much the rather then ought he to extend the same anxious reserve and caution to a case like the present, where the interests of the whole people of this land are in question; where he has not merely to decide upon a right of property, but where FREEDOM AND REPUTATION are to be asserted and defended; where men are to be res of this, than that the noble viscount, so celebrated for his mildness of character, after having been pampered with the sus pension of the Habeas Corpus, the bill of indemnity, and the Alien act, would not now condescend to hear the counsel of petitioners whose rights and property were sacrificed to an ex-post facto law. The House then divided on the ques-cued from oppression and ignominy, and tion, whether counsel should be heard or not, when the numbers were: Contents, 12; Not Contents, 22. LORD ERSKINE'S BILL TO PREVENT ARRESTS ON CHARGE OF LIBEL BEFORE INDICTMENT FOUND.] On the order of the day for the second reading of his Bill to prevent Arrests by Justices of the Peace on Charge of Libel before Indictment found," Lord Erskine rose and said: My lords; I cannot help prefacing what I have to say to your lordships on this important subject, by adverting to what fell from my noble and learned friend on the woolsack when I moved the first reading of this bill. He agreed with me. on the propriety of postponing all discussion until the second reading; yet in a single word disposed at once of the main question, by asserting that there was no such doubt upon the law as the preamble recited, although it was the principal foundation of the enacting part-My noble and learned friend, with great good nature and pleasantry, frequently adverts to his supposed propensity to doubting; and I can account for that propensity more distinctly than it would be decent for him in speaking of himself. No man, I believe, who has sat in the court where he presides, ever brought to the public service a more consummate knowledge of all its principles and practice-By nature a man of talents, from education a scholar, and bred from his very youth in the study and experience of all its possible transactions, nobody could be better qualified to decide in that forum with the same rapidity as he did the other day here on the subject now before us-yet how often does he there pause, and re-pause, consider, and reconsider and why? From the justest and most amiable of all motives-He even runs the risk of sometimes appearing undecided and dilatory, rather than mistake the rights of the meanest individuals, in the most inconsiderable concerns, whose interests are in his hands-How from a severer punishment upon the bare suggestion of an almost undefinable defence than in most cases would follow after conviction and judgment-My noble and learned friend ought besides to have recollected that he does not, though in this numerous assembly, pronounce only a single judgment; he must know the weight it must have with others; and we are but too apt, after having delivered an opinion, rather to combat in its support, than to open the mind to impartial considerationyet I ought not to be afraid of this. My noble and learned friend can surely well afford to say he was mistaken,-it would not at all affect his reputation for learning, but would, on the contrary, exalt it. There shoots across my mind at this moment a striking instance of this candour in lord Mansfield, which I have long treasured up in my memory, having a strong interest to remember it, because it was useful to me in the beginning of my professional life. Having been engaged in a cause where that great Chief Justice had strongly supported the case of my client, the jury found a corresponding verdict; but a rule having been obtained to set it aside for the Judge's misdirection, I had to support his opinion in the court of King's-bench. When I had finished my argument, he said-I fear, with more indulgence than truth,-"This case has been remarkably well argued; so well, indeed, that whilst the learned counsel was supporting my direction, I began to think I had been in the right, whereas I never was more mistaken in my life; I totally misunderstood the case and misdirected the jury-So there must be a new trial and without costs."-Did this lower lord Mansfield? So far from it, that, having persuaded myself his first opinion was the best, I could not help saying at the time, that if I had not been convinced of his integrity, I should have thought he was practising a fraud to advance his reputation. It was, indeed, a justice to truth which weak men are afraid of making, and, therefore, it is so seldom made. mon law, my noble friend was most correct in saying that the common law must be found either in the decisions of courts, which are the highest evidence of it, or in the writings of eminent judges and lawyers, whose works are held to be authority; or in universal practice, which must be admitted, in some cases, to be another evidence of the law. These are the only sources from whence this jurisdiction can be derived; because the commission of the justices not only does not support it, but will be found as we proceed, to be a strong presumption against its existence. My lords, in discussing the matters now before you for consideration, I can offer nothing new to your lordships. It is my intention only to recall what was so convincingly stated to the House by my noble friend who sits behind me, in the last session. I had not then considered the subject, and was not sure but that I might be subject to an undue influence from the extraordinary ability and eloquence of the argument, and from the wish that my noble friend might be found to be in the right; but when I had maturely considered the authorities he cited, I was more and more convinced that they were conclusive, and gave notice of this bill which it is now my purpose to support. First, then, as to the common law, which being the great fountain of all our liberties we ought to be abundantly cautious how we suffer it to be adulterated. I have always had a feverish jealousy upon this subject, and a great horror of that kind of law commencing in acknowledged usurpation, but growing up at last into such practice, by incautious decisions, and negligence in parliamentary revision, as to make it dangerous to root it out without the direct authority of a statute-This is There are two points for decision quite distinct and independent; first, whether as the law stands at present, justices of the peace have jurisdiction to commit and hold to bail on the charge of a libel, before indictment found. And, secondly, whether supposing that jurisdiction exists, it should be suffered by parliament to continue; and as on both these points Ia subject well worthy of consideration, am most anxious to obtain a favourable hearing, I wish to remove in the outset any prejudice that may stand in the way of it. Perhaps, then, it may be supposed by some, that, by the law I am now proposing, I seek to give facility and protection to those who make a trade of defaming the government of the country; but I pledge myself to show you that the passing it will have quite a contrary effect-a circumstance which, even of itself, independently of the protection of innocence, is a powerful recommendation; as I consider, and always have considered, a systematic defamation of public measures and public men as a very great calamity. Libels of that description must always more or less exist in a free country, but they can only be kept under and rendered odious by the determined support in parliament of the acknowledged principles of the constitution, and by a liberal, and manly confidence in the good sense and affections of the people. With regard to the first question, viz. the jurisdiction of justices to commit, and hold to bail on the charge of a libel before indictment found, it can of course be only supported by force of the common law, or by express statute; and in examining whether it exists under the com * Earl Grey. See Vol. 36, p. 445. and a reason for putting into some more established course of activity our committees of Courts of Justice, but particularly in the House of Lords, the supreme court of justice; because this evil of usurpation has not only corrupted the common law in many instances, but the written statutes of the kingdom-common law can only be known from customs and decisions establishing them; but the written law should always speak for itself. When open to two constructions the courts must indeed decide, but when open to one only the statute is then a solemn record of the law which ought always to be conclusive authority in the teeth of any number of decisions which may oppose it - What greater proof, my lords, need be looked for of this tremendous evil than the present state of the laws for the support of the poor in this part of the island? In the excellent report of the committee of the House of Commons, (drawn up, I believe, by Mr. Sturges Bourne, which entitles him to the thanks of the whole public), it is stated to be the opinion of that committee (and in which they are perfectly well founded), that parliament never intended to depart from the principle of the statute of Elizabeth for the relief of the impotent poor; yet now, from the entanglement of conflicting and repugnant decisions, without any fault in the superior courts, the coun try is overrun with sturdy, and able bodied beggars, claiming as a right what even national charity never warranted nor ought to warrant, and 8 millions per annum are thus levied upon the people, not half of which is authorized by any law whatsoever, whilst the condition of the poor themselves has been made worse instead of better by it, and the morals of the people destroyed. In this manner has " Magna Charta," and more than twenty following statutes de tallagio non concedendo been trampled upon and set at nought. whom the common law knew nothing, and who could not assume that there was any statute to give it countenance. This is surely matter deserving the most serious consideration of parliament. At the same time, and for the reasons given by my noble friend in the last session, I am not desirous now to strike at this authority, confined in general to repel dangerous insults to the government in troublous times, and entrusted only to statesmen in the very center of the best legal assistance, responsible besides in their high stations and characters for the faithful discharge of their duties. We ought surely to reflect, my lords, from all this, how very important it becomes us in searching for what is law, to look back as far as we can to the most ancient sources, and of the highest authority, and to be extremely cautious what we accept of as the law in departure from them. To bring home this evil of usurpation to the very subject before us, even to the highest courts in other times, whose decisions are, however, binding upon us now, let us hear what was said by lord Camden in the case of Entick and Carrington,* well styled by my noble friend an immortal judgment, when the authority of the secretary of state, which is now not disputed, was confirmed as the law: "I am satisfied," | said this great judge," that the secretary My noble friend was, therefore, most of state hath assumed this power as a correct, after showing that the power in transfer, I know not how, of the royal au- question was not within either the letter thority to himself; and that the Common Law or spirit of the commission to the justices, of England knows no such magistrate. At to begin as he did with the 4th Institute the same time I declare, wherein my bro- of lord Coke. It will not, I presume, be thers do all agree with me, that we are contended, that before the time of this bound to adhere to the determination of eminent judge and lawyer, there was any the Court in the cases of the queen against practice of arrests in cases of libel, before Derby, and the queen against Earbury, indictment found; nor a decision of any and that I have no right to overturn court by which such a jurisdiction can be those decisions, even though it should be supported, nor any opinion or dictum to admitted that the practice which has that effect of any earlier writers of authosubsisted since the Revolution had been rity, much less of such authority as lord erroneous in its commencement." Now, Coke himself; and your lordships must my lords, as lord Camden also declared also take notice, that in referring to the that every lawyer would say that a prac- 4th Institute, my noble friend did not tice since the Revolution could not in it- begin his unanswerable argument with self establish the law, what was it that the authority of lord Coke, however bound this great magistrate and the rest established, but laid the foundation of of the court of Common Pleas to support it upon a decision, in which he refers this jurisdiction of the secretary of state. to the time of Henry the 8th, to which -Neither more nor less fettered them he only gives his own confirmation as but those two cases of Derby and Earbury, follows: [4th Institute p. 177-8.] which they could not overturn; but what" But for the justices of the peace to then had those judges to bind them who make warrant, upon surmises, for breaking were the authors of those two decisions? the houses of any subjects, to search for What, I repeat, bound them to sanction felons or stolen goods, is against Magna such a jurisdiction? They could not Charta: Nec super cum ibimus nec have had the same practice to support super cum mittemus nisi per legale jutheir judgments, nor any former cases to dicium parium suorum, vel per legem fetter them, and must therefore have taken terræ ;' and against the statute of the upon themselves, of their own authority, to 42nd Edward 3rd, &c.: and we hold the bestow thisjurisdiction uponamagistrate, of resolution of the court, viz. of Brudenell, Pollard, Broke, and Fitzherbert, in 14 Henry 8th, to be law, that a justice of peace could not make a warrant to take a See the case of Seizure of Papers Howell's State Trials, Vol. 19, p. 1058. man for felony, unless he be indicted thereof, and that must be done in open session of the peace." had altered the law in that particular re- My lords, I have looked at this case in the Year Book, Hil. Term, 14th of Henry 8th, fo. 16, pl. 3, and find from it, "that in an action of false imprisonment, the defendant pleaded in justification, that a certain justice of the peace directed a warrant to him, to take and arrest the plaintiff,"-(not for a libel, but for felony),-" by force of which he arrested him." It farther appears, that an objection was first taken to this plea on collateral grounds, not material to be stated, because one of the judges (Fitzherbert), said afterwards, "The plea is not good for another cause; for a justice of the peace cannot issue a warrant to apprehend for a felony, UNLESS THE PARTY BE FIRST INDICTED; and then Brudenell came into court and asked what this case was, and it appeared to him that a justice of the peace ought not to issue such a warrant for felony, but he might issue his warrant FOR THE PRESERVATION OF THE PEACE; but yet the bailiff who executed the warrant cannot be punished, &c. &c." And after the Court were engaged on the consideration of circumstances attending that part of the case, the report goes on to state," that it made no difference in the Proceeding chronologically, the author opinion of the Court, whether it was his who follows next, in point of time, is lord own bailiff or another, because he was chief justice Hale; and if this eminent a judge of record," and then adds,-I writer had, in his Pleas of the Crown, exread the very words," And on this day pressed his surprise that lord Coke should Fitzherbert said nothing to the contrary have thus questioned the power of justices of that, as he had done the day before; to arrest even in felony before indictment, for on the preceding day his opinion was, when it was clear they might hold to bail that inasmuch as the warrant was beyond in all cases where they had jurisdiction at the jurisdiction of the justice himself, (AS sessions; and if he had found decisions and IT WAS ADMITTED BY ALL), the warrant universal practice, or even universal pracwas therefore void." Now, my lords, tice alone supporting this doctrine-I here we have an unanimous judgment of should have been unable to contend against the whole Court, in the 14th of Henry the such united evidence of the law; but if 8th, that there was at that period no juris-lord Hale had held any such opinion, how diction in justices of the peace to arrest even for felony, before indictment found, and which judgment, we find by the 4th Institute, had the full concurrence and decided approbation of lord Coke, at the distance of ninety years ;-unless, therefore, it can be shown, either that this judgment was against former authorities, or that other decisions had altered the law, before lord Coke's time, I cannot consent to the impeachment of his authority by that of any subsequent writers whatsoever.-Such writers may be justified in speaking of the practice which easy would it have been, even in a single sentence, to have expressed it, instead of using the language which I shall now bring before you in his own words: "Justices of the peace may also issue their warrants, within the precincts of their commission, for apprehending persons charged with crimes within the cognizance of the sessions of the peace, and bind them over to appear at the sessions, and this though the party be not yet indicted: and therefore the opinion of my lord Coke is TOO STRAIT-LACED in THIS CASE; and, if it should be received, would ob struct the peace and good order of the kingdom." Hale P. C. Vol. 2, p. 108. In what case, my lords-in felony only -for lord Coke was writing of felony, as Hale himself was; and if Hale had thought (as I have this moment observed to you), that a single magistrate might arrest before indictment in all cases within the jurisdiction of the sessions, he would not surely have said that lord Coke was "too straitlaced in that particular case," but that he was totally mistaken throughout. confined the power of justices to commit felons before indictment, and that a justice of the peace might make a warrant as well in felony as of the peace.But what the same great author goes on to say, in only three pages forward, puts it wholly and absolutely out of the question that he meant by the passage in page 108, to maintain the power of arresting before indictment in all cases, though not of the PEACE, if within the cognizance of sessions; because in page 112, he says, "but whether, generally, a justice of peace,' out of sessions, can issue a warrant to apprehend persons offending against a penal law, though within their cognizance, and to bind them over to sessions, or, in default thereof, to commit them, and this before indictment found, seems doubtful." But the obvious construction which I have put upon this passage, derives force from the rest of lord Hale's writings on the same subject; because in the same book, and even in the page that follows[p. 109], he says, "a justice of peace hath the power to issue a warrant to apprehend a person accused of felony, though Now surely, my lords, it is neither fair, not yet indicted." It is clear, if a FELONY | nor decent, in construing the works of so were committed or suspected, a man may truly great a man as lord Hale, to assert be arrested by the party that knows, or that he intended, in page 108, to support upon probable grounds suspects him as a power of arrest before indictment by the felon, or by a constable upon com- justices in all cases within the jurisdiction plaint, or hate and cry-let a man look of sessions, when in three pages afterwards, upon all the acts of parliament that have we find him declaring it to be doubtful.been down to this day, he shall find, that A great name may certainly go a great the power of justices of peace to convene and way to hide by its lustre a stupid and palcommit FELONS before indictment is al- pable blunder; but such an inconsistency lowed. Yea, or for suspicion of felony; in Hawkins, or in any such writers who so that the imprisonment before indict- followed him, would involve them, as ment is surely lawful, and not within the authors, in compleat ridicule and disgrace. restraint of Magna Charta; and, if so, But I cannot possibly impute such inconthen surely the arrest is much more law-sistency to lord Hale.-No man, my lords, ful."-" He may also issue a warrant on suspicion of felony, though the original suspicion be not in himself."-" A justice of peace may make a warrant as well in case of felony as of the PEACE, to bring the party before himself,"-" or before any of his majesty's justices of peace,"-" or before himself and any of his majesty's Justices of peace." Now it appears to me, my lords, to be quite impossible that lord Hale should be thus labouring to question, lord Coke's opinion, that an arrest even for felony before indictment was contrary to Magna Charta, if he could have maintained that such arrests were justified by either decision or practice, in all cases within the cog nizance of the sessions; and if he had intended to convey such opinion by what he had before written in page 108 (as I have read it to you), why did he, in the very page after it, narrow and qualify the proposition he had before laid down universally, by speaking only of felony, and by saying, that all acts of parliament (VOL. XXXVIII.) who only kept himself awake when he was writing upon any subject, could first lay down a universal proposition as truth, and then, after qualifying and narrowing it by expressions inconsistent with it, conclude by saying it was doubtful-and not merely doubtful-for lord Hale follows up this declaration by an almost unanswerable reason against it: "These things seem to make against it; first, because. some acts of parliament do particularly and expressly authorize them to it, which they would not have done if it had been otherwise lawful." Certainly not, my lords. Who can differ from lord Hale?-Such conduct in parliament would be destructive of all clearness and certainty in the law; and lord Hale's high authority in this very case is most strikingly illustrated by the act of the 48th of the king, chap. 58-which gave to the judges of the court of King's Bench, and to none but them, the power of arresting for a libel, not upon the information of any private man, but upon that of (4 A) |