WRIT OF ERROR IN THE CASE OF HART AND WHITE. (Hansard, 16 May 1809)

Mr. Clifford

addressed their lordships as follows: "My lords, in this case, I have the honour to appear before you on the part of the Plaintiffs in Error. The question now under your lordships' consideration is of so much importance as necessarily to command attention. I should, therefore, hold it a waste of your lordships' time, if I made any prefatory remarks upon it. My lords, this is a Writ of Error against a Judgment given in his majesty's court of King's Bench, in a case originating in an information filed by the Attorney General against the Plaintiffs in Error, John Harriott Hart, and Henry White. The venue of the information was laid in the city of London, where the Trial also took place. The Plaintiff's were afterwards brought to the Bar of the court of King's Bench, where Judgment was passed upon them, the one to be imprisoned in the county gaol of Dorset, and the other in the county gaol of Gloucester, for 18 calendar months, after the expiration of which, each party to be farther imprisoned for the like term; and, at the end of this imprisonment, each of the Plaintiffs in Error to give security for their good behaviour for five years, themselves in the sum of 500l., and two sureties in the sum of 250l. each.—Upon this Judgment, my lords, this Writ of Error is brought before you, and I hope satisfactorily to convince your lordships, that this was an erroneous Judgment, and therefore ought, in justice, to be reversed and annulled by this high and honourable court. This Judgment, my lords, admits of two great and leading grounds of objection: the first, as the gaols of Dorchester and of Gloucester in which the Plaintiffs are imprisoned under the Judgment of the court, being neither of them the immediate prisons of the court, or the gaols of the counties where the offences were committed, nor the court of King's 584 Bench being, at the time of passing sentence, sitting in either of these counties; and secondly, to which another part of my arguments shall apply, as to the security required from the Plaintiffs, which I contend is illegal and excessive, and, therefore, should not be required of the Plaintiffs. Upon this assignment of Errors, the Attorney-General, on behalf of the crown, pleaded generally, that neither in the record and proceedings, nor in the Judgment, was there any Error. The question now for your lordships' consideration is, whether on these two points, or either of them, the doctrine asserted and upheld by the Attorney-General, or the views of the case which I shall have the honour to submit to your lordships, is the best founded in the law and constitution of the country? There are some points connected with a general view of this case, which I may not think right to urge in the first instance; but with which, I may, according to what shall fall from the counsel for the crown, touch upon, at the opportunity furnished me by your lordships' rules, in replying. In discussing this case, no want of candour in viewing it, shall be fairly attributed to me. I admit, then, that all the gaols in the kingdom are his majesty's; that the court of King's Bench is supreme in criminal jurisdiction throughout England; that it may commit offenders to any prison it thinks proper, in case the court, at the time of passing such sentence, should sit in the county to which such prison belongs. I admit every one of these points. My lords, the principle laid down by the Attorney-General in reference to this part of the case, is a very general principle; to the length I have stated, I fully go with him, but by no means to the extent. The courts of justice, and prisons, are held by the law and constitution of the realm, to be the king's, for special and particular purposes. I flatter myself, I shall be able to convince your lordships, that the legal purpose for which the gaols were allotted for confinement of offenders, was for the imprisonment of those who were guilty of offences in the body of the counties in which such gaols were situated. In advancing this, I do not mean to contend, that it would be illegal to have sent the Paintiffs to any gaol in the county of Middlesex, for there the sentence was passed; nor to any gaol in the city of London, because these the offence was committed. I request your lordships to bear in mind the 585 distinctions which I admit, that the court may send persons either to gaols in the counties where the offences had been committed, or in those where the court sat at the time of passing sentence. In former times, when the power of imprisoning individuals was exercised by other persons as well as those constituting his majesty's courts, these persons, with a view to the extortion of money, instead of sending the objects of their power to the county-gaols, used to send them to their own castles. These were chiefly justices of the peace, and by an act of the 5th of Henry 4, chap. 10, that power was taken away, and it was enacted that individuals should be imprisoned no where but in the gaols. Now, my lords, I know full well that taking away the jurisdiction from justices of the peace was not to take it away from the court of King's Bench; but it is rather too much to contend, that, if justices of the peace had usurped this species of jurisdiction, that, on their being deprived of this usurped jurisdiction, it was necessarily transferred to the court of King's Bench."—The learned counsel then referred to a case occurring in the 11th of Edward 4. Having stated the circumstances, he observed, "If at that time it was held the undoubted right of the court of King's Bench to commit to any gaol it thought proper, because all were his majesty's prisons, there would hardly have existed any thought of an investigation what particular prisons those persons should be sent to! What I am now about to state is extremely strong; it respects the consideration whether the sheriffs of England be officers of that court." In illustration of this, he referred to a case occurring in the 21st of Edward 4, the appeal against Winkfield, as reported by Brooke, in which it was held that the sheriff of Middlesex was not the immediate officer of the court, except for things done in that county. "This latitude of discretion in the Court of King's Bench was doubted; but it appears that it could not legally exercise such a power, because the sheriff is not the officer of the court, except for things done in his county.—If this be so, in what possible way can the sheriffs of Dorset or Gloucester be held as officers of the court, or have persons committed in the way before us, legally transmitted to their charge? This quotation from Brooke is given not only as he found it to be decided, but with his observations and additional remarks. Having stated 586 these cases from rather remote periods of our history, I come to one of comparatively modern date, and which bears materially upon the subject. In the 34th of Elizabeth, complaints had been made that the Star-Chamber and privy-council had acted in a most arbitrary manner, especially with respect to the imprisonment of individuals, some of whom were sent to distant gaols. Writs of Habeas-Corpus were issued in consequence, and the persons were liberated. Disputes arising between the courts and the Star-Chamber, a reference was made to the twelve judges, who delivered their opinions in writing, upon the points referred to them, in which statements it was observed that some of the persons so delivered had been committed to prisons in secret places! It was acknowledged by those judges, that individuals were confined in secret prisons, and not in ordinary places. Every prison at a distance may be regarded as a secret prison, at least from the families of the unhappy persons so immured, and this emphatically is the case of the plaintiffs confined in the gaols of Dorchester and Gloucester!" Having described the functions and powers of the court of Star-Chamber as regulated by the act of Henry the 7th, the learned counsel proceeded. "But in what way, my lords, was this court authorized to punish? Not according to any new fangled discretion of its own—it was restricted to the pronouncing of such judgments as were warranted by the common law of the realm. Afterward, when the abolition of this tribunal took place, 'all that was good and salutary of the jurisdiction of the court of Star-Chamber,' in the language of Mr. Justice Blackstone, 'reverted to the court of King's Bench,' but no farther was it vested with those powers of imprisonment, so stigmatized in the court of Star-Chamber. I shall now proceed to the reign of Charles the First, which furnishes uswith some memorable cases, upon which I shall beg leave to trouble your lord-ships: I mean those of Mr. Prynne, Mr. Burton, and Dr. Bastwick. The sentence which was passed upon them by the court of Star-Chamber, took place in the year 1637—they were doomed to stand in the pillory, sentenced to a considerable fine, and to be committed to chose custody to the gaols of Launceston, Lancaster, and Caernarvon; they were sentenced to stand in the pillory in Palace-yard, Westminster, to a fine of 5,000l. and to incarceration in 587 those remote prisons I have mentioned.* The case is so far precisely parallel with that for which I have the honour to stand before your lordships. My lords, I can entertain little hope that any thing stated by a person while undergoing such a sentence, can have much weight with the deliberate wisdom of your lordships; but the sentiments uttered by Dr. Bastwick, under the circumstances, deserve some consideration. In order to excite sympathy and compassion, he addressed the populace, and particularly dwelt on the measure of sending the sufferers to remote places of confinement as new, unjust, illegal, and oppressive. It is not likely that a man in such circumstances should have so openly asserted a direct falsehood, which must have been apparent at the time, and have rather hurt than benefited his cause; but what he advanced was never contradicted, and the practice complained of was conceived by the people, at the time, as a novelty, and contrary to law. Petitions were afterwards presented to the house of commons, on behalf of Mr. Prynne, Mr. Burton, and Dr. Bastwick. The petition of Mr. Prynne, particularly complained of the hardships inflicted upon him and his fellow-sufferers, and in the prayer of his petition he requested that the house may take their grievances into its most serious consideration, in order that such novel practices may not become precedents to the prejudices of others. We all know, my lords, that Mr. Prynne was one of the best lawyers that ever appeared in Westminster-Hall, and that such a person was not likely to be ignorant of the laws of his country, or so foolish as to state, on such an occasion, to parliament, that the punishment they had undergone, by being sent to a place of confinement out of the county in which they were sentenced, was, illegal and a grievance. As soon as those petitions were read, my lords, they were referred to a committee to consider and to report upon the several abuses therein stated, as committed by the court of Star-Chamber, or any officer under its authority. From these proceedings we may fairly infer that the conduct complained of was an abuse of the authority of the court, and contrary to law. It was afterwards resolved that such practices were against the law, injurious to the liberty of the subject, and ought to be prevented. A distinct resolution declared ^* 3 Cobbett's State Trials 711. 588 that the sentence of the privy council for sending individuals to distant prisons for confinement, was illegal. Mr. Prynne was ordered to be restored to his degree in the University of Oxford, and to his chambers among the Society of Lincoln's Inn. It was ordered by the house of commons, in March 1640, that a committee should be appointed to consider of the Court of Star-Chamber, and to prepare a bill concerning the same. In May 1641, a bill was passed in the commons for taking away the power of the Star-Chamber. This act was now on the statute-book as the 16th Charles 1, chap. 10. The bill underwent much consideration in the lords, as appeared by their lordships' journals, and after some difficulty it was passed. The illegal practices of the court, and the grievances occasioned by them, were duly noticed, particularly in the preamble of the act, which prescribed that from and after the 1st of August 1641, the court of Star-Chamber should be actually dissolved and abolished. It appeared that at first there was no intention to abolish the Star-Chamber, and the idea was not entertained until after the report of the committee. Now, my lords, what was the report of that committee? I should first observe, that the committee itself originated in the petitions I have adverted to, which particularly dwelt on the illegality and grievance of the imprisonment in distant gaols. The committee only reported upon the abuses complained of in these petitions. Upon hearing these, the house of commons directed its committee to prepare the bill, and to consider at the same time of the enormous sentences pronounced by the Star-Chamber. The concluding clause of this memorable bill enacts, that no court in future shall have the like jurisdiction as that court was vested with or had used to exercise. It appears, my lords, from the time of presenting the petitions I have mentioned until the bill received the royal assent, that the only abuses which led to the destruction of the Star-Chamber, were the abuses complained of in those petitions, the prominent point in which was the illegality and grievance of imprisonment in distant gaols; and I can confidently advance that the Court of King's Bench does not, legally, possess a shadow of this power, unless his majesty's attorney-general produces some modern statute which invests them with that power. Nothing short of such an authority can, legally, 589 confer the power of inflicting such a punishment, and I must decidedly protest against the idea that any precedent of modern date can vest such an authority in the court of King's Bench; and I do humbly, but confidently contend, my lords, that the court in question possesses no such legal power, unless the attorney-general can shew a statute which gives them that investiture. In the year 1642, my lords, it is to be found, at the time that disputes had arisen between the king and the parliament, that the latter being at a loss for money, when it had passed an ordinance for the raising a large body of the troops for its service, and for the purpose of enabling them to do so, an ordinance was passed for the payment to the state of a twentieth part of the property of individuals, and towards the enforcing of which the process of distress was authorized. It was farther ordained by the parliament, with respect to the raising of this money, that defaulters, or persons refusing to answer, were to be brought before the house of commons, which should have the power of imprisoning, in such case, at its discretion, those persons, in such places in the kingdom as it should think fit, and to direct, that the families of such persons should have no longer any intercourse with them! From this proceeding, we may clearly infer that no such power as that of consigning offenders to distant places of imprisonment, was held to exist in the court of King's Bench; if such an authority resided in that tribunal, it would hardly be deemed necessary to pass an ordinance. This remarkable measure was afterwards commented upon on the part of the king himself, when it was properly observed, that the power of imprisoning his majesty's subjects in places distant from the scene of their offences, was a latitude of judgment which no court of law could challenge to itself. This, my lords, was the construction put upon this assumed power, in opposition to the parliament, by king Charles himself. Of the illegality of such a practice, I ask, my lords, can there be a stronger authority? The allegation on the part of the king, was, that the sending persons to confinement in distant places, was a latitude or judgment which no court could challenge to itself! This assertion of king Charles is equally clear and comprehensive. In the next reign, the house of commons, by an act passed, seems so clearly to have acknowledged, that no such power as sending persons to places of dis- 590 tant confinement could legally exist, that no mention whatever of such mode of imprisonment was made therein; but, a clause was inserted in the bill to prevent illegal imprisonment in parts beyond the seas. In the 36th of the same reign, viz. in 1684, a clergyman of the name of Rosewell was indicted for preaching a treasonable sermon in the county of Surrey. I knew not what doubts could exist with respect to the place of confinement, as the prison of the court is situated within that very county; but, from this case, it appears, though the Attorney-General of that day, who was known to be a considerable lawyer, that doubts were entertained in that respect, but those doubts were removed by a remarkable assertion of the then clerk of the crown, who said, that the Gate-House might be the prison, as the court then sat in the county of Middlesex: it follows, by necessary inference, that the court could not be justified in sending persons for confinement out of the county in which the courts sat, the words of the clerk of the crown were held to be decisive, as to the point. My lords, I have next to request your attention to an instance which occurred in the reign of James 2. It is the Case of the King against Beale, of which it is stated, that Mr. Attorney-General moved, that the court would order execution against a soldier for an offence which was committed in a distant county, and for which the government judged it expedient that he should be exemplarily punished. A question arose, whether the court of King's Bench had legally the power to do what the Attorney-General moved for? The Lord Chief Justice, in substance, said, that the motion was irregular, as the prisoner was never before the court. In consequence of this, the prisoner was, under a writ of Habeas Corpus, brought before the court; upon which occasion, the case states, that it was laid down, that the thing required could not be done;—that it may be done in Middlesex, by the prerogative of the judges who then sat in that county. From this decision of the court itself, my lords, it inconlestibly appears, that the court of King's Bench cannot order such things out of the county where the offence was committed, or where it is actually silting at the time. The Report to which I refer goes on to say, that it being judged of same importance at the time, to make an example of the soldier in question, the Lord Chief Justice was removed to another court: two of the judges 591 forthwith received their quietus, and the seals filled with judges of a more pliant character. The soldier was again brought up, and his execution ordered by the new Chief-Justice, as desired by the government. Thus, we see, my lords, that the court of King's Bench, even at that time, as legally and regularly constituted, declared, that the act moved for by the King's Attorney-General was contrary to law, in the infliction of such punishments out of the county where the offence was committed, or of that where the court sat for the time. The same court so soon after were composed of judges so very different in point, of character from their immediate predecessors, who, to the loss of their offices, protested against shedding the blood of their fellow subjects contrary to law. Does not this invalidate the legal and constitutional judgment mule by the court in the freedom of decision? That such would be the conduct of the newly formed court was well known to those, who, for the purpose, placed the new judges in their situations. There were several cases of a similar nature in the same retail. But, my lords, the case to which I shall next call your attention, did not occur in such times as those to which I have just adverted; it took place in, perhaps, the best times this country ever knew, I mean, my lords, the reign of king George 1. The case to which I refer is reported in the 6th volume of the State Trials, namely that of Christopher Layer, which occurred in the year 1723. He was tried at the bar of the court of King's Bench, and executed in Middlesex.—This was on the express motion of the Attorney-General, who said there were several precedents for the execution of offenders in counties different from the scene of their offences: the cases of lord Audley, and Fitzpatrick, were mentioned as instances; but, my lords, from what transpired on this well-known Trial, it appeared, that so late as the year 1723, the Attorney-General entertained doubts, Whether the court had, legally, the power of ordering executions any where but where the offences were committed?—These are the only cases of this kind upon which I shall trouble your lordships; but, I am borne out in the principle I have laid down, by authorities in matters of a different kind. In Hale's Pleas of the Crown, 462, a case is referred to of a man who was tried for murder, in the county of Kent;—he was found guilty, and in a note, it is said, the 592 award was for the marshal to do execution, the prisoner having been removed to the custody of the marshal, as the immediate officer of the court. A respectable legal authority tells us, that where judgment of death is given in the court of King's Bench, the execution is to be by the marshal of the court; and by another it is stated, that execution is not to be awarded in a different county, except it be where the court should then sit. My lords, having gone through, or referred to, those different cases, it seems to me, that the conclusion to be drawn is, that in every case where imprisonment has taken place out of the county where the offences have been committed, and in every case where executions have taken place oat of the county—in every one of those cases some excuse is offered, some doubts expressed, and some reasons given, why such punishments should not take place in the counties where the offences had been committed. On a memorable occasion, of no very distant occurrence, when an impeachment was preferred at the bar of your lordships' house, it was well said, that 'innovations in law had crept in like heresies in religion, slowly and silently, leaving, in the end, nothing but the false and corrupt semblance of each!'—In the variety of cases to which I have solicited the attention of your lordships, the legality of the mode of punishment complained of by the Plaintiffs, is either doubted, denied, or controverted; and it is shewn that for ordering that species of imprisonment, the court of Star-Chamber was actually abolished. My lords, I have referred to or laid before you various cases and statutes for your serious consideration as to their tendency and effect. I do not feel it necessary at present to enter into a general line of argument upon them. It is sufficient for me at present to state the general grounds upon which I defend those for whom I have the honour to appear before you. I am the less solicitous about entering into such a line of argument at present, because it will depend upon what falls from the learned counsel, how far I shall have to trouble your lordships in that respect. I understand that it is meant, on the other side, to quote some precedents. On this topic I shall generally refer to the sentiments of a great constitutional lawyer. Upon the well-known occasion of the question of General Warrants, and orders issued by Secretaries of State for the breaking open of chests, in order to search 593 for papers; and, on the action brought by Mr. Wilkes against the under secretary of state, lord Camden, in summing up to the jury, said, that all the precedents since the Revolution afforded no justification for a practice in itself illegal, and against the principles of the constitution!—And in this doctrine, my lords, that great and venerable lawyer was certainly well-founded!—Here we have the authority of lord Camden, and his opinion of the value and effect of official precedents. In the case which subsequently occurred, of the action brought against the king's messengers, for breaking open trunks to search for papers, lord Camden maintained and illustrated the same sound, legal, and constitutional principles; he deprecated the practice of recurring to modem precedent for justification which never could militate against clear and established law; he admitted the authorities founded upon decisions of the twelve judges, but the twelve judges, he said, could not make law! I am not ignorant, my lords, of the cases which may be adduced of modern or recent occurrence to countenance the illegal practices complained of. Among these are the cases of Mr. Redhead Yorke and Mr. Gilbert Wakefield, the one for an offence committed in Yorkshire, and the other for an offence in Middlesex, were confined in distant prisons; that of Mr. Kydd Wake too was of a similar description. It does not follow, my lords, that, because those persons never complained to your lordships, their sentences were not illegal. It was most likely, a lord Camden said upon a particular occasion, that their poverty had prevented their contending against the power of the court. We know, my lords, that it is not every person who has the means of bringing a Writ of Error before the high court of parliament.—Having now gone through the first part of the case, I shall trouble your lordships with a few words on the second part of it: I mean, my lords, that part of the sentence which requires the Plaintiffs to give security for their good behaviour for five years after their respective imprisonments. My objections to this part of the sentence, are on the ground of their being excessive, unusual, and therefore contrary to law; and, viewing the whole of the case of the Plaintiffs, I am rather at a loss to tell why this security is to be given, or what is meant by it. Your lordships will observe that the sentence is for the publication of what is said to be a libel, and a libel upon 594 a court of justice, but the information does not state whether what was advanced be true or false! Is it as a security for good behaviour in every case? Would the security be forfeited by writing a true and faithful account of, and making true and just observations on, the conduct of courts of justice? The information, no one can tell whether it proceeds on the ground of every thing advanced being true, or every thing advanced being false. The parties will necessarily be bewildered if any persons, in such a state of uncertainty, should be bold enough to come forward as their securities. It must be known, or are the parties to give up their newspapers, or never to write a line respecting courts of justice, because if either true or false, they may be come upon for their security, if it cannot be exactly stated what will amount to a forfeiture of the recognizance. I humbly contend that even in this view of the case, this part of the sentence is illegal, unconstitutional, and void.—In another point of view, my lords, this part of the sentence is equally liable to uncertainty and doubt. Suppose that they cannot get the security required, are they to undergo five year imprisonment in addition, and then to be liberated? No such thing; as the sentence stands at present, they may be imprisoned to the end of their lives, and in places far distant from their families, their friends and their connections! Such a Judgment, my lords, is, I contend, unusual, oppressive, contrary to the Bill of Rights, and therefore contrary to law! Before I conclude, I beg leave shortly to recapitulate what I have submitted to your lordships consideration. I have stated the conduct of courts of law in former times, with respect to cases similar to that before us, and the principles which governed that conduct. I have stated a case from which the court of King's Bench doubted, or decided negatively, as lo its own powers with respect to confining persons in distant gaols. I have shewn that upon all occasions there have been some particular grounds or special reasons assigned, for a departure from what was known to be a general principle of law, in those instances where such modes of punishment were awarded by the courts. Even so late as the year 1723, doubts were entertained by the judges and lawyers upon these points; I have shewn the difficulties under which king James the second struggled, in order to carry a sentence into execution according to his wish, so much that he was 595 obliged to displace the judges of the court, and appoint new ones, creatures of his own! In the reign of king Charles the first, that prince himself protested against the arbitrary and unconstitutional power assumed by parliament in punishing his subjects in the way now complained of. Such my lords, were the ideas which so long prevailed in the country upon these points; such was the conduct of the judges, even in the reigns of the Stuarts, when, if it was found impossible to give such a mortal stab to the liberties of the people, I am sure that under the influence of that family which came to restore and to secure to us those blessings of which the Stuarts in vain attempted to rob us; under the reign of the monarch who now adorns the throne, whom this house and the country look up to as their last and best guidance and support; that upon all such occasions this high and honourable court will oppose the assumption of a power contrary to law, and hostile to the best principles of the constitution.