Court Of The Duchy Of Lan...
The Times, 1824-02-14T00:00:00

Bgfore tlwu 1giht Hlon. Lord BEXLEY, Clianscellor of fle Duclhy, Alir. J,,stice BAYLEY, and Mr. Jnstice H OLROYD. It will be in the recollection of our readeris that a fine of 5001. was imposedl and levied on Alr. Glement, propr-etor of the Obscrver newspaper, for publishing the commencement of the trial of Thistle- wood and Ings, previous to its termination, contrary to the prohibi- tion of Mr. Justice Best. Mr. SCARLETT, on bebalf of Mlr. Clement, observed, that in ad- dressing the Court he had the option of rnoving iteither tossupersede the process issued, as irregular and illegal, or of granting a mvove's .Oanucn against the SheriWf, until the result of an action at law for the recovery of a line iUcgally levied could be ascertained. The learned gentleman salid, tha: in purs.uing the drst of these alternatives, he should lay it *:own that this lie had been arbitrarilv levied by a .Iudge WithOUt any form of trial, process at law, or anv other of the convstitutional modes wvhich a defen;dant would, in justice, be en- titled to. He thought it scarcely necessary to urge the very great impertance of the prescent application, and he trusted he sho-.ld be able tn show that there was no analogy between this case and any of those to which it had been compared, and, as it was the first of this peculiar description that had ever oc- curred, he hoped the Coutrt would treat it as requiring the-strongest atd clearest evidence, and most decisive authority, before their Lord- ships should give their countenance or support to the principle whicrl it wenit to establish. In order to make himself the better un- derstood by their L2rdahios on this subject, he had comnmitted to writing four distinct prop6sitions, which hse should now, proceed to read to the Court, prcnnismng,that if anv one of the propositions should be correctly advanced, the tine vut of which the uresent proceeding had issued would necessarily be illegal, and theresore unjust. The propaositions to which he hadi alladed were as follows :-lst, That a taourt of Gaol Delivery h.as no power to issue a writ of attachment. 2,l1, That the power of pulnishing in a summlary way for a contemspt committed *vholly ou t of the view of the (lourt; by one w.ho o ves no suit to the Court, and who is hound by no official duty to attend that Court, is derived out of, and depends upon, the power of such Court to is.sue a writ of attachment. Dlr. Justice IIAYL;EY here interrupted the learned counsecl by sugrgesting the propriety of his putting in a copy ot the cstrcat. TbheArTottxaY-GENEstAL of the Duchy Court of Lwancaster observeti, that it was unnecessalry, asi he hatd the original in Court. This being: produced, watS read by the l-arned Judge. 3ir. Justice BAYLEY thought it migot have been more dc6irsble that this argument should have been brought before the (Court of Exch:equer, with a view to having the opinion of the highest autho- rity on subjects regarding tbe revenue of thle Crown. hlr. SCAItLETI' observed, that he could not hsave an opportunity of d.sing so without the consent cf thle leg al advisers of the ( rovvn. Tihe A.TORXEY-GENER.L assuredl the learned counsel that hew.oetld not experience anys oppos-tion to such a cuurse,ut his hantds. IUr. ScAan.ETr e holgist it wvould bevery desirable tbat the same judges who hadl heard the argument before ti;e Court of King's Bench shlould hear the much msore extended observations wbich he had now inten(hed to submit to their Lo>rdshlips on this case: he was *uite sure the learded Judge whom lhe nowv had the honour of ad- 3tressing would rnot allow any imprcssionspyreviouslv made upon his mind to influence him in his decision upon tlnls very important case. 3Ir. Justice BAYLEY was convinced the le-ernedI (cunsel couldl not but thlsik the course suggestedl thle m.ost advisable oue that couldI be adopted. Mr. WYALt.yo, the Attorney-General of the Ducisy Court, ob - served, that the learned counsel might, if he thought proper, plead in the Exchequer for permission to be heard in argunment before the - Judges in this Court, and then, if deemed necessary, proceed by ap- peal to the House of Lords. The ATToIttEY-GENEUAt. isinted at the possibil-ty ofsuch it course being irregular, as bsing resorted to after the estreat had taken place.: MIr. W.sLToN explained. It was certainly determined upon at a very late hour, but the Court had pertnitted it, and hc therefore thought it could not he objected to. Mtr. J usticc BAYL EY observed, that wvhatever m-ght ba the -judg- ! ment of either the Eixchequer Court or that of the Duchy of Lancas. tar, anappeal or awrit of errornmight be brought before thc House of Lords. M\r. SCAi>Tt.ETy1 would, with thle permission of their Lordahivs, finish reading. the propositions on which he principall]y rested Lis case. The two> re;naining ones were as follow :-3t, That the or-i der not to publish the trial whilst the proceedings were pendinlg, wvas *an order on all the K(ing's sabjects, amnounting to a law, w hich the Court had no rixht to mlake. 4th, Tha: if the order was to ba con- .idered as an order mnae2.e on the parties to the trial, and obedience to be exa3cted as .to an order in the cause, it should have been mlade in writinlg, and ought to have beets served on tbe party, before he could be punished Ibr a con.tempt its having disobeyed it. dlr. Scarlett, in submitting these propositions to the Court as thse ground-work of his argament, protested against being considered as waving the right of advancing any ebjeetions he might hereafter think it advisable to urge to the proceedingss* he should feel his way as they wrent aiong, and exercise his discreticn on this subject, unfettered by the propositions he had just read. lMr. Justice BAYL szw could not avoid observing, that there wasI somrething very singular in the last of the learned counsel's proposi. dzons. He had assumned in the third, that the order was neaae on all his Majesty's subjects4 and in the last had laid it dowvn that diMe par- ties should have been served witha a written notice of such order. He could scarcely~ believe this possible. Mr. bCARLE'r-T considered the larnguage alluded to by his Lord- ship as used hypotheticallRy: he had argued on the assumuption of its being a notice to the parties in the cause, and in such case 'he thought it beyond a qluestion that such parties should ha served w7ith a notice. MVr. baRotumi^A5 tholught it unnecessary to address any obseva. tions to their Lordships on the present occasion. MIr. Scardett, in treating this important question, considered that it would turn chiefly upon the broad principle of thai policy of the order, and upon this question all men were equally competent with thse Judges of the land to formn an opinion. Mlr. Justice BAtYI.EY2Then you will itmend your plea, and af- terwards submit it to the Attorney-General fQ.r rierusaL I t oailj re; mains to name the day on w.hicb the argumant shall be heard. The ATToLtNEc-.GEE1tA L.._We can make upthe record by agreement. Mr.L Jastnice BAYLEY._I presumce it is not intended to rawise any objections as so facts. In the Court of King's Bench, I believe it wJas contended that the order of the Judge was only verbal, and had not been reduced to writing until after the gaol de'ivery wvas ovcr; ba.t sudsI points as these cannot touch the great constitutional -question that turas upon this implortant ease. The ATTOR2JEY..GExEaAL...WC e ars have no difficulty in raising the general question. IUr. Justice BASYLEY.Y. That is your principal object, I suppose, MIr. Scarlett r *Mr. SCAaLETT.._..I sli.ll, of essurse, feel at liberty to raise any questoion which mnay he to the idvan tage of ray clienh * Mr. Justice BAYLEr.Y..OU ougrht to took to the general ques- tion, and I thuink you should concede a great doal as to the minor points. It was formerly contenr4ed that dlr. Clemlent wvas out of town at the timne, amnd than the question was raised as to wvhether he wVas so bmonuafiae. Mr. ScAtfrETT.._T believe it appears by thmeyaner in wfhich the trial wasS peb'uSshetl, that the party publishing kinew of the prohsibi- tdon, and i thinkcSt has bean raled, that a n:otice atthse oHficeof pub- hication ia sulticmit.service on the pro riatos' of the paper. These I ptswil nt,the.ote b ase. XDeR nnlp o cl o .-the ;tr4eptftlBtif t jAatttanolize4 ke the oAdcr blic-sn L 4st! a%Ubjr6 tof tie re4ln, oft muu 4Er imp ithice o<eiatojFs llr Justice B ?y;' Te Y 'o wi I nta, tbLtia -K facts ~ ~ ~ ~ ~ ~ ~ ~ ~ eO'Asat unaersndt 1VIr. BaoqOHA-r.f..Wrejavc t l affidavit, thiat the order was Inerely detivered oraUy. M- r. Justice'lBAyr.EY.-I think there-tan bc no doubt 6f its hav- ing been reduced to writing, etther by the officeroofthe Viourt at the time, or by the sliort-hanl writer. Mr. SCAJtLETT.-However, that is not very important, as whc~~her the aider wasim tarttten whetier the order was w.itten or parole, Imeane to argue that it was 111r. Justice BAYLEY.-Perhaps we can agree upon a day before term for the argumgnt. =The ATTORttEY.GENEgALK--Between the assizes and the term might suit aUparties. bIr. Justice BAYL,I Y.-I wish it could be fixed now. The day before term.-. The ATTORNIE:tYC;}Eg AI.A--With'the four propositions of the learned Counsel on the other side, and those 1, witlh the assistance of myleazoed friends, may advance, and the argaments upon each audt every ofthem, one day w ould, in all probabtlity, be insufficient t.ime, and then w1e should get into term. MIr. SCARLETT._ With whatever ridicule the learned gentleman may please to treat my propositions- *TheATTonNEr-(GENCtAL.No no; Idonot ridicule themn, 1a-~urt y-ou. Air. ILoUSIXAM.-They are more Opmn to ridicule than refuti- tion, I helieve. (A laugh.) MVlr. Justice BAYLEY suggested two days before thp comrience. ment of term. Mr. SCARLETT.-I am unable positively to say. what day will suit, for, aithough not yet sentenced to punishment, I am daily at the tread-mill. A laugh.) hAr. Justice BAYLEY.--But you have aU your earnings, MUr, Scarlett. (.lMuch laughter.) Xoriday, April 3, was then fixed upon,sconditionally, being two days before term. COURT OF TIll DUCFIY OF Le.ANC.4STER, Feb. 13. T12 RE CLEMENT, PROPRIETOR OF " TIIE OBSERVER" )VEWS- PAPrR.