Lords Sitting of 18 May 1809

WRIT OF ERROR IN THE CASE OF WHITE AND HAHT.
Their lordships met at two o'clock, and most of the Judges attended.
The Solicitor General(Sir Thomas Plomer), spoke for about two hours in defence of the right of the court of King's Bench to pronounce such a sentence as it had done in the case of White and Hart, the editor and printer of the weekly newspaper called the "Independent Whig," who had been convicted of a libel on that court in the administration of justice. He contended that there was no foundation for the theory laid down by the learned gentleman (Mr. Clifford) on the other side, on Tuesday last, when he attempted to maintain that the court of King's Bench had no right to execute its sentence except in a gaol of the county wherein the offence was committed, a gaol in a county where the court actually sat, or their own peculiar gaol. He reviewed the historical part of that learned gentleman's speech, and examined his arguments as drawn from the instances of distant imprisonment in virtue of sentences passed by the court of Star Chamber. He controverted the statement that the court of Star Chamber owed its abolition in any principal degree to such punishments. The punishment which gave offence to parliament of this nature, was not one that sentenced to distant prisons (as they were called) in England, but, in the cases of Prynne, Bastwick, and others, who were sent to the islands of Jersey, Guernsey, and Scilly. It was not correct in historical fact, to say, that the abolition of the jurisdiction of that court was owing

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to such causes. There were other and weightier causes assigned for that measure. It was in point of fact, not the sentences passed, bat the whole proceedings of that court previous to the passing of such sentences, that alarmed the fears, awakened the jealousies, and procured the votes of parliament which effected its abolition. In support of his observations, he referred to lord Clarendon. He noticed some expressions which had fallen from the learned gentleman, respecting words used by Bastwick when undergoing his sentence in Palace-yard, and desired to know by what modern lights it was discovered that the sayings of a man in Palace-yard, addressed to the mob, were to be introduced by lawyers, or received in a grave and learned assembly as matter of illustration, reference, or precedent. He observed that the cases in which the learned gentleman attempted to make out any thing in his support were all anterior to the Revolution. That learned gentleman, he contended, was, from various instances, of which he cited several from which he endeavoured to shew the weakness of his arguments, erroneous in his notions respecting the right of the court of King's Bench, even previous to the era of the Revolution. There was much said about good times and bad times; but he should like to know into what political dictionary he was to look for a definition of which were the good times, and which were the bad times. There was always enough of that sort of argument to be met with whenever legal precedents were resorted to, whatever be the nature and necessity of the case. Coming down, however, to the period of the Revolution, he believed it would be obvious that in these best times, the mode of punishment now asserted to be illegal, was most frequently practised, and yet no doubts had then been raised as to its propriety and its legality. The learned solicitor then asserted that in the times of seven chief justices and twenty-two judges, he had not less than twenty-one cases in point to offer to the notice of their lordships. Beginning with lord chief justice. Holt, he continued with other instances from lord chief justice Parker, lord chief justice Mansfield, lord chief justice Kenyon, &c. up to the present time, during all which course so many excellent constitutional puisne judges had also sat on the bench in that high criminal court; in all which cases judgment had been given and executed wrongfully and illegally, if the judgment
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in the present case were to be deemed illegal. He dwelt particularly on several individual cases, especially one in which a man was found guilty of perjury before a committee of the house of commons on the Hindon election, and was sent to Hindon to be set upon the pillory in that place, where his example was likely to produce the most beneficial effects; and another, in which for a crime committed in Wales, the convicted person suffered at Kennington, in Surrey. He mentioned another case of a distant crime, for which the execution took place at St. Thomas Watering, Kent, and an old instance of a man sent to Portsmouth to be executed for desertion or cowardice, because that was the place where the execution of that sentence would probably be most exemplary and beneficial. He recited all the cases mentioned on Tuesday by Mr. Attorney General, and contended for the strict applicability of the more recent instances. But it was not merely on the cases he had cited, but on the general principles of the question that it ought to be decided. The court of King's Bench was the chief criminal court in the kingdom. It was so described by all the ancient, as well as modern lawyers of repute. It was so called by Coke, who stated its antiquity and its power. It had a great part of the ancient Justiciarum Angliæ. Its jurisdiction was called capitanus and generalis, to shew its universality and general superintendence. Hawkins, in his Pleas of the Crown (one of the best writers and authorities) had fully stated its extensive powers. It could, he contended, be restricted by none of those restrictions which confined the powers of inferior county courts. And were the decisions of the judges of such a court to be treated like the practices of the office of a secretary of state, and such arguments supported merely by what lord Camden had said of the usage of such offices; usage that had never before been made the subject of a solemn decision in a court of law, or by any arguments against the exploded practice of the exploded court of Star Chamber? In the many recent instances of imprisonment in distant gaols, was it to be believed, that the poverty of the individuals was the reason that prevented them from trying the merits of the practice of the judges? Had they not always sufficient legal assistance? Was there not a learned lord then at that bar of which he was the great ornament, who had so often exerted the greatest ele-

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quence the bar ever knew in defence of such individuals, and who left nothing undone that zeal and talents could effect? And would he have left a stone unturned on behalf of his clients, if he had conceived the possibility of attacking the legality of the sentences pronounced upon them? With respect to the demand of securities for good behaviour, the practice was old, and used in the best times. It was absurd to talk of its operating as a perpetual imprisonment. The prolongation of imprisonment would depend on the bad character of the individual, whose friends could not trust to his good behaviour, even after the experience that had been taught him by his confinement. As to the difficulty of understanding what was meant by good behaviour, he could not enter fully enough into the motives, views, and dispositions of certain persons to understand their difficulties on that subject. Good behaviour was what they might not easily understand, and cared little to learn. But they might easily enough learn it. There was a chapter in an elementary work, (sir William Blackstone's) that would explain to them what was necessary to know on that subject. All the instances he had noticed were viewed by the other side as too recent. They must go up to higher antiquity, they must mount up to the conquest or beyond that period. Every thing he and his learned friend had to offer was too young for the modern school, they would begin ab ovo. The learned gentleman must know that they could not investigate accurately the nature of the sentence. The whole object of this appeal was to depreciate the character of our courts. "Humanitas," for that was the name signed to a libellous letter in the "Independent Whig," had considered the popular notion concerning the administration of our laws by juries as too exalted. These lovers of freedom, in their new discoveries, attacked the institutions best calculated to preserve it. The object was only to raise a ferment in men's minds, to throw discredit upon the judges of the land, and to take from our wisest establishments that public respect in which they had been held, and which they so much deserved. But the decision of our chief courts of justice, and not the speech of a man to a mob in Palace-yard, would influence that decree which their lordships, he trusted, would then, in their wisdom, give. After a number of other remarks, the hon. gent, concluded.
Mr. Cliffordbegan his reply by animadverting on the conduct of the Attorney and Solicitor General, in the bad motives they had presumed, so liberally but so unjustly, to impute to those who had advised, or were concerned in bringing before their lordships the present appeal. He solemnly denied that it was done with any intention to depreciate the character of the judges of the court of King's Bench, at which bar he himself practised, and where the present judges, he was sure, if they had done any thing in the exercise of their judicial functions which was founded on a mistake, would be quite as willing to rectify that mistake, on being shewn the error, as any that had preceded them on that bench. He was confident that so far from this measure being considered as bearing the character attributed to it, it must be seen as one which gave the best and fairest opportunity for bringing this great question to an issue, by appealing to their lordships en dernier ressort. Nothing more was attempted to be done but what the law of the land authorised, and what the cases of the individuals required. While he should forbear from following the Attorney-General and the Solicitor-General in the field of declamation and invective into which they had wandered, he must express in some degree, his gratitude to them for the greater part of the speeches they had delivered. They put him in mind of a fable which was lately quoted by a person of eminent abilities and character, in noticing the speech of a learned gentleman in some other place; it was the fable of the ass, who went into a field attracted by a thistle, but who went round and round about the thistle, fearful of touching it. The learned gentlemen, in like manner, went about and about it, but were extremely shy of touching on the principle of the question then before their lordships. He begged to re-state to their lordships, that the constitutional and legal principle he laid down with respect to the power of the court of King's Bench, was this: that they had no right to send persons into imprisonment, in execution of a sentence pronounced by that court, except to the jail of the county where the offence was committed, the jail of the county where that court sat, or their own jail. He maintained that no case had been cited to destroy the truth of his positions. The exceptions were not such as could furnish a rule.

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Hardly a case could they bring to bear on the subject that had not occurred since the Revolution, and he contended that if it was not legal to do so previous to that event, that event could not possibly make it legal. He had been told to produce an enactment to make it illegal; but he asserted that the liberties of the subject depended not upon enactments. Enactments ought to be produced to him to shew him and their lordships that the practice had been rendered legal. This was the true principle of the constitution on such subjects. What he had said of the case of Bastwick had been observed upon with a triumphant sneer, as a foolish saying addressed to the people, who are styled by the learned gentleman the mob. But he had seen quoted the expression of an individual suffering a punishment as a precedent on a legal opinion. He had only quoted it as an illustration of what was the general feeling at that time, for it was scarcely in human nature that Bastwick should have used the expressions he did, had they been founded in falsehood, since his hearers must have very well known whether the practice was a new one or an old custom. Bastwick, in the spirit of those times, while he complained of the practice of sending persons to distant jails, attributed the origin of the practice to the Jesuits. As to the opinion of lord Clarendon, it should be recollected, that the fourth article of impeachment against that nobleman, stated this as one of his offences; and his lordship, long afterwards, in noticing this circumstance, states, that he thought it a hard case for him to be charged and tried for an offence which he had only been guilty of, in common with others of the privy council. This was that noble lord's excuse. Reverting to the case of the abolition of the Star Chamber, which was said by the learned gentlemen to have been occasioned by an objection to their proceedings, and not to their sentences, he shewed by a quotation from the parliamentary resolution, that the sentences, as well as the proceedings, formed the grounds of the abolition of that oppressive court. The authority he had quoted from lord Camden had been sneered at, the memory of that learned and venerable lord depreciated, and the hallowed precincts of the tomb violated by viperous slander. It was asked, What! would lord Camden have spoken of the decisions
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of the court of King's Bench, as he did of the usage of the Secretary of State's office? No! but the house of lords were then in the same situation relative to that court, as lord Camden, when a judge, was to the Secretary of State's office! With respect to the Hindon election, he stated a question that arose, respecting the payment of the expences, which the sheriff refused, and the court of King's Bench could not compel him to make them good. He wished the learned gentlemen to look into the general principles of our laws more accurately, they would see reasons for his view of the nature of county jails, and the authority of courts. These jails were the county jails; they were built, repaired, and maintained at their own expence. They were obliged to keep the prisoners, they were liable to fines for offences committed within their county limits, which it was presumed they ought to have prevented. All the jails were the king jails, it was perfectly true, and so were all the courts of justice, but yet this was so, for the purposes of public benefit and public protection, and was limited by a variety of restrictions, conditions, and limitations. All the high roads, in the same way, were the king's roads, (though much of these might be private property;) but they were the king's, for the convenience and protection of his subjects in passing from place to place. The cases of imprisonment or execution in the city of London, pursuant to sentences passed in Westminster, presented no difficulty, since in fact the sheriffs of London were sheriffs of Middlesex, and the prison of Newgate was the prison of both. The learned gentleman went through a wide field of argument and illustration in support of the principles which he had asserted. He shewed the hardships of the practice of requiring sureties for a length of time after the expiration of imprisonment. He quoted the declaration of the Bill of Rights against excessive bail, and unusual and cruel punishments, and concluded after a variety of other observations, a very argumentative and ingenious speech by protesting against the imputation of evil designs in this case, and deprecating such insinuations against the people of this country.
The Counsel having left the bar, the Lord Chancellor rose, and briefly stated that he had no doubt on his mind re-

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specting this question. Important as it was, it was not attended with much difficulty. It was his intention to move a question to be put to the learned Judges upon the subject. His lordship then moved, That a question be referred to the Judges for their opinion, Whether the court of King's Bench could send any person convicted in their court at Westminster to any jail in England?
Earl Stanhopesaid, that having been unfortunately and unavoidably absent, and consequently not having heard the counsel who stated the case of the plaintiffs to the house, nor the answer of the Attorney-General, he should not give a vote on the present occasion; but still there was a certain principle to which the house should conform, and it should proceed with the utmost regularity and deliberation to the decision of the point at issue before them, and particularly as to the severity of the punishment. He had always understood that it was a fundamental principle of the law of England that the parties were precisely on a level, that the scales of justice should be kept even, and that no improper questioning or application of motives should be tolerated in the counsel on either side.—The learned counsel for the prosecution had not charged the counsel for the crown with any improper motives; but on the other hand he must say, that the counsel for the crown, one of whom he personally and highly respected, as a most diligent and able man in his profession, (Mr. Solicitor General,) had no right, at the bar of the house of lords, to impute improper motives to a counsel who came to perform his professional duty. The present was not a charge of cruelty, it was a charge of error! and, according to an act of parliament passed in the first year of William and Mary, the Bill of Rights—it was, at least, an erroneous judgment. The 10th article of that important statute says, that excessive bail shall not be required; nor excessive fines imposed, nor cruel and unusual punishments inflicted! And would the Solicitor General say, that a thing done contrary to the prescriptions of this statute was not error, at the least. He did not mean to argue or to give an opinion upon the particular case before the house, but he thought before it decided it should have been better informed as to the precedents referred to in support of the arguments advanced at the bar, and that
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the house ought to have laid before it an account of the different judgments which, had been given, touching the case, down to a certain period. With respect to the nature of the security required in such a case as the present, he could not help contrasting it with that of the persons who were some time since convicted of attempting to blow up the King's Bench Prison, they were sentenced; as the present parties before them, to three years imprisonment. But what was the security required of them for their good behaviour after the expiration of their imprisonment—of persons convicted of an offence in which the commission of deliberate murder must be contemplated? None; not to the amount of one shilling! In a conviction of perjury, no later than November last; an offence so injurious to the well-being of the community, what was the sentence of the court? It was, that the offender be fined one shilling, imprisoned for three months, and farther until the said fine should be paid! Their lordships should bear in mind, in deciding on the case, that there was a scale of punishments, and take care, as far as in them lay, to render the punishment commensurate to the offence.
The Lord Chancellorobserved that the crime, as it appeared on the face of the matter on which those two prisoners were convicted, was one of the most dangerous description. He referred to several instances of punishments early after the Revolution, for libels, and shewed that punishments in such cases of latter times were, comparatively speaking, far from being severe. His lordship, after some farther observation, amended the question to the following effect: "That it be referred to the judges to know their opinion Whether the court of King's Bench, in the case of the conviction of a person at Westminster, could legally send such person to any prison in England, other than the prison belonging to the court, the county prison where the offence was committed, or that where the court held its sittings? And also to know whether sureties for a reasonable time, for the good behaviour of such person, could be legally required?"
On the question being handed to the Judges, their Opinion was delivered to the house by sir James Mansfield, lord chief justice of the Common Pleas. His lordship began by observing, that it was now fifty years since he had been mode a

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member of the profession of the law, and he had never during all that time doubted or heard a doubt started of the right of the court of King's Bench now called in question. Many cases had been cited which it was not his intention, or that of his brothers, to enter into. A sufficient number of instances both in ancient and in modern times, had been shown to prove the practice. The removal of persons from their friends by imprisonment was often unavoidable, and might occur in either of the cases specified. The judges had no doubt whatever upon the authority of the court to send persons to prisons in England, other than those specified in the question referred to them. As to the second point they were equally of opinion unanimously, that the court possessed authority legally to require such sureties for a reasonable time.
Lord Erskinecould not act so unmanly a part as to avoid giving his opinion. He considered the appeal by writ of error as a grand proof of the excellence of our constitution, which in so many ways provided checks upon the constituted authorities of the land. The case of libel law had been brought as near perfection, as was perhaps, possible: though, in earlier life, he did not think that the practice of the courts was right and legal in some points, yet he lived to see it remedied. He could not pretend to enter into the merits of the particular case of punishment, as that was not before him, though he must say that it was a strange thing to be forward in condemning an acquitting jury. He had not been so long in the profession as the venerable judge who had just delivered the opinion of the Bench; but he had never entertained a doubt of the power of the court of King's Bench upon this point. Had he even done so, he should most certainly have availed himself of many opportunities in his professional practice, for the sake of those clients who had put themselves under his protection, to bring the question to a solemn discussion.
After a few words from the Lord Cancellor, his lordship put the question, and the Judgment of the Court of King's Bench was unanimously affirmed.