, or a public capacity, In Hawkins (0) it is laid down, “that no one is Hable to any prosecution whatever, in respect of any verdict given by him in criminal matters either upon the grand or petit jury: and he states the reason to be, “that they may not be biassed with the fear of being harassed with vexatious suits for acting according to their con- sciences.” The situation of a Commander-in-Chief of a squadron of ships of war is analogous to that of a grand juror, in those respects, whereby the latter is exempted from this species of action. All the arguments of im- policy and inconvenience apply more strongly. He isa public officer, and has public duties to discharge ; he must act in arduous and difficult times; he is responsible for his conduct while in command ; and he is invested with legal authority over those serving under -him, for public purposes. By his situation he is in the nature of a public prosecutor, and it is his duty to bring offenders to trial, either on the information of others, or from his own know- ledge and belief. He is himself punishable for neglect of duty, if he omit to do it, where there is sufficient cause. But if this action can be maintained, the inducements would be so much stronger than in any other case, that it ° would be more frequently brought. Such frequency would deter commanders from doing their duty, from the dread that an action would follow in every case where prisoners were acquitted. The event of actions well and ill founded would undoubtedly be different; but the enquiry leading to the event would necessarily be vexatious and expensive. It is of more consequence that a Commander-in-Chief should have no such bias on his mind, than that a grand juror should have none. The safety of the state is declared by (o) P. C., Bk. I. chap. 27, 8. 5. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 673 the Act (p), establishing articles for the government of sr THON the navy, to depend chiefly on the discipline of the navy. JouNstove. ‘That discipline depends principally on the chief person in command, The safety of the State is therefore materially interested in his conduct ; and he should be consequently secured from any fear of doing his duty from any possible consequences. Arguments of impolicy and inconvenience could not avail, if this were a decided case: but it is the first action of the kind; and it is to new and undecided cases that the maxim peculiarly applies, Quod inconve- neens est non licitwm est. But there are other arguments of impolicy and inconve- nience against this action in the case of a Commander-in- Chief for an act done in the course of discipline, namely, that every action of this kind must necessarily involve an enquiry into subjects, which those who are to try the cause cannot reasonably be presumed to understand. It is not so in the common case of an action for a malicious prosecution, where the jury are fully competent to that enquiry from which the malice is to appear ; for the ques- tion, whether a man was maliciously indicted of any mis- demeanor or felony, must be tried by persons of the same description as those who tried the original indictment. But in such a case as the present, it is otherwise. A jury cannot be supposed competent to the trial of a question of naval discipline, depending upon a science to which they are strangers, where the evidence must be in terms which they cannot be reasonably supposed to understand, and connected with habits, feelings, and principles, arising from situations in life, in which they have never been placed. The law has recognized this incompetence, and made provisions accordingly, by specially constituting a tribunal, namely, a court-martial, before which offences against military or naval law are to be tried. Then, if a jury be incompetent to try the original charge, they are (p) 22 Geo. 2, ¢ 33, Digitized by Microsoft® 674 CONSTITUTIONAL LAW. Surrox equally incompetent to try a civil action, in which the sole Josnstoxe. question must be, whether that charge was properly made. In every action of this nature, the plaintiff must shew that the defendant accused him maliciously, and without any probable cause: malice of itself is not sufficient ; the want of probable cause must be likewise shewn; but whether the cause were probable or not can only appear from an investigation of the charge, and to such investigation the jury must be presumed incompetent. It is true that, upon the trial of such an action, the jury have in evidence the sentence of the court-martial, acquitting the person accused: but that does not remove the objection. For, in point of law, the sentence itself is not sufficient to entitle a plaintiff to recover; but he must lay before the jury the substance of the evidence, on which that sentence was given. For the question in such an action is, not whether the plaintiff was innocent or guilty, but whether the defendant acted without malice, and had reasonable and probable cause to prefer the accusation ? which the sentence itself will not shew: for the plaintiff may have been per- fectly innocent, and yet the defendant be justifiable in having accused him: so that the charge must in effect be tried again by the jury, before they can give their verdict. It may be said that, besides the sentence of the court- martial and the evidence on which it was grounded, they may have the opinions of professional men: but opinion is never admitted but from the necessity of the case, and is only suffered to be produced upon this principle, that a jury must necessarily be presumed but imperfectly quali- fied to try questions which depend upon knowledge they cannot be supposed to possess, but that the law has not appointed any tribunal more competent to the purpose. Thus, in cases of murder, a surgeon is examined to prove whether the wound given was the cause of the death of the deceased. So, in an action upon a policy of insurance, where the question of wilful loss arises, naval men may be examined as to their opinion, whether the ship was pro- Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 675 perly navigated or not. But the law has left all these Surtos questions to be decided in the common course by a jury, Jounstowe, without having made (as in the present instance by the establishment of a court-martial) any special provision for another mode of trial ; from which incompetence must, in point of law, be inferred. If it were otherwise, the jury might as well have tried the original charge on the evi- dence, assisted with the opinions of professional men: and there is no reason why they should not be as competent to do it in the form of a criminal accusation, as in the shape of a civil action. If it be urged, as it was on the motion to arrest the judgment, that this doctrine places every subordinate officer out of the protection of the law, and reduces him to a state of servile dependence on his superior officer, in favour of whom it establishes a despotic and uncontrollable power; the answer to it is, that the stat, 22 Geo, 2, c. 33 (q), has expressly declared, that “if any flag-officer, &c. shall be convicted before a court- martial, of acting in a scandalous, infamous, cruel, oppres- sive, and fraudulent manner, unbecoming the character of an officer, he shall be dismissed his Majesty’s service.” Every officer, therefore, who suffers by the false and mali- cious accusation of his commander, may bring him before a court-martial for such conduct, and procure his dismis- sion from the service. This is the safeguard of subordinate officers against oppression. But it may be said that this is no compensation to such an officer ; that the law should enable him to recover damages proportionate to the injury. In this respect, however, he is in no worse situa- tion than other subjects of this country, on a variety of occasions of a similar nature. It is perfectly clear, that whatever damage may be sustained by the wrongful and malicious act of a judge, or grand or petit juror, acting as such, the party injured cannot recover a pecuniary com- pensation for the wrong sustained. And so in all cases (g) S. 2, art. 33. x x2 Digitized by Microsoft® 676 CONSTITUTIONAL LAW. Sorton where the civil injury amounts to a felony ; there, no other Jouxsrone, compensation can be recovered than what is dispensed in the form of public punishment (7). Every crime includes a private injury; every public offence involves a private wrong; but the atonement in such cases must be to the public, and the individual is without any civil redress. In the present instance, therefore, there is no civil redress, and the remedy must be of a criminal nature. This is the first action of this sort, notwithstanding innumerable occa- sions for it must have occurred. There are many in- stances in which court-martials have, in their sentence, expressly declared the charge to be false and malicious. There are many others in which officers have been dis- missed the service for infamous behaviour in preferring false and malicious charges. Yet an action of this nature never before occurred. The argument of negative usage is extremely strong. In Le Cauwx v. Eden (s) this argu- ment was admitted to have great weight, and the language of the Court in giving judgment in that case applies with peculiar force to the present. And Buller, J., there said, “an universal silence in Westminster Hall, on a subject which so frequently gives occasion for litigation, is a strong argument to prove that no such action can be maintained.” But if the Court should be of opinion that no distinc- tion can be admitted between this and common actions for a malicious prosecution, still the judgment must be reversed for the error 3rdly assigned (t). First, it is to be observed that, even in common cases, this action is not to be encouraged. In Savile v. Roberts (w) Lord Holt, C. J., expressly said, “though this action will lie, yet it ought not to be favoured, but managed with great caution.” The same doctrine was laid down by (r) That is to say, the civil remedy (8) Dougl. 594. is suspended until public justice has (t) Ante, p. 668. been satisfied ; Broom’s Comm. 3rd (u) 1 Ld, Raym, 374, 381. ed. pp. 100 et seq. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 677 Lee, C. J., in Reynolds v. Kennedy («), and is adopted by Svrtox Blackstone (y). The courts of law, in effect, exercise a JouNstons. control over this action, by withholding a copy of the indictment, where there is the least probable cause ; and among the orders to be observed by justices of the peace and others, at the Old Bailey sessions, prefixed to Kelyng’s Reports, is the following one: “that no copies of any indictment for felony be given without special order upon motion made in open court; * * for the late frequency of actions against prosecutors (which cannot be without copies of the indictments) deterreth people from prose- cuting for the king upon just occasions” (z). The prin- ciples of this kind of action are in some measure stated in Savile v. Roberts, and Jones v. Gwynn, which were actions for malicious prosecution. In the former of these, Lord Holt said, “If the indictment be found, the defendant in such action will not be bound to shew a probable cause, but the plaintiff will be constrained to shew express malice and iniquity in the prosecution.” But the law, as now settled, does not exactly agree with either of these cases, It is not necessary, as stated by Lord Holt, that the plaintiff should prove express malice, for it may be implied from a causeless prosecution. The true foundation of the action, as settled at this day, is to be found in Farmer v, Darling (a), where it is stated, “That malice, either ex- press or implied, and the want of probable cause, must both concur” to support this action. They do not concur in the present instance, but, on the contrary, a reasonable and probable cause is stated on the record ; consequently there is wanting an essential requisite to support the action. As the term “malice” does not necessarily import the want of probable cause, it is immaterial whether the malice was expressly proved, or inferred from the ground- lessness of the prosecution, For if expressly proved, and (x) 1 Wils. 233. 802, 306. (y) 3 Com. 21st ed. 126. (a) 4 Burr. 1971, 1974. (2) See Legatt v. Tollervey, 14 Hast, Digitized by Microsoft® 678 CONSTITUTIONAL LAW. Svrrex there be probable cause on the record, it is not sufficient ; and Jounsroxs. if there be probable cause on the record, it cannot legally be inferred. The terms in the declaration, “ maliciously, and without reasonable or probable cause,” are terms of legal import to be determined by the judge who tries the cause, from the evidence before the jury ; or by the Court from what is stated on the record. It was so determined by all the judges in R. v. Oneby (b) ; and in Jones v. Gwynn, Parker, C. J., said, that “malice” and “ mali- ciously” are terms of law (ce). The word “reasonably” is likewise a term of law (d). The term “probable” is merely synonymous with “reasonable;” and what is probable cause is matter of law; or, in other words, the probability of the charge preferred is to be a legal inference from the facts given in evidence before the jury, or the averments on the record (e). Jones v. Gwynn proves this position. For there Parker, C. J., argued, that malice involved the want of probable cause, and therefore it was not necessary expressly to allege it; and he stated it as perfectly clear that “malice” was a term of law, and therefore to be determined by the judge, and not the jury. Then if malice be a term of law, and involve the want of probable cause, Omne majus continet in se minus, and consequently “ probable cause” must be matter of law. In Reynolds v. Kennedy (f), which was a writ of error, from the King’s Bench in Ireland, on a judgment in an action for a malli- cious prosecution, the judgment was reversed because a foundation for the prosecution appeared on the record ; so that the court took upon them to judge what was a founda- tion, or, in other words, a probable cause. It is said (g) that probable cause for a prosecution for perjury is to be deter- mined by the judge, not by the jury. It is true that there isa guore in the margin ; but that doubt must now be at (b) 2 Lord Raym, 1493. (e) Broom’s Comm. 8rd ed. p. 782. (c) 10 Mod. 214; S.C, Gilb, 185. (f) 1 Wils. 232, (d) 2 Inst. 222; Co. Litt. 56, b. ; (g) Bull. N. P. 14, Metcalf v. Hall, Trin, T. 22 Geo. 2. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. an end. For at the sittings at Guildhall after Michael- mas Term, 1785, an action (h) for maliciously and without any reasonable or probable cause holding the plaintiff to bail, was tried before Buller, J., who stated to the jury that there were two questions to be determined : Ist, whether the facts in evidence were true; 2ndly, whether, if true, they shewed a want of reasonable or probable cause; and the learned judge added, “ what is reasonable or probable cause is matter of law ;” and he then gave his opinion upon the case. The present record contains averments, which, in point of law, constitute a reasonable and probable cause ; and the verdict of the jury, which is the foundation of the present judgment, is a finding of the averments on the record. In every action of this sort, the plaintiff must shew what has become of the original prosecution, either that it was deserted, or that, having been prosecuted, he was acquitted (2). In the present case, the defendant in error was acquitted ; but that of itself is not sufficient to exclude the idea of reasonable and probable cause, In Jones v. Gwynn, it is said, that “the determination must be such as does not admit a reasonable cause for the pro- secution ; as if a pardon be pleaded which admits in some sort guilt, however is quitting the vindication of inno- cence, or justification, which admits the fact, and conse- quently reasonable cause of complaint(j).” The de- fendant in error has stated in his declaration the sen- tence, by which he was acquitted, whereby it appears that the facts, with which he was charged, were found to be true, but justified; and consequently that there was reasonable cause of complaint. There are three things to be considered: Ist, the charge ; Qndly, the articles, or custom of the navy, on which it was founded; 8rdly, the sentence of the court-martial. The charge is one entire charge, though apparently con- (h) Candell (otherwise Barbanell) () Broom’s Comm. 8rd ed. p. 733. vy. London. (j) Gilb. 215, Digitized by Microsoft® 679 Surron vw. JOHNSTONE. 680 CONSTITUTIONAL LAW. Surron sisting of three distinct articles: Ist, delaying and dis- Joaxsrone. couraging the public service ; 2ndly, disobedience of orders; ~~ and, 8rdly, falling astern, and not keeping up in the line of battle according to the signal then abroad, &c. The first part of the charge is grounded on the 14th article for the government of the navy (&). The second article, viz., the disobedience of orders, contains a specification of what that disobedience consisted in, namely, the not causing the cables of the Isis to be cut and slipped immediately after his getting on board, &c. There are two articles in the Act of Parliament, namely, the 11th and the 14th, within either of which disobedience of orders is an offence that may be capitally punished. The third charge falls within the 11th, 14th, and 22nd articles ; inasmuch as the signal was disobeyed by his not keeping up in the line of battle, the service was thereby delayed and discouraged, and the utmost was not done to join battle with the enemy. As to the first article of the charge, the court-martial find, “That it appears to them, that the prisoner did not delay or discourage the public service on which he was ordered on the 16th of April, 1781.” Supposing therefore this to be a substantive charge, and the only one against him, he would by this sentence be fully acquitted. With respect to the 2nd article, they state, “That from the circumstances proved, and the condition the Isis was in, it appears to the Court that the prisoner was justi- fiable in not immediately cutting or slipping the cable of the Isis after his getting on board her on that day.” This finding constitutes a probable cause, or, in other words, states such appearances of guilt as rendered an enquiry necessary. It is not found that no such orders were given, or that, being given, they were obeyed; but the prisoner is declared “justifiable ” in not immediately cutting or slipping the cable, which negatively admits the order to have been given and disobeyed, The acquittal is (k) 22 Geo. 2, ce, 33, s. 2. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. therefore founded, not on the falsehood of the fact charged, but on a justification resulting from a combination of circumstances. This falls expressly within the doctrine stated in Jones v. Gwynn, namely, “justification which admits the fact, and consequently reasonable cause of complaint.” Taking then the acquittal as it is, it consti- tutes a probable cause. But the acquittal is in itself illegal; and the illegality appears on the face of it. It admits the order to have been given, and that the prisoner might have obeyed it, and it does not state that it was an unlawful order: the term “justified” imports this; for it would be an ab- surdity to have declared him justifiable in not having done that which it was not in his power to do, or which was against law. It cannot be disobedience, where obe- dience is impracticable, or legally improper, for the term implies a crime; whereas there can be no criminality in omitting to do what is physically impossible, or forbidden by law ; and the acquittal would have been general if this had been the case. The court-martial have therefore justified disobedience to a lawful command, which is directly repugnant to the 22nd article, and to the oath which they took, The justification is therefore illegal, and consequently is the strongest case of probable cause, namely, the fact found and justified, but the justification not legal. It may not be true to the utmost possible extent, that the fact being found by the sentence estab- lishes a reasonable cause of complaint ; and perhaps cases may be imagined to the contrary. But the position is, that wherever the acquittal is not general, but the accused is expressly justified, ex vi termini the sentence imports that there ‘were appearances of guilt, and therefore pro- bable cause (2). In this case, the justification constituting a probable cause, and that justification being stated on the record, the Court cannot presume the want of what actually appears. (1) Reynolds v. Kennedy, 1 Wils, 232. Digitized by Microsoft® 681 Surron v, JOHNSTONE. 682 Surron vw CONSTITUTIONAL LAW. As to the third part of the charge, the sentence in part Jenxstoxe. admits, and in part denies, the facts it contains. The words are, “ That after the wreck of the fore-topmast had been cleared, the prisoner did his utmost to regain his station in the line of battle, and that the Isis was in her station about sun-set of that day.” The fact stated in the charge is therefore admitted, viz., that he fell astern, and did not keep up im the line of battle ; but they find a contradiction to the charge, that he was in his station about sunset. The words “did his utmost to regain,” here again form a justification of the fact, and there is not a full and perfect acquittal of this part of the charge. If it be said that, if for one part of the charge there was probable cause, for the other there was not, the declaration * is felo de se with respect to the former, but good as to the latter, in which case, after verdict, the jury must be pre- sumed to have given damages for that part only which is actionable ; as in the case of an action for words, where some words in the same count are actionable, and others are not: the answer to it is, that that part of the charge for which it is supposed there is no probable cause, because there is a complete acquittal, is necessarily connected with that part, for which there is probable cause; and they are in effect one entire charge. The order given was “to cut or slip immediately,” the sentence finds that the order was not obeyed; then a delay must necessarily have taken place, and the sentence is absolutely inconsistent with itself. For the delay, being a necessary consequence of the non-obedience, ought likewise to have been found and justified: but it is impossible that an order that could have been obeyed immediately, was not, and yet the non- obedience did not occasion delay. Suppose the charge of disobedience had been found, there could not possibly have | been an acquittal as to the delay and discouragement. The charges depend upon each other, and the only reason why they are stated separately, and the first not made Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 683 consequential to the second, was, that the charge might be — gurrox adapted to the different articles established by the Act of sounsrons. Parliament. The declaration itself does not deny that the order was given, nor aver that it was obeyed: but it does not state the order contained in the charge; it only admits, “that the captains, &c., were thereupon ordered by the plaintiff in error to cut or slip their cables, and put to sea after the squadron belonging to the French king.” It omits the word “immediately,” in which the materiality of the order consists. Then it is averred, “that the defendant during the whole of the 16th of April conducted himself as a gallant, obedient, and faithful captain, and did his duty as such to the best of his power, &c.;” and he denies that he “wilfully or willingly disobeyed orders or signals.” As to the other parts of the charge, a direct negative is put on the delay and discouragement: but as to the charge of falling a-stern, the denial is, “that he did it wilfully or willingly.” The declaration having averred that the defendant in error did his duty according to the best of his skill and ability, and the state and condition of his ship, alleges that such state and condition was known to the plaintiff in error, and therefore it is argued that, in this case, those facts, which on the sentence of the court-martial justify the defendant in error, namely, the circumstances proved of the state and condition of his ship, were within the know- ledge of the plaintiff in error when he preferred the charge ; and consequently that he accused the defendant in error, knowing him to be innocent. But admitting the plaintiff in error to have known all the evidence produced before the court-martial, the consequence does not follow that he knew the defendant in error to be innocent. Such facts existing as were primd facie criminal, the defendant could only be acquitted by a justification: but justification is a conclusion of law, resulting from facts in evidence, and therefore not for the prosecutor, but the Court to make. Digitized by Microsoft® 684 CONSTITUTIONAL LAW. Surrox This is clearly the doctrine of the common law of Eng- JouNstoxe, land (m). Suppose A. preferred an indictment against B. for murder, and the jury found it manslaughter, it would not be sufficient to maintain an action for a malicious prosecution against A. for B. to aver in his declaration that A. knew the facts from which the legal inference of man- slaughter was drawn, To delay and discourage the public service, and to dis- obey orders and signals, are offences against naval law ; but, like offences against the common or statute law, may be justified by circumstances, and in like manner that justification must be made by the tribunal constituted by the law to enquire into such offences. Therefore though the plaintiff in error might know all that is alleged in the declaration he did, still, these facts requiring a justifica- tion, it was his duty to bring the defendant in error before a court-martial; it being their province to determine whether the facts amounted to a justification. The same observations apply to the general averment in the declara- tion, namely, that the plaintiff in error knew the defendant to be innocent ; his innocence consisting in his justifica- tion, and that justification being matter of law. The fifth error assigned is, that damages have been assessed for the loss of prize money (7), whereas no such loss has happened by reason of the premises in the decla- ration mentioned. The declaration charges that, by means of his arrest, suspension, and imprisonment, the defendant in error has lost divers sums of prize money, to which he would other- wise have been entitled. This loss is therefore stated to be the consequence of certain premises in the declaration specified ; but as in point of law a different conclusion follows, the defendant in error has recovered for a damage which has not happened. The allegation of such loss from the premises mentioned is an averment of law on the (m) 22 Ass. 77; Fitzh. Nat, Brev. 114; Bro. Abr. Curone, pl. 89. (n) Ante, p. 668. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. record, and which therefore the judge at the trial was to decide, and not the jury; and consequently is now open for the examination of the Court. In point of fact this was sustained as a question of law both at the trial and on the motion in arrest of judgment, on both which occasions it was decided against the plaintiff in error. But such de- cision is against law. The title to any prize money can only accrue under his Majesty’s proclamation, which being referred to in the Prize Act (0), must be considered as part of the Act, and is therefore before the Court. The procla- mation expressly directs that all prizes shall be for the benefit of officers, &c., in our pay, and of seamen, mariners, and soldiers, on board our ships at the time of capture. The right to prize money under the proclamation consists in being in the pay of the Crown, as an officer or private man, on board the ship making the capture, at the time of the capture. It is not alleged in the declaration that the defendant in error, by means of any part of the conduct of the plaintiff, ceased to be in the pay of the Crown; nor is the loss of pay stated as part of the special damage: but on the contrary, by the 21st sect. of the stat. 22 Geo. 2, c. 33, it is expressly enacted in the case of such ships as should be lost, in which case a court-martial must be held to enquire into such loss, that if it shall appear by the sentence of the court-martial that the officers or seamen did their utmost to preserve or recover the ship, they shall be paid to the time of their discharge. Suspension does not in any case occasion the loss of pay; dismission alone can produce such an effect; and all that the declaration alleges is suspension, arrest, and imprisonment. . The next point is, whether the defendant in error was on board his ship at the time when the captures were made. But there is no averment that he was not; nor is it alleged that he was removed from his ship: the allega- tion is, that he was removed from his rank and post of (0) 21 Geo. 8, ¢. 15. Digitized by Microsoft® 685 Scrron Vv. JOHNSTONE, 686 CONSTITUTIONAL LAW. Burrow captain. The proclamation on which the claim to prize Jonnsrone. money depends, requires a return to be made to the Com- missioners of the Navy of all persons actually on board at the time of the capture, and their quality. There ought therefore to have been an averment that the defendant was not on board ; and the return should have been given in evidence under the Act. It is clear that the substance of what is alleged in the declaration is, that prizes were made’ by the Isis while the defendant in error was on board, to a share of which he would have been entitled, but for his arrest, suspension, and imprisonment. No case positively determines this to be law; and reason, policy, and natural justice, are the other way. It is a principle of natural justice that no man shall suffer for that of which he is innocent: and no inconvenience can follow from the acquittal of an officer placing him in that situation in which he would have been, if he had not been suspended and tried. On enquiry at the Admiralty no case has been found ; but the following note has been furnished as an extract from a manuscript book, respecting the proceed- ings of Admiralty and Ecclesiastical Courts, in the hand- writing of Sir E. Simpson (ip): “ Offence—undoubted rule in Admiralty and Ecclesiastical Courts, that persons sus- pended for an offence supposed, of which he is afterwards acquitted in proper Court, is entitled to all the interme- diate profits.” “Thus in case of capture of prize at sea, the officer in arrest being actually on board, and afterwards duly acquitted or restored to his station, shall share the prize money.” “So in civil causes in Admiralty—If a master turn his mate without just cause before the mast, and he sue for wages as mate for the whole time, he may recover, though he did not do the duty.” “So if a clergy- man be suspended ab officio et beneficio, and upon an appeal declared innocent, he will recover the profits of (p) Appointed Judge of the Con- Haydn, Book of Dignities, pp, 253, sistory Court, A.D. 1747, and Dean 254, of the Arches, A.D. 1758, See Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. the living.” “ Profits—Person suspended from an office entitled to intermediate profits, if innocent.” The defendant in error has therefore recovered damage on an allegation of law which is not true. ‘ The sixth error assigned is, that damages have been assessed for a delay in bringing the defendant in error to a court-martial (q), whereas, by the law of the land, an action will not lie for any such delay as is charged in the declaration. This error applies only to the 38rd and 4th counts, which are for a non-feasance, as the Ist and 2nd are for a mis-feasance. The declaration charges that the plaintiff in error wrong- fully and injuriously, and contrary to his duty as Com- mander-in-Chief, neglected and refused to hold a court- martial as soon as he reasonably and conveniently might. All the arguments of analogy, impolicy, inconvenience, im- plication of law, danger to the discipline of the navy, and negative usage, apply equally to these counts, as to the first and second. What is a reasonable and convenient time tohold a court-martial at sea or in port is an enquiry to which a jury are as incompetent, as to examine what constitutes a reasonable and probable cause for a prosecu- tion against naval law, and for the same reasons. There is no instance of such an action having hitherto been brought. But there is this further and most material objection. The Ist and 2nd counts are founded on the-innocence of the defendant in error, established by the sentence of a competent tribunal; the 3rd and 4th on the guilt of the plaintiff in error, without any charge having been preferred, or trial had, before any such tribunal. To support the 1st and 2nd counts it was necessary for the plaintiff to allege his acquittal ; to uphold the 3rd and 4th he ought, by a parity of reason, to aver the defendant’s conviction. The (g) Ante, p. 669. Digitized by Microsoft® 687 Surron v. JOUNSTONE, 688 CONSTITUTIONAL LAW. Sorrow neglect to hold a court-martial is a military offence, and Jomystoxs, ought to have been tried by a court-martial: but to bring an action for such neglect in the first instance is, in effect, to make a jury try the original charge. The Ist and 2nd counts aver that the defendant in error was acquitted : but there is no allegation in the 3rd and 4th that the plaintiff in error was convicted of the neglect charged. The same reasons would recur to prevent this action, even if the plaintiff in error had been tried for the supposed neglect by a court-martial, and acquitted thereof, as have been urged against the 1st and 2nd counts, founded upon the acquittal of the defendant in error. But, supposing these reasons to be over-ruled, this adda» tional objection will remain, which is also peculiar to the 3rd and 4th counts. The declaration charges, 1st, that it was the duty of the plaintiff in error, as Commander-in-Chief, to have held a court-martial as soon as he reasonably and conveniently could. 2ndly, That he might have held a court-martial, there being, during the whole suspension, a competent number of officers belonging to the squadron to compose such Court. Now this averment is insufficient; and the insufficiency is of the substance of the. action. It is an action against a public officer for a breach of duty in the execution of his. office; and it is of the substance of the action to state in what that breach consists. To have stated that it was his duty to have held a court-martial as soon as he reasonably could, would not have been sufficient, without alleging that he had the power; and the breach of duty consisting in not using the power he had, that power must be expressly shown to prove the breach of duty. To see whence the power to hold courts-martial noust be derived, recourse must be had to the stat. 22 Geo. 2, c. 33, s. 6, which gives the Lords of the Admi- ralty power to grant commissions to any commanding officer to call and assemble courts-martial, consisting of commanders and captains. By this it appears that the Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 689 - power of assembling a court-martial is not necessarily Svrtx incident to the office of Commander-in-Chief, but must be Jouystown, derived from a commission to be granted by the Commis- sioners of the Admiralty. The averment is therefore bad, that it was his duty as Commander-in-Chief. The plaintiff in error could not, within this clause, have the power to hold a court-martial without such commission ; and, if so, it ought to have been expressly averred, that he had such commission. To enable him to hold a court-martial two things were necessary; 1st, That he had a commission, giving him such authority ; 2ndly, That there were a com- petent number of officers, The second is alleged, but not Tike first ; so that it is not shewn that he had the power, for there might be a competent number of officers, and yet be no commission conferring authority to hold a Court. Section 9 of that statute, which only provides for the accidental meeting of five ships in foreign parts, is not applicable to the present case. The declaration alleging that it was the duty of de- fendant as commander of a squadron to have assembled a court-martial, and the power to hold such a court depend- ing upon the law of the land, the Court must look to the Act of Parliament to find whether, as commander, it was his duty ; and the law being clearly otherwise, and that which confers the authority, namely, a commission, not being alleged, there is no authority shewn. For the defendant in Error it was argued as follows :-— Argument for the de- The 1st error assumes the action to be maintainable, if fondant in the plaintiff in error maliciously, and without reasonable ~ or probable cause, did arrest, suspend, and bring the de- fendant to trial: but it alleges that a reasonable and probable cause appears on the face of the record, This probable cause is argued to appear on the record from the charge, and the manner in which the defendant in error appears to have been acquitted of it, namely, not from the facts on which it was framed being negatived by the sentence of the Court, but from a justification of his YY Digitized by Microsoft® 690 CONSTITUTIONAL LAW. Svrrox conduct having been made to appear from circumstances Joussrove, shewn to the Court in evidence’: whence it is argued, that the existence of the facts on which the charge was founded, leaves probable cause. But the answers to that argument are, first, that no probable cause for any of the charges does appear upon the record from the language of the sentence of the court-martial, by which the defendant in error is acquitted of them ; much less, when coupled with the antecedent part of the record. Secondly, that in the utmost latitude of construction of the language of the sentence, and the utmost extent of the argument founded on it, the probable cause could extend but to one of the charges; the facts of the others being expressly negatived. And as the action would have been maintainable for the other two, independently of the third, the Court will, after verdict, intend that the jury gave their damages for those charges which were actionable. First. To support the present action, there must be malice express, or implied, and a want of probable cause. What is malice express cannot be misunderstood. Malice implied can only be implied.from circumstances ; and the total want of a probable cause is evidence of malice. If it can be shewn that a prosecutor knew the party prosecuted to be innocent, prosecuting under that impression is deci- sive proof of malice; for it could not be from public motives. What therefore is probable cause is the great’ matter for consideration. The definition of probable cause is such conduct in an individual accused as will warrant a legal and reasonable suspicion of offence against the law in the mind of the person accusing, so as that a Court can infer a prosecution to have been taken up on public motives. It is a mixed question of fact and law. What circum- stances existed, and what knowledge the prosecutor had of them, is a question of fact: but when the facts are known, and the mind of the prosecutor is laid open to the jury by evidence, then, whether it were a reasonable or unreasonable cause of proceeding is a question of law. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. It is a clear maxim, that no man who prosecutes another for a crime, believing him to be wholly innocent of it, can, if the party be acquitted, lay hold of a technical probable cause from future circumstances. It matters not whether the party prosecuted be acquitted of the offence from the facts of the charge not being proved, or from a justifica- tion, taking them to exist, if thé prosecutor were acquainted with the fact, and the just effect of such justification arising out of it before he proceeded. As for instance, if a Commander-in-Chief, whose signal had been disobeyed, knew that the officer disobeying it did it from such motives as made the disobedience perfectly justifiable in the officer, and was convinced of his recti- tude ; such commander could not suspend and try him, merely because the defence (which is known to him) must come from the officer himself in the shape of a justifica- tion. The plaintiff in error must therefore establish that there is sufficient on the face of the record to shew posi- tively that he acted upon a reasonable and legal ground of suspicion of guilt, to entitle him to legal protection for having prosecuted, notwithstanding his malicious motive, which stands admitted by the averment, stating that he did it maliciously. It will not be sufficient that it should stand indifferent on the sentence, whether there was pro- bable cause for one charge, or not; for the declaration having averred that the plaintiff im error brought the defendant to trial without any reasonable or probable cause, and the jury having found it, the want of that probable cause, so distinctly averred, must be taken to exist, unless the record contain matter repugnant to such averment. And the record must be construed, like all other legal instru- ments, wt res magis valeat quam pereat; the sentence must be reconciled with the averment, if they be recon- cilable in language. In order to determine whether there be any matter directly repugnant to the averment, it is necessary to examine the record, viz., the two first counts, to which only the objection applies. The declaration y¥xy2 Digitized by Microsoft® 691 Svurton », JOHNSTONE. 692 SOnTON CONSTITUTIONAL LAW. avers that although the defendant in error during the JonNSTONE. whole of the engagement, &c., conducted himself as a gallant officer, and did his duty to the best of his power, considering the state of his ship, and was never guilty of any of the charges particularly specified, yet the plaintiff in error well knowing the premises (namely, the innocence and merit of the defendant in error, which was antecedently averred in the declaration), but, maliciously, and without any reasonable or probable cause, suspended, arrested, imprisoned and brought him to trial for delaying and discouraging the public service, for disobeying the commodore’s verbal orders and public signals, in not causing the cables of the Isis to be slipped immediately, &c., and also for falling astern, &c., of which the declaration had averred him to be innocent, and innocent within the knowledge of the plaintiff in error. The first part of the sentence, namely that he did not delay and discourage the public service, is an express negative, not only of the first charge in form, but of all in substance ; for if the defendant in error did not delay or discourage the public service, he could not be guilty of any of the charges. The second part of the sentence, namely, that, from the circumstances proved of the con- dition of the Isis, the defendant in error was justifiable in not cutting or slipping his cable immediately, means, that, the defendant in error having acted rightly in not imme- diately cutting or slipping his cable, his not doing it was not in naval law or discipline a disobedience. It makes no difference whether the impossibility of obeying be physical or moral. The conduct of the defendant in error cannot be considered as a disobedience of the commodore’s orders, but an obedience to the spirit, and a legal and justifiable dispensation with the strict form of the order. It was so considered by the final adjudication going to all the charges ; for the court-martial honourably acquitted him of the whole of the charge. They considered justifiable conduct as opposed to disobedience. But even taking it Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 693 to be a disobedience completely justified, not excused, and 8vrr0x that the plaintiff in error knew the fact constituting the Jousroxe. justification, it is sufficient. And the Court will not now presume that the condition of the ship, which constituted the justification, or its effect, as a justification, was un- known to the plaintiff in error. For the record excludes the presumption of ignorance. It is not necessary for the defendant in error to shew from the declaration that the commodore had not probable cause; but the plaintiff in error must shew that, on the record, he certainly had. For there is a positive averment that he had not, and the whole record must be construed together if reconcilable. In Reynolds v. Kennedy, there was no averment that the defendant had no probable cause, or that he well knew the premises; and the judgment in that case was very proper; for though the information was false, yet the defendant might have had probable cause. There, non constat that the charge was false within the defendant’s knowledge ; here it is positively averred ; in that case there was a condemnation ; in the present a direct acquittal. And the present record contains those averments for the want of which the judgment was arrested in that case. The second answer to the argument for the plaintiff in error is, that the probable cause (supposing the first answer to be unfounded) extends at the utmost to the second charge, and leaves the first and third defenceless; the facts of them being negatived. And after verdict the Court must intend that the damages were given for them only. Wherever the injury is charged to have been com- mitted at one and the same time, and the matters, in which such injury is charged to consist, appear, some to be action- able, and others not, the Court will presume after verdict that the damages were given for the actionable part. As to the second error. It cannot be denied as a general proposition that whenever any subject of England suffers damage from any illegal or injurious act of another, short of felony, the law gives him a remedy by civil action, and Digitized by Microsoft® 694 CONSTITUTIONAL LAW. Surrex without any previous conviction of the act. And in this Joaxsrone. case it is not contended that the injurious act complained of is a felony. If, therefore, this action is not maintainable in principle or substance, supposing it properly brought in point of form, it is an exception to a general rule of law. The general rule of law supporting the action, the exception must be established by the plaintiff in error ; and that exception must go the length of saying that an officer in the navy forfeits or voluntarily surrenders all the civil rights belonging to other subjects, when the injury proceeds from a superior officer, under colour of disci- pline; even although the act done be admitted to have been done in opposition to discipline, in violation of naval duty, maliciously, and without cause. This can only be established by a current of direct authorities, or the silence of precedents, which shew that the analogies and the policy of the law warrant the conclusion. As to the first, no case, or even dictwm, can be shewn, to prove that an action for a malicious prosecution cannot be maintained against an officer for the abuse of the authority delegated to him by the king’s commission. As to the latter, it has been contended that the action cannot be supported on account of the dangerous conse- quences to the public, and by analogy to other cases. It is true, that the public is deeply interested in protect- ing all righteous prosecutors of civil offences from the consequences of mistaken judgments. But such protec- tion is sufficiently afforded to all subjects by. the arduous proof thrown on plaintiffs seeking this sort of redress; and not by holding out a previous indemnity to malignity, cruelty, and injustice. The principle contended for only protects the judges of the king’s courts of record (7). It is obvious with respect to them: there is no court equal to the trial of the supe- rior judges of the realm for facts done in judicature. But the plaintiff in error cannot be considered in the situation (r) Miller v. Seare, 2 W. Bla. 1141. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 695 ofajudge. If the question had been, whether an action auanpy for a malicious judgment would lie against a member of JOuNSTOXE, a court-martial, acting within his jurisdiction, there might have been some analogy ; but the plaintiff in error is to be considered rather in the light of a prosecutor than a judge. As to grand and petit jurors in criminal cases, their exemption arises from a jealousy of prerogative; it would have been dangerous in the extreme to have allowed an attaint for the king; and it would have been impossible to have given an attaint for the subject, and none for the king. But in civil cases an attaint lies. No case can be cited to shew that the Attorney General would not be civilly answerable for a corrupt abuse of discretion; the argument is proving ignotum per ignotius; and on principle and strong analogy he is answerable. The protection given to persons acting for the public is in no cases extended farther than to officers concerned in the revenue, who are frequently obliged to act on slender suspicions, and would otherwise be open to endless prose- cutions (s). By analogy to those actions which have been brought against governors of provinces, islands, and garrisons, military officers, and even officers of the navy, it is clear that this action is maintainable. The admission that actions of trespass vi et armis may be maintained for acts of officers in the navy or army, not even acting from malice, but mistaking the extent and limits of their authority, cuts up the great question of policy by the roots. It was so considered by the Barons of the Exchequer when judgment was given below. The action of trespass supposes the act complained of to be illegal, and, if the defendant justifies, the whole burthen of proof is thrown on him; for he must make out his justification. In this kind of action the plaintiff is bound to state his whole case on the record ; and, unless he proves (s) Cooper v. Booth, 3 Esp. 185. Digitized by Microsoft® 696 CONSTITUTIONAL LAW. Surox every part of it, he cannot recover. But at all events the Jouvstoxz, form of the action does not alter the nature of the thing, for which an action is maintainable. The action on the case is brought for one of two reasons, either that the injury is consequential, or, if direct, that the act, though legal, was from a bad motive. In the present case the bad motive is the gist of the action. Every principle which the court laid down in the case of Fabrigas v. Mostyn (2) is applicable to the present. And the language made use of by Lord Mansfield in Wall v. M\Namara (u) is particularly strong. That was an action brought by the plaintiff, as captain in the African corps, against the defendant, as Lieutenant Governor of Senegambia, for imprisoning him for nine months at Gambia in Africa, The defendant pleaded the general issue, intending to ‘justify the imprisonment under the Mutiny Act for dis- obedience of orders. At the trial it appeared that the imprisonment, which at first was legal, namely, for leaving his post without leave from his superior officer, though in a bad state of health, was aggravated with many circum- stances of cruelty. Lord Mansfield, in summing up to the jury, said, “In trying the legality of acts done by military officers, in the exercise of their duty, particularly beyond the seas, where cases may occur without the possibility of application for proper advice, great latitude ought to be allowed, and they ought not to suffer for a slip of form, if their intention appears by the evidence to have been upright ; it is the same as when complaints are brought against inferior civil magistrates, such as justices of the peace, for acts done by them in the exercise of their civil duty. There the principal inquiry to be made, by a court of justice, is, how the heart stood? And if there appears to be nothing wrong there, great latitude will be allowed for misapprehension or mistake. But on the other hand if the heart is wrong, if cruelty, malice, and oppression (é) Cowp. 161 ; ante, p. 688, (u) Ante, p. 661 (g). Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. appear to have occasioned or aggravated the imprisonment 697 Surton v, or other injury complained of, they shall not cover them- Jonystoxs selves with the thin veil of legal forms, nor escape, under the cover of a justification the most technically regular, from that punishment which it is your province and your duty to inflict on so scandalous an abuse of public trust. It is admitted that the plaintiff was to blame in leaving his post. But there was no enemy—no mutiny—no danger. His health was declining, and he tsusted to the benevolence of the defendant to consider the circumstances under which he acted. But supposing it to have been the defendant’s duty to call him to a military account for his misconduct, what apology is there for denying him the use of the common air in a sultry climate, and shutting him up in a gloomy prison where there was no possibility of bringing him to a trial for several months, there not being a sufficient number of officers to form a court-martial ? These circumstances, independent of the direct evidence of malice, as sworn to by one of the witnesses, are sufficient for you to presume a bad malignant motive in the de- fendant, which would destroy his justification, had it even been within the powers delegated to the defendant by his commission” (a). So that where an officer. makes a slip in form, great latitude ought to be allowed ; but for a corrupt abuse of authority, none can be made. Yet, according to the argument for the plaintiff in error, no latitude is afforded to the first, and absolute impunity to the last. Swinton v. Molloy (y), was an action of false imprison- ment brought by the plaintiff as purser of the Trident man-of-war, against the defendant, who was his captain. The defendant pleaded a justification for a supposed breach of duty. But, it appearing in evidence that the defendant had imprisoned him for three days without inquiring into (z) In this case there was a verdict (y) Sittings at Westm. after Mich. for the plaintiff, damages 1000/. T. 1783. Digitized by Microsoft® 698 CONSTITUTIONAL LAW. swrron the matter, and had then released him on hearing his Jouxsroxe. defence, Lord Mansfield said, that such conduct on the part of the defendant did not appear to have been a proper discharge of his duty, and therefore that his justification had failed him under the discipline of the navy. But suppose that Captain Molloy, instead of releasing the plaintiff on hearing his defence, had kept him confined till he came to England, and had then made a charge against him in order to justify himself, the same policy which suffered an action of false imprisonment in that case for the incautious, though upright, conduct of the defendant, would have supported an action on the case founded on cool deliberate malice and injustice, not covered by a pretence of discipline. The analogy between the present case and Sutherland v. Murray (2) is very strong to shew that a person repre- senting the king in all functions, civil and military, where the act complained of is expressly legal, shall answer for an abuse of his authority. There the declaration stated that the defendant was Governor of Minorca, and Vice-Admiral of the island, that the plaintiff was judge of the Vice- Admiralty Court, with all fees, emoluments, &, and that the defendant, to injure and oppress him, maliciously, and without any reasonable or probable cause, suspended him from his office, per quod he lost his profits, &c. On the evidence it appeared that General Murray had legal authority to suspend till the king’s pleasure was known ; that he had so suspended him, and directed the Secretary of State to take the king’s pleasure on it. The General professed himself ready to restore him if he made a par- ticular apology; the king approved of the suspension unless the terms were complied with. There the plaintiff recovered 5000/., and it never occurred to any lawyer that there was any pretence to move in arrest of judgment. (2) Sittings at Westm. after East. the damages were given on the second 7, 1783. The action was twice tried, trial. the first verdict being imperfect ; and Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. The gist of the action was admitting the legality of the suspension thus confirmed, but complaining of the de- fendant’s exercise of his original authority, and his mali- cious and false representations, by which the suspension had been confirmed. The argument on the incompetency of juries to try questions of this nature, is not entitled to much weight, when it is considered that almost all the injuries which one individual may receive from another, and which are the foundation of numberless actions, involve in them questions peculiar to the trades and conditions of the parties: and if this argument were well founded, such actions could never be tried. In an action against a surgeon for ignorance, the question may turn on a nice point of surgery; but the jury must attend to the wit- nesses, and decide according to their number, professional skill, and cause of knowledge; for cuilibet in sud arte credendum est. In an action on a warranty of a life ina policy, physicians must be examined. So for injuries on streams to one mill by another, millwrights and engineers must be produced. Many questions even of navigation must occur, which must necessarily be decided by a jury; as in a case under the Hovering Act (@) when unavoidable necessity is to exculpate ;—so in cases of deviation on policies of insurance ;—or in cases of sea-worthiness ;—or when one ship runs down another at sea by bad steering. Yet those actions are much more difficult, because they depend solely on questions of navigation. But the gist of the present action is malice, and want of probable cause, which cannot involve any question of navigation and sea- fighting ; and the present verdict was not founded on any such evidence. But if jurors are not competent to try such a question, the plaintiff is without any remedy at all. A court- martial can give no redress to the injured party. As to (a) See 24 Geo. 3,¢. 47. Digitized by Microsoft® 699 Surron Vv JOHNSTONE. 7 00 CONSTITUTIONAL LAW. surrox Le Caum v. Eden, which was cited for the plaintiff in error, Jonnstoxe, there the imprisonment complained of was an immediate consequence of seizing a vessel as prize. And the question of prize or no prize, and its immediate consequences, are notoriously of Admiralty jurisdiction. But the Court, in that case, went principally on the Admiralty having juris- diction to redress the parties in damages. As to any objection that may arise to an action of this sort before a defendant has been tried and convicted by a court-martial under the 33rd article of war ; that argument holds in no case short of felony. For if it were to prevail in the present case, it might, with the same reason, be extended to many others ; as, for instance, no action would lie for maliciously holding to bail without a previous con- viction for perjury. The extreme difficulty which stands in a plaintiff's way, in this kind of action, is an answer to the supposed im- policy of entertaining it. The knowledge that no action lies for any injury, except from malice and injustice, while it can never check the conduct of good men, may form a check on the bad. But even if it be impolitic to entertain actions of this nature, it is a legislative, not a judicial, duty to repel it. As to the 8rd error. The loss of prize-money for prizes taken while Captain Lumley (who was appointed to suc- ceed to the defendant in error) commanded the Isis, during the suspension of the defendant in error, is charged upon the record as a legal consequence of that suspension. This is assigned as error, and it is alleged that that suspension did not carry that legal consequence ; the defendant in error being entitled by a species of jus postliminit (b) to all those rights which would have belonged to him if he had never been accused, suspended, and tried. But the defendant in error can have no prize-money but what he is entitled to under the king’s proclamation. Now the pro- clamation gives the captain, who shall be actually on board (b) Vide Sandars, Inst. Just. pp.133, 184. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. on the taking of any prize, three-eighths. The term 701 Surron “actually on board” has repeatedly received a legal con- Jounstone. struction. It does not mean merely personally on board ; but on board in the actual station and capacity in which the prize-money is claimed. And therefore the proclama- tion requires the captain and other officers to make out and subscribe prize lists, stating the quality of the persons on board, and to transmit them to the commissioners of the navy. The real meaning of the proclamation in this particular underwent a solemn discussion in Wemys v. LInnzee (c), where it was determined, by the Court granting a new trial, that a captain of marines, who happened to be on board a frigate when she took a prize, but did not belong to her complement, should share only as a pas- senger. If that decision be right, the defendant is not entitled to any part of the prizes taken after his suspension. For Captain Lumley was to all intents and purposes captain of the Isis, and actually on board as captain when the prize was taken. Indeed, according to the doctrine of the jus postlimimit, the defendant in error is entitled to his pay as well as prize-money during his suspension ; in which case Captain Lumley had no title to receive it; for both could not. But as the plaintiff in error undoubtedly had authority to appoint Captain Lumley to the office of captain with all the emoluments, the consequence is un- avoidable, that Captain Lumley was entitled, during the whole time he commanded the Isis, to all the advantages which the law gives to the captain of a ship, and conse- quently to the prizes in question. Neither does it appear on the record that, when the prizes in dispute were taken, the defendant in error was actually on board; and if he were not on board, he could not share even if captain. No jus postliminti therefore can attach in the present case, without destroying the effect of Captain Lumley’s commis- sion both as to prize-money and pay, and reducing him to lose both in every station. For he had left his former (ce) Dougl. 324, Digitized by Microsoft® 702 CONSTITUTIONAL LAW, Surrox ship, and could not share there because he was not on JOHNSTONE, board, and his place was supplied ; and if he did not take prize-money as captain of the Isis he could not share in any other capacity on board her, nor in any capacity at all on board any other ship in the squadron. So that he would suffer an actual punishment and loss from an ap- pointment to a legal commission ; for the pay and prize- money cannot belong to both. As to the 4th error. It cannot be contended that, because an officer is not amenable to a court martial after three years, no action can be maintained against a com- manding officer for delaying contrary to his duty to bring an inferior officer to trial within that time. The gist of the two last counts, as well as of the others, is mala fides —oppression and injustice in the exercise of a legal discre- tion. The action is not therefore trespass, because the law authorizes the act; but it does not protect malam fidem in the exercise of legal authority. It would be a harsh construction of a statute of limitation in favour of officers subject to trial, to engraft upon it a right in superior officers to hold with impunity an inferior three years in confinement disgraced and suspended, when discipline and convenience justified a trial and enlargement immediately. If a commanding officer has this time in strictness of law, it may be an answer to an action of trespass, which calls the mere legality of the act in question, but is no answer to an action which impeaches the motive. For although a commander may have a right to detain an inferior officer accused in custody for three years, it may be, under cir- cumstances, highly injurious and contrary to his duty to do so. The jealousy of the law in that respect is strongly marked in the Habeas Corpus Act, and the regular com- missions of general gaol delivery. The 3rd and 4th counts sufficiently charge malam fidem. And there is no precise form necessary in an action on the case, as in a writ of conspiracy. In Jones v. Gwynn, Parker, C. J., said, “a formed action must be strictly pur- Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. sued: but an action on the case allows a latitude, and 703 Surron makes nothing necessary but what the reason of the case Jounsrows. makes so.” Surely then if a person maliciously contriving to injure his neighbour, acts wilfully, injuriously, and con- trary to his duty, that is in reason a charge of malice, and the action on the case requires no technical form. The jury having found that an earlier trial was reasonable, con- venient, and just, and that the defendant contrary to his duty, wilfully, and injuriously, withheld it, the Court cannot reverse the judgment for error without saying that, because the exigency of naval conjunctures may render it necessary for a Commander-in-Chief to keep an inferior officer suspended and in confinement for trial for three years, he is not responsible to civil justice for running to the end of that time, when humanity, justice, duty, and discipline, called for an immediate trial. In answer to the 5th error, that it is not shewn upon the record that the plaintiff in error had authority to assemble a court-martial, which renders the charge of delaying it defective.—In the first place it is not assigned specially as error; but even if it had been it deserves no weight in this stage of the proceeding. The third count, after stating the charge, the arrest, and suspension until a court- martial could be had, avers, that although it was the duty of the said George, as such commander, to hold the court as soon as he reasonably and conveniently could; and although the defendant as Commander-in-Chief might reasonably and conveniently have held the court while the squadron continued at Port Praya, yet the defendant, well knowing the premises (that is, well knowing that a court might reasonably and conveniently be assembled, and that it was his duty to hold it) but contriving, and wrongfully, injuriously, and maliciously intending to aggrieve, oppress, and injure the plaintiff, &., he, the defendant, wilfully, wrongfully, injuriously, and contrary to his duty, omitted, neglected, and refused, to hold a court- martial at Port Praya, &c., and thereby wilfully, wrongfully, Digitized by Microsoft® 704 CONSTITUTIONAL LAW. Serron injuriously, and contrary to his duty, kept the plaintiff Jounstone. imprisoned and suspended until his trial and acquittal in England, by which, &c. On this record it was argued for the plaintiff in error that it does not appear that he had authority to hold a court-martial ; which want of power must arise either from his not having a commission to hold one, or that there was not a sufficient number of officers. But this objection is raised after a verdict. And the rule after verdict is, that where the plaintiff wholly omits to set forth the gist of his action or his title to recover, it is an incurable defect in substance ; but if he set it forth generally, though without those circumstances which go to its formation and constitu- tion, such circumstances as are necessary to establish the gist of the action, which is generally alleged, are to be pre- sumed to have been proved at the trial, as otherwise the plaintiff must have been nonsuited. In the present case it is a strained presumption, and contrary to the fact, that the plaintiff in error had no authority to hold a court-martial. Upon this record the Court is bound to take notice of the situation of the parties. And it is scarcely possible to suppose that the Lords of the Admiralty would neglect to insert in the commission of a Commander-in-Chief the usual power to hold courts-martial. for it is so much a matter of course to give a Commander-in-Chief that power, that in case of his death, or removal, his successor succeeds to that power under the 22 Geo. 2, c. 33, s. 6. Besides, the general averment, that the plaintiff in error wrongfully, wilfully, and contrary to his duty, omitted to hold the court, made it necessary for the defendant in error to shew that it was the commodore’s duty to hold it, which could not be done without proving that he had authority to hold it, and that there was a sufficient number of officers with him to enable him to exercise his authority. It falls therefore within the principle of all the cases cited. If he had neither authority nor numbers, his act was Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, 705 neither wrongful, wilful, nor contrary to his duty ; neither Bunion could the averment be true, that he reasonably and con- Jonustovs, veniently could have held it. As the verdict therefore is general, the Court cannot but presume that those facts were proved, without which not a single averment in the 8rd count could have been established. The following are the reasons on which the opinion of Reasons fer Lord Mansfield, C. J., and Lord Loughborough, C. J., in this the iede- case was founded; as reported to the Lord Chancellor. On the 2nd day of February last we heard this cause argued by counsel on both sides; and upon the 4th instant we heard it again fully argued by the counsel for Captain Sutton the defendant in error. The record is printed, and in every body’s hands ; there is therefore no occasion to state it. The general question is, whether, upon the face of the declaration, after a verdict, sufficient matter appears to show that the plaintiff ought not to recover ? There is no similitude or analogy between an action of trespass, or false imprisonment, and this kind of action, An action of trespass is for the defendant’s having done that, which, upon the stating of it, is manifestly illegal. This kind of action is for a prosecution, which, upon the stating of it, is manifestly legal. The essential ground of this action is, that a legal prose- cution was carried on without a probable cause, We say this is emphatically the essential ground; because every other allegation may be implied from this; but this must be substantively and expressly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the de- fendant is also implied. From the most express malice, the want of probable cause cannot be implied. A man, from a malicious motive, may take up a prose- LZ Digitized by Microsoft® 706 : CONSTITUTIONAL LAW. Sorrow cution for real guilt, or he may, from circumstances which Jouxstoxe. he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action (e). After a verdict, the presumption is, that such parts of the declaration, without proof of which the plaintiff ought not to have had a verdict, were proved to the satisfaction of the jury. In this case, to support the verdict, there was nothing necessary to be proved, but that there was no probable cause, from whence the jury might imply malice, and might imply that the defendant knew there was no probable cause. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to shew it probable, or not probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law; and upon this distinction proceeded the case of Reynolds v. Kennedy (f). Thus much we think fit to premise in general, as a mate- rial introduction to the discussion of the question upon this record. The objections made by Jobnstone, the defendant in the cause, come under two general heads :— I. Supposing this kind of action to lie. II. That it does not lie. I. Supposing it to lie, the defendant has made the following objections :— To the first count. 1st Objection, That there appears upon record a pro- bable cause in law. 2nd Objection, That the declaration alleges, by way of special damage, as a legal consequence of the plaintiff’s suspension, that he lost his share of the prize-money acquired by the ship during his suspension; which the defendant says is not true. (e) See Warren v. Matthews, 6 Mod. 78. (f) 1. Wils. 232, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. - ( 07 Upon the 3rd count it is objected, Ist, that it is not Sertox alleged that the defendant had a commission to hold courts- Jouwsroxe. martial, and as Commander-in-Chief he had no such authority. 2ndly, That not holding a court-martial sooner, if any, is a mere military offence, contrary to the duty of the defendant, as commander; and the guilt has not been tried by any military tribunal, and in this respect is like the case of Barwis v. Keppel (q). As to the Ist objection under the Ist head ; The charges against the plaintiff before the court- martial were formally two; but in reality and effect, oné ; to wit, the disobedience of the defendant’s verbal orders, public signals, &. The.2nd charge is a consequence of the Ist, viz., for delaying and discouraging the public service on which hé was ordered on the 16th of April, 1781 ; which delaying or discouraging arose from his not doing as he was ordered, no other instance being alleged. The flight, the signals, the attempt to pursue, the enemy sailing off, are all admitted by the declaration. That the orders were, in fact, not obeyed, seems admitted too ; for the plaintiff only avers, “that he did not wilfully and willingly disobey ;” but the sentence of the court-martial shews clearly that the orders were disobeyed, and that the plaintiff justified himself by a physical impossibility to obey. Nothing less could be a justification. A subordinate officer must not judge of the danger, propriety, expediency, or consequence of the order he receives: he must obey; nothing can excuse him but a physical impossibility. A forlorn hope is devoted—many gallant officers have been devoted. Fleets have been saved, and victories obtained, by ordering particular ships upon desperate services, with almost a certainty of death or capture. The question then tried by thé court-martial was, (g) 2 Wila, 814. 222 Digitized by Microsoft® 708 CONSTITUTIONAL LAW. Sormox whether the plaintiff was justified in not obeying by Jonystone. physical impossibility ? Now there cannot be a question, more complicated. It involves the precise point of time; the state of the wind; the state of the ship; the position, of both fleets. Jt requires great skill in navigation. There is no question likely to create a greater variety of opinions. It is possible, the court-martial at Portsmouth, at a great distance of time, may have thought it was impos- sible to obey ; and yet the whole squadron, who saw the action, might be of a different opinion. We use it only as a possible supposition ; but we are warranted to make it, by a matter of fact, which it seems came out upon the trial of this cause. In the printed notes of my Lord Chief Baron’s argu- ment upon granting a new trial, his Lordship says, “that all the sea officers, those examined for the plaintiff, as well as those who were examined for the defendant, swore they should have held themselves bound to obey the orders given, if they had been in the situation in which the plaintiff was.” Under all these circumstances, it being clear that the orders were given, heard, and understood; that in fact they were not obeyed; that, by not being obeyed, the enemy were enabled the better to sail off; that the de- fence was an impossibility to obey—a most complicated point—under all these circumstances, we have no diffi- culty to give our opinion, that, in law, the commodore had a probable cause to bring the plaintiff to a fair and impartial trial. This probable cause goes to both parts of the charge; the disobedience, and obstructing the public service. But if it went to the disobedience only, it would equally avail the defendant in this cause. For it is not like the case put of a plaintiff recovering, where he lays, in the same sentence, words actionable, and words not actionable. Here the defendant alleges a justification of the arrest, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. suspension, and trial. If his justification be allowed, there is an end of the action. If the defendant were right in trying the plaintiff for disobedience, the adding delay, and obstructing the public service, were only two or three superfluous words, which created no additional trouble, vexation, or expense; and this action is not adapted to so trifling a complaint. 2nd objection under the 1st head. The right to the prize-money in this case is, we under- stand, still in litigation between the plaintiff and others, who are no parties in this cause; and therefore, without necessity, we choose to give no opinion upon it: and if our opinion is right upon the other points, this is not necessary. The 8rd count is upon a ground collateral to the prose- cution. It is for delaying to hold a court-martial for the trial of the plaintiff, while the squadron under the defen- dant’s command continued abroad, contrary to the duty of his office as Commander-in-Chief. Objections have been made to the plaintiff’s recovering upon this count ; 1st, That it doth not appear upon the declaration, that he had authority to hold a court-martial. 2ndly, That the offence, as charged, is merely military, and contrary to the discipline of the navy; and the defen- dant has not yet been tried for it by a court-martial. 3rdly, Alleging loss of prize-money as a special damage. We have already said why we decline giving any opinion upon this. As to the Ist, the averment is, that by law it was inci- dent to the duty of his office to hold a court-martial: now the contrary is manifest from the statute law of the land. There is no fact to be tried by the jury. The allegation is a proposition in law, and stands upon the record. It is false, and therefore the basis of the charge, that the defen- dant had authority, is wanting; and this objection we think fatal. Digitized by Microsoft® 709 Surrox vw JOHNSTONE. 710 CONSTITUTIONAL LAW. Surry As to the 2nd objection; the delay is charged to be JOHNSTONE. contrary to the defendant’s duty as Commander-in-Chief. ~~ ‘There is no rule of the common or statute law applicable to this case. It is a mere military offence. It is the abuse of a military discretionary power; and the defendant has not been tried for it by a court-martial. A court of common law, in such a case, cannot assume an original jurisdiction. It is like the case of Barwis v. ‘Keppel. This objection we think fatal. This is our opinion upon the Ist, 2nd, 3rd and 4th counts, supposing an action for a groundless prosecution before a court-martial to lie. II. But the great and important question now brought into judgment for the first time, is, whether such an action can lie ? The occasion has often arisen at different periods of time, when men of the fleets, put upon their trials before a court-martial, have thought the charge without a pro- bable cause, and have warmly felt the injury of such an act of malice or oppression : yet, till this experiment, it never entered into any man’s head, that such an action as this could be brought; consequently there is no usage, precedent, or authority, in support of it. This case stands upon its own special ground. The wisdom of ages hath forméd a sea military code, which in the last reign was collected and digested into an Act of Parliament. The great object of this code is, that the duty of every man in the fleet shall be prescribed and regulated by rules and ordinances adapted to sea military discipline ; and that every man in the fleet for any offence against his duty in that capacity or relation, shall be tried by a court-martial. If a man be charged with an offence against the articles, or, where the articles are silent, against the usage of the navy, his guilt or innocence can only be tried by a court-martial. A Commander-in-Chief has a discretionary power, by Digitized by Microsoft® RELATION OF THE SWBJECT TO THE EXECUTIVE. 711 this military code, to arrest, suspend, and put any man of Sorrow the fleet upon his trial, A court-martial alone can judge Jonvstows. of the charge. But this military Jaw hath foreseen that though it is necessary to give superiors great discretionary power, it may be abused to oppression; and therefore has provided against such abuse by the 33rd article. A commander who arrests, suspends, and puts a man on his trial without a probable cause, is guilty within that article: but the same jurisdiction which tries the original charge, must try the probable cause; which in effect is a new trial. And every reason which requires the original charge to be tried by a military jurisdic- tion, equally holds to try the probable cause by that jurisdiction. The salvation of this country depends upon the disci- pline of the fleet ; without discipline they would be a rabble, dangerous only to their friends, and harmless to the enemy. Commanders, in a day of battle, must act upon delicate suspicions ; upon the evidence of their own eye; they must give desperate commands; they must require instantaneous obedience. In case of a general misbeha- viour, they may be forced to suspend several officers, and put others in their places. A military tribunal.is capable of feeling all these cir- cumstances, and understanding that the first, second, and third part of a soldier is obedience. But what condition will a commander be in, if, upon the exercising of his authority, he is liable to be tried by a common law judicature ? If this action is admitted, every acquittal before a court-martial will produce one. Not knowing the law, or the rules of evidence, no com- mander or superior officer will dare to act ; their inferiors will insult and threaten them. The relaxation and decay of discipline in the fleet have been severely felt. Upon an unsuccessful battle, there Digitized by Microsoft® 712 Sorron vw JOHNSTONE, Appeal to the House of Lords. Note To Surron vw. JOHNSTONE. CONSTITUTIONAL LAW. are mutual recriminations, mutual charges, and mutual trials. The whole fleet take sides with great animosity— party prejudices mix—if every trial is to be followed by an action, it is easy to see how endless the confusion, how infinite the mischief will be. The person unjustly accused is not without his remedy. He has the properest among military men. Reparation is done to him by an acquittal, And he who accused him unjustly is blasted for ever, and dismissed the service. These considerations incline us to lean against intro- ducing this action. But there is no authority of any kind either way ; and there is no principle to be drawn from the analogy of other cases, which is applicable to trials by a sea court-martial under the marine law, con- firmed, directed, and authorized by statute. And there- fore it must be owned that the question is doubtful: and when a judgment shall depend upon a decision of this question, it is fit to be settled by the highest authority. According to our opinion it is not necessary to the judg- ment in this cause. Because, supposing the action to lie, we think judgment ought to be given for the defendant (the plaintiff in error). This cause being removed into the House of Lords, the question was put to the judges by order of their lord- ships, what judgment or other award ought to be made upon the record as it now lies before the House ? Gould, J., delivered the unanimous opinion of the judges present, that the judgment given in the Exchequer Chamber ought to be affirmed: whereupon it was ad- judged accordingly (h). Few cases are yielded by the Reports which concern military or naval officers. In Macbeath v. Haldi- mand (2), the defendant filled the office of Governor of (h) 1 Bro, P. C, 100. (@ 17. R172. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 713 fi Quebec, he likewise held military command, and it was Nore no against him in the latter, rather than in the former,” capacity, that the action was brought for the price of an stores furnished for the use of government by order of ee the defendant. Now here it was admitted for the plaintiff, that “in general a commanding officer is not answerable for stores and other articles furnished noto- riously for the use of government,” but it was urged that he might “become so by his own conduct ;” and it was contended that in the case before the Court the defendant had so acted as to render himself personally responsible, inasmuch especially as he had directed that the price of the stores supplied should be liquidated by bills drawn upon himself. But, observed Lord Mansfield, there is no colour for saying that the defendant is liable in his character of Commander-in-Chief, and he referred to a case tried before himself, where the action was brought against Lord North, as first lord of the treasury, to reimburse plaintiff the expenses which he had incurred in raising a regiment for the service of government, but the action was held not to lie. Lord Mansfield referred also to a case of Inttleton v. Halsey, where the defendant was a commissary for the supply of forage for the army, the plaintiff having been employed by the defendant in the procuring of supplies, and the defendant was held not liable. “ Great inconveniences,” observed Ashhurst, J., in Macbeath v. Haldimand, “would result from considering a governor or commander as personally responsible in such cases as the present. For no man would accept of any office of trust undet government upon such conditions, and, indeed, it has frequently been determined that no indi- vidual is answerable for any engagements which he enters into on their behalf.” “In any case where a man acts as Digitized by Microsoft® 714 Norte To Surron v. JOHNSTONE, Liability of officer, ex delicto, —to stranger. CONSTITUTIONAL LAW. agent for the public, and treats in that capacity, there is no pretence to say that he is personally liable” (h). Precisely in accordance with these principles were the decisions in Myrtle v. Beaver (1) and Rice v. Chute (m). These cases may usefully be consulted, should any question arise as to the liability ex contractu of the officer commanding a troop or regiment, for forage or necessaries supplied for the men by his direction. In any such case, should there be no special circumstances show- ing that the defendant's credit had been pledged, he will be taken to have contracted, not as an individual, but on the behalf of government. Nor is any hardship thus entailed upon creditors, for those who supply the goods Know, or ought to know, that the money in payment for them is not to come out of the pocket of the officer in command (m). The liability ew delicto of a military or naval officer for an act involving negligence or malice, has on some occa- sions been discussed. It may be sought to fix such a defendant with liability, ]., at suit of one unconnected with the service ; or, IL, at suit of a subordinate who has an imagined grievance to redress. I. At suit of a stranger, an officer in the service of the Crown will be irresponsible for an act done by him in discharging his ordinary duty, or in obeying the orders of the government (0). Moreover, it may well be, that the duty of an officer towards the public is incon- sistent with that course of conduct which in a private person might be deemed proper towards an individual, . (k) Per Buller, J., 1 T. R. 182. 582. (2) 1 East, 135. (0) See per Lord Lyndhurst, C. : (m) 1 East, 578, Vise. Canterbury v. Att.-Gen., 1 (n) See Rice v. Everitt, 1 East, Phill. 806, and cases post. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. in this case the duty towards the public must be ful- filled (p). Also instances have occurred, as observed by Lord Lyndhurst (¢), where damage has been occasioned by the negligent management of ships of war, and where it has been held that the captain is not liable in respect of an act done by one of the crew without his participation. In Nicholson v. Mowncey (r) the captain of a sloop of war was held not answerable for damage caused by her running down the plaintiff’s vessel, the mischief appearing to have been done during the watch of the lieutenant, who was then upon deck, and had the actual direction and management of the steering and navigating of the sloop, the defendant not having been upon deck, nor by his duty required to be so, when the catastrophe occurred. Lord Ellenborough, C. J., in giving judgment in this case, remarked as follows: Captain Mouncey is said to be liable for the damages awarded “by considering him in the ordinary character of master of the vessel, by means of which the injury was done to the plaintiff’s property. But how was he master? He had no power of appoint- ing the officers or crew on board; he had no power to appoint even himself to the station which he filled on board; he was no volunteer in that particular station, merely by having entered originally into the naval service, but was compellable to take it when appointed to it, and had no choice whether or not he would serve with the other persons on board, but was obliged to take such as he found there and make the best of them; he had no power either of appointment or dismissal over them: The (p) See per Bayley, J. : Forbes v. Gen, 1 Phill, 306 ; et vide post. Cochrane, 2 B, & C. 459. , (r) 15 East, 384. (q) Viscount Canterbury v. Att.- Digitized by Microsoft® 715 Note To Surron v JOHNSTONE, 716 CONSTITUTIONAL LAW. Nove To case, therefore, is not at all like that of an owner or Jouxsronn, Master who * * is answerable for those whom he employs “—~ for injuries done by them to others within the scope of their employment. * * Here Captain Mouncey was a servant of his Majesty, stationed on board the ship to do his duty there, together with others equally appointed and stationed there by the same authority to do their several duties. * * Here there was no personal interference of the captain with the act of the lieutenant by which the damage was occasioned; both, indeed, were servants of one common master, but there was no consent by the one to the act of the other, unless that can be inferred from the community of their services.” In accordance with the view thus expressed, the verdict which had been entered by direction of an arbitrator against the captain and the lieutenant of the watch with heavy damages was, so far as concerned the.former defendant, set aside. In Buron v. Denman (s) the action was in trespass, and was brought by a slave-dealer resident on the coast of Africa, and there carrying on his trade, against a commander in the British navy on that station, charged with enforcing the provisions of a certain treaty between our own and the Spanish Government for the suppression of the slave-trade. The gist of the action was that the defendant had com- mitted a trespass in destroying the property and carrying off the slaves of the plaintiff; and in answer to this charge the defendant put on the record a series of pleas, by some of which he justified the alleged torts as having been done by the command of the-Crown. The main question to be decided in this case accordingly was, whether the conduct of the defendant in carrying away the slaves and committing (s) 2 Exch. 167 ; recognised Judgm! Secretary of State of India v. Sahaba, 13 Moo. P. C. C. 85. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, the other alleged trespasses, could be justified as an act of State done by authority of the Crown? It was not indeed contended on behalf of the defendant that any previous authority for the acts complained of had been given by Government or by the Crown ; his justification depending upon an alleged subsequent ratification of such acts. Now there was in this case ample evidence to show that the Government had expressed their approval and intimated their adoption of the defendant’s acts, and it consequently remained only to consider whether the rule of law, appli- cable amongst private persons in regard to the effect of ratification—Ommnis ratihabitio retrotrahitur et mandato priori equiparatur—applied also to the Crown. The Court ruled that the ratification of the Crown was, under the circumstances before them, equivalent to a prior com- mand, and operated to render the defendant irresponsible. On the part of the plaintiff, it was argued in the above case that “the Crown can only speak by an authentic instrument under the Great Seal,” and that, inasmuch as no ratification so authenticated had been given, the defendant was unprotected. The Court, however, upon this point, were clearly of opinion that, as the original act would have been an act of the Crown if done in pursuance of a written or parol direction from the Board of Admiralty, so the ratification sub judice (which had been communi- cated by letter) was equally good and operative. The rule which exempts from liability an officer in the service of the Crown for the consequences of an act ordered by Government, or sanctioned and ratified by it, may be applied to the solution of questions differing somewhat from those which have been presented. During the Crimean War, a case (f) came under the (f) Hodgkinson v. Fernie, 20. B. N.S, 415. Digitized by Microsoft® 717 NotE To Surron Ve JOHNSTONE, 718 Nore To Sutton vw JOHNSTONE. CONSTITUTIONAL LAW. notice of the Court of Common Pleas, disclosing facts as under: The plaintiff and defendant were respectively owners of vessels which had been chartered by Government as transports for the conveyance of troops to the Black Sea; these vessels, whilst in tow of a steamer commanded by a naval officer, came into collision, whereby the plaintiff’s vessel suffered damage, and the judge directed the jury at Nist Prius that if in their opinion the injury com- plained of resulted from a strict obedience on the part of the master of the défendant’s vessel to: the orders of the officer in command of the steamer, the defendant would not be responsible. The jury indeed thought that the master could not be wholly acquitted of negli- gence in his management of defendant’s vessel, and so the plaintiff had a verdict. The rule recognised by the Court in this case may be thus stated. When two vessels are chartered by the Government for an expedition such as that in question, one of the terms of the contract which the shipowners enter into is, that they shall pay implicit obedience to the persons in command ; therefore, if one of them sustains damage from the other whilst acting in obedience to the orders of a superior officer, the owner of the vessel doing the damage cannot be held responsible at law to the owner of the vessel to which the damage is done (uw). Obedience by subordinates to the orders of one placed in command over them is essential, not only to the success of the undertaking, but to the safety of all engaged in it (z). Doubtless the rule thus enunciated is founded on expedience, and, where ditect authority is wanting, considerations of public safety and expedience may properly have weight. They cannot be allowed (uw) Per Cockburn, C. J., 20. B. (z) Per Wille, J., 20. B.S. N. S. 436, 435. Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE. 719 indeed to countervail the statute law, nor can they be put Note 70 Reason in the balance against precedents positive and express. JORNSTONE. Judicial discretion must be limited to discerning PER LEGEM quid sit justum (y). Yet where the finger of the law which ordinarily guides them omits to perform its function, we rejoice to follow the footsteps of our judges leading towards what is just and rightful. An officer in the army or navy will clearly be amenable for any wrongful and injurious act, 7.e. for any act pe7 se tortious, not justifiable in virtue of an authority, general or special, emanating from Government or the Crown. Instances are cited in the Principal Case (2) in affiymance of the foregoing proposition. Others in support of it, yet more recent, may be advanced, ew. gr., Madrazo v. Willes (a), where the captain of a man-of-war, for having destroyed a Spanish slaver wrongfully, though as he believed in per- formance of his duty, was held to be liable to the owner of the vessel for damage to the amount of 20,0001. In Tobin v. The Queen (b), an instructive case concern- ing the matter debated in this Note, the proceeding was by Petition of Right, which stated as under :—That the suppliants were shipowners carrying on business at Liver- pool. That for the purposes of a trade in which they were engaged on the coast of Africa (where they possessed storehouses and factories) they had purchased a certain vessel. That this vessel was not, when it was so purchased, and never was, registered as a British vessel. That, until it was seized and destroyed, as afterwaitds mentioned, it remained the property cf the suppliants, and was never in any way engaged in the slave-trade. That in August, 1862, (y) 4 Inst. 41. (a) 8B, & Ald, 353, (2) Ante, pp. 696-8, which apply a (b) 16 C. BN. 8. 310; 8. ¢, fortioré to support the position supra. 14 Id. 505, Digitized by Microsoft® 720 Note To Surron uv. JOHNSTONE. CONSTITUTIONAL LAW. the said vessel was taken, under the charge of a seaman employed by the suppliants, to Cabenda, on the African coast, for the purpose of undergoing repairs. That she was there seized, as a vessel engaged in the slave-trade, by and under the orders of Captain Douglas, then being Commander of her Majesty’s ship Espoir, and employed under the authority of her Majesty for the suppression of the slave-trade, according to the statutes in such case made and provided ; and on the alleged ground that the said vessel was not fit for a voyage to St. Helena, being the place within her Majesty's dominions to which she ought to have been taken for the purpose of being brought to adjudication in the Vice Admiralty Court there, touch- ing the said seizure, she was afterwards, together with her cargo, wholly burnt and destroyed by the said Captain Douglas, so being such commander, and so employed under the authority of her Majesty as aforesaid, and in the supposed exercise of his duties under such last-mentioned authority. That the said vessel was not, at the time of her being so seized and destroyed as aforesaid, in any way en- gaged in the slave-trade or liable to be condemned as so engaged. That the value of the said vessel and cargo so burnt and destroyed as aforesaid amounted to 10002. The petition alleged special damage to the amount of 10,0002, and prayed that her Majesty would be pleased to do what was right and just in the premises, and cause the suppli- ants to be reimbursed and compensated for the losses so sustained by them as aforesaid. To the above petition, the Attorney General on behalf of the Crown demurred, thereby admitting the following facts, viz.:—That the vessel was seized, as being engaged in the slave-trade, by Captain Douglas. That he com- manded a ship of her Majesty, and was employed for the Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 721 suppression of the slave-trade according to the statutes Nor 70 Buy TION relating thereto, and that the vessel of the suppliants was Jouxsnoxe not, at the time when it was so seized and destroyed, in any way engaged in the slave-trade, or liable to any pro- ceedings as if it had been so engaged. The Court of Common Pleas, in giving judgment upon the issue raised by the above-mentioned demurrer, com- menced with observing that a wrong for which an action might lie against Captain Douglas was disclosed by the facts admitted. In holding that that officer had not, in the transaction under notice, acted as agent for the Crown, the Court indicated a liability attaching personally to himself :—If the vessel of the suppliants had been law- fully seized, Captain Douglas would have performed a duty imposed upon him by the stat. 5 Geo. 4, c. 113, 8. 43, enacting that vessels engaged in the slave-trade shall be seized by the commanders of ships of her Majesty, and although it is admitted that he was appointed to the ship, and ordered to the station, and employed by the Queen, “we think that the duty which he had to perform in relation to the slave-trade was not created by command:of the Queen, nor would he have been doing an act which the Queen had commanded if the seizure had been made lawfully under the statute. The allegations on the record shew that the seizure, although intended to be in accord- ance with the provisions of the statute, was unlawful because not authorised thereby. They further shew that the vessel was not seized for the purpose of making it the property of her Majesty, and, if lawfully seized, would not have been in possession of her Majesty, but under s. 44 the captors had the duty of taking it to the Vice-Admiralty Court for condemnation, and if condemned the captors were bound to sell, and divide the proceeds 3A Digitized by Microsoft® 722 CONSTITUTIONAL LAW, Nore 70 of the sale, and it could not be till after these contingen- Jouxcrowe, cles had happened and the sale had taken place that the — interest of the Crown in ashare of the proceeds of the sale, according to the statute, would commence: and under s. 35 the captors would have been liable to a judgment against them in that Court for damages and costs,.if they had been found to be in the wrong. Thus, as Captain Douglas would not have been an agent of the Crown if he had lawfully seized and kept the vessel under the statute, still less ought he to be held to be such agent in seizing and destroying it unlawfully.” The portion of the judgment above cited points to this conclusion, that the act complained of by the suppliants as injurious and damaging to them, had been that of an officer in the service of the Crown, presumably done in virtue or under colour of the statute law, but in reality not justified by its provisions. The passage which imme- diately follows, cited from the same judgment, is framed upon a hypothesis different from the former, yet likewise such as would cast upon the officer named a personal liability. “Tf” the Court continue, “it be assumed that Captain Douglas had authority from the Crown to seize all ships engaged in the slave-trade, so that the seizure, if lawful, would have been made by bim in the capacity of agent for the Crown; still, if he seized a ship not engaged in the slave-trade he would not act within the scope of that authority, and would not make his principal liable for that wrong. ‘Thus, where a warrant was granted by the Secretary of State to apprehend the author of the ‘North Briton, and the defendant upon good ground of suspicion apprehended the plaintiff, who proved that he was not the author, the defendant was held not to have acted in Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 723 obedience to that warrant, and to be responsible without Nov= 7° a justification therefrom” (c). cst ie. A question by no means foreign to the matter before us ¢,..,— here demands consideration—can the Crown be made yirctnsiite, responsible for damage caused by the tortious act of an officer employed in its service? The answer to this query must be in the negative. We have already seen (d) that the appropriate mode of procedure against the Sovereign is by Petition of Right, and in Tobin v. The Queen, above cited, the Court decided that a Petition of Right cannot be maintained to recover unliquidated damages for a trespass from the Crown. “It is unne- cessary,” they observe, “to cite authorities to shew that the agent cannot make the principal liable for an act done beyond the scope of his authority. * * But the claim of the suppliant to hold the Queen liable for the act of a captain in her Majesty's navy was rested upon a supposed analogy between the relation of servants to masters and of bailiffs to sheriffs on the one hand, and the relation of persons in her Majesty’s service to the Queen on the other hand; so that as a master is liable for any wrong done by his servants in the course of their employ- ment in his service, and a sheriff is responsible for any wrong done by his under-sheriffs or his bailiffs in the course of performing the duties of the shrievalty, so the Queen ought to be held responsible for any wrong done by a captain of the navy in the course of his employ- ment. * * But the argument for the suppliant fails because in our. judgment there is no analogy between the relation of the captain of a Queen’s ship to the Queen, and the relation of servant to master, or bailiff to the sheriff, so as to create the liability here in question.” (c) Leach v. Money, ante, p. 525. (d) Ante, pp. 241 et seq. SA 2 Digitized by Microsoft® 724 Note Tu Sutton Vv JOHNSTONE. CONSTITUTIONAL LAW. The Court then refer to some classes of decisions in which the limits of the liability attaching to a superior - for the acts of his subordinate are defined, in order to shew that the analogy contended for does not exist. For instance, “ where the duty to be performed is imposed by law and not by the will of the party employing the agent, the employer is not liable for the wrong done by the agent in such employment. On this principle it has been . declared that superior public officers, such as the Post- master-General, the Lords Commissioners of Customs and Excise, the Auditors of the Exchequer and the like, are not responsible for the negligence or misconduct of inferior officers in their several departments, though the superior officers appointed them and had the power of dismissing them” (e). * * “So also the captain of a ship employing a pilot is not responsible for damage caused by the ship when under the control of the pilot, for the pilot performs a duty imposed by Act of Parliament, and is not under the control of the captain” (f). Accordingly the Court conclude that “the supposed analogy between the relation of the Queen to a captain in her Majesty’s navy, and the relation of a master to a servant, fails in the following respects :—I1st. That the Queen does not appoint a captain to a ship by her own mere will, as a master chooses a servant, but through an officer of State, responsible for appointing a man properly qualified ; and 2ndly. That the will of the Queen alone does not control the conduct of the captain in his move- ments, but a sense of professional duty; and-3rdly. Because the act complained of was not done by the order of the (c) Judgm.,, 16 6 B, N.S, (f) Lucey v. Ingram, 6 M. & W. 351 citing Whitfield v. Lord Le 302. Despencer, 2 Cowp. 754. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. Queen, but by reason of a mistake in respect of the path of duty.” Then with respect to the supposed analogy to the responsibility of the sheriff for the under-sheriff and bailiff,—‘ the sheriff is under responsibility which is pecu- liar to that office; the under-sheriff is a general agent for the sheriff in respect of the duties of the shrievalty in the fullest extent, with the unusual power for a deputy to appoint a deputy, and make the principal responsible for every act of.a bailiff done under a war- rant issued by the under-sheriff.” Further as to the general question whether a Petition of Right can be maintained to recover unliquidated damages for a trespass. Ist. Reference has to be made to the principle that “the Sovereign cannot be guilty of a wrong, and so cannot be made liable to pay damages for a wrong of which he cannot be guilty. * * The maxim that, the king can do no wrong (g), is true in the sense that he is not liable to be sued civilly or criminally for a supposed wrong; that which the Sovereign does perso- nally the law presumes will not be wrong ; that which the Sovereign does by command to his servants cannot be a wrong in the Sovereign, because if the command is unlaw- ful, it is in law no command, and the servant is responsible for the unlawful act, the same as if there had been no command (h).” “This maxim has been constantly recog- nised, and the notion of making the king responsible in damages for a supposed wrong tends to consequences that are clearly inconsistent with the duty of the Sovereign.” Upon the authorities also the Court of Common Pleas in Tobin v. The Queen were of opinion that a Petition of (g) As to this maxim, sce Broom’s (4) 1 Hale, P. C., 43; 2 Inst. 186; Leg. Max. 4th ed. pp. 53-63, 3 Bla, Com, 246, Digitized by Microsoft® 725 Note To Surron v. JOHNSTONE, 726 Nove To Surron vw. JOHNSTONE, Liability of officer ex delicto to his subor- dinate, CONSTITUTIONAL LAW. Right was not, under the circumstances before them, main- tainable; and, after an elaborate examination of cases (2) tending to support that view, they remarked as follows :— that “if each of the Queen’s subjects who believed he had been at any time, in any reign, wronged in the administra- tion of civil or military affairs could sue the Sovereign for the time being for the amount at which he might estimate his damage, the extent of pernicious result would be great. And we refer to the abstract of the Petition of Right -adduced in evidence in Irwin v. Sir George Grey (k) as an example of the mischief that might arise if such was the law.” II. The Principal Case conclusively establishes that, on grounds of public policy and expediency, a superior officer cannot be made liable in an action at suit of one placed under his orders for the consequences of an act done in (i) Judgm., 16 C. B., N.S. 855— 367. (k) 8 Fost. & Fin. 635. That was an action against the Home Secretary for not submitting to the Sovereign a Petition of Right, under the stat. 23 & 24 Vict. c. 34, 5. 2. By that peti- tion the suppliant, in 1861, sought compensation for a series of alleged wrongs in the course of legal proceed- ings, beginning in 1834, wherein he was convicted of a misdemeanor in representing that an assistant bar- rister had resigned ; and a Mr, John- ston was acquitted in a prosecution for perjury, instituted by the plaintiff in the above action. The wrongs imputed were the withholding from the juries certain letters, and the guilt of these wrongs was imputed to certain high officials in Ireland. The question to have been tried would have been, whether the wrongs were committed so as to damage the sup- pliant. That would have been in effect to try, in 1861, whether some verdicts, returned in 1834—5, were right ; and, if not, whether her pre- sent Majesty should compensate the suppliant for the damage sustained in paying costs, and in being imprisoned and fined, and also in being disin- herited by his father, by paying to him 100,0007., or so much thereof as the jury might give. In each of the following cases like- wise an action against a Secretary of State was unsuccessful :—Cobdbett v. Grey, 4 Exch. 729 (although on the general issue the plaintiff had judg- ment) ; Dickson v. Viscount Comber- mere, 3 Fost. & Fin. 527, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. the course of duty or of discipline, even though the act complained of were done maliciously to injure (/). Under circumstances such as supposed investigation may be made by a military or naval—not by a common law—tribunal. For instance, a court-martial has jurisdiction to punish a commander who arrests, suspends, and brings to trial his subordinate without a probable cause (m). Such a tribunal can better judge of the matter at issue than could a court of common law, and; for reasons already indi- cated, officers discharging military or naval duties, and ‘re- quiring from their inferiors prompt and implicit obedience, must be protected. Nor would an action be maintainable against a Secre- tary for War for advising the dismissal of an officer by the Crown, unless indeed he were shown to have been actuated by a dishonest or corrupt motive, for an officer receives his commission from his Sovereign and holds it at his pleasure, and it is in the will of the Sovereign to withdraw it. The Sovereign thinks fit, indeed, to exercise that power through responsible servants of the Crown, but they are not responsible for its exercise before a jury (7). The army being regulated by the annual Mutiny Act (0), and by the Articles of War, made in pursuance thereof by the Sovereign (p), and the navy being regulated (} In an action for libel, brought against a superior officer by his sub- ordinate, on proof of publication, the - question would probably be—was the communication privileged ? See Dick- son v. Earl of Wilton, 1 Fost. & Fin. 419; Broom’s Comm, C, L. 8rd ed. pp. 40 et seq. (m) See stat. 27 & 28 Vict. c. 119. Articles of War, No. 24. (nm) Per Cockburn, ©. J, Dickson v. Viscount Combermere, 8 Fost. & Fin. 585, (0) The Mutiny Act now opera- tive is the 28 Vict. ¢. 11, (p) 28 Vict. c. 11, s. 1, enacts that ‘it shall be lawful for her Majesty to make Articles of War for the better government of her Majesty's army, which articles shall be judi- cially taken notice of by all judges and in all courts whatsoever.”’ Digitized by Microsoft® 727 Notz To Surron ve “FOHNSTONE, 728 NoTE To SUTTON v. JOHNSTONE, CONSTITUTIONAL LAW. by statutory articles and provisions (g), our courts of common law refrain from interfering in cases which concern exclusively the status of any member of the service, or the discipline and organisation of the Queen's forces, military and naval. In Barwis v. Keppel (7) the action was brought against the defendant, an officer in the Guards, for maliciously reducing to the ranks the plaintiff, a serjeant in the regiment of which defendant had command. The occur- rence complained of took place in Germany, out of the king’s dominions, and during a time of war; and per Curiam to the counsel in the cause :—“ By the Act of Parliament to punish mutiny and desertion, the king’s power to make Articles of War is confined to his own dominions; when his army is out of his dominions he acts by virtue of his prerogative (s), and without the statute or Articles of War; and therefore you cannot argue upon either of them, for they are both to be laid out of this case, and (g) 27 & 28 Vict. c. 119, ‘*Ae gard to the army, it is hard to assign Act to make provision for the Disci- pline of the Navy.” ‘‘TIn these Articles of the Navy,” observes Sir W. Blackstone (Com. 21st ed. vol. i. p. 420) with reference to those formerly in force, ‘ almost every possible offence is set down, and the punishment thereof annexed; in which respect the seamen have much the advantage over their brethren in the land service, whose Articles of War are not enacted by parliament, but framed from time to time at the pleasure of the Crown. Yet from whence this distinction arose, and why the executive power, which is limited so properly with regard to the navy, should be so extensive with re- a reason, unless it proceeded from the perpetual establishment of the navy, which rendered a permanent law for their regulation expedient ; and the temporary duration of the army, which subsisted only from year to year, and might therefore, with less danger, be subjected to discretionary government.” See also the 28 Vict. c. 12, ‘*An Act for the regulation of her Majesty’s royal Marine Forces while on shore,” (r) 2 Wils. 814; ante, p. 707. (8) ‘* Where the King of England sendeth a lieutenant or general with an army royal out of the realm, the army is to be guided by the martial law of England.’—2 St. Tr. &70. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. jflagrante bello the common law has never interfered with the army—inter arma silent leges (#). We think, as at present advised, we have no jurisdiction at all in this case.” M., a captain in the Queen’s service, whilst stationed with his regiment in India, was gazetted to a majority in a regiment then in England. The promotion having been notified by the Commander-in-Chief in the general orders at head-quarters, and also in the regimental orders, M., according to the customs and regulations of the army, ceased to belong to the regiment in which he had been captain. Subsequently M., having written to his former colonel an insubordinate letter, was for that offence tried by court-martial in India, found guilty, and sentenced to be cashiered. The proceedings of such court-martial having been sent to England, and deposited with the Judge Advocate General, a rule was obtained by M., calling upon him to shew cause why a writ of certiorari should not issue to bring up, in order that it might be quashed, the record of the conviction, on the ground of want of jurisdiction in the court-martial (w). The Court of Queen’s Bench, however, refused to, interfere, Cockburn, C. J., observing, “ Where the civil rights ofa person in mili- tary service are affected by the judgment of a military tribunal, in pronouncing which the tribunal has either acted without jurisdiction or has exceeded its jurisdic- tion, this Court ought to interfere to protect those civil rights, ew. gr., where the rights of life, liberty, or property, are involved, although I do not, know whether the latter (t) As to the authority of a Prize ties are referred to. Court in time of war, see Arg. Secre- (u) In re Mansergh, 1B. & 8. tary of State of India v. Sahaba,13 400, recognising Re Poc, 5 B. & Ad. Moo. P. C. C. 59, where the maxim 681; see Re Allen, 30 L. J. Q. B. cited supra is applied, and authori- 38. Digitized by Microsoft® 729 Note To Sutton vw. JOHNSTONE, 730 Nore ro Surron vw. JOBNSTONE CONSTITUTIONAL LAW. case could occur. Here, however, there was nothing of the sort, and the only matter involved was the military status of the applicant—a thing which depends entirely on the Crown, seeing that every person who enters into military service engages to be entirely at the will and pleasure of the Sovereign. Then there is the additional fact that these proceedings originated abroad, in a place the tribunals of which are not subject to our jurisdiction.” The learned Chief Justice then proceeded to observe, that, even assuming the Court to have jurisdiction, “ yet when we look at the particular nature of the case before us, we see that the military status of the applicant alone is affected, and consequently if he had just cause of exception to the act of the tribunal by which he was sentenced, he might have appealed to the Queen to re- consider the matter, with the advice of her Judge Advocate” (a). Save, however, where reasoning such as above pre- sented may be applicable, and in cases specially brought by statute within the cognizance of martial law (y), the authority of a court of ordinary civil or criminal (2) juris- 1270, a.p. 1693: we there read as follows :—‘‘ Since the commencement (x) In the course of the argument of this case Cockburn, C. J., asks : **Does not every person who enters the military service of the Crown give the Crown a right to determine his military status at pleasure ?”—Ante, Pp 715, (y) See particularly 28 Vict. v. 11, ss. 89, 40, 75; c. 12, ss. 4, 5, 57, 92; 27 & 28 Vict. c. 119, s. 95. (2) In connection with the crimi- nal law applicable to naval officers may be perused The Proceedings before the Lords of the Council and the Admiralty in relation to the Trials of Golding and others, 12 St. Tr, of King William’s war, several priva- teers having been taken and detained in prison, acting by King James’s commission, it was resolved, about® July, 1692, by the Lords of the Privy Council, that they should be tried as pirates, having no commissions from kings or sovereign powers whatsoever; and accordingly, about November, 1692, the Lords of the Admiralty ordered Dr. Oldys to proceed against them as pirates; but he declined the doing thereof, and gave his opinion in writing under his hand, that they Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. diction is not superseded nor affected by the mere fact that a party brought before it chances to be in the service of the Crown. In conclusion, a remark by way of caution may be offered, It not unfrequently happens that an officer, military or naval, in the service of the Crown, is appointed governor of a colony or dependency ; if so, his position is peculiar, and his liabilities may be regulated by rules which have been stated in the immediately preceding Note. The governor of a colony or dependency usually, by the terms of his commission, unites in himself several dis- similar though not incompatible characters. He is a civil governor, at the head therefore of the executive; he is in command of the local forces ; he exercises, either alone or in conjunction with others, purely judicial functions. Care, consequently, must be taken when any charge is preferred against him to determine in what capacity he is charged : —is it as a servant or delegate of the Crown ? is itas chief of the executive ? as a naval or military commander (a) ? as a judicial officer? If the charge should seem to be pre- ferred against the governor in either of the three first-men- tioned capacities, as chief of the executive, as servant or delegate of the Crown, as exercising naval or military command, considerations have been mentioned which are to guide us in determining his liability. Should it, how- were no pirates, nor ought to be pro- _ serves (Internat. Law, vol. i. p. 406) secuted as such: :” Upon which, September, 1693, Dr. .Oldys was summoned before the Privy Council, where the matter was discussed by him and other civilians. Finally the accused were tried and convicted. As ‘ to this case, Sir R, Phillimore ob- that ‘‘the reason of the thing must be allowed to preponderate greatly towards the position * * * that these privateers were jure gentium pirates.” (a) See Macbeath v. Haldimand, cited ante, p. 712, Digitized by Microsoft® 731 Nove To Surron ”. JOHNSTONE. 732 NotTrE To Surron Vv. JOHNSTONE. CONSTITUTIONAL LAW. ever, appear that the charge has been preferred in respect of some act done by him judicially, other reasoning must be had recourse to, and other principles must be ap- -plied (0). ° A leading principle, which may serve to protect an official from liability in respect of an act which has been damaging to another, is indicated by the word “ necessity,” necessitas non habet legem—quod cogit, defendit. ‘These are trite maxims, which embody none the less important doc- trines. In the Proceedings against Stratton and others (c) for misdemeanor, in arresting, imprisoning, and deposing Lord Pigot when Governor of Madras, A.D. 1776, we find Lord Mansfield carefully distinguishing (d) between two species of necessity, (1) natural and (2) civil or political necessity. Speaking of the former, he says, “Wherever necessity forces a man to do an illegal act—/forces him to do it—it justifies him, because no man can be guilty of a crime without the will and intention of his mind.” An act to be illegal “must be voluntary ; therefore a madman can- not commit a crime.” Where a man is absolutely by natural necessity forced, his will does “not go along with the act,” and therefore if a man is forced by natural necessity to commit an act of high treason—the force being such as human nature could not be expected to resist—the actor will not be guilty of high treason. So if homicide be com- mitted by one who is attacked and in danger, natural necessity will justify it. Then as to civil, political, or state necessity (¢), no case, says Lord Mansfield, can occur in this country in which this species of necessity can be (b) See Note to Kemp v. Neville, (e) As to which see also Judgm., post, The Fox, 1 Edwards, Adm, R, 306; (c) 21 St. Tr. 1046, Judgm., The Hercules, 2 Dods. Adm. (d) Id, 1228—4, 1280, R. 360. Digitized by Microsoft® * RELATION OF THE SUBJECT TO THE EXECUTIVE. vouched in justification of an act such as was then before the Court. There is here a regular government to which application may in an emergency be made—there is a superior at hand from whom directions may be asked. But in a remote dependency circumstances might per- chance arise which would justify, on the ground of political necessity, that which within the limits of Great Britain could not so be rendered justifiable. Such a necessity must, however, be extreme and imminent ; it must spring out of danger threatened to society or to self. Where the defence set up is of this kind, whether it involve a ques- tion as to natural or as to political necessity, a jury must decide upon it, the issue raised being one of fact, and of the degree of fact. From the tenor of Lord Mansfield’s remarks in Strat- ton’s Case may be deduced the extent of immunity allowed to the governor of a dependency, who in some social crisis employs his power in an arbitrary and primé facie illegal manner to the detriment of another. And a prin- ciple not much differing from this may sometimes guide us in determining the liability of officers, military or naval, who,-whilst acting in that capacity, have caused damage to a private person. Necessitas publica major est quam privata—privatum incommodum publico bono pen- satur. The safety of the community or territory under charge must be assured, though at the cost of private loss or suffering: an imminent danger may warrant most ex- treme and stringent measures. Digitized by Microsoft® 733 Nore To Surr Vv JOHNSTONE, 734 Declaration. 1st Plea, 2nd Plea, CONSTITUTIONAL LAW. KEMP v, NEVILLE, 10 C. B., N.S. 523. (24 Vict. a.. 1861.) LIABILITY OF A JUDICIAL OFFICER, A judicial officer is not liable to be sued for an adju- dication according to the best of his judgment upon a matter within his jurisdiction: and a matter of fact so adjudicated by him cannot be put in issue in an action against hum. The declaration in this case charged that the defendant caused an assault to be made on the plaintiff, and caused her to be unlawfully imprisoned and kept and detained in prison in a certain gaol or place of confinement commonly called and known by the name of the Spinning House, for a long space of time ; and also caused the plaintiff to be forced and compelled to take from her person the clothes which she was then wearing, and caused her said clothes to be taken away from her, and caused her to be deprived of the use and enjoyment thereof for a long space of time, and caused her to be forced and compelled to put on cer- tain other clothes of an inferior quality and description, and to wear the same during the aforesaid long space of time, and caused the plaintiff to be in the said gaol or place of confinement forced and compelled to work and labour for divers long spaces of time whilst the plaintiff was imprisoned in the said gaol or place of confinement as aforesaid; whereby the plaintiff was greatly bruised, wounded, and hurt, and was greatly injured and damni- fied in her reputation and character, and was otherwise greatly injured; and other wrongs to the plaintiff the defendant did: claim 5001. The defendant pleaded,—first, not guilty. Secondly, that the chancellor and scholars of the Uni- versity of Cambridge, from time immemorial until the time of making a certain Act of Parliament made and Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. passed in the 13th year of the reign of Queen Elizabeth (18 Eliz. c. 29), intituled “ An Act concerning the several incorporations of the Universities of Oxford and Cam- bridge and the confirmation of the charters, liberties, and privileges granted to either of them,” were a body corporate by various names of incorporation, amongst others, by the name of The Chancellor, Masters, and Scholars of the University of Cambridge, and by’ that name had suc- cession, and that by the said Act it was enacted that the then chancellor of the said university and his successors for ever, and the masters and scholars of the same univer- sity for the time being should be incorporated and have perpetual succession by the name of The Chancellor, &c.; that the office of proctors of the said university is, and from time immemorial was, an ancient office, and that the persons for the time being duly holding such office have, and each of them hath, during all the time aforesaid, by custom’ of aud in the said university from time whereof the memory of man is not to the contrary there used and approved, for the preservation of good order and morality amongst the scholars of the said university, visited, and been used and accustomed and of right ought to visit, all and every the public streets and places in the town of Cambridge, and within the precincts of the said univer- sity, at all times of the day and night, and have and each of them hath been used and accustomed, and of right ought, to arrest and apprehend all such women as, in such their visits, they or either of them have or hath found within the limits and precincts aforesaid, who, upon rea- 735 car Nevinur. sonable grounds, have been suspected by the said proctors _ or either of them to be loose or disorderly women, or who within the limits and precincts aforesaid have been found keeping company with any of the scholars aforesaid in such manner and under such circumstances as upon reasonable grounds to be by the said proctors or either of them suspected of evil, and to take such persons so arrested and apprehended before the vice-chancellor of the Digitized by Microsoft® 736 CONSTITUTIONAL LAW. Kemp said university for the time being, to be dealt with accord- Neviixe. ing to law: That the office of vice-chancellor is, and from ~~ time immemorial was, an ancient office of the said univer- sity ; and that, before and at the time of committing the alleged grievances in the declaration mentioned, the de- fendant was the vice-chancellor of the said university ; and that, from time whereof the memory of man is not to the contrary until the passing of the said Act, upon any such women having been so arrested and apprehended and taken before the vice-chancellor of the said university for the time being as aforesaid, the said vice-chancellor for the time being has by custom of and in the said univer- sity from time whereof the memory of man is not to the contrary there used and approved, heard and examined all such women so apprehended and arrested as aforesaid, and, upon being satisfied that such women have then been proved to be loose or disorderly women, or have been found within the limits and precincts aforesaid keeping company with any of the scholars aforesaid, in such manner and under such circumstances as aforesaid, has, whenever to him hath seemed meet, caused such women to be punished by imprisonment of their bodies for such reason- able time, and in such convenient prison, and subject to such usual and reasonable discipline, as to the said vice- chancellor for the time being hath seemed meet: That, before and at the time of the alleged grievances, and after the passing of the said Act and of the Cambridge Award Act, 1856 (19 & 20 Vict. c. xvii), one Thomas Samuel Wool- laston lawfully held and exercised the said office of proctor of the said university, being the office mentioned in the said last-mentioned Act: That the said Thomas Samuel Woollaston, being such proctor as aforesaid, shortly before the committing of the alleged grievances, found the plain- tiff within the limits and precincts aforesaid, in one of such his visits as aforesaid ; and that the plaintiff then and until after the committing of the alleged grievances was a woman who upon reasonable grounds was suspected by Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, the said Thomas Samuel Woollaston to be a loose and dis- orderly woman, and who then was found within the limits and precincts aforesaid, keeping company with divers scholars of the said university in such manner and .under such circumstances as that she the plaintiff then and until after the committing of the alleged grievances was on rea- sonable grounds by the said Thomas Samuel Woollaston suspected of evil: Whereupon the said Thomas Samuel Woollaston, so being such proctor as aforesaid, before the committing of the alleged grievances, had arrested and apprehended the plaintiff in order to take her and had then taken her before the defendant, so being such vice-chancellor as aforesaid, to be dealt with according to law; and there- upon the defendant, so being such vice-chancellor as afore- said, did then and there hear and examine the plaintiff, and was thereupon satisfied that the plaintiff then was a loose and disorderly woman, and then had been found by the said Thomas Samuel Woollaston, so being such proctor as aforesaid, within the limits and precincts aforesaid, keep- ing company with divers scholars of the said university for idle, disorderly, and immoral purposes, and did then cause the plaintiff to be punished by imprisonment of her body for a reasonable time in that behalf, to wit, for five days, in the place of confinement in the declaration mentioned, being a fit and convenient place in that behalf: And that the compelling the plaintiff to take off the clothes as in the declaration mentioned and compelling her to put on the said other clothes, and to wear the same, and to work and labour, as in the declaration mentioned, then were and each. of them was a part of the reasonable discipline of the said place of confinement then used and approved of by the defendant, so being such vice-chancellor as aforesaid; which were the several grievances in the declaration alleged. 737 Kemp Vv. NEVILLE. Thirdly,—that the chancellor, masters, and scholars of 2rd ples. the University of Cambridge, at the time of the granting of the letters-patent hereinafter in part set forth, were a body politic, and had succession as in the introductory part 3B Digitized by Microsoft® 738 Kreup vw NEVILLE, CONSTITUTIONAL LAW. of the second plea mentioned, and that Elizabeth then Queen of England, &c., on the 26th day of April, in the third year of her reign, by her Majesty’s letters-patent sealed with the great seal of England, bearing date the same day and year, did, for herself, her heirs and succes- sors, grant to the then chancellor, masters, and scholars of the said university and their successors, that it should be lawful for the aforesaid chancellor, masters, and scholars, and their successors, by themselves or by their deputies, officers, servants, and ministers, or by any one or more of them, from time to time and at all times, as well by day as by night, at their good pleasure, from thenceforth to make scrutiny, search, and inquiry as well by night as by day, as often and whensoever it should seem to them ex- pedient, in the aforesaid town of Cambridge, and in the suburbs of the same, and other places in the said letters- patent mentioned, of and for all common women, vaga- bonds, and other persons suspected of evil coming to or assembling at the aforesaid town and suburbs, and other places, or any of them, and all and every the persons which the same chancellor, masters, and scholars, or their successors, or their deputies, officers, servants, and minis- ters, or any one or more of them, upon any such scrutiny, search, or inquiry, should find guilty or suspected of evil, to punish by imprisonment of their bodies, banishment, and otherwise, as to the chancellor of the said university or his vice-chancellor, for the time being should seem fit, without impeachment, molestation, disturbance, or griev- ance of her the said Queen Elizabeth, her heirs or succes- sors, or any of them, any statute notwithstanding; and which letters-patent the said then chancellor, masters, and scholars duly accepted: That, by a certain Act of Pazrlia- ment passed in the 13th year of the said queen’s reign, being the Act in the second plea mentioned, it was en- acted as in that plea mentioned: and it was in and by the same Act, amongst other things, further enacted that the letters-patent as aforesaid should from thenceforth be Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, good, effectual, and available in the law to all intents, 739 Krae . é wy constructions, and purposes, to the aforesaid then chan- Nevitrr. cellor, masters, and scholars, and to their successors for ever, as amply, fully, and largely as if the same letters- patent had been repeated verbatim in the said Act: That, before the committing of the alleged grievances, Thomas Samuel Woollaston and Edward William Blore, then being officers and servants of the said chancellor, masters, and scholars, and by their command, having, upon a certain such scrutiny, search, and inquiry in the aforesaid town and suburbs of Cambridge, found the plaintiff and divers other women assembled together in a certain carriage in company with certain scholars of the said university, in.a certain public street in the said town, and then reasonably suspecting the said plaintiff of evil, that is to say, of being in company with the said scholars for idle, disorderly, and immoral purposes, had, as such officers and servants, and by such command, arrested and apprehended the plaintiff, and brought her before the defendant, then being the vice- chancellor of the said university, in order for her exami- nation touching and concerning the premises, the said defendant then being the proper officer and deputy of the said chancellor, masters, and scholars in that behalf: Whereupon the defendant, so being such vice-chancellor as aforesaid, did then and there hear and examine the plain- tiff, and was thereupon satisfied of the matters aforesaid ; and that the plaintiff had so been in company with the said scholars for idle, disorderly, and immoral purposes; wherefore the defendant did then cause the plaintiff to be punished by the imprisonment of her body for a reasonable time in that behalf, to wit, for five days, in the place of confinement in the declaration mentioned, being a fit and proper and convenient place in that behalf: And that the compelling the plaintiff to take off her clothes she was then wearing, as in the declaration mentioned, and to put on and wear the other clothes in the declaration also men- tioned, and the taking away of the said first-mentioned 3B 2 Digitized by Microsoft® 740 Kemp i NEVILLE. Replication. Evidence for the plaintiff. CONSTITUTIONAL LAW. clothes as alleged, and the compelling the plaintiff to work and labour as alleged, then were and each of them was a part of the reasonable discipline of the said place of con- finement then used and approved of by the defendant, so being such vice-chancellor as aforesaid; which were the several grievances in the declaration mentioned. The plaintiff joined issue on the first plea. To the second plea she replied as follows :—The plaintiff, as to the defen- dant’s second plea, admits the statutes in that plea men- tioned, and that it was enacted by the statute therein first mentioned as in that plea alleged ; and for replication to the said second plea the plaintitf takes issue upon the residue thereof. There was a similar replication to the third plea. The cause was tried before Erle, C. J., at Westminster, when the facts which appeared in evidence were as fol- lows: —The plaintiff was a milliner and dress-maker residing with her mother, a widow, and, so far as appeared, a person of irreproachable character. The defendant was master of Magdalene College, Cambridge, and at the time when the transactions in question took place was vice- chancellor of the university, and also virtute officit a magistrate for the borough of Cambridge. In the latter part of January, 1860, the plaintiff, with several other young women, also resident in Cambridge, were invited to an evening party which was proposed to be given by some undergraduates, members of the univer- sity. Information of what was going on having by some means reached one of the pro-proctors of the university, that gentleman consulted the senior proctor, and they with their assistants proceeded to Parker’s Piece, where they stopped the carriage in which the plaintiff and her friends were, and took it to the Spinning House, a build- ing in Cambridge, which has for many years past been used by the university as a place for confining persons apprehended by the proctors and sentenced to imprison- ment by the vice-chancellor for street-walking within his jurisdiction. Arrived at the Spinning House, ‘the plaintiff Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. and her companions were taken. into a room adjoining the rd ‘ Ku BUD 41 entrance-hall, in which were the two proctors, who asked Nevinne, the plaintiff her name, address, and occupation, which she gave. The plaintiff was then placed by the matron in a separate cell; and, after being detained there for about half an hour, she was taken back to the room first men- tioned, where she found the defendant and the proctors. The defendant then asked her several questions which she answered. She then asked the defendant if he would allow her to refer for her character to certain ladies in the town for whom she worked. Her request, however, was unheeded; and the defendant sentenced her to be im- prisoned in the Spinning House for fourteen days. The place of confinement was described by the plaintiff and her witnesses to be cold and damp. The plaintiff's clothes were taken from her by the matron, and a prison dress substituted for them. She was not, however, detained longer than the fifth day, when, in consequence of repre- sentations made to the defendant by some persons to whom she and her mother were known, she was discharged. The plaintiff further proved that there was no examination of any witnesses upon oath in her presence; nor was she aware of any warrant of commitment having been drawn up (q). The defence was based upon the charter granted to the Defones. university by Queen Elizabeth in the third year of her reign, and confirmed by the statute 13 Eliz. c. 29, the 8th section of which charter provided, amongst other things, that “it shall be lawful for the vice-chancellor and his successors, by themselves and by their deputies and servants from time to time, as well by night as by day, at their pleasure, to make scrutiny, search, and inquiry in the town of Cambridge and in the suburbs for all common (a) It appeared that no regular nally. The whole case, lowever, warrant bad been prepared at the proceeded on the assumption that time, though one was produced at the there had been no warrant. Sce post, trial, when it was stated that there pp, 742, 744, 745, 746. had been an informal warrant, origi- Digitized by Microsoft® 742 Kemp » NEVILLE, Argument for the plaintiff. CONSTITUTIONAL LAW. women, vagabonds, and other persons suspected of evil (b), coming into the town:” and then the charter went on to say that all persons who upon such search shall be found guilty or suspected of evil, they may imprison by their bodies as they shall think fit (c). The defendant and the proctor were examined: and the latter justified his suspicion of the intention of the parties by the circumstances under which they were found and apprehended. It was also proved that the Spinning House was the usual place of imprisonment of the university, and was subject to the regulation of the secretary of state, and visitation of the government inspector. The contention on the part of the plaintiff at the trial was, that the charter did not justify the arrest and incar- ceration of the plaintiff, there being nothing to shew that she was a person of loose or immoral character, or that she had been guilty of any offence punishable by law; that the’ proceeding before the vice-chancellor, no witnesses being called to prove the charge alleged against the plain- tiff, and no opportunity being offered to her to defend herself, was oppressive and illegal; and that her commit- ment without warrant was a gross and unconstitutional violation of the law. It was further contended that the Spinning House was not a fit and proper gaol for the vice- chancellor to.commit to ; and that the depriving the plain- tiff of her clothes, and substituting the prison garb, was an unreasonable and improper violation of the liberty of the subject. It was, however, admitted by the plaintiff's counsel that the vice-chancellor had, throughout the proceedings (b) ‘De et pro omnibus et publicis (c) ‘Ac omnes et singulas illas mulieribus, pronubis, vagabondis, et personas quas iidem cancellarius, aliis personis de malo suspectis, ad magistri, &c., super aliquod hujus- dictam villam et suburbia, ferias, modi scrutinium, scrutationem, sive mercatus, nundinas, etloca preedicta, inquisitionem, reas seu suspectas de seu ad eorum aliquem venientes sew malo invenerint.” confluentes.” Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 743 complained of, acted bond side and according to the best of | Ker his judgment and discretion. Neviuie. On the part of the defendant, it was submitted, that Argument assuming the evidence given on the part of the plaintiff tO defendant. be true, it sustained all the material allegations in the defendant’s pleas; and that the vice-chancellor, having acted throughout in the capacity of judge of a court of record, and having as such adjudicated to the best of his judgment upon a matter within his jurisdiction, brought before him for judicial determination, no action could be maintained against him in respect of anything so done by him however mistaken he might have been in respect either of fact or of law. : The learned judge, reserving leave to the defendant to move to enter a verdict for him upon the above ground, summed up, elaborately reviewing the facts and the argu- ments urged on the one side and on the other, and concluded by leaving three questions to the jury,—lst, whether the questions proctors and the vice-chancellor had reasonable cause: of the jan. suspicion that the plaintiff was in company with the undergraduates for idle, disorderly, and immoral purposes ; —2ndly, whether the vice-chancellor duly heard and-exam- ined the plaintiff ;—3rdly, whether the place of imprison- ment and treatment of the plaintiff therein were proper and reasonable. The jury found that the proctors had reasonable cause for suspicion ; and, in respect of the hearing and examina- tion of the plaintiff, that the defendant had not made due inquiry into her character, and that the punishment was undeserved : but that the complaint of the prison and the treatment therein was unfounded. Upon this finding, his lordship directed a verdict to be mutry of entered for the plaintiff The damages were assessed eee at 40s, Mr. Edwin James, Q.C., moved, on behalf of the plaintiff, for a new trial on the ground of misdirection on the part of the learned judge in telling the jury that a Digitized by Microsoft® 744 CONSTITUTIONAL LAW. Kewr warrant in writing for the commitment of the plaintiff Neviitr, was not necessary (d); and also in the construction put upon the charter (as to which he submitted that “ persons sus- pected of evil” did not mean “persons who had placed themselves in such a position that their acts might result in evil,” but “ persons whose previous conduct and cha- racter rendered them objects of reasonable suspicion,” which was not pretended to be the case with the present plaintiff); and in omitting to tell the jury that there was no legal hearing and examination of the plaintiff by the defendant before her commitment (as to which he sub- mitted that every hearing must be conducted according to .known legal principles, the witnesses in support of a charge being examined in the presence of the accused,—a right recognized by the 2nd section of the Prisoners’ Counsel Act, (6 & 7 Will. 4, c. 114), and The King v. Crowther (e); and also in omitting to tell the jury that the gaol in question was a private gaol, and that the defendant had no right to commit the plaintiff thereto. The Court suspended its decision upon this motion until the defendant should have moved to enter the verdict for him pursuant to the leave reserved to him at the trial. Sir Fitzroy Kelly, Q. C., afterwards moved, on the part of the defendant, for a rule to shew cause why the verdict should not be entered for him upon the above finding. He submitted that the imprisonment complained of was a judicial act by the defendant, a judge of a court of record, acting bond fide in a matter in which he had jurisdiction, and therefore not the subject of an action, even though he erred in point of fact or of law, or had been wanting in prudence or discretion (/). Upon these motions the rule was drawn up as follows:— (d) Ex parte Gray, 2D, & L. 539. 354; 12 Mod. 886; Holt, 184, 395; ()1T. R125. 1 Lord Raym, 218, 454 ; Carth. 491; (f) He referred toGroenvelt v.Bur- | Hamond v. Howell, 1 Mod. 184, 8. C. well, 1 Salk, 200, 896, S.C. 8 Salk, 2Mod. 218 ; Garnett v. Ferrand, 6 B. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 745 It is ordered that the plaintiff shall shew cause why %=” the verdict should not be set aside, and a verdict be Nevinat. entered for the defendant, pursuant to leave reserved, on Rule nisi, the grounds,—l1st, that the defendant acted as a judge and is not liable to an action ;—2ndly, that the finding of the jury, except where in favour of the defendant, is immate- rial: the said plaintiff being at liberty, on such cause being shewn as aforesaid, to raise any points contended for by the plaintiff on the motion already made to the Court on behalf of the said plaintiff—each of the said ‘parties being at liberty to appeal on all questions fit for the Court of Error: And it is further ordered, that, at the time of such cause being shewn as aforesaid, the said plaintiff shall be at liberty to insist,—Ist, that the judge presiding at the said trial misdirected the jury in holding that a warrant in writing was not necessary ;— 2ndly, “that the said judge put a wrong construction upon the charter ;—8rdly, that he ought to have told the jury that there was no legal hearing or examination by the vice-chancellor ;—4thly, that he ought to have told the jury that the prison in question was a private gaol, and that the vice-charcellor had no right to commit to it: the said plaintiff to be in the same position as to setting aside the said verdict found in this cause, or appealing to the Court of Error, as though a separate rule had been granted by the Court to the said plaintiff on the grounds above- mentioned. Mr. Lush, Q. C., Mr. Welsby, and Mr. Couch, in Easter Term, 1861, shewed cause. They submitted, that the legal effect of the finding of the jury was, a negation of the material part of the third plea, to sustain which it was essential for the defendant to shew that he had duly heard and examined and was satisfied of the guilt of the accused (g) ; &C. 611; and Lx parte Death, 18 pel v. Child, 2 0. & J. 558; per Q. B. 647. Lord Tenterden, C. J., Basten v. (g) R.v. Simpson, 1 Stra. 44; Ca- Carew, 3 B. & C. 649, 652. Digitized by Microsoft® 7 46 Kempe wv NEVILLE. — CONSTITUTIONAL LAW. that there cannot legally be an imprisonment without a record or a conviction and a warrant (1), which warrant must.exist at the time, and cannot be drawn up after- wards (2), though a conviction may: that the charter granted by Queen Elizabeth to the university, or the statute which confirmed it, did not invest the vice-chan- cellor with the authority of a judge of a court of record, nor was the plea framed on that supposition : that, though ordinarily none but a court of record can punish by fine and imprisonment (j), yet the mere power to fine and imprison does not per se constitute a court of record ; and that the Spinning House was not a legal place of imprisonment (k). Sir Fitzroy Kelly, Q. ©, Mr. O'Malley, Q.C., and Mr. Denman, Q. C., in support of the rule contended in substance as follows :—That the defendant was entitled to a verdict upon the evidence as ft stood at the close of the plaintiff’s case ; that the vice-chancellor acted as a judge of a court of record, though with a limited jurisdiction, and was protected in all he did; and that the objections urged on the part of the plaintiff were void of foundation (2) : That (h) Paley on Convictions, 215, 888 ; 1 Hale P. C. 583; R. v. Beck, 1 Stra. 127; per Yates, J., Strick- land v. Ward, 7 T. R. 631, a, 633, u.3 Ex parte Bassett, 6 Q. B. 481; R. v. Nesbitt, 2D. & L, 529; Prickett v. Grater, 8 Q. B. 1020. 5 (i) Fabrigas v. Mostyn, 1 Cowp, 161; Hutchinson v. Lowndes, 4 B. & Ad. 118. (j) Dv. Bonhams Case, 8 Rep. 107; Beecher’s Case, Id. 160, b. (k) Bacon, Abridgment, Gaol and Gaolers (A) ; and see stats, 23 Hen. 8, c, 8, and 5 & 6 Will. 4, ¢. 38. () Gwinne v. Poole, 2 Lutw, 935, 1560; Groenvelt v. Burwell, 1 Salk. 200, 8. C. 1 Lord Raym. 454; Carth. 491; Godfrey's Case, 11 Rep. 42 ; The Case of Conspiracy (Floyd v. Barker), 12 Rep. 23; Bushell’s Case, 1 Mod. 119; Hamond v. Howell, 1 Mod. 184, 8.C. 2 Mod. 218; Fabrigas v. Mostyn, 1 Cowp. 161; Calder v. Halketi, 8 Moo. P. C. C. 23; Taaffe v. Lord Downes, 3 Moo. P. OC. C. 36, n.; Doswell v. Impey, 1 B. & C. 163 ; Dicas v. Lord Brougham, 6 C. & P. 249; Case of the Marshalsea, 10 Rep. 618, b.; Houlden v. Smith, 14 Q. B. 841; Garnett v. Ferrand, 6B. & ©. 611; Tozer v. Child, 7 E. & B. 377; Cave v. Mountain, 1M. & G. 257; Hutchinson v. Lowndes, 4B. & Ad. 118; Ackerley Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. the finding that the vice-chancellor did not make duc TAT Kemp inquiry as to the plaintiff’s character of the persons to Neviuux, whom she referred, was altogether idle and immaterial ; for that, assuming he was wrong in this respect, it would amount to nothing more than an improper rejection of evidence, which never could be suggested to form a ground of action against the judge: That, as to the warrant, if necessary, the existence of a valid warrant at the time would be presumed, and that at all events, the formal warrant afterwards drawn up was sufficient: That, as to the prison, if that was a question for the jury, they had disposed of it by finding that it was a reasonably fit and . proper place, and, if a question of law, the evidence shewed it to be a legal one (m): And that the mere commitment to a wrong gaol was not the subject of an action (7). Cur. adv. vult. Erez, C. J., delivered the followmg judgment of -the suagmont. Court :— ; In this case it has been contended, on behalf of the defendant, that the rule to enter a verdict for him should be made absolute, either on the leave reserved at the trial upon the close of the plaintiff’s case, or on the finding of the jury; and we are of opinion that he is entitled to succeed on each of these grounds. The declaration was for imprisonment. The plea set out the charter, which empowered the tniversity, by their officers, to make search in the town of Cambridge for common women and other persons sus= pected of evil, and all such persons as they should, upon such seareh, find guilty or suspected of evil, to punish by v. Parkinson, 8M. & 8. 411; BR. ¥. Book 2, 6. 16, §§ 8, 123 3 Bla. Com. Barker, 1 East, 186; Massey v. 24; 25, Johnson, 12 East, 67, 82; Gray v. (m) Smith v. Hillier, Gro. Eliz. Cookson, 16 East, 13; Britta v. 167; Exc parte Evans, 8 T. R. Kinnaird, 1 Brod. & B. 432;5.C. 172. 4 J. B. Moore, 50; Hawk. P, C. (n) Com. Dig, Imprisonment (B). Digitized by Microsoft® 748 CONSTITUTIONAL LAW. Kexe imprisonment or otherwise as to the chancellor or vice- xeviuz, Chancellor shall seem fit. The plea then proceeded to ~~ allege that the charter aforesaid had been confirmed by statute as fully asif it had been repeated verbatim therein, and that the proctors, by command of the university, on a search in Cambridge, found the plaintiff and other women assembled in a carriage, in company with some scholars of the university, and then reasonably suspecting the plaintiff of evil,—that is, of so being in company with the said scholars for idle, disorderly, and immoral purposes,— apprehended the plaintiff, and brought her before the defendant, the vice-chancellor, in order for her exami- nation touching the premises; whereupon the defendant , did hear and examine the plaintiff, and was satisfied of the matters aforesaid, and caused her to be punished by imprisonment in a fit and proper place of confine- ment. The replication admitted the statute, and took issue upon the rest of the plea. The plaintiff in her evidence stated that she had been apprehended under the circumstances alleged in the plea, and brought before the vice-chancellor by the proctors, and that the vice-chancellor made inquiries of her respect- ing the said circumstances, and heard her answers and her request that reference might be made to some persons for her character, and then pronounced sentence of imprison- ment for fourteen days in the Spinning House, where she was subjected to the treatment complained of in the declaration, the same being, as far as appeared, the usual course. She also stated that she had no disorderly or immoral purpose ; that the charge was not made, and the witnesses were not examined, in her presence; that no inquiry was made of the persons to whom she had referred for her character; that there was no examination of any one upon oath; and that there was no warrant of com- mitment, as far as appeared to her. The other witnesses for the plaintiff corroborated these Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. statements, and added nothing that is relevant to the present inquiry. An admission was made by the plaintiff’s counsel, that the defendant, as vice-chancellor, had, throughout the pro- ceedings complained of, acted according to the best of his judgment and discretion. The counsel for the defendant thereupon contended, that, on the assumption of this evidence being true, all the material allegations in the plea, which were put in issue by the replication, were proved thereby ; that there was no question of fact for the jury, and that therefore they ought to be directed to give their verdict for the defendant. "The substance of the contention was, that this evidence proved that the vice-chancellor acted throughout in the capacity of a judge, holding office under the charter, and adjudicating, according to the best of his judgment, upon a question within his jurisdiction, brought before him for judicial determination ; and that, if this was true in fact, it followed that im law no action of trespass could be sustained against him, as judge, for anything so done by him in that capacity, although there might be a mis- taken opinion in respect either of fact or of law. ‘Upon this point leave was reserved to the defendant to move to enter the verdict for him. In pursuance of this leave, this rule was obtained ; and, after careful attention to the arguments and authorities, we have come to the conclusion that it should be made absolute. We are of opinion, that, as the charter in express terms invests the vice-chancellor with authority to punish, by imprisonment or otherwise as he should think fit, he thereby became invested with judicial authority, and a judge of record, and entitled to all the protection attached by law to the judicial office; and, although it does not appear to us to be essential for the defence to rely on his being a judge of a court of record, we are of opinion, that, Digitized by Microsoft® 749 Kemp ” v. NevICe, 750 Kempe Vv CONSTITUTIONAL LAW. when he was so empowered, he thereby became a judge of Neviure. a court of record, entitled to the protection attached by law to that office. One important practical consequence resulting from the vice-chancellor being considered as a judge of a court of record is this, that the proceedings before him can be proved or disproved by the record thereof only, which record may be made up at any time, whenever it may become necessary to establish an issue duly raised.. In the present case, the plaintiff took issue upon the facts tried by a jury, and did not take any issue upon the record of the alleged proceedings, which would be properly triable by the Court upon inspection of the record after it had been brought here by certiorari. We are further of opinion that the jurisdiction to hear and determine and pass sentence of imprisonment attached when the proctors, being officers of the university, brought before the vice-chancellor for adjudication a person found by them in Cambridge, and apprehended by them there as being a person suspected of evil, within the meaning of the charter; that, as the charter defines no form of pro- ceeding, either for the hearing, or the determination, or the committal, an action of trespass could not be sustained for any of the judicial acts complained of. The authorities support this opinion. The case of Groenvelt v. Burwell (0), bears a strong analogy to the present. There, the declaration was for false imprisonment. The justification shewed that a charter of Henry VITI., confirmed by statute, invested the censors of the College of Physicians with authority to supervise all physicians practising medicine in London, and to punish them for bad practice, by fine and imprison- ment; that the plaintiff used the faculty of medicine in London, and attended a patient, and treated her unskil- fully ; that a complaint was made to the censors, who (o) 1 Ld, Raym. 454; 8. GC. 1 Salk. 200; Carth, 491, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. inquired into it, and heard witnesses and the plaintiff, and adjudged him guilty of bad practice, and sentenced him to imprisonment. ‘The plaintiff argued that the plea was bad because it did not shew sufficient jurisdiction in the censors. But Holt, C. J., delivering the judgment of the Court, decided that the censors had entitled themselves to a sufficient jurisdiction,—first, over the person of the plaintiff, because he had practised in London,—secondly, over the subject matter, viz., the unskilful administration of physic,—thirdly, over the fact for which he was pun- ished, because it was committed within the jurisdiction, viz., in London : and he goes on to say, that, where a man has jurisdiction over another man in all these particulars, it is apparent, that, whether the matter of fact be such as is alleged or not, it is not traversable, but the plaintiff is concluded. This judgment applies to the plea now in question. The vice-chancellor has the same power of adjudication over the persons apprehended in Cambridge by the proctors, as the censors had over persons practising medicine in London; also the same power over the sub- ject matter, viz., the liability of the plaintiff to be appre- hended on the ground stated in the plea, as the censors had over the unskilful administrators of physic; also the same power in respect of the place, viz., Cambridge, as the censors had in respect of London. Lord Holt further says that the fact of which the plaintiff is convicted is not traversable, because the authority of the defendants is absolute to hear and determine the offence, and that persons who are judges by law shall not be liable to have their judgments examined in actions brought against them, He further shews, by authorities, that a jurisdiction to fine and imprison, created by statute, is a court of record. Upon these principles, he answers all the objections made in that case to the course of proceeding, and, among others, the objection that the witnesses had not been examined on oath. a The rule that a judicial officer cannot be sued for an Digitized by Microsoft® 751 Kemp ». NEVILLE, 752 CONSTITUTIONAL LAW. Kru adjudication according to the best of his judgment upon a Neviar, matter within his jurisdiction, and also the rule that a ~~ matter of fact so adjudicated by him cannot be put in issue in an action against him, have been uniformly main- tained. We shall, therefore, only refer shortly to some other cases shewing the variety of occasions on which these rules have been applied: and we begin with the justly celebrated judgment of Powell, J., in Gwinne v. Poole (p). There, the defendant was held not to be liable in trespass, although, as judge of an inferior court, he had caused the plaintiff to be arrested in an action where the cause of action arose out of his jurisdiction; and, although the cupias was issued without previous summons, and was not made returnable at a certain time, yet he was justified because he acted as judge in a matter over which he had reason to believe that he had jurisdiction. In Floyd v. Barker (q), the judge and the grand jury were held not liable to be sued in the Star-Chamber for a conspiracy in respect of their acts in Court, in convicting of felony. In Hamond v. Howell (r), the judge who committed for an alleged contempt, under a warrant shewing that in truth no contempt had been committed, was held not liable in trespass, because he had jurisdiction over the question, and his mistaken judgment, together with the void war- rant founded thereon, was no cause of action. In Cave v. Mowntain (s), the justice who committed the plaintiff on an information which contained no legal evidence either of any offence or of the plaintiff's participation in that which was supposed to be an offence, was held not to be liable in trespass, because the information was considered to be directed against an offence over which the justice had jurisdiction, if there had been any proof thereof. In Met- calfe v. Hodgson (t) the defendant was held not liable for taking insufficient bail in a cause in a local Court, because (p) 2 Lutw. 1560. _(s) 1 Scott N. R.182;5.C.1M.& (q) 12 Rep. 23. G. 257. (r) 2 Mod, 218 (t) Hutton, 120, Digitized by Microsoft® RELATION OF .THE SUBJECT TO THE EXECUTIVE. in that Court it was a judicial act by him. In Garnett v. Ferrand (uw) the coroner who removed the plaintiff from the place of an inquest was held not liable in trespass, as the removal was ordered by him in a judicial capacity. In Tozer v. Child (x) the.churchwarden was held not liable for refusing a lawful vote in a vestry, because, although he was acting partly in a ministerial capacity in receiving the votes, yet he was also acting partly in a judicial capacity in refusing a vote, and in that capacity he was not. liable for a mistake, if he acted according to the best of his judgment. In Calder v. Halket (y) the magistrate having jurisdiction over Asiatics in Bengal, but not over Euro- peans, was held not liable in trespass for an apprehension of the plaintiff under a warrant issued by him, he not knowing the plaintiff to be European. The Privy Council say that trespass will not lie for a judicial act without jurisdiction, unless the judge had the means of knowing the defect of jurisdiction : and it lies on the plaintiff in every case to prove that fact. In Houlden v. Smith () the judge of the County Court was held liable in trespass because he was within the exception thus laid down, and had the. means of knowing that he had no jurisdiction. In Taaffe. v. Lord Downes (a) the judge was justified by a plea in trespass shewing a warrant issued by him in his capacity of judge, although the plea did not shew that the warrant was lawful, but was purposely confined to the right of a judge to protection. Throughout these cases, and many others, the vital im- portance of securing independence for every judicial mind is earnestly recognised. The principle applies in its full extent to the judicial duty to be performed by the vice-chancellor, and he is therefore entitled to the same protection. As the defendant had jurisdiction in respect of the matter, and the person, and the place, it does not (u) 6B. & C. 611. (2) 14 Q. B. 841, (z) 7H. & B. 377. (a) 3 Moo. P. C. C. 36, n. (y) 8 Moo, P. C. ©. 28. 30 Digitized by Microsoft® 753 Kemp v NEVILLE. 754 CONSTITUTIONAL LAW, Ker appear to us to be essential to rely on his being a judge of Neve. a court of record; but we add some further authorities shewing that the power to imprison made him a judge of record, The statute of Westminster II. empowered certain au- ditors to imprison bailiffs who should be in arrear in their accounts. Lord Coke says by this Act the auditors are judges of record (0). In Godfrey’s Case (c) it is said no Court can fine or imprison which is not a court of record. In Beecher’s Case (d) it is said, Nulla curia quee recordum non habet potest imponere finem, neque aliquem mandare carcert, quia ista spectant tantum- modo ad cwrias de vrecordo. In the report of Groenvelt’s Case, under the name of Dr. Grenville v. The College of Physicians (¢), it is said, that, wherever there is a power de novo created by parliament. to fine and imprison, either of these two makes it a court of record. Although in Dr, Bonhams Case (f) the same principle is not affirmed ; yet all that Lord Coke says there extrajudicially, after deciding that the action lay, has been doubted by Lord Holt in Groenvelt’s Case, and attributed to the desire of Lord Coke to support a graduate of Cambridge, and to prevent what he considered an affront of the university, which must be venerated. The plaintiff’s counsel, in shewing cause against this tule, relied mainly on objections in relation either to the hearing, or the warrant, or the prison ; and we proceed to advert to cach of them in their order, In respect of the hearing, it appeared that the plaintiff stated what she chose in answer to inquiries concerning the charge ; that the vice-chancellor received information from the proctors without oath; and that the persons to whom the plaintiff referred were not sent for, As to the inquiries addressed to the plaintiff, they seem to us to be (b) 2 Inst. 380. (e) 12 Mod, 388. (c) 11 Rep. 43, b. (f) 8 Rep. 107. (a) 8 Rep. 58. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. reasonable, in order to give her an opportunity of an- swering or explaining the facts. After hearing her answers, the vice-chancellor might with reason be satisfied that the facts existed on which the proctors acted, and was justified in adjudicating thereon. As to receiving information not upon oath, there is no express provision in the charter enabling the vice-chancellor to administer an oath ; and the cases shew that it was not for this purpose essential to do so. In Dr. Groenvelt’s Case, the objection was made; but Lord Holt was clear that the omission to hear evidence upon oath would not make the defendant liable in trespass (g). In Basten v. Carew (h) the objection was made that the magistrates, acting judicially, must proceed on evidence given under the sanction of an oath ; but the Court decided against it, and held, that, where the statute creating the jurisdiction did not direct the justices to make inquiry upon oath, the Court could not require it to be done. In that case, the statute related to vacant pos- session, to be ascertained in great measure by personal inspection, and so within the knowledge of the justices. The jurisdiction here in question relates to matters sup- posed to come within the observation of the officers of the university, upon a search properly made by them, and also supposed to require a summary interference on their part. Unless the legislature had expressly declared it, we should not presume an intention to make evidence upon oath essential for this purpose. With respect to the objection that the defendant did not send to the persons referred to by the plaintiff for her character, he was not under any legal obligation so to do; it was a matter for his own dis- cretion; and, if he acted therein according to the best of his judgment, as it was admitted that he did, his omis- sion to make this inquiry was no ground for maintaining trespass. We must add, that it would in our opinion be most inconvenient and objectionable that the validity of : (9) 1 La. Raym. 472, (t) 8B. & C, 649. 802 Digitized by Microsoft® 755 Kemp vw NEVILLE. 756 Kemp Yu Nevinie, CONSTITUTIONAL LAW, judicial proceedings should depend on the opinion of a jury whether there had been a sufficient hearing of the parties: and, indeed, as we have already observed (i), the question whether there has been such a hearing, must, in the case of a court of record, be decided conclusively by the record itself. With respect to the warrant, it was proved that a writing was made when the plaintiff was committed ; but that writing was not produced by the defendant when called for, after notice to produce: and we assume that it was void as a warrant. We have before observed, that, in Hamond v. Howell (7), the warrant was void on the face of it: so it was in Groenvelt v. Burwell ; for, in each case, the prisoner had been discharged by habeas corpus: never- theless, the action did not lie in either: therefore, if a void warrant is the same as no warrant, the absence of a war- rant would not sustain the action. We would further observe that all judges of record have power to commit to the custody of their officer, sedente cwrid, by oral com- mand, without any warrant made at the time (4). This proceeds upon the ground that there is, in contemplation of law, a record of such commitment, which record may be drawn up when necessary: Throgmorton v. Allen (0); and see the judgment of Parke, B., in Watson v. Bodell (m). Indeed, for a like reason, no warrant is required for the execution of a sentence of death (n). The rule thus established seems peculiarly applicable to the case of a committal to the gaol appropriated to the Court, as in the present case. A warrant seems no more necessary or useful, under those circumstances, than would a written authority be from the keeper of the gaol to the warder who locks up the cell, There- fore upon this ground also, the defendant is entitled to (i) Ante, p. 750. referred to. (j) 2 Mod. 218. (7) 2Roll, Abr. Trespass, C., 558, (k) See Ex parte Fernandez, 10 C. (m) 14M. &W.57 B. N.S, 8, and the authorities there (n\ 2 Hale, P. C. v.57, p. 409. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. succeed, the vice-chancellor being a judge of record. 757 Kemp Again, it has been held that a prisoner is in lawful Nevitun, custody, although committed to a prison for the purpose of being again brought up for re-hearing, without any warrant, commitment, or written authority. One Gooding had assisted a prisoner, so committed, to escape, and, being indicted therefor, contended that the custody was not lawful on that account, and, if so, there was no offence: but the judges decided unanimously that the custody was lawful, notwithstanding there was no writing: The King v. Gooding, cited in Davis v. Capper (0). Now, the jurisdiction under the charter is left largely to the discretion of the vice-chancellor ; and an imprisonment thereunder may be thought to be in closer analogy with a commitment to suppress immediate disorder, and for fur- ther inquiry, than with a commitment in execution of a sentence for a definite crime. The description of the offence is extremely undefined, and the power is, to im- prison, not only those who are guilty, but also those who are suspected of evil. In trusting this wide discretion to the university, the legislature must have considered that it would be exercised only according to need, for sup- pressing immediate disorder : and it seems essential for its reasonable exercise that there should be power to make further inquiry by the officers of the university, and to remit the imprisonment whenever the result of such inquiry should make it right so to do, as was the case with the present plaintiff. It is not, however, necessary to pursue this subject further. Suffice it to observe that the proposition advanced in argument, that the law requires a warrant in every case of commitment, is clearly erroneous. We therefore are of opinion that a committal in the exer- cise of this peculiar jurisdiction, where no special method is directed by the statute, although it was not shewn to be made under a warrant, gives no cause of action. The case (0) 10 B, & C. 84. Digitized by Microsoft® 758 CONSTITUTIONAL LAW. Kexp of Hutchinson v. Lowndes (p) was relied on for the plain- Nevixe. tiff to prove the contrary. There, the defendant was held “~~ liable in trespass. because he committed the plaintiff to prison orally, without any warrant in writing, and kept him in prison beyond a time reasonably required for making out a warrant: but the ground of the judgment is expressed to be, because the statute which created the special authority under which the committal was made, also enacted that the authority so created should be exer- cised by making a warrant in writing. The decision, con- fined to that ground, is, by implication, an authority against an action of trespass for a commitment without a warrant, where the statute does not enact that the newly- created authority shall be exercised by warrant, and where there is no implication that the legislature intended to make a warrant essential. We should further observe, in respect to Hutchinson v. Lowndes, that the plea was the general issue by statute; but, if the justification had been pleaded im eaxtenso, as here, the plaintiff could not have recovered for the excess of jurisdiction in imprisoning beyond the time so reasonably required, without a special replication, or a new assignment of excess. So, if the plaintiff here relied on any excess beyond the justification, she could not avail herself of it without so pleading. With respect to the objection that the place of impri- sonment was unlawful, because it was not proved to be a common gaol, that also appears to us to be unfounded. In support of it the plaintiff relied on the general rules stated in Bacon’s Abridgment(q), that gaols can only be erected by Act of Parliament, and on the statute of Henry IY. (r), requiring a commitment to be made to a common gaol, and on the absence of any grant of a gaol to the university. But, considering the purpose for which the jurisdiction was created, and the nature of the fact for which the party was to be imprisoned, and (p) 4B. & Ad. 118. (q) Gaol and Gaoler(A). —() 6 Hen, 4, «. 10. Digitized by Microsoft® « RELATION OF THE SUBJECT TO THE EXECUTIVE. referring to the observations before made on this point in relation to the absence of a warrant, and considering also that the place of confinement appeared to be the accus- tomed place used for that purpose by the university, we are bound to presume the usage to be lawful till the con- trary is shewn,—which was not done here. There may be a lawful gaol in the keeping of a subject, by prescrip- tion or grant (s): and see the statute 19 Hen. 7, c. 10, giving the custody of all the king’s gaols, prisons, and prisoners to the sheriffs (f), and putting an end to many gaols held by individuals, except all gaols whereof any person or corporation have the keeping of estate of inhe- ritance or by succession. It well consists with history (1), and the evidence in this cause, that the university had, at the time of that statute, if not from its very founda- tion, among its privileges and franchises, a place for the confinement of some classes of prisoners committed by its own officers, and that the same privilege and fran- chise has continued by succession to the present time, and so made the place a lawful prison for the purpose to which it was applied. In The Queen v. Archdall (a) the right of the vice-chancellor to have the sole control over granting licences for the sale of beer in Cambridge, was disputed ; and the judgment was for the university, for reasons which may be adopted in the present case. The Court there took notice that a control of the most absolute kind in certain respects was necessary for the preservation of discipline and morals, and the prevention of the dis- order which the age and dispositions of the younger students would tend to produce ; that the university, gene- rally a favoured body, was not unlikely to procure from the Crown what might reasonably be asked for, and, being a learned body, would procure it in such a form as would render the grant .valid. The Court further felt itself bound to presume in favour of the existing user, and (s) See 2 Inst. 100. / (u) See 4 Inst. 255. (t) See stat. 21 & 22 Vict. c. 22. (c) 8A. & HE, 281, Digitized by Microsoft® 759 Kemp Vv. - NEVILLE. 760 ; CONSTITUTIONAL LAW. Kee refused to call on the vice-chancellor to justify the exercise Neviuxx, of an ancient practice. If the place was lawful, it was not ~~ contended that the treatment therein would, upon these pleadings and this evidence, constitute a substantive cause of action against the defendant. For these reasons, we think that the defendant is en- titled to make the rule absolute to enter the verdict for him, pursuant to the leave reserved at the close of the plaintiff's case. We consider that the replication, admit- ting the statute which confirmed the charter set out in the plea as fully as if it was repeated verbatim therein, admitted the charter as set out. But, if it was not thereby admitted, then, on giving the charter in evidence, the right of the defendant would be the same. The other part of the rule—for entering the verdict for the defendant upon the special finding of the jury,—is thus rendered immaterial: but the general importance of the case induces us to make some remarks upon the phases which it presents from this latter point of view. The contested allegations in the plea were disposed of separately at the trial. The construction of the charter, and the absence of a warrant, were within the province of the judge, and not for the jury. Of the other allegations, three only were required to be left to the jury separately, viz. first, whether the proctors had reasonable cause for suspicion of the plaintiff; secondly, whether the vice- chancellor heard and examined the plaintiff; thirdly, whether the place of imprisonment, and the treatment therein, were lawful. The jury found that the proctors had reasonable cause for suspicion, and that the complaint of the prison and the treatment therein was unfounded ; but, in respect of the hearing and the examination of the plaintiff, they found that the defendant had not made due inquiry into her character, and (a matter clearly beyond their province) that the punishment was undeserved. This finding of the jury must be considered together with the course of proceeding at the trial. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. The facts to be deposed to by the plaintiff, were, for the most part, undisputed,—being confirmed by the evidence for the defendant. In respect of the facts themselves, there was no question: in respect of the effect of those facts, there was contest. Thus, the circumstances of the appre- hension were not in dispute; but the contest was, whe- ther, under those circumstances, the proctors had reason- able cause for suspicion. Thus, also, the statement of the ° plaintiff, that the vice-chancellor made inquiries of her, .and heard her answers, was not in dispute; but the con- test was, whether he had a right to put those inquiries to her, or to decide without hearing testimony on oath, or to decide without sending to refer to the persons mentioned by the plaintiff as knowing her character. The allegation was that the defendant heard and examined the plaintiff. The plaintiff contended that the jury ought not to find that he had done so, if they were of opinion that the hearing and examination were not properly conducted in all or either of these respects. It appears by the finding, and by what passed at the time of the verdict, that the jury were of opinion that the hearing was not properly conducted in this respect,—that the defendant did not make due inquiry into the plaintiff’s character. Now, although they meant their finding to support the plaintiff’s case, they did not mean to do so at the expense of truth, nor to disaffirm the plaintiff's account of what passed between her and the defendant when she was brought before him. It was accepted as an imperfect verdict, rather than that the trial should be rendered abortive by reason of the jury not coming to an agreement: and we consider we give effect to the intention of the jury if we put this construction upon the whole of their finding,— that all the allegations in the plea are proved, with this exception, that, after the hearing, the defendant did not make such due inquiry into the plaintiff’s character as he was in their opinion bound to do. In this sense, it cer- tainly did not amount to a verdict for the plaintiff, because Digitized by Microsoft® 761 Kemp v NEVILLE. — 762 Kreme Vv NEVILLE. NotE To Kempe v. NEVILLE. Liability of judicial officers ge- nerally. CONSTITUTIONAL LAW. there is no issue upon the question whether the defendant was bound to make the inquiry which the jury required : and we are clear that he was not legally bound to do so, It therefore was, in point of law, a verdict for the defen- dant, because it affirmed the truth of every fact and every inference necessary to support the defence, and which it was for the jury to decide, and it denied only an imma- terial fact, which ought not to affect the decision of the case. The result is, that the verdict entered for the plaintiff on this finding should be set aside, and the verdict entered thereon for the defendant, pursuant to the leave reserved. In examining the relation of the subject towards that branch of the executive by which justice is administered, and considering how far judicial officers are civilly liable for the mode in which they execute their duties, we must bear in mind the distinction between judges of the superior and those of the inferior courts; and the dif- ference between the action of trespass and that of case. This latter distinction, indeed, is not now of much prac- tical importance, for the Common Law Procedure Act, 1852 (y), has rendered it unnecessary to specify a form of action in the writ of summons, and has allowed the joinder of different forms of action in the declaration. Nevertheless, in tracing the various actions which have been brought against judicial officers, we must not lose sight of the fact that trespass lies for a direct injury, and case for indirect or consequential damage; also that, where trespass lies, the mere fact complained of is the founda- tion of the action, whereas in case against a judicial officer, an allegation of malice or corruptness of motive is to be looked for. (y) 15 & 16 Viets c. 76, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. The distinction between judges of superior and those of inferior courts is important; for, although an ample protection is extended to both by our law, it recognizes the position and dignity of the former, whereas it requires to be informed by plea as to the functions which the latter may discharge. As regards judges of the superior courts, at all events, a remark of Vaughan, C. J., in Bushell’s Case (z), seems applicable. “When the king hath constituted any man a judge under him, his ability, parts, fitness for his place are not to be reflected on, censured, defamed, or vilified by any other person—being allowed and stamped with the king’s approbation, to whom only it belongs to judge of the fitness of his ministers. . . . Nor must we, upon supposition only, either admit judges deficient in their office, for so they should never do anything right —nor on the other side must we admit them unerring in their places, for so they should never do anything wrong.” Again we read in Dutton v. Howell (a) that “except- ing the case of the common known general courts of justice in Westminster Hall, which are immemorial; if anything be justified by the authority of other courts, the same must be precisely alleged, and how their commence- ment was, either by custom or letters patent.” It would be impertinent here to repeat the numerous authorities cited in the Principal Case relating to the immunity enjoyed by judges of the superior courts; but it may be fit to mention a very ancient case (0), in which it was laid down that “no man shall have an action on the case against a judge of record for giving a false judg- (2) Ante, p. 125. (0) 1 Roll, Abr. 92; Year Bk. 9 (a) Show. P. C. 28, Hen. 6, 60. Digitized by Microsoft® 763 Note To KEMP v NeEvILLE. 764 Note To Kemp wv NEVILLE, — ‘CONSTITUTIONAL LAW. ment;” and also a remark of De Grey, C. J., in Miller v. Seare (c):—“It is agreed that the judges in the king’s superior courts of justice are not liable to answer per- sonally for their errors in judgment.” In Ferguson v. The Earl of Kimnoul (d), Lord Brougham said, “The courts of justice, that is the superior courts, courts of general jurisdiction, are not answerable, either as bodies or by their individual mem- bers, for acts done within the limits of their jurisdiction. Even inferior courts, provided the law has clothed them with judicial functions, are not answerable for errors in judgment.” And Serjeant Hawkins (e) observes as follows: —“As the law has exempted jurors from the danger of incurring any punishment in respect of their verdict in criminal causes, it hath also freed the judges of all courts of record from all prosecutions whatsoever, except in the parliament, for anything done by them openly in such courts as judges. For the authority of a Government cannot be maintained, unless the greatest credit be given to those who are so highly entrusted with the adminis- tration of justice; and it would be impossible for them to keep up in the people that veneration of their persons, and submission to their judgments, without which it is impossible to execute the laws with vigour and success, if they should be continually exposed to the prosecutions of those whose partiality to their own causes would induce them to think themselves injured.” Also Lord Tenterden, ©. J., in Garnett v. Ferrand (f), affirms that “no action will lie against a judge of record for any matter done by him in the exercise of his judicial functions.” (c) 2 W. BL 1141, 1144, (e) 1P.C. Bk. 1, ¢ 27, s. 6. (d) 9 Cl. & F, 289. (f) 6B. & C. 611, 625, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. It was suggested by Mr. Nolan, in his argument in Picton’s Case (9), that “the judges of his Majesty’s courts of Westminster Hall are not responsible before each other, because they are of equal rank, and in most cases they are eo-ordinate in authority ;” and in Sutton v. Johnstone (h), it was contended that “there is no court equal to the trial of the superior judges of the realm for facts done in judicature,” These latter words are ieaportant, for we shall find here- after that a judge of one of the superior courts may be tried for an offence which did not concern his judicature, and was committed quite independently of his judicial functions (7). As to the mode of pleading by a judicial officer relying on his immunity, in Houlden v. Smith (k), Patteson, J., says that a defendant acting as judge of a court of record is protected from liability at Common Law, and therefore in such a case a plea of not guilty is sufficient. But it is well settled that no one is entitled to the protection extended by our law to one clothed with the character of judge, unless he actually be such: therefore, if acting under an invalid appointment or commission, he will not be exempted from civil liability on the ground of enjoying judicial immunity (/). Having offered the above general remarks, I proceed to consider the civil liability attaching to judicial officers arranged as under :— One instance occurs in the Reports of an action against L Lord the highest judge in the land, which was at suit of an (g) 30 St. Tr. 749. (k) 14Q. B. 841, 852; post, p. 783. (h) 1 TR. 498, 585, ante, p, 694. (Z) Broom’s Comm. C. L., 3rd ed. (i) See BR. v. Johnson, 29 St. Tr. p.105; The Marshalsea Case, 10 Rep. 82; post, p. 792. 70. See Gahan v. Latte, post, p. 775. Digitized by Microsoft® 76 Note To Kk nue ear aie hancellor, we a Liability of particular judicial officers. 766 Note To Kemp uw. NEVILLE. Judge of a superior court. CONSTITUTIONAL LAW. attorney against Lord Brougham (m), to recover com- pensation for imprisonment under orders made by him as Chancellor, sitting in bankruptcy, against the plaintiff, for contempt in not paying over certain moneys to the assignees of a bankrupt ;—the only plea was not guilty. On the plaintiff refusing to be non-suited, Lord Lynd- hurst, C. B,, presiding at the trial, directed a verdict for the defendant, holding that as the Lord Chancellor was sitting in bankruptcy, and so exercising his general juris- diction, no such action could be maintained against him, and that the plea of the general issue was sufficient. A bill of exceptions was tendered to this ruling, and agreed to be drawn up ; but the case was not carried further. As regards the liability of a judge of a superior court, Taaffe v. Downes (n) claims attention. It was an action brought in the Common Pleas in Ireland for assault and false imprisonment. Pleas—Ist. The general issue. 2ndly. Not guilty, as to part, and as to the residue a justification, for that the defendant was Chief Justice of the King’s Bench (0), and, as such, issued a warrant under his hand, containing certain recitals, and commanding the persons therein named to apprehend and bring the plaintiff before him, or any of the justices of the King’s Bench, to be dealt with according to law (p). That the plaintiff was arrested under the warrant by a person named in it, brought before the defendant, and by him delivered to bail for his per- sonal appearance in the King’s Bench, on the first sitting day of the then next Michaelmas Term, and for his attend- ance there, from day to day, and from term to term, to answer all such matters and things as should be then and (m) Dicasv. Lord Brougham,6C. separately reported by Mr. Hatchell, &P. 249; 8.C, 1M. & BR. 309, A.D. 1815, (0) In Ireland, (n) 8 Moo, P, C. C. 86 0.3 8, C., (p) For alleged illegal conduct. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. there objected against him, on the part of the king. Issue was joined on the first, plea, and the plaintiff demurred generally to the justification. After argument the majority of the Court, upon the above pleadings, gave judgment in favour of the defendant. Mayne, J., observing “The action is for assault and false imprisonment. The plea in effect is, that all that is neces- sary or proper for the Court to inquire into in this action is, that the defendant is Chief Justice of the King’s Bench ; and as such, and.in the course of his office of Chief Justice, issued a warrant—legal on the face of it— to cause this plaintiff to do what was necessary for his answering the charge (in the warrant fully recited) of a criminal offence, fully also recited to have been sworn to; and that the only assault and imprisonment was the constable’s bringing the plaintiff to give bail, in the course of this proceeding. The plea of the Chief Justice does not say, that it is the right of a judge to. imprison without cause ; but that it is the right of a judge not to be called on, in every man’s action—upon every exercise of his official authority—to become a defendant, before a court and jury—to show and make out the case by which it was his duty, as a judge, to imprison the party charged with crime or misdemeanor, But what is the fact to be put in issue? It is this; the plea of the Chief Justice says, ‘You, the plaintiff, being imprisoned under my warrant, have a right to try by your action, in a court of law, whether I am a judge of the King’s Bench; and whether I did more against you than issue a warrant according to the legal course, upon an alleged criminal charge. IfI have done more, you can, on my plea, prove it. If I made a warrant the fraudulent cover for oppres- sion, or corruption, or malice, you can, on. my plea, aver Digitized by Microsoft® 767 Note To KEMP VD NEVILLE. 768 Norte To Kempe vv NEVILLE; -CONSTITUTIONAL LAW. that. If I have done anything against you, not in the course of my office, you can say so. If the charge recited in my warrant is no legal charge of an offence, your de- murrer will serve you. But I deny your right to try before this Court and a jury in this action the grounds of my judicial acts or the rectitude or legality of my judg- ment. The plaintiff, not content with. this answer, demurs : and thereby contends, that the Chief Justice is by law bound here in this action to come to trial, not only of the matter of fact which he offers for trial, but of all the facts, grounds, detail of proceedings, and circumstances of offence, charged against the plaintiff; and also, that he must discuss, and bring to decision before this Court, or the judge at nisi prius, the rectitude and reasons of his acts and judgment. The plea brings the case to the same question as if the plaintiff had declared, that the Chief Justice, acting as a judge of the King’s Bench, issued his warrant in the regular way, with recital of informations before him on oath, of a crime committed by the plaintiff; and that he held him to bail, to answer against that charge, in the proper court. The Chief Justice has done no more than bring on the record what the plaintiff omitted of these truths. If the plaintiff had so declared, the Chief Justice, I presume, would have demurred, and I would be of opinion that such demurrer ought to be allowed. It is now the same question, viz, Does the imprisonment now appear to this Court to have been a judicial act? If it does, the plea, standing ad mitted, is a bar. “A second question, scarcely attempted to be made at the bar, will not require much argument, and little more than an observation, viz., whether an action lies against a judge for his judgment or judicial acts 2 Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. “ A third question, rather mentioned than argued, was on the distinction between judicial acts, in court, and out of court, “ And first, as to the question whether an action lies against a judge, for his judicial acts. The Chief Justice is by the common law a depository of the king’s authority, for the purpose of administering justice to the nation— -he acts upon oath, and upon high confidence ; and imme- diately with his court represents the king in that sacred and important duty. The king does justice through his judges—they are his delegates; and they are accountable to him alone (q), for the pure and honest performance of their trust; and they and the king are, towards the people in dispensing the law, as it were, one individual authority, There must be some place and part in the stage of proceedings—some point in the administration of the law, where unqualified confidence is to be reposed and acknowledged; and, in the declaring of justice to ihe nation, that place rests with the king’s judges, “The difference between the judges of the superior and inferior courts has not been sufficiently attended to. The king’s judges stand next to, or with the king, or for him, appointed by him, and responsible to him; and he will have his justice done by them, and by them alone. The inferior judges stand under, and represent the authority of subjects ; they have only the responsible power of subjects entrusted to them; or they are placed at a distance in responsibility from the king, and are subject to the con- trol and direction of the superior courts. An action before one judge for what is done by another, is in the nature of an appeal ; and is the appeal from an equal to an equal” (7), (q) Ante, p. 763. be restricted to what is done in judi- (*) This, as before observed, must . cature, ante, p. 765. ‘ : 3D Digitized by Microsoft® 769 Nore To Kempe vy, NEVILLE, 770 Nore To Kemp Vv. NEVILLE. CONSTITUTIONAL LAW. “Judges are to be equally independent of the Crown, and of the people. If there must be parties in the nation, and one is inclined to degrade judges and intimidate them into subjection to their views, it may also hap- pen, that another party may be so inclined the next day ; the partisans of a king may wish to reduce them to servility—the partisans of anarchy or revolution, to render them their instruments of a worse despotism, or intimidate them from the performance of their duty, and from restraining the first and insidious efforts towards confusion and rebellion. The honest, good, and constitu- tional mind will always wish to find them entirely free and unbiassed ; and will rather entrust them with a high and unquestionable authority, and, if guilty, leave their pu- nishment to parliament alone, than hazard their fortitude and independence by the alarm, and question, pains and expense of as many actions as there may be acts of duty encountering the bad passions and prejudices of mankind.” “There was one case in England, where an attempt some- what similar to this was made; an action against the judges at the sessions in London (s); and there it was soon decided that no such action lay. Liability to every man’s action, for every judicial act a judge is called upon to do, is the degradation of the judge; and cannot be the object of any true patriot or honest subject. It is to render the judges slaves in every court that holds plea, to every sheriff, juror, attorney and plaintiff. If you once break down the barrier of their dignity, and subject them to an action, you let in upon the judicial authority a wide, wasting, and harassing persecution, and establish its weak- ness in a degrading responsibility.” Lord Norbury, C. J., after analysing the pleadings in (s) Hamond v. Howell, 1 Mod. 134; 2 Mod, 218, Digitized by Microsoft® RELATION OF. THE SUBJECT TO THE EXECUTIVE. this case, and stating that if the act in question, as com- plained of, could be legally considered as imputable to the defendant, in a capacity and character distinct from his judicial functions and the privileges with which his office was clothed, the decision of the Court would be against the plea; proceeded to observe, “it stands ad- mitted by the demurrer, that the defendant acted in the matter as a judge; and it has been given up in argument, that in order to support’ the plaintiff's positions, the act must appear to be merély ministerial, as contra-distin- guished from judicial; as it is conceded that for an act purely judicial, the action cannot be maintained against a judge. In the progress of this discussion, no definition has been given or legal boundary established, by which the act in question is proved to be excluded, or put out of the sphere of that class of official duties, properly called judicial, as distinguished from ministerial. Ifit be once established, that the act in question emanated from, and was appropriate to, the legal duties of the office of Chief Justice, it must, on this argument, stand as an act purely judicial, and as such it must be exempted by the law from responsibility to the party by action. Much argument has been expended in attempting to confine judicial acts to such only as are done in open court. But it has been demonstrated, that whether such acts as that in question be done by the judge in chamber, or sedente curid, the privileges connected with the duties of the judge’s situa- tion, and which are given for the public safety and advan- tage, in which the security and independence of the judge are interwoven, must necessarily await upon such acts, as if they are judicial.” Since the decision above abstracted, one case only calling for an application of the principles there enun- 3D 2 Digitized by Microsoft® 771 NoTE To EMP » NEVILLE. 772 NotE To Kemp vw. NEVILLE. Colonial Judge. CONSTITUTIONAL LAW. ciated has been reported. That was an action against a judge of the Court of Queen’s Bench at Westminster (¢), for improperly discharging a rule nisi obtained by the plaintiff in an action brought by her against one Vowles, whereby the plaintiff was put to expense. The defendant demurred on the grounds—1st. That no action lay against a judge of a superior court for anything done by him in his judicial capacity; 2ndly. That the declaration was bad for not alleging malice; and, 3rdly. That it was de- fective for not alleging want of reasonable and probable cause. On this demurrer judgment was pronounced in favour of the defendant. And an application by the plaintiff to amend, by introducing an allegation of malice and corruption, was refused; Crompton, J., observing, “Tt is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly: therefore the proposed allegation would not make the declaration good. The public are deeply inte- rested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexa- tious actions. In the present case there can be no doubt that the action is most improper and vexatious.” The liability of a colonial judge next calls for considera- tion; two recent cases are to be found concerning it. Calder v. Halket (uw) was an action of trespass, brought in the Supreme Court of Judicature, at Fort William, to recover damages for the arrest and false imprisonment of the plaintiff by the defendant, in his character of judge and magistrate of a criminal court—upon this ground, (t) Fray v. Blackburn, 3 B. & S. 576, (u) 3 Moo. P. C. C. 28, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. amongst others, that as the plaintiff was an European, the defendant had no authority over him, the jurisdiction of his court being confined to natives. After a verdict for the plaintiff in this case, the Supreme Court directed it to. be entered for the defendant, and from this direction the appeal was brought. The Judicial Committee of the Privy Council in giving judgment for the defendant below, said that, looking at the facts in evidence in the case, enough did not appear to make him a trespasser. “We must,” remarked the Court, “consider the defendant as being in the same situation asa criminal judge in this country, with the qualification, that he had no jurisdiction over one particular class, viz., the European-born subjects of the British Crown: and the question is, whether he is liable to an action of trespass for causing the plaintiff to be arrested, he being, in reality, exempt from his jurisdiction. “Tf the particular character of the plaintiff be not taken into consideration, and if the case be treated as if he had been a native subject, there is no doubt that the defendant would have been protected ; for it is not merely in respect of acts in court, acts sedente curid, that an English judge has an immunity, but in respect of all acts of a judicial nature, as was decided in Taaffe v. Downes (a), and an order under the seal of the defendant’s court, to bring a native into that court, to be there dealt with on a cri- minal charge, is an act of a judicial nature, and whether there was any irregularity or error in it or not, would be dispunishable by ordinary process at law. But the protec- tion would clearly not extend to a judicial act, done wholly without jurisdiction ; and it is contended, that this order, with reference to a British-born person, is altogether (x) Ante, p. 766. Digitized by Microsoft® 773 Norte to KEMP v. NEVILLE. 774 Note To Kemp Vv NEVILLE. CONSTITUTIONAL LAW, without jurisdiction, because such person was not answer- able to the general jurisdiction of the Court” (y). “The answer to the objection to the defendant’s juris- diction, founded on the European character of the plaintiff, is, that it does not appear distinctly in the evidence, upon which alone we are to act, whatever our suspicions may be, that the defendant knew, or had such information, as that he ought to have known of that fact ; and it is well settled that a judge of a court of zecord in England, with limited jurisdiction, or a justice of the peace, acting judicially, with a special and limited authority, is not liable to an action of trespass for acting without jurisdic- tion, unless he had the knowledge or means of knowledge, of which he ought to have availed himself, of that which constitutes the defect of jurisdiction ” (2). “It is clear that a judge is not liable in trespass for want of jurisdiction, unless he knew, or cught to have known, of the defect ; and it lies on the plaintiff, in every such case, to prove that fact” (a). “Tt does not appear from the evidence in the case, that the defendant was at any time informed of the European character of the plaintiff, or knew it before, or had such (y) The stat. 58 Geo. 8, v. 155, Bing. 78. So it was said by Lord 8, 105, was referred to, as not justi- fying the defendant. (2\ Citing Gwinne v. Poole, Lutw. 1566; The Marshalsea Case, 10 Rep. 68. (a) If a magistrate has no juris- diction by reason of the existence of facts which be cannot be supposed to know, but which are peculiarly within the knowledge of the party grieved, no action can be maintained against him if he received no notice of the facts: Pike v. Carter, 3 Kenyon, C. J., that if an action be brought in an inferior court, the cause of action not having arisen within its jurisdiction, the officers of the court could not be considered as trespassers in taking the defendant's goods; R. v. Danser, 6 T. R. 245. And in Olliet v. Bessey, Sir T. Jones, 214, the court said that it was im- possible for an inferior court, or ils officers, to know where the cause of action arose. ‘Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 77 information as to make it incumbent on him to ascertain Nore 70 that fact. The point, therefore, which is contended for by , the plaintiff, does not arise ; and it is unnecessary to deter- mine, whether, if distinct notice had been given by the plaintiff to the defendant, or proof brought forward that the defendant was well acquainted with the fact of his being British-born, the defendant would have been pro- tected in this case, as being in the nature of a judge of record, acting irregularly within his general jurisdiction, or liable to an action of trespass, as acting by virtue of a special and limited authority, given by the statute, which was not complied with, and therefore altogether without jurisdiction. “The only doubt their lordships have had in the consi- deration of this case is, whether the evidence was suffi- cient to shew that the defendant knew or ought to have known that the plaintiff was a British-born subject.” _ Gahan v. Lafitte (b) also came on appeal before the Privy Council. The appellants had been appointed judges of the Royal Court of St. Lucia under an invalid autho- rity, and the respondent had in an action of trespass recovered damages against them for false imprisonment upon the ground that the appellants never having been properly appointed judges, could not claim immunity as judicial officers. The Court held that the action had been well brought. We do not find that the liability of judges of Ecclesias- ey v. EVILLT, ge of icclesias- ~ o tical Courts has often been discussed. There was indeed tical Court. an expression of opinion on the subject in an early case (c), where a prohibition was granted to a Court Ecclesiastical upon this suggestion ; that the vicar-general had cited the (b) 8 Moo, P. C. C. 382. (c) Birch v. Lake, 1 Mod. 185. Digitized by Microsoft® 776 Note To Kemp vw. Nevitiz. CONSTITUTIONAL LAW. plaintiff ex officio to appear and answer to divers articles, and the Court said that the citation ex officio once in use had been virtually ousted by statute (d). IEf citations ex officio were allowed, whole counties, said the Court, might be cited without presentment; which would become a trick to get money. “And the party grieved can have no action against the vicar-general, being a judge, and having jurisdiction of the cause, though he mistake his power.” It must be remembered that the only mode by which ecclesiastical courts could enforce their decrees was ex- communication, and that by the common law an excom- municated person was under many disabilities (¢) ; hence an action has been held to lie against the judge of such a court for excommunicating a person in a cause of which he had not cognizance (/f), or for refusing to assoile after satisfaction had been made (9). Two modern cases occur of actions brought against eccle- siastical judges for unlawfully exercising the power of excommunication. Ist, Beawrain v. Scott (h), which was (d) By stat. 1 Eliz, ¢. 1, the Queen, by letters patent, might authorize any person exercising eccle- siastical jurisdiction, to administer an oath, ex officio, whereby a sup- posed offender was compelled to con- fess, accuse, or clear himself of any criminal matter, and thereby made liable to censure or punishment ; the branch of this statute relating to the said oath was repealed by 16 Car. 1, ce. 11, s. 38, and 13 Car. 2, c. 12, s. 4: see Jacob, Law Dict. Tit. Lx Officio. Thereupon the citation ex officio became virtually obsolete. See Birch v. Lake, 1 Mod. 185. (ec) 3 Bla, Com. 21st ed. 101-2, But by stat. 53 Geo. 3, c. 127, it was provided, that no person ‘‘pro- nounced or declared excommunicate,” shall incur thereby any civil penalty or incapacity whatever, save such imprisonment not exceeding six months, as the ecclesiastical court shall decree. And by the same Act, where a lawful citation or sentence has not been obeyed, the court has other means than that of excommu- nication provided for furnishing the contempt, 38 Steph. Comm., 5th ed., p. 452. (f) 3 Bla. Com., 21st ed., 101; Inst. 623; Doct. & Stud. Dial. 2, ¢. 32. (9) 2 Inst, 628. Et vide Bracton, lib. 5, fol. 408, 409. (2) 3 Camp. N. P. C. 388 ;8, C. separately reported hy Mr. Beaurain, ed. 1814, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. an action for unlawfully excommunicating the plaintiff under the following circumstances. The plaintiff was a practising attorney, the defendant was vicar-general of the Consistorial Court of the Bishop of London, and whilst a cause of divorce d& mensd et thoro was pending in that Court between a minor, son of the plaintiff, and his wife, to which cause the plaintiff was no party, the defendant summoned the plaintiff to appear and become guardian ad litem to his son; this the plaintiff refused to do, and, on such refusal, without any citation being served upon him, he was excommunicated by the defendant. On appeal, Sir John Nicholl, Dean of the Arches, held that the plain- tiff was compellable to become’ guardian ad litem to his son, and that the excommunication was regular; there- upon the matter was referred back to the Consistorial Court, by which the schedule of excommunication issued, and was duly published. Regard being had to the above facts, the plaintiff’s counsel contended that the action was maintainable on two grounds. Ist, Because the Ecclesiastical Court had no authority to compel the plaintiff to become guardian to his son. 2ndly, Because no regular citation or monition had been served upon the plaintiff before the excommuni- cation was directed. It was admitted that the plaintiff had previously made an affidavit in the suit respecting the appointment of a guardian ; but it was insisted that till a regular citation or monition had been served upon him he was not properly before the Court, wherefore the judge could have no authority to proceed to excommunication. On the other side, witnesses were called to prove that the plaintiff was bound to become guardian for his son (é), (4) Vide Bovaine's Case, .16 Ves. the Court of Chancery for writ, to 346, where, uron an application to be directed to the Bishop of London, Digitized by Microsoft® 777 Norte TO Kemp vw NEVILLE. 778 CONSTITUTIONAL LAW. Nore 10 and that the proceedings were regular. It was moreover nevi, Proved that the plaintiff had knowledge of the order to — become guardian ad litem as soon as it had been pro- nounced. Lord Ellenborough, C.J., left it to the jury to decide upon the effect of the evidence adduced, intimating that the practice of the Ecclesiastical Court was a question of fact to be decided by them, and stating that he himself did not perceive anything unreasonable in the plaintiff being required to become guardian ad litem in the manner described ; and that the plaintiff seemed to have had suffi- cient notice of the appointment according to the practice of the Ecclesiastical Court. The jury, nevertheless, found a verdict for the plaintiff with 40s. damages, observing that they did not mean thereby to cast the slightest reflection upon the character of the defendant. No motion was made for a new trial or in arrest of judgment. 2ndly. Ackerley v. Parkinson (k) was an action on the case against the vicar-general of the Bishop of Chester, and his surrogate, for unlawfully excommunicating the plaintiff; it was tried before Lord Ellenborough, when a verdict was found for the plaintiff, subject to the opinion of the Court on a case reserved setting forth that proceed- ings were taken in the Consistorial Court of Chester in a suit promoted by O., pretending to have interest in the goods, chattels, and credits of one A., deceased; that the plaintiff was thereupon cited at the instance of O., then to requiring him to absolve the plaintiff upon which, with regard to a son from this excommunication, Lord forisfamiliated, the father can be Eldon, C. (though he refused the writ compelled to be guardian ad litem.” on technical grounds) observed, ‘‘ At (kt) 83M. &§. 411, present I cannot sce the principle ; Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE, take on him letters of administration to the said A., to exhibit an inventory of all the goods of the deceased which had come to his hands, and also to render a true account of his administration. The case reserved further set forth—That the plaintiff did not take upon himself administration, and, after various delays, was decreed con- tumacious, and was excommunicated. That he appealed first to the Prerogative Court of York, and afterwards to the Court of Delegates, which latter Court pronounced for the appeal, and dismissed the plaintiff from the original citation, and from all further observance of justice in the said cause. Also, it was negatived that the defendants, or either of them, had acted maliciously. The question for the opinion of the Court was, whether the plaintiff was entitled to recover against both or either of the defendants; or whether a nonsuit should be entered. Two questions were made for the defendants; Ist, whether an action upon the case would lie against the Ecclesiastical judge under the circumstances stated, it being contended by the defendants that the judge had jurisdiction, although the proceedings were erroneous: 2ndly, whether the action would lie without malice, On the part of the plaintiff it was argued that the judge had no jurisdiction, as the Ecclesiastical Court could not compel any one to take out letters of administration ; that they could merely issue a citation in the alternative, call- ing upon him to take out administration, or to renounce, in which case administration might be granted to another. On the other hand it was contended by the defendants that though an action would lie against an Ecclesiastical judge, if he proceeded to excommunicate where he had no jurisdiction; yet, if he had jurisdiction, no action Digitized by Microsoft® 779 Norte To Kemp vV NEVILLE, 780 Note To EM vw NEVILLE. Commis- sioner of Bank- ruptey. CONSTITUTIONAL LAW. would lie against him though he wrongfully proceeded to excommunicate. It was further argued that here the defendants had jurisdiction in the cause, and had a right to cite the plaintiff before them; and though the citation, which left the plaintiff no option as to taking out adminis- tration, was void, it was no more than an erroneous pro- ceeding in a cause over which the Court had jurisdiction, and for which a judge could not be answerable. The Court took the view latterly presented, holding that the judge had a general jurisdiction over the subject matter, and though the citation was void, that the fact of the Court having in the course of exercising its jurisdic- tion come to an erroneous decision, afforded no ground for an action. In Ackerley v. Parkinson, the Court, having a general jurisdiction, made a false step in exercising it, whereas in Beawrain v. Scott, the plaintiff never was lawfully before the Court, the jury having thought that the defen- dant had no authority to call upon him to appear for the purpose of being appointed guardian ad litem. As shewing the liability which may attach to a Commis- ° sioner of Bankruptcy, several cases may be noticed. In Miller v. Sewre (2) such a commissioner was held liable to an action of false imprisonment for having improperly committed a bankrupt, on the ground that he had not satisfactorily answered the questions put to him; and in Doswell v. Impey (m) trespass was held not maintainable against commissioners of bankruptcy for committing a bankrupt upon the like ground. This case having been decided upon the words of the statute infra (n), that the bankrupt shall full answer make “to the satisfaction of (1) 2W. Bla. 1141, (m) 1B. & C, 163, (x) 5 Geo. 2, c. 80, 8. 16, Digitized by Microsoft® . RELATION OF THE SUBJECT TO THE EXECUTIVE. the commissioners.” Even in this view, however, the Court said that such commissioners would be liable to criminal prosecution for any abuse of their authority. In the sub- sequent cases of Isaac v. Impey (0) and Crowley v. Impey (p), no objection was taken that an action against the commissioners would not lie. In delivering judgment in Ferguson v. The Earl of Kinnoul (q), after commenting on the above cases, Lord Brougham referred to the Bankrupt Act, infra (7), as pro- viding that “the commissioners should have the protection of courts of record, that is, of the higher Courts, for the protection extends to all these, whether courts of record or not, as the High Court of Admiralty and Courts of Vice- Admiralty,” And ample protection is now extended to a commissioner in bankruptcy by express statutory provi- sions (s), so that to a declaration against him for any act done within the scope of his jurisdiction damaging the plaintiff, a plea of “ Not Guilty by Statute” will suffice, (0) 10 B. & C442, (p) 2 Stark. N.P, C, 261, (q) 9 CL & F. 291. (r) 1&2 Will. 4, ¢ 56, s. 1, enacting that the Court of Bankruptcy ‘shall, together with every judge and commissioner thereof, have, use, and exercise all the-rights, incidents, and privileges of a court of record, or a judge of a court of record, and all other rights, incidents, and privi- leges, as fully to all intents and pur- poses as the same are used, exercised, and enjoyed by any of his Majesty’s Courts of Law or Judges at West- minster.” In Van Sandau v. Tur- ner, 6 Q. B. 778, the Court intimated that the protection thus given ex- tended to the commissioners only whilst acting within their jurisdic- tion. (s) 12 & 18 Vict. c. 106, s. 6, enacts that the Court of Bankruptcy andevery commissioner thereof ‘‘ shall have and use all the powers, rights, incidents, and privileges of a court of record, and all other rights, inci- dents, and privileges, as fully to all intents and purposes as the same are used and enjoyed by any of her Majesty’s Courts of Law or J udges at Westminster,” The Rankruptcy Act of 1861 (24 & 25 Vict. c. 134) enacts (s. 1) that ‘‘the Court of Bank- ruptey shall have and exercise, for the purposes of this Act, all the powers and authorities of the Supe- rior Courts of Law and Equity.” Digitized by Microsoft® 781 NortE To KEMP vy, NEVILLE. 782 CONSTITUTIONAL LAW. Notet0 The office of coroner we read (f) is of such antiquity Nevinte, that its origin is unknown, The Coroner’s Court is a court Coroner. Of record (w) of very high authority (v); the Lord Chief Justice of the Queen’s Bench being the supreme Coroner of England (2w). In regard to the civil liability of a coroner, Garnett v. Ferrand («) may be consulted. That was an action of trespass for ejecting the plaintiff from a room in which an inquest was being held by the defendant. It did not appear that the plaintiff had any interest in the matter investigated, or any information to offer which might aid the inquiry, and the Court held that the action would not lie. Lord Tenterden, C. J., observing, “it is a general rule of very great antiquity, that no action will lie against a judge of record, for any matter done by him in the exer- cise of his judicial functions.” And again—It is argued on the part of the plaintiff that the Court of the coroner is a public court, and ought to be open to the entrance of all his Majesty’s subjects, or at least of so many as the place will contain. Now it is obvious that the inquiries made in this Court ought, for the purposes of justice in some cases, to be conducted in secrecy. They are preliminary enquiries which may or may not end in the accusation of particular individuals, it may be requisite that particular persons should not in so early a stage be informed of the suspicions which may be entertained against them, and of the evidence on which such suspicions are founded, lest they should elude justice by flight, by tampering with (‘) Grange v. Denny, 3 Buls. 174, 2 Sid. 101. The puisne judges of 176. ‘ the Court of Queen’s Bench are also (u) Britton, e. 1, fo. 3. ‘*sovereign coroners of the land,” 4 (v) Per Crompton, J., Thomas vy. Inst. 73 ; Year Book, 17 Edw, 3, 13 a. Churton, 2 B, & 8. 475, 478. (z) 6B. & C, 611, (w) 4 Rep. 57 b. ; Barelee’s Case, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. witnesses, or otherwise. Cases also occur in which privacy may be necessary for the sake of decency ; others in which it may be due to the family of the deceased. Who, then, is to decide whether privacy be necessary or proper? We answer, the coroner, and the coroner alone, and that the propriety of his decision cannot be questioned in an action. Even where absolute privacy may not be required, the exclusion of particular persons may be necessary or proper. Who, then, is to decide upon this? We again answer, the coroner, and the coroner alone, and that the reason of his decision cannot be tried in an action. In many cases it would be impossible to conduct proceedings with due order and solemnity unless the presiding officer, whether he be judge, coroner, justice, or sheriff, has the control of the proceedings and the power of admission or exclusion, according to his own discretion. It is not to be expected that such officers will act at the peril of being harassed with a multiplicity of actions; there are few who would not prefer to allow disorder and confusion, rather than run such a risk. The power of exclusion is neces- sary to the due administration of justice, In the above case accordingly, the attempt to fix the coroner with liability was unsuccessful. 783 Norte to Kemp v. NEVILLE, Houlden v. Smith (y) exemplifies the doctrine that the suage ot County judge of a court of record is civilly amenable for his act court. done where he has no jurisdiction, and is not misinformed as to the facts on which jurisdiction depends (z), That was an action of trespass for false imprisonment, in which a verdict was found for the plaintiff subject to the opinion of the Court upon a special case, the facts of which were as follows :—The plaintiff being a resident in (y) 14 Q. B, 841. () See Calder v. Halket, ante, p. 772. Digitized by Microsoft® 784 OTE to Aine v% NEVILLE. CONSTITUTIONAL LAW. Cambridgeshire was sued at the County Court of S in Lincolnshire by special order of the defendant, under s. 60 of the original County Courts Act (a). He was served with that order in Cambridgeshire, and, not appearing, judg- ment was given against him by default at the S Court. A warrant against his goods within the jurisdiction of that Court was issued and transmitted (6) to the County Court in Cambridgeshire, and returned “ no effects,” Thus far all the proceedings had been regular. Afterwards, however, a judgment summons was issued by the defendant calling on the plaintiff to appear at the S Court to be exa- mined, and this summons was without jurisdiction, for the section (c) of the Act which authorizes such a summons, directs it to be issued by the county court of the district where the plaintiff shall then dwell (d) or carry on busi- ness, which was the County Court of Cambridgeshire. On default made by the plaintiff in appearing to the judgment summons, the defendant, as judge, bond fide believing that he had power and authority to do so, committed the plaintiff for contempt, being nevertheless aware that the plaintiff was resident in Cambridgeshire. This case was therefore held (¢) not to be within the principle of those cases (f) where the facts, though subsequently found to be false, were such as if true would have given jurisdiction, and where the question as to jurisdiction or not depended » (a) 9 & 10 Vict. c. 95. (b) Under s. 104. (c) 8. 98. (d) See now 19 & 20 Vict. c, 108, gs. 48, which enacts that a judgment summons ‘‘ may by leave of the judge be obtained from the court in which judgment was obtained, although the judgment debtor shall not then dwell or carry on business within the dis- trict of such court, if the judge shall think fit in the exercise of his discre- tion to grant such leave.” (e) Judgm. 14 Q. B. 852. (f) Lowther vy. Earl of Radnor, 8 East. 118; Gwinne v. Poole, Lutw. 1560, Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. on the state of facts as they appeared to the magistrate or judge assuming to have jurisdiction. In the case sub judice the facts before the defendant, and known to him, showed that he had not jurisdiction ; his mistaking the law as applied to those facts could not give him even a primd facie jurisdiction, or the semblance of any. The only questions therefore were, whether the defendant was protected from liability, either at common law, being and acting as judge of a court of record, or by the provisions of any statute. As to these questions the Court observed that though the judge of a court of record is not answer- able at common law for an erroneous judgment, yet no precedent had been found for saying that he is not answer- able for an act done by his command and authority where he has no jurisdiction (g). Is he then protected by any statute? There are statutes (h) which enable the defence, when it exists, to be given in evidence under the general issue, but they do not protect a party acting with- out jurisdiction. 785 Note To Kemp vw. NEVILLE. It would be impossible, within the limits assigned to Justice of this work, to notice the numerous cases concerning magisterial liability for acts done without, or in excess of, jurisdiction (2). It is enough to say that the powers and immunities of justices now very much depend upon three statutes known as Jervis’s Acts (&). The Ist of these is to facilitate thé performance of their duties with respect to persons charged with indictable offences; the 2nd, with respect to summary convictions and orders; the 3rd, “to (g) Citing anddistinguishing Dicas this subject the reader is referred to y. Lord Brougham, ante, p. 766. Burn’s Justice, 29th ed., tit. Justice (A) 21 Jae. 1, . 12, 8. 5; 42 Geo. 3, of the Peace, ce. 85, 8. 6. (k) 11 & 12 Vict. cc, 42, 48, 44, (4) For general information upon 38 Digitized by Microsoft® the Peace. 786 CONSTITUTIONAL LAW. Norz70 protect justices of the peace from vexatious actions for Nevin, acts done by them in the execution of their office.” — The last-mentioned statute provides as under : Ist. An action against a justice for an act done within his jurisdiction shall be case, and such act shall be alleged to have been done maliciously and without pro- bable cause (2). 2ndly. For an act not done within his jurisdiction no such allegation shall be needed ; but no action shall be brought for anything done under a conviction or order till after such conviction or order shall have been quashed ; nor for any act done under a warrant to compel appearance for an alleged indictable offence, if a summons were pre- viously served and not obeyed (m). 3rdly. If one justice make a conviction or order, and another grant a warrant upon it, the action must be brought against the former, not against the latter (7). 4thly. No action shall be brought against a justice for issuing a distress warrant for a poor rate, on the ground that the rate is invalid, or the person not rateable (0). 5thly. If a justice has a discretionary power given to him by any Act of Parliament, no action shall lie against him for the manner in which he has exercised that discre- tion (p). Gthly. If a justice refuses to do an act for fear of an action, the person requiring it to be done may apply, under certain regulations, to the Court of Queen’s Bench to order the justice to perform such act; and if he does it in pursuance of such order no action will lie against him (q). (2) 11 & 12 Viet. o. 44, s. 1. (0) Id. x. 4, (m) Id. 8, 2. (p) Ld. id. (n) Id. 8. 3, (q) Id. s, 5. Digitized by Microsoft® RELATION OF THE SUBJECT. TO THE EXECUTIVE. 787 7thly, In most instances the justice may pay money Noro into court (7). irnies Other provisions are contained in the statute as to pleading, damages, costs, and notice of action, the general effect of this enactment being that a magistrate, acting bond fide, is protected, unless for an act done altogether without jurisdiction. Various other officers exercising judicial or quasi-judi- Other _indi- cial officers, cial functions are protected by our law when acting errone- ously, though within their jurisdiction (s); secus, when acting without jurisdiction, Some cases upon this subject are subjoined. It has been held that an action would lie against Com- missioners of Excise for adjudging “low” wines to be ‘strong ” wines within the under-mentioned statute (d), as thereby they went out of their jurisdiction ; aliter, if they had made a mistake within their jurisdiction (u). So, Commissioners of Sewers, having made a rate which was invalid for want of the presentment of a jury (#), have been held liable in trespass for taking the plaintiff's cattle under a distress warrant issued by them for arrears of such rate (y). On the other hand, it has been decided that the sheriff in his county court (z), and the steward of a court baron (a), are judicial officers, acting in a judicial, not ministerial, manner; therefore an action will not lie against either of (r) Sect. 11. (2) 3 & 4 Will. 4, ¢. 22, 8, 17. (s) See Broom’s Leg. Max. 4th (y) Wingate v. Waite 6M. & ed, p. 89; Andrews v. Marris, 1 W. 789. Q. B. 8; Carratt v. Morley, Id. 18, (2) Tinsley v. Nassau, Moo. & M. and cases there cited. 52; Brown v. Copley, 7 M. & Gr. (t) 12 Car. 2, ¢. 23. 558, and cases there cited. (u) Terry v. Huntington, Hardr. (a) Holroyd v. Brearve, 2B. & A. 480. ‘ 473. 32 Digitized by Microsoft® 788 ° CONSTITUTIONAL LAW. Norm 70 these officials if their bailiffs seize by mistake the goods Nevire, of A. under a warrant issued against the goods of B. —~ It has been held (6) that though the steward of a court baron is a judicial officer, and therefore irresponsible for the acts of the regular bailiffs of the court, he may incur responsibility should he direct process to bailiffs specially nominated by the party who sues it out. Liability for We have hitherto considered the liability of various re by officials for acts done, we proceed to notice their liability ane for words spoken in the discharge of judicial functions. It has been held in Scotland that a censure pronounced from the bench, by a judge of the Court of Session, on an advocate for his manner of pleading in a cause, did not afford competent ground for an action, though averred to be unfounded, malicious, and injurious (c). This decision was upheld in the House of Lords (d), where Lord Gif- ford affirmed that a private individual cannot maintain an action against a judge for words spoken in the exercise of his judicial duty, and delivered from the bench. An action having been brought against a magistrate in Scotland for defamatory words, uttered on the bench in the discharge of his judicial functions (¢), damages were recovered, the Court directing the jury that, to support the action, malice was necessary, but might be inferred from the whole circumstances of the case. This ruling was upheld in the Court of Session (/). On appeal the House of Lords held that a justice of the peace might be liable to an action for slander under the above circumstances. They also held, however, that malice could not be in- (b) Bradley v. Carr, 3M. & Gr. (e) Robertson v. Allardice, 6 Shaw 221, & Dun, 242, (c) Hagart’s Trustees v. Hope, 20 (f) Robertson v. Allardice, 7 Shaw Fae, Dec. 371. & Dun, 601. (@) Shaw, App. Ca, 125, 143. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. ferred, but must be directly proved, and therefore a new trial was directed (g). In delivering judgment in this case, Lord Wynford alluded to Anon. v. McNiel (h), as showing that malice is not to be inferred from the violence, indecency, or pro- fanity of language used. More recently a coroner has been held not liable to an action for words falsely and maliciously spoken by him in his address to the jury at an inquest, Cockburn, ©. J., intimating doubt whether he might not be liable if he used the words without reasonable and probable cause (¢). Though our judges are now appointed quamdiw se bene gesserint (k), not durante bene placito as formerly, and are only removable on the address of Parliament; and though, further to insure their independence, they are not allowed to be harassed improperly by actions, they cannot misconduct themselves with impunity. In Garnett v. Ferrand (1), after stating reasons why judges are not (g) Allardice v. Robertson, 4 Wil. & Shaw, App. Ca. 102; 8. C.1 Dow & Cl, 495, (h) 5 Brown, Sup. 573. (i) Thomas v. Churton, 2B. &8, 475. A justice of the peace was indicted for having at a general sessions of the peace, said to the grand jury, ‘‘ You have not done your duty ; you have disobeyed my commands; you area seditious, scandalous, corrupt, and perjured jury.” Lord Mansfield, C.J., held that it would be contrary to precedent and ‘‘subversive of all ideas of a constitution,” to hold the defendant indictable, the words hav- ing been uttered by defendant in the execution of his duty, although his lordship suggested that the justice might properly be struck out of the commission for using the words in question. R. v. Skinner, Lofft. 55. At the close of the business at the Guildhall Police Court, one of the Aldermen took occasion to make some very strong remarks condemnatory of a handbill published by the plaintiff. In an action against the proprietor of « newspaper for libel in reproducing those remarks together with other criticism, the Court were unanimously of opinion that the occasion of utter- ing these remarks did not make them privileged, as they had nothing to do with any judicial proceeding ; Paris v. Levy, 9 0.B., N. 8. 342. (k) Ante, p. 525. () 6B. & ©. 611, 626, Digitized by Microsoft® 789 Nore To Kemp v. NEVILLE. Liability judicial officer for misconduct. 790 Norte To Kemp %. NEVILLE. CONSTITUTIONAL LAW. civilly liable for mistakes, Lord Tenterden, C. J., went on to say, “Corruption is quite another matter; so, also, are neglect of duty and misconduct in it. For these, I trust, there is and always will be some due course of punish- ment by public prosecution.” We read that temp. Edward III, Thorpe, C. J., was degraded for accepting bribes (m). And in the reign of Henry IV. (n) it was enacted that judges convicted of bribery should forfeit treble the bribe, be punished at the king’s will, and dis- missed from his service for ever (0). Lord Bacon we know was impeached for bribery and corruption, as Lord Chancellor, and having pleaded guilty, was sentenced to be fined and imprisoned, and to be in- capable of holding any office or of sitting in Parliament (pp). Also in 1725, twenty-one articles of impeachment were exhibited against Lord Macclesfield (q), which in substance charged him with having, whilst Chancellor, sold master- ships in Chancery when vacant, and with having received sums of money for allowing masters to sell or transfer their offices, with having connived at the practice of their mis- applying the money of the suitors, with having concealed the offence of an insolvent master who had absconded, and with having allowed and advised the masters to traftic for their own benefit with trust money, and to conceal their frauds. Lord Macclesfield was found guilty, and heavily mulcted. The judges of our inferior courts are under the general supervision of the Queen’s Bench, where they may be proceeded against criminally for corruption or gross mis- (m) 3 Inst, 146 5 1 Lord Campbell, (0) 8 Tost. 146, Chief Justices, 90, 91. (yp) 2 St. Tr. 1087, (n) 4 Bla, Com. 139, (q) 16 St. Tr. 76. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. conduct. They are removable for misbehaviour, either at common law or by statute. The Lord Chancellor, by ancient law, had jurisdiction over coroners, and by stat. 23 & 24 Vict. c. 116, s. 6, is empowered to remove any coroner for inability or mis- behaviour in his office (r). With regard to County Court Judges, it is enacted (s), that the Lord Chancellor, or Chancellor of the Duchy of Lancaster, if he shall think fit, “may remove for inability or misbehaviour any such judge.” When the Chancellor of the Duchy of Lancaster had removed a judge under the power thus conferred, the Court of Queen’s Bench—the judge having had an opportunity of being heard in his own defence—refused to interfere with the Chancellor's decision (¢). And in another case (w), a rule for a cri- minal information was obtained against a County Court Judge for alleged misconduct in his office, but was after- wards discharged, as it appeared that the Lord Chancellor having been applied to on the same ground had declined to interfere. A Justice of the Peace is liable to a criminal informa- tion for misconduct (w), and may be discharged from the Commission of the Peace at the Queen’s pleasure, either by writ under the Great Seal, or by a new commission being made out in which his name does not appear (y). It is obvious that whatever immunity attaches to judges can only attach to them for acts done judicially, in respect of all other acts they are amenable to the laws (2). (") Ex parte Ward, 80L. J. Ch, 475. 775. (a) Reg. v. Badger, 4 Q. B. 468, (s) 9 & 10 Vict. c. 95, . 18, 474, (i). Ex parte Ramshay, 18 Q. B. (y) 3 Burn’s Justice, 29th ed., tit. 173. Justice of the Peace. (u) Rey. v. Marshall, 4B. & B, (2) Ante, pp. 765, 769 (n). Digitized by Microsoft® 791 Norte To Kemp v. NEVILLE. 792 Note To Kemp % NEVILLE. Protection of judicial officers. CONSTITUTIONAL LAW. This proposition may be illustrated by the Case of Mr. Justice Johnson (a), who was indicted in England for having published a libel on the Lord Lieutenant, Lord Chancellor, and one of the Judges of Ireland. Being arrested in Ire- land under the provisions of a statute (6) enabling offenders in one part of the United Kingdom to be arrested in another, he was brought by habeas corpus before all the Irish Courts in succession, by them remanded to custody, and afterwards tried at Westminster and found guilty— though long arguments occurred in the Irish Courts re- specting the legality of the defendant’s arrest, and though evidence was brought forward in England to prove his innocence, it was not contended before any of the said tri- bunals that he was entitled to immunity by reason of his judicial character. Protection is specially extended to judicial officers, by inflicting punishment on those who obstruct them in the performance of their duties (c). One who utters threat- ening and reproachful words to a superior judge sitting in court is guilty of a high misprision, which has ere now been visited with fine, imprisonment, and corporal punish- ment (d). It is also deemed an offence to attack and slander the administration of the laws of the land, and on (a) 29 St. Tr. 81. p. 471. And one Harrison was in- (5) 44 Geo. 3, c. 92. (c) 1 Bla. Com. 84, 125; 1 Hale, P. C. 280; 3 Inst. 140; Rv. Larl of Thanet, 27 St. Tr. 821, 949. (d) 1 Bla. Com. 126; Cro. Car, 503. Wraynham was convicted in the Star-Chamber for accusing Lord Chancellor Bacon of injustice in a book which he presented to King James I,, 2 St. Tr. 1059; cited ante, dicted for accusing Mr. Justice Hutton of high treason in the Court of Com- mon Pleas, avowing as his reason, that the judge in his argument in the Ex- chequer Chamber pronounced against the right of the king to levy ship money. He was found guilty, sen- tenced to be fined 5000/., to be impri- soned during the king’s pleasure, and to make submission in every court in Westminster Hall, Cro. Car. 508. Digitized by Microsoft® RELATION OF THE SUBJECT TO THE EXECUTIVE. 793 various occasions persons have been indicted for such a Nom 70 misdemeanor (e). in commenting upon a trial is also indictable (/). Further, we may remind the reader that every Court of Record has the power of committing for contempt (9). Having fenced in her judicial officers with every reason- able protection in the discharge of their important duties— leaving them liable to severest punishment for corruption, England’s proudest boast is the purity of her judges. Should they ever be inclined to swerve from a strict administra- tion of legal principles, whether under the influence of political bias or the love of popularity, admonition in the words of two of our most distinguished magistrates may be thus addressed to them :— “ When judges,” said Lord Redesdale (h), “in a court of justice take upon themselves to act upon what they con- ceive political evils or political benefits. . . . . they should consider whether, in endeavouring to [act thus] they are not producing a greater political evil than that which they are attempting to avoid. But Ido not understand what right a court of justice has to entertain an opinion of a positive law upon any ground of political expediency. Hutton, J., afterwards brought an action against Harrison, and recovered 10,0002. damages, Hutton R., 131. (e) To say of a sentence pronounced by the commissioners delegates of the Queen in disaffirmance of a marriage, that such sentence was unjust, wicked, - and void, and that the delegates had acted against their consciences, was held a high contempt of the Queen as wellas of the judges, “ for the slander of a judge in point of his judgment, be it true or false, is not justifiable ;” Fuller's Case, 12 Rep. 42, 44. In 1787 Lord George Gordon ‘was found guilty of publishing a libel, which purporting to be a petition to him from the prisoners in Newgate, contained most offensive expressions respecting the conduct of the judges in administering the law; &. v. Lord George Gordon, 22 St. Tr. 175. (f) B. v. Hart, 30 St. Tr. 1131. (g) Ex parte Fernandez, 10 C.B., N.S. 3, and cases there cited. (h) Case of the Queensberry Leases, 1 Bligh, 497. Digitized by Microsoft® Kemp To libel the administration of justice yeti ‘ 794 Note TO Kemp vw NeEvILyz. CONSTITUTIONAL LAW. I have always been at a loss to conceive upon what ground a court of justice was entitled so to act. The Legislature is to decide upon political expediency ; and if it has made a law which is not politically expedient, the proper way of disposing of that law is by an act of the Legislature, and not by the decision of a court of justice.” - Many years before the above words were uttered, Lord Mansfield had delivered that celebrated declaration con- cerning judicial conduct (é), which will cling to his memory for ever :—‘“J honour the king; and respect the people: but many things acquired by the favour of either are, In my account, objects not worth ambition. I wish popularity: but it is that popularity which follows ; not that which is ‘run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means. I will not do that which my conscience tells me is wrong, upon this occasion; to gain the huzzas of thousands, or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow, I can say with a great magistrate, upon an occasion and under circumstances not unlike, Ego hoc animo semper fur, ut invidiam virtute partam, gloriam non invidiam putarem” (k). (i) R. v. Wilkes, 4 Burr. 2562. (k) Cie. In Catilinam, Or. I. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. PART III. RELATION OF THE SUBJECT TO PARLIAMENT. HavINnG considered the relation of the Subject to the Sovereign and to the Executive, I would now speak of his relation to Parliament—a word here used—rather in its popular than in its strict and legal sense—as signifying the two Houses of Parliament, exclusive of the Sovereign presiding in his royal political capacity. The relation of the subject to Parliament is peculiar; for Parliament has ere now assumed to be in some sense above the law:— “Tt is so high and mighty in its nature that it may make laws, and that that is law it may make no law” (a). It behoves us then to consider, so far as may be prac- ticable in the space allotted, how and to what extent the ordinary rights of Englishmen, the right to personal liberty and the right to private property, may be affected or jeopardised by the existence of this great Assembly in the land. (a) 13 Rep. 64. The authority of Parliament, how- ever, even when viewed as a legislative body, z.e., consisting of king, lords, and commons, is thus, at all events, re- stricted; that a statute—whether it be a public (Dr. Bonham’s Case, 8 Rep. 118, a; Broom’s Comm. C. L. 8rd ed., p. 9) or private (Cromwell's Case, 4 Rep. 13,a) Act—if against public right and reason is void, or not to be obeyed. And ‘‘the British Parliament certainly bas no general power to legislate for foreigners out of the dominions and beyond the jurisdiction of the British Crown.” Judgm. Lopez v. Burslem, 4 Moo, P. C. C, 305. Digitized by Microsoft® oO 796 BaRNaRDIs- TON Vv SoaME. Declaration. CONSTITUTIONAL LAW. BARNARDISTON »v. SOAME, 6 St. Tr. 1063 (0). (26 Car. 2, a.p. 1674.) LEX ET CONSUETUDO PARLIAMENTI. An action on the case does not, at common law, lie against a sheriff for maliciously making a double return of members to serve in Parliament. THIS was an action on the case brought by Sir Samuel Barnardiston against Sir William Soame, the declaration setting forth :— That whereas the king, Feb. 8, anno 25 of his reign, by a writ out of Chancery, directed to the then sheriff of Suffolk, commanded that he should cause an election to be made of another knight for the said shire in the place of Sir Henry North, lately dead; and that he should certify the election under his own seal, and the seals of those who were present at the election, into the Chancery. Which writ, on 12 Feb., was delivered to the defendant, then sheriff, and on 24 Feb., in full county, by the people resident in that county, was read. And although the plaintiff was duly elected to be knight for that county, by the greater number of the people then resident in the said county, every one whereof could spend 40s. per annum within that county: And although the defendant, then sheriff of the said county, premissa satis sciens, afterwards the same 24 Feb. returned the said writ into the Chancery; together with an indenture (c), between him the said sheriff and the aforesaid electors of the plaintiff, of the aforesaid election of the plaintiff, made (b) 8. C., 2 Lev. 114; 3 Keb. 365, 869, 889, 419, 428, 489, 442, 586, 664; Pollexf. 470; 1 Freem. 380, 387, 390. An interesting account of the pro- ceedings in the above case is given by Mr. Dallas, arg. in R. v. Picton, 80 St. Tre 784; et vide per Sir Thomas Powys, 14 St. Tr. 718; per Mr. Dormer, Jd. 745, (c) At the opening of the debate in the House of Commons on the proceedingsin Ashby v. White, 14 St. Tr. 703, Mr. Harley, the Speaker, observed that the great alteration in elections was in the beginning of Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, according as the said writ requires.—Yet the defendant, then sheriff, officii sui debitum minime ponderans, sed machinans et malitiose intendens ipsum Samuelem in hde parte minus rite pregravare, and to deprive the plaintiff of the trust and office of one of the knights of the shire, to be exercised in parliament ; and to cause the plaintiff to expend great sums of money ; against the duty of his office, falsely, maliciously, and deceitfully returned into the Chancery, together with the aforesaid indenture, another indenture annexed to the said writ, purporting to be made between him the said. defendant, then sheriff, of the one part, and divers other persons; containing, That the said other persons, as the greater part of the said county, did choose one Sir -Lionel Talmach, Bart., otherwise Lionel Lord Huntingtower, as knight of the shire, to come to parliament. Whereas in truth, the said Lionel was not chosen by the greater part. By reason of which false return of the said other indenture, the plaintiff could not be admitted into the lower house at the return of the said writ, and a long time after: till the plaintiff upon his petition to the Commons, and after he had spent divers great sums of money about the proving of his Henry IV.’s time, since whose reign the returns for parliament have been made by indenture. That by the stat. 7 Hen. IV., ¢. 15, there is a method prescribed of election and return, ‘‘and the occasion he took to be this: Henry IV. came to the suc- cession of the Crown by the deposi- tion of Richard II., when the parlia- ment was sitting. That parliament was continued to Henry IV.’s time : for though in the rolls it was called a new parliament, and returns were made as by the sheriifs of the coun- ties, and also by the boroughs, as if it were a new parliament; yet it. was the same parliament, for they were the same men, and there were too few days between one parliament and the other, to have a new elec- tion.” But Henry IV. having taken such an extraordinary step, would not leave it as a precedent to be found out; and afterwards, when times were more settled, in his 7th year, it was provided, at the com- plaint of the Commons, that the re- turn of a member should be by indenture, in order that the ‘‘same or like deceit should never be put upon the kingdom afterwards.” See the Forms of indentures of re- turn of county and borough members, Bushby, Election Manual, 2nd ed., App. ix, x. Digitized by Microsoft® 797 BARNARDIS- TON v. Soame. 798 CONSTITUTIONAL LAW. Barvanois- election, and divers pains and labours in that behalf ". sustained, afterwards, sc. 20 Feb. anno 26 Car. IL, was Soam™ admitted, and his election was declared to be good. To his damage of 30001. Plea. To the above declaration the defendant pleaded Not Guilty, and upon trial at bar, Twisden, J., Rainsford, J., and Wylde, J., held, and so directed the jury, that if this double return was made maliciously, they ought to find for the plaintiff, which accordingly they did, and gave him* Evidence. 8001. damages. The evidence, however, as to the malice and falsity, was very slender; for a poll was granted; upon which the matter seeming doubtful, whether some of those who voted for the plaintiff had sufficient freehold to qualify them to vote, the sheriff, by advice of counsel then present, and of some members of parliament there also, made this . double return, to prevent an action for a false return, in case it should appear that some freeholders who voted for the plaintiff had sufficient freehold. And afterwards, upon examination in parliament, the election of the plaintiff was adjudged good, and the defendant was committed for making the double return. Judgment, Lhe above judgment having, on motion to arrest it, been writot affirmed by the Court of King’s Bench, a Writ of Error! Ever. was brought upon it in the Exchequer Chamber, where the judgment was reversed (d) for the following reasons:— Judgmentin Lord Chief Justice North (¢), after stating the declara- Error, . . : : tion and proceedings in the cause, thus continued :— I am of opinion, that the judgment ought to be reversed ; for that no such action as this, at bar, does lie by the common law. Because this is a cause of considerable value, great damages being recovered; because it is a judgment of great authority, being upon a cause tried at the King’s (d) Sir W. Ellis and Sir R, Atkyns, argued for the defendant on the diss. motion in arrest of judgment. (e) Who, as Attorney-General, had Digitized by Microsoft® . RELATION OF THE SUBJECT TO PARLIAMENT, 799 Bench bar, and given upon deliberation there ; because it Barxannis- * TON i@™, case of an extraordinary nature, and of great import, _ ». each party pretending benefit to the parliament by it; wen because it is an action prime impressionis, that never was before adjudged, the report of which will be listened after: I have taken pains to collect and set down the reasons that I must go upon in determining this case ; that as the judgment had the countenance of some deli- *beration in the court where it was given; so the reversal, being with greater deliberation, may appear grounded upon reasons that ought to prevail. I love rather to affirm judgments, than to reverse them ; but I can attribute nothing of authority to the judgment, though it were given in a superiof court, and upon deli- beration; I must judge of it as if the case came to: be judged originally by me: the argument to support a judgment from the authority of itself, is, Ewceptio ejusdem ret cujus petitur dissolutio, which must not be admitted in cases of writs of error. We are entrusted to examine and correct the errors of that court, and for that purpose we are made superior to it; we must proceed according to our own knowledge and discretion, or else we do not perform the trust reposed in us. This is.a cause prime impressionis; and the question is, whether by this judgment a change of the common law be introduced? It is the principal use of writs of error, and appeals, to hinder the’ change of the law ; therefore do writs of error in our law, and appeals in the civil law, carry judgments and decrees to be examined by superior courts until they come to the highest, who are entrusted that they will not change the law. Therefore do writs of error lie from Ireland, which is a subordinate kingdom, to England, by whose laws it is governed; that they might not be able to change the law by their judgments, and not so much for the particular right of the party. For otherwise it would be very easy for judges, by con- Digitized by Microsoft® 800 CONSTITUTIONAL LAW. BABNARDIS- struction and interpretation, to change even a written law; and it would be most easy for the judges of the common Sone laws of Eugland, which are not written, but depend upon usage, to male a change in them, especially if they may justify themselves by such a rule as my brother Atkyns lays down to support this case, viz, that the common law complies with the genius of the nation (f). I admit that the laws are fitted to the genius of the nation ; but when that genius changes, the parliament is only entrusted to judge of it, and by changing the law to make it suitable to it. Butif the judges shall say it is common law, because it suits with the genius of the nation, they may take upon them to change the whole as well as any part of it, the consequence whereof may easily be seen; I wish we had not found it by sad experience. If the case at bar be a change of the law, it is happy that it comes to be questioned in the first instance; for if this cause had been any way agreed and quitted, and a second case of this nature had been questioned, there would have been a precedent urged, which cannot be spoke of here; for this case hath no fellow, there never having been the like judgment before. The method I shall take in what I have to say, shall be, I. To remove some prejudice the case is under. II. Give my reasons against the action. III. Weigh what has been said to maintain the action. I. The case is under this prejudice, that an action on the case lies for false returns of sheriffs, and why should it not lie in this case as well as any other? To remove this prejudice, I shall show some material differences betwixt the nature of ordinary returns and this return. In ordinary returns the party is concluded, and absolutely without remedy; for the court must take the return as (f) Sir R. Atkyns had observed, what they generally esteem and value, ‘¢the common law does comply with and disesteems what they value not.” and conform to the general opinion 6 St. Tr. 1089, and genius of the kingdom, and values Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. the sheriff makes it. In ordinary cases the sheriff may, and frequently does, take security of the plaintiff, or the sheriff hath means by law to be secure; as, if he doubts the property of the goods, he may return a fiert facias, nullus venit ad monstrandum bona (g). In some cases he may, for his safety, impanel a jury, as upon an elegit (h); or he may resort to the Court, and pray reasonable time to prepare his return, if the matter be difficult (7) ; and bath other shelters, that, if he be wary, will save him from danger. But in this case the party is not concluded, for upon a petition to the parliament, if they see it just, they will cause the return to be altered by the clerk of the crown, if the sheriff be not in the way,; in this case, the sheriff may not take security, it were criminal in him to make such a return by compact, nor can the sheriff make a fruitless return or obtain delay to consult his safety. II. My reasons against this action are as follow :— 1. My first reason is this, because the sheriff as to the declaring the majority is judge; and no action will lie against a judge, for what he does judicially, though it should be laid falsd mulitiosé et scienter (k). They who are entrusted to judge, ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of that courage. But, (1) Is the sheriff a judge in this case? And, (2) Is there the same reason he should be freed from all actions ? (1) It is of necessity that as to declaring the majority he should be judge upon the place ; in other cases, in the county court, the freeholders are the judges, and he is the (g) Dalton on Sheriffs, pp. 277, cute every writ in a reasonable time.” 556. Atkinson, Sheriff Law, 3rd ed., pp. (2) Atkinson, Sheriff Law, 3rd ed. 171, 172, and cases there cited. p. 194. (&) Ante, p. 772. (i) The sheriff ‘‘is bound to exe- 5 Digitized by Microsoft® 801 BARNARDIS- TON v Soame, 802 CONSTITUTIONAL LAW. Barvarps- Ininister. When we say the freeholders, we mean the TON we, SoamE. major part of them is to judge; but when the question is, Which is the major part? They cannot determine the question ; but of necessity the sheriff must determine that, the nature of the thing speaks it. Therefore it was held rightly in Letchmere’s Case, anno 18 & 14 Car. IL, that as to the election of knights to the parliament, the Court is properly the sheriff’s court, and the -writ is in the nature of a special commission, Elegi facias. I know a judge may have many ministerial acts incum- bent upon him, as the chief justices have to certify records upon writs of error; therefore it is necessary for me to observe, that the suit here is for what he does as a judge, and not for anything ministerial; which appears by the averment, that the sheriff annexed another indenture, specifying it to be made by the major part of the free- holders, and containing that the Lord Huntingtower was chosen, whi re verd the Lord Huntingtower was not chosen by the major part of the freeholders. If it had been said ubi ve verd the frecholders supposed to seal the same never did seal the same, there had been a falsity in his ministerial part of sending in the indenture; but his sending his two indentures, which were really sealed by the freeholders, as they import; wherein the freeholders of each indenture (and not the sheriff) say, that they are the major part ; is no falsity in his ministerial part, but only deferring to judge between them, which is the major part; or, more properly, judging that they are both equal in number. They object, that the matter of this question is not matter of judgment, it is but counting the poll, which requires arithmetic, but not judgment ; but certainly, if it be rightly considered, it will be thought this question of majority is not barely a question of fact, but a question of judgment, a question of difficult judgment, there are so many qualifications of electors. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 803 Ist. They must have 40s. per annum ; there the value Baxwaxnss. must be judged. v 2ndly. It must be freehold; there the title. — 8rdly. It must be their own; there colourable and fraudulent gifts made many times on purpose to get voices, must be judged. Athly. The electors must be resident; here the settle- ment of the party must be determined. 5thly. There are many things that incapacitate voices, as bribery, force, &c, and many other questions arise, that are of such difficulty, in debate of them, much time is spent in parliament ; and sometimes a committee deter- mines one way, and the House another. Is not this then a question that refers to judgment ? They object again, the sheriff may give an oath con- cerning all the qualifications, and he is to look no farther. I answer, the statute (/) has given the sheriff power to give an oath in assistance of him; but the statute does not say that whosoever takes that oath shall have a voice: neither does the statute of 23 Henry VI. (m) say, that the sheriff shall not be charged with a fulse return, that. pursues that way: so that although he may use those means for his direction, yet he must consider his own safety, and not make a false return, If a man, upon taking such an oath, give the sheriff a special answer, or if it should be known to the sheriff he swears false, the sheriff must determine according to his own judgment, and not by what is sworn. It may hence be concluded, that the sheriff, as to declaring a majority, is a judge; and if so, my next assertion is, (2) that there is the same reason he should be free from actions, as any judge in Westminster Hall, or any other judge. Does it not import the public, that the sheriff should deal uprightly and impartially? Ought he (2) 8 Hen. 6, ¢. 7. (m) C. 15. 372 Digitized by Microsoft® 804 CONSTITUTIONAL LAW. Panwarpis- not to have courage, and for that end should not the law 7 vw Soame, provide him security ? Consider his disadvantages, what a noise and crowd accompany such elections ; what importunity, nay, what violence there is upon him from the contesting parties. We may say, no other judge has more need of courage and resolution to manage himself, and determine uprightly, than he. No other judge determines in a case of greater consequence to the public, or difficulty, than he; expose him to such actions, and in most elections he must have trouble; for commonly each party is confident of his strength, his conduct, and his friends; that let the sheriff return never so uprightly, the party that is rejected will revenge it by a suit, especially if he may sue at common law, to have boundless damages, without running any hazard himself, but of the loss of his costs. If we judges, that find ourselves secure from actions, should not be tender of others that are in the same circumstances ; it may well be said, “Wo unto you, for you impose heavy burthens upon others, but will not bear the least of them yourselves ” (7), 2. My second reason is, because it is alient fori, either to examine the right of the election, or behaviour of the sheriff; both which are incident, and indeed the only con- siderations that can guide in the trial of such causes, if they be allowed. It is admitted, that the parliament is the only proper judicature to determine the right of election, and to censure the behaviour of the sheriff. How then can the common law try a cause, that cannot determine of those things, without which the cause cannot be tried 2 No action upon the case will lie for breach of a trust, because the determination of the principal thing, the trust, does not belong to the common law, but to the Court of Chancery: certainly the reason of the case at (n) St, Luke, Ch, xi., v. 46. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 805 bar is stronger, as the parliament ought to have more BanNaRDts- reverence than the Court of Chancery. a They object, that it may be tried after the parliament *™ hath decided the election ; for then that which the com- mon law would not try is determined, and the parliament cannot give the party the costs he is put unto (0). Then I perceive they would have the determination of the parliament binding to the sheriff in the action, which it cannot be; for that is between other parties to which the sheriff is not called: it is against the course of law, that any judgment, decree or proceeding betwixt other parties should bind the interest of, or any way conclude a third person; no more ought it to do here: it may be easy for parties combining to represent a case so to the parliament, that the right of election may appear either way as the parties please. Is it fit the sheriff, who is not admitted to controvert such determination, should be con- cluded by it, in an action brought against him, to make him pay the reckoning ? Did the parliament believe, when they determined this election, that they passed sentence against the sheriff, upon which he must pay 800/.? Sure if they had imagined so, they would, nay, in justice, they ought to have heard his defence, before they determined it. And yet that was the measure of this case, the sheriff was not heard in parliament, indeed he was not blamed there : and yet upon the trial, which concerned him so deeply, he was not allowed to defend himself, by showing any majority or equality of voices, the parliament having determined the election. I do not by these reflections tax the law of injustice, or the course of parliament of inconvenience; I am an admirer of the methods of both: it is from the excellency of them, I conclude this proceeding in this new-fangled action, being absurd, unjust and unreasonable, cannot be legal. (o) 1, Z, cannot award damages. Digitized by Microsoft® 806 BaRNARDIS- TON Vv Soame, CONSTITUTIONAL LAW. To answer the other branch of this objection, I say, it does not follow, that because the parliament cannot give costs, therefore this new-devised action must lie, to help the party to them. For then such an action might as well lie in all cases, where there is a wrong to be remedied by course of law, and no costs are given for it. At the common law no costs were given in any case, and many cases remain at this day, where the statutes have given no costs: as in a prohibition, scire fucias, and quare umpedit, and divers other cases; and yet no action will lie to recover those costs, and why should it lie in the case at bar ? In this case the parliament have already had it under their consideration in the stat. 23 Hen. 6, ¢. 15 (ip), and have appointed what shall be paid by the sheriff that offends, viz. 100/. to the party, 1002. to the king, and imprisonment; the parliament have stated what shall be paid for compensation, and what for punishment, and would have provided for costs, if they had thought fit. 3. My third reason is, because a double return is a lawful means for the sheriff to perform his duty in doubt- ful cases. If this be so, then all aggravations of falsd, malitiose et scienter, will not make the thing actionable ; for whatever a man may do for his safety, cannot be the ground of an action. There is sometimes damnum absque injurid, though the thing be done on purpose to bring a loss upon another without any design of benefit to himself; as if a new house be erected contiguous to my ground, I may build any thing on purpose to blind the light of that new house, and no action will accrue, though the malice were never so great: much less will it lie, when a man acts for his own safety. If a jury will find a special verdict; if a judge will (p) Sect. 1; 8 Hen. 6, c 7. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 807 advise and take time to consider; if a bishop will delay BARNARDIS: a patron, and impannel a jury to enquire of the right of Some, patronage ; you cannot bring an action for these delays, ~— though you suppose it to be done maliciously, and on purpose to put you to charges; though you suppose it to be done scienter, knowing the law to be clear: for they take but the liberty the law has provided for their safety, and there can be no demonstration that they have not real doubts, for these are within their own breasts: it would be very mischievous, that a man might not have leave to doubt without so great peril. The course of parliament makes out the ground of this reason to be true in fact, so that a double return is lawful when the sheriff doubts; for if the parliament did not allow a double return in doubtful cases, they ought never to accept a double return: If it were in itself a void and unlawful return, they ought not to endure it a moment, but send for the sheriff, and compel him forthwith to make a single return. But we see, where there is doubt, the parliament sends not for the sheriff before they have examined the case, and given particular directions. And it must of necessity be the course: for suppose the voices are equal: suppose the election is void for force: suppose the sheriff doubts upon the validity of some voices,—shall he transmit his doubts especially to parliament? Was there ever any such thing done? Was there ever any other way but to make a double return, and leave it fairly to the decision of parliament ? It was said by my brother Ellis, that if the sheriff had returned, in the nature of a special verdict, the special matter, and had concluded in this manner, viz. if the par- liament shall adjudge Sir Samuel Barnardiston to be chosen, then he returns him; and if the parliament shall adjudge the Lord Huntingtower to be chosen, then he returns him; such a return as this had been safe, and could have borne an action. This is a pretty invention, found out for argument sake ; Digitized by Microsoft® 808 CONSTITUTIONAL LAW. Betieoe luk methinks it furnishes no force at all to the part for cov, Which it is brought, but rather shows the right to be the — other way: for let any man of reason say, whether a double return, as it is now used, be not the same thing in consequence ? Is not a double return, as if the sheriff should say to the parliament, “The right of election is between these two, I am in doubt which of them I shall reject, and expect your directions.” This is the import of a double return, and is the same in effect, as if it had concluded like a special verdict; and so my brother Elis’s instance should not be actionable, though he con- cluded otherwise. That other new-fangled way could not be received— For, (1) The freeholders would never join in such a return. (2) Such a return is not capable of being amended by the sheriff. But the judgment of the parliament must be entered upon record, to make it any return; it concluding nothing of itself, as a special verdict concludes nothing, till the judgment of the court be entered upon the roll with it. (3) The parliament will not, as I believe, admit of new devices in the course of their proceedings, whatever we do at law. But the double return is practicable in the county, for the freeholders of each part will tender their indentures ; and it is easily amended in parliament, by rejecting the indenture of those freeholders that were not the major part, which way has been practised in doubtful cases for many years. So that I apprehend the case at bar to be more regular and favourable, than that case, which my brother Ellis put as a case that would bear an action. Again, suppose the sheriff had informed the parliament of his doubts, and that he could not readily determine where the majority was, but it was betwixt two persons, A. and B., and thereupon desired their favour, either to grant him time to determine it, if they please to command Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 809 him so to do, or else, that they would decide it themselves, BARNARDIS: and he would obey what directions they should make in gat it ; and thereupon the parliament had taken upon them- —" selves to determine it. This most clearly had not been actionable, for it is not actionable to delay a return to any court of justice, where the sheriff had leave from the court so to do. A double return, in my understanding, speaks the same thing to the parliament ; and upon it they may either direct the sheriff to make a single return, which is to cause him to decide it, or they may do it themselves. And here, I must needs reflect upon the second reason I gave (q) against this action, that the matter of it is alient fort ; I find myself and my brothers that argued for the action, engaged in a discourse of the nature of a double return, and the course of parliament upon it, which, as a judge, I cannot so well speak to. I had the honour to be of this House of Commons, and whilst I was there, I considered as well as I could the course of the proceed- ings of the House, and am therefore able to speak some- thing of them, and I am brought into this discourse neces- sarily by this action; but I must needs say, it is an improper discourse for judges, for they know not what is the course of parliament, nor the privilege of parliament. When the lords in parliament, whom they are bound to assist with their advice, ask the judges anything, con- cerning the course or privilege of parliament, they have answered, that they know them not, nor can advise con- cerning them. If in parliament we do not know, nor‘can advise con- cerning these things ; how can we judge upon them out of parliament? We ought to know before we judge, and therefore we cannot judge of things we cannot know. Our being engaged in a discourse improper for judges shews the action to be improper, as much as any other (q) Ante, p. 804. Digitized by Microsoft® 810 CONSTITUTIONAL LAW. Barwirpis- argument that can be made; and this argument arises TON wy Soame. from my brothers that argued for the action. But now I am in this discourse, I must go a little farther; my observation from the course of parliament has been, that they will not permit the sheriff to delay his return, to deliberate, and he cannot take security of either party ; and if a single return be not justified by the com- mittee of elections, he is in danger of the statute of 23 Hen. VI. It follows, that there is no way for an innocent sheriff to be safe, where he conceives doubt, but in making a double return ; and if that should be actionable too, the service of the parliament would be the most ungrateful service in the world. It seems ridiculous to me, that it should be objected, that this course of law is necessary to prevent the great mischief arising from double returns; whereas, if it be a mischief, or disliked by the parliament, either in general or any particular case, they may reject them when they please, and command the sheriff to make a single return ; so that they may remedy it by their practice, without their legislative power. Their practice hitherto has been to receive double returns, which therefore in some cases must be lawful, and in this very case the double return was accepted, and the sheriff no way punished for it: which he ought to have been, if he had been blameable. If double returns are accepted by parliament, they are allowed, and we must say they are lawful, which is the ground of my third reason ; for which I hold this action not maintainable, 4, My fourth reason is, That there is no legal damage occasioned by the sheriff’ The damages laid in the declaration are, (1) Being kept from sitting in the House. (2) The pains and charges he was put unto, to get his admittance into the House, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 811 (1) That of his being kept from sitting in the House, Barwarprs- is as much every man’s damage in the whole county, nay, in the whole kingdom; and any man else might as well have an action lar it, as ike member chosen. To sit in parliament is a service in the member, for the benefit of the king and kingdom; and not for the par- ticular profit of the member. It is a rule in law, that no particular man may bring an action for a nuisance to the king’s highway ; because all the men in England might as well have actions, which would be infinite ; and therefore such an offence is punishable only by indictment, except there be special loss occasioned by that nuisance. For the same reason, the exclusion of a member from the House, being as much damage to all men in England, as to himself, he, nor any man else in England, can have an action for it; but it is punishable upon the public score, and not otherwise. For this reason was the statute of 23 Hen. VI. wisely considered: by that statute the action is not given to the party for his particular damage; but the action given is a popular action, only the party grieved hath a pre- ference for six months: but if he do not sue in that time, every man else is at liberty to recover the same sum. (2) The other point of damage, is the pains and charges he was put unto, and that is not occasioned by the sheriff, but by the deliberation of the House. Why should the sheriff pay for that? It may be, if the par- liament had sent for the sheriff the first day, and blamed the double return, he would have ventured to determine the matter speedily, and there should have been no cause of complaint for delay ; but the parliament saw so much cause of doubt, that they think it not fit to put the sheriff to determine, - but resolve to examine the matter, and give him directions that may guide him in mending his return ; thereupon they give a day to the parties on both sides, Digitized by Microsoft® Sad pie 812 CONSTITUTIONAL LAW. Barwarois- and finding the matter of long examination, and withal catug, ‘difficult, they deliberate upon it. . — It seems very unreasonable the sheriff should be made pay for this, which he did not occasion ; but was a course taken by the parliament for their own satisfaction, who found no fault in the sheriff for putting them to all that trouble. Suppose Sir Samuel Barnardiston bad been returned alone, and the Lord Huntingtower had petitioned against that return, there had been the same charge to have defended that return; so that it was the contest of the opposite party that occasioned the charge, the delibera- tion of the parliament that occasioned the delay; but neither of them can be imputed to the sheriff. I cannot difference this case, from the case of bringing an action against a jury, for maliciously, knowingly, and on purpose to put the party to charges, finding a matter specially, whereby great delay and great expenses were, before the party could obtain judgment ; and yet I think no man will affirm that an action will lie in that case. In this case the damages are found entire, so that if both parts, viz., the not sitting in the house, and the pains and charges are not actionable causes of damages ; it will be intended the jury gave for both, and so the judgment is for that cause erroneous. I suppose the wages of parliament will not be men- tioned for damages, for in most places they are only imaginary, being not demanded (1°); but if there were to be any consideration of them, it will not alter this case ; for upon this return they are due as from the first day, and so no damage can be pretended upon that score (s). (r) See 1 Hall. Const. Hist. Eng., nified or not. It is very certain, 8th ed., p. 264; 4 Inst. 16. (s) Time was, when it was doubted, where a man was elected and the officer refused to return him, whether the person elected was dam- heretofore, persons were not so ambi- tious of sitting in this house as now they are ; and some persons purchased charters of exemption, to be excused sitting in this house; and so it had Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 813 5. My fifth reason is drawn from the statute of 28 Banwanots- Hen, VI, which has been go often mentioned; that statute is a great evidence to me, that no action lay by the common law against a sheriff, for a false return of a writ of election to the parliament ; and this evidence is much strengthened by the observation that hath been made, that never any action was brought otherwise than upon that statute. I must admit, that if an action lay by the common law, this statute hath not taken it away, for there are no negative words in the statute; but it is not likely that the parliament would have made that law, if there had been any remedy for the party before, The statute observes, that some laws had been made before, for preventing false returns, but there was not con- venient remedy provided for the party grieved ; and there- fore gives him an action for 100, If the courts of justice had, by the common law, jurisdiction to examine misde- meanors concerning the returns of sheriffs to parliament ; what needed the parliament to be so elaborate, to provide iiiacee: nified if his vote was refused . . . I would say one thing as to the damnification of the persons elected ; been practised in the House of Lords, It was not reckoned a damage that any person was not returned a bur- gess to sit here, but a kindness ; but. that did not hold so in the case of an elector. Every body agrees, as the electors had a right to choose, so there was no statute to compel them so to do; but they looked upon it not only as their right, but their interest, to be present at the elec- tions. And none can say but it is a wan’s interest, to make choice of such a person to serve in parliament (who hath the power over his estate, and life too for ought I know), as he could trust. Nobody ever doubted that a person who had a right to vote had an interest, and might be dam- n there is a late Act (7 & 8 Will. 3, c. 7, cited post) that gives double damages where the return is contrary to the last determination. Now, I do take it, that Act supposes that a man might have been damnified before; and if he was damnified be- fore, he was so by the common law, for no statute gives him any damages. It is true, that statute gives double damages, but still that statute sup- poses there was a damage before, and builds upon that foundation.” Per Sir J. Hawles, 14 St. Tr. 729; et vide per Mr, Cowper, Id. 758. Digitized by Microsoft® 814 CONSTITUTIONAL LAW. Barwarors- law after law, to give them power therein, and at last to Soaatn, give the party grieved an action? Can any man imagine but that the parliament took the law to be, that the party was without remedy? I know preambles of acts of par- liament are not always gospel ; but it becomes us, I am sure, to have respect to them, and not to impute any falsity or failing to them, especially where constant usage speaks for them, It has been objected that, in those times, it was reckoned a damage to be returned to serve in parliament, which is the reason that no man then did bring his action against the sheriff for returning another in his stead, This cannot be true, for the statute calls him the party grieved, and is careful in providing convenient remedy for him; and we see by the many statutes about those times, that it was a mischief very frequent, and there wanted no occasion for those actions; which does extremely strengthen the argument of the non-user of this pretended common law. An action upon the case, where it may be brought, is a plaster that fits itself for all times and all sores; and if such an action might then have been brought, there was no need for the parliament to provide a convenient remedy. In Buckley v. Thomas (t), which appears to be so elaborately argued both at bar and bench ; if this common law had been thought upon, they might have prevented the question, whether the sheriffs of Wales were bound by the statute 23 Hen. 6, c. 15, It seems plain to me, that the makers of the said statute were ignorant of this common law; and yet my brother Thurland observes, the judges in those times usually assisted in the penning of the laws (w). The judges and counsel in the time of Buckley’s case were ignorant of this common law, else it would have been mentioned in the argument in that case. (t) Plowd, 118. (u) Anie, p. 386. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 815 This common law was never revealed, that I find, until Barxazos- a time that there were divers other new lights: I mean those times, when Nevill brought an action for a false return against Stroud during the late troubles () ; but, in those times, it could never obtain judgment ; I have heard that the Court of Common Pleas sent the record to the parliament, as a case too difficult for the courts of common law to determine. The statute of 23 Hen. VI. is not only evidence, that no such action lay at the common law; but, in my opinion, is not consistent with any remedy at the common law, unless it be allowed that the parties should be doubly punished. If the party grieved has brought his action upon the statute, and recovered, it was admitted by counsel, that no action can be brought at common law; nor ¢ contra, can he recover by the statute, after he has recovered by the common law, because nemo bis punitur pro eodem delicto. So far it stands well ; but suppose the party grieved has let slip his time of three months and then a third person brings a popular action and recovers 1002. upon the statute; there is nothing can bar the party grieved from his action at common law, for his sitting still will not conclude him ; no statute of limitations extending to this case. And if it be so, then must the party, besides his fine and imprisonment, be doubly punished by this statute ; which was made, as the letter of it imports, because there wanted convenient remedy. And now I am discoursing of this statute, I must ob- serve the great wisdom of the course of parliament in these cases, which hath in great measure prevented the bringing actions against sheriffs, even upon this statute. Where the sheriff mistakes the person in his return, he incurs the penalty of the statute of 23 Hen. VI, though it (z) 2 Sid. 163, Digitized by Microsoft® v. Soamg, 816 CONSTITUTIONAL LAW, Barxanvis- be without malice ; and it may happen that anywhere soaue there are 21 electors of one side, and 20 of the other, the sheriff returns him that hath 21, and the parliament adjudging an incapacity in two of the 21, may determine he that had the 20 voices was duly chosen. In such case the sheriff had made a false return, within the penalty of the statute of 23 Hen. VI., and no evidence shall be given against the determination of the parliament. This was a very hard case for the sheriff; and if he were liable to such a mischief, many a past sheriff might be awakened, that takes himself to be secure. But the course of parliament prevents this, as it is reason ; for immediately upon their determinations, they send for the sheriff, and cause him to amend his return ; and thenceforward the amended return is the sheriff’s return ; and there is no record that can warrant any action to be brought for a false return; as when the marshal of the King’s Bench or Warden of the Fleet has made an impro- vident return, omitting some causes wherewith the prisoner stood charged in his custody, whereby he became liable to action, he frequently moves the Court to amend the re- turn; and when the return is amended, all is set right, for there is no averring against a record; in like manner, when the sheriff hath amended his return, he is secure from any action upon that occasion. By this means, there has of late years been no recovery upon the statute, because all persons choose rather to compel the sheriff to amend his return, that they might be admitted to sit in the House, than to take their remedy upon the statute; and no man can recover upon the statute first, and have afterwards the return amended: for I have been told, that by the course of parliament, unless the petition be lodged within some few days after the return, it cannot be received afterwards. So that a man cannot upon that statute have remedy at law, and also in parliament ; which seems to be wisely provided, to prevent any contrariety of determinations. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 817 This statute of 23 Hen. VI. furnished those that argued Bisminnr: for this action with one argument, which doth now vanish, They said that all the inconveniences that could be ob- jected to this action, were the same upon the statute of 23 Hen. VI, viz, that upon that statute, the right of election must be examined upon a trial, where there might be a contrariety of determinations ; for it appears by what I have said, that there can be no contrariety of determinations. And there are other inconveniences in this remedy by the common law, which are not in the remedy given by the statute ; for by the statute the sum to be recovered is limited ; the informer hath a time prefixed, so that there are bounds set which cannot be exceeded ; but the remedy by the common law is without limitation of time, which is considerable; for all sheriffs that ever made any return otherwise than the parliament determined, will be liable, during their whole lives, to them that will call them to account for it. I say, this is without limitation of time, without measure of damages, or any rules contained in a written law: It depends upon a general notion of remedy, which may be enlarged by construction, as it is now intro- duced without precedent. To finish my observation upon this statute, I say it is great wisdom in the parliament to call the sheriff to amend the return, and so prevent any remedy against him upon the statute of 23 Hen. VL, for I do not see that the rules of law concerning elections, are so manifestly clear and known, that it is fit that the sheriff should, upon all returns that are corrected by the parliament, pay the reckoning of the contest. 6. I have a sixth reason against this action ; which is because the sheriff is not admitted to take security to save him harmless in such cases: I take this reason to be instar omnium, and there needs no other in the case. It were the most unreasonable and grievous thing in the world that sheriffs should be bound to act without 34 Digitized by Microsoft® ee Soame. &18 CONSTITUTIONAL LAW. BARNARDIS- any deliberation, and not be allowed to take any security ; ~ and yet be liable to an action, which way soever he —- takes: there is no course can avoid it but this of a double return, as I have before shewn. It has not been said, by any that argued the other way, that the sheriff may take security: and, I suppose, will not be said; for it would be a dangerous course for parlia- ments, for then the most litigious man must be returned and not he who is truly chosen. If the sheriff may not take security, the law must be his security. It was an argument used by my brother Ellis, that because the law imposes an officer, to wit, the sheriff, therefore the law must give the party an action against that officer, if he misdemean himself: the argu- ment does not hold universally, for the law imposes a judge, and yet no action lies against him. But the reason of that argument, if turned the other way, is irrefragable ; as thus, the law will not suffer the sheriff to take a secu- rity, therefore the law must be his security, else it were a most unreasonable law. This reason of itself is sufficient to bear the whole case; for no case can be put in our law, nay, no case can be in any reasonable law, where a man is compelled to judge without deliberation, and cannot take security, and yet shall be liable to an action. I have two more reasons to add, upon which I lay great weight, though they depend not upon any particular cir- cumstances of this case, but the general consideration of it, (1) That it is a new invention. (2) That it relates to the parliament. (1) As it is a new invention, it ought to be examined very strictly, and have no allowance of favour at the end ; and it will have the same fortune that many other novel- ties, heretofore attempted in our law, have had. Actions upon the case have sometimes been received in new cases, where it stands with the rules of law, and no inconvenience appears; but they have been more often rejected, I shall instance some cases that have been Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 819 rejected, because it will be manifested by them, that all BARNARDIS- the arguments and positions laid down by my brothers : that would support the action, are as well applicable to chin several cases that have been already rejected, as to the case at bar. An action upon the case was brought against a grand- juryman, for falsely and maliciously conspiring to indict another, and adjudged it would not lie; against a witness for testifying falsely and maliciously; and an action was brought against a judge, for acting falsely and maliciously ; but adjudged that no action would lie in those cases. These three instances are applicable to every argument urged for this action. The arguments my brothers made in depressing falsity and malice, those which they made from the comparison of other actions upon the case a minort ad majus; the argument, that because the law imposes the officer, it will punish the malice, has the same force in the case of a judge, juror, or witness: and yet my brothers admit in those cases, an action will not lie, which shews the invalidity of those arguments. Now I shall give other instances where actions upon the case have been rejected for novelty and reasons of incon- venience. An action of the case was brought against the lord of a manor for not admitting a copyholder, and it was adjudged it would not lie (y). There was a verdict found, and damages given by the jury in that case ; the lord is com- pellable in chancery to admit a copyholder; and what harm would it have been if there might have been a remedy given by the common law, there being a custom broken by which the lord was bound? The reasons of the books are, because it was a novelty, and it would be vexa- tious, if every copyholder should have an action against the lord, when he refused to admit him upon his own terms, (y) Ford v. Hoskins, Cro. Jac. 368. Digitized by Microsoft® 820 BARNARDIS- TON Vv Soame, CONSTITUTIONAL LAW. It has been adjudged, that an action upon the case will not lie for the breach of a trust, because the common law cannot try what a trust is; but if such actions were allowed, the law might declare that to be a trust, which the Court of Chancery, that properly judges of trusts, might say is none; and where the common law cannot examine the principal matter, the damages that were but dependent upon it should not be regarded. Anthony Maddison brought an action against Skipwith, for maliciously killing Sir Thomas Wortley : the case was thus: The plaintiff was a young lawyer that had expended all his gains in the purchase of a rent that was deter- minable upon the death of Sir Thomas Wortley ; Skipwith quarrelled with Sir Thomas Wortley in the streets about a mistress, and killed him, whereby Maddison lost his rent. It was held the action would not lie, though it were laid to be done maliciously, on purpose to determine the plaintiff’s rent. I observed in that case, that although Mr. Maddison knew very well that there was a mistress in the case, and that the rent was not aimed at, yet he would fain try his fortune in the suit: thinking that a jury, perhaps, out of compassion to him, or to discourage the like facts, might make the manslayer pay him for his loss: but the judges would not suffer it to go on, it being a mere device and a new-fangled action (z). (z) Lord Holt, in Ashby v. White, Judgm., ed. 1837, p. 33, thus com- ments upon and distinguishes the case, supra. ‘One man hath an annuity for the life of another, and a third person kills him upon whose life the annuity depends, whereupon the man brings an action against the manslayer. It was held no action lay.” To which the following answers may be given :— 1, ‘‘If the manslayer be a mur- derer he is past an action, because he is to be hanged, which is a very compendious way in law to defeat any man of an action; but if the manslayer he no murderer, but only guilty of manslaughter, then there is not that ground of action as in this case, for there was no malice, which is the ground of this action.” 2, ‘There is no trust in him that kills the man upon whose life the annuity depends to take care of or Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 821 It hath been held, that an action will not lie against a BARNARDIS-. parson for suing for tithes in kind, knowing that there was a modus, because it might then be perilous for any parson to insist upon his right. It was held by the Court of Common Pleas, that no action will lie for suing an attorney, knowingly, in any other court against his privilege; for his means to enjoy his privilege, is to claim it by writ of privilege ; and he is not bound to claim his privilege, nor can his adversary know he will claim it, | An action was lately brought in the King’s Bench, (as I have heard,) for delaying a post-letter maliciously, whereby the plaintiff wanted intelligence that might have been of great advantage to him. The Court discountenanced the action, so that it proceeded no further. It was then said (as I heard) to this effect: That if such precedents were admitted, there could hardly be any dealing or correspon- dence, but might be matter for actions at law; and although the case depend upon proof of particular malice, and the defendant will be acquitted if his case be not odious ; yet we must consider that there is both charge and vexation of mind that attend the defence of a just cause, and we must not subject men for all their actions to such trouble and hazard, These instances shew, that although an action upon the case be esteemed a catholicon (a), yet when actions have been applied to new cases, they have always been strictly examined, and upon considerations of justice or inconve- nience they have been many times rejected, For though the law advances remedies, yet it is with preserve his life, but there is a trust in the defendants as officers to allow every elector his right of voting.” 8. ‘The true answer is that every man who hath an estate determin- able upon another man’s life, hath it subject to those casualties that are. incident to mankind, that occasion as well violent as natural death, and therefore he that hath interest de- pending thereupon must be contented therewith.” : (a) J.E., ‘an universal medicine, - Johns. Dict., ad verb. Digitized by Microsoft® SoamME., 822 CONSTITUTIONAL LAW. parsarpis- consideration that vexation be not more advanced than “remedy. Pe It is my opinion, that no new device ever was, or can be introduced into the law, but absurdities and difficulties arise upon it which were not foreseen ; which makes me very jealous of admitting novelties. But, (2) In matters relating to the parliament, which is my second ground, there is no need of introducing novelties ; for the parliament. can provide new laws to answer any mischiefs that arise, and it ought to be left to them to do it. Especially in a case of this nature, concerning elections, which the parliament have already taken care of, and prescribed remedies by the several statutes that have been made concerning them ; I say, in such acase, there is little need to strain the law. The judges in all times have been very tender of med- dling with matters relating to parliament. I do not find that ever they tried elections, but where statutes give them express power; or that they ever examined the behaviour of a sheriff, or any officer of the parliament, in relation to any service performed to the parliament, but upon those statutes; and in Bronker’s Case (b), the statute was their rule in the Star-Chamber, and they inflicted the same punishment that is appointed by that statute, If we allow general remedies (as an action upon the case is) to be applied to cases relating to the parliament, we shall at last invade privilege of parliament, and that great privilege of judging of their own privileges. Suppose an action should be brought in time of proro- gation, against a member of parliament, for that he falsely and maliciously did exhibit a complaint of breach of privilege to the parliament, whereby the party was sent for in custody ; and lost his liberty, and was put to great (2) Dyer, 168, b. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 823 charges to acquit himself, and was acquitted by-the par- Barwarpis- liament. s If upon such a case the jury should find the defendant — guilty, why should not that action be maintained as well as this at bar; it may be said for that action, Ist, that the judgment of the parliament is followed, and the pri- vilege is not tried at law, but determined in the House ; 2ndly, it may be said, the party has no other way to recover his charges. It would be dangerous to admit such an action, for then there would be peril in claiming privilege; for if the party complained of, had the fortune to be acquitted by the House, the member that made the complaint would be at the mercy of the jury, as to the point of malice and quan- tity of damages. Such a precedent, I suppose, would not please the parliament; and yet it may with more justice be the second case, than this at the bar the first. Actions may be brought for giving parliament protec- tions wrongfully, actions may be brought against the clerk of the parliament, serjeant-at-arms, and speaker, for aught I know, for executing their offices amiss, with averments of malice and damage; and then must judges and juries determine what they ought to do by their officers, This is in effect prescribing rules to the parliament for them to act by. It cannot be seen whither we shall be drawn, if we meddle with matters of parliament in actions at law. Therefore in my judgment, the only safety is in those bounds that are warranted by Acts of Parliament or constant practice. Suppose this action had been brought before the election had been decided in the House, and the jury had found one way, and the parliament had determined contrary ; how inconsistent had this been ! But it was said in the King’s Bench that the Court would not try it, before parliament had determined the election, and then that cannot be contested, but the judg- Digitized by Microsoft® 824 CONSTITUTIONAL LAW. Bansarprs- ment of the parliament must be followed: And my brother SoauE, Ellis (c) but now said, “Surely no man will be so indiscreet as to bring such an action before the parliament hath deter- mined it; and the Court will not try it, before such time as the election be determined contrary ; how inconsistent chad this been!” But it was said in the King’s Bench that the Court would not try it, before the parliament had determined the election, and then that cannot be contested, but the judg- ment of the parliament hath determined it ; and the Court will not try it, before such time as the election be deter- mined in a proper way. In my opinion this was not rightly considered, for how can the Court stay any suit, to expect the determination of parliament? And what reason or justice is there, that the sheriff, who is no party called to answer in the parlia- ment, should be concluded in anything by a judgment between other parties, to defend himself from a demand of damages in a court of law, where witnesses are examined upon oath, which they cannot be in the Commons House? There is no reason the suit of law should stay till the House have determined the election, if the determination of the House be not conclusive in that suit. And for the discretion of the parties that are like to bring such actions, I cannot depend upon it; for I see in this age, some men will insist upon their private rights to the hindrance of public affairs of higher consequence than any that can come before the Courts in Westminster Hall. It may be, there will not want men that will press us to judge in such cases; and not only before the parlia- ment have determined, but against what the parliament have determined; and will tell us, that the sheriff was no party, that witnesses were not there examined upon (c) His words are, ‘‘If there be the judges will not countenance such a double return depending in the an action; so the party is quite de- House no man will bring an action, _prived of his remedy.” 6 St. Tr. depending that return undecided, and 1072—3, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 825 oath, and produce arguments from antiquity which we Banwarps- shall be very loath to judge of. m Ican see no other way to avoid consequences derogatory — to the honour of the parliament, but to reject the action ; and all others that shall relate either to the proceedings or privilege of parliament, as our predecessors have done. For if we should admit general remedies in matters relating to the parliament, we must set bounds how far they shall go, which is a dangerous province ; for if we err, privilege of parliament will be invaded, which we ought not any way to endamage. This I speak of general remedies: Now I will consider this particular case, which, in my opinion, would bring great danger and dishonour to the parliament. It is dishonourable to the parliament that there should be no protection in their service; I have shewn that the sheriff can be safe in no case, if he be sued in such a case as this: And can there be a greater reproach, than that there is no safety in their service? Nobody can serve them cheerfully and willingly at that rate. It has been objected that the sheriff is not their officer, but is the officer of the Court of Chancery, which sends forth the writs, and receives the returns. The argument is plausible, but will not pass in the parliament ; for they say the Court of Chancery is the repository for their writs, but will not allow them to issue without warrant from the House: They will not suffer the Court of Chancery to meddle with the returns of the sheriff. The parliament sends immediate order to the sheriff; if the return be too slow, they direct the sheriff to amend his return, and they punish the sheriff where they find him faulty ; so that it appears they exercise an immediate jurisdiction over the sheriff, And I suppose they would judge it very false doctrine to say, that the Court of Chancery, or we, can any way meddle with the returns or the officer. Admitting the sheriff to act in returns as the officer of the parliament, it concerns them that he should be liable Digitized by Microsoft® 826 CONSTITUTIONAL LAW. Barwanvis- to no other punishment but what they inflict, otherwise v. Soame. they cannot expect to be obeyed. To have others judge when their servants do well, will be to have others give rules to their servants and service, which they will think inconvenient. Let it be considered how hard a task sheriffs have in the elections of knights to the parliament: The appear- ance commonly is very numerous, the parties contesting, very violent, the proceeding tumultuous, the polling some- times is at several places at once: so that the sheriff can hardly be a witness of the action ; and if the dispute be in the House of Commons, he is no party to it. If after all this, the sheriff, who cannot indemnify himself by security, still be liable to an action, the service of the parliament may be reckoned a miserable slavery; which is not for their honour. As this is dishonourable, so it is dangerous to parlia- ments ; it concerns the kingdom that returns to the par- liament should be upright and impartial, and that they may be so, the sheriff should be secure from all fears, Judges are not liable to actions, that they may proceed uprightly and impartially ; if they were subject to suits for their judgments, there is that earnestness and confi- dence on both sides, that one side would be dissatisfied and trouble them, and they could not discharge their duty without apprehensions of disquiet (d). If the sheriff be exposed to actions thus, let us consider what and whom he is to fear: He may fear the suit of the party, and he may fear the suit of the king. And it follows necessarily, that if an action lies, an information for the king will also lie for the misdemeanour in his office. If it be not a case privileged by the complexion of it, as parliamentary, from being examined in Westminster Hall, but that he may be punished at the suit of the party, he may certainly as well be punished at the suit of the king: (d) See Kemp v. Neville, ante, p. 734, and Note thereto. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 827 If so, where is the sheriff’s security? Will his own inno- BARNARDIS- cence secure him? That must be tried by a jury of the 4 county where the parliament sits: who are, it may be, eh strangers to him, as well as to the matter; or by a jury of the county where the election was, where, it may be, they will be of an opposite party; the plaintiff may wait his opportunity, and question him twenty years after: And if he be condemned, his punishment is unlimited, a fine may be set to any height for the king, and damages may be given to any value for the party. Where is his security upon such proceedings? Will he not be more afraid of such punishment out of parliament, than of any punish- ment in parliament ? Will not, nay, may not his terror make him desire to please them that can punish him out of parliament, rather than to do right? Will not that be dangerous to the constitution of parliaments ? As the punishment out of parliament may be a terror to those who mean well, so colourable punishments may be as mischievous on the other side; for they may prevent any punishment in parliament, for nemo bis punitur pro eodem delicto ; they may serve for protection of men that do ill. When it is seriously weighed, of what consequence this may be, the case at bar will not be thought a case fit to be received by the judges without the countenance of a new law. They object, here is malice found by the verdict, and there can be no danger or inconveniency that malice should be punished. This objection fortifies my opinion; for malice, upon which they would have the scales turn in this case, is not a thing demonstrative, but interpretative, and lies in opinion; so that it may give a handle to any man to punish another by. ' The instance of this very case shews, that a good man may reasonably be afraid of the event of his defence in such a case. For although the matter was of great examination in Digitized by Microsoft® 828 CONSTITUTIONAL LAW. Barwarvis- parliament, and at last decided but by few voices, and no observation of the sheriff’s miscarriage there ; though it Soaue. — appeared upon the trial (which I may say, being present there,) that the sheriff was guided by the advice of his friends, of counsel, and of parliament men, that told him the only safe course was to make a double return ; yet the jury condemned him to pay 800/. against the expectation of the Court; for the judges that were present at the trial did all declare publicly, that they would not have given that verdict. The judges heard all the evidence the jury could go upon ; for being of a remote county to the place of election, the jury could know nothing of their own knowledge, and yet the judges concurred not with the jury in their opinion. I know we are not to examine the truth of the verdict, we must take it for gospel; neither doth any partiality in this particular lead me in judgment: but I show it as an instance that malice is not demonstrative; men’s minds may be mistaken, and innocent men may therefore have reason to be afraid, especially in ill times, and may use such means for their safety as may not be convenient for parliaments. But there can be no danger or inconvenience in the censure of parliament, that represents the whole kingdom, who hitherto have alone exercised this power, and who may at any time reform the law, if the present practice be aby way inconvenient. Upon these reasons which I have produced, I ground my opinion: now it will be necessary to weigh what hath been said in opposition to it. The arguments urged on the other side, related either to the ingredients or circumstances of this action, or to the foundation or substance of it. I call the ingredients and circumstances of the action, that it is laid with these words, falso, matlitiose, deceptive, et scienter: and that there is a verdict in this case, and damages are found. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 829 The words falso, malitiose, et deceptive, will sometimes Baxnazprs- make a thing actionable, which is not so in itself, without malice proved, though there be the same damage to the party. As where a man causes another to be falsely indicted, yet if it be not malitiose, no action lies ; though there be the same trouble, charge, and damage in one case as the other. But it is only where a man is a voluntary agent ; for if a man be compellable to act, you cannot molest him upon any averment of malice: as if a grand-juryman causes another to be indicted, though you aver malice, you can- not have an action against him ; so for a witness that doth testify, or a judge that judgeth. In the case at bar, the sheriff is compellable to act, and not barely as a minister to send the indenture, but as a judge to say which is the major part’of the due electors; and if he mistakes, there is no reason it should subject him to an action upon an artificial averment of malice. I remember in Shepherd v. Wakeman (e), Wyndham, J., said well (7) that the words falso et malitiose were grown words of course, and put into every action: so that to his knowledge juries many times had no regard to them; that he looked upon them as words of form. If we should make the words falso et malitiose support an action without a fit subject matter, all the actions of mankind would be liable to suit and vexation: they that have the cooking (as we call it) of declarations in actions of the case, if they be skilful in their art, will be sure to _ put in the words falso et malitiose, let the case be what it will; they are here pepper and vinegar in a cook’s hand, that help to make sauce for any meat, but will not make a dish of themselves. Falso et malitiose will not enable an action against a judge. (¢) 1 Keble, 255, 269, 308, 826. (f) 1 Keble, 269 ; Za. 309. Digitized by Microsoft® TON vw. Soamz, 830 BaRNARDIS- TON wy SoaME. CONSTITUTIONAL LAW. Nor against an indictor or witness (g), nor where words are not actionable, though the plaintiff hath a verdict and damages found ; nor for a breach of trust, which is alient fort. The reason of every one of these cases holds in the case at bar: therefore it ought to have the same resolution. As to the word scienter, it hath weight sometimes ; and if an action be brought for keeping a dog that worried another’s sheep, sciens canem ad mordendum oves esse consuetum (h), or for detaining the servant or wife of another, scienter (7); in these cases, if the defendant hath been told that the dog did worry sheep, or that it was the servant or wife of another, though it may be he did not believe it, yet it was scienter; for the word implies no more than having notice: and in those actions he must inform himself at his peril, and may, if he doubts, avoid danger by putting away those things which give offence. But in this case he could receive information by none, and is not to believe or misbelieve anybody, but is bound to judge of the thing himself, and to act according to his judgment ; so that no proof could be made of the scienter, (g) Lord Holt, in Ashby v. White, Judgment (Ed. 1887), p. 32, consi- ders the objection, that ‘‘if one per- jures himself in a cause to the damage of another person who is either plain- tiff or defendant, no action upon the case lies,” to which he thus responds: —‘Nor is it reason it should, for perjury is a crime of so high a nature that it concerns all mankind to have it punished, which cannot be in an action upon the case where nothing but damages shall be recovered by the party injured, which is not sufficient to secure the public against so dan- gerous a creature who hath offended against the common justice of the kingdom. Therefore, for example’s sake and public security, the prose- cution of such an offence is vested in the Crown.” : See further, as "to the liability ofa witness, Broom’s Comm. ©. L., 8rd ed., p. 77. (h) By stat. 28 & 29 Vict. ¢. 60, s. 1, the owner of a dog is rendered liable in damages ‘‘ for injury done to any cattle or sheep by his dog,” with- - out proof of ‘* a previous mischievous propensity in such dog, or the owner’s knowledge of such previous propen- sity, or that the injury was attribu- table to neglect on the part of such owner.” (i) See Broom’s Comm, C. L., 8rd ed., pp. 835, 838, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 831 for one side tells him the election was one way, and the Baryanois- other side tells him it is the other way; but he being | %.. present to the whole action, must follow the dictates of ee his own judgment. Hence it appears, scienter, in this case, is an empty word not referring to notice of a fact, but a matter of judgment, which cannot any way be proved, It has been often urged that this case is stronger by being after a verdict and damages found by the jury ; and it has been said, that perhaps upon a demurrer, it might have been found more doubtful. The case is the same to me upon a verdict that it would have been upon a general demurrer, and no stronger; for a demurrer is the confession of the party, of all that can be proved, or can possibly be found upon that declaration. It is my Lord Coke’s advice (%) never to demur to a declaration, if there be any hopes of the matter of fact ; for the matter in law will as well serve after a verdict as upon a demurrer. It had been a very odious case, if the sheriff should have admitted all this fact to be true by a demurrer. The finding the plaintiff's damages adds no strength to the case; for we sce every day upon actions for words, though the jury find the defendant guilty for speaking words falso et malitiose, and find it to be to the plaintiff's great damages ; yet if the words are not such as will bear an action, the Court stays judgment; and if judgment happens to be given, it is reversable for error ; which shows that the finding damages by the jury cannot make an action better than if it were to be adjudged upon demurrer. , I shall now consider what hath been said to maintain this action upon the main substance and foundation of it. They say, this is a case within the general reason of the (k) Cromwell's Case, 4 Rep. 14. a. Digitized by Microsoft® 832 CONSTITUTIONAL LAW. Banwanvis- COMMON law, for here is malice, falsity and damage; and where they concur, there ought to be remedy. And Soc, although this be a new case, it ought not for that reason to be rejected ; for other kinds of action have been newly introduced, and this is as fit to be entertained as any. My brothers that argued even now for the action, shewed great learning and great pains; and certainly have said all that can be invented in support of this case; but as far as I could perceive, they have spoken only upon general notions to that purpose I just now mentioned; but nothing that I could observe applicable to the reasons and differences I go upon. As for the rule they go upon, that where falsity, malice and damage do concur, there must be remedy ; I confess it is true generally, but not universally, for it holds not in the case of a judge, nor an indictor, nor a witness, nor of words that import not legal slander, though they are found to bring damage, as I have shewn before. And the reasons that exempt these cases from the general rule, have the same force in the case at bar. I must confess the judges have sometimes entertained new kinds of actions, but it was upon great deliberation, and with great discretion, where a general inconvenience required it (0). But in the case at bar, neither the peace of the king- dom, nor the course of justice is concerned in general, but only the administration of officers of the parliament, in the execution of parliamentary writs; and can never happen but in time of parliament, and must of necessity fall under the notice of the parliament; so that if the law were deficient, it is to be presumed the parliament would take care to supply it: discretion requires us rather to attend that, than to introduce new precedents (1) Citing Smith v. Crashaw, Cro. for falsely and maliciously causing Car. 15, where it was held that the plaintiff to be apprehended, com- an action on the case, in the na- mitted to prison, and indicted for ture of conspiracy, was maintainable treason. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 833 upon such general notions that cannot govern the course Baryarpss- of parliament. My brother Atkins said, the common law complied with the genius of the nation (m); I do not understand the argument. Does the common law change? Are we to judge of the changes of the genius of the nation? Whither may general notions carry us at this rate? For my own part, I think, though the common law be not written, yet it is certain, and not arbitrary. We are sworn to observe the laws as they are, and I see not how we can change them by our judgments; and as for the genius of the nation, it will be best considered by the parliament, who have power of the laws, and may bring us to a compliance with it. In the case at bar, I look upon the sheriff as a par- ticular officer of the parliament for managing elections, and as if he were not sheriff; I look upon the writ as if it were an order of parliament, and had not the name of a writ ; I look upon the course of parliament, which we pretend not to know, to be incident to the consideration of it; so that it stands not upon the general notion of remedy in the common course of justice. The arguments of the falling of the value of money, whereby the penalty of 1001. provided by the 23 Henry VI. is become inconsiderable ; and the increase of the estima- tion of being a member of parliament ; if they were true, are arguments to the parliament to change the law by increasing the penalty, but we cannot do it. My brother Maynard, in his argument, would embolden us; telling us we are not to think the case too hard for us, because of the name or course of parliament : for judges have punished absentees; they may determine what is a parliament, what is an act of parliament, how long an ordinance of parliament shall continue, and may punish trespasses done in the very parliament. (m) Ante, p..800, n. (f). Digitized by Microsoft® w. Soame - 834 BARNARDIS« TON VD Soame. Writ of error, CONSTITUTIONAL LAW. I will not dispute the truth of what he said in this, but if his arguments were artificial, he might have spared them; for they have no manner of effect to draw me beyond my sphere. I will not be afraid to determine any thing that I think proper for me to judge; but seeing I cannot find the courts of justice have at any time meddled with cases of this nature, but upon express power given them by acts of parliament, I cannot consent to this precedent; Iam confident when there is need, the parliament will discern it, and make laws to enlarge our power, so far as they shall think convenient. . I see no harm that sheriffs in the mean time should be safe from this new-devised action, which they call the common law; if they misdemean themselves, they are answerable to the parliament, whose officers they be, or may be punished by the statute made for regulating elections. It is time for me to conclude, which I shall do by repeating the opinion I at first delivered, viz., That this judgment is not warranted by the rules of law; that it introduceth novelty of dangerous consequence, and there- fore ought to be reversed. Scepe viatorem nova, non vetus, orbita fallit (n). Soon after the Revolution, Sir Samuel Barnardiston brought his writ of error in the House of Lords, to reverse the reversal of the judgment given in the Exchequer ; but the House on June 25, A.D. 1689, affirmed the reversal of the said judgment. Under their final judgment thus pronounced, however, the House of Commons were, according to Sir Joseph Jekyll (0), so uneasy, and the injury which might result to the public from false and double returns was so manifest, that the legislature shortly afterwards inter- posed to apply a remedy. And by the statute 7 & (n) 4 Inst. 84, (0) Proceedings in Ashby v. White, 14 St. Tr, 751. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 835 8 Will. 3, c. 7 (p), after reciting that “false and double BARNARDIS- returns (q) of members to serve in parliament are an abuse of trust in a matter of the greatest consequence to the kingdom, and not only an injury to the persons duly chosen, by keeping them from their service in the House of Commons, and putting them to great expense to make their elections appear, but also to the counties, cities, boroughs, and cinque ports, by which they are chosen, and the business of parliament disturbed and delayed thereby,” it is enacted (r), “That all false returns wilfully made of any knight of the shire, citizen, burgess, baron of the cinque ports, or other member to serve in parlia- ment are against law, and are hereby prohibited; and in case that any person or persons shall return any member to serve in parliament for any county, city, borough, cinque port, or place contrary to the last determination in the House of Commons of the right of election in such county, city, borough, cinque port, or place, that such return so made shall, and is hereby adjudged to be a false return.” Also by s. 2 it is further enacted, “That the party. grieved, to wit, every person that shall be duly elected to serve in parliament for any county, &, by such false return, may sue the officers and persons making or pro- curing the same, and every or any of them at his election in any of his Majesty’s Courts of Record at Westminster, (p) Continued for eleven years by 12 & 13 Will. 3, c. 5, and made per- petual by 12 Ann. at. 1, c. 15. (q) ‘‘Another Act passed against unlawful and double returns ; for per- sons had been often returned plainly contrary to the vote of the majority ; and in boroughs, where there was a contest between the select number of the corporation and the whole popu- lace, both sides had obtained favour- able decisions, ag that side prevailed on which the person elected happened to be; so both elections were returned, and the House jydged the matter. But by this Act all returns were or- dered to be made according to the last determination of the House of Com- mons. These were thought good se- curities for future parliaments.”— Rapin, Hist. Eng. by Tindal, vol. iii. p.. 8238. (r) Sect. 1. 3H 2 Digitized by Microsoft® ae SoaMeE, 836 CONSTITUTIONAL LAW. Barwazpr- and shall recover double the damages he shall sustain by TON Sole, 20280n thereof, together with his full costs of such suit.” — By s. 3, “To the end the law may not be eluded by double returns,” it is also enacted, “ That if any officer shall wilfully falsely and maliciously return more persons than are required to be chosen by the writ or precept on which any choice is made, the like remedy may be had., against him or them, and the party or parties that willingly procured the same, and every, or any of them, by the party grieved, at his election.” By;s. 4, “ All contracts, promises, bonds, and securi- ties whatsoever hereafter made or given, to procure any return of any member to serve in parliament, or anything relating thereunto,” shall “be adjudged void ;” and “ who- ever makes or gives such contract, security, promise, or bond, or any gift or reward, to procure such false or double return, shall forfeit the sum of 3001.,” recoverable “ by ac- tion of debt, bill, plaint, or information,” within the space of two years after the cause of action shall have arisen (s). And by s. 5, “For the more easy and better proof of any such false or double return,” the clerk of the Crown for the time being is required to enter in a book, to be kept for that purpose in his office, every single and double return of any member to serve in parliament, and also every alteration and amendment of such return, to which book free access may be had by any person on payment of a reasonable fee. And the party prosecuting any such suit as above mentioned, may at the trial thereof give in evidence such book so kept, or a true copy thereof, relating to any such false or double return, and shall have the like advantage of such proof as he might have had by pro- ducing the record itself, “any law, custom, or usage, to the contrary notwithstanding.” Nore7o “The parliament hath three powers,” observes Sir R. BARNARD:8+ . . . . : : TON Atkins (é) ; “(1) a legislative power, in respect of which it Soame. = (s) Sect. 6. (t) Arg. Sir W. Williams's Case, 13 St. Tr. 1410. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. is called the three estates of the realm; (2) a judicial |, power, in respect of which it is called magna curia, or the High Court of Parliament; (3) a councilling power, whence it is called commune conciliwm regni.” Also Sir Robert Sawyer, Attorney General, remarks in Fitzhar- ris’s Case (u), that “there are three things to be con- sidered of the parliament—the legislative part, matters of privilege, and the judicial part.” For the legislative part and matters of privilege, both Houses do proceed only secundum legem et consuetudinem Parliamenti, but for the judicial part, does any man question but that in all times they have been guided and directed by the statutes and laws of the land? And the Lords, in all writs of error, and all matters of judgment, proceed secundum legem terrce, and so for life and death, And there is not one law in Westminster Hall as to matters of judgment, and another in the court of the Lords above. “Every court of justice,” says Sir E. Coke (a), “ hath rules and customs for its direction; so the high court of parliament suis propriis legibus et consuetudinibus subsistit. It.is lew et consuetudo parliamenti that all weighty matters in any parliament moved concerning the peers of the realm or commons in parliament assembled, ought to be determined, adjudged, and discussed by the course of the parliament, not by the civil or by the common law.” And this remark may be illustrated by two cases in Lord Coke’s Reports (y), under the head of “ Parlia- ment,” which are introduced with this remark, that “the privilege, order, or custom of parliament, either of the Upper House or of the House of Commons, belongs to the determination or decision only of the court of parlia- ment.” In the first of these cases (27th Henry VI.) was (wu) 8 St. Tr. 815. () 4 Inst, 15. (y) 18 Rep, 63. Digitized by Microsoft® 837 Note To ARNARDIE- TON uv. Soame, 838 CONSTITUTIONAL LAW. pom 70 involved a question between two peers as to precedence, ton — which was referred to the judges, who in giving their opinion SoaMe. upon it nevertheless protested that this was a matter of parliament belonging to the king’s highness, and to the lords spiritual and temporal in parliament assembled, by them to be decided and determined. In the other case (81st Henry VI.) the facts were of this kind: an action of trespass was brought in the Exchequer by the Duke of Buckingham against Thorp, then Speaker of the House of Commons, which resulted-in a verdict for the plaintiff, with heavy damages, and in the arrest of the defendant in execution ; afterwards, application was made by the Commons to the Upper House that their Speaker might be restored to liberty, in order that he might exercise his functions ; and this matter being referred to the judges, they replied that they ought not to answer such a ques- tion, “for it hath not been used aforetime that the justices should in anywise determine the privilege of the high court of parliament, but every court shall decide upon the privileges and customs of the same.” Accepting Lord Coke’s remark above cited that the high court of parliament subsists by its own laws and customs, it may yet be that this remark, although correct when applied to the internal regulations and pro- ceedings of parliament or of either House, is not neces- sarily so as regards any power which it may claim to exer- cise over the rest of the community (z). A privilege of parliament, perfectly ungainsayable as existing within the walls of parliament, may yet not extend beyond them, so (2) As to the distinction between parliament within their Houses, and privileges of parliament ab intra, personal privileges, see Judgm., Ben- which concern the parliamentor either yon v. Evelyn, 0, Btidgm. 834. House tn concreto, or the members of Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 839 as to license or legalize an act primd facie illegal there oe done. No action, for instance, can be brought against a member for words uttered by him when debating in the House, yet he may-be made responsible in respect of the same words uttered beyond its walls (a4). Members of the House, it may be admitted, will be free from liability to action in respect of orders issued by them as members to be executed out of the House, but it does not therefore follow that the officers executing such orders will be irresponsible: the ordinary rule being that a servant cannot shelter himself behind the illegal orders of his master, the mere circumstance that an act complained of was done under the order and authority of the House of Commons cannot per se excuse that act, if in its nature illegal. Obviously then, as well in regard to the question— Does an asserted parliamentary privilege exist? as in regard to the question—Is an act done beyond the walls of parliament within its protection ?—may the courts of Common Law be called on to decide. And in view of our procedure by writ of error, an objection to the remedy by action under circumstances such as adverted to has ere now been urged of this kind; inasmuch as the House of Lords is the ultimate tribunal of appeal—to that branch of the Legislature might, if redress by action were allowed—be conceded the power of adjudicating on the privileges of the House of Commons, of neu- tralizing or destroying the rights and liberties incident to that body. As exemplifying the nature of the above objection, (a) I. v. Oreevey, 1M. & 8.273; per Lord Campbell, C. J., 7E. & B 8. C., Holt, N. P. C. 628; Riv. 28% Lord Abingdon, 1 Esp. 226; et vide Digitized by Microsoft® ARNARDIS- TON, v. Soame. 840 CONSTITUTIONAL LAW. Note 70 the following case may be imagined :—Suppose that a rox member, against whom judgment has been recovered, Soane, is arrested on a capias while entering the House of Commons, and that the judgment creditor who sued out the capias is committed for contempt and breach of privilege by order of the House ;—suppose further, that the person thus committed brings his action of tres- pass against the officer who took him into custody, and that judgment having been given against the plaintiff in such action—as it indubitably would be, by reason of the privileges of the House—such judgment were afterwards questioned on writ of error. The House of Lords would thus be constituted a Court of Appeal,.in regard to the privileges of the House of Commons, which would lie wholly under the power or at the mercy of the Lords (5). Again, “it has been held as an undeniable maxim, that whoever executes an illegal command, to the preju- dice of his fellow-subjects, must be answerable for it to the party grieved. “Let it be supposed then, that an action of false imprisonment was brought against the serjeant of the House of Commons, and that the defendant justifies his taking the plaintiff into custody, by virtue of a warrant of that House, and it appears upon the face of the warrant, that the cause of the commitment was no crime in law, and the plaintiff demurs, what must the judges do in such a case? Will it be possible for them to avoid examining into the commitment, and so give judgment one way or other? Or can it be pretended, that a writ of error may not be brought upon such a judgment? And (8) Per Mr, Brewer, Proceedings in Ashby v. White, 14 St. Tr. 712. Digitized by Microsoft® | | RELATION OF THE SUBJECT TO PARLIAMENT. 841 is not the court, before which the writ of error is brought, Nome 7, under a necessity to do justice thereupon, as the law = 7% requires” (c)? In the case here put, also, a collision 5°™* might ensue between the two branches of the Legis- lature. Not only between the two Houses of Parliament, it has been strongly argued, might a collision be brought about if the privileges of the Commons could be discussed and adjudicated upon in the course of an ordinary action, but a collision might likewise be induced between the House of Commons and the Courts of Law. It has been said—and, for the honour of our legal system, we may hope it has been truly said—that where a man has a right and a wrong done him, he is somewhere _to have a remedy. But the same law which settles the right- and declares the wrong, determines where the remedy is to be had. The suitor must go to the place which the law directs for his remedy, not where he him- self might desire it. “We have,” says Lord Coke (d), “several jurisdictions, some ecclesiastical, some temporal, some governed by one law, some by another, and all must have their rules and bounds, which must be observed.” It is true that the same act may possibly give rise to .criminal and to civil proceedings—it may constitute a wrong to the public and likewise an injury, causing damage, to an individual. Subject, however, to this pecu- liar exception, the rule is said fo be that no man ought to have on foot against him two judgments at once in (c) Address of the House of Lords (2) 4 Inst. Pref. ; Zd. 14,15, cited to the Crown upon the commitmentof per Sir Thos. Powys, 14 St. Tr. 715 ; the five Aylesbury men, 14 St. Tr. ane, p. 241. 870. : Digitized by Microsoft® 842 CONSTITUTIONAL LAW. pkore to two several courts, whereby one may punish him for tox _ doing a thing, and the other, at the same time, for not Soamz. doing it. Now the rule just stated might be infringed if courts of Common Law intermeddled with the declared privileges of the House of Commons. If, for instance, they assumed to adjudicate upon a claim to exercise the franchise. Thus, an unsuccessful candidate at an election petitions the House, contending that a right of voting in the borough which he contested is vested in the freemen or free burgesses thereof, and that by a majority—if such votes be valid—he was elected. Suppose that the decision of the committee is against him upon this point, and that thereupon he brings his action against the returning officer, and that every one of the inhabitants thus by the deci- sion of the committee disfranchised likewise sues him; now, if, in a court of Common Law, each of the actions thus brought terminates in a judgment for the plaintiff, there is an obvious discrepancy established. The House of Commons has determined in one sense—a court of Common Law in the other—these tribunals exercising independent functions—and, to use the forcible expression of a parliamentary speaker (¢), “the officer is crucified between them” (f). Such are the perils involved in conceding to courts of Common Law a power of adjudicating on the right of franchise ; and it might further be contended that the Commons in parliament assembled are able to afford redress on petition if the franchise be invaded, or if the right to exercise it be denied. The argument now men- tioned indeed is not entitled to much weight, for the (ce) Sir Thos, Powys, 14 St. Tr. (f) See The Case of the Sherif’ of 722, Middlesex, post. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 843 House of Commons, although a court of judicature (g) ,Nom™70.. and seemingly (h) a court of record, is in some essential *)% particulars disqualified to give redress to one seeking compensation for a wrong. For the House, though it may. punish an offender, cannot award damages to the person injured (7). One of the evils above adverted to—a collision between the two Houses of Parliament—was in the Principal Case, as we have seen, through the instrumentality of Chief Justice North, happily averted ; such a collision, however, actually did occur in the well-known case of Ashby v. Ashby» White (j), which also exemplifies the possibility of a con- flict, much to be deprecated, between the Commons in vv. Soame. Parliament assembled and the Courts of Law. The plaintiff (£) there declared that on the 26th of December, 12 Will. IIL, a writ issued. out of Chancery, (g) 4 Inst. 23. (2) May, Parl. Pr. 5th ed. p. 102. (i) See the Debate concerning Ashby y. White, 14 St. Tr. 732, 749; post, p. 855. (j) 2 Lord Raym. 1105; 8. 0, 1 Salk. 19; 2 Id. 503; 8 Id. 17; 6 Mod. 45; Holt, N. P. ©. 524, 526; 1 Brown, P. C. 45. See also The Proceedings in the Great Case of Ashby v. White, 14 St. Tr. 695—888. (%) Before the above action was brought, there had been a resolution of the House of Commons, That the right of election for the borough of Aylesbury, was in the inhabitants not receiving alms. The plaintiff, Ashby, being an indigent person, and coming to settle in Aylesbury, the overseers of the poor there warned him out of the parish, unless he would give security to save it harmless, and to that purpose complained to the next justices of the peace, to get an order to remove him; whilst this matter was in controversy, the elec- tion for burgesses of parliament came on, and Ashby offering himself to be polled, the constables (the defendants) refused to receive him to poll, being, in their opinion, no settled inhabitant there, nor having ever contributed to the church or poor, either before or since the election, After the election was over, Ashby brought his action on the case against the constables, on the ground that he was an inhabitant of that borough, not receiving alms ; and that the constables, falsely and mali- ciously, obstracted and hindered him from giving his vote at the election there. 148t, Tr. 747. Digitized by Microsoft® 844 CONSTITUTIONAL LAW. plom=t0 directed to the sheriff of Bucks, reciting that the king tox had ordered a parliament to be held at Westminster, on SoamE. the 6th of February following. The writ commanded the sheriff to cause to be elected for the county two knights, for every city two citizens, for every borough two bur- gesses, which writ was delivered to the sheriff, who made a precept in writing under the seal of his office, directed to the constables of the borough of Aylesbury, command- ing them to cause two burgesses of the said borough to be elected, &, which precept was delivered to the defendants to whom it belonged to execute the same; by virtue of which writ and precept the burgesses of that borough, being summoned, did assemble before the defend- ants to elect two burgesses: and, they being so assembled in order to make such election, the plaintiff being then a burgess and inhabitant of that borough, being duly quali- fied to give his vote at that election, was there ready, and offered his vote to the defendants for the choice of Sir Thomas Lee, Bart., and Simon Mayne, Esq., and the defendants were then required to receive and admit of his vote. Yet they being not ignorant of the premises, but contriving, and fraudulently and maliciously (0) intending to damnify the plaintiff, and to defeat him of his privilege, did hinder him from giving his vote, and did refuse to permit him to give his vote, so that the two burgesses were elected without any vote given by the plaintiff, to his damage of 2001., &e. Upon Not Guilty pleaded, the cause went to trial, and (1) Such an averment of malice in Belcher, 8 O.B. 58; S. C., 4 Id. 866; the declaration is essential, Tozer v. Cullen v. Morris, 2 Stark. N. P. C. Child, 6 E. & B. 289; 8.C., 7 Id. 577, and cases there cited ; Drewes v. .877; per Blackburn, J., Pease v. Coulton, 1 East, 563 (a); Harman Chaytor, 3B. & 8,628, See Prycev. v. Tappenden, 1 Enst, 555, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 845 a verdict was given for the plaintiff, with 51. damages and Nore to costs, 7ON A motion was afterwards made in the Court of Queen’s 54** Bench, to arrest the judgment, on the ground that the SusemeAt action did not lie ; and, after argument, Lord Holt, C.J. (dif- Waite?“ fering from Powell, J., Powys, J., and Gould, J.), delivered his opinion (m) that judgment should be given for the plaintiff: because, I. The plaintiff, as a burgess of Ayles- bury, had a legal right to give his vote at the election. II. As a necessary consequence thereof, and incident thereto, he must have a remedy to assert, vindicate, and maintain it. III. The remedy pursued by the plaintiff was the proper remedy, being supported by the grounds, reasons, and principles of our ancient Common Law, I. As to the first ground of his judgment, Lord Holt ob- served:—The Commons of England have so considerable a share in the property of the nation that they thence became entitled to an equal share in the legislature of the king- dom, without whose consent no tax can be imposed, nor law enacted. By reason, however, of the vast number of individuals constituting the commonalty, the function of legislating could not be discharged by them personally, therefore our constitution provided that a convenient and proportionate number from amongst themselves should by them be chosen and appointed, and be invested with a plenary authority to deliberate, advise, and determine for themselves and those who sent them. For which purpose the realm was divided into several districts, under several and distinct considerations—the counties returning knights, the cities citizens, and the boroughs burgesses to parliament, the right of electing knights of (m) The abridgment of Lord Holt’s the edition of that judgment, A.D. Judgment in the text is made from 1837, Digitized by Microsoft® 846 CONSTITUTIONAL LAW. Norero the shire belonging to and being inherent in the freehold— the right of electing burgesses belonging in some cities and towns to the real estate of the inhabitants, and in others being vested in the corporation for the benefit of BARNARDIS- TON v Soame, the particular members who are the electors. In any case, however, the possession of the franchise is to be deemed a benefit and advantage to its possessor (1); so that :— II. He must have a legal remedy to assert, maintain, and vindicate it. (n) In the Report of the Committee of the Lords upon the Writ of Error in the above case, the following pas- sage occurs (14 St. Tr. 783-4) :— It is certainly a great advantage for the inhabitants of a place ‘‘to choose persons to represent them in parliament, who thereby will have an opportunity and be under an obliga- tion to represent their grievances, and advance their profit. ‘©Of this opinion have two parlia- ments been, as appears by two several Acts, the one 34 & 35 Hen. 8, c. 13, the other 25 Car. 2, ¢. 9. The first is an Act for making knights and burgesses within the county and city of Chester, which begins in this man- ner, In humble wise shew to your majesty, the inhabitants of your grace's county Palatine of Chester, that they being excluded and sepa- rated from your high court of parlia- ment, to have any burgesses within the said court, by reason whereof the inhabitants have hitherto sustained manifold losses, and damages, as well in their lands as goods and bodies: Therefore it was enacted, that they should have knights for the county, and citizens for the city of Chester. Would it not look very strange to the The other Act, which constitutes knights and burgesses for the county Palatine, and city of Durhan, recites, that the inhabitants thereof hitherto had not that liberty and privilege of electing and sending knights and bur- gesses to the High Court of Parlia- ment. ‘The application of these two Acts is very plain; the first saith, to be excluded from sending knights and burgesses to parliament, is a damage to lands, goods, and body ; the other saith, that it is a liberty and privilege to send them. ‘‘Thus the right of election is ex- plained, and shewed to be a legal right. That of electing knights of shires, belonging to and inherent in the freehold. The other, of electing burgesses, is belonging in some cities and towns to the real estates of the inhabitants ; and in others, is vested in the corporation, for the benefit of the particular members, who are the electors; the having of which is a great benefit and advantage to the people thereof, and will prevent great loss and damage that otherwise would ensue,” Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, rational part of mankind who either know or ever heard | of our ancient English constitution, if—being so founded that the Commons of England have an undoubted share in the legislative authority, which is to be managed and exercised by their representatives chosen from and by themselves, every freeholder of 40s. per annum, having a right to vote for a county, every citizen for a city, and every burgess for a borough—the sheriff or other officer who is to cause the election to be duly made, hinder, dis- turb, or deprive any of these electors of his right, and never- theless the person injured have no remedy? The injury being done to a right upon the security whereof the lives, liberty, and property of all the people of England so much depend. When a law requires one to do any act for the benefit of another, or to forbear the doing of that which may be to the injury of another, though no action be given in express terms by the law for omission or commission, the general rule is that the party so injured shall have an action. The same reason holds where the common law gives a right, or prohibits the doing of wrong; but in this case an Act of Parliament is not wanting, for the statute of Westminster I. (0), enacts (p) that elections shall be free. If he that hath a right to vote be hindered by him that is to receive his vote, that election is not free; but such an impediment is a manifest violation of the statute, and an injury to the party whose vote is refused. The statute of Westminster I. shews what opinion the King, Lords spiritual and temporal, and Commons in par- liament had of the great consequence it was to the whole realm, that people should have their freedom in choice ;. (0) 8 Edw. 1. (p) C. Be Digitized by Microsoft® 847 Nore To A RNARDIS- TON ° » foamE, 848 CONSTITUTIONAL. LAW. Norz ro and though the common law was the same before, as nro fos appears even by the statute itself, the words whereof are, Soaxr. « And because elections ought to be free,” yet it was judged high time to add the sanction of an Act of Parliament thereunto: —“The king commandeth upon great for- feiture that no great man or other, by force of arms, nor by malice or menaces, shall disturb any to make free election.” “ Tndeed,” continues Lord Holt, “I do not find that the defendants did by force of arms drive the plaintiff away from the election, nor by menaces deter-him; but I find they did maliciously hinder him ; and so it is charged by the plaintiff in the declaration, and. so found by the jury, that they did it by fraud and malice; and so the de- fendants are offenders within the very words of the statute of Westminster J- And surely where the law is so clear as to the right, and so strictly enjoined by Act of Parlia- ment to be observed, it seems a great presumption to make it but a light thing.” “It being apparent, then, that the plaintiff had a right, and the defendants have dune him wrong, and that, by consequence of law, he must have some remedy to vindi- cate his right, and to repair the wrong :— III. “I come in the third place to shew that the remedy the plaintiff hath pursued by bringing this action, is the proper remedy allowed by the ancient law of England.” The law in all cases of wrong and injuries hath pro- vided proper and adequate remedies. If a man hath a franchise, and is hindered in the enjoyment thereof, an action lies, which is an action upon the case. The plaintiff in this case hath a privilege and a franchise, as he is possessor of the borough-land or house, and the defendants Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, have disturbed him in the enjoyment thereof, even in the . most essential part, which is his right of voting. The precept the defendants received from the sheriff was founded upon the king’s writ, and these defentlants are commanded to cause to be elected two burgesses for the borough of Aylesbury, of which they are to give notice, and to admit every one that hath a vote to make use of it. If they refuse any to vote that hath a right, they act contrary to the duty of their office. There was an objection made that it doth not appear that the persons for whom the plaintiff tendered his vote were elected, nor that they would have been elected if his -vote had been admitted. I answer, it is not material whether the persons for whom he voted were chosen, or would have been chosen if he had had his vote. His right and privilege is to give his suffrage, to be a party in the election, and if he be excluded from thence he is wronged, though the parties for whom he would have given his vote were elected. Then by way of answer to the objection that the plaintiff had sustained no damage, Lord Holt replied that “ every injury imports damage in the nature of it,” and cited the following authority — The plaintiff stood to be one of the bridgemasters of London Bridge, which officer was elected in a common hall, and, the plaintiff and others being candidates, the question was which had the greatest number of votes ? The plaintiff demanded a poll, the defendant, being the Lord Mayor of London, refused it. It was then determined that an action was maintainable for refusing the poll, which can be supported only upon this account, that the plaintiff had a right to have it, as every candidate hath, though if he had had it, it might have been against him ; 31 Digitized by Microsoft® 849 Nore To ARN ARDIS- TON » Soame. 850 CONSTITUTIONAL LAW. pom zo but the denial of the right was a good ground of tox action (q). oe Now to say that there is no such injury or damage as will support the action in this case, is to beg the question, for it is most apparent, by what hath been said, that the plaintiff hath been injured in being denied his right ; it lies on the other side to show any particular reason that may affect this case, and it has been objected as follows:— 1st Objection : That this would be the occasion of many actions. Answer, If that be so, there is the greater reason to support this action to punish the many wrongs that have been done, which will prevent any more of the like nature. If offences multiply, remedies against them ought to -be advanced. If other officers of boroughs have been guilty of the like misfeasances as these defendants, it is fit they should be as liable as these defendants to make satisfac- tion. The only means to hinder corruptions that are go frequent among officers of boroughs and corporations, is to let them know that they are obnoxious to the law, and that their purses must make satisfaction to all whom they may injure in this manner. It is very true, if one act that tends to the injury of many persons be committed, no one person injured shall be allowed to have an action because the rest might have the same (7). But in this case none can have any action but the party grieved whose vote was denied, the others whose votes were admitted are not concerned ; and if the officer denies a hundred who have right, there are a hun- dred several wrongs, for which he will be liable to a hun- dred several actions. But surely this is so far from being (q) Turner v. Sterling, 2 Lev. 50. —liams’s Case, 5 Rep. 72; Fineux v. (r) Citing Co. Litt. 56, a; Wil- Hovenden, Cro. Eliz. 664. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. an objection, that it is a strong argument to support the action ; for if the mayor or bailiff of a borough have liberty to refuse men who have votes, he will easily have a ma- jority to vote on his side; and then what will become of our elections? This would give an opportunity to officers to be partial and corrupt, and to return divers persons to parliament, who would have possession of seats there for some time, and would have voices in the making of laws and imposing of taxes, until the right of election could be determined. And though the plaintiff, upon hearing of the cause in the House of Commons, might have his voice allowed him, yet this would not compensate for the mischief that might be done to the kingdom in the mean- * time by the votes of those partially returned, and who were not the representatives of the people entitled to choose them, The rule against multiplying actions (continued Lord Holt) is confined to acts where there is another remedy to be had; but besides this action the party injured has no other remedy; no indictment lies because it is a personal wrong to the party, and no wrong to the public, but as an evil example, and as tending to the encouragement of other such officers to commit the like transgressions. 2nd Objection. That never such action has been brought. Answer 1. “For aught I know,” said Lord Holt, “this is the first occasion that ever was given, for I never heard that any man was so presumptuous as to proceed or act against apparent right as these defendants have done,” It is not the novelty of the action which can be urged against it, if it can be supported by the old grounds and principles of the law. The ground of law is plain and certain, indeed universal, that where any man is injured in his right by being either hindered in, or deprived of, the 312 Digitized by Microsoft® 851 Note To BARNARDIS- TON Ve Soamez, 852 Note To BARNARDIE> TON vw SoamE, CONSTITUTIONAL LAW. enjoyment thereof, the law gives him an action to repair himself. The law of England is not confined to particular precedents and cases, but consists in the reason of them (s), which is much more extensive than the circumstance of this or that case—ratio legis est anima, legis et ubi eadem ratio ibt idem jus. An action upon the case was brought against the mayor of a town for refusing the plaintiff's vote at the choice of a new mayor, and there never was any scruple made, but that the action did well lie (4), There can be no difference between that and this case, unless it be supposed that the right to vote at the election of a mayor is of higher estimation in the eye of the law than a right to choose members to serve in the High Court of Parliament. “A mayor of a town is to govern the electors according to law, which if he doth transgress, he must make satisfaction for the injury; but a parliament man, in conjunction with others, hath an- absolute power over life, liberty, and property of every elector.” This action is not only founded upon the reason of the common law, but it hath the sanction of an Act of Parlia- ment, viz. the Statute of Westminster IT. (w). Lord Holt then observed that the defendant was neither a judge nor like a judge (v), but only a ministerial officer to execute the Queen’s writ, viz. to-assemble the electors to make the election by receiving their votes and (s) ‘The law of England wouldbea Mansfield, C.J., Jones v. Randalls strange science indeed if it were de- cided upon precedents only. Precedents serve to illustrate principles and to give them a fixed certainty ; but the law of England, which is exclusive of positive law enacted by statute, de- pends upon principles ;” per Lord Cowp. 39, (t) Heming v. Beale, 2 Lev. 250. (u) ©. 24, (v) With this compare what is said by North, C.J., in the Principal Case, ante, p. 801. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. computing their numbers, to declare the election, and to return the persons elected. His lordship then proceeded to maintain that the case sub judice was proper in the nature of it to be deter- mined in the Queen’s courts, “which will be apparent if the right of electing the first order of representatives, viz. knights of the shires, be considered, which is founded upon the elector’s freehold. Matters of freehold are determinable originally and primarily in. the Queen’s courts by the rules and methods of the common law, by jurors upon oath, upon the evidence of witnesses also sworn ; and as the right of the freehold is determinable there, so are all benefits, rights, and advantages depending thereupon or belonging thereunto. And if a freeholder’s voice should be refused by the sheriff, what could hinder but that the Queen’s courts should try and determine this matter by a jury, upon the oaths of witnesses or evidences in writing, whether the plaintiff that supposes himself wronged was a freeholder or not?” The franchise of a citizen and burgess depends either upon usage, prescription, or custom, or letters patent, which also are primarily and originally cognizable by the Queen’s courts. : Then by the statute 7 & 8 Will. 3, c. 7 (), the officer is to return him elected who is chosen according to the last determination of the House of Commons. That settles the right of election. Now suppose the officer denies a man a vote who, according to the last determina- tion therein, has, or ought to have, one, and this the mayor or bailiffs well knew; what hinders him that had right, according to that determination, from bringing his action against the officer who hath injured him? It can- (x) Ante, p. 835, Digitized by Microsoft® 853 Nots To BaRnaRbIs- TON » Soame. 854 Note To BaRNARDIS- TON wv Soame. CONSTITUTIONAL LAW. not be the Act of Parliament, for the Queen’s courts are by law the first and original expounders of the statutes of the realm. There is no other place, court, or jurisdiction appointed by the law of England for determining this right or repairing this. injury but one of the Queen’s courts of Westminster. No man ever applied to Parliament com- plaining that he was debarred of his vote when he had a right thereunto. Sometimes some of a borough have complained that persons have been returned by their officer who were not duly elected, which is an injury done to the whole community, and brings the rights and merits of election into question. So if one complains that he was elected by a majority, and that another was returned, this also brings the merits into question, of which that House has cognizance, and therefore as incident and necessary thereunto, they must try the right of electors, which of them by custom or letters patent have voices. But because the House of Commons may determine who are electors and who are not, in order to try the right of election, it does not follow that when the right of election is not in question they shall try the right of an elector ; the one is only hdc vice, the other is a freehold or fran- chise. Who hath a right to be in the parliament is properly cognizable there, but who hath a right to choose is a matter originally established and settled before there is a parliament assembled (y). (y) During the Debate in the House of Commons originating out of the above case, Mr. Lowndes observed (14 St. Tr. 734), that from ‘‘the begin- ning of the reign of Queen Elizabeth, it hath been a standing tule in the House of Commons, in the beginning of every parliament, and every session, to appoint a committee to examine all matters concerning elections ;” and, he adds, ‘‘if those committees have from {ime to time proceeded to ex- Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. When the right of the candidate is examined it is upon és this account—whether this or that candidate hath the right to be in their company, and to join with them in the making and forming of laws; and they, as the great conservators of the people’s rights, will not permit any to join with them who is not truly a representative of the place for which he pretends to be chosen, The merits of an election may properly be enquired of by the House of Commons, for they only can give the most effectual remedy by excluding the usurping member, and’ giving the possession of the place to him who has the right. The House of Commons cannot, however, take cogni- zance of particular men’s complaints; there is matter of greater importance for them to employ themselves about, the ardua et urgentia negotia regni (as the writ says), the safety and defence of the king and kingdom; and therefore, though this be a case that in consequence con- cerns the lives and liberties of the subjects of England, yet in regard the law hath provided for it, it is to be pursued in the ordinary and common methods of justice, without giving Parliament so much trouble to the inter- ruption of their greater affairs. Again—the House of Commons cannot give satisfaction in damages (2). amine the right of electors, and this House hath proceeded from time to time to give judgment in such cases, sometimes according to general quali- fications settled and adjusted in the House, and very frequently upon ex- amining and considering the rights of particular voters; then I think we have as good authority for the juris- diction of this House, in the matter of these elections, as can be had for any- thing whatsoever.” Digitized by Microsoft® (®) Ante, p. 848. Mr. Tankred, a member of par- liament, complained to the House of a breach of privilege against one Morris for having intercepted letters sent to Mr. Tankred by the post. The House, having heard Morris and his witnesses, resolved, that there was no ground of complaint of breach of pri- vilege, and oidered that Morris should be discharged from further attendance, and that he should be 855 Nore To ARNARDIS- TON Vv. Soames, — 856 Nore To BaRNARDIS+ TON » SoamMeE. Writ of error. CONSTITUTIONAL LAW, 3rd Objection. The last objection is that such an action is a breach of the privilege of the House of Commons. Answer. Privilege is no bar to any action; an action may be delayed and proceedings thereupon obstructed by reason of privilege, but that ever any legal remedy was taken away by privilege is without precedent. That certainly can never be esteemed a privilege of parliament which is incompatible with the right of the people, which is to have reparation for injuries done to their rights and franchise, according to the ordinary course of justice, 4.2. on trial by jury, where the witnesses who give evidence are upon their oaths (a). Surely none will say that if a man be injured in such a manner as the plaintiff in this action hath been, he may per legem terre have a remedy for satisfaction and assert~ ing his right in the House of Commons. This remedy must be either by statute law or common law; no statute gives him such a remedy, nor does the common law, for not one precedent can be produced that any man upon such an occasion applied himself to the House of Com- mons for relief. Judgment having been given for the defendants in the above action by the majority. of the Court of Queen’s Bench, error was brought upon it in the House of Lords, where, on the 14th of January, 1703, such judgment was reversed (6) upon the grounds above set forth by Lord Holt (c). And consequent on these proceedings occurred the famous debate in the Commons House, which re- paid the costs of his attendance by (6) 1 Brown, P.C. 45. Mr. Tankred. Comm. Journ. 20 (c) See the Report of the Lords’ Jan., 9 Will. 3; 14 Feb., 10 Will. Committee upon the Proceedings on 3; cited and commented on 14 St. Error in Ashby v. White, 14 St. Tr. Tr. 788, 744, 778, et seq. (a) Citing Magna Carta, cap. 29, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 857 sulted in certain Resolutions (d), of which the more | Nors70 . - BARNARDIS- important are as follows :— a I. That according to the known laws and usage of .Par- *°A"® Resolutions liament, it is the sole right of the Commons of England ¢r the in Parliament assembled, (except in cases otherwise pro- canna vided for by Act of Parliament,) to examine and deter- mine all matters relating to the right of election of their own members. II. That according to the known laws and usage of Parliament, neither the qualification of any elector, nor the right of any person elected,.is cognizable or determi- nable elsewhere, than before the Commons of England in parliament assembled, except in such cases as are specially provided for by Act of Parliament. IIT. That the examining and determining the quali- fication or right of any elector, or any person elected, to serve in Parliament, in any court of law, or elsewhere than before the Commons of Englarid in parliament assembled, (except in such cases as are specially provided for by Act of Parliament,) will expose all mayors, bailiffs, and other officers, who are obliged to take the poll, and make a.return thereupon, to multiplicity of actions, vexatious suits, and insupportable expenses, and will subject them to different and independent jurisdictions, and inconsistent determinations in the same case, without relief. IV. That Matthew Ashby having, in contempt of the jurisdiction of this House, commenced and prosecuted an action at common law against William White and others, the constables of Aylesbury, for not receiving his vote at an election of burgesses to serve in Parliament for the (d) Comm, Journ., vol. xiv., p. 808; Parl, Hist., vol. vi, p. 300. Digitized by Microsoft® 858 Note To BARNARDIS- TON % SoamMe, Paty’s case. CONSTITUTIONAL LAW. said borough of Aylesbury, is guilty of a breach of the privilege of this House. V. That whoever shall presume to commence or pro- secute any action, indictment, or information, at common law, which shall bring the right of the electors, or persons elected to serve in Parliament, to the determination of any other jurisdiction than that of the House of Commons (except in cases specially provided for by Act of Parlia- ment), such person or persons, and all attorneys, solicitors, counsellors, and serjeants at law, soliciting, prosecuting, or pleading in any such case, are guilty of a high breach of the privilege of this House. After the above Resolutions of the House of Commons an execution issued out of the Court of Queen’s Bench against the defendants White and others, at suit of Ashby, upon his judgment in the House of Lords, and the de- fendants were taken in execution. John Paty, also, another of the Aylesbury men, commenced an action similar to that at suit of Ashby, against the same defen- dants, and having, in pursuance of a resolution of the House of Commons, been committed for a contempt in so doing, brought his writ of habeas corpus in the Queen’s Bench (¢), but, by the majority of the judges of ‘that court differing in opinion from the Lord Chief Justice Holt, was remanded; the ground of remand being that the court had not cognizance of the matter brought before it, the House of Commons being exclusively judges of their own privileges. Lord Holt, in delivering his opinion (/') wpon this occa- sion, animadverted upon the assumption of’ power by the House, to restrict by resolution the known rights and (e) Reg. v. Paty, 2 Lord Raym. (f) See Lord Holt’s Judgment, 1109; 8, C. Salk, 503, , ed. 1837, p. 41. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 859 liberties of the people. “ If this commitment,” said he, “in | Nor 70 the case of these men shall be determined to be warranted — 70% by the laws and customs of this realm, it will be arule 5™™ in all other cases within the same reason, which is in truth when either House of Parliament shall make a menacing declaration, that whoever shall presume to do such or such acts (though in themselves never so legal or justifiable), shall be judged and esteemed to be an in- fringer or transgressor of the privilege of that House, and so to be subject to the censure thereof: which pro- ceeding is not according to the constitution of the kingdom, which admits no such power or authority to be exercised and administered, but by the whole legis- lature.” Neither House of Parliament hath power, no, not both together, to dispose, limit, or diminish the liberty or pro- perty of the subject, because by law (which is superior to the actions or determinations of either House) that liberty and property are established and cannot be diminished or infringed by a less authority than the legis- lature of the kingdom, which is the Queen, the Lords and Commons assembled in Parliament. Adverting also to the final decision in Ashby v. White, and the Resolutions of the House of Commons having refer- ence thereto, Lord Holt further observed, that the Com- mons had thus asserted a jurisdiction superior to the Parliamentary jurisdiction legally exercised and adminis- tered in the House of Lords, which is the dernier ressort for litigating parties appointed by the law and constitu- tion of England. _ If indeed the Lords were on any occasion to administer their judicial power contrary to those rules of law to which they are obliged to adhere, it cannot be doubted but the Digitized by Microsoft® 860 Norte To BaRNaRDIS- TON Ww Soame. CONSTITUTIONAL LAW. Commons might take notice thereof, in a parliamentary manner—might demand conferences or prepare a bill to declare the law. But to fall upon the subject who follows a judicial precedent, made in the high Court of Parlia- ment, for a breach of privilege to the other House, is to make the constituent parts of the Government inconsistent, and to contradict the main end thereof, in which all parts ‘should concur to secure the liberty and property of the subject, and not render those rights uncertain and pre- carious. No declaration of either House, said Lord Holt, can bind the subject or create any new privilege, for then it would have the force of an Act of Parliament, and bind the person and property of the subject, which are free, unless restrained or limited by the legislature of the king- dom, which none can pretend is vested in the House of Commons. “Tt hath been said by my brothers and the rest of the judges of the two other Courts (g), that each House is judge of its own privileges, exclusive of all other Courts.” I must agree that when a privilege of either House is broken, complaint for that breach must be made in that House whose privilege is broken, for no other Court upon any such complaint can take cognizance thereof. But if a question concerning privilege arise in any cause depend- ing in the Queen’s Courts, that. Court hath power to proceed thereupon, and to determine that point. “Tt is not denied that the Commons are judges of their privileges, but they have not power to enlarge them nor to create new. The judges in the Queen’s Courts are Judges of the law, but have no power to make law.” (g) Who had been consulted in with the majority of the Court of the matter, and unanimously agreed © Queen’s Bench. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, Lord Holt having thus in Paty’s Case, reaffirmed pro- positions such as he had stated in Ashby v. White, and relied. upon the final judgment there given, as absolving Paty on the charge of breach of privilege, concluded thus :—“The liberty of the subject hath been secured and asserted by many Acts of Parliament (#). There is no precedent of any such commitment before this time for bringing any action, unless against a privileged person and in the time of privilege. Now if the judges, because of the name of privilege, though there is nothing of the nature of it, cannot judge of the legality of the commit- ment, then it is and ever will be in the power of the House of Commons, when they please, to deprive the Queen’s Courts of that jurisdiction which they have for the relief of the subject. “When the people qualified do elect their representatives, they give them power and authority to act legislatively, not ministerially or judicially, for therein the laws have made sufficient provision; and where there is a defect in the law, they have authority, if the Queen and the Lords shall agree with them, to supply that defect, but they have no power of themselves.to do anything. Consider what this declaration hath done. It hath asserted a power in them to restrain and diminish that liberty of the sub- ject which is secured to every one by the fundamental laws and constitution of the kingdom. It hath also assumed an authority to abridge, limit, and deprive the Queen’s Courts of their jurisdiction in relieving the sub- ject from arbitrary and illegal imprisonments. It tends to deprive the subject of the aid and assistance of his counsel, agents, and attorneys, to assert and maintain his right by the methods and rules of law, which is an exer- (A) Citing Magna Carta, c, 29, Digitized by Microsoft® 861 Nore To BARNARDIS- TON ». SoaMe. 862 ; CONSTITUTIONAL LAW. pXomto cising of an arbitrary and despotic domination that is tow foreign to the laws of England ; for such proceedings were Soame. never used or exercised here until the year 1640. He that is supposed to commit a breach of privilege, is ina worse condition than any one that is under an accusation of the highest crime, which is high treason; for even before the statute (7), it was lawful to assist such person to make a fair defence, though not to speak for him in open Court.” Paty having, in accordance with the opinion of the majority of the Court of Queen’s Bench, been remanded to prison, petitioned the Crown for a writ of error upon that judgment returnable in the House of Lords, and thereupon ensued the memorable debates in Parliament, and discussions between the two Houses, which were even- tually set at rest by a prorogation. The final decision in Ashby v. White seems to be clearly reconcileable with that in the Principal Case upon grounds stated by Lord Holt (4%) in characteristic language. Lord Holt’s opinion on the earlier occasion was against the action:—I1st, Because a double return is no return that the law takes notice of, but is only allowed of by the custom of parliament; 2ndly, Because in case of doubt the course of parliament admits of a double return; therefore, when the returning officer doubts, and returns the result of the election as doubtful, and so submits to the judgment of the House of Commons, which has jurisdiction in the matter, it would not be reasonable for the law to suffer an action to be brought against the officer. “Objection. That the elected shall not have an action, yet the elector, that it may be is but a cobbler, shall—is very unreasonable.” (i) 7&8 Will. 3, 0 3. (k) Judgm. ed, 1837, p. 29. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. “ Answer. The law hath no respect to person. He is (though a cobbler) a free man of England, and to be represented in parliament.” “Objection. That this matter is triable per legem et consuetudinem parliamentt.” Answer. That is asserted but not proved; rather the contrary doth appear ; for this is a right not founded upon the law and custom of parliament, but an original right, part of the constitution of the kingdom as much as a parliament is; the persons selected to serve in parliament derive their authority from, and can have no other but that which is given to them by those who have the original right to choose them. Objection. The House of Commons has jurisdiction to try the right of the election of its own members. Answer. It is very true, it has; but that the House has power to try or determine the right of other persons who are not its members, and do not pretend to be so, cannot be justified by any precedent or usage. This objection, however, is enforced, by saying that the Com- mons cannot determine the right of the election unless they also determine the right of the elector. To which it may be answered, That oftentimes is so, though not always; but taking it for granted to be so, it is only pro hde vice, and cannot conclude an elector who has a right, because he is not a party to the suit; his right comes not there in question originally, but consequentially in a cause litigated between other persons, and it is not agreeable to the prin- ciples of law that the right of one man should be conclu- sively determined in a cause between others wherein he is no party (0). (1) Res inter alios acta altert nocere non debet ; See Broom’s Leg. Max. 4th ed. p. 917. Digitized by Microsoft® 863 Note To BaARNARDIS- TON Vv. SoameE. 864 3 : CONSTITUTIONAL LAW. Norero Such are the reasons assigned by Lord Holt as recon- “to ciling his opinion in Ashby v. Whéte with that held by Soaxe, him in the Principal Case; nor need difficulty be felt about admitting that there is in truth no conflict between the cases. ; More difficult might it be to reconcile the conduct of the Commons in reference to the Aylesbury election, with the course which had previously been pursued by them in obtaining from the House of Lords a reversal of the judg- ment pronounced by the King’s Bench against Denzil Holles and others, on an information preferred by the Crown for acts done by them as members of the Lower House, and within the walls of parliament. Anno 5 Car. I, criminal proceedings were instituted in the King’s Bench against Sir John Eliot Holles and Valentine (m) for seditious words spoken in parliament, and for forcibly detaining the Speaker in the chair for the purpose of pre- venting an adjournment. To the information thus ex- hibited, a plea to the jurisdiction was put in, because “these offences are supposed to be done in parliament, and ought not to be punished in this Court or in any other, but in parliament.” This plea, however, was over- ruled, Hyde, C.J., observing that all the judges of England had determined that “an offence committed in parlia- ment, criminally or contemptuously, the parliament. being ended, rests punishable in another Court;” and Croke, J., adding, “If such an offence be punishable in another Court, what Court shall punish it but this Court, which is the highest Court in the realm for criminal offences? And perhaps (2) not only criminal actions committed in par- (mj) 8 St. Tr, 293; Cro. Car. 181, Tn the conference between the two (n) See Hall. Const. Hist. Eng., | Houses concerning freedom of speech 8th ed. vol. ii, p. 7. in the year 1667, Mr. Vaughan, on Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, liament are punishable here, but words also.” to the jurisdiction having been overruled, and the de- fendants declining to put in any other plea, judgment by nil dicit was given against, and heavy fines were imposed upon them. Shortly after the meeting of the Long Parliament (A.D, 1641), it was by them, inter alia, resolved (0) that the exhibiting of the information above-mentioned was a breach of privilege, and that the overruling of the plea to the jurisdiction, the judgment and sentence of the Court were also “against the law and privilege of parliament.” Now, had the Commons remained satisfied with this asser- tion of their rights, no argument could have been drawn from it adverse to their privileges. This matter was, how- ever, in the reign of Charles II. (A.D. 1667) again agitated, when the Commons, relying upon the stat. 4 Hen. 8, c. 8 (p), as a general enactment, again voted that the judgment against Eliot and others was illegal, and having obtained the concurrence of the Lords in this vote, a writ of error was, at the suggestion of the Upper House, brought by Mr. (then become Lord) Holles, upon the said judgment, and it was formally reversed. It cannot surprise us that amongst the reasons assigned for reversing the judgment of the Queen’s Bench in Ashby v. White stress should have been laid by the Upper House upon the course thus adopted by the behalf of the Commons, admitted as ‘very possible” that the above plea to the jurisdiction was not sufficient as regarded the ‘‘criminal actions” alleged against the defendants in the information. See 3 St. Tr. 318. (0) 3 8t. Tr, 312, (p) This Act specifically concerned one Richard Strode, and protected him from suits in respect of what he had done in parliament; it likewise contained general words which the House resolved, on the occasion men- tioned in the text, to be declaratory of the ancient rights and privileges of parliament. 3K Digitized by Microsoft® 865 The plea _ Nori zo Bar NARDIS- TON v. Soamz, 866 CONSTITUTIONAL LAW. piom™7 Commons less than half a century before. So little “x jealousy did the Commons then entertain of any encroach- SoaMs. ment on their privileges by the higher branch of the legislature, that they themselves “resorted to the judi- cature of the Lords, in the manner that has been men- tioned, upon so weighty an occasion” (q). Few instances are found of actions, whether at common law or upon the statute of William IIL, brought against returning officers; and: from none such, sawe those already noticed, can any inference be drawn of much practical value or importance. In Nevill v. Stroud (r), below abstracted, no final judg- ment was pronounced ; and Onslow’s Case (s), where the action was for a double return, was decided by North, C. J., and other judges, in conformity with the Principal Case, upon the ground that the Court had no jurisdiction of the matter (¢). In Wynne v. Middleton (wu) the action was brought upon (g) 14 St. Tr. 798. (vr) 2 Sid. 168, where the facts were as under :—Mr. Nevill, having stood as a candidate to represent the county of Berks in parliament, was chosen by a majority of votes, but not re- turned, and therefore he brought his action against the defendant, who was Sheriff of Berks, in the’Common Pleas: That action depended there some time, and thereupon the jus- tices brought the record into the House of Commons for difficulty, and desired the House would come to « determi- nation in it, This being in the time of the Long Parliament, which had assumed the whole legislative, as well as executive power, the record being brought in, the House ap- pointed a day to consider of the matter, and when they saw the plaintiff had proceeded according to the known methods of law, they gave no judgment in the case, but sent it back to Westminster Hall, where it was again argued, but never adjudged. (s) 2 Vent. 373 ef vide per Holt, C.J., Prideaux v. Morris, 2 Salk. 503, where the action was for a false return. (t) In the year 1784 damages were recovered by Mr. Fox in an action against the High Bailiff of Westminster for a false return. See Hughes, Hist. Eng., vol. iii. chap. 28, (u) 1 Wils. 125, See also Gough y. Batemen, 1 Lutw. 184, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 867 the statute 7 & 8 Will. 3, ¢. 7 (), for double damages for ,Nom= 70 a false return, and, after verdict for the plaintiff, it was 7)* inter alia objected,—that double damages can only be "2 recovered in respect of the return being contrary to the last resolution of the House of Commons, and that it did not appear that there had been any last resolution of the House ; the majority of the Court of King’s Bench, how- ever, held that the action was well brought, and that double damages should be recovered for any false return, and that they were not bound by law to take notice from time to time of the particular resolutions of the House of Commons, who of themselves cannot make a law; and Willes, C. J., added, “But whatever may have been the opinion of judges, I am very clear myself that an action at common law will well lie both for a false or a double return of a member, for there is damnum cum injurid in both cases.” “There would be, I think, the greatest in- convenience if the doctrine should prevail that there cannot be a determination in the House of Commons as to the election (y) before the action for a false return can be brought, for, if so, it would be in the power of the House to repeal this Act of Parliament by contriving to put off a petition from time to time for two years, within which time this sort of action must be brought. I declare for myself that I will never be bound by any determina- tion of the House of Commons against bringing an action at common law for a false or a double return ; and a party injured may proceed in Westminster Hall notwithstanding any order of the House, for the members are not upon oath, nor can they administer an oath to witnesses ; ‘and it would be very extraordinary to say that we, who are judges upon oath, should be bound by a determination of (x) Ante, p. 835. (y) As in the Principal Cise; ante, p. 798, "8K 2 Digitized by Microsoft® 868 Nore To BaRNARDIS- TON vw Soame. —_— CONSTITUTIONAL LAW. persons not upon oath ; in trying such action for a false return, I would pay great regard to a determination of the House, but yet I would go on” (2). It has been held that the act of defendant must have been wilful, in order that an action may be maintainable against him under the above-mentioned statute (qa). Further; by stat. 11 & 12 Vict. c. 98, s. 103, it is en- acted, that if any sheriff, or other returning officer, shall wilfully delay, neglect, or refuse duly to return any per- son who ought to be returned to serve in parliament for any county, city, borough, district of burghs, port, or place within Great Britain or Ireland, such person may, in case it have been determined by a select committee appointed in the manner hereinbefore directed, that such person was entitled to have been returned, sue the sheriff or other officer having so wilfully delayed, neglected, or refused duly to make such return at his election, in any of her Majesty's Courts of Record at Westminster, and shall recover double the damages he has sustained by reason thereof, together with full costs of suit, pro- vided such action be commenced within one year after the commission of the act on which it is grounded, or within six months after the conclusion of any proceedings in the House of Commons relating to such election. Of actions against returning officers at suit of persons claiming to exercise the franchise, a reference to Pryce (2) The judicial observations supra, though doubtless entitled to regard, as bearing generally on the question, Are the asserted privileges of the House of Commons binding on our Courts of Law ?—cannot be weighed against the express language of the statute of Will. III. Fortescue (de Laud. Leg. Ang., p. 117) affirms that ‘‘a jury is not, nor can be, bound by any opinion of the House of Commons, nor by any court of law in the world, but that of their own consciences.” (a) Burgoyne v. Moss, cited 2 Stark N. P. C., 584, 588-9. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. v. Belcher (b) will suffice. That was an action against the returning officer of the borough of Abingdon, for an alleged infraction by him of the requirements of the 82nd section of stat. 6 & 7 Vict. c. 18; the action failed, how- ever, on the ground that the plaintiff had become disqua- lified to vote by reason of non-residence. The above is not, indeed, the only instance in modern times of an action such as specified. The principles applicable to it are now well ascertained, nor does the House of Commons interfere with its prosecution unless there be circum- stances in the particular case affecting the privileges of the House (c). A collision, originating out of such an action, between parliament and our courts of law, may seem therefore unlikely to occur (d) ; it cannot, however, regard being had to the course of proceedings in Ashby. v. White and in Paty’s Case, be deemed impossible ; and glancing down the vista of futurity, the eye of the con- stitutional lawyer may perchance discern some danger— ill perhaps defined—such as occurred to Lord Coke’s pro- phetic vision when he wrote (e) :—“ As the body of man is best ordered when every particular member exerciseth his proper duty, so the body of the commonwealth is best governed when every several court of justice executeth (b) 40. B. 866; 8. C. 3 Zd. 58, (c) See the Report of the Select which the petition before it relates, or respecting the right of appointing, Committee on the Sligo Borough Election, Comm. Journ. vol. cxii. p. 814; et vide Id. vol. xxxi. pp. 211, 279, 292-3; May, Parl. Pr. 5th ed. pp. 56, 57. (d) See also the stat. 9 Geo, 4, 22, which enacts (sect. 54) that the decision of an Election Committee of Appeal, on any question respecting the right of election for the place to nominating, or choosing the return- ing officer who is to make return of such election, ‘‘shall be held and taken to be final and conclusive’ in all subsequent elections of members for that place, “and to all intents and purposes whatsoever, any usage to the contrary notwithstanding.” (e) 4 Inst., Pref, Digitized by Microsoft® 869 Nove To BARNARDIAS- TON %., Soamr: 870 CONSTITUTIONAL LAW. photo his proper jurisdiction.” If the eye, whose duty it is tox to see—the hand to work—the feet to go—shall usurp Sonim and encroach one upon another's work, this will assuredly produce disorder, and bring the whole body in the end to destruction. “So in the commonwealth (justice being the main preserver thereof), if one court should usurp or encroach upon another, it would introduce uncertainty, subvert justice, and bring all things in the end to confu- sion.” STOCKDALE v. HANSARD; 9 Ad. & E. 1. (2 Vict. a.p. 1839.) PRIVILEGES OF THE HOUSE OF COMMONS—THEIR EFFICACY —HOW FAR OBLIGATORY ON COURTS OF LAW. It is no defence, at common law, to an action for publish- ing a libel, that the defamatory matter is part of a document which was, by order of the House of Com- mons, laid before the House, and thereupon became part of the proceedings of the House, and which was afterwards, by orders of the House, printed and pub- lished by defendant; and that the House of Com- mons heretofore resolved, declared, and adjudged “ that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the con- stitutional functions of parliament, more especially to the Commons’ House of Parliament as the representa- tive portion of it.” When a plea suggests such a defence, a court of law is competent to. determine whether or not the House of Commons has such privilege as will support the splea. Declaration, THIS was an action on the case, in which the declara- tion stated that, before and at the time of committing the Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 8 = ( 1 grievance next hereinafter complained of, the said plaintiff Srockpare was, and for a long time had been, a bookseller and pub- Hassan. lisher of books, and, as such bookseller and publisher of books, had published divers and very many scientific books, and particularly, in the year 1827, a certain phy- siological and anatomical book written by a learned physi- cian on the generative system, illustrated by anatomical plates: and, whereas the said defendants, on Ist May, 1836, did publish and cause to be published in a certain book, purporting to be “Reports of the Inspectors of the Prisons of Great Britain,” the passage following, that is to say: “This last is a book” (meaning the said physiolo- gical and anatomical book) “ of a most disgusting nature ; and the plates are indecent and obscene in the extreme ;” whereas, in truth and in fact, the said book is purely of a scientific character: Yet the said defendants, well know- ing the premises, but contriving and maliciously intending to defame and injure the said plaintiff in his said trade of a bookseller and publisher, and cause it to be believed that he published indecent and obscene books, on 19th August A.D. 1836, maliciously and falsely did publish, and cause to be published, of and concerning the said. plaintiff, in his said trade and business, in a certain printed paper, pur- porting to be a copy of the Reply of the Inspectors of Prisons for the Home District, with regard to the Report of the Court of Aldermen, to whom it was referred to con- sider the first report of the inspectors of prisons as far as relates to the gaol of Newgate, which said copy of the reply purports to be a letter from William Crawford, Esq., and the Rev. Whitworth Russell, inspectors of prisons for the Home District, to the Right Hon. Lord John Russell, &c., the false, scandalous, and defamatory libel following, that is to say,—“ But we deny that that book is a scientific work (using that term in its ordinary acceptation), or that the plates are purely anatomical, calculated only to attract the attention of persons connected with surgical science ; and we adhere to the terms which we have already em- Digitized by Microsoft® 872 SrockDALE ployed, as those only by which to characterise such a boo. CONSTITUTIONAL LAW. ” HANsaro, (meaning thereby that the said book was disgusting and Plea. obscene, as stated in the above-mentioned report of the inspectors of prisons of Great Britain): and, in another part of the said libel, to the substance and effect following, that’ is to say: “ We also applied to several medical booksellers, who all gave it the same character. They described it as one of Stockdale’s obscene books” (meaning thereby that the plaintiff was a common publisher of obscene books) ; “that it never was considered as a scientific work; that it never was written for or bought by the members of the profession as such; that it was intended to take young men in, by inducing them to give an exorbitant price for an indecent work :’ To the great injury of the said plain- tiff in his said trade and business, and also of his fair fame and reputation, and to the damage of the said plaintiff of 50001., &c. Plea. That, heretofore and before the commencement of this suit, and after the making of a certain Act of Par- liament (a), made and passed at the parliament begun and holden at Westminster, on 19th February, 1835, entitled, “ An Act for effecting greater uniformity of practice in the government of the several prisons in England and Wales; nd for appointing inspectors of prisons in Great Britain,” to wit, on 1st January, A.D. 1836, the Right Hon. John Russell (commonly called the Right Hon. Lord John Russell), then being one of his late Majesty’s principal Secretaries of State, in pursuance of the said Act, nomi-. nated and appointed William Crawford, Esq., and the Rev. Whitworth Russell to visit and inspect, either singly or together with any other inspector or inspectors appointed under the provisions of the said Act, every gaol, bridewell, house of correction, penitentiary, or other prison or place kept for the confinement of prisoners in any part of Great Britain; and that afterwards, viz., on Ist March, in the (a) Stat. 5 & 6 Will. 4, c, 38, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 873 year aforesaid, they, the said William Crawford and Whit- Srocxpate worth Russell, as such inspectors as aforesaid, made their HIANsARD. report in writing of the state of a certain gaol and prison in the city of London called Newgate, and transmitted the same to the said Right Hon. John Russell (commonly called, &c.), then being such Secretary of State as afore- said, in pursuance of the said Act of Parliament. And that heretofore, and before the publication of the said supposed libel in the declaration mentioned, viz. on 13th August, A.D. 1835, a parliament of our sovereign lord his late Majesty King William IV. was holden at Westminster in the county aforesaid; and it was in and by the Com- mons’ House of the said Parliament then, to wit on the day and year last aforesaid, resolved and ordered that the parliamentary papers and reports printed for the use of the House should be rendered accessible to the public by purchase at the lowest price at which they could be fur- nished, and that a sufficient number of extra copies should be printed for that purpose (b); And that afterwards, at a parliament of our late said lord the king, holden at West- minster in the year 1836, and before the publication of the said supposed libel in the said declaration mentioned, viz., on 9th February, 1836, it was ordered by the said Com- mons’ House of Parliament that a select committee should be appointed to assist Mr. Speaker in all matters which related to the printing executed by order of the House (c): And that afterwards, and before the publication of the said supposed libel, viz. on the day and year last aforesaid, a select committee was duly appointed by the said House, in pursuance of the said last-mentioned order, for the pur- poses in the said order mentioned: And that afterwards, and before the publication of the said supposed libel, and whilst the said last-mentioned parliament was so sitting as aforesaid, viz., on 18th March in the year last ‘aforesaid, it was resolved by the said committee, appointed in pur- (6) 90 Com. Journ, 544, (c) 91 Com, Journ. 16. Digitized by Microsoft® 874 CONSTITUTIONAL LAW. SrockpaLe suance of the said last-mentioned order of the said House, Hansarv. (amongst other things) that the parliamentary papers and reports printed by order of the House should be sold to the public at certain specified rates, and that Messrs. Hansard (meaning the said defendants), the printers of the House, be appointed to conduct the sale thereof; And that afterwards, and before the said publication of the said supposed libel, and whilst the said last-mentioned parlia- ment was sitting, viz. on 18th March in the year last afore- said, a copy of the said report of the said William Craw- ford and Whitworth Russell, so being inspectors of prisons as aforesaid, was laid before the said Commons’ House of Parliament, pursuant to the directions of the said Act of Parliament (d): And that afterwards, and before the pub- lication of the said supposed libel, and whilst the said parliament was so sitting as aforesaid, viz, ‘on 22nd March in the year last aforesaid, it was in and by the said Com- mons’ House of Parliament ordered that the said report of the inspectors of prisons should be printed (e) : Where- upon the said defendants, then being printers employed for that purpose by the said House, did afterwards, to wit on the day and year last aforesaid, in pursuance of the said orders and resolutions, print and publish the said Report: And that afterwards, and during the sitting of the said last-mentioned parliament, and before the publication of the said supposed libel, viz, on 5th July, 1836, it was ordered, by the said Commons’ House of Parliament, that there should be laid before that House a copy of a report made, on 2nd July, 1836, by a Committee of the Court of Aldermen to that Court, upon the said report of the said inspectors of prisons in relation to the gaol of Newgate (f): And that, in pursuance of the said last-mentioned order, the said report made on 2nd July, 1836, was laid before the said Commons’ House of Parliament, and was there- upon then ordered by the said Commons’ House of Parlia- ment to be printed: and that afterwards, viz, on 22nd (a) 91 Com, Journ. 156. (c) Ib. 194. (f) Ib. 622. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 875 July in the year aforesaid, they, the said W. Crawford and Srocxpace W. Russell, so being such inspectors as aforesaid, trans- Hawsanp, mitted to the said Right Hon. John Russell (commonly called, &c.), then being one of his late Majesty’s principal Secretaries of State as aforesaid, a certain reply in writing of them the said W. Crawford and W. Russell, as such inspectors as aforesaid, with regard to the said report of the said Court of Aldermen mentioned in the said last- mentioned order of the said Commons’ House of Par- liament; and afterwards, and before the publication of the said supposed libel, viz, on 25th July in the year aforesaid, a copy of the said reply of the said inspectors: of prisons for the Home District, with regard to the said report of the said Committee of Aldermen, was, in pur- suance of an order of the said Commons’ House of Parlia- ment for that purpose made on the day and year last aforesaid, presented to and laid before the said House (9) ; and thereupon the same then became and was part of the proceedings of the said Commons’ House of Parliament: And it was afterwards, and before the publication, of the said supposed libel, and during the sitting of the said last- mentioned parliament, viz., on 26th July in the year last aforesaid, ordered by the said Commons’ House of - Parlia- ment that the said reply of the said inspectors should be printed (hk): Whereupon the said defendants, so being printers as aforesaid, and émployed for that purpose, did, by the authority of the said Commons’ House of Parlia- ment, and in pursuance of the said orders and resolutions of the said Commons’ House of Parliament, print the said reply of the said inspectors of prisons, as directed and required by the said orders and resolutions of the said House, and did publish the same by the authority of the said Commons’ House of Parliament, and as directed and authorized by the said orders and resolutions, and not otherwise howsoever, as it was lawful for them to do for (g) 91 Com. Journ, 691. (h) Ib. 698, Digitized by Microsoft® 876 CONSTITUTIONAL LAW. Srocpate the cause aforesaid : And the said defendants further say HANSARD, Demurrer. Argument. that the said report and the said reply, which the said defendants so printed and published as in this plea men- tioned, are the same report and reply as are mentioned in the said declaration, and that the said matter in the said declaration charged as libellous is contained in the said report and reply in this plea mentioned, and that the publishing the same matter, as charged in the said decla- ration, is the same publishing as in this plea mentioned, and not other and different, and that the said defendants did not ever publish the said libellous matter in the said declaration mentioned, otherwise or on any other occasion than as in this plea mentioned: And the said defendants further say, that the said Commons’ House of Parliament heretofore, viz., on 31st May in the year last aforesaid (2), resolved, declared, and adjudged that the power of pub- lishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional functions of parliament, more especially to the Commons’ House of Parliament as the representative portion of it—The plea concluded with a verification. To the foregoing plea the plaintiff demurred, assigning for causes: That the known and established laws of the land cannot be superseded, suspended, or altered by any resolution or order of the House of Commons: That the House of Commons, in parliament assembled, cannot, by any resolution or order of themselves, create any new privilege to themselves, inconsistent with the known laws of the land ; and That if such power be assumed by them, there can be no reasonable security for the life, liberty, property, or character of the subjects of this realm. After joinder in demurrer and argument (k) by Mr. Curwood for the plaintiff — (i) This is a mistake, the date (4) Which it is unnecessary to was May 31, 1837, not 1836. 92 give, as the purport of it may be suffi- Com. Journ. 419. ciently collected from the judgment, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 877 It was argued on behalf of the defendants (2) to the StockDaLe following effect. The House of Commons is called before an inferior tribunal for authorizing a publication which it thought beneficial to the community, and essential to the discharge of its legislative functions. The right to do so is an ancient privilege recognized by legislative declarations, and never questioned, since the Revolution, except by the plaintiff. The assertion of that right is a claim of free intercourse between members of the House and their con- stituents, advanced solely for the public benefit, and it is, in a peculiar manner, one of those “ Rights and Privileges of Parliament” described in the Remonstrance of both Houses to Charles I. (December, 1641) (m), as “the birth- right and inheritance, not only of themselves, but of the whole Kingdom.” The House of Commons has directed the defendant to appear and plead to this action ; but it does not thereby submit its privileges to the decision of this Court, or of any other tribunal than itself. The only object of the pleading is to inform the Court, in a regular way, that the act complained of was done in exercise of its authority and in the legitimate use of its privileges. The fact that it was so done is admitted by the demurrer; and nothing remains for this Court but to give judgment for the de- fendants. Another and a summary remedy might have been adopted; but the House, having confidence in the tribunals of the country, deems it expedient to refer the case to the consideration of the Court in the ordinary course of justice, thereby giving to the plaintitf an oppor- tunity either of denying that the act was done under the alleged authority, or of showing that the authority has been exceeded. Suppose in an action of trespass‘ the defendant pleaded a commitment by the House for prevarication, or for non- (l) By Sir J, Campbell, Att. Gen. (m) 2 Parl. Hist. 978. Digitized by Microsoft® HANSARD. 878 CONSTITUTIONAL LAW. Srockpaus attendance on due summons, or for an assault on a Haxarp. member in the House, or the Speaker in the chair ; would it be competent to this Court, upon such a plea, to enquire whether any privilege to commit existed? Yet, if this demurrer is to prevail, there is no tribunal before which the nicest question of privilege may not be discussed. The points insisted upon by the defendants, are :— I. The alleged grievance arises from an act done by the House of Commons, in the exercise of a privilege claimed by them. The question of privilege, therefore, arises directly ; and this Court cannot enquire into the .existence of the privilege, but must give judgment for the defendants. Il. Even if the question arose incidentally, still, on this record, the Court could not enquire into the exist- ence of the privilege, but must give judgment for the defendants. III. The privilege (assuming that the Court could enquire into its existence) does exist. I. As to the first point. The courts of law are subordinate to the Houses of Parliament ; and that shows their incompetency to decide upon a question of parliamentary privilege directly arising. Originally, the Houses of Lords and Commons sat toge- ther. The courts of law, which at that time were esta- blished and had the same powers which they now enjoy, were clearly subordinate to the parliament. A writ of error lay from them to the parliament, and they were accustomed even to consult parliament before they de- cided points of difficulty and importance. But, according to the argument now urged, an Act of the whole parlia- ment might at that very time have been reviewed by a court of law. The Houses of Parliament were subse- quently divided. If the courts of law could not, before that time, have enquired into the legality of a commit ment, or the publication of a paper, by parliament, neither could they do so afterwards. _ Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 879 The inconsistency which results from supposing that a Srockpauz court of common law can review the acts of either House Hassan. of Parliament may be thus illustrated. The House of Lords exercises an appellate jurisdiction in cases depend- ing in this and the other Courts of Westminster Hall. Privilege is given to the House of Commons to be exer- cised against the Crown and the House of Lords: unless the Commons were themselves the tribunal by which their privilege is to be judged, it would have been abolished long ago. The necessity for preserving it from interference by the courts of law is not to be estimated from the present improved state of those courts. The law of privilege was settled when Judges were the creatures of the Crown, and liable to be discarded if not obedient. And at any period in the case of a contest between the two Houses, if a question of privilege arose, and could be decided in a court of common law, the ultimate appeal would be to the House of Lords, who would thus become judges in the last resort of the privileges of the Commons. The Commons, have, in particular, the power of en- quiring into the conduct of the courts of justice; and at the commencement of every session a grand committee of justice is appointed by that House, to receive complaints from the various tribunals within the jurisdiction of the House. The House itself is, according to all authorities, a court. The lex parliamenti is not known to the judges of the common law courts. They have no means of arriving _judicially at any information on the subject of privilege. The judges, even of the superior courts, are not, in general, and cannot be presumed to have been, members of either House of Parliament. The parliamentary reports, and even the journals, furnish little information on the sub- ject, many privileges resting wholly in usage. It is said that all subjects of the realm are bound to take notice of parliamentary privilege ; but that does not imply a judi- cial knowledge. All persons are bound to take notice of Digitized by Microsoft® 880 CONSTITUTIONAL LAW. Srocxvare the general law of the land; but all are not competent to Hawsarv. administer it. Either the courts of common law must take the law of privilege as laid down by the Houses of Parliament, or the Houses must accept it from them. In the latter case, the decision of a pie poudre court may bind the Lord Chancellor and the Speaker. And the judgments of the common law courts may not be uniform, There may be twenty actions against the Speaker for libel or false im- prisonment, or as many indictments (for if privilege is no bar to a civil action it is clearly no answer to an indict- ment), and as many county courts, or courts of quarter session, may be of different opinions as to the law. By what rule, then, is parliament to be guided in its exercise of privilege ? Arguments are likewise drawn from the liability of this privilege to abuse (7): but such a liability does not show that the privilege has no existence. In every balanced government there must be powers so constituted as to check each other, powers which have their respective limits, but for the abuse of which there can be no remedy. In this country the Crown has, by its prerogative, the powers of declaring peace and war, of pardoning, and of summoning and dissolving parliament ; and if these are abused the law furnishes no remedy. So the House of Lords have the power of judicature in the last resort ; and for any decision they might give in abuse of that power there is no redress.) The House of Commons has the absolute power of voting the public money, and might stop the supplies improperly. An Attorney General may enter a nolle prosequi on any prosecution, and might, if he chose to abuse that power, obstruct the course of justice. He may refuse his fiat for a writ of error; or he may make an injurious use of the discretion vested in him as to filing criminal informations. But these powers (n) Ante, p. 865. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 881 do not the less exist. The three branches of the legis- aiockn it lature have an unlimited power. They might anes a Haxsano. statute for abolishing the House of Commons. The Septennial Act was a strong instance of their exercise of authority. They might pass an Act for changing the religion of the country against the wish of the people. For such cases no redress is provided by the law; if they occur, revolution has begun, and the only remedy is resistance. It is also asked what would be the remedy if either House of Parliament were to do something very out- rageous, as to issue an injunction against proceeding in an ejectment; or to order the Speaker to execute a person as a criminal, The answer is, that it is not decent to put such cases. It might as well be asked what remedy could be taken if the Sovereign were personally to commit a crime. In Pye’s Case (0), it is mentioned, as a proof of the low state to which the parliament had. fallen before the Restoration, that when Sir R. Pye, who had been com- mitted by their order, was brought before the Court of King’s Bench on habeas corpus, and Judge Newdigate asked the Counsel for the Commonwealth why it should not be granted, they answered that they had nothing to say against it; whereupon the Judge, “ashamed to see them so unfaithful to their trust,’ replied, that “Sir Robert Pye being committed by an order of the parlia- ment, an inferior court could not discharge him.” II. It is a general rule that the judgments of courts of exclusive jurisdiction are conclusive against all the world ; and their decisions bind courts in which the questions decided arise incidentally (yp). In many instances a court of peculiar jurisdiction has prevented causes which were properly to be decided there from coming before any (o) 5 St. Tr. 948; Ludlow, 821, Case, and Note thereto; 2 Smith, (ed. 1751). L, C. 5th ed. p. 642. (p) See The Duchess of Kingston's i 3 oL Digitized by Microsoft® 882 STOCKDALE vw HANSARD. CONSTITUTIONAL LAW. other tribunal. Courts of exclusive jurisdiction interfere to prevent other courts from acting in matters within such jurisdiction. The House of Commons might there- fore have prevented this court from proceeding in the present case, had that been considered an expedient course. In Biggs’s Case (g), the Lords ordered a person into the custody of the Black Rod, for bringing an action against a justice of the peace who had apprehended him by com- mand of the House for a riot at the door of the House. The attorney was also committed to Newgate; and the plaintiff in the action was not discharged from custody until he had released the defendant. In Hyde's Case (r), Mr. Hyde was committed by the Lords for indicting a constable who had assaulted him; the assault having been committed in pursuance of a general order of the House to refuse admission into Westminster Hall during the trial of Warren Hastings. In Jay v. Topham (s) the defendant was sued for false imprisonment ; he pleaded to the jurisdiction, that he was serjeant-at-arms to the House of Commons, and had taken the plaintiff by order of the House. The plaintiff de-- murred to the plea, as being pleaded after full defence, and yet not answering all the declaration ; and there was judgment of respondeat ouster. After the Revolution, this case was brought before the House of Commons on the defendant’s petition (), and referred to a committee of privileges. The House resolved that the judgment was illegal (w). The two surviving judges, Pemberton and Jones, being brought before the House, defended them: selves on the ground that the plea should not have been to the jurisdiction; but they admitted fully that the (g) 82 Lords’ Journ. 185, 187. () 10 Com, Journ, 164. (r) 38 Lords’ Journ. 250, 251. (uw) 10 Com, Journ: 210; 12 St. Tr: (s) Burdett vy, Abbot, 14 East; 821. 102 (a). Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. defence was, if properly pleaded, a valid one. In fact, however, it seems that there was a plea in bar, which was over-ruled, as appears from Topham’s petition (v). The two judges, therefore, had knowingly violated the law, to gratify the Court party, and were not treated with unde- served severity by the Commons (#). The record is not in the Treasury ; it was taken up to the House of Commons on the occasion of the petition, and probably not returned. Verdon v. Topham (y) was an action of the same kind against the same party: there was a plea to the jurisdic- tion, and judgment of respondeat ouster; but little else appears. III. Assuming that this Court were competent to en- quire into the existence of the privilege, it may be shown that the power of printing and publishing reports and papers, though of a criminatory nature, for public infor- mation and benefit, has long existed. If the House has power to order the publication, it must follow as a neces- sary consequence that no action will lie: for criminatory matter published by lawful authority cannot be a libel. The fact of sale for money can be no material ingredient ‘in the offence; nor does it appear by the plea that the paper in question was sold (z). It is conceded that a publication confined to the use of members is lawful; yet the evil now complained of must result to the party inculpated, in an equal or greater degree from this limited circulation. It is presumed that every member of the upper as well as the lower House may read it. If the language is not actionable per se as verbal slander, he may repeat it to others. The slander may thus obtain general publicity ; yet not a copy can be sold, or shown to the party injured; and he is thus de- prived of all means of vindicating his character. (v) 10 Com. Journ. 164. (2) It did not appear on the record () Vide per Lord Denman, post, that the eselling was either com: p. 910. plained of or confessed. (y) Sir T. Jones, 208. 38u2 Digitized by Microsoft® 883 STOCKDALE Vv. HANSARD. 884 Brock oe HANsARD, CONSTITUTIONAL LAW, Among the objections which have been urged to this claim of privilege are, 1. That it alters the law of the land, by legitimating the sale of libels. This is a petitio principi: it assumes that the privilege is not the law of the land. 2. That the exercise of the right inflicts a wrong, and that there is no wrong without a remedy. This again is begging the question. It is not a wrong if lawfully done ; and as to the loss or inconvenience to the party, the law, in pursuit of a greater benefit, does not regard it. 3. It is objected, that this privilege is not among those claimed by the House from the king at the beginning of every parliament. The answer is that the privileges are inherent in the House, and as ancient as the prerogative of the Crown. The demand is a mere form, like the con- sent of the people asked for the sovereign at the corona- tion. They were never prayed for by the Speaker until the reign of Henry IV.; and, when James I. asserted that they were enjoyed of mere grace and favour, the Commons entered a protest on their journals, which was torn out by the king (a). 4, Again, it is objected that the immunity claimed is’ unnecessary, and that the proceedings would be suffi- ciently circulated through the same medium as the de- bates. But there is a distinction between papers and debates. The former are published at discretion, and by the order of the House. The debates are published with- out authority, the House retaining its power of conducting them in secresy for the purpose of protecting itself from the interposition of the Crown. (a) 1 Com. Journ. 668. 1 Hats. 77—80. And see the authorities cited in Holiday v. Pitt, 2 Stra, 985. In 1621, the House of Com- mons having entered upon their journals a protestation ‘that the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England,” James I. sent for the journals, and, in council, erased the protestation, See 1 Parl. Hist. pp. 1361-8, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 885 5. It is said that all useful matter may be published Srocxpate without any. libel. But the publication of some reports HANsaro, would be impossible if everything offensive to the feelings were to be expunged. 6. It is objected that this privilege cannot exist by pre- scription, being one that must have arisen within time of memory. This argument would deprive the House of all privileges ; for its separate existence, as a branch of the legislature, can hardly be traced beyond legal memory. 7. As to the argument from abuse, all power is capable of being abused (b), The unquestioned right of commit- ment for contempt may be so. The privilege of freedom from arrest may be made a shelter for fraudulent debtors. Freedom of speech may be used as a licence to calum- niate. But the constitution presumes that the Houses of parliament, as well as the courts of justice, will usurp no undue authority. That the power has been exercised with moderation may be inferred from the fact that no action has been attempted since the Revolution, until that lately brought by the plaintiff himself (c) ; at least this inference cannot be denied by those who assert that such publication has always been actionable. No instance can be found in which a publication by authority of either House of Parliament has been consi- dered a subject of prosecution or civil action (d). _ The only remaining authority is the dictwm of Lord Denman, O.J., in the former case of Stockdale v. Han- sard (e). In that action of libel, it was urged for the defendants at Nisi Prius that the matter complained of was privileged, being contained in a report published by order of the House of Commons. His lordship held that the order was no protection ; but the question was not (b) Ante, p. 880. (ec) 2M. & Rob. 9. S.C. in the (c) 2M. & Rob. 9. Report of the Select Committee on . (d) R. v. Lord Abingdon, 1 Esp. publication of printed papers, 8th 226, and R. v. Creevey, 1M. & 8.278, May, 1837. Appendix to Minutes were here cited and distinguished. of Evidence, No. 1, p. 65, Digitized by Microsoft® 886 CONSTITUTIONAL LAW. srocxpate fully discussed ; and, as the defendants had a verdict on v. HANSARD, Judgment, the plea of justification, there was no further occasion to contest the point. But, as it now appears, the great body of authorities is adverse to his lordship’s ruling. Since the trial of that cause, the question of privilege, as applied to the point now before the Court, has been referred to a committee of the House of Commons, ap- pointed without reference to party; they have reported, with only one dissentient voice, in favour of the protec- tion claimed by these defendants; and their report has been adopted by the House of Commons. An opinion so delivered and adopted is entitled to weight in a Court oflaw. And the Court will remember the advice of Lord Bacon, to a judge of the Court of Common Pleas, on his appointment: “That you contain the jurisdiction of the Court within the ancient mere-stones, without removing the mark” (f); and the dictum of Abbott, C.J., in Ha parte Cowan (g): “We wish not to be understood as giving any sanction to the supposed authority of this Court to direct a prohibition to the Lord Chancellor sit- ting in bankruptcy.” “If ever the question shall arise, the Court, whose assistance may be invoked to correct an excess of jurisdiction in another, will, without doubt, take care not to exceed its own.” Mr. Curwood replied, and after time taken to consider, the learned judges, in Trinity term 1839, delivered judg- ment seriatim as follows :— Lord Denman, C.J. This was an action for a publica- tion defaming the plaintiff’s character, by imputing that he had published an obscene libel. The plea was, that the inspectors of prisons made a report to the secretary of state, in which improper books were said to be permitted in the prison of Newgate ; that the Court of Aldermen wrote an answer to that part of the report, and the inspectors replied repeating the state- (f) Lord Bacon’s Works, ed, 1803, vol. iv. p. 508, (g) 3B. & A, 180. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 887 ments, and adding that the improper books were pub- BTOURDALE lished by the plaintiff That all these documents were Haxsann, printed by and under orders from the House of Commons, who had come to a resolution to publish and sell all the papers they should print for the use of the members, and who also resolved, declared, and adjudged, that the power of publishing such of their reports, votes, and proceedings as they thought conducive to the public interest, is an essential incident to the due performance of the functions of parliament, more especially to those of the Commons’ House (h). The plea, it is contended, establishes a good defence to the action on various grounds. 1, The grievance complained of appears to be an act done by order of the House of Commons, a court superior to any court of law, and none of whose proceedings are ‘to be questioned in any way. This principle the learned counsel for the defendant re- peatedly avowed in his long and laboured argument ; but it does not appear to be put forward in its simple terms in the report that was published by a former House of Commons. It is a claim for an arbitrary power to authorise the commission of any act whatever, on behalf of a body which in the same argument is admitted not to be the supreme power in the state. The supremacy of parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it, because the House of Commons is not the parliament, but only a co-ordinate and component part of the parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legis- lative estates is necessary; the resolution of any one of them cannot alter the law, or place any one beyond its control. The proposition is therefore wholly untenable, and abhorrent to the first principles of the constitution of England. (h) Ante, pp. 872, 876. Digitized by Microsoft® 888 StockDALE VM HANPARD. CONSTITUTIONAL LAW. 2. The next defence involved in this plea is, that the defendant committed the grievance by order of the House of Commons in a case of privilege, and that each House of Parliament is the sole judge of its own privileges. This last proposition requires to be first considered. For if the Attorney General was right in contending, as he did more than once in express terms, that the House of Commons, by claiming anything as its privilege, thereby makes it a matter of privilege, and also that its own decision upon its own claim is binding and conclusive, then plainly this Court cannot proceed in any enquiry into the matter, and has nothing else to do but declare the claim well founded because it has been made. This is the form in which I understand the committee of a late House of Commons to have asserted the privi- leges of both Houses of Parliament: and we are informed that a large majority of that House adopted the assertion. It is: not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority: most willingly would I decline to enter upon an enquiry which may lead to my differing from that great and powerful assembly. But, when one of my fellow subjects presents himself before me in this Court, demand- ing justice for an injury, it is not at my option to grant or withhold redress; I am bound to afford it if the law declares him entitled to it. I must then ascertain how the law stands; and, whatever defence may be made for the wrongdoer, I must examine its validity. The learned counsel for the defendant contends for his legal right to be protected against all consequences of acting under an order issued by the House of Commons, in conformity with what that House asserts to be its privilege: nor can I avoid then the question whether the defendant possessed that legal right or not. Parliament is said to be supreme; I most fully ac- knowledge its supremacy. It follows, then, as before observed, that neither branch of it is supreme when Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 889 acting by itself. It is also said that the privilege of each Srocknars house is the privilege of the whole parliament. In one Tansanp. sense I agree to this; because whatever impedes the proper action of either impedes those functions which are necessary for the performance of their joint duties. All the essential parts of a machine must be in order before it can work at all. But it by no means follows that the opinion that either house may entertain of the extent of its own privileges is correct, or its declaration of them binding. In-the course of the argument, the privileges of the Commons were said to belong to them for their protection against encroachment by the Lords. The fact of an attempt at encroachment may, then, be imagined ; and we must also suppose that the Commons would resist it. In such a case, the claim set up by the two houses being inconsistent, both could not be well founded, and an instance would occur of adverse opinions and declarations, while the real privilege, whenever it is ascertained, would certainly be the inherent right of parliament itself. ' The argument here became historical; and we were told that, at the early period when privilege was settled, the three estates, assembled, and embracing all the power of the state, never would have left their privileges at the mercy of a very inferior tribunal, especially when the King’s Judges were dependent on the Crown, and re- movable at its pleasure. I cannot accede to the inference. If in those early times the Lords and Commons had felt the enlightened jealousy of dependent judges which is here supposed, they would not have left them in that state of dependence, equally dangerous to the character of the judges and to the just rights of themselves and of all their constituents. But we have no proof whatever of the constitution of this country being framed on abstract principles: there cannot be a doubt that it adapted itself to the exigencies of the several occasions that arose, and gradually grew into that form which the ends of good Digitized by Microsoft® 890 CONSTITUTIONAL LAW. Srocxpate government require. But, while I dispute the fact of Hassaro, privileges being settled in the aula regia, or any other supposed constituent assembly, on any given principle, or indeed at all, I am far from believing that the Judges ever had, or ought to have, by law, the smallest power over parliament or either house of parliament. The inde- pendence of parliament is the corner stone of our free constitution. The judges who invaded it in the reign of James I. and his son, have justly shared with these who betrayed the rights of the people in the case of ship- money, the abhorrence of all enlightened men. But a mean submissiveness to power has not been always con- fined to the judges; the same dispositions belonged to parliament itself, and to both houses, When we re- member the sentence pronounced against an unfortunate gentleman of the name of Floyde (2), for a slight offence, if it were one, against King James I, in speaking of his daughter and son-in-law, we shall allow that the two houses had as little sense of independence as of justice. The Commons resolved, declared, and adjudged that his_ fortune should be confiscated, and his-body tortured, his name degraded, and himself imprisoned for life. The Lords rebuked the invasion of their privileges of punish- ing, for which the Commons humbly apologised ; but the sentence was carried into full effect: and can any one believe that these two houses, thus vying in obsequious- ness and cruelty, could entertain good views on the con- stitutional independence of parliament ? (k). Another reason for denying to the courts of law all power in matters of privilege was said to flow from their same supposed ancient jealousy of the Lords. “The Commons never would have tolerated such an enquiry, because the decision might then have come to be reviewed on appeal by the co-ordinate and rival assembly” (J) ; yet the Attorney General informed us, almost in the (i) 2 St. Tr. 1153, 1250; 8 St. Tr. 92 et seq. (k) See the debates, 1 Parl. Hist, () Ante, p. 879. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 891 same:breath, that the appellate jurisdiction of the Lords Srocxpats was of recent date, that it originally belonged .to the Hawsano, whole parliament, and that it was long warmly contested with adverse declarations of privilege by the House of Commons. Burdett v. Abbot (m) was an action brought against the Speaker himself, for an act done by him in parliament by order of the House of Commons, The plaintiff questioned his right, and, by seeking redress in this court, eventually submitted their privilege to the decision of the House of Lords. At this very moment the defendant, as acting by order of the House of Commons, prays our judgment in this question of pri- vilege, and the House of Commons instructs the Attorney General to appear as his counsel before us. He tells us, indeed, that we can only decide in his favour; but, if we do, the House of Lords may reverse that judg- ment next week. Such is the practice of the nineteenth century: yet we are gravely told that in the dark ages of our history the Commons were too enlightened to allow any discussion of their privileges in any court whose judgment may be questioned in the Lords. But it is said that the courts of law must be excluded from all interference with transactions in which the name of privilege has been mentioned, because they have no means of informing themselves what these privileges are. They are well known, it seems, to the two houses, and to every member of them, as long as he continues a member ; but the knowledge is as incommunicable as the privileges to all beyond that pale. It might be presumption to ask how this knowledge may be obtained, had not the At- torney General read to us all he had to urge on the sub- ject from works accessible to all, and familiar to every man of education, The argument here seems to run in a circle. The courts cannot be entrusted with any matter connected with privilege, because they know nothing (m) 14 East, 1. Digitized by Microsoft® 892 CONSTITUTIONAL LAW. Stocxpate about privilege; and this ignorance must be perpetual, HLawsann, because the law has taken such matters out of their cognizance, The old text writers, indeed, affirm the law and custom of parliament, although a part of the lew terre to be ab omnibus quesita, & multis ignorata. This and other phrases, repeated in the law books, have thrown a kind of mystery over the subject, which has kept aloof the application of reason and common sense, Lord Holt (7) in terms denied this presumption of igno- rance, and asserted the right and duty of the courts to know the law of parliament, because the law of the land on which they are bound to decide. Other judges, without directly asserting the proposition, have constantly acted upon it; and it was distinctly admitted by the Attorney General in the course of his argument. I do not know to whom he alluded as disputing the existence of any parliamentary privilege ; no such opinion has come under my notice. That parliament enjoys privileges of the most important character, no person capable of the least reflection can doubt for a moment. Some are common to both houses, some peculiar to each; all are essential to the discharge of their functions. If they were not the fruit of deliberation in auld regid, they rest on the stronger ground of a necessity which became apparent at least as soon as the two houses took their present position in the state. Thus the privilege of having their debates Bucs though denied when the members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two suc- cessors, was soon clearly perceived to be indispensable and universally acknowledged (0). By consequence, what- ever is done within the walls of either assembly must pass without question in any other place. For speeches made (n) See Rey. v. Paty, 2LordRaym, vy. White, 2 Lord Raym, 956. 1114, 1115 ; Judgment of Lord Holt (0) Ante, p. 521, nu. (d.) in that case, ed. 1837, p. 54; Ashby Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 893 in parliament by a member to the prejudice of any other Srockpate person, or hazardous to the public peace, that member Hawsano. enjoys complete impunity. For any paper signed by the Speaker by order of the house, though to the last degree calumnious, or even if it brought personal suffering upon individuals, the Speaker cannot be arraigned in a court of justice. But, if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher. So, if the Speaker, by authority of the house, order an illegal act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles’s warrant for levying ship-money could justify his revenue officer. The privilege of committing for contempt is inherent in every deliberative body invested with authority by the constitution. But, however flagrant the contempt, the House of Commons can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. Though the party should deserve the severest penalties, yet, his offence being committed the day before a prorogation, if the house ordered his imprisonment but for a week, every court in Westminster Hall and every judge of all the courts would be bound to discharge him by habeas corpus. Nothing is more undoubted than the exclusive privi- lege of the people’s representatives in respect to grants of money, and the imposition of taxes. But, if their care of a branch of it should induce a vote that their messenger should forcibly enter and inspect the cellars of all residents in London possessing more than a certain income, and if some citizen should bring an action of trespass, has any lawyer yet said that the Speaker’s warrant would justify the breaking and entering ? The Commons of England are not invested with more of power and dignity by their legislative character than Digitized by Microsoft® 894 CONSTITUTIONAL LAW. StockPALE Jy that which they bear as the grand inquest of the Hasan, nation, All the privileges that can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt. We freely admit them in all their extent and variety ; but, if, on a resolution of. guilt voted by themselves, this grand inquest should not accuse but condemn, should mistake their right of initiating a charge for the privilege of pass- ing sentence and awarding execution, will it be denied that their agent would incur the guilt of murder ? I will speak but of one other privilege, the privilege from personal interest, which is both undoubted and indispensable. A distinction has been sometimes taken, but, in my opinion, does not exist in law, between one class of privileges as necessary for performing the func- tions of parliament, and another as a personal boon ; both classes are, as I apprehend, conferred on grounds of public policy alone. The proceedings of parliament would be liable to continual interruption at the pleasure of indi- viduals, if every one who claimed to be a creditor could restrain the liberty of the members. In early times their very horses and servants might require protection from seizure under legal process, as necessary to secure their own attendance ; but, when this privilege was strained to the intolerable length of preventing the service of legal process, or the progress of a cause once commenced against any member during the sitting of parliament, or of threatening any who should commit the smallest trespass upon a member’s land, though in assertion of a clear right, as breakers of the privileges of parliament, these monstrous abuses might have called for the interference of the law, and compelled the courts of justice to take a part. Suppose, then, in the celebrated case of Admiral Griffin (p), that one who claimed a right of fishing in his (p) In this case four persons were ing to Admiral Griffin, who was a committed for contempt, their offence member of the house. 28 Com. Journ. having been fishing ina pond belong: 489, 545, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 895 ponds had brought an action here against the officer who Srockpate seized him, who justified the imprisonment under the Hawsanp, ” Speaker’s warrant, alleging his high contempt in daring to fish in a member’s pond near Plymouth; would not the Court of Queen’s Bench have been bound to enquire as to the privilege, and to declare that it did not and could not extend to such a case? I desire to put the further question, whether the decision of such cases could be at all varied by the house declaring, with whatever of solemnity or menace, that it was the ancient and un- doubted privilege of parliament to do each and every one of the abusive acts enumerated. Examples might be multiplied without limit; but the examples are said to be abuses, and to prove nothing against the use. It is also urged that abuse is not to be presumed ; that the only appeal lies to public opinion, and that outrages like these would authorise resistance and amount to a dissolution of the government. I answer, that cases of abuse must be supposed, to test the truth of the principle now under discussion. I say, farther, that it is only in cases of abuse that the principle is required ; that, though the maxim be true, ab abusu ad usum non valet consequentia, it cannot apply where an abuse is directly charged and offered to be proved: that no presumption can be made against a fact esta- blished or admitted. Need I go on to add, that the appeal to public opinion, however successful, comes too late after the injury has been effected, and that to talk to an innocent sufferer of his right to consider the social compact as broken towards him, to throw off his allegi- ance, and resist the outrage perpetrated in the name of parliament, is language at least novel in a court of law? We were, however, pressed with numerous authorities, which were supposed to establish that questions of privi- lege are in no case examinable at law. Thorp’s Case (q) (q) 1 Hats. Pr, 28; 5 Rot. Parl, 239; 8. C, 13 Rep. 64. See 4 Inst. 15 ; 14 East, 25. Digitized by Microsoft® 896 CONSTITUTIONAL LAW. Srockpate Was, as usual, first cited. The facts were, that the lords, | Hawssrv. in Edward IV.’s time, consulted the judges respecting the privilege then claimed by a member of the Commons’ House, and the judges at first declined to answer—facts totally inconsistent with an anterior settlement of parlia- mentary privilege, especially on the footing of the jealousy felt by the Commons towards the Lords and the judicial authorities. The judges did ultimately waive their objec- tion to declaring an opinion on a question of privilege ; they declared it in parliament, and by parliament it was adopted (7). Yet their reluctance to assume, in the first instance, the delicate office of interfering with the privi- lege of parliament, even at the request of the House of Lords, and the respectful and submissive language in which they, the interpreters of the law, avowed their deference to those who make it, have been construed into a judicial decision that in their own courts they would decline to enforce that very law when made, if either House of Parliament should obstruct and overbear it by setting up the most preposterous claim under the name of privilege. Often, undoubtedly, similar expressions have fallen from the judges; but they must be modified by the cases in which they occurred. A sentence from C, J. North’s judgment in Barnardiston v. Soame (s) was read at the bar. The question being, whether an action on the case lay against the sheriff at common law fora double return of members to parliament, which he strongly denied, he said, in the course of his elaborate argument, “If we shall allow general remedies (as an action upon the case is) to be applied to cases relating to the parlia- ment, we shall at last invade privilege of parliament, and that great privilege of judging of their own privileges.” These words appear, at first sight, of extensive import indeed ; but when we refer them to the subject then in hand, which was an action against a sheriff for his conduct () But see 1 Hats. Pr. 31, 83, 345 Ferrers’ Case, Id. 58; Anon, Id. 58; Moore, 57. (s) Ante, p. 822, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 897 in a parliamentary election, we shall perceive that. they SeaceD ate are far from making the large concession supposed. The Hassan. right of determining the election of their own members is one of the peculiar privileges of the assembled Commons, like all other proceedings for their own internal regula- tion, With respect to them, I freely admit that the courts have no right to interfere, nor, perhaps, any regular means of obtaining information. How they must deal with such points when actually brought before them, is another consideration. But the possible inconvenience that might arise from permitting the action against the sheriff, if the courts should come into conflict with parlia- ment in those points of unquestionable privilege in which parliament must have the sole power of declaring what its privilege is, furnishes no shadow of an argument for the proposition, that whatever subject either House declares matter of privilege instantly becomes such to the exclusion of all enquiry by the courts. We were also reminded of the disparaging terms applied by the judges to their own authority, when Alexander Murray, in 1751, was brought before this court by habeas corpus (t). Ihave obtained a copy of the return, setting out a commitment by the House of Commons for a con- tempt in general terms: but it is not unworthy of remark, that Foster, J., founds his judgment on what was said by Lord Holt, and treats, it as a commitment for a contempt in the face of the House. The fact was so, but the return did not state it: and Lord Ellenborough observed, in Burdett v. Abbot (u), that Holt did not so limit the power of commitment for contempts. Twenty years later, Brass Crosby, Lord Mayor of London, brought himself before the Court of Common Pleas by habeas corpus (a). The lieutenant of the Tower returned, for the cause of his im- prisonment, an adjudication by the House of Commons, that the Lord Mayor, being a member of the House, (t) 1 Wils. 299. _(z) 38 Wils, 183; 8. C. 2 W. BL (w) 14 East, 111, 148. 754, : u Digitized by Microsoft® B98 CONSTITUTIONAL LAW, SrocRDaLe having signed a warrant for the commitment of a mes- HANsanD, senger of ‘the House for having executed a warrant of the Speaker, issued by order of the House, was guilty of a breach of privilege of the House. The Lord Mayor had manifestly committed a breach of privilege ; the grounds of it are fully set out in the Speaker’s warrant ; nothing could, therefore, be less needful or less judicial than the wide assertion of privilege that was volunteered by the Chief Justice. Yet, after all that he said respecting the indefinite powers of parliament, his decision rests on the simple ground that all courts have power to commit for contempt. Sir W. Blackstone clearly shewed, on the same occasion, that the return was good on acknowledged principles of law, and declared the power then exercised to be one which the House of Commons only possesses in common with the courts of Westminster Hall. But it must be confessed that his remarks on the state of public feeling rather evince the spirit of a political partisan than the calmness and independence which become the judicial seat. We know now, as a matter of history, that the House of Commons was at that time engaged, in unison with the Crown, in assailing the just rights of the people. Yet that learned judge proclaimed his unqualified reso- lution to uphold the House of Commons, even though it should have abused its power; rebuked the murmur and complaint which its proceedings had justly excited; de- precated as the last of misfortunes, and in terms which might lead to a supposition that he was at liberty to with- draw from it, a contest between the courts of justice and either House of Parliament, and, with reference to objec- tions pressed against the mode of executing the warrant, worked himself up at length to the untenable position: “Tt is our duty to presume the orders of that House, and their execution, are according to law” (y). The two cases last alluded to were disposed of by the i) 8 Wile. 205. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 899 courts, without taking time to consider, and even without Srocxpate . . wv hearing counsel on one side. In the former, Lee, CJ., Havsarp. took no part, having been absent when Alexander Murray was brought here. I do not mean to insinuate that a longer consideration would have been likely to produce a different result, being satisfied that the decision itself was right. But I do believe that, if the court had deliberated and paused, they would have employed more cautious language, and abstained from laying down premises so much wider than their conclusion required. Lord Ellen- borough (z), when pressed with their authority, distinctly refused to bow to it, corrected some phrases ascribed to several judges in the reports of both cases, and placed a limitation on the doctrine laid down by De Grey, CJ., without which it would have yielded to either House of Parliament the same arbitrary power over men’s liberty that the doctrine of ship-money would have lodged in the Crown over their property. Lord Kenyon was cited as holding language of the same self-denying import in R. v. Wright (a), where Mr. Horne Tooke had applied for a criminal information against a bookseller, for publishing a copy of the report made by a committee of the House of Commons, which was supposed to convey a charge of high treason against Mr. Tooke, after he had been tried for that crime and acquitted. This application for leave to set the extraordinary power of the Court in motion for the punishment of misdemeanors is at all times received with the utmost caution: the Court, in exercising its discretion, often refuses the indulgence prayed. Lawrence, J., thought that the party was not libelled. “It is said, that this report charges him with being guilty of high treason, notwithstanding the verdict of a jury had ascertained his innocence ; but that is not the fair import of the paragraph.” This opinion, for which the learned judge gives his reasons, was alone sufficient to (a) 14 Bast, 111, 118. (a) BT. BR. 298. 391 9 Digitized by Microsoft® 900 CONSTITUTIONAL LAW. Srocxnate discharge the rule. But he proceeded to make other Haxsarpv. observations. He likened the publication of this report to that of a proceeding in a court of justice, and said he was not aware of that having been deemed a libel. To what degree such publications are justifiable, is still a question open to some doubt; there can be none, that, without direct personal malice, it could not properly expose the publisher to a criminal information. Lawrence, J., re- marked accordingly, “ The proceedings of courts of justice are daily published, some of which highly reflect upon individuals; but I do not know that an information was ever granted against the publishers of them.” He then remarks, with much good sense and liberality, that it is also greatly for the public benefit that the proceedings in parliament should be generally circulated ; and though, he adds, “they would be deprived of that advantage if no person could publish their proceedings without being punished as a libeller,” still he speaks with reference to the case before him, giving his reasons for concurring in the discharge of the rule for a criminal information, but not affecting to decide a legal question which did not arise. Grose, J., laid down no legal proposition in the judg- ment delivered by him. Lord Kenyon certainly did: as certainly it was extra-judicial, and is open to investigation. The proposition asserted by him was, that no proceeding of either House of Parliament could be a libel. But, with the highest reverence for that most learned judge, I must be allowed to observe that he here confounds the nature of the composition with the occasion of publishing it. Matter defamatory and calumnious, which would therefore found legal proceedings for a libel, may be innocently published by one who has legal authority to do so. His lordship says, “This is a proceeding by one branch of the legislature, and therefore, we cannot enquire into it.” If this be true, one branch of the legislature has power to overrule the law. Lord Kenyon felt this, and denied the Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 901 existence of such a power, adding, “I do not say that cases SrooKxpate may not be put, in which we would enquire whether or Hawsano. not the House of Commons were justified in any particular measure.” We cannot fail to see that the one sentence is in direct contradiction to the other. The latter puts an end to the claim to authorise any act without the agents being subjected to any enquiry. It equally overthrows that doctrine of the subordination of courts, which would condemn the first criminal tribunal of England to silence and submission if either House should unhappily be in- duced to give their warrant to a crime, Lord Kenyon supposes a case, in which the Court would “undoubtedly” pay no attention “to an injunction from the House of Commons ;” and he seems to think the case too enormous to have been ever possible. “If, for in- stance, they were to send their serjeant-at-arms to arrest a counsel here who was arguing a case between two indi- viduals, or to grant an injunction to stay the proceedings here in a common action.” Yet these enormities, too gross to be thought possible, were the daily proceedings of the House of Commons in former times; nay, they fall short of the truth. Not only did that great assembly in Charles IT.’s time placard Westminster Hall with injunc- tions to barristers (some of Lord Kenyon’s most illustrious predecessors) against daring to appear in the discharge of their duty to their clients, but they sent their serjeant-at- arms to arrest and imprison counsel, solicitors, and parties who had violated their privileges by presuming to appear at the bar of the highest court of appeal in the country. They may not have granted their formal injunction to stay proceedings in a common action ; but they constantly decided the subjects of common actions as matters of privilege, solely because one of the parties interested hap- pened to be one of their own body. If Lord Kenyon had been chief justice in the days of Sir John Fagg and Dr. Shirley (6), and either of them had sued out his writ of (8) 6 St. Tr. 1121, Digitized by Microsoft® 902 CONSTITUTIONAL LAW. StocKDALE habeas corpus before him, and had appeared to be in Haxsann, Newgate for the offence of submitting his case to be argued in the House of Lords, it is plain that he would have enquired whether the House was justified in that particular measure, and would have restored the prisoners to freedom. Yet their resolution was “a proceeding by one branch of the legislature,” “a proceeding of those who, by the constitution,” were “the guardians of the liberties of the subject.” This inconsistency in a person of Lord Kenyon’s wonderful acuteness, as well as other inaccura- cies hereafter to be noticed, make one regret that the judgment in this case, like [the judgments of] those before whom Murray and Crosby had been brought, was not more deliberately prepared. It was given on the instant, not in a full court, not after hearing both sides. It bears marks of haste, and, we cannot deny, of the excitement and inflammation which belonged to the extraordinary times in which it occurred. I do not pretend to discuss at length the particulars of every case in which the doctrine of privilege is asserted ; but two, of paramount magnitude and importance, cannot be passed over. Sir W. Williams was prosecuted (c) by ex officio information for an order signed by him as Speaker, authorising the publication and sale of Danger- field’s Narrative, being a slanderous libel on James, Duke of York, four years after that order had been given. His trial did not come on till the duke had ascended the throne ; he pleaded to the jurisdiction of the Court, and that plea i is admitted to have been properly overruled ; he then pleaded as a justification the order of the House of Commons, and that plea was set aside without argument. He was fined 10,0001, and afterwards the fine was reduced to 80002. He never questioned this sentence, nor has it been reversed by any court or by Act of Parliament; on the contrary, Lord Kenyon, in the case last under discus- (c) 18 St. Tr, 1369, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 908 sion, appears to me to have considered it as good law ; Srocxpare but, at the moment, his memory, in general so faithful, Haxsann, misled him as to the facts. He said, “the publication was the paper of a private individual, and under pretence of the sanction of the House of Commons an individual published” (d). Now, though the narrative was indeed the paper of a private individual, it was adopted by the House, who ordered its publication ; the. Speaker did not publish as an individual, nor under pretence of their sanc- tion, but as Speaker, and by their direct command, It was, therefore, an act done in parliament. The proceeding was by consequence a breach of the fundamental privilege which exempts all that is there done from question. The affair was taken up by the Convention parliament; the Bill of Rights refers to it: the judgment would probably have been reversed by parliament, like the attainders of Russell and Sidney, if the bill introduced for that purpose had not contained a most iniquitous provision for reim- bursing the sufferer out of the estates of the Attorney General, which caused its rejection by the Lords. Even if this case were not bad law, it would be worthy of the severest censure; a prosecution by the Crown of a single member of parliament for the misdeed of all, com- menced years after, the defence indecently scouted from the court without a hearing, and the conviction followed by an excessive penalty. But in what respect can it be said to bear the least analogy to the present case? The Speaker is not here sued: the sale of the present libel is not by the Speaker, nor took place within the walls of parliament. If any officer of the House had been held innocent in disseminating that mass of atrocious falsehood, if any bookseller had been held justified in selling it, be- cause the Speaker ordered that it should be sold for the benefit of the libeller, that would have been indeed a case in point. But I find (¢) that Dangerfield himself had (d) BR. v. ‘Wright, 8 T. R. 296, (e) R. v. Dangerfield, 3 Mod. 68. Digitized by Microsoft® 904 CONSTITUTIONAL LAW. Rsockensns been convicted and punished for this same publication ; Hawsan, and of that sentence I do not find that the legality any more than the justice has ever been challenged ; yet it is plain that the Speaker’s order under the authority of the House would have been as good. a justification to him for publishing, as the resolution of the House can now be to the present defendant. These two cases afford the true distinction; BR. v. Williams (f) was ill decided, because he was questioned for what he did by order of the House, within the walls of parliament. BR. v. Dangerfield (g) is undoubted law, because he sold and published, beyond the walls of parliament, under an order to do what was unlawful. Lord Shaftesbury, in 29 Car. IT. (h), sought his dis- charge from imprisonment in the Tower on an order of the Lords Spiritual and Temporal to keep him and two other lords in safe custody, “during his majesty’s pleasure, and the pleasure of this House, for high contempts committed against this House.” The return was open to serious objection, as may be seen in the long arguments re- ported (2). Of the three judges who remanded the earl, one said that the return, made by an ordinary court of justice, would have been ill and uncertain, but would not say what would be the consequence as to that imprison- ment if the session were determined. The second said, “the return, no doubt, is illegal, but the question is upon a point of jurisdiction, whether it may be examined here ? This Court cannot intermeddle with the transactions of the high Court of peers in parliament, during the session,” “therefore the certainty or uncertainty of the return is not material, for it is not examinable here; but if the session had been determined, I should be of opinion that he ought to be discharged.” And the third, the chief justice, thought the Court had no jurisdiction, for reasons unconnected with the continuance of the session. It is (f) 13 St, Tr. 1369, (h) 6 St. Tr. 1269, (7) 3 Mod. 68. (‘) 1 Mod. 144, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 905 strange that the duration of the session, on which the STOoKDALE judgments turn so much, is now held to be immaterial Hawsanp. where the Lords commit. This decision, which unde- niably, and @ fortiori, would give a sanction to many later ones, and many dicta touching privilege which arose on habeas corpus, is cited by Lord Ellenborough, in Burdett v. Abbot (i), without a comment. In FR. v. Flower (7) allusion is made to it by Lord Kenyon, without consi- dering its authority in point of law. Mr. Justice Holroyd, when arguing Burdett’s Case at the bar (k), distinguished between that action, in which the nature of the contempt appeared in the plea, and the return to the habeas corpus stating the contempt in general terms; he distinguished also between an action and the proceedings by habeas corpus. One feature of Shaftesbury’s Case (1) is curious, though not perfectly singular: the very proceedings of the House of Lords, to which the Court of King’s Bench yielded entire acquiescence, were condemned by the same House, 19th November, 1680, as “contrary to the freedom of parliament,” “derogatory to the authority of parliament, and of evil example and precedent to posterity” (m). The order and proceedings were thereupon adjudged “ unpar- liamentary from the beginning, and in the whole progress thereof, and therefore were all ordered to be vacated, that the same or any of them may never be drawn into prece- dent for the future.” In the same manner, after Lord Camden and the Court of Common Pleas had held Mr. Wilkes entitled to his release from custody before his trial on an indictment for libel, by reason of his privilege as a member of parliament (7), the House of Commons came to a vote that themselves possessed no such privilege (0). By which authority in such cases should we be bound ? (i) 14 East, 147. (m) 6 St. Tr, 1310. () 8 T. B. 314. (n) 19 St. Tr. 989. (k) 14 East, 62—70, (0) 15 Parl, Hist. 1362, (2) 6 St. Tr, 1269, Digitized by Microsoft® 906 CONSTITUTIONAL LAW. Srooxpare By that of our own law books, our daily guides, which Hawsarv. however would appear to refer us to the journals, or by that of the journals of the House, in which the Lex et Consuetudo Parliamenti are treasured, but which are supposed to be hidden from our view. I think the At- torney General referred us to the latter, of which he had before assured us that we were ignorant. Yet in Shaftes- bury’s, Case (0) these journals would overturn the autho- rity of the Court. So, in the Middlesex election contests between Wilkes and Luttrell, it is notorious that the law of parliament was laid down in the most opposite sense on ~ different occasions by the House of Commons. But, as to these proceedings by habeas corpus, it may be enough to say that the present is not of that class, and that, when any such may come before us, we will deal with it as in our judgment the law may appear to require. The Attorney General told us of another case in point im his favour, Burdett v. Abbot (p). We must then examine that case fully. The plaintiff committed a breach of privilege by the publication of a libel; the defendant, the Speaker, stating that fact on the face of his warrant, committed him by order of the House to prison ; an action was brought for this assault and false imprisonment. Did the House of Commons threaten the plaintiff or his attorney or counsel for a contempt of their privileges? On the contrary, by an express vote they directed their highest officer to plead and submit himself to the jurisdiction of this court. When the suit was pending, did they entertain questions on the course of the proceedings, or resolve that they alone could define their own privileges, or declare that judges who should presume to form an opinion at variance with theirs should be amenable to their displeasure? They suffered the cause to make the usual progress through its stages, and placed (o) 6 St. Tr, 1269. (p) 14 East, 1. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 907 their arguments before the court. Their arguments were Srockpace just; their conduct had been lawful in every respect. Hawsanp, The court gave judgment in the Speaker’s favour. The grounds of the decision were, not that all acts done by their authority were beyond the reach of enquiry, or that all which they called privilege was privilege, and sacred from the intrusion of law, but that they had acted in exercise of a known and needful privilege, in strict con- formity with the law. Let us now see what was acknowledged by the court to be the privilege of the House of Commons. Lord Ellenborough, almost on opening his luminous commen- tary on all the learning so profusely poured out in the discussion, claims for the High Court of Parliament, and each of the Houses of which it consists, “that authority of punishing summarily for contempts which is acknowledged to belong, and is daily exercised as belonging, to every superior court of law, of less dignity undoubtedly than itself” (q). This is the position established by him. The nucleus of Mr. Justice Bayley’s careful argument is in these few words: “The House of Commons has not only a legislative character and authority, but is also a court of judicature.” “If then the House be a court of judicature, it must” “have the power of supporting its own dignity as essential. to itself; and without the power of commit- ment for contempts, it could not support its dignity” (r). Sir V. Gibbs, the Attorney General, who argued for the defendant, took the same ground of justification (s). It were “easy to show that every court in Westminster Hall has the same power of commitment for contempts, and that they could not exist long without such a power.” “Tf then the right exist in the courts of Westminster Hall, upon what principle, it might then have been asked, could it be contended that the same right did not exist, and in the same degree, in the House of Commons” (¢)? Such (q) 14 East, 138. (s) Id. 85. (r) Id, 159. 0. (t) Id. 86. Digitized by Microsoft® 908 CONSTITUTIONAL LAW. Srocxpaze was the principle on which the Exchequer Chamber Haysarv. affirmed the judgment (wv); and the question proposed by Lord Eldon in the House of Lords to the judges, before that tribunal of the last resort pronounced in favour of the House of Commons, confines it in the same manner (v). The decision manifestly rests on the privilege to punish for contempt, inherent no doubt in parliament and in each House, whether regarded in the legislative or in the judicial capacity, but which it only possesses in common with the courts of justice, and which was there exercised within the strictest bounds of common law. This great case, solemnly argued at the bar, and on both sides with extraordinary learning and power, and in which the court evidently pursued their own enquiries in the interval between the arguments, presents a striking contrast to the rash and unmeasured language employed by former judges in ex parte proceedings, as writs of habeas corpus, and motions for criminal informations. Lord Ellenborough and Bayley, J., carefully guard them- selves against adopting such expressions, the former dis- senting directly from De Grey, CJ., the latter quoting without dissent the doctrine laid down by Holt in Reg. v. Paty (w). With the same freedom Lord Ellenborough commented, in R. v. Creevey (#), on Lord Kenyon’s dicta in RB. v. Wright (y). To the assertion, that the courts have always acquiesced in the unlimited claim of privilege, I have already stated enough to authorise me in opposing the contrary assertion. I proceed to prove its truth in other instances. The phrases which I have selected for remark out of the cases cited are the exception, not the rule. From early times the spirit of English judicature has been more free and independent. Numerous cases were cited in the argument for the plaintiff, in Burdett v. Abbot (z), (u) Burdett v, Abbot, 4 Taunt. 401. (z) 1M. &S. 278, (v) 5 Dow, 199. (y) 8 T. RB. 293, (w) 2 Ld. Raym, 1115. (2) 14 East, 1. Digitized by Microsoft® RELATION QF THE SUBJECT TO PARLIAMENT, 909 not required for the decision, except as they removed the srocxpaus preliminary obstacle to all discussion, They have been Hansanp. repeated in able tracts; most of them were criticised by the Attorney General. He sought, and successfully in some, to shew that the question of privilege, under the circumstances, did not arise. But they are not cited for their circumstances; their use is to shew that the courts exercised the right of examining matters supposed to be protected from their enquiry by privilege of Parliament. For this purpose it is enough to enumerate, in the words of Prynne (a), “the cases of Larke (b), Thorp (c), Clerke (d), Hyde (e), Attwyll (f), Walsh (g), Cosin (h), Ferrers (1), and Trewynnard (k), which” (he says) “the Lord Chief Justice vouched, and insisted on in his learned argument of this case, to the great satisfaction of those of the long robe, and most auditors then present, as well members of the Commons House as others ;” Cook's Case (0), Pledall’s Case (m), and others might be added. The Duchess of Somerset's Case (n), Fitzharris’s Case (0), and others not necessary to be named, were of later date. The Chief Justice thus eulogised by Prynne was Sir O. Bridg- man, delivering the judgment of the court in Benyon v. Evelyn (p), who brings this result out of his examination of ancient authorities. “That resolutions or resolves of either House of Parliament, singly, in the absence of the parties concerned, are not so concludent in courts of law, but that we may (with due respect nevertheless had to those resolves and resolutions), nay, we must give our judgment according as we, upon oath, conceive the law to (a) Regist. Part 4, p. 815. (i) Id. 53, (®) 1 Hats. Pree, 17. (&) Id. 60. (c) Id. 28. () Id. 96. (d) Id. 34. (m) Cited 14 East, 47. (e) Id. 44. (n) Prynne’s Reg. Part 4, p. 1214. (f) Id. 48. (0) 8 St. Tr, 223, (g) Id. 41. ; (p) 0. Bridg. 824, (a) Id, 42, Digitized by Microsoft® 9106 CONSTITUTIONAL LAW. Ssocxpate be, though our opinions fall out to be contrary to those Hansarv. resolutions or votes of either House.” That Bridgman, C.J., took upon himself to decide on privilege is so clear from his own plain words, that the opinion of Holt in Ashby v. White (q), and of Holroyd in arguing Burdett v. Abbot (r), cannot make us more certain of the fact. The Attorney General does not deny the proposition, but would parry its effect, by shewing that the circumstances appearing there, raised no question of privilege, and that what he was pleased to style the parade of learning on the subject was misapplied. But the Judge avowed his right and duty: if he invaded privilege of parliament, by laying down doctrines inconsistent with it, the invasion could not be less culpable because uncalled for by the cause in hand. The next case to which I advert in truth embraced no question of privilege whatever ; but, as one of the highest authorities in the state has thought otherwise, I shall offer some comments upon it ; I mean Jay v. Topham (s). The House of Commons ordered the defendant, their serjeant-at-arms, to arrest and imprison the plaintiff for having dared to exercise the common right of all English- men, of presenting a petition to the king on the state of public affairs, at a time when no parliament existed. For this imprisonment an action was brought. The declara- tion complained, not only of the personal trespass, but also of extortion of the plaintiff's money practised by defendant under colour of the Speaker’s warrant. The plea of justification under that warrant, which could not possibly authorise the extortion, even if it could the arrest, was over-ruled by this court, no doubt with the utmost propriety, for the law was clear; Lord Ellen- borough points this out in the most forcible manner (2). Yet for this righteous judgment Pemberton, CJ., and one yg) 2 ld. Raym. $e, (8) 12 St. Tr. 921 ir) 14 Hast, 49 it) 14 Mast, 108, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 911 of his brethren were summoned before the Convention srocxpare . . . e wv. Parliament, when they vindicated their conduct by un- Hansaro. answerable reasoning, but were, notwithstanding, com- mitted to the prison of Newgate for the remainder of the session. Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those acts of arbitrary power for which they de- prived King James of his crown. It gave me real pain to hear the Attorney General contend that the two judges merited the foul indignity they underwent (w), as they had acted corruptly in concert with the Duke of York, In support of this novel charge, he produced no evidence, nor any other reason but that the plea (v) appears to have been in bar, and not to the jurisdiction, But the Com- mons, who knew their own motives, made no such charge: the record produced there, on which the judges were said to have violated the law, exhibits a bad plea for the reasons assigned by Lord Ellenborough ; and the judgment punished by the Commons could not have been different without a desertion of duty by the judges. We have arrived at the Revolution, in which Holt took a conspicuous part. He owed to it the seat which he filled with such unrivalled reputation. On three several occasions he found himself compelled to deal with ques- tions of privilege, and on all he gave his judgment against the claim. Ishall not dwell minutely on Knollys’ Case (a), where he, with the whole court, came to a different con- clusion from the House of Lords, as to the supposed Earl of Banbury’s right to that title. The Attorney General asserted that that was no question of privilege, but merely whether an individual was a peer or not. One might have supposed that the issue, whether one claiming to he a member of either House of Parliament was such (u) Ante, p.883. Topham ; Sir T, Jones, 208. (v) See 2 Nels. Abr. 1243, where (x) 128t, Tr. 1167, the plea set out is that in Verdon v. Digitized by Microsoft® 912 CONSTITUTIONAL LAW. Srocxpate oy not, had some relation to parliamentary privilege, HANSARD. especially when the restraint of his person on a criminal ~~ charge was involved in that question. The Lords con- sidered it matter of privilege, and questioned the judges. But the matter, it seems, had not been formally referred to the House of Lords, and was not duly brought before them. They had, however, formally given judgment, and of that the court was informed. How could the court know that the Lords had proceeded extrajudicially, if utterly ignorant of parliamentary matters; or be per- mitted to enquire into their methods of proceeding, if their own subordinate station estopped them from ques- tioning any act done by the paramount authority of a House of Parliament ? Without farther pressing Knollys’ Case, I confess it was not without difficulty that I could trust the evidence of my own senses, when the Attorney General set aside the authority of Ashby v. White (y) by declaring that it was not a question of parliamentary privilege. If not, the three justices who differed from the Chief Justice were strangely deceived: the Chief Justice himself mis- apprehended both their reasoning and his own. The House of Lords was mistaken in their view of the subject, when they adopted the Chief Justice’s opinion against that of his three brethren. And the House of Commons was most of all ignorant of the truth, when (three days after the Lords had reversed the judgment of the Queen’s Bench), being “informed that there had been an extraor- dinary judgment given in the House of Lords upon a writ of error from the Court of Queen’s Bench, in a cause between Matthew Ashby and William White, wherein the privileges of the House were concerned” (z), they brought the proceedings before them, and after great debate re- solved (a) that Ashby having, in contempt of the jurisdic- tion of the House, commenced such action, was guilty of a (y) 2 Lord Raym. 938. (z) 14. St. Tr. C06. (a) Ante, p. 857. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 913 breach of their privileges, and that whoever should pre- Srockpauy sume to do the like, and all attornies, solicitors, coun- THassano. sellors, serjeants-at-law, soliciting, prosecuting, or pleading in any such case, “are guilty of a high breach of the privilege of this House.” The Lords (6), after full en- quiry by a committee, resolved, on the other hand, “that the declaring Matthew Ashby guilty of a breach of the pri- vilege of the House of Commons, for prosecuting an action against the constables of Aylesbury, for not receiving his vote at an election, after he had, in the known and proper methods of law, obtained a judgment in parliament for recovery of his damages, is an unprecedented attempt upon the judicature of parliament, and is in effect to subject the law of England to the votes of the House of Commons.” And now we are gravely informed that this case con- cerned not the privileges of parliament. If, however, the opinion of all the judges and of both Houses, and of all historians and all lawyers till that assertion was made, be correct, then that case decided that the courts of law were not bound by the opinion of the Commons’ House on matters of election, whereupon they claimed the sole right of judging, and had actually given judgment; but that the law must take its course, as if no such judgment had been given by the House of Commons, and no such privi- lege claimed. On this point the decision has never to my knowledge been impugned in any of our courts. Lord Mansfield is supposed to have dissented from it, but his doubt applies to the form of declaration merely ; and his own practice at the bar (c), of asking leave of the House 6f Commons to commence such actions, proves only his cautious desire to avoid and avert from his clients the doom denounced against Ashby, Paty, and their brother burgesses and others im part delicto, their counsel and attornies. (b) 14.86. Tr. 799. (c) 14 East, 59 (6). : 3N Digitized by Microsoft® D14 STOCKDALE vw HANSARD. CONSTITUTIONAL LAW. In the case commonly designated as The Case of the Men of. Aylesbury (d), a question of the utmost difficulty and importance was brought before the same Chief Justice and the Court of King’s Bench. The House of Commons, acting on the resolution just cited, pronounced those persons guilty of the breach of privilege there prohibited, and sent them to Newgate for a contempt in bringing their action. They sued out their habeas corpus. Holt, in a judgment of the highest excellence, gave such reasons for restoring them to liberty as it is easier to outvote than answer: the other three judges thought the adjudication of the House of Commons on a contempt brought before them could not be gainsayed in that proceeding, The judges of the other courts are understood to have con- curred with the majority in the Queen’s Bench: and the opinion just cited must be taken as that of eleven judges against one. But the other eight could only have stated their first impression, without publicity, and without hearing the argument. There is no satisfaction in dwell- ing on the angry contests between the two Houses which ensued. The peculiarity of the circumstances leaves a doubt whether the law can be considered as settled by what then occurred (e). But, even supposing that this Court would be bound to remand a prisoner committed by the House for a contempt, however insufficient the cause set out in the return, that could only be in consequence of the House having jurisdiction to decide upon contempts. In this case we are not trying the right of a subject to be set free from imprisonment for contempt, but whether the order of the House of Commons is of power to protect a wrong-doer against making reparation to the injured man When the judges were supposed to have unanimously agreed to surrender their right of examining whatever may have been done by authority of parliament, some very (1) Reg. v. Paty, 2 Ld. Raym, (c) See 14 Kast, 92, n: (2), 1105 5 unte, v. 358. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 915 important declarations by some of the most eminent St°°s>4™™ among them must have been forgotten. Willes, C. J., avowed the contrary resolution (/). What was said by Lord Mansfield in the House of Lords respecting the privileges of {the other House in the Middlesex election, is the more weighty, because he was then upholding the privilege of the latter in election matters (g): “Declarations of the law,” said he, “made by either House of Parliament, were always attended with bad effects : he had constantly opposed them whenever he had an opportunity, and in his judicial capacity thought himself bound never to pay the least regard to them.” He exemplified this remark by reference to general war- rants: although thoroughly convinced of their illegality, “which indeed naming no persons were no warrants at all, he was sorry to see the House of Commons by their vote declare them to be illegal. That it looked like a legisla- tive act which yet had no force nor effect as a law: for supposing the House had declared them to be legal, the Courts in Westminster would nevertheless have been bound to declare the contrary ; and consequently to throw a disrespect on the vote of the House.” “He made a wide distinction between general declarations of law, and the particular decision which might be made by either House in their judicial capacity, on a case coming regularly before them, and properly the subject of their jurisdic- tion.” “Here” (that is in a case of election) “they did not act as legislators, pronouncing abstractedly and gene- rally what the law was, and for the direction of others ; but as judges, drawing the law from the several sources from which it ought to be drawn, for their own guidance in deciding the particular question before them, and ap- plying it strictly to the decision of that question.” The dispute between the two Houses in 1784 (h), when (f) Wynne v. Middleton, 1 Wils. (g) 16 Parl. Hist. 653. 128 ; ante, p. 866. (h) See 24 Parl. Hist. 494, ef seg jn 2 Digitized by Microsoft® HANSsARD. 916 CONSTITUTIONAL LAW. Stocxpars the Commons issued a kind of mandate to the Treasury Hawsan, to suspend the payment of certain bills till the House should further direct, was in fact a struggle between the two great parties in the country. The Lords by a large majority condemned that proceeding, and resolved (as the same House had almost in corresponding terms resolved at the close, in 1704, of The Aylesbury Case)—“ That an attempt, in any one branch of the legislature, to suspend the execution of the law, by separately assuming to itself the direction of a discretionary power, which, by an Act of Parliament, is vested in any body of men to be exercised as they shall deem expedient, is unconstitutional” (2). The doctrine was enlarged upon by Lord Thurlow, who spoke of the resolutions of the House of Commons in terms preserved by tradition, which there might be im- propriety in repeating. The Commons defended their resolution by asserting that, in fact, it did not fairly bear the import ascribed to it. Lords Mansfield and Lough- borough took the same line in answering Lord Thurlow, both fully admitting with him, that the Commons have no power to suspend the law by their resolutions. The former said (k), that “for either branch of the legislature to attempt to suspend the execution of the law, was undoubt- edly unconstitutional.” “It had been stated as a ground for voting it (1), that the House of Commons had come to a resolution militating against a clause of the 21st of the present king. What then? A resolution of the House of Commons would not suspend the law of the land. A reso- lution of the House of Commons, ordering a judgment to be given in any particular manner, would not be binding in the Courts of Westminster Hall.” Nor can I refrain from quoting the characteristic burst of sentiment with which Lord Erskine remarked in 1810 on some censure cast on Sir Francis Burdett, for appeal- (i) 24 Parl. Hist, 497. (1) The proposed resolution of the (k) Id. 517. House of Lords, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 917 » ing to the law against the legality of the Speaker's war- Stocxpar rant. “No man would more zealously defend the privi- flaxsanp. leges of parliament, or of either House of Parliament, than he should; and he admitted, that what either branch of the legislator had been for the course of ages exercising with the acquiescence of the whole legislature, would, in the absence of statutes,’ “be evidence of the common law of parliament, and, as such, of the common law of the land. The jurisdiction of courts rested in a great measure upon the same foundation : but, besides that, these prece- dents, as applicable alike to all of them, were matters of grave and deliberate consideration ; they were, and must be, determined in the end by the law.” “The contrary was insisted upon by the Commons, when they committed Lord Chief Justice Pemberton for holding plea of them in his Court; but so far was he from considering such a claim as matter of argument under this government of law, that I say advisedly,” said his lordship, “that if, upon the present occasion, a similar attack was made upon my noble and learned friend (Lord Ellenborough) who sits next me, for the exercise of his legal jurisdiction, I would resist the usurpation with my strength, and bones and blood.” “Why was any danger” “to be anticipated by a sober appeal to the judgment of the laws? If” “the judges had no jurisdiction over the privileges of the House of Commons, they would say they had no jurisdiction. If they thought they had, they would give a just decision according to the facts and circumstances of the case, what- ever they might be” (m). After these decisions in our Courts, and these strong and vehement declarations of opinion, by some of the greatest luminaries of the law, it is too much to seek to tie our hands by the authority of all our predecessors. On Lord Brougham’s judgment in the case of Mr. Long Wellesley, lately published by himself (m), for obvious (m) 16 Parl. Deb. 851; See Bur- (n) Lord Brougham’s Speeches, vol. dett y. Abbot, 5 Dow, 200. iv. p. 357, Sce 2 Russ. & My. 6389. Digitized by Microsoft® 918 CONSTITUTIONAL LAW. Srockoare reasons I shall observe but shortly. He adopted in its Hanan, fullest terms the resolution expressed by Willes, C. J. (0), and carried it no farther, though his form of expression is perhaps more striking and forcible. “If instead of justly, temperately, and wisely abandoning this monstrous claim, I had found an unanimous resolution of the House in its favour, I should still, (and it is this which made me inter- pose to assure the counsel that I needed not the resolution of the House of Commons in favour of the Court of Chan- cery), I should still have steadily pursued my own course, and persisted in acting according to what I knew to be the law” (p). A declaration the more remarkable, as pro- ceeding from a judge long known as the champion of all popular rights, the jealous assertor of all the real privileges of that assembly, where his station and his services may be thought to place his name on a level, at least, with the greatest of all those, either lawyers or statesmen, who have come after him upon the same stage. It is indeed true that that avowal of opinion was no more necessary for the decision than perhaps the discus- sion of Bridgman, C. J., and the declared resolution of Willes, C. J. But would that circumstance render the sentiment less offensive, if it really assailed the independ- ence and dignity of the House of Commons? Quite the contrary. Yet there was no committee, no resolution, no menace. Two admissions were made by the Attorney General in the course of his argument here, either of which appears to me fatal to his case. He very distinctly recognised the words of Lord Mansfield, that, if either House of Parlia- ment should think fit to declare the general law, that declaration is undoubtedly to be disregarded, adding that it should be treated with contempt. Now such declaration would be a proceeding of the House, and so above all enquiry. (0) 1 Wils. 128, (p) Long Wellesley’s Case, 2 Russ, & My. 660, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 919 Again, if the due subordination of Courts is the SrocK Date guiding principle, the declaration, even if against law, by Maxsann, a superior court, demands respect and deference, if not acquiescence. But the declaration of general law may arise in the course of an enquiry respecting privilege : the claim advanced by the report of the committee (q) is that the House is the sole and exclusive judge of the extent of its own privileges, and the Attorney General, in the same spirit, informed us, on the part of the House of Commons, of his and their “confidence that, when we should be informed that the act had been done in the exercise of a privilege, we should hold that we could no longer enquire into the matter.’ He warned us that, this being a ques- tion of privilege, we have no power to decide it; and told us that whenever either House claims to act in exercise of a power which it claims, the question of privilege arises. But, if the claim were to declare a general law, the Attorney General agrees that no weight would belong to it. Clearly then the Court must enquire whether it be a matter of privilege, or a declaration of general law, as indisputably, if it be a matter of general law, it cannot cease to be so by being invested with the imposing title of privilege. The other concession to which I alluded is, that, when matter of privilege comes before the Courts not directly but incidentally, they may, because they must, decide it. Otherwise, said the Attorney General, there would be a failure of justice. And such has been the opinion even of those judges who have spoken with the most profound veneration of privilege. The rule is difficult of appli- cation, Lord Ellenborough and the Court, as well as the defendant’s learned counsel,.felt it to be so, in Burdett v. Abbot (r). The learned Report of the select committee (s) states in direct terms, that they “have not been able to (q) Report from the Select Commit- (v) 14 East, 1. tee on publication of printed papers, (s) Report, &c., supra. May 8th, 1837. Digitized by Microsoft® ! 920 CONSTITUTIONAL LAW, Srocxpare discover any satisfactory rule or test by which to ascertain Hansarv. in all cases whether the question of privilege would be deemed to arise directly or incidentally ; there are many cases which might be decisively placed in the one class or the other, but there may be also very many which cannot be so assigned.”——“ Your committee are of opinion, that the Courts have no jurisdiction to decide upon privilege, either directly or incidentally, in any sense inconsist- ent with the independence and exclusive jurisdiction of parliament. If such a jurisdiction did exist of deciding incidentally upon privilege, uncontrolled by parliament, it would lead to proceedings as incongruous, and as effec- tnally destructive of the independence of parliament, as if the direct jurisdiction existed ; a consequence which, together with the extreme uncertainty of the extent of the rule, makes it indispensably necessary that it should be investigated.” The report seems to consider that the question of privilege arose incidentally in the former trial between these parties, and points out very serious inconveniences that may flow from according to courts of justice this power of deciding incidentally. The opinion that the Courts have no jurisdiction to decide upon privilege, either directly or incidentally, undergoes some apparent qualifi- cation by a reference to the sense in which the words are used. It appears that the Courts have no such jurisdic- tion “in any sense inconsistent with the” “exclusive jurisdiction of parliament” (). I would not venture to speak with absolute certainty of the meaning of this passage ; but I imagine that a body which has no jurisdic- tion to act in any sense inconsistent with the exclusive jurisdiction of another body can possess no jurisdiction at all. I think, then, it must be assumed, that the com- mittee of the House of Commons declared that the Courts have no jurisdiction whatever to decide even incidentally (t) Report, &, P, 18, s. 60. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 921 on any matter of privilege ; their resolutions having refer- Srocxnat+ ence to this preceding part of their report. Now this power is denied to the Courts by this report for the first and only time. Even the Appendix (u) to it, which by being published by the same authority I know not well how to disjoin from it, returns to that same dis- tinction between the direct and incidental occurrence of questions of privilege which the report and resolutions appear to repeal. It were to be wished that the late House of Commons had laid down their rule for the guidance of the courts in language less open to dispute as to its meaning; but we in this case must feel relieved from all’ embarrassment, by the frank acknowledgment of the Attorney General. If, then, we may be under the obligation of deciding on privilege, even though inci- dentally, it follows that we have some knowledge on the subject, or at least the means of obtaining knowledge. The report takes for granted that, if either House has actually come to a decision on the point thus raised, we should be bound to adhere to it: and the Attorney General insisted that, even if in the present case the question did but arise incidentally, we should be bound by the declara- tion of the law set forth by the House in any formal state- ment of its opinion. Our duty would then be to interpret the law laid down by one House by discovering its meaning. But after ascertaining it as best we might from those stores of par- liamentary learning from which we are pronounced to be excluded, we might possibly find that the other House (or the same House at another time) had come to an oppo- site declaration. What course must we then take? How reconcile the discrepancy? Perhaps it may be said that the fact is not to be presumed. I agree that it is not ; but it exists at this moment with reference to the legal rights of parties in the matter that arose in Ashby v. (uw) See Appendix, No. 8, pp. 25—29, Digitized by Microsoft® HANSARD. — 922 CONSTITUTIONAL LAW. Srocxoaz White (w), This Court could not decide the matter either Haysanv. way, without overruling what has been laid down either ~~ by Lords or Commons, and thus violating the privileges of parliament, and rendering ourselves amenable to just displeasure, But suppose an entirely new point to arise, and some party litigating here to set up a claim of privilege never heard of before, as to which, therefore, neither House had ever framed a resolution. Since, then, the courts may give judgment on matters of privilege incidentally, it is plain that they must have the means of arriving at a correct conclusion, and that they may differ from the House of Parliament, as Holt and the Court of Queen’s Bench differed from the Lords in the Banbury Case (y), as he did in Paty’s Case (2), and as the same and many other of the Judges as well as the Lords did from the Commons in the case of Ashby v. White (a), and as I trust every Court in Westminster Hall would have done, if an order of either House, pur- porting to be made by virtue of the privilege of parlia- ment, had been brought before them as a justification for the imprisonment of a subject of this free state, for killing Lord Galway’s rabbits (0), or fishing in Admiral Griffin’s pool (c). In truth, no practical difference can be drawn between the right to sanction all things under the name of privi- lege, and the right to sanction all things whatever, by merely ordering them to be done. The second proposition differs from the first in words only. In both cases the law would be superseded by one assembly; and, however dignified and respectable that body, in whatever degree superior to all temptations of abusing their power, the power claimed is arbitrary and irresponsible, in itself the most monstrous and intolerable of all abuses. (wz) 2 Ld. Raym, 938, (a) Ante, p. 843. (y) 12 St. Tr. 1167. (b) 23 Comm. Journ. 505, (2) Ante, p. 858. (c) Ante, p. 894, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 923 Before I finally take leave of this head of the argu- Srocxpatr ment, I will dispose of the notion that the House of Havysano, Commons is a separate court, having exclusive juris- diction over the subject matter, on which, for that reason, its adjudication must be final, The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty. Adopting this analogy, it appears to me to destroy the defence attempted to the present action. Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is con- tended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privi- leges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it. 3. I come at length to consider whether this privilege ef publication exists. The plea states the resolution of the House that all parliamentary reports printed for the use of the House should be sold to the public, and that these several papers were ordered to be printed, not how- ever stating that they were printed for the use of the House. It then sets forth the resolution and adjudication before set out. We know, by looking at the documents referred to at the bar, that this resolution and adjudica- tion could not justify the libel complained of, because it was not in fact passed till after action brought. But, passing over all minor objections, I assume that the de- fendant has properly pleaded a claim, on the part of the House, to authorise the indiscriminate publication and sale of all such papers as the House may order to be printed for the use of its members. The Attorney General would preclude us from com- mencing this enquiry. He protests against our taking any other step than that of recording the judgment already given in the Superior Court, and registering the Digitized by Microsoft® 924 CONSTITUTIONAL LAW. Srocxoatx edict which Mr, Hansard brings to our knowledge. But, Haxsarv. having convinced myself that the mere order of the House will not justify an act otherwise illegal, and that the simple declaration that that order is made in exercise of a privilege does not prove the privilege, it is no longer optional with me to decline or accept the office of deciding whether this privilege exist in law. If it does, the de- fendant’s prayer must be granted and judgment awarded in his favour ; or, if it does not, the plaintiff, under what- ever disadvantage he may appear before us, has a right to obtain at our hands, as an English subject, the establish- ment of his lawful rights and the means of enforcing them. In the first place, I would observe that the act of selling does not give the plaintiff any additional ground of action, or right to redress at law, beyond the act of publishing. The injury is precisely the same in its nature, whether the publication be for money or not, though it may be much more extensively injurious when scattered over the land for profit. But the direction to sell is highly im- portant in this respect, that public sale necessarily imports indiscriminate publication beyond recal or control, and holds out the same authority as a protection to every subordinate vendor, who, by purchase from their printer and bookseller, is, like him, doing no more than giving: effect to an order of the House. How far it is strictly constitutional for either House of Parliament to raise money by sale or otherwise, and apply it to objects not specified by Act of Parliament, might require consideration on general grounds, but does not belong to the present season or place, in which we have only to deal with the manner in which the mutual rights of the parties before us in this action are affected. It is likewise fit to remark that the defamatory matter has no bearing on any question in parliament, or that could arise there. Whether the book found in the pos- session of a prisoner in Newgate were obscene or decent Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 925 could have no influence in determining how prisons can Srockpans best be regulated ; still less could the irrelevant issue Haveanp. whether it was published by the plaintiff The most advisable course of legislation on the subject is wholly un- connected with those facts: the inquisitorial functions would be exercised with equal freedom and intelligence, however they were found to be. And, if the ascertain- ment of them by the House was a thing indifferent, still less could the publication of them to the world answer any one parliamentary purpose. The proof of this privilege was grounded on three principles,—necessity,—practice,—universal acquiescence. If the necessity can be made out, no more need be said : it is the foundation of every privilege of parliament, and justifies all that it requires. But the promise to produce that proof ended in complete disappointment. It con- sisted altogether in first adopting the doctrine of Lake v. King (d), that printing for the use of the members is lawful, and then rejecting the limitation which restricts it to their use. The reasoning is, “If you permit the number of copies to be as large as the number of mem- bers, the secret will not be confined to them.” A strong appeal to justice and expediency against printing, even for the use of the members, what may escape from their hands to the injury of others, but surely none, in point of law, for throwing down the only barrier that guards the rest of the world against calumny and falsehood founded on ex parte statements, made for the most part by persons interested in running down the character assailed. The case just alluded to drew a line, in the nineteenth year of Charles IL., which has always been thought correct in law. The defendant justified the libel he had printed, by pleading that it was only printed for the use of the ‘members, Much doubt at first existed whether the justi- fication were good in law; the right of delivering copies for the use of the members of a committee being undis- (d) 1 Saund, 181, Digitized by Microsoft® 926 CONSTITUTIONAL LAW. Siseesiee puted, but some of the judges questioning whether print- Hanan, ing could be so justified. After an advisement of many terms and even of some years, Lord Hale and the Court sustained the defence, because, being necessary to their functions, it was the known course in parliament to print for the use of members. But wherefore all this delay and doubt, if the House then claimed the privilege of autho- rising the publication of all papers before them ? or how can we believe that the defendant would not have pleaded at first that privilege, when we find that he was admitted to have acted according to the course and proceedings of parliament, if it was then their understood right? This case occurred within a very few years of Benyon v. Livelyn (e), which must have excited the attention of the House, and made them vigilant in maintaining their privileges against the improper interference from courts of law. The supposed necessity soon dwindled, in the hands of the learned counsel, down to a very dubious kind of expe- diency ; for is it not much better, said he, that a man defamed, and thence avoided by mankind, should know he has been the victim of a privileged publication, than re- main ignorant by what means he has lost his place in society? A question over which many a man might wish to pause before he answered it. It is far from certain that he would become acquainted with the fact ; he might be absent on business, or abroad in the service of his country; but the discovery when made would bring him small comfort, as it would shew him that his enemy was too strong to grapple with, and that the door of legal redress must be barred against him for ever, Another ground for the necessity of publishing for sale all the papers printed by order of the House was, that members might be able to justify themselves to their constituents, when their conduct in parliament is arraigned, (e) oO, Bridg: 324, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 927 appealing to documents printed by authority of the House. Srocxpace This is precisely the principle denied and condemned by HANsAnp. Lord Ellenborough and the Court in R. v. Creevey (f), a decision which it may now perhaps be convenient to censure as inconsistent with privilege, but which, founded on Lord Kenyon’s authority in R. v. Lord Abingdon (g), has been uniformly regarded till this time as a just expo- sition of the law. But indeed it is scarcely possible for ingenuity to fancy a case in which a member, accused of any misconduct in his trust, should be able to vindicate himself by resorting to such documents. Then, on general grounds, the necessity of making the parliamentary con- duct of members known to their constituents is urged, and the duty of the House of Commons to convey instruction to the people. The latter argument may be answered by asserting that the duty of general instruction resides in the whole Legislature, and not in any single branch of it. The former argument proves too much; for the conduct of the representative is best disclosed by the share taken by him in the debates, which from all time up to the present moment have been, not only neither sold nor published by the House, but cannot be published by the most accurate reporter without his incurring the danger of Newgate for breach of privilege, and being exposed without justification to legal consequences, It can hardly be necessary to guard myself against being supposed to discuss the expediency of keeping the law in its present state, or introducing any and what alterations. It is no doubt susceptible of improvement ; but the improvement must be a legislative act. If we held that any improvement, however desirable, could be effected under the name of privilege, we should be con- founding truth, and departing from our duty; and if, on such considerations, either House should claim, as matter of privilege, what was neither necessary for the discharge (f) 1M & 8, 478. (g) 1 Esp. 226. Digitized by Microsoft® 928 CONSTITUTIONAL LAW. Stocxpare of their proper functions, nor ever had been treated as Hawsar, a privilege before, this would be an enactment, not a declaration ; or, if the latter name were more appropriate, it would be fre declaration of a general law, to be disre- garded by the Courts, though never, I hope, treated with contempt. It would also be the declaration of a new law; and the word “adjudge” can make no difference in the nature of the thing. The practice, or usage, is the second ground, on which the Attorney General seeks to rest this privilege; and he has a warrant for his claim, which, if well founded, is even stronger than any opinion of necessity : he refers to an Act of Parliament. The Postage Act (h), it seems, conveys all parliamentary proceedings to all parts of the empire free of expense. And, forasmuch as, when that Act passed, it was notorious that the votes and other proceedings contained matter criminating individuals, therefore, it was argued, the legis- lature must have intended to circulate such criminating matter. But the same Act requires newspapers to be circulated free of postage: it was equally notorious that newspapers often contained libels; yet it was never con- tended that the Postage Act intended to give impunity to their circulation. Thi both cases it is clear that the Act merely gave untaxed circulation to such proceedings and such papers as it was before lawful to circulate, leaving all questions of what is lawful in their former plight. But “the practice has prevailed from all time.” If so, it is strange that no vestiges of it are tracked to an earlier period than 1640, when the House of Commons, acting neither in a legislative nor an inquisitorial capacity, began to set up an authority independent of the Crown, and hostile to it, which led to its gradually absorbing all the powers of the State. For near twenty years the (k) 42 Geo. 3, v. 68; see stats, 7 Will. 4 and 1 Vict. c. 82, ¢ 34, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 929 House was taking this executive part, which they could Steckpau not carry on but by publishing their votes and proceed- Hansa. ings. At the Restoration they made some amends to the exiled king, by evincing their loyalty in the same manner; and their vows of allegiance and submission were also sold and published, as their manifestoes and levies of men and money against his father had been before. Thus does the practice appear to have origi- nated in the Long Parliament, and to have been con- tinued at the Restoration. The origin disproves the anti- quity of the privilege, or its necessity for the functions of one of the three estates; no such necessity was thought of till one began to struggle against the other two for an ascendancy which reduced them to nothing. True it is, the practice of so printing and publishing has pro- ceeded with little interruption till this hour. But the -question is not on the lawfulness or expediency of printing and publishing in general ; it is whether any proof can be found of a practice to authorize the printing and publi- cation of papers injurious to the character of a fellow subject. Such a privilege has never been either actually or virtually claimed by either House of Parliament: the notice of neither has been called to the fact of their giving publicity to writings of that character. What course they might have taken we cannot know, if a party thus injured had laid his grievance before them. Had ‘their answer been, We claim the right to promulgate our judgment on cases within our jurisdiction, on which we have made inquisition, heard evidence and defence, and formed our judgment,—they would have referred to a state of things wholly different from that which is now before us. If they had said, we claim the privilege of ordering the print- ing of what we please, and of publishing all we print, however partial the statement, and however ruinous to individuals, the question of their right to justify the pub- lisher would have been much the same as that which we have now under discussion, : 30 Digitized by Microsoft® 930 SrockDALE v, HANSARD. CONSTITUTIONAL LAW. The practice of a ruling power in the state is but a feeble proof of its legality. I know not how long the practice of raising. ship-money had prevailed before the right was denied by Hampden ; general warrants had been issued and enforced for centuries before they were ques- tioned in actions by Wilkes and his associates (¢), who, by bringing them to the test of law, procured their con- demnation and abandonment. I-apprehend that acqui- escence on this subject proves, in the first place, too much; for the admitted and grossest abuses of privilege have never been questioned by suits in Westminster Hall. The most obvious reason is, that none could have com- menced a suit of any kind for the purpose, without incur- ring the displeasure of the offended House, instantly enforced, if it happened to be sitting, and visiting all who had been concerned. During the session, it must be remembered that. privilege is more formidable than prerogative, which must avenge itself by indictment or information, involving the tedious process of law, while privilege, with one voice, accuses, condemns, and exe- cutes. And the order to “take him,” addressed to the serjeant-at-arms, may condemn the offenders to persecu- tion and ruin. Who can wonder that early acquiescence was deemed the lesser evil, or gravely argue that. it evinced a general persuasion that the privilege existed in point of law? Besides, the acqjuiescence could only be that of indi- viduals in particular hardships, brought upon themselves by the proteedings published. We have a right to sup- pose that a considerate discretion was fairly applied to the particular circumstances of each case; that few things of a disparaging nature were printed at all; that, where criminating votes were allowed to meet the public eye, they were justified as an exercise of jurisdiction upon matters properly brought before parliament, after patient hearing, and candid inquiry ; that the imputations were (t) Ante, pp. 525, et seq. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. gst generally true, and actions for libel would only have made Srockpate them more public; and that, even where ea parte pro- Hansarp. ceedings were printed to the annoyance of private persons, that minute suffering would be lost sight of in the general sense of an overwhelming necessity. All kinds of pruden- tial considerations, therefore, conspired to deter from legal proceedings, and will fully account for the acquiescence ; and the difference between the extent of publication for- merly practised and the uncontrolled sale of all that the House may choose to print in order to raise a fund for paying its officers cannot fail to strike every unbiassed understanding. I must add, that the evidence on this subject set forth in the report convinces me that publication has never been by way of exercising any of its privileges, nor the fruit of deliberation to what extent it ought to be carried and within what bounds restrained. With very different ob- jects the practice was originally introduced; it grew imperceptibly into a perquisite: and I venture to believe that it was raised into a traffic, and a means of levying money, without much consideration. The authority to which the Attorney General last ap+ pealed is one to which particular attention is due; I mean the report of the committee appointed by the late House of Commons to examine the subject. He spoke of it as a document of extraordinary weight, demanding the utmost respect, as uniting the suffrages of the most distinguished statesmen and the most eminent lawyers. I feel just and high deference towards them all: towards none more than the learned person who pressed us with their authority, and whose argument at the bar so fully laid before us all that could possibly be urged in defence of their resolutions. That learned person gave us to understand that he had sacrificed many weeks of his valuable time in studying this great subject, and that in preparing his argument. he had become perfectly convinced that his side was the side of truth. He must forgive me the remark, that this con- 302 Digitized by Microsoft® $32 CONSTITUTIONAL LAW. Shino clusion would have affected me more if it had preceded HawsAno, instead of following, the report of that committee and, the trial at Nisi Prius, and indeed the Resolution & 1835 (k). He also felt it right to remind us that members of that committee, though not now occupying judicial station, are sure to do so hereafter ; that their fame may eclipse all their predecessors upon the bench, and their opinion, em- bodied in the committee’s report, ought to be as much venerated as if it had appeared some ages earlier,—in the reign, he added by way of example, of Queen Anne. I fully accede to the suggestion; but, in acting upon it, I could not refrain from considering the claims to confidence which the individual members might possess. My inquiry would not be confined to their learning and ability: I should ask of their habitual candour and love of truth; perhaps, too, of their political and personal connections. I might be driven to the imvidious necessity of compa- rison: finding that some lawyers in the House had dis- sented from the committee, if I had found also in the minority such names as adorn the list of those who op- posed the claim of privilege in the case of Ashby v. White (1), in the reign referred to, it might be difficult, notwithstanding any disparity of numbers, to be quite cer- tain which way the balance of authority inclined. One thing would aid me in this estimate: whether the first impression of those most conversant with constitu- tional law coincided with the resolutions in which they afterwards concurred. For in many cases the first thoughts of understanding men are the best, and the surest to bear the stamp of truth; subsequent consideration sometimes brings expediency into competition with rectitude, and expediency of all kinds, general and particular, public and personal, But, on the other hand, it would not be unim- portant to know whether great lawyers, whose minds had (k) Ante, p. 873. (7) Ante, p. 848. | Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 933 not been particularly exercised in these matters, who Srockpate might have been at first induced to concur in the resolu- HANSARD, tions, had seen reason to abide by them on maturer reflec- tion. Some may have yielded to the extensive claims of privilege admitted by judges, and asserted by great living authority, who might afterwards renounce them as incon- sistent with clear principles of law in daily operation. But I have been led too far in observing on the authority of the ‘Report, against which the plaintiff is, in truth, appealing to our judgment, and on which nothing but. the learned counsel’s claim of deference to it could have tempted me to make a single remark. Let me only add that, if its authority and force of reasoning had appeared to its composers so conclusive, there might have been more propriety and more grace in leaving them to their natural influence over our minds, than in resorting to language which would have exposed our motives to a darker suspicion than any pointed at by the Attorney General, if our opinion had happened to coincide with that of the House of Commons. , : I cannot conclude without some reference to the parti- cular circumstances which have attended this cause in its progress, and have been observed upon by the Attorney General at the close of his long discourse. I then men- tioned the suddenness with which this great. subject came upon me, when the newspapers informed me that the issue which I was about to try had been made the topic of discussion in the House of Commons the night before. I must now add that when, on the trial (m), it was proposed to make out a defence from the resolution so often cited, that resolution was unknown to me. The project of the Honourable House to authorize the unrestricted sale of all their printed proceedings at so much a sheet, throwing off such a discount to wholesale purchasers, and appropriate the money to be raised to specific purposes, was what I never had anticipated, and (I own) could hardly believe. (m) Ante, p. 885. Digitized by Microsoft® 934 CONSTITUTIONAL LAW. srocxpate I thought it clear that such a course of proceeding could HANsAno. only be defended by asserting for one House of Parliament that sovereign power which is lodged in the Three Estates ; an opinion confirmed by the report of the committee, by the Attorney General’s argument, and by the concurrence of my learned brethren. Some degree of censure was insinuated on my imme- diate declaration of an opinion not absolutely necessary for disposing of the cause, and which was said to have encouraged the plaintiff to commence this second action, I may be allowed to doubt this supposed consequence ; for the second action was brought three months later, and immediately after the report of the committee had appeared. Perhaps, by some dexterous dealing with the points that arose at Nisi Prius, it might have been possible to avoid this painful collision, but not without shrinking from my duty to those parties who, whether necessarily or not, brought this question before me, and had a right to my opinion upon it; not without a poor compromise of the sacred principles of constitutional freedom. Besides, the delay would have implied a doubt where none was entertained, and would have been but a short postponement of the evil day; for similar ques- tions must have sprung up in other quarters, and must have brought under examination the large rights now claimed. I had indulged a hope that the resolution might have undergone revision, and have been found such as the House of Commons would not wish to continue on its journals. I had even some ground for believing that distinguished members of the committee itself entered upon the inquiry with opinions corresponding with my own; and I, for my own part, am at a loss to discover, in their printed report, or in the argument I have heard, any good reason for their conversion. I cannot lament that I gave utterance at the proper season to sentiments of which I deeply felt the importance Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 935 as well as the truth; nor can I doubt that a full consi- Srockpare deration of the whole ‘subj ect will lead to beneficial results, Haxsaro, One thing alone I regret, a warmth of expression in asserting what law and justice appeared to me to require, which may have rendered it more difficult for the late House of Commons to recede from any claim which it had. advanced. I am of opinion, upon the whole case, that the defence pleaded is no defence in law, and that our judgment must be for the plaintiff on this demurrer. LITTLEDALE, J., observed, inter alia,—In the case of a commitment for contempt, there is no doubt but the House is the sole judge whether it is a contempt or not ; and the courts of common law will not inquire into it, Not only the two Houses of Parliament, but every court in Westminster Hall, are themselves the .sole judges whether it be a contempt or not: although, in cases where the court have professed to commit, not for a con- tempt, but. for some matter which by no reasonable intendment could be considered as a contempt of the court committing, the ground of commitment being pal- pably and evidently unjust, and contrary to law and natural justice, Lord Ellenborough says (m) that, in the case of such a commitment, if it should ever occur, the court must look at it, and act upon it, as justice may require, from whatever court it may profess to have proceeded, ~ The Bill of Rights (0), declares that the freedom of speech and debates on proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. I think this is not such a proceeding in parliament’as the Bill of Rights refers to; it is some- thing out of parliament.. The privileges of parliament appear to me to be confined to the walls of parliament, for what is necessary for the transaction of the business (n) 14 East, 150. (o) 1 Will. & M., sess. 2, ¢. 2. Digitized by Microsoft® 936. CONSTITUTIONAL LAW, Stockpare: there, to protect individual members s0 as that they may Haxsarp. always be able to attend their duties, and to punish persons who are guilty of contempts to the House, or against the orders and proceedings or other matters relating to the House, or to individual members in discharge of their duties to the House, and to such other matters and things as are necessary to carry on their parliamentary functions; and to print documents for the use of the members. - But a publication sent out to the world, though founded on and in pursuance of an order of the House, in my opinion, becomes separated from the House: it is no longer any matter of the House, but of the agents they employ to distribute the papers; those agents are not the House, but, in my opinion, they are individuals acting on their own responsibility as other publishers of papers. : Parreson, J. Three questions appear to arise on this record, ; a). 260 I. Whether an action at law will lie in any case for any act whatever admitted to have been done by the order and authority of the House of Commons. II. Whether a resolution of the House of Commons, declaring that it had power to do the act complained of, precludes this court from inquiring into the legality of that act. Ae III. If such resolution does not preclude this court from inquiring, then whether the act complained of be legal or not. : I, With respect to the first question, it has not been contended in argument that either House of Parliament can authorise any person to commit with impunity a known and undoubted breach of the law. Extravagant cases have been sometimes put, illustrating the impossi- bility of maintaining such @ proposition. It has been answered truly, that it is not decent or respectful to those. high assemblies to suppose that such extravagant cases should arise. But. less extravagant cases have arisen in which both Houses of Parliament have con- Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 937 fessedly exceeded their powers in punishing persons for Stockpare trespasses on the lands of members, and other matters Hlansan. wholly ‘without their jurisdiction, but which they. have treated as questions of privilege. And, though no instance has been cited of any action having been brought, but, on the contrary, the persons proceeded against have very commonly submitted to the illegal treatment they have met with, yet surely the maxim of law must apply, viz., that there is no wrong without a remedy; and where can the remedy be but by action in a court of law against those who have done the injury? If it be once conceded that either House of Parliament can make an illegal order, it must necessarily follow that the party wronged may have redress against those who carry such illegal order into effect: and how can he have such redress but by action at law? Great difficulties may undoubtedly arise in distinguishing between acts done im the House, and out of the House under orders given in the House, and in determining against whom such action would lie.. It is clear that no action can be maintained for anything said or done by a member of either House in the House: and the individual members composing the House of Commons, whether it be a court of record or not, may, like other members of a court of record, be free from personal liability on account of the orders issued by them as such members. Yet, if the orders themselves be illegal, and not merely erroneous, upon no principle known to the laws of this country can those who carry them into effect justify under them. A servant cannot shelter himself under the illegal orders of his master. Nor could an officer under the illegal orders of a magistrate, until the legislature inter- posed and enabled him to do so. The mere circumstance, therefore, that the act complained of was done under the order.and authority of the House of Commons, cannot of itself excuse that act, if it be in its nature illegal: and it is necessary, in answer to an action for the commission of such illegal act, to shew, not only the authority under Digitized by Microsoft® 938 CONSTITUTIONAL LAW. Srocxpare, which it was done, but the power and right of the House Hansanv, of Commons to give such authority. This point indeed “was not pressed upon the argument of this case; but I have mentioned it because it seems to me that it will be very difficult to maintain the affirmative of the second question, if this first point be given up. II. The second question is, as I conceive, raised upon this record, by the declaratory resolution of the 31st of May, 1837, set out at the conclusion of the plea (p). The other resolutions and orders set out in the plea are not declaratory of the power or privilege of the House, but directory only: and, as it has been shewn that it is possible that the House, however unintentionally, may make illegal orders, and that, if it should do so, those who carry them into effect may be proceeded against by action at law, it follows that the court in which such action is brought must, upon demurrer, inquire into the legality of those directory orders, and cannot be precluded from doing so by the mere fact of those orders having been made, The proposition is certainly very startling, that any man, or body of men, however exalted, except the three branches of the Legislature concurring, should, by passing a resolution that they have the power to do an act illegal in itself, be able. to bind all persons whatsoever, and preclude them from inquiring into the existence of that power and the legality of that act. Yet this resolu- tion goes to that extent; for, unless it is taken to mean that the House of Commons has power to order the publi- cation of that which it knows to be defamatory of the character of an individual, and to protect those who carry that order into effect from all consequences, it will not avail the defendants in this action. I take the resolution, therefore, to have that meaning, though the language of it does not necessarily so import. (p) Ante, p. 876. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 939 It is further argued that the courts of law are inferior Stocxpate courts to the Court of Parliament and to the Court of the HANBAnD, House of Commons, and cannot form any judgment as to the acts and resolutions of their superiors. I admit fully that the Court of Parliament is superior to the courts of law; and in that sense they are inferior courts: but the House of Commons by itself is not the Court of Parlia- ment. With respect to the interpretation and declaration of what is the existing law, the House of Lords is doubt- less a superior court to the courts of law. And those courts are bound by a decision of the House of Lords expressed, judicially upon a writ of error or appeal, in a regular action at law or suit in equity; but I deny that a mere resolution of the House of Lords, or even a decision of that House in-a suit originally brought there (if any such thing should occur, which it never will, though for- merly’ attempted), would be binding upon the courts of law, even if it were accompanied by a resolution that they had power to entertain original suits: much less can a resolution of the House of Commons, which is not a court of judicature for the decision of any question either of law or fact between litigant parties, except in regard to the election of its members, be binding upon the courts of law. And it should be observed that, in making this resolution, the House of Commons was not acting as a court either legislative, judicial, or inquisitorial, or of any other description. It seems to_me, therefore, that the superiority of the House of Commons has really nothing to do with the question. Upon the whole, the true doctrine appears to me to be this : that every court in which an action is Brought upon a subject-matter generally and primd facie within its jurisdiction, and in which, by the course of the proceed- ings in that action, the powers and privileges and juris- diction of another court come into question, must of necessity determine as to the extent of those powers, privileges and jurisdiction: that the decisions of that Digitized by Microsoft® 940 CONSTITUTIONAL LAW. srocknarn Court, whose powers, privileges, and jurisdiction are so Taxsard, brought into question, as to their extent, are authorities, and, if I may so say, evidences in law upon the subject, but’ not conclusive. In the present case, therefore, both upon principle and authority, I conceive that this court is not precluded by the resolution of the House of Commons of May, 1837, from inquiring into the legality of the act complained of, although we are bound to treat that reso- lution with all possible respect, and not by any means to come to a decision contrary to that resolution unless we find ourselves compelled to do so by the law of the land, gathered from the principles of the common law, so far as they are applicable to the case, and from the authority of decided cases, and the judgments of our predecessors, if any be found which bear upon the question, III. I come then to the third question: Whether the act complained of be legal or not. I do not conceal from myself that, in considering this point, the resolution of the House of Commons of 31st May, 1837, is directly called in question ; but, for the reasons I have already given, I am of opinion that this court is, not only competent, but bound, to consider the validity of that resolution, paying all possible respect, and giving all due weight, to the authority from which it emanates. Beyond all dispute it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled ; that whatever is done or said in either House should not be liable to examination elsewhere ; therefore no order of either House can itself be treated as a libel, as the Attorney General supposed it might if this action would lie. No such consequence will follow. COLERIDGE, J.—T wo great questions have been discussed upon the argument. I. The first, and immeasurably the more important, of these is, whether it be competent to the Court, after the disclosure by the plea that the House of Com- mons has declared itself to have the power of publishing Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 941 any report, vote, or proceeding, the publication whereof it Stockpate deems necessary or conducive to the public interests, to Hanan. inquire whether by law the House has such power. Al- though not in form a plea to the jurisdiction, and wanting one essential incident to such a plea, if we answer this question in the affirmative it would in effect lead to much the same consequences. We should not indeed dismiss the plaintiff from our Court to another tribunal competent to give him relief, for none such is alleged to exist ; but we should give judgment against him ministerially rather than judicially, on the ground that the act complained of was done in the exercise of a power, as to which the whole jurisdiction, both to declare its existence and to decide on the propriety of its exercise in the individual case, was beyond our competence, and exclusively in the body by whom the very act was done. According to this argu- ment, the plea in form leaves a matter for our decision, but in substance prescribes conclusively the judgment to be pronounced. It must be admitted that this is a very startling conclusion : and certainly it must not be con- founded with cases to which it has been likened, where, the question in a cause turning upon foreign law or any of those branches of our own law administered in courts of peculiar jurisdiction, we decide it, not according to the common law, but according to what we suppose would have. been the decision in the foreign or the peculiar court. Then we inquire, by such lights as we can procure, what that law, foreign or peculiar, may be; and, when we have ascertained it, we apply the facts to it, and decide accordingly. Neither, again, is this to be confounded with cases in which, after an adjudication by a foreign or pecu- liar court upon the same facts between the same parties, one shall bring the other before us in the way of original ’ suit ; there, indeed, and upon a distinct principle, if the fact of such adjudication be properly pleaded and proved, or admitted, the further agitation of the question will not sbe permitted: we do not profess’to decide upon the merits Digitized by Microsoft® 942 CONSTITUTIONAL LAW. Srockpaus of the case: the existence of the former judgment in full Hansano, force is, by our own law itself, a legal bar to the second recovery or a new agitation of the matter. We are now, however, called upon to abstain from all inquiry, in a case in which the existence of the law is not substantively alleged in the plea (for as the House, it is admitted, can- not make the law, the resolution declaring it is only evidence of its existence, and not an allegation of it), where it does not appear that the particular facts have ever been adjudicated on, and where the particular order, under which the act.complained of was done, is not dis- tinctly brought within the law as said to have been declared. All this, however, has been maintained upon the footing of privilege. It is said the Commons have declared that they have this privilege, and the act has been done in the exercise of the privilege, but a court of law can neither inquire whether they have the privilege, nor whether the case falls within it, because the House of Commons alone is to judge of its own privileges :. the Court, therefore, to use the words of the Attorney General, has “ nothing to do but to give judgment for the defendants.” Now it will be observed that one and the same reason in terms is here assigned for two widely differing conclu- sions ; and it may therefore well be that the proposition may have two different senses, and be true in one though false in the other. No one in the least degree acquainted with the constitution of the country will doubt that in one sense the House is alone to judge of its own privileges, that in the case of a recognised privilege, the House alone can judge whether it has been infringed, and how the breach is to be punished. This concession, however, will not satisfy the advocates of privilege, nor the exigencies of the defendant’s case. The Attorney General contends that the House is alone and exclusively judge of its own privi- leges, in the sense that it alone is competent to declare their number and extent, and that whatever the House Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 943 shall resolve to be a privilege is by such resolution con- Stockpae clusively demonstrated to have been so immemorially. I next observe that the power to make any new privi- lege has been, as was necessary, distinctly disclaimed ; the House, it is said; only acts judicially in declaring the law of parliament. We must however look to the substance of things: and, as that cannot be done indirectly which it is unlawful to do directly, if it shall appear that the power claimed is in effect equivalent to that which is disclaimed, a strong presumption at least-is raised against the validity of the claim. Now what, in effect, is the right to declare the extent of privilege conclusively but irresponsible and uncontrollable power to make it? - At present we know, or we fancy we know, the limits of privilege, in certain cases at least ; for example, we have been taught that the House of Commons cannot administer an oath to a wit- ness : let me suppose the House to resolve to-morrow that it has the power to do so, and that it is a breach of privi- lege to deny it; if the Attorney General’s argument be correct, that power not merely is thenceforth, but from time immemorial has been, inherent in the House; and every judge and lawyer must forget all that he has learned before, and is forbidden to inquire even into the previous acts or declarations of the same branch of the legislature upon the same subject ; although the journals of the House might teem with conclusive proof that no ‘such power existed, it would not be lawful for this Court to borrow light from them ; it must acquiesce in the new declaration, and deny its relief to any one suffering under it. Yet what would be in effect the result, but that the House would have thus acquired for itself a power which no lawyer could doubt it did not possess before? I have put a case drawn from within the range of those which fall under the admitted province of privilege; but the same reasoning will apply to cases entirely unconnected with it, cases which have really nothing to do with the duties or proceedings of the House: It would be easy to Digitized by Microsoft® HANSARD. 944 CONSTITUTIONAL LAW. Srovkoane put striking instances of this kind; but they may be Haysanv. Summed up at once, and without the least exaggeration, in the remark, that there is nothing dear to us, our pro- perty, liberty, lives, or characters, which, if this proposition be true, is not, by the constitution of the country, placed at the mercy of the- resolutions of a single branch of the legislature. Three answers, however, are made to such a suppo- sition; Ist, it is said that paramount and irresponsible power must be lodged somewhere, and that it can no- where be so safely lodged. as with the representatives of the people; 2ndly, that it is not seemly to presume nor sound to argue from presumed abuses of power by so august a body; 3rdly, that in truth what has been urged by way of objection with regard to the House of Commons might equally be said in the matter of contempts of this or any other court of judicature. As to the Ist, I would observe that, by the theory of the advocates for privilege, they cannot argue this as a question of power; they limit themselves in terms to jurisdiction ; they claim only an absolute jurisdiction ; I answer that is in effect uncontrollable power : if they reply by an admission and a justification of that which I object, they must at least abandon their disclaimer of it, and acknowledge that they do in effect contend for the right not merely to declare, but to make privileges. But, if they justify the claim by asserting that absolute and irre- sponsible power must be lodged somewhere, and that it can nowhere be so safely lodged as with the representa- tives of the people, I take leave respectfully to dissent from both branches of the proposition. (1.) As to the first, I will not waste time by examining those extreme cases with regard even to the entire legisla- ture, in which, according to the theory of the constitution, even its so-called omnipotence is limited ; cases wisely not specified, nor in terms provided for, becenice they are be- yond the constitution, and, when they unhappily arise Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 945 resolve society into its original elements. But, if the S*j?4™ assertion be applied to any body in the state, or any court MANS\s for the administration of justice, civil or criminal, there is neither the one nor the other which by the constitution claims absolute power in the sense in which it is now claimed for the Commons. Every question which comes before a court of justice must be one of law or fact ; and, as to either, the decision may be wrong through error or corruption : but our constitution has been careful, almost to an extreme, in providing the means of correcting it in ‘both cases, and for punishing it in judge or jury, when it can be traced to corruption. It is true that, as to errors in law, there must be some limit to the series of courts of revision; and it is supposable that the court of last resort may persist in the error of the original decision. But even in that extreme case the constitution fails not, for the parliament may then interfere (and has done so in some. cases) to reverse and annul the erroneous decision. (2.) Denying as I do the first branch of the proposition, it is not necessary for me, and would not comport with the profound respect which I feel for the House of Commons, to give my reasons for doubting the second. But it is said, 2ndly, that the argument is founded on presumed abuse of power by the House of Commons; that such an argument is not sound in reasoning, nor seemly as applied to so august a body. I agree that it is not seemly, and I disclaim the intention of using it; yet, when I am considering merely the antecedent reasonable- ness of the defendant’s argument, I cannot pretend to forget what the journals of the House have been shown to contain, nor to be ignorant that it is of the very nature of irresponsible power, especially in the hands of a large body, to run to excess. I believe, however, that among those who now claim this power are the men who would be the very last to abuse it. But the truth is, that the answer is beside the question; for the cases are put merely to try the truth of a universal proposition ; and 3P Digitized by Microsoft® 946 CONSTITUTIONAL LAW. Srocxpare by the strictest rules of reasoning you may apply even Hawsano. extreme cases to test the truth of such propositions. My opponent in argument asserts that in all cases the House may declare conclusively that it possesses this or that privilege ; I deny the truth of that, because, if true, the House would be able to commit by law this or that monstrous act of tyranny or injustice: he may in return either deny my assertion or admit it; if he deny it, he will soon find that he must abandon his first claim also ; if he admit it, then my argument is, that, whether in fact the consequence will happen seldom or often, or it may be never, that cannot be law from which such a consequence may in natural course follow. To the 3rd answer, I have already given the necessary reply in considering the first. I will only, in addition, point out how wide the distinction is between the declaration of .the House of Commons in a matter of privilege, where itself is judge and party, and where the law provides no means of revision in any individual case, and the decision, even erroneous, even corrupt, of a court of justice between contending parties. Ido not forget, but reserve for another place, the case of committals for contempts, which will be found, both as regards the House and courts of justice, to fall more properly under a different consideration. But it is said that this and all-other courts of law are inferior in dignity to the House of Commons, and that therefore it is impossible for us to review its decisions. This argument appears to me founded on a misunder- standing of several particulars ; first, in what sense it is that this Court is inferior to the House of Commons; next, in what sense the House is a court at all; and, lastly, in what sense we are now assuming to meddle with any of its decisions. Vastly inferior as this Court is to the House of Commons, considered as a body in the state, and amenable as its members may be for ill conduct in their office to its animadversions, and certainly are to its im- peachment before the Lords, yet, as a court of law, we Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 947 know no superior but those courts which may revise our Stockpa judgments for error; and in this respect there is no HaNsanp. common term of comparison between this Court and the House. In truth, the House is not a court of law at all, in the sense in which that term can alone be properly applied here; neither originally nor by appeal, can it decide a matter in litigation between two parties: it has no means of doing so; it claims no such power: powers of inquiry and of accusation it has, but it decides nothing judicially, except where it is itself a party, in the case of contempts. As to them no question of degree arises between courts ; and, in the only sense therefore in which this argument would be of weight, it does not apply. In any other sense the argument is of no force. Considered merely as resolutions or acts, I have yet to learn that this Court is to be restrained by the dignity or the power of any body, however exalted, from fearlessly, though re- spectfully, examining their reasonableness and justice, where the- rights of third persons, in litigation before us, depend upon their validity. But I deny that this inquiry tends to the reversal of any decision of the House; the general resolution and the res judicanda are not iden- tical ; the House of Commons has never decided upon the fact on which the plaintiff tendered an issue: that argu- ment will be found by and by to apply to the cases of committal for contempt, but it has no place in the consi- deration immediately before me. Again, it is said that the jurisdiction of the House must be exclusive, because it proceeds, not by the common law, of which alone we are cognisant, but by a different law, the parliamentary law, of which we are wholly ignorant. I cannot think that this argument is entitled to much weight, It is every day’s practice with us to decide cases which turn upon the laws of foreign countries, or the laws administered in courts of peculiar jurisdiction in this country. Of these we have no judicial knowledge ; but we acquire the necessary knowledge by evidence; and it 3p 2 Digitized by Microsoft® 948 CONSTITUTIONAL LAW. Srocxpare ig not denied that, where in a cause the question of privi- Havsanv. lege arises incidentally, this Court must take notice of it and inquire into its existence and extent. What therefore it must do in some cases where the same difficulty exists, there can be no moral impossibility on that account of its doing in all. This objection, however, leads me to observe that cases of privilege so called will often arise, where the question will be, not merely whether the privilege does exist, but whether the claim made can be reduced at all under any true definition of privilege. Privilege, if it be anything but the mere declaration of the present will of the body claiming it, must be capable of some general fixed defini- tion, however it may vary in degrees in different bodies. No lawyer, I suppose, now supports the doctrine of Black- stone (q), that the dignity of the Houses, and their inde- pendence, are in great measure preserved by keeping their privileges indefinite. But of privilege in the general we must be competent to form some opinion, because we have from time to time to deal with our own privileges, Let me suppose, by way of illustration, an extreme case; the House of Commons resolves that any one wearing a dress of a particular manufacture is guilty of a breach of privi- lege, and orders the arrest of such person by the constable of the parish. An arrest is made and action brought, to which the order of the House is pleaded as a justification, The Attorney General has said that it is always a question of privilege, when it is a question whether the House has power to order the act complained of to be done ; and that this question arises directly, whenever it appears by the record that the action is for that which the House has ordered to be done. In such a case as the one supposed, the plaintiff's counsel would insist on the distinction be- tween power and privilege; and no lawyer can seriously doubt that it exists: but the argument confounds them, and forbids us to inquire, in any particular case, whether () 1Com. p. 164, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 949 it ranges under the one or the other. I can find no prin- Srocxparz ciple which sanctions this. After commenting on several of the cases which have been before mentioned, his lordship went on to observe : —Neither have I any difficulty with any of the cases in which the question arises upon anything said or done in the House. In point of reasoning, it needed not the authoritative declaration of the Bill of Rights to protect the freedom of speech, the debates or proceedings in par- liament, from impeachment or question in any place out of parliament ; and that the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity. The argument, therefore, with which we were pressed, that if the defendants were liable to this action, the Speaker who signed the order for printing, and the members who concurred in the resolu- tions, must be equally liable to be tried, on the ordinary principle of master and servant, has no foundation. It cannot be necessary to dwell on a distinction so well established ; on the other hand, no conclusion in favour of the defendants can be drawn from the immunity of the Speaker or the members in respect of anything done by them in the House, which occasioned the publication of the libel complained of, without. The order may be ille- gal, and therefore no justification to him who acts on it without ; and yet the courts of law may be unable to penetrate the walls of the House, and give redress for any- thing done within ; just as the individual who executed an illegal order of the monarch would be responsible, although the constitution would allow of no proceeding against the monarch himself. And'now, having made these limitations clear, I would ask whether, subject to them, there is any reasonable doubt that it has been the practice of the courts to in- quire into questions of privilege, a practice, considering all Digitized by Microsoft® HANSARD. 950 CONSTITUTIONAL LAW. Srocxpare the circumstances, prevailing with remarkable uniformity, v. . . Hansanv, and traced from very early periods? It would be impos- sible for me within any reasonable limits to go through the series of recorded cases; and, after the judgments already pronounced, must be quite unnecessary; although to specify only a few may seem asif they alone were relied on. The case of Donne v. Walsh, 12 Edw. IV. (r) and of Ryver v. Cosyn in the same year and same book (s), are important, as showing that at that early period, when the supersedeas of a cause was to depend on the extent of the parliamentary privilege, the inquiry was left to the judges of the court in which the cause itself was pending. In both instances, the Barons of the Exchequer take to counsel the judges of either bench, and, finding quod non habetur nec unquam habebatur talis consuetudo as that relied on for the swpersedeas, disallow it, and order the defendant to answer to the declaration. Ferrers’s Case (t) in the reign of Henry VIIL. is noticed by Mr. Hatsell, as being the first instance in which the House of Commons took upon themselves to vindicate their privilege of freedom from arrest (w); and, when that case is read at length, one cannot but observe indications of their proceeding, as if in the exercise of an untried power, with uncertain and somewhat inconsistent steps, The House is inflamed by the imprisonment and deten- tion of their member, and the violent resistance to the serjeant ; but what is their first step? They all retire to the upper House ; the Speaker states their grievance, the Chancellor and the Judges consider the matter, and “judging the contempt to be very great,” refer “the pun- ishment thereof to the order of the Commons’ House.” Then, the member being relieved, and the offenders against privilege having submitted and been punished, an Act of Parliament passes, after long debate, touching the member's debt («) ; the king comes to the parliament, and (r) 1 Hats. Pr, 41. (u) See Prynne, Reg. Part 4, 858. (s) 1 Id. 42, (x) To prevent the creditor from ul- () 1 Id, 58. timately losing his demand, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT, 951 descants in large terms upon their privileges, founding SrockDAtE himself on the information of his learned counsel ; and Hanan, the whole is concluded by the lord chief justice « very gravely” declaring “his opinion, confirming by divers reasons all that the king had said.” Dyer, who, in an Anonymous Case (y) states the law as to one of the privi- leges of parliament, refers to this case, saying, “and so it was held by the sages of the law in the case of one Ferrers in the time of Henry VIII.” Cases and language such as the preceding seem to me to furnish the key to the true meaning of the expressions to be found in Thorp’s Case (z), and the 4 Inst. (a), on which reliance has been placed by the defendants. II. The less important question raised by the plea, but still a cardinal one to the decision of the case, remains to be considered as shortly as I can. Has the House of Com- mons the privilege of publishing and selling indiscrimi- nately to the public whatever it orders to be printed for the use of the members? Or, conceding the resolution and order just stated to be identical in effect with the resolution of uncertain date stated at the end of the plea (which yet, considering their language, is a wide conces- sion to make), is the power of publishing such of its votes, reports, and proceedings, as it shall deem necessary or conducive to the public interest, an essential incident to the constitutional functions of the Commons’ House of Parliament ? The burthen of proof is on those who assert it; and, for the purposes of this cause, the proof must go to the whole of the proposition : its truth as to the votes, or even as to some of its proceedings, will not suffice. Now we have been referred to the report of the committee on the publication of printed papers, and with some emphasis we have been informed of the names of the individual mem- (y) Moore, 57. See Prynne, Reg. (2) 1 Hats. Pr. 28. Part 4, 780,861; 1 Hats. Pr. 58. (a) 4 Inst. 15, Digitized by Microsoft® 9 52 CONSTITUTIONAL LAW. Stocxpate bers. The industry displayed in the former, and the well- Hawsanv. known learning and ability of the latter, are such, that we may safely say, if the proposition has not been demon- strated, it cannot be. Si Pergama dextra Defendi possent, etiam hac defensa fuissent (a). : One thing is remarkable in this controversy. The pri- vileges of parliament at different periods have engaged largely the attention of political writers, and parliament has never wanted zealous asserters to enumerate them; and no one can doubt of the extreme importance of this branch of them, if it had ever existed. I look to the report for authorities of this class, and I find it a perfect blank. If anything could be added to that report, the argument for the defendants, it may be safely asserted, would have supplied it; that is equally a blank on this head. Nor am I able to supply any authority to this effect. It is difficult to explain this in any manner con- sistently with its being a recognised privilege. General acquiescence might explain why there was no case to be found in support of it ; but for the very same reason one should have expected to have found it enumerated in some or all of the text writers who have had to deal with the subject of privilege. But, if not to be found in such works, nor evidenced by any resolution of the House prior to that of 1837, does it stand more securely on the testimony of the journals and proceedings of the House? It cannot be denied that the journals present evidence of the exercise of the right of publication ; the question is, whether, all things con- sidered, and specially the nature of the right on the one hand, and the imperfect state of the early journals on the other, it is sufficient in reason to establish its existence. For about the first century of the journals, from 1547 to (a) Virg. din, lib. ii, 291, 292. Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 953 1641, nothing appears on the subject; but the time and Stocxpare occasion of the commencement of the precedents relied on, Haxsano, and the early precedents themselves, are far more un- favourable to the right than the previous want of any, The time is 1641; the occasion the unhappy difference between the Sovereign and the House: the precedents themselves direct’ acts moving in and towards the Great Rebellion. Mr. Hatsell, closing his first part (0), says, “Tf I shall ever have leisure or inclination to continue this work, I shall think myself obliged to pass over every- thing that occurred” “after this unhappy day” (the entrance of the King into the House), “and shall collect only such precedents as are to be met with” in the two parliaments of 1640, till the “4th of January, 1641, and then proceed directly to the Restoration.” And I cannot but think that this part of the defendants’ case would have stood better if the same discretion had guided the industry of those who collected their precedents, and if no reliance had been placed on these violent and irregular proceedings. Passing from this inauspicious opening to the year 1660, and thence to the year 1835, I do not doubt that in a great many instances the House of Commons is shown to have printed and published votes, reports, and proceedings ; the votes indeed with considerable regu- larity ; but, as to the first of these, the right to publish is undisputed, and stands on a ground which leaves this question untouched. The term “proceedings” is so vague that I am unwilling to pronounce any opinion upon the right as to them generally ; but no doubt there are many things, fairly reducible under that term, which the House would have the right to publish: and, as to their reports, a large proportion of them would contain “nothing criminatory of individuals, so as to raise no question upon the right. Now, when the necessary de- (b) 1 Hats. Pr. 218. Digitized by Microsoft® 954 CONSTITUTIONAL LAW. Srocxoare ductions are made in respect of all these considerations, YD . . Hansarv. and when, besides, we allow for the reluctance which individuals would have to litigation with so formidable an adversary as the House, even where the criminating matter in a report was false, and that it would be doubled where the matter was true, which in many instances it must in reason be taken to have been, the residwwm of the evidence which may be fairly considered to support the right claimed is so small as entirely to fail in making it out. We have been obliged in this case to refer to what looks like evidence in fact, in order to ascertain the law: and evidence naturally bears with a different weight on different minds. I speak of my own impression ; and, considering it merely as a question of evidence, I frankly avow that what has here been collected gives the claim to my mind the character.much more of usurpation than lawful privilege. But it may be said that necessity, or at least a strong expediency, proves the existence of the privilege; for they are the foundation of-all privilege. These may be essential to privilege; but I must take leave to deny that alone they can constitute it. The House of Commons is sometimés called the grand inquest of the nation; and to the discharge of its duty as such, who can doubt that the power to examine witnesses upon oath would be most conducive? To the perfect dis- charge of that duty who can doubt that in early times it was thought essential? Yet there is nothing clearer than that the House has not that power, and cannot by its own resolutions acquire it. The author of Junius’s Letters, I think, lays down a safer rule: “To establish a claim of privilege in either House, and to distinguish original right from usurpation, it must appear that it is indispensably necessary for the performance of the duty they are employed in, and also that it has been uniformly allowed” (c). (c) Letter 44, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 955 Were I therefore to concede the necessity, or the strong StOcKDALE expedience, one half only of the defendants’ case would be Hawsano. made out; the objector would still appeal to the defective evidence af allowance, and the rule would hold—Bonwm ex causdé integrd, malum ex aliquéd parte. But I do not feel that I can make that concession. I will not put this upon the ground of inconsistency in the urging this argu- ment for a body whose most undoubted and exercised privilege it is to exclude the public at pleasure from their debates ; but, recollecting the great inconvenience of all injustice, the great advantage of maintaining the principle that even public benefits are not to be purchased by a violation of the sacred rights of individuals, recollecting how nearly all, if not all, the benefit of publicity may be secured, even when it is confined to matter not crimina- tory, I assert with the greatest confidence that the balance even of public expediency is in favour of a right of publi- cation restricted by the limits of the common law. What advantage derived from publicity can be equal to the maintenance of the principle, that even to the represen- tives of the people, the most powerful body in the nation, the calumny of individuals is forbidden? What benefit can countervail the evil of a general understanding that any man’s character is at the mercy of that body, and that by the law, not merely by the force of overbearing power, but by the rule of English law, for the sake of public expediency, he may be slandered without redress? I desire to avoid language that may have the semblance of offence : but I soberly ask the warmest advocate for this extended privilege, whether any benefit in a land, all the institutions of which seek the genial sunshine of public opinion and must languish without it, can make up for the injury resulting from this, that it should be capable of being said with truth, the House of Commons has become a trader in books, and claims, as privilege, a legal monopoly’ in slander. If then I try this claim by the authority of text writers, Digitized by Microsoft® 956 CONSTITUTIONAL LAW. Stockpatr by the evidence of precedents, by the test of expedience HAxsAn, OT necessity, it seems to me in each and all of these to be signally wanting. I am therefore of opinion that the plaintiff is entitled to our judgment. I could wish that I had had leisure to express my reasons more concisely, and more clearly. I have examined the question, however, with an anxiety proportionate to its importance, and with a deep sense of the responsibility attaching to the deci- sion; but I cannot say that I entertain the least doubt of its correctness. We have been warned of the danger of a pursuit after popularity ; advice no doubt tendered in a respectful and friendly spirit ; advice most useful where needed. I trust that nothing we have said or done can fairly lay us open to the imputation of needing it. For myself I am afraid to quote a passage from the eloquent appeal of a great predecessor (d) of my Lord, lest any one should suppose me weak enough to be thinking of a comparison with Lord Mansfield; but I feel the distinction between the popular favour that follows an honest course, and that which is followed after. To speak of a contempt of the House, if “we assume to decide this question inconsistently with its determina- tion,” argues what I should call, if the language had not been used by those whom I am bound to revere, a strange obliquity of understanding. The cause is before us; we are sworn to decide it according to our notions of the law; we do not bring it here; and, being here, a necessity is laid upon us to deliver judgment; that judgment we can receive at the dictation of no power: we may decide the cause erroneously ; but we cannot be guilty of any con- tempt in deciding it according to our consciences. The privileges of the House are my own privileges, the privileges of every citizen in the land. I tender them as dearly as any member possibly can: and, so far from con- (d) Lord Mansfield in Rex v. Wilkes, 4 Burr, 2562 ; ante, p. 794, Digitized by Microsoft® RELATION OF THE SUBJECT TO PARLIAMENT. 957 sidering the judgment we pronounce as invading them, I STOCKDALE think that by setting them on the foundation of reason, Hanan. and limiting them by the fences of the law, we do all that in us lies to secure them from invasion, and root them in the affections of the people. After the decision in the above case, the plaintiff Subsequent brought another action in the Court of Queen’s Bench, ings. and recovered judgment (4.D. 1839) against the same defendants. A writ of inquiry was executed thereupon, and the damages assessed at £600. 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Parts1,2,3,and4 9. °. ° , | De Gex, Fisuer and Jonzs, Part 1 . Der Gex, Jones and Smitsa,—Part 1 ‘ Rosz,—50 to 56G. III. 2vols . - ° 215 0 010 0 DEACON and Currry,—2 to 5 W. IV. 4 vols, ‘ i 418 0 100 Deacon,—5 W. IV. to 8 Vict. 4 vols. . 3 ‘i ‘ 618 0 100 De Gex,—8 to 11 & 12 Vict. 1 vol. 240 012 0 DE Grx, MacwacutTen and Gorpon,—15 "Viet, to “present . time. 9 parts - 117 0 1 4 6 0 0 0 6 Reports of Railway and Canal Cases, Nicwoxt, Harz, Carrow, Oxtver, Bevan, and Lerroy, 7 vols. 18 1 0 9 9 0 Reports of Election Cases. PECKWELL,—43 to 47 G.III., 8vo. 2vols . 3 : Corzerr and DanrEeL,—59 G. III, 8vo. vol. . F Cocxsurn and Rowz,—2 & 3 W. iv., 8vo. 1 vol. Kapp and OmBrEr,—4 &5 W.IV,, 8v0. 1 vol. ‘ & Barron and Austin,—5 & 6 Vict., 8vo, 1 vol. ‘ i Barron and ARNoLD,—6 to 9 Vict., 8vo. 1 vol. . F 5 ab ee ws Ne eH OD On DAARAO eoocooo tht _ AIT HS coance Reports of Magistrates’ Cases, Dowtine and Rytanp,—2.to 8 G. IV., 8vo. 4 vols, . 3 Mannine and Ryzanp,—8 G. IV. to i W. IV., 8vo. 2 vols., and Vol. 3, Part 1. 3 A oe.