The Statesman.
London, England, 1820-02-07 00:00:00

BUTT P. CONANT.

Mr. Serjeant V•ean A. te said, this case came before the
I Court on a special verdict. It was an action of trespass
and false imprisonment, brought by the plaintiff agahlst
Sir Nathaniel Conant, for having issued a warrant, by
which the plaintiff was arrested, aool subsequently
committed for want of bail. The warrant had been
issued on account of the publication of two libels, one
on Lord El lenborongh, the late Chief Justice of the (Mort
of King's Bench, and the other on Lord Castlereagh.—
The questions raised on the special verdict were, first,
whether ant person way be arrested and held to bail for
a libel, before indictment ?—and, secondly, whether a
Magistrate, its his individual rapacity, can issue a war-
rant for that purpose ? The questions were of great im-
portance, inasmuch as they were not merely legal but
constitutional, sad as they involved that which hail al-
ways been highly esteemed, and watchfully guarded by
Englishmen—the liberty of the press, and 'the persemil
freedom of the subject. For himself, he was one of 1
those who would give great powers to Justices of the
Peace • but then, in making that admission, lw wished I
to ad, they were not there to legislate, hut to expound
what had liven enacted. As this was a rase in which the
defendant contended for the affirmative, the oases of '
proof lay upon him; and unless be could shew some
positive rule of last, or some clear decision or authority ,
in his favour, hr (Mr. Serjeant Vaughan) insisted that
his claim of jurisdiction must fail, and the plaintiff must
recover. And he would add, in the words of a great
lawyer, that if the authority was to be found in the books,
it was law, but if not, it should not be admitted. The
statute 1 Edw. 111. c. 16, enacted, " For the better
keeping and maintenance of the peace, the King will,
That in every comity, good men and lawful, which be
no maintaimrs of evil, or 'narrators in the country, shall
be assigned to keep the peace." After this statute their
Contonission was settled by all the Judges and Herons in
Michaelmas Term, 1390, by which they were to invite
into all felonies, &c. and warranted to arrest father's/
felons. By the inference to br drawn from this feet, it
would appear that they had not this power originally,
for if they had, where Ives the necessity of directing thlt
from thenceforth they shouldossess it's 31r. Lambert
says, their power in their individual capacity is little
more than to admonish, and if they are not obeveskiii
work by presentment at Sessions. And bind l'ioLe lays
down the doctrine, that a man cannot be mewed and
held to hai! for a crime cognizable in Sessions by one
Justice of the Peace alone, and sitting out of Sessions.
Hale says, that the Justice may issue his warrant sod
bind the oft' nder over to appear at th• Sessions, althongli
he he not iodicted. IH. H. 579. But in another place
he says, " this seemeth doubtful." 2 H. H. 113.—And
Hawkins on this point says, " It seems that anciently
no one Justice could legally make out a warraut for an
offence against a penal statute or other misdemeanour
cognizable onlv by a Sessions of two or more Justices : for
that one singl; Justice bath no jurisdiction of such of-
fence, and regularly those only who have jurisdiction
overa cause ran award process concerning it; yet the long,
constant, universal, and oneuntrouled practice of Jus-
tices of the Peace seems to hare altered the law in this
particular, and to have given them an authority in Teta-
tion to such arrests not now to be disputed." 2 Hawk.
c. 13, sec. 16.—50 that even by Hawkins, who opposed
the doctrine laid down by Lord Coke, it appears to he
a custom which had grotto info practice, and not a
written law. Br statute 1 and 2 Phil. and Mary, chap.
13, Justices of the Peace are directed to certify the ex-
aminations of prisoners for manslaughter or felony. and
the bailment of them to the next jail delivery, but no
mention of libel is made in thiskiirertion; and by the
I,f:Mood omission itself they are ° " To hear and Jeter-
ine all and singular the f poisonings, enchant-
ments, sorceries, arts. trespasses, forestallinfs,
rerratings, en grossi ions, unlawful assemblies,
and all and singular the premises, according to
the laws WA statut gland, as in the like ease it
has been accustom ght to be done." This com-
mission was sett the Judges and Barons, with
Sir Christopher mop; then Lord- Chief Justice of the
Court of King's _ a, at their head; and vet no men-
tion was made fa it of any power in a Justice to arrest
and hold to_4lll for libel. But it wail be contesideol, on
the part ofjp‘rfendant, that the word trespasses is of
so generaiiitesure, that libel, aettudi to a brestch of
the peace; oast be taken under it. By be lid of P,der.
111. c none AO be pat in answer accusation of the 0„,,,
itt presestutesso- fu 41611 ease of the seven
, 4 State Trials, XS, it was grimed they ought
ti be ischargoil, !weenie they were prlilleged front ar-
rest, as bring Members of the Upper House of Parlia-
ment, when it was adjudged that the libel was a breach
of the peace, and therefore their prayer was refused;
lint that rase bad been not only doubted, but strongly
disputed. In the eased the Queen r. lhtrby,Fortrecne
1411, the first exception was, that a Sweeten, of State
could not commit for libel. The Attorney anti Solicitor
Lieneral relied on this for an answer, that the warrant
was nut a commitment, hut only for the purpose of
examination ; they did not pretend to say that the Se-
cretary of State had the power of doing this, and Vim
had not, surely it could not be possessed by a Justice of
the Peace merely. It has been said that a lapel is &breach 1
of the peace, hot that was denied in Wilkes' case, where 1
it was held that it is not, and therefore a Member of I
Parliament is entitled to his privilege. Aod Lord Cam-
den, in delivering the judgment of the Court, 2 Wits.,
observed, that they were all of opinion that libel was
not a breach of the peace, but had only a tendency to
it; and, added he, " I cannot find that a libeller
has ever been bound to find surety of the pesre." The.
Learned &deem, therefore, snbmitted, that the rosin
must give judgment in favour of the plaintiff, or come
to the resolution of overturning the cases of the seven
Bishops, of Rex e. Wilkes. and of the Queen e. Derby ;
and contended, that as this claim of jnrisdiction went
directly in derogation of the liberty of the subject, it,
should he strictly watched, and that the submission of
poverty or guilt was not to be taken as a precedent or
allowed as an authority. Ile cencleoled by observing,,
that the 48 Oro. 111. e. SS, furnished an inference is leis,
favour, for it gave the Judges of the King's Bench, who