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London, England, 1824-02-14 00:00:00

for a fine imposed upon him by a Commission of Gaol Delivery.
He confessed he Mt sonic embarrassment in proceeding with the
argument, as he was aware that it might be urged against him that
the petitioner, while the case was in the Court of Lxchequer, had
taken no stet.* to put any objection to the fine on the record. The
petitioner had been deceived by misinformation ; fur there could be
no doubt that he would have been permitted to have recorded his
objection in the Court of Exchequer. This appeal, however, placed
the Duchy Court in the same situation as the Court of Exchequer,
if the petitioner had pleaded in that Court. The fine having been
imposed at a Communion of Gaol Delivery, was returned into the
Exchequer, and having been there recorded, was transmitted to
this Court, from whence process had issued to levy execution for the
fine.
Mr. Justice BAYLEY—The King must have applied to the
Court before the process was issued.
Mr. SCARLETT contended that the petitioner had a right to ays
pear before this Court, because the execution under which his
goods were taken was not issued by the Court of Exchequer, but
from this Court. The execution stated the subject matter on
which the question arose. It recited the particular grounds on
which the fine was imposed, and therefore the Court was in full
possession of the whole case. The process directed the Sheriff of
Middlesex to levy the fine of 5001. "on the goods and chattels of
Inr.ell Clement, of the Strand, for unlawfully and con-
temptuously printing and publishing, in the newspaper called the
Msercrr, the trials of Arthur Thistlewood and James lags, pend-
ing the trials of John Thomas Brunt and others included in the
same indictment, for the same high-treason, contrary to the orders
of the Court and to the obstruction of public justice, of which he
is convicted." Now, the objection to the process arose on the very
face of the order, and it was undoubtedly competent to every Court
out of which &process was issued to set it aside, if any defect or ille-
gality were *hewn upon the very face of it. (In the same pound
also any individual might maintain an action against the Sheriff
if he contended that the Court from which the execution was issued
had no jurisdiction, or was not warranted to proceed in that course
upon that particular occasion. The petitioner had his choice of
these proceedings, and lie had preferred to come before the Court,
and move that the process should be set aside, on the ground that it
hail been improvidently issued, and that it was on the face of it ir-
regular and illegal. 'there could be no doubt, he apprehended, as
to the power of the Court to entertain a motion of mamma vies,,,
ice the Court of Exchequer. He took it for granted that nothing
could be more clear, than that where process was wrongfully issued
by any Court, it was competent to grant a writ of ettooreas moans :
and that fur that purpose, the party against whom the process was
issued was entitled to go into the merits of the case, to shew the
grounds on which he moved foe the superseding of the process,
Assuming that this position was unquestionable, he would at
once proceed to open the general question in this cue. This
was a .me imposed for a contempt, without the intervention of any
form of trial, or process of adjudication or any constitutional mode
of procedure by which the defendant could be heard in his de-
fence; and he (Mr. Scarlet) was sure that he might say in that
Court, and before the learned persona lie was then addressing, that
the first disposition ererry Judge would feel on the statement of the
case, would be a disposition hostile to the proceeding. Cues, in
which the sulijects of a free country were liable to summary pro-
cess. either of tine or imprisonment without trial, were eases of ex-
reption, and not according to the general law of the land; and,
therefore, the oohs probandi was cast on the shoulders of those who
supporta! these cases of exception. It was for them to prove that
these cases of exception had some foundation iii the known and
recognised law of the land, and that there was either some statute
or inveterate usage that clear y justified a resort to these harsh and
extraordinary measures. Nay, even if an inveterate usage could
be shown, yet if it were founded on an unjust assumption or ex.
ercise of power—if it were not analogous to the spirit of the Con-
stitution—if it militated against the Statutes passed to protect and
secure the liberty of the subject, the onus pruboadi would still rest
on the shoulders of those who supported these cams of exception.
It was well known that many usages, now justly abolished, were
at one time generally, and it was therefore considered legally prac-
tised. lle alluded particularly to the custom of fining jurors,
when they would not give such verdicts as the Court directed them
to return and of fining grand juries for not finding bills. At one
period this custom was so firmly established that it was common
for Judges to report their own proceedings under it in the Courts
to which they belonged; and Lord Hale stated expressly
that there were cases in which it might be done, though he doubt-
ed the general legality of the practice. Such was the confirmed
tyranny of those times, that though Sir Thomas Smith, in his
book, stated that the practice was against the common law of the
land and the statutes relating to the subject, and though that
book was a current lesson for the Judges of the day, yet in conse-
quence of one proceeding which bad been silently introduced, and
followed by those whose purposes were answered by availing them.
selves of it as a precedent, so great was the multiplicity of prece-
dents to be quoted in favour of the practice, that some of the
Judges affected to consider it as an established rnatterof law, which
they could not do otherwise than follow. This example,shewed
the great importance of resisting unlawful practices in their very
beginning. And as lie (Mr. Scarleu) hoped to satisfy the Court
that day, that the fine on Mr. Clement was the first trample in
which such a power had been exercised, and that it bore no analogy
to the cases to which it had been likened; he looked forward with
confidence to the result, convinced that the Court would treat this
as a case of exception, which required strong, clear, and decisive
authority, io principle, to support it. In order to make his argo.
ment more explicit and perspicuous, he had reduced to writing
four propositions on which be relied for success; and if the Court
thought them just, or an one of them just, he that
the comemisnos mast for that the fine was His first
proposition was,—
" 1. That a Court of gaol delivery has no power to issue a writ
of attachment.
The second proposition was,—
" 2. That the power to punish for a contempt committed wholly
out of the viewof the Court, by one who owes no suit to the Court,
and is boutiby nu official duty to attend the Court, is derived out
of, and depends upon the power of issuing a writ of attachment."
He wound qualify this proposition by introducing the vote,
" in a summary way," so that it should be " the power to punish
in a summary way," of which he predicated the mode of its origin.
Mr. Justice Bstriev.—You must necessarily supply us with a
copy of the estreat, as that is the foundation of your argument.
There being no copy in Court, the original record was handed to
his Lordship.
Mr. ScsaLtry suggested that the affidavit in support of the
petition contained a copy of the whole proceeeings on the case.
Mr. Justice BATLEY.—The way in which you get rid of the
preliminary point is, by saying that the subject matter of your ob-
jection appears on the face of the estreat. On examining it I find
that your proposition goes much further than the meat winikl
warrant.
Mr. SCAR LETT—SUppOIIIC for a moment that it dom.
Mr. Janice BAYLEY—In the first place, it does not appear by
the estreat whether this contempt was committed wholly out of the
view of the Court, nor that the petitioner owed no salt to the
Court, nor that he was bound by no official duty to attend the
Court, nor whether this Court ever issued a writ of attach-
ment.
Mr. SCARLETY contended, that all that was necessary to give
the Court jurisdiction in this case was, that it should ap-
pear on the face of the process of execution a statement of the
grounds on which the levy was to be made. The petitioner had
brought the whole matter before the Duchy Court in his affidavit
es fully as if he had originally litigated the question in the Exche-
quer. In the case of an ordinary estreat, if the defendant missal
the exact time to plead, the Court would, on affidavit of the cir-
cumstances, indulge him with an opportunity of putting his plea
on record.
Mr. Justice BAYLEY—Perhaps the Court would allow him to do
so, and if you now have a mind to go into the Exchequer and put
your plea on record there. it will give both the Crown and yourself
an opportunity of having it discussed as a perfectly new question,
and ultimately, if you please, of obtaining the judgment of the
highest Court in the kingdom.
Mr. SCAR LETT—Suppose the Court should object to the estreat,
provided I can satisfy your Lordships that my general objection is
good, the question can be settled here • but if it should appear
doubtful to the Court, I hope your Isord'ahips would allow either
party to have the beuefit of a more solemn judgment in the other
Court.