The question intended to be raised on this special verdict for the opinion of the Court was, whether the facts stated in it, form a legal justification and defence against the action? Vaughan Serjt. for the Plaintiff. It may be admitted, that it might be expedient to vest in justices of the peace, the jurisdiction claimed by the Defendant, but, the question here is, whether that jurisdiction is established by law. If a justice of peace has power to issue warrants for apprehension and commitment in cases of libel, he must derive that power, either from the terms of his commission, or from the statute law, or from the rules of the old common law. "If this (says Lord Camden (a)) is law, it would be found in our books:" if it be not found there, it is not law. However expedient it may be, that such a power should exist, the Court will not decide on what is expedient, but what is law; and authority for the existence of such a power is not to be found in any of the sources before-mentioned. When a jurisdiction so destructive of the liberty of the subject has been assumed, the onus of proving the existence of it must rest entirely with the Defendant. In the first instance, the Plaintiff is called on to do little more than deny its existence. Magistrates, in early times, were no more than conservators of the peace, as appears from stat. 1 Edward 3rd. (b). From that time to the 33rd. year of Elizabeth, their powers varied, and, soon after the 1st. of Edward 3rd., power was given to the justices to enquire of trespasses and felonies; about that time, too, they were warranted to arrest felons indicted (c). But, their original authority was only ad pacem conservandam, and, (c) Lambard. B. 1. c. 9. p. 46, a) 2 Wils. 298. VOL. I. PP if 1820. BUTT V. CONANT. 1820. BUTT บ. CONANT. if it had extended further at common law, it would not have been necessary to enact the various statutes, by which, from time to time, that authority was increased. The present form of the justice's commission was settled in Michaelmas term, 1590, when Wray was Chief Justice. That commission contains two branches: First, what the magistrates have power to do out of sessions Secondly, what their jurisdiction extends to in sessions. At sessions, it must be admitted, that, under the term trespass, the magistrates have a jurisdiction over cases of libel, Rex v. Rispal (a), Rex v. Summers (b), though, in the latter case, Hyde C. J. thought otherwise but, in the first branch of the commission, there is nothing that touches the present question; for, it only gives the justices authority to preserve the peace, and to execute all the statutes and ordinances of the realm relating to the peace. Lambard, in enumerating these, mentions "all statutes made for the repressing or punishment of force, violence, or fighting (c)," but, says nothing of any power to hold to bail or commit for any offence short of actual violence. The justice's power to apprehend, as given by the language of the commission, is confined to cases of actual breaches of the peace; but, it has been repeatedly laid down, that a libel is an offence, only on the ground of its tendency to produce a breach of the peace (d). No authority, then, is given by the commission in direct terms, none by necessary implication, and, it is impossible that such an authority can be intended. With respect to the statute law, if the legislature has any where conferred such a jurisdiction, all argument ceases, but, it is for the Defendant to point out when and where such jurisdiction is conferred. The common law text writers come next, and their (a) 1 Bl. Rep. 368. 3 Burr. 1320. (c) Lambard. 51. authority authority seems entirely subversive of any such doctrine. Lord Coke, who lived at the time, when the commission was settled, says, "We hold the resolution of the Court, viz. of Brudnel, Pollard, Broke, and Fitzherbert, in 14 H. 8. to be law, that a justice of peace could not make a warrant to take a man for felony, unless he be indicted thereof, and that must be done in open sessions of the peace (a)." His opinion has, indeed, been objected to by Hale, as "too strait laced," and also by Hawkins; but, if a judge is warranted in being strait laced in any matter, it is in that which concerns liberty of person. Lord Coke, however, founds his opinion on Magna Charta, "Nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ," and refers to the year-book, 14 H. 8. (b), to the language of former commissions, to the statutes 42 Ed. 3. c. 3. 1 & 2 Ph. & M. c. 13. and the 2 & 3 Ph. & M. c. 10. in proof of the illegality of a justice's granting a warrant upon mere surmises. If a justice had, at common law, the power of committing for these offences, he must, as incidental to such a power, have had also the power of examining; but, as the statute 1 Ph. & M. c. 13. expressly gives him the power of examining, it must be inferred, he had it not at common law. By the statute 2 & 3 Ph. & M. c. 10. the power of examining is extended to the cases of persons suspected of felony. The Plaintiff, however, is not driven to contend for so broad a proposition, as that a justice cannot issue a warrant for apprehension in any case before indictment found: it may be conceded that he can in treason, felony, and actual breaches of the peace, and, it is to be presumed, that Sir M. Hale's objection to the position laid down by Lord Coke, applies only 1820. BUTT V. CONANT. (a) 4 Inst. 177. (b) fol. 16. a. Pp 2 to 1820. BUTT บ. CONANT. to cases of felony and treason, and does not extend to mere breaches of the peace, much less to what has only a tendency to a breach of the peace; for the chapter in which Hale makes the objection, is the chapter on felonies, and, in vol. 2. (a), he says "that a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted," but, the chapter contains no hint of any such power in the case of libels. In another passage, he considers it doubtful, whether a justice, out of sessions can issue a warrant to apprehend persons offending against a penal law (b). Hawkins, too, is of opinion, that, even in cases of felony, this jurisdiction was acquired silently and by connivance; "Inasmuch, as justices of peace claim this power rather by connivance than any express warrant of law, and, since the undue execution of it may prove so highly prejudicial to the reputation, as well as the liberty of the party, a justice of peace cannot well be too tender in his proceedings of this kind (c)." Dalton (d) cites the 5 Eliz. c. 4. as giving the justices authority to commit in certain cases; but, if they had it at common law, neither that statute nor 23 Eliz. c. 10. was necessary. The same observation applies to 48 Geo. 3. c. 58. s. 1. And, no statute has given the justices out of sessions, power to apprehend for misdemeanors, unless accompanied with an actual breach of the peace. If they have authority to apprehend for that, which has merely a tendency to a breach of the peace, they must also have it in every imaginable case of misdemeanor, a power which never can be established; as many misdemeanors are no other than mere trespasses. With regard to the decisions on this subject, there is no case which has established the justice's right to commit (a) c. 13. p. 108. (c) Book 2. c. 13. s. 18. in in case of libel. In the Queen v. Derby (a), a secretary of state was allowed to commit for a libel against the government. How he acquired that power is unknown; it is said by a mandate of the crown; but, at all events, his jurisdiction, though perhaps too long established to be now shaken, furnishes no authority for the conduct of a justice. Even in the Queen v. Derby, they, who argued for the secretary of state contended, that the party was not committed, but merely kept in custody till he should answer: And Parker C. J., by the very terms of his judgment, shews what was his opinion on the present question. He thinks the commitment by the secretary legal, and compares it, not to a commitment by a justice in case of libel, which, if such a power existed, would have been the obvious comparison, but, (as if he thought that was out of the question) to a commitment by justices in case of felony. In Kendal's case (6), the party was committed by the secretary of state, for assisting an escape; that case, therefore, does not touch the present question. In the case of the seven bishops (c), it was much disputed, whether the warrant could be legal, if not signed by the council board; from whence it seems to follow, that it would be deemed illegal, if issued by a single justice. But the case of Rex v. Wilkes is decisive of the present question. The Court in that case held, clearly, that libel was not a breach of the peace, and, that the Defendant was therefore entitled to be discharged. Lord Camden, (then C. J. Pratt), there said (d), "I cannot find, that a libeller is bound to find surety of the peace, in any book whatever, nor ever was, in any case, except one, viz. the case of the seven bishops, where three judges said, that surety of the peace was required in the case of a libel. Judge Powell, the only honest man of the four judges, dissent 1820. BUTT ข. CONANT. Pp3 ed. |