Mprosoft® Tf5 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL** By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® KD 3988T45" ""'"'""^ "-ibrary l-eadiiK (flnrnpU Slaui ^rljool Hibtary Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® LEADING CASES CONSTITUTIONAL LAW. Digitized by Microsoft® Digitized by Microsoft® Leading Cases Constitutional Law BRIEFLY stated. rit§- frttrobtttfioiT, ^ummHB, anb ^ohu. ERNEST C. THOMAS, BACON SCHOLAR OF THE HON. SOCIETY OF GRAY's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. JUDICIA ENIM ANCOR^ LEGUM SUNT UT LEGES REIPUBLIC^. LONDON: STEVENS & HAYNES, Sail) |P«:bH«hcr», BELL YARD, TEMPLE BAR. 1876. Digitized by Microsoft® /, t LONDON : BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS. Digitized by Microsoft® TO SIR JOHN HOLKER, Q.C., M.P., HER MAJESTY'S ATTORNEY-GENERAL, ONE OF THE MASTERS OF THE BENCH OF THE HON. SOCIETY OF GRAY'S INN, IN TOKEN OF ESTEEM AND ADMIRATION, THIS LITTLE BOOK IS BY HIS PERMISSION IBrticatefl. Digitized by Microsoft® Digitized by Microsoft® PREFACE. Some knowledge of the chief cases in Constitu- tional Law is now required in many examinations, and is obviously necessary to the thorough student of our constitutional history. Yet there has existed no book briefly setting out the main principles decided in these cases, which are scattered through many volumes, and buried in prolix reports. Even Dr. Broom's book, although, in spite of its thousand pages, it is the nearest approach to anything of the kind, lacks the brevity and conciseness which are so necessary for the student. What I have endeavoured to do is to extract the essence of all the cases with which the student is expected to be familiar, preserving always some- thing of the concrete circumstance that is so helpful to the memory ; to add, where necessary, a short note to the individual case ; and to subjoin to each important group of cases some general remarks in the shape of an excursus. The cases are so arranged as to be convenient for ready refer- ence, and while the treatment is very concise, I hope that it is sufficiently accurate. Digitized by Microsoft® Law — including the principal State trials, in the stricter sense of the term, as well as those cases which may- be covered by the expression, ' the Criminal Judica- ture of Parliament.' This would have illustrated the Law of Treason and its development, and the prac- tice upon Impeachments, Bills of Attainder, and Bills of Pains and Penalties. But the design must for the present be postponed." I cannot conclude without expressing my thanks to J. Ashton Cross, Esq., Barrister-at-Law, of the Middle Temple, who has looked over some of the proof-sheets ; and also to W. Chase Walcott, Esq., Barrister-at-Law, of Gray's Inn, who has been good enough to read them all, as well as to burden him- self with the preparation of the Index. • Meanwhile I may refer to Mr. Taswell-Langmead's most admirable, and careful ' Manual of Constitutional History, ' in which will be found very elabo- rate notes on the Law of Treason (pp. 358-364), and on Impeachments (pp. 495-Soi)- Digitized by Microsoft® TABLE OF CONTENTS. Preface . . Authorities quoted, with their Abbreviations Table of Cases reported or cited Introduction Leading Cases : Case of Proclamations .... Thomas v. Sorrel ...... Godden v. Hales Seven Bishops' Case Bates's Case (Impositions) .... R. V. Hampden (Ship money) Excursus I. : The Dispensing Power Bamardiston v. Soame ..... Ashby V. White ..... Burdett v. Abbot Stockdale v. Hansard .... Sheriff of Middlesex' Case .... Howard v. Gossett . .... Excursus II. : Privilege of Parliament and the Law Courts ....... Calvin's Case Excursus III. : Allegiance and Aliens . . . Campbell v. Hall ...... Bankers' Case . . ... Viscount Canterbury v. The Attorney-General Tobin V. The Queen Excursus IV. : Remedies against the Crown Darnel's Case ........ Shanley v. Harvey ....... Sommersett's Case ....... PAGE vii-viii xi-xiii XV I-IO II 12 13 14-17 18-20 21-22 23-24 25 26-27 28 29-30 31 32-33 34-35 36 37 38 39 40 41 42 43 44 45 Digitized by Microsoft® X Table of Contents. Leading Cases — continued. Forbes v. Cochrane Case of Le Louis .... Case of the Slave Grace Pigg V. Caley . ^ . . Ex parte Fox .... Excursus V. : Impressment Wilkes V. Wood .... Leach v. Money Entick V. Carrington Excursus VI. ; General Warrants Macbeath v. Haldimand Gidley v. Lord Palmerston Fabrigas v. Mostyn Cameron v. Kyte Hill V. Bigge Luby V. Lord Wodehouse . Sullivan v. Earl Spencer Phillips V. Eyre . Excursus VII. : Liability of Governors Sutton V. Johnstone . Dawkins v. Lord Rokeby Excursus VIII. : Liability of Officers, Military and Naval Prohibitions del Roy Bushell's Case . Floyd V. Barker Houlden v. Smith Kemp V. Neville . Fray v. Blackburn Scott V. Stansfield . Calder v. Halket Excursus IX. Liability of Judges 46 47 48 49 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65-66 67 69-70 71-72 73 74 75 76 77 78 79 80 81-82 Index 85-96 Digitized by Microsoft® AUTHORITIES QUOTED WITH THE ABBREVIATIONS USED. Adolphus & Ellis, King's Bench Reports, 1834-41, 12 vols Ad. & E. Austin,Jurisprudence,4thed.,i873. 2vols. Austin, Jurispr. Bamewell & Alderson, King's Bench Reports, 1817-22, s vols. . . . B. & Aid. Bamewell & Cresswell, King's Bench Re- ports, 1822-30, 10 vols. . . . B. & C. Bentham, J., Works, ed. Bowring, 11 vols. Best & Smith, Queen's Bench Reports, 1861-69, 1° vols. . . . . B. & S. Blackstone, Commentaries on the Law of England, 15th ed., 4 vols. . . . Blackst. Comm. Broderip & Bingham, Common Pleas, &c., Reports, 1819-23, 3 vols. . . . Brodr. & B. Broom, H., Constitutional Law, 1866 . . Br. Campbell, Lord, Lives of the Chan- cellors, 8 vols., 8vo .... Camp. Chanc. Campbell, Lord, Lives of the Chief Jus- tices, 3 vols., 8vo. Carrington & Marshman, Reports . . Carr. & M. Clarendon, Lord, Hist, of the Rebellion, Oxford, 1849, 7 vols., 8vo. Cockburn, Sir A. J. E., Charge in Queen V. Nelson and Brand, 1867. Cockburn, Sir A. J. E., Nationality, 1869 Coke, Institutes Coke, Inst. Coke, Reports . .... Coke. Common Bench Reports, New Series, 20 vols C. B. N. S. Digitized by Microsoft® Xll Atithoriiies Quoted. Cowper, Reports ... • • Cox, H., Institutions of the English Government . . . . ■ Dodson, Admiralty Reports, i8 11-22, 2 vols. ....... Dow, Reports, 1813-1818, 6 vols. . Dyer, Reports . . . • ■ • JEast, King's Bench Reports, 16 vols. Eden, Chancery Reports, 1757-66, 2 vols. Exchequer Reports, 1 1 vols. . . . Forsyth, Cases and Opinions in Constitu- tional Law, 1869. Foster & Finlason, Reports, 1856-67, 4 vols. ...... Haggard, Admiralty Reports, 1822-38, 3 vols. ..... Hallam, Constitutional History of Eng- land, 7 th ed., 8vo, 3 vols. Hearn, Government of England, 1867 Irish Common Law Reports, 17 vols. Irish Reports . . . . • Knapp, Privy Council Cases Law Reports : Ch. Div., Chancery Divi- sion; Q. B., Queen's Bench; Ex., Ex- chequer ; H. L., House of Lords Law Journal ..... Law Times Reports Lofft, Reports, 1772-74 Macaulay, History of England-. May, Constitutional History of England May, Parliamentary Practice, 6th ed. Moore, Privy Council Cases, 1 5 vols. Phillips, State Trials prior to 1688, 2 vols, 1826 Phillips, Reports, 2 vols. . Queen's Bench Reports, 1841-52, iSvols, Raymond, Lord, Reports, 3 vols. Shower, Parliamentary Cases , Shower, Reports .... Smith, Leading Cases, 7lh ed. State Trials: ed. Howell, 34 vols., 1809-26 Cowp. Cox, Inst. Engl. Gov. Dods. Adm. R. Dow. Dyer. East. Eden. Exch. F. &F. Hagg. Adm, R. Hall. C. H. E. Gov. Engl. Ir. C. L. R, I. R. Knapp, P. C. C. L. R. L.J. L. T. Lofft. May, C. H. E. May, P. P. Moo. P. C. C. Phill. S. T. Phill. QB. Lord Raymond. Show. P. C. Show. Smith, L. C. S. T. Digitized by Microsoft® Authorities Quoted. xiii Taswell-Langmead, Manual of Constitu- tional History, 1875 . . . . Tasw.-Langm. M.C.H. Term Reports, 8 vols T. R. Todd, Parliamentary Government in Eng- land, 2 vols., 1867 Todd, Pari. Gov. Vaughan, Reports, fol. .... Vaughan. Wilson, Reports, 3 vols. . . . . Wils. OTHER ABBREVIATIONS ARE L. C. J., Lord Chief Justice of the Queen's Bench. C. J., Chief Justice of the Common Pleas. L. J., Lord Justice of Appeal. J., Mr. Justice. C. B., Lord Chief Baron. B., Baron. H. L., House of Lords. S. C. (Scaccarii Camera), Exchequer Chamber. Q. B., Queen's Bench. C. P., Common Pleas. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CASES REPORTED OR CITED. PAGE AsHBY V. White . . 26 ' Aylesbury Men ' 27 Bankers' Case . . 39 Barnardiston v. Soame 25 Barwis v. Keppel . .12 Bates's Case . 18 Burdett v. Abbot . . 28 BURON V. Denman . . 71 Bushell's Case 74 Calder v. Halket . . 80 Calvin's Case . . 36 Cameron v. Kyte 60 Campbell v. Hall . . 38 Canterbury v. A. G. . . 40 Crouch's Case . . . 49 Darnel's Case . . .43 Dawkins v. Lord Rokeby 69 Paulet 70 Entick v. Carrington . 5 5 Fabrigas v. Mostyn . 59 Floyd v. Barker . . 75 Forbes ■z/. Cochrane . 46 Ex parte Fox . 5 1 Fray v. Blackburn . . 78 GiDLEYi/. Lord Palmerston 5 8 Godden 7/. Hales . .13 Hill v. Bigge . . . 61 HODGKINSON Z/. FERNIE . 71 H gulden v. Smith . 76 Howard v. Gosset . . 32 PAGE Kemp v. Neville . • 77 Leach v. Money . . 54 Le Louis . . . . 47 Lines v. Lord Charles Russell . . . .32 LuBY V. Lord Wodehouse 62 Macbeath v. Haldimand 57 MaDRAZO Z/. WiLLES . 71 Nicholson v. Mouncey . 7.1 Phillips v. Eyre . 64 Pigg v. Caley . . . 49 Proclamations, Case of . 11 Prohibitions, Case of 73 Rex w. Hampden . . 21 Picton . 66 Wall . 66 Scott v. Stansfield . 79 Seven Bishops' Case . 14 Shanley v. Harvey . . 44 Sheriff of Middlesex Case 31 Ship Money, Case of 21 Slave Grace's Case 48 Sommersett's Case 45 Stockdale v. Hansard . 29 Sullivan v. Earl Spencer 63 Sutton v. Johnstone . 67 Thomas v. Churton . 70 Thomas v. Sorrel . .12 ToBiN V. The Queen . . 41 Wilkes v. Wood . 53 Digitized by Microsoft® Digitized by Microsoft® Leading Cases CONSTITUTIONAL LAW, INTRODUCTION. Where there exists a body of laws regulating the Constitu- . ■' fa t> tional Law — distribution and exercise of the supreme power in a where to be community, and a Court entrusted with its interpre- ^°""'^' tation, the term Constitutional Law has a very definite application. That is the case, for example, in the United States. In England, on the other hand, where there is no written constitution, this law exists in a much looser shape, and has to be collected from legal deci- sions, parliamentary precedents, and habitual practice. We are here concerned with constitutional usage only Importance in so far as it has been established or illustrated by the decision's, decisions of the law courts. Although these are far from covering the whole extent of constitutional prac- tice, we shall see that many of the most important principles of the Constitution have come under the dis- cussion and determination of the Courts. That part of our constitutional law should have been made by the judges, will not surprise any one who knows how enor- mous has been their influence in the whole field of English law.i For practical purposes we must take the term ' Con- Constitu- stitutional Law ' to include not only what Austin calls it°extent^~ ' "The whole of the rules of Equity and nine-tenths of the rules of Common Law have in fact been made by the judges." — Mdlish, L. J. in Allen V. Jackson, L. R. I Ch. Div. 405. B Digitized by Microsoft® 2 Constitutional Law. ' constitutional law proper,' but also what he calls ' ad- ministrative law,' the two branches making up together ' the law of political conditions, or public law.' ^ Con- stitutional law proper, in his view, only ' fixes the con- stitution or structure of the given supreme government.' Administrative law determines the mode in which the sovereign power is to be exercised, either by the sove- reign power itself, or by the subordinate political officers to whom portions of the sovereign power may be dele- gated. Its obiect— ^'' ^^ ^^^y P^*^ ^* ^^ another way perhaps, arid say the prevention that Constitutional Law has for its object security against mis-govern- misrule, and remedy in the event of misrule.^ And we "'^°'- shall for the present be chiefly concerned with this latter aspect of constitutional law. We shall consider a par- ticular class of injuries and delinquencies arising from the misuse of the power bestowed upon rulers and ad- ministrators, and the remedies provided for them by the tribunals of the country. Its relation to An attempt has been made in one of the few works Common Law ^pon this Subject to elaborate a contrast between Con- misrepre- ^ ■' sented. stitutional Law and Common Law, and to ' illustrate the relation between them.' ^ Constitutional law is there said to mean ' the aggregate of doctrines and sanctions directly tending to the maintenance of our social union ;' and common law, ' the aggregate of rules and maxims directly tending to the maintenance of private rights.' The antithesis here attempted does not really exist : there is no such line of demarcation between constitu- tional law and common law. They are not disparate and independent branches of law. Constitutional law is simply a portion of the common law, and is included in it as the part is include'd in the whole. The distinction ' I Austin, Jurispr. 4th ed. pp. 73, 274. ■ 9 Bentham, Works, ed. Bowring, pp. 9-1 1. ^ Broom, Const. L. pp. vii., viii. Digitized by Microsoft® Introduction. 3 is not only useless and untrue — it is even dangerous. It is precisely this notion that the constitutional law was above and beside the common law, that has caused some of the chief difficulties of our constitutional history. It explains not only the exaggerated claims of the Stuart monarchy, with its pretence of a divine authority not subject to the laws, but it explains the comparatively recent attempt on the part of the House of Commons to assert what has been called ' a supremacy not short of the divine right of Charles or of James.' ^ What may be The true re- said is, that constitutional law is that part of common law which deals directly with the exercise of the func- tions of government, sometimes securing the subject against unfair abuses of original or delegated power ; sometimes protecting the ministers of government in the proper execution of their duties. The supreme power in this country is lodged in the The Consti- people, but is exercised, as to the matter of form, through po^gr^s a parliament consisting of king, lords, and representa- tives of the commons. The main functions of govern- ment are two-fold — the Legislative and the Executive. Of these, the former is carried out in the main by '• Legislative, parliament itself, although certain minor powers of legis- lation are delegated to the crown in council, to subor- dinate officers, and even to certain private corpora- tions. The Executive function, on the other hand, is ii. Executive. exercised entirely by delegates, under the direction of the crown, itself in this respect the delegate of parlia- ment. It may be divided into an Administrative and a a. Adminis- Judicial department. The latter function is evidently, in t''^''^^- theory at least, of a merely remedial nature. Supposing the laws to be always perfectly obeyed, there would be no necessity for the interference of courts of justice. The judges are called in either to enforce obedience to the laws (more strictly, perhaps, to determine for the ' Cf. the Excursus on the ' Privilege of Parliament : ' and Hearn, Gov. of England, p. 2. Digitized by Microsoft® Summary. Constitutional Law. guidance of the Executive, whether the laws have been disobeyed); or to decide between contending parties, each, perhaps, equally anxious to obey the laws when known, as to their proper interpretation. Briefly, then, we may say that the Legislative function is the supreme power of making laws : the Administra- tive function is the supreme power of executing them : and the Judicative (or Judicial) function is the supreme power of interpreting them when called upon. ' Leading cases.' We may now proceed to look in cases and judicial decisions for illustrations and proofs of the constitutional limitations of these several branches of the supreme power, taking them in the order here laid down. One caution must be borne in mind as to the use of the term ' Leading Cases.' The ordinary use of the expression indicates a case that settles the law upon some important question.^ But it will be observed with regard to these constitutional cases, that in some in- stances the decisions of the judges were wrong, whether through error of judgment or servility. In some in- stances the legislature has interfered, and has settled the law, usually by statute ; or in others the better opinion has tacitly reasserted itself Yet these cases may be fairly called ' leading,' as being of the greatest import- ance in the history of the constitution. Although they cannot themselves be directly cited for the purpose, yet the whole proceedings connected with them do establish the law on the principle involved. And the peculiar im- portance of constitutional law, and its intimate connec- tion with our national life and political development, lend a special interest and value to the records of each step in those proceedings. ' " Each case involves, and is usually cited to establish, some point or principle of real practical importance." — I Smith, L. C. p. ii. Digitized by Microsoft® Introduction. I. The Legislative Function. i. The Crown. The legislative function properly belongs to parlia- ment, and no single branch of it may legislate without the concurrence of the other two. The executive has a limited power of legislation by order in council, etc., but only where such power is expressly delegated by parliament. Speaking generally, and leaving out of view such emergencies as the great Civil War or the Revolution, the only serious attempt at legislation has been made by the highest branch of the legislature — the Crown. The crown has, at various times, but chiefly in the sixteenth and seventeenth centuries, attempted to exer- cise a power of independent legislation in virtue of an asserted prerogative by proclamation and ordinance, or by licence : The Case of Proclamations. This has been done for the purpose of suspending or dispensing with laws passed by parliament, or for the purpose of raising money. The Case of the Seven Bishops illustrates the attempt to suspend certain penal statutes by royal proclamation ; whilst Thomas v. Sorrel and Godden v. Sir Edward Hales were cases of particular dispensations. In Bates's case the crown had imposed a customs duty without authority of parliament ; and in Rex v. Hampden (or The Case of Ship money) writs were issued for the collection of money in virtue of the royal prerogative. In all these cases — except that of the Seven Bishops, where the judges were evenly divided as to the point of law — the decision of the law courts was for the crown ; and the true principle, that the crown may not legislate nor impose save in parliament, was not established until after violent struggles between crown and people. Digitized by Microsoft® Constitutional Law. ii. Parliament. Some of the cases here reported under this heading illustrate an unconstitutional attempt by the House of Commons to assume a legislative power in establishing rules of privilege, which led to a collision with the courts of law and with the House of Lords. The House of Commons has a right to determine all matters touching the election of its own members. In the case of Barnardiston v. Soame, where the main- tenance of this claim led to an inconsistency in the views taken by the Commons on the one side, and the law courts together with the Lords on the other, a statute was passed to settle the question. In the case of Ashby v. Whitey the Commons ex- tended this principle so as to cover the rights of electors, and maintained their claim so obstinately that they committed the persons who brought actions, together with their legal advisers. This led to a collision with the House of Lords, which was only put an end to by the prorogation of parliament. After which, however, the law courts had their way. Again, in the case of Stockdale v. Hansard, a limit was set to the privilege of parliament, and it was decided that it may not authorise libellous matter to be pub- lished. Another statute was passed to provide for this difficulty. But the case is decisive of the right of the law courts to enquire into matters of parliamentary privi- lege — a right which the House of Commons had denied. The undoubted privileges of the two Houses, however, are still very great. Either House may commit for con- tempt or breach of its privileges : Burdett v. Abbot. Nor will a court of law enquire into the grounds of such a commitment : Sheriff of Middlesex. This power of committal extends to the case of witnesses who may have been summoned and have failed to appear : Digitized by Microsoft® Introduction. II. The Executive Function. Tlu Crown. The crown is the supreme executive power, and as such is entitled to allegiance, the nature and limitations of which are considered in Calvin's case. The crown is also in this capacity invested with certain high prerogatives. With regard, indeed, to colonies obtained by conquest, as opposed to those acquired by occupancy or settlement, the sovereign possesses the whole authority of legislation. But this is of course subject to the paramount authority of par- liament,^ and it is also limited by this restriction, that when it has once granted a legislature to such a colony it cannot afterwards exercise there any legislative power : Campbell v. Hall. That ' the king can do no wrong ' is one of the maxims of the constitution oftenest employed and most misunderstood. Though an action will not lie against the crown as it will against a private person, yet the subject is not without a means of remedy if his property is illegally invaded by the crown. His proper course is to proceed by Petition of Right, which ' he may now by statute bring in any of the superior courts in which an action might have been brought, if it had been a ques- tion between subject and subject. This mode of proce- dure is illustrated by The Bankers' case : while Viscount Canterbury v. The Attorney -General shows that it cannot be adopted to recover compensation from the crown for damage due to the negligence of the servants of the crown; nor for a claim against his predecessor. Nor can it be maintained to recover unliquidated, damages for a trespass : Tobin v. The Queen. ' Forsyth, Cases and Opinions on Const. Law, pp. 15, 21. Digitized by Microsoft® Constitutional Law. i. Administrative. The officers of the State are, as a consequence of their official position, protected by certain immunities ; as, on the other hand, the subject is to some extent protected against their misuse of the powers committed to them for public purposes. To begin with the latter case. There is, first and most important as a guarantee of the liberty of the subject, the Habeas Corpus Act, the operation of which is here illustrated by Darnel's case, and the case of Sommersett. (In connection with this last there are also treated the cases of S hanky w. Harvey, The slave Grace, Le Louis, and Forbes v. Cochrane, to exhibit the attitude of the English law towards slavery ; and Pigg v. Caley, which is inte- resting as the last case in which villeinage was asserted in an English law court. Finally, ex parte Fox illustrates a singular exception to the respect paid by our law to the personal rights and liberty of Englishmen, and the subject of Impressment is handled in a note.) Another valuable guarantee for the protection of the subject against the executive consists in the doctrine of the illegality of general warrants, here illustrated by the cases of Leach v. Money, Wilkes v. Wood, and Entick v. Carrington. In all these cases the plaintiff recovers damages against the agent of the executive for an illegal exercise of power. And this remedy will be available against the governor of a colony as well in the courts of his colony, as in the English courts : Fabrigas v. Mostyti. Hill v. Bigge also illustrates this point, as well as the further point that such a governor is liable to be sued for debt in his own courts. This is of importance as affecting the old doc- trine of the extent of powers delegated to the governor of a colony. He is not a viceroy, but is strictly limited by his commission : Cameron v. Kyte. The constitution wViIIf it finis ni-nf<»^fc tVio c.K.'a^*- Digitized by Microsoft® Introduction. against the executive, affords certain immunities to public officers. They are not held personally liable for contracts made by them on behalf of the public in the performance of their duties : Macbeath v. Haldimand ; Gidley v. Lord Palmerston. A governor is not liable to an action in his own courts for any act done in his political capacity as an act of state : Luby v. Lord Wodehouse ; Sullivan v. Earl Spencer. With these is compared Phillips v. Eyre, where the governor was held to be protected against an action here in England by an act of indemnity passed by the Jamaica legislature, and to which his own assent had been necessary. Then as to the relations between officers in the military and naval services, and their liability to their subordinates, they are governed by the principle that those who voluntarily enter these services must be held bound by its regulations. The courts, therefore, gene- rally speaking, decline to discuss essentially military or naval matters ; and no remedy is obtainable in a civil court for damage, even maliciously caused to his subordinates by an inferior : Sutton v. Johnstone; Dawkins V. Lord Rokeby. And from these cases it is also clear that the courts will generally refuse to interfere with the decision of a court-martial. Digitized by Microsoft® lo Constitutional Law. ii. Judicative. The integrity of our judicial system is secured by various means. No jury is liable to be fined, or otherwise punished for its finding : BushelVs case. The sovereign, although by the theory of the lawyers he is the 'fountain of justice,' and the judges are regarded as his delegates, cannot institute a new court of justice, with a new juris- diction, nor may he personally determine causes : The Case of Prohibitions. The judges are made independent of the crown by being liable to removal only on an address of both houses of parliament, otherwise holding their appoint- ments quamdiu se bene gesserint. They are rendered independent of the people by not being liable for any judicial act. This is shown in a long series of decisions, from Floyd v. Barker down to Kemp V. Neville; Fray v. Blackburn; Houlden v. Smith; Scott v. Stansfield, establishing that no action will lie for words spoken or acts done by them in their judicial capacity, even though malice be alleged. Floyd V. Barker shows that this immunity extends to jurors ; and Calder v. Halkett that the protection is extended to a case of excess of jurisdiction, unless the judge knew, or ought to have known, that he had no jurisdiction. Digitized by Microsoft® Crown — Proclamations. LEADING CASES. THE CASE OF PROCLAMATIONS. ?>Ja. I., 1610. 12 Coke 74 ; 2 S. T. 723. This arose out of the Petition of Grievances. On the Histc 20th Sept., 1 610, Coke, as L. C. J., was called before the Privy Council, where were present the law officers of the crown ; and it was referred to him whether the king, by proclamation, might prohibit new buildings in London, or the making of starch of wheat, which had been preferred to the king by the House of Commons as grievances and against law. Coke asked leave to consider with his colleagues, since the questions were of great importance, and they con- cerned the answer of the king to the Commons. Held, that the king hath no prerogative but that Answi which the law of the land allows him. He cannot by his proclamation change any part of the common law, statute law, or customs of the realm ; nor can he create any offence by his prohibition or proclamation, for that would be to alter the law. But proclamations which call upon the subject to perform duties already en- joined by law, are perfectly lawful ; and subsequent disobedience is an aggravation of the offence.^ ' See on the subject of Proclamations, Cox, Inst. Eng. Gov. 25-31 ; Taswell-Langmead, M. C. H. 475-478 ; Hearn, Eng. Gov. 37-42; and Cock- burn, L. C. J. in a note to his charge to the Grand Jury in^. v. Nelson and Brand, 1867, p. 37, commenting on this case. Digitized by Microsoft® 12 Constitutional Law. THOMAS V, SORREL. 25 Car. II., 1674. Vaughan, 330-359. History. The plaintiff claimed a large sum of money from the defendant for selling wine on various occasions without a licence, contrary to stat. 12 Car. 2. The jury returned a special verdict, on the ground that they found a patent of 9 J a. I, incorporating the Vintners' Company, with leave to sell wine non obstante the stat. 7 Edw. 6. The chief question to be argued was the validity of these letters patent ; and to ' this dark learning of dis- pensations ' Vaughari, C. J., applies himself Judgment. Malum per se cannot be dispensed with ; and as to mala prokibita, those statutes only may be dispensed with which were made for the king's profit, but not where they are for the general good, or the good of a third party. He may dispense with nuisances and penal laws by which no third party has a particular cause of action. Dispensations to individuals have been numerous ; the indefiniteness of the persons is no argu- ment against extending the dispensation to corpora- tions. Judgment, therefore, quod querens nil capiat. Note. — The law as here laid down agrees with the view of Coke, I Inst. 120a, 3 Inst. 154 (Cox, Inst. Engl. Gov. 24, note by Digitized by Microsoft® Crown — Dispensing Power. GODDEN V. HALES. 2Ja.II., 1686. 2 Shower, 475 ; xi S. T. 1165. This was a collusive action, brought to establish the Histo dispensing power claimed by the crown. The plaintiff sued Sir Edward Hales, who was lieutenant of the Tower, for neglecting to take the oaths of supremacy and allegiance, which he was bound to do as a military officer by stat. 25 Car. 2. He had been indicted and convicted at the Rochester assizes, and the present action was to recover the penalty of 500/. The defendant pleaded a dispensation from the king Plea. by his letters patent under the great seal. Were this pardon and dispensation a good bar to the action } Eleven judges out of twelve concurred in holding that Judgn they were. It is a question of little difficulty. There is no law whatever but may be dispensed with by the supreme lawgiver ; as the laws of God may be dispensed with by God Himself The laws of England are the king's laws ; it is his inseparable prerogative to dis- pense with penal laws, in particular cases and upon par- ticular reasons ; and of these reasons the king himself is sole judge. Decided: — That the king has a dispensing power. JVote. — The judgment of Herbert, L. C. J., proceeded upon the most extravagant ideas of prerogative. Nevertheless, it is by no means evident, in the words of Hallam, that this deci- sion was against law.' The dissentient judge in this case was Street, and Powell is said to have doubted, which, judging from his doubts in the Bishops^ case, is very probable. * 3 Hallam, Const. Hist. Eng., 7th ed. 61-63. Digitized by Microsoft® 14 Constitutional Law. History. Case for the crown. SEVEN BISHOPS' CASE. i, James II., 1688. 12 5". 7: 183 ; 2 Phillips, S. T. 259-355; Br. 408-523. James II. had ordered by proclamation that a Declara- tion of Indulgence should be read by the bishops and clergy in their churches, and that the bishops should distribute the Declaration through their dioceses to be so read. Several of the bishops met at Lambeth and drew a petition that the king would not insist upon their distri- buting and reading the Declaration, 'especially because that Declaration is founded upon such a dispensing power, as hath been often declared illegal in parliament, and particularly in the years 1662 and 1672, and the be- ginning of your Majesty's reign.' This petition six of them presented to the king in person. Shortly after- wards they were summoned to appear before the council to answer ' matters of misdemeanour,' and were told that a criminal information for libel would be exhibited against them in the King's Bench, and were called upon to enter into their recognisances to appear. This they refused to do, insisting upon their privileges as peers ; and were accordingly committed to the Tower. On the 29th June the case came on, when they were charged with a conspiracy to diminish the royal autho- rity, and in prosecution of this conspiracy with the writ- ing and publishing of a certain ' false, feigned, malicious, pernicious and seditious libel.' After much time wasted in attempts to prove the handwritings of the bishops, it was only done by calling Blathwayt, a clerk of the Privy Council, who had heard the bishops own their signatures to the king. But the libel was charged to have been written in Mid- Digitized by Microsoft® Crown — Dispensing Power. written at Lambeth, in Surrey. Accordingly Lord Sun- derland was brought to prove the presentation to the king. The document was asserted by the prosecution to be a libel, because it urged that the Declaration was based upon an illegal power. The counsel for the defence argued : — Defer 1. That the petition was a perfectly innocent petition, presented by proper persons in a proper manner. The bishops are intrusted with the general care of the church, and also by stat. i Eliz. c. 2 with the carrying out of that Act — the Act of Uniformity ; and had a right to petition in this case. 2. As to their questioning of the dispensing power, no such power exists. The declarations of parliament suffi- ciently show this. In 1662, when King Charles wished to extend an indulgence to the Dissenters, it was asserted by parliament that laws of uniformity ' could not be dis- pensed with but by act of parliament.' In 1672, when the king had actually issued such a Declaration, upon the remonstrance of parliament he caused the said Declara- tion to be cancelled, and promised that it should not be- come a precedent. In 1685, when the king announced that he had certain officers in his army ' not qualified according to the late tests for their employments,' parlia- ment passed an Act of Indemnity that ' the continuance of them in their employments may not be taken to be dispensing with that law without act of parliament.' Until the last king's time, the power of dispensing ' never was pretended,' on which point Somers, as junior counsel for the defence, quoted 'the great case of Thomas v. SorreV, to show that it was there agreed by all that there could be no suspension of an act of parlia- ment but by the legislative power. The two questions left to the jury were : — i. Was the Chari publication proved .' — and was a mere question of facts. 2. Was the petition libellous } Wright, L. C. J. and Digitized by Microsoft® 1 6 Constitutional Law. Allybone, J. directed them that it was ; Holloway and Powell, J J . thought that it was not. The jury having retired and been locked up all night, the next morning delivered a verdict of Not Guilty. Notes. — This trial illustrates several questions of great con- stitutional importance, i. The document presented to the king might first be argued to be privileged on the ground of its being n. petition, and this raises the question of the limitation to the right of petition.' 2. The crown charged the petitioners with sedi- tion, and thence starts an inquiry into the nature of a seditious libel.^ 3. This alleged seditious character again arises out of the denial of the dispensing power, and the principal argument both of the bar and the bench turned upon the great question of this prerogative. The last point will be found discussed in an Excursus ; to enter upon the others would carry us too far. Points of law But upon the trial there were several points of law raised by on the trial. jj^g bishops' counsel which it may be useful to summarize : ' 1. It was argued that they should not be compelled to plead, because the return made to the writ of Habeas Corpus by the Lieutenant of the Tower did not state that they had been committed by the Privy Council as such, but by certain ' lords of the Privy Council.' The objection was bad, since the warrant, the really important document, was sufficient in point of form. 2. Nor as peers of parliament had they been legally committed, since ' seditious libel ' was not a breach of the peace, for which sureties may be demanded. But privilege of parlia- ment holds except in the cases of ' treason, felony, and the peace,''' (f.e. breach of the peace), and this privilege secures those entitled to it against commitment. Both these points were overruled by three judges: Powell, J., in each case would like to wait to consider precedents, and would give no opinion. ' On the history of the right to petition may be consulted, Taswell- Langm. M. C. H. 583-585 ; I May, C. H. E. 444-451 ; Cox, Inst. Engl. Gov. 260-265. ' On the controversies as to a seditious libel, Cox, Inst. Engl. Gov. 278-293 ; 2 May, 107- 11 7, and passim. ' They will be found stated at greater length and discussed in 2 PhilKps, State Trials, 333-355. Some of them are mentioned in Macaulay's vivid narrative of the trial, with vi'hich everybody is familiar (Hist. Engl. c. viii.). ■* Coke, 4th Inst. 25, quoted by Pratt, L. C. J. in R. v. Wilkes, 2 Wilson, Digitized by Microsoft® Crown — Dispensing Power. 3. Counsel for the bishops claimed a right of imparlance : the crown lawyers maintained that the accused must plead instanter. The older practice appears to have been in favour of an imparlance ; but the practice for the last twelve years had been the other way. Since the Revolution it has varied. The point at all events was overruled on this occasion. 4. Strong objections were taken as to the nature of the proof of handwriting offered — but these only show how unsettled was the law upon the subject of proof of hand- writing. As to some, though not as to all of the bishops, evi- dence was offered, which would now be considered quite satis- factory in kind — of witnesses who had seen them write, or re- ceived letters from them, and so could testify as to identity of handwriting, and so on. The judges being divided as to the sufficiency of the proof, other evidence was required, and therefore Blathwayt was produced. 5. The last objection was that there was no sufficient proof even of publication in Middlesex. To this the Court very strangely agreed, and Lord Sunderland therefore was produced to prove the actual delivery of the document into the king's hands — which might reasonably have been inferred from the facts already in evidence. Digitized by Microsoft® i8 Constitutional Law. History. Judgment. Petition of grievances. BATES' CASE (THE CASE OF IMPOSITIONS). 4 'y^a. I., 1606. 2 S. T. 371 ; Br. 247-305. An information was exhibited in the Exchequer against Bates, a Levant merchant, for refusing to pay an impost of ^s. per cwt. on currants ordered by letters patent from the king, in addition to a statutory poundage of 2s. 6d. per cwt. Upon this statute defendant reHed, and op- posed payment of the 5 J- as illegally imposed. Judgment of the four barons was unanimous for the crown : 1. The king's power is twofold — ordinary and absolute. The ordinary power, or common law, cannot be changed without parliament. But the king's absolute power is salus populi, and is not directed by the rules of common law, but varies according to the wisdom of the king. Judgment in matters of prerogative must be not ac- cording to common law, but according to exchequer precedents. 2. All customs are the effect of foreign commerce : but all foreign affairs are in the absolute power of the king. The seaports are the king's gates, which he may open or shut to whom he pleases, and he has therein absolute power. 3. If he may restrain the person by a ne exeat he may a fortiori restrain goods, and if he may restrain these absolutely he may do so sub modo. 4. If he may impose, he may impose what he pleases. While the case was pending the matter had already been taken up by the Commons, who upon presenting a petition were informed by the king of the decision of the Digitized by Microsoft® Crown — Right to Impose. 19 Rates was published under the authority of the great seal, imposing heavy duties upon almost all mercantile commodities, to be paid to the king, his heirs and suc- cessors. When parliament again met they debated the whole question of impositions, and were not deterred by the king's message that they were not to do so. The debate lasted four days, the principal speakers being Sir Francis Bacon for the right of imposition, and Hakewill, Yelverton, and Whitelocke on the other side. The main points in the argument against the king's right to impose were : I. Customs are consuetudines, and the very name shows that this " duty is a child of the common law." II. But by the common law the duty is a thing certain not to be enhanced by the king without consent of par- liament. Where the common law has made provision, the king may not impose arbitrarily. All our kings, from Hen. III., have sought increase of customs by way of subsidy from parliament ; some- times by way of prayer and entreaty, and for a short time ; sometimes even by way of loan undertaking to repay. All which is an argument that they had no such absolute power. Even Edw. III., than whom 'there was not a stouter, a wiser, a more noble and courageous prince,' prayed his subjects for a relief for the maintenance of a war (14 Edw. 3, Stat. 2, c. I, 4). Where merchants alone granted a subsidy on wool, the Commons complained, 27 Edw. 3, and in stat. 36 Edw. 3, c. 11, it is expressly forbidden. From the conquest till the reign of Mary — 480 years, there were only six impositions by twenty-two kings : and yet all these, even when borne for a short time, were complained of, and upon complaint removed. Other so-called impositions were ' dispensations or licences for money, to pass with merchandise prohibited by act of parliament to be exported.' c 2 Digitized by Microsoft® 20 Constitutional Law. III. Even if the king had such power at common law, it is utterly abrogated by statute, e. g., — 1. Magna Carta, cap. 30. 2. De Tallagio non concedendo : 34 Edw. i, st. 4. 3. 25 Edw. I, c. 7. 4. 14 Edw. 3, St. I, c. 21. These debates resulted in a Petition of Grievances to the king, 1610 : which not only complained of impositions in general, but also sought to be relieved of certain im- posts on alehouses and sea coal : ' that all impositions got without consent of parliament may be quite abo- lished and taken away.' These impositions on sea coal and alehouses were remitted, but no further concession was made. Digitized by Microsoft® Crown — Right to Impose. 21 R. V. HAMPDEN (CASE OF SHIP MONEY). 13 Car. I., 1637. 3 6'. T. 825-1316; Br. 306-370. King Charles had begun to issue writs for the collec- History, tion of ship-money in 1634, and in 1635 one was directed to the sheriff of Bucks and the baihff of Buck- ingham, enjoining the former to assess the boroughs in his shire, and the latter every man in his borough to contribute. Qn Hampden's refusing to pay, proceedings were taken against him in the Exchequer, where he appeared, and demurred to the writ as insufficient in law. Mr. St. John argued for Hampden : Without the assistance of his great council in parlia- Argument. ment the king cannot impose. The money is to be for the defence of the kingdom. Now there are certain known and undoubted means whereby the law has pro- vided for this defence, viz., (i) by tenure of land ; (2) by prerogatives of the crown ; (3) by supplies of money in times of danger. But parliament is by law appointed as the means of supply, and the king may call parlia- ment when he pleases. There are abundant authorities to show that particular charges cannot be raised without consent of parliament ; amongst others a charter of William I. ; Magna Carta ; 25 Edw. I. De Tallagio non concedendo. Petition of Right, etc. So much as to defence in general. That of the sea has nothing special. The precedents are for charging maritime towns only. This is the case of an inland town. Digitized by Microsoft® 22 Judgment. Subsequent history. Constitutional Law. Crooke, J., gave his opinion in favour of Hampden : This writ is illegal, not being by authority of parlia- ment. It is against the common law, as appears by the fact that it is the first since the conquest sent to any inland town to prepare a ship. It is also against divers statutes, e. g., — 2 Ric. 2 ; De Tallagio non concedendo ; 21 Hen. 4; I Ric. 2, c. i ; and the Petition of Right. Though it be alleged that this charge has been imposed for the public defence, it must be shown that there is imminent danger. Even then there is no such prero- gative. In a time of peace and no extreme necessity legal courses must be used, and not royal power. Finch, C. J. Common Pleas, for the Crown : The king, knowing and declaring the whole kingdom to be in danger, may command them to prepare ships for his navy. The defence of the kingdom must be at the charge of the whole kingdom. Sea and land make but one kingdom, and therefore the subject is bound to the defence as well of the sea as of the land. Of the twelve judges seven delivered opinions in favour of the king's right ; five in Hampden's favour : Judgment was therefore for the Crown. This decision ' gave much offence to the nation,' and later a statute (i6 Car. i, c. 14) was passed declaring all the proceedings contrary to ' the laws and statutes of the realm, the right of property, the liberty of the subject, former resolutions of parhament, and the Pe- tition of Right ; ' and annulling this judgment. Digitized by Microsoft® Crown — Dispensing Power. 23 Excursus. I.— DISPENSING POWER. The existence of a suspending and dispensing power as a prerogative of the crown is one of the questions which have most engaged the partisanship of historical and constitutional writers, and its true history has been consequently much debated. Writers like Lord Campbell and Lord Macaulay deny that it has ever existed ; but Hallam cautiously observes that ' it was by no means evident that the decision in Sir Edward Hales case v/a.s against law.' An argument for its existence will be found to have been urged in a law court so recently as 1815.' It is certain that the power in our earlier history was often employed; and not unfrequently with the approval of the people. It seemed indeed almost a corollary from the king's power of pardon : if he might dispense with the penal consequences of an offence when it had been committed, it seemed natural that he should be able to supersede the necessity of pardon by a previous licence to commit the action. It is said to have been first used by Henry III. in imitation of the power of dispensation claimed by the Pope, to all of whose rights the crown claimed to succeed. It is true that even then protest appears to have been made against the introduction into the civil courts of the old ecclesiastical ' non obstante ' clause. Nevertheless instances of dispensation became numerous, and parliaments of Richard II. permit the king to exercise the power, while re- serving a right to disagree thereto ; and this power is amply recognized by the Commons in the reign of Henry IV. In the reign of Henry VII. it was determined by all the judges in the Exchequer Chamber that although an act of par- liament forbade any person to hold the office of sheriff for more than a year, and expressly barred the operation of a nan obstante clause, nevertheless a grant of a shrievalty for Hfe, if it contained such a clause, would be yalid. And this case was not only approved by Fitzherbert, by Plowden, by Coke and ' By Dr. Lushington in the Case of Eton College. Digitized by Microsoft® 24 Constitutional Law. by all the judges in Calvin's case, but it was followed in Thomas V. Sorrel. The claim was admitted to a certain extent on the part of the Commons at a conference between the two Houses on the Petition of Right. The Declaration of Rights itself only declares that the dispensing power of the crown as it has been exercised of late is illegal J and when the prerogative was wholly abolished by the Bill of Rights (i W. & M. ses. 2, c. 2, s. 13), a proviso was inserted to save all prior charters, grants, and pardons. On the other hand the protests frec[uently made against its exercise were made rather against particular occasions of its use. When Charles II., wishing to employ the suspending power, issued his Declarations of Indulgence, parliament pro- tested, and he was obliged to take them back. Of this much is made in the argument for the Seven Bishops, and Macaulay considers it a complete abandonment of the right. But no pro- test was made on his suspending other statutes, as for example the Navigation Act. We may fairly sum up perhaps by saying that the power had been frequently exercised, though always subject to protest when its particular exercise was disapproved. But its legality was fully admitted by the law courts, and there was nothing in the concessions made, for example, by Charles II., to amount to an express renunciation or statutory abolition of the claim. It was the obstinate determination of James II. to employ it as a means of undermining the constitution, that led to a new settlement of the kingdom, and the formal aboli- tion of a prerogative of which the people had become im- patient. Digitized by Microsoft® Parliament — Privilege. 25 BARNARDISTON v. SOAME. 26 Car. II., 1674. 6 5. T. 1063 ; £r. 796-836. Soame, as sheriff of Suffolk, had made a double return Double for an election of knight of the shire. Thereupon the '^^'"™- plaintiff, as one of those returned, brought an action against him for maliciously making a second return, and obtained a verdict with 800/. damages. The judgment, after having been affirmed on motion in arrest, was taken on a writ of error into the Exchequer Chamber. The sheriff, as to declaring the majority, is judge, and Ji<3g™e"t' no action will . lie against a judge for what he does judicially. But besides, a double return is a lawful means for the sheriff to perform his duty in doubtful cases. To admit this action would be against the common law, and would introduce a dangerous novelty. The sheriff is the officer of parliament, and is account- able only to them. The judgment must be reversed. On a fresh writ of error to the House of Lords, this H. L. reversal was affirmed. Decided, therefore, that an ac- tion will not lie against the sheriff for making a double return. Note. — In this case, concurrently with ,the proceedings at Subsequent law, the question was discussed in parliament, where the elec- tion of the plaintiff was adjudged good, and the defendant committed for making the double return. After the decision of the Lords an Act was passed to provide for the difficulty, (7 & 8 Will 3, c. 7, made perpetual by 12 Anne, st. i, c. 15), making double returns actionable by the aggrieved party. Digitized by Microsoft® 26 Constitutional Law. ASHBY V. WHITE. 2 Anne, 1704. Lord Raymond, 938; 14 6'. T. 695-888; Smith, L. C, 251. History. The plaintiff in this case, being duly qualified, had tendered his vote in an election of burgesses for parlia- ment, and this had been refused by the defendant as returning officer. Although the candidates for whom he would have voted were duly elected, the plaintiff brought an action, and laid the damages at 200/. He obtained a verdict, with 5/. damages and costs. On motion in the Queen's Bench in arrest of judgment, on the ground that the action did not lie, judgment was given for the defendants. Holt, C. J., dissenting. Upon writ of error in the House of Lords, this was reversed on the grounds set forth by Holt in the Court below. Judgment. The franchise is a benefit, and there must be a legal remedy to vindicate it. The right to vote is founded upon the elector's freehold, and matters of freehold are determinable in the king's courts. This is a proper tribunal to try the question ; ' who hath a right to be in the parliament is properly cognizable there, but who hath a right to chuse is a matter settled before there is a parliament' And again the House of Commons can- not take cognizance of particular men's complaints, nor can it give satisfaction in damages. Decided: — That an action will lie against a returning officer for refusing the vote of a duly qualified person : and that the refusal is an injury, though without any special damage. Note. — The House of Lords gave judgment in Ashby's favour on the 14th January, 1704. The Commons immediately took the matter up, and after debates lasting from the 17 th to the 2 sth January, on this latter day they passed resolutions that the Digitized by Microsoft® Parliament — Privilege. 27 determination of the right of election of members is the proper and exclusive business of the House of Commons ; that they cannot judge of the right of election without determining the right of electors ; and that an action in any other court was therefore a breach of privilege. The Lords also discussed the question, and passed counter- resolutions. Meanwhile five other ' Aylesbury men ' had brought similar actions against the constables of their borough. They were thereupon committed to prison (Dec. 5) by the House of Com- mons for a breach of their privileges, together with their counsel and solicitors, and they failed to obtain their discharge on habeas corpus. the majority of the judges holding against Lord C. J. Holt, that the House of Commons were the sole judges of their own privileges. The burgesses then applied for a writ of error to take the question to the House of Lords, which is a writ of right. Nevertheless the House of Commons resolved that no writ of error lay in this case, and petitioned the queen not to grant it. The Lords now also appealed "to the queen by an ad- dress, in which they show that writs of error from inferior tribunals are • ex debito justiticB, writs of right, and upon the queen's referring the question to the judges, ten out of twelve certified to that effect. They further complain that the reso- lutions of the House of Commons amount to a direct repeal of the laws protecting the liberty of the subject by means of habeas corpus, and pray that she will order the writs to issue. The reply of the queen was, that she would have granted the writs of error prayed for, but that it was necessary at once to put an end to the session, and she knew, therefore, that no further proceedings could be taken. The prorogation of parliament left the Aylesbury men free to pursue their legal remedies, without the intervention of privilege, and they obtained verdicts and execution against the returning officer. Digitized by Microsoft® Plea. 28 Constitutional Law. BURDETT V. ABBOT. SI Geo. III., 1811. 14 East, 1-163. History. This was an action of trespass against the Speaker of the House of Commons for breaking into the plaintiff's house, and carrying him to the Tower. The defendant pleaded that plaintiff and himself were members of a parliament then sitting ; that it had been resolved in parliament that a letter from the plaintiff in a newspaper was a breach of its privileges, and that the Speaker should issue his warrant for the plaintiff's commitment to the Tower. Judgment. Argued before Lord Ellenborough, C. J., (and affirmed in error). Held: — that the power of either House to commit for contempt is reasonable and necessary, and well established by precedents. 2, That the execution of a process for contempt justified the breaking into the plaintiff's house. Digitized by Microsoft® Parliament — Privilege. 29 STOCKDALE v. HANSARD. 2 Vid., 1839. 9 Ad. ^^ E. i; Br. 870-959. A book published by Stockdale had been described History. by two inspectors of prisons in a report to the govern- ment, as ' disgusting and obscene.' This report was printed and sold by the Hansards by order of the House of Commons. The plaintiffs brought an action for libel, with 5000/. damages. The defendants pleaded that they had printed and Plea, sold the report only in pursuance of the order of the House of Commons, and that the House had resolved that the power of publishing reports and proceedings ' is an essential incident to the constitutional functions of parliament.' To which the plaintiffs demurred, that the known and Demurrer, established laws of the land cannot be superseded or altered by any resolution of the House of Commons. It was argued by the defendants, who had been directed Argument, by the House to plead to the action merely to inform the Court, that the act complained of was done in exer- cise of its authority, and in the legitimate use of its privileges : that the courts of law are subordinate to the Houses of Parliament, and are therefore incompetent to decide questions of parliamentary privilege. But if the Court were competent to inquire into the existence of the privilege, it can be shown to have long existed. ' Judgment for the plaintiff, /^r Lord Denvian, C. J. ; — Parliament is supreme : but neither branch of it is Judgment. supreme by itself The privilege of each House may be the privilege of the whole parliament, but it does not follow that the opinion of its privileges held by either House is correct. The privilege of committing for con- Digitized by Microsoft® 30 Constitutional Law. tempt has known limits : it is, e.g., only till the close of the session. There are, in fact, many cases where the law courts have discussed questions of parliamentary privilege. 2. Nor has it been shown that the privilege of publica- tion exists. Here the publication of the opinions referred to was not in relation to any matter before the House, and more copies were ordered to be printed than were necessary for the use of its members. Decided: — ^that the House of Commons, by ordering a report to be printed, cannot legalize the publication of libellous matter. Note. — In consequence of these proceedings, an Act, 3 & 4 Vict. c. 9, was passed, in virtue of which any person called upon to defend an action in respect of publications ordered by either House of Parliament, may bring before any court of law in which such proceeding has been commenced, a certificate from the Lord Chancellor, or the Clerk of the Parliaments, or the Speaker of the House of Commons, or the clerk of the same House, that the publication was under the authority of the House of Lords or the House of Commons, and such court or judge shall thereupon stay all such proceedings. And this is to apply also to all bond, fide extracts from any paper thus printed. Digitized by Microsoft® Parliament ^Privilege. 31 SHERIFF OF MIDDLESEX'S CASE. 3 Vict., 1840. II Ad. &> E. 273 ; Br. 960-966. This case arose out of Stockdale v. Hansard. The Histoiy. sheriff of Middlesex, in pursuance of a writ from the Queen's Bench, had levied execution upon property of the Messrs. Hansard. The House of Commons com- mitted him for contempt : and upon motion to discharge him on habeas corpus. Lord Denman, C. J., delivered judgment. The judgment in Stockdale v. Hansard was correct, judgment. The technical objections taken to this warrant from the Spealjer are insufficient. On a motion for a habeas corpus, the return, if it discloses a sufficient answer, puts an end to the case : and I think the production of a good warrant is a sufficient answer. Held: — that a court of law cannot inquire into the grounds of a com- mitment for contempt by the House of Commons. Digitized by Microsoft® 32 Constitutional Law. HOWARD V. GOSSETT. 5 (Sv 6 Vict, 1842. Carr. &«■ M. 380 ; 10 Q. B. 359 ; 5 Dow. 165. History. Howard had been Stockdale's attorney, and, refusing to appear before the House of Commons when sum- moned to be examined, was committed for contempt. It was admitted that the officers had exceeded their authority in remaining in plaintiff's house to await his return. Upon this ground he obtained damages at nisi prius. In a second action in the Queen's Bench, he obtained judgment on the ground that the warrant did not charge any offence, nor assign any cause for the arrest. Judgment. Tliis judgment was unanimously reversed in S. C. Held : — that the House of Commons has power to order the attendance of witnesses, and to arrest them if they refuse to appear. 2. As to the form of the warrant, a warrant of the House of Commons is the writ of a supe- rior court, and these, where not appearing to be in excess of jurisdiction, are valid. Note. — In Lines v. Lord Charles Russell ' (1852), the plain- tiff, who had been committed by a warrant of the chairman of the St. Alban's Election Committee, brought an action of trespass against the defendant, who was the serjeant-at-arms. By the Elections Petition Act, 1848, if any witness mis- behaved in giving or refusing to give evidence before an election committee, the chairman might, by their direction, commit him. The objection was taken to the warrant that it did not state that Lines was a witness, or that he had misbehaved. Held: 1 May, Pari. Practice, 74 ; 19 L. T. 364. Digitized by Microsoft® Pnrliamtnt — Privilege 33 ^-That the warrant was entitled to the same fespect as the warrant of the highest court in the country, and the jury were directed to find for the defendant. A rule was obtained fot a new trialj but the matter did not go to a decisioru Digitized by Microsoft® 34 ConstihUional Law. Excursus II.— PRIVILEGE OF PARLIAMENT AND THE LAW COURTS. The whole subject of the Privilege of Parliament is much too large to be treated in a short excursus.^ But we must not omit to consider what is for our purpose the most interesting aspect of the subject, and one of the most difficult questions in Constitutional law, viz., the extent to which courts of law will adjudicate upon matters of privilege. The violent controversies produced by this question between the House of Commons and the Courts of Law are already indicated in the cases reported ; nor is it at all impossible that similar contests may again occur. Each House of Parliament, and therefore the House of Commons, claims to be the sole judge of its own privileges and of what constitutes a breach of them. So much the courts have always admitted — that the House of Commons possesses the authority to commit summarily for contempts which exists in every superior court of law;" and the courts always give a liberal construction to the warrants of such commitments, which are therefore not reversible for form. But this has not contented the House of Commons. They have not thought it sufficient to enforce their undoubted privileges, but have claimed in effect a power of legislation by asserting their exclusive right to entertain all questions connected with privilege ; and have at the same time claimed that the courts of law should act ministerially only in matters of privilege, accepting or enforcing any declaration of either House. They have even denied that the judges could ascertain what is the law of privilege, as though it were a matter of inspiration vouchsafed only to them- selves.^ The opinions of the judges in the matter have varied very much. During the last century the tendency was strong in favour of declining to decide questions of privilege in any way, and the natural result followed, that privilege was pushed to an ' Taswell-Langmead, C. H. 294-312. Cox, Inst. Eng. Gov. 85 foil, 209 foil. Sir Erskine May, P. P. cc. iii.-vi., 61-176. * Per Ellenborough, C. J., in 14 East, 138, Burdett v. Abbott, and cf. Lord Eldon in the House of Lords on the same case, 5 Dow. 199. 2 Argument of Attorney-General, in Stockdale v. Hansard, 14 East, /. c. Digitized by Microsoft® Parliament — Privilege. 35 extravagant extent. The House of Commons constantly de- cided the subjects of common actions as matters of privilege, solely because one of the parties interested happened to be one of their own body.' Even in the case of Ashby v. White, however, Holt, L. C. J. expressly asserts the right and duty of the courts to know the law of Parliament as part of the common law of the land. And the later decisions have been much more favourable to the right of the courts to entertain questions of privilege. For this Stockdale v. Hansard is the leading authority. There Lord Denman, C. J. lays down that although the House of Commons has a right to declare what are and have been its privileges — it may not under cover of a declaration create any new privilege. That would be to give to the resolution of a single branch of the legislature the force of a legislative enactment It is true that the House of Commons disclaims the power to make new privileges. But the claim they do assert will amount to the same thing, if they alone are competent to declare the extent of their privileges, and if a court of law is concluded from going behind their declaration.^ The present condition of the question is, according to Sir Erskine May, in the highest degree unsatisfactory. ' Asser- tions of privilege are made in Parliament, and denied in the courts ; the officers who execute the orders of Parliament are liable to vexatious actions ; and if verdicts are obtained against them, the damages and costs are paid by the Treasury. The parties who bring such actions, instead of being prevented from proceeding with them by some legal process acknowledged by the courts, can only be coerced by an unpopular exercise of privilege which does not stay the actions.' ' ' Denman, L. C. J., in Stockdale^. Hansard, and for some flagrant in- stances, see Cox, Inst Engl. Gov., 212 note. "^ The true distinction is made by Lord Clarendon, who constmes the doctrine that the House of Commons are the only judges of their own privileges, to mean, that they are the only judges in cases where their privileges are offended against, and not that they only can decide what are and what are not their privileges. I Hist, Rebellion, pp. 562-564 (IV. ccxxxiii. &c.) ' Parliamentary Practice, p. 175. Digitized by Microsoft® Constitutional Law. CALVIN'S CASE. 6/a. L, 1608. 7 S. T. 559. Br. 4-26. History. King James was anxious that the union of the two crowns should confer mutual naturalization upon his English and Scotch subjects ; and when the English House of Commons was unwilling that this should be so, the question was raised by two actions in the name of Robert Calvin, a postnatus of Scotland, i.e., one born after the union of the crowns. One was in the King's Bench, the other in Chancery. On demurrer the case was argued in the Exchequer Chamber. Argument. Allegiance is the obedience due to the sovereign ; and persons born in the allegiance of the king are his natural subjects, and no aliens. The allegiance is not limited to any spot — nullis finibus premitur — and is due to the king in his natural capacity, rather than his politic, of which he has two, one for England, and one for Scot- land. One allegiance is due by both kingdoms to one sovereign. The point is, whether internaturalization follows that which is one and joint, or that which is several ; for if the two realms were united under one law and parlia- ment, the postnatus would be naturalized. As it is, the king is one ; but the laws and parliament are several. Judgment. Held: — That the postnati are not aliens, and may there- fore inherit land in England. Digitized by Microsoft® Crown — A llegiance. Excursus III.— ALLEGIANCE AND ALIENS. The absurd decision in Calvin's case was based upon the exaggerated notions of ' divine right,' characteristic of the Stuarts, and of many lawyers of that time. By the Act of Union, however, which has Uiiited the two kingdoms into one, the doctrine involved has been rendered unnecessary and obsolete. , Allegiance is defined by Coke to be 'a true and faithful obedience of the subject due to his sovereign.' It is correla- tive with protection, and so ceases when the subject can no longer prqtect his subj.ects.' It is. not governed by locality, but clings to. the subject wherever he is : nemo potest exttere patriam. And it is indefeasible. — its obligation is for life. This was the earlier EngUsh doctrine as to allegiance, but it has been much rnodifi^d by modern legislatioui Allegiance may now be renounced or acquired ; and is regulated by statute 21 & 22 Vict. c. 48. As to aliens, stat. 7 & 8 Vict. c. 66, relaxed the law. Every person born of a British mother shall be capable of holding 'real or personal estate. Alien friends may hold every kind of personal property, except chattels real, and may hold lands for a term of years not exceeding twenty-one years, for purposes. of residence or business. The. Naturalization Act, 1870, 33 & 34 Vict, c^ 14, provides, that real and personal property of every description may be acquired and held by an alien in the same manner as by a natural- born British subject, and a title to real and personal property may be derived through an alien, precisely as through a natural-born British subject. It also provides for the naturali- zation of aliens, aijd enables British subjects to become naturalized in a foreign state, and again to be re-admitted to Bjitish nationality.^ ' ' All^gi^nce is the tie or ligamen lyhich binds the subject to the king in return for that protection which the king affords the subject.' 2 Bl. Comm. 366. ^ Cf. P'orsyth's chap, (ix.) on ' Allegiance and Aliens, ' pp. 333-340; 2 May, C. H. Engl. 296-304 ; and Lord, Chief Justice CoMurn's bo.ok on 'Nationality,' 1869. Digitized by Microsoft® 38 Constitutional Law. CAMPBELL V. HALL, 15 Geff. III., \11\. 20 S, T. 239-354. History. This was an action against the collector of customs in the island of Grenada to recover money paid as duty upon exports, on the ground that the duty had been illegally imposed. It appeared that Grenada had been ceded by capitu- lation in Feb. 1762. By a proclamation in October, 1763, the crown had delegated to the governor power to legislate with the advice and consent of a council and an assembly of representatives. -In July, 1754, letters patent were issued under the great seal, imposing a duty upon exports from Grenada, The question was, whether the crown, after the pro- clamation of 1763, could still impose a new duty. Judgment. Held: — That the crown having once delegated the power of legislation (including, taxation) to a local assembly, cannot afterwards exercise the power of levy- ing taxes ther& » * Digitized by Microsoft® Remedy against Crown. 39 BANKERS' CASE. 2 W. df- M. — 12 Will. III., 1690-1700. 14 5. 7: I J Br. 228-234. Charles II. had been accommodated with loans by History, bankers on the security of public monies, and a stat. 19 Car. 2, c. 12, made the 'orders and tallies' transferable. In 167 1, payment was postponed for a year, but after- wards continued. In 1677, the king granted them an- nuities out of the hereditary excise, which were paid till 1683. They then fell into arrear, until at the Revolution suits were begun to enforce payment. The procedure was by petition to the Barons of the Exchequer. The question was, whether the grant of the king bound Argument. his successors, i.e., could the king alienate the revenue fixed in him and his successors. Held: — By a majority of the judges, that the peti- Judgment. tioners had adopted a proper mode of seeking remedy. The judgment, though reversed by Lord Keeper Somers, was reaffirmed by the House of Lords. Note. — No benefit was derived from the Petition of Right in this case.' By 12 & 13 Will. 3, c. 12, and c. 15, the heredi- tary excise after 26 December, 1701, was ordered to be charged with an annual sum equal to interest at 3 per cent., until redeemed by repayment of one half of the principal sum. ' Mansfield, C. J, in Macbeath v. Haldimand, i T. R. 172. Digitized by Microsoft® 40 Constitutional Lauf. History. Argument. Judgment. VISCOUNT CANTERBURY v. THE ATTORNEY-GENERAL. 56-6 Vict. J 1842. I Phillips, 306. This was a petition of right, in which the petitioner claimed compensation from the crown for damage done to his property while Speaker of the House of Commons, by the fire which in 1834 destroyed the Houses of Par- liament. The fire had been caused, the petitioner alleged, by the negligence of the servants of the crown, who had employed too large a quantity of the old tallies from the Exchequer, and so overheated certain stoves. To the petition the Attorney-General put in a general de- murrer. The argument turned on the meaning of the maxim ' The king can do no wrong,' which, it was maintained, covered civil torts as well as criminal acts. The other side argued that no construction could be right which should enable the king to wrong the subject without making compensation, for the prerogatives exist for the advantage of the people. It was held that the reigning sovereign could not be liable for wrongs done by the servants of her predecessor. Decided:- — That a petition of right does not lie to recover compensation from the crown for damage due to the negligence of the servants of the crown. Digitized by Microsoft® Remedy against Crown. 4'' TOBIN V. THE QUEEN. 27 &• 28 Vict., 1864. 33 L.J. {C. P.), 199 {cf. i6 C. B. N. S. 368). The captain of one of her Majesty's ships had taken History, and destroyed an innocent vessel, as a vessel engaged in the slave-trade. The owners brought a petition of right against the crown to recover damages. Held: — i. That Captain Douglas was an officer of Judgment, parliament, and not of her Majesty. 2. That the officer was not acting within his authority, and therefore could not make his principal liable. 3. That a petition of right cannot be maintained against the crown to recover un- liquidated damages for a trespass. Note. — The words of the judgment show that an action might lie against Captain Douglas, as having exceeded his authority. Madrazo v. Willes ; ' Bur on v. Deninan.'^ Com- pare the Excursus on the ' Liability of Ofificers.' 1 3 B. & Aid. 353. « 2 Exch. 167. Digitized by Microsoft® 42 Constitutional Law. Excursus IV.— REMEDIES AGAINST THE CROWN. The ordinary modes of action are not available against the king ; this is a practical corollary from the lawyer-made maxim that the king can do no wrong. But the corollary, like the maxim, is not as old as the constitution. Edward I. made ' an act of state that men should sue him by petition, but this was not agreed unto in parliament' In 43 Edward III. it was resolved ' that all manner of actions did lie against the king as against any lord." But the notion which set the king above the actions to which the subject is liable became established, and Petitions of right and Monsirans de droit became the only remedies for injuries proceeding from the crown and affecting the rights of property. Where the crown is in possession of any hereditament or chattel, and the petitioner controverts the title of the crown, he sets forth his claim, and the answer soit droit fait al partie (let right be done to the party) being endorsed thereon by the kmg, a commission will issue to try the question as between party and party.' The advice to be given by the Attorney-General is discretionary, and he is responsible only to Parliament and the crown.^ Where the two conflicting titles appear upon record the proceeding by monstrans de droit is adopted, which is to pray the judgment of the court upon the facts as established. But the proceedings upon petitions of right have been simpli- fied by 23 & 24 Vict. c. 34, and now they may be brought in any of the superior courts of common law or equity in which an action might have been brought if it had been a question between subject and subject. If the subject is injured by a grant by the crown made to other parties, the remedy is by a writ of scire facias, which may be directly issued by the crown, or on the interposition of a subject by the fiat of the Attorney-General. ' 4 S. T. 1304 (Cox, 24811.). ' Some details as to Petitions of Right will be found in i Todd, Pari. Gov. 239-242. ^ See 7 Lord Carapb. Chancellors, 425 n. Digitized by Microsoft® Executive^Habeas Corpus. 43 DARNEL'S CASE. 3 Car. I., 1627. j,S. T. \; Br. 162-207. Sir Thomas Darnel was one of five gentlemen who History, had been imprisoned for refusing to obey privy seals for forced loans to the.king. The warrant was signed by the Attorney-General, and stated that they were ' committed by the special command of his majesty.' The rule has been where an insufficient cause of com- Judgment, mitment has been expressed to deliver the party. But where no cause has been expressed, the prisoner has ever been remanded. Held that the return was sufficient. The five knights accordingly remained in prison until Further his they were discharged by the king in council, 29 Jan., 1628, the Habeas Corpus having been moved on Nov. 3. When parliament met in March there was much dis- cussion, and a conference took place between the two Houses, when Sir Dudley Digges, Littleton, Selden, and Sir E. Coke argued for the Commons. The conference resulted in the Petition of Right, which insists : i. By Magna Charta no freeman is to be taken or imprisoned but by the lawful judgment of his peers, or by the law of the land. 2. By 28 Edw. III., no man is to be imprisoned without being brought to answer by due process of law. To this Petition the king at length assented. Note. — The doctrines here set forth were finally vindicated by their incorporation into the Habeas Corpus Act, 31 Car. II. c. 2, ' An Act for the better securing the Liberty of the Subject.' Digitized by Microsoft® tory. 44 Constitutional Law. SHANLEY V. HARVEY. 2 Geo. III., 1762. 2 Eden, 12,6. History, ^ young lady, the owner of a negro servant called Harvey, had made him a donatio mortis causa. Her ad- ministrator filed a bill against the negro and his trustees, claiming the gift as part of the deceased's estate. JuJgment. The bill was dismissed with costs by Northington, Q. Held — As soon as a man sets foot on English ground he is free. A negro may maintain an action against his master for ill usage, and may have a Habeas Corpus if restrained of his liberty. Note. — The subject of Slavery is strictly not a question of Constitutional Law ; since personal liberty in this sense is one of those primary general rights, maintainable not against the government as such, but against all the world. Yet in deference to ordinary usage the chief cases connected with the doctrine of slavery in England are here included. The case above is given as an earlier assertion of the English doctrine than Lord Mansfield's famous judgment in Sommersett V. Stewart, although the question is here less directly before the Court. The latter decision, while affirming the doctrine expressed by Lord Northington, was only extorted from Lord Mansfield after he had delayed judgment for three terms, and had vainly struggled to induce the parties to a compromise. It is noticeable that only in 1729 Mr., afterwards Lord, Talbot, A.-G. and Mr. Yorke, afterwards Lord Hardwicke, S.-G. had given an opinion 'that a slave coming from the West Indies to Great Britain doth not become free,' and pledged themselves to the London merchants to save them harmless in the matter.' ' Per Lord Stowell in Tke Stave Grace's Case, 2 Hagg. 105, Digitized by Microsoft® Habeas Corpits — Slavery. 45 SOMMERSETT'S CASE. 2 Geo. III., 1771-2. 20 S. T. 1-82 ; Lofft, 1-19; Br. 65-119. SommerSett, a Virginian slave, having been brought to History. England by his master, left his service and refused to return. His master seized him and committed him to the custody of a ship captain for the purpose of sending him abroad to sell him as a slave. The captain was ordered by writ of Habeas Corpus to return the body of Jas. Sommersett with cause of detainer. The case was argued in the King's Bench. Sommersett 's cause was argued by Mr. Hargrave : — I. The only kind of slavery recognized by English Argument. law is Villeinage, and the last instance of that in the Courts was 15 James I. {Piggv. Caley, q. v.) Even here the judges had always presumed in favour of liberty, and the law recognised no villein, save by blood or the villein's confession. 5 2. The fact that no new form of slavery has since arisen affords a presumption that the law will admit none. 3. Cases ; including Shanley v. Harvey. Lord Mansfield, C. J. delivered judgment that the Judgment, return was insufficient. ' The state of slavery .... is so odious that nothing can be suffered to support it but positive law .... I cannot say this case is allowed or approved by the law of England, and therefore the .black must be discharged.' Decided: — That slaves coming into England are free there, and cannot be sent out of the country by any process to be there executed. Digitized by Microsoft® 46 Constitutional Law. FORBES V. COCHRANE (and COCKBURN). 55 Geo. III., 1 815. 2 Barnewdl dv Cresswell, 448. History. The plaintiff was a British merchant in Spanish Florida, and held there, as it was lawful to do, a number of slaves. Of these thirty-eight deserted one night, and were found next day upon a British ship of war. The commander declined to give them up, and an action was therefore brought by the plaintiff against him and against his commander-in-chief, who had endorsed his conduct. Judgment. In an English ship of war, which may for this pur- pose be considered as a ' floating island,' these slaves were subject only to English law — and by that they were not slaves. The defendants did all they lawfully could to assist the plaintiff ; they permitted him to endeavour to persuade the slaves to return. Decided therefore that no action will lie against an officer who receives slaves into a British vessel and refuses to give them up. Digitized by Microsoft® Slavery. 47 CASE OF LE LOUIS. 57 Geo. III., 1817. 2 Dods. Adm. R. 210 — 264. A French vessel had been captured by an Engh'sh cutter History. for being employed in the slave-trade, and had been condemned in the Vice- Admiralty Court at Sierra Leone. An appeal was brought to the English Admiralty Court. The judgment of the Court below was reversed by Sir William Scott (Lord Eldon). The right of search can be exercised only in time of Judgment, war. It is true that with professed pirates there is no state of peace. But trading in slaves is not piracy, nor is it a crime, by the law of nations. Digitized by Microsoft® 48 Constitutional Law. CASE OP THE SLAVE GRACE (THE KING V. ALLAN). 8 Geo. IV., 1827, 2 Hagg. Adm. R. 94-134. History. Mrs. Allan, of Antigua, had brought a female slave to England in 1822, and the next year returned, taking the slave with her to Antigua. Some time afterwards the slave was seized by the Custom House at Antigua as forfeited to the king, on suggestion of having been illegally imported in 1823. The case was decided in favour of Mrs. Allan in Antigua, and an appeal was brought by the crown to the Admiralty Court in England. Judgment. Per Lord Stowell. This question turns really upon the count that the slave Grace, ' being a free subject of his majesty, was unlawfully imported as a slave from Great Britain into Antigua.' Held. — That the slave having accompanied her mis- tress into England, and there taken no step to establish her freedom, upon returning voluntarily to a country where slavery was legal, reverted to the condition of a slave ; and her stay in England had only put her liberty, as it were, into a sort of parenthesis. * Digitized by Microsoft® Villeinage. 49 PIGG V. CALEY. ISA -^> 1617. Noy, Reports, 27. The plaintiff brought an action of trespass against History. Caley for stealing his horse. The defendant pleaded that he was seized of a manor Plea, to which the plaintiff was a villein regardant, and that defendant and all those etc., have been seized of the plaintiff and his ancestors. The plaintiff replied that he was free, and the issue Verdict and was found for him, and confirmed upon motion in arrest •'" ^"^" ' of judgment. Note. — This case of Pigg v. Caley is interesting as the last instance in which an assertion of villeinage was made in an English court of law. CroucKs case in 9 & 10 Eliz.' is usually said to be the last, but, as is pointed out in Mr. Hargrave's argument in the case of Sommersett, there are four later instances to be found in print, in 18 Eliz., I Jas. I., 8 Jas. I. which was never determined, and finally that here reported in 15 Ja. I. In the case of Crouch, Butler entered into certain lands of W. Crouch as into lands purchased by his villein, and made a lease of them to his servant Fleyer, who entered, and was ejected by Crouch. Upon an action for this ejectment Crouch pleaded not guilty, and the verdict upon the issue passed for him against the plaintiff. In another action of Fleyer v. Crouch it was alleged ' that Butler and his ancestor, and all those whose estate he hath, have been seized of Crouch and his ancestors as of villeins regardant from time whereof memory, &c.' After a trial of the issue and a special verdict it was found ' that the ancestors of Butler were ' Dyer, 266, pi. 1 1 (Butler v. Crouch) ; 283, pi. 32 {Fleyer v. Crouch). E Digitized by Microsoft® 50 Coivstihdional Law. seized during all that time of the ancestors of Crouch, as of villeins regardant, &c., until the first year of Henry VII., and that Crouch was a villein regardant to the said manor, and that no other seisin of Crouch or his ancestors was had since, but whether the said seisin of the manor aforesaid be in law a seisin of the aforesaid Crouch and his ancestors from the afore- said first year of Henry VII., they pray the advice and discre- tion of the court, &c. . . . and afterwards it was resolved by all the Justices of the Bench that the plaintiff shall not recover upon this verdict, and that the prescription had failed since the ist Henry VII.' Many causes tended to the gradual decay and extinction of villeinage in England, such as the development of the towns, the wars carried on against France, the growing expensiveness of serf labour, and the discontent of the peasants themselves, as testified in various risings.' But the cause with which we are here most specially concerned, was the discouragement of villeinage by the courts of justice. They always presumed infavorem libertatis, and threw the whole burden of proof upon the lord not only in the writ De nativo habendo, where he was plaintiff, but also in the writ De homine replegiando, where the villein was plaintiff. And nonsuit of the lord in a De nativo habendo was a bar to another such writ, and a perpetual enfiran- chisement ; but a nonsuit of the villein in a De Hbertate pro- banda, which was one of the writs for asserting the claim of liberty against the lord, was no bar to another writ of the like kind. Manumissions were inferred from the slightest circumstances of mistake or negligence in the lord which legal refinement could strain into an acknowledgment of the villein's liberty.^ 1 For the chief facts of the history of villeinage, see Tasw.-Langm. M. C. H. 267-277. 2 20 S. T. 35-47. * * # Digitized by Microsoft® tmpressmenL 5 ^ Ex parte FOX. 33 Geo. III., 1793. <-, T. R. 276. Fox was headborough of the place in which he lived, History. and had been impressed. He was brought up on habeas corpus. Fox, as headborough, holds an office of importance, Argument. which he is bound to exercise, and is punishable if he do not. The law cannot compel him to serve at once two incompatible offices. Per Kenyan, C. J. : Any exemption must rest upon Judgment. the positive provisions of statute. None such is made for the exemption now set up. Held: — That the right of pressing is founded on the common law, and extends to all persons who are seafaring men. Digitized by Microsoft® 52 Constitutional Law. Excursus V.— IMPRESSMENT. The practice of impressment is happily of only historical interest. In connection with constitutional doctrines, and especially the English doctrine of personal liberty, it is im- portant. Nor is it perhaps quite impossible to imagine a revival of the practice. Impressment of soldiers was always less used than that of sailors; and since stat. i6 Car. i, c. 28, has never been exer- cised, except by statute ; as was the case, for example, in 1779, during the American war : (19 Geo. 3, c. 10). The impressment of sailors has always been regarded as a prerogative of the crown. It applies only to mariners, unlike pressing for the army ; and the illegal impressment of persons not liable, as for example, persons who have never served at sea, is a trespass, for which damages may be recovered.' But as applied to mariners, its legality is undoubted. Foster, J., observes (Rex v. Broadfoot, 15 Geo. 2, 1743; 18 S. T. 1323), that he has not met with ' one case in which the legality of pressing for the sea service hath directly come in judgment.' He bases his defence of it upon arguments of general utility. He then goes on to show that it is a preroga- tive founded upon common law, and recognised by many Acts of parliament. ' Hewstery. Royle, I Campb. Rep. 187. Digitized by Microsoft® General Warrants. 53 WILKES V. WOOD. 3 Geo. III., 1763. 195. r. 153; Br. 548-558. Wood was secretary to a secretary of state, and, with History. a constable and several king's messengers, entered into Mr. Wilkes's house, broke open his locks, and seized his papers. The warrant upon which this was done merely directed the messenger ' to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled The North Briton, No. 45, and these or any of them having found, to apprehend and seize, together with their papers.' Wilkes brought an action of trespass — damages, 5,000/. The judge laid it down to the jury that the doctrine Judgment, that the power of issuing general warrants — without names — is vested in a secretary of state, is illegal and unconstitutional. Verdict for the plaintiff— damages, 800/. Digitized by Microsoft® 54 Constitutional Law. LEACH V. MONEY. 6 Geo. III., 1765. 19 S. T. looi i Br. 525-547. History. This was an action of trespass by Wilkes's printer against a king's messenger for trespass and false im- prisonment. The warrant, under the hand of Lord Halifax, principal Secretary of State, required the de- fendant and others to search for the authors, printers, and publishers of the seditious libel entitled The North Briton, and to apprehend them together with their papers. He was apprehended and released after four days, as he turned out not to be the printer. The jury found for the plaintiff — 400/. damages. Upon writ of error, it was argued : — Argument. Thcsc warrants have been sanctioned by long cus- tom ; and a secretary of state, as a sentinel for the public peace, must have the power to issue them. As a conservator of the peace, he is protected by statute 7 Ja. I. c. 5 ; 24 Geo. 2, c. 44. Judgment. There is no case for these uncertain warrants. Nor is it enough that the usage has been so. A usage, to grow into law, ought to be a general usage ; this is but the usage of a particular office contrary to the usage of all other justices. No degree of antiquity can give sanction to a usage bad in itself. The warrant had not been pursued, for the person taken up was neither author, printer, nor publisher. As the justice would not be liable, the officer has no pro- tection. Digitized by Microsoft® General Warrants — Papers. 55 ENTICK V. CARRINGTON. 6 Geo. in., 1765- 195. r. 1030; ^r. 558-613. Carrington, with three Other king's messengers, the nisiocy. persons under a warrant from a secretary of state, had forcibly entered Entick's house, as the author of a sedi- tious hbel; and carried away his books and papers ; upon which he brought an action of trespass. The jury re- turned a special verdict, on the ground that the defendant had acted upon a warrant from a secretary of state, based upon an information, and that it had been the cus- tom for secretaries of state since the Revolution to issue such warrants. This special verdict was twice argued, and finally judgment delivered (by Camden. C. T.') for the olaintiff. A secretary of state is the has not in consequence the Nor has any magistrate sue without a power to examine cillor, as such, has a right to of seizing papers, ' that is n citation from any law book no other magistrate in this Lord Chief Justice of the King ^ xjcm-n. Decision, therefore : — ' We are all of opinion that the warrant to sign and carry away the party's papers, in the case of a seditious libel, is illegal and void.' Digitized by Microsoft® 56 Co7tstitutwnal Law. Excursus VI.— GENERAL WARRANTS. The practice of issuing general warrants, in which no parti- cular person was specified, is said to have originated with the Star Chamber. It had then been revived by the Licensing Act of Charles II., and authorised to be used by the Secretary of State. And the practice is supposed to have continued after the expiration of that Act. At all events, it had been frequently exercised even after the Revolution. Their illegality, however, was finally settled, as well as the illegality of warrants to seize papers, by the judgments in the cases reported. Each of the cases given decides a different point : Leach v. Money that a general warrant to seize some person not named is illegal ; Wilkes v. Wood decides the equal illegality of a warrant to seize the papers of a person not named ; while Entick v. Carrington carries the latter point further, and establishes the illegality of a warrant to seize the papers of a person named — manifestly a sort of general war- rant as regards the papers. These decisions are supported by two able judgments — of Lord Mansfield, in Leach v. Money in error, and of Lord Camden in Entick v. Carrington. The House of Commons, while the law courts were thus engaged, was also debating the subject: and in 1766 passed resolutions declaring such warrants not only to be illegal, but if executed on the person or papers of a Member of the House to be a breach of privilege. As to this declaration, it is to be observed that Lord Mansfield, C. J., in a speech in the House of Lords, objected to it on the ground that declarations of the law by either House of Parliament have no binding force, and are not necessarily to be adopted by the courts of law. At the same time he affirms that ' general warrants are no warrants at all, because they name no one ; ' with which may be compared Wilkes' refusal to obey the warrant, as ' a ridi- culous warrant against the whole English nation.' ' ' 2 May, C. H. E. 255-262. Digitized by Microsoft® Liability of Picblic Officer for Contracts. 5 7 MACKBEATH v. HALDIMAND, 26 Geo. III., 1786. I T. R. 172. Haldimand, as governor of Quebec, had entered into Histoiy. certain contracts with the plaintiff to be suppHed with goods for the public service. Upon the ground of their being unreasonable, only a part of his charges was paid by the Treasury, and he was left to his remedy for the rest. Hereupon he brought an action for his further claim against the defendant, and the jury, under direction, found for the latter. Upon motion for a new trial Lord Mansfield, C. J. Held: — That the defendant is not personally liable. Judgment. The goods were for the use of the Crown. Great inconve- niences would result from considering a governor or commander as personally responsible in such cases. For no man would accept of any office of trust under government upon such conditions. Digitized by Microsoft® 5^ Constitutional Law. GIDLEY V. LORD PALMERSTON. 3 Geo. IV., 1822. 3 Brodr. 6f B. 275. History. This was an action against the defendant, as secretary at war, by the executor of a war-office clerk for arrears of retired allowance. Judgment. Held : — That an action will not lie against a public agent for anything done by him in his public character or employment, though alleged to be, in the particular instance, a breach of such employment. * * Digitized by Microsoft® Inability of Governors. 59 FABRIGAS V. MOSTYN. IS Geo. III., 1773. Cowp. 161 ; I Smith, L. C, 658. This was an action in the Common Pleas against the History. governor of the island of Minorca for illegally im- prisoning and banishing the plaintiff in the course of a riot. The jury had given the plaintiff 3,000/. damages. The case was argued on error in the King's Bench, on Argument, the grounds for the defendant that, (i) no action would lie in England for an act committed in Minorca ; (2), that no action would lie against the governor acting in his judicial capacity. Judgment /^r Lord Mansfield : It is impossible there Judgment. could ever exist a doubt but that a subject born in Minorca has as good a right to appeal to the king's courts of justice as one who is born within the sound of Bow bell. To repel the jurisdiction of the king's court you must show another jurisdiction ; but here no other is even suggested. The governor must be tried in Eng- land, to see whether he has exercised the authority dele- gated to him legally and properly. Decided: — An action does most emphatically lie against the governor. Digitized by Microsoft® 6o Constitutional Law. CAMERON V. KYTE. 5 6- 6 Wm. IV., 1835. 3 Knapp, P. C. C. 332. Histoiy. An officer called the vendue master in the colony of Berbice was entitled to sell all property sold by public auction, and to receive a commission of 5 per cent, on the purchase money. This rate was altered by the governor in 1 8 10 to \\ per cent, and the local courts refused to entertain a petition from the deputy vendue master. In 1824 Charles Kyte became deputy vendue master, and, until 1829, received commission according to the former rate. Cameron had purchased an estate in this last year, and refused to pay more than i^ per cent., and the supreme court ordered him to pay the difference. He appealed to the king in council. Tndgraent. Judgment was delivered by Parke, B., who said the only question in the case was the validity of the go- vernor's notification in 18 10. The governor might, with the consent of the Court of Policy, have reduced the rate of commission, but there was no such consent in this case as to make it a legislative act of the go- vernor and Court of Policy. The king, it is admitted, might have this power. There is no special instruction in his commission for this quasi-legislative act. Can it then be inferred from the nature of the office of go- vernor .■• There is no authority to show that a governor can be considered as having delegation of the whole royal power in any colony ; and his simple act, not expressly or implicitly authorised by his commission, is not equivalent to such an act done by the Crown itself, and is consequently not valid. Judgment accordingly for the respondent. Digitized by Microsoft® Liability of Governors. 6i HILL V. BIGGE. 5 Vict., 1 84 1. 3 Moo. P. C. C. 465 ; Br. 623-650. An action had been brought against the governor of History. the island of Trinidad, Sir George Hill,in the court of civil jurisdiction there, for a debt incurred in England, and before his appointment as governor. He appeared under protest, and pleaded that he could not be sued in the said court. The plea was overruled, and the case decided against him. He now appealed to the Privy Council, and it was Argument, argued that he, being by the terms of his commission vested with legislative as well as executive power, was not within the jurisdiction of the courts in the colony he governed. In the judgment (delivered by Lord Brougham) it is Judgment. pointed out that, (i) the authority of a governor is only delegated from the sovereign, and is strictly limited by the terms of his commission ; (2) The Crown itself may be sued, though in a particular manner ; (3) The judges of courts in this country are liable to be sued in their own courts. The judgment of the colonial court was affirmed. Decided: — That an action will lie against the governor in the court of his colony. Digitized by Microsoft® 62 Constitutional Law. LUBY V. LORD WODEHOUSE, 28 6- 29 Vict., 1865. 17 7r. C. L. R. 618-640. Histoiy. Luby was the proprietor of the Irish- People news- paper, and had been himself arrested, and his office had been broken into, and his working plant, books, and papers had been carried away and detained by the police. He brought an action against the Lord Lieute- nant in the Common Pleas in trespass, trover, and detinue. The Lord Lieutenant did not appear and defend the action, but the Attorney-General applied for an order to stay all proceedings. Judgment. Held: — That no action is maintainable against the Lord Lieutenant of Ireland in an Irish Court during his continuance in office for any act of state. Where such an action has been brought, the court will on motion direct the writ of summons and plaint to be taken off the file without putting the Lord Lieute- tenant to his plea. That the question as to whether or not the act was done by the defendant in his capacity of Lord Lieute- nant is not a proper one to be submitted to a jury. Digitized by Microsoft® Liability of Governors — Acts of State. 63 SULLIVAN V. EARL SPENCER. 35 /■. V. Wall, 28 S. T. 51. 2 Campb., 3 Lives of the Chief Justices, 149 ; Forsyth, loc. cit. 86. 3 R. V. Picton, 30 S. T. 225. ^ The cases on the power, duties, and liabilities of governors vi'ill be found carefully collected by Mr, p'ors^th, in 'Cases and Opinions on Con- stitutional Law, 'pp. 80-89. Digitized by Microsoft® Liability of Officers inte}- se. 67 SUTTON V. JOHNSTONE. 24 Geo. III., 1784. I T.H. 493; Br. 650-712. In this case one navy captain brought an action History, against another for having, as his superior officer, put him under arrest and imprisonment, and so kept him nearly, three years, until he was tried by court-martial for disobedience of orders. He was acquitted ; and after- wards juries twice gave verdicts for the plaintiff with substantial damages. On motion made in arrest of judgment in the Exche- Judgment quer, the question was decided in favour of the defendant (the plaintiff in error). Held: — -That this is not like an action of trespass, which supposes that something mani- festly illegal has been done; Here it is for the ordering of a prosecution which upon the stating of it is mani- festly legal. It seems that a commander ought not to be liable to an action for exercising his discretion in ordering his subordinate to be tried by court-martial ; although there is no authority either way. And in this case even if the action were maintainable in itself, judgment ought, we think, to be given for the defendant. Note. — Point decided according to Lord Mansfield, CJ.,' that there was probable cause for the imprisonment in that case ; and the reversal of judgment of Exchequer must be taken to have proceeded on that ground. Lush, J., thinks, in Dawkins v. Paulet,' that this is a judg- ment of high authority ; that every year since Acts have passed ' In Warden v. Bailey, 4 Taunt. §9. = L. R. 5 Q. B. at p. 122. Digitized by Microsoft® 68 Constitutional Law. for government of army and navy without any intimation of a contrary view on the part of the legislature ; the judgment stands unassailed, one which has received the tacit assent of the legislature and the profession ; and Cockburn, L. C. J. speaks of it with equal respect in the same case, while he would apply it differently to the case then before him. Digitized by Microsoft® Liability of Officers inter se. 69 COL. DAWKINS v. LORD ROKEBY. 30-38 Vict, 1866-75. 4 i^ dr- i^ 806 ; Z. ^. 8 (2- B. 25s ; T B. L. 744. Cp. Dawkitis V. Lord Paulet, L. R. 5 Q. B. 94. There were two actions in this matter by a military History. officer against his commander. The first was an action for false imprisonment and malicious prosecution, and conspiring with others to cause his removal from the army — tried in 1866. Willes, J., non-suited the plaintiff on the ground that judgment. no cause of action in a civil court had been shown. The matter had been discussed and disposed of by the mili- tary authorities. Persons who enter into the military state became subject to military rule and discipline, and must abide by them. The second was an action for libel on the ground of Q. B. Lord Rokeby's evidence before the court of enquiry held into Col. Dawkins' conduct, and was tried before Black- burn, J., 4 Feb., 1 87 1. Held: — That the action did not lie, on the ground that judgment. the statements complained of were made by a military officer in the course of an enquiry into military matters. Upon a writ of error this judgment was approved by a court of ten judges — -per Kelly, C. B. A court of enquiry is a court duly and legally consti- S. C. tuted, and recognised in the Articles of War and in many J^^'^'S'i^^nt. Acts of Parliament. And the principle is clear that no action of libel or slander lies against judges, counsel, wit- nesses, or parties for words spoken in the ordinary course of any proceeding before any court recognised by law. Upon appeal to the House of Lords (5 May, 1874) i-i_ l. the opinion of the judges was taken, and affirmed. Appeal dismissed (28 June, 1875). Digitized by Microsoft® 70 Constitutional Law. Note.— In 1869 Col. Dawkins brought an action against Lord Paulet' for a report made in the course of his duty to the Adjutant-General, declaring the plaintiff to be unfit for com- mand, &c. The plaintiff by replication alleged actual malice and mala fides. Mcllor and Lush, JJ., held the replication bad ; no action will lie against a military officer for an act done in the ordinary course of his duty, even if done maliciously or without reasonable cause. Coikbtirn, L, C. J., dissented, and held the replication good : Sutton v. Johiistone had pro- ceeded on the ground that there was reasonable and probable cause of arrest ; and in that case Mansfield expressly said ' there is no authority either way.' Dawkins v. Rokehy (this being of course only the earlier action of 1866) was the other way, but was a single nisi prius judgment. If the law was to be thus settled it should be done by legislative enactment, or at all events by a court of error. Then in the second ■A.civaxi against Lord Rokeby in 1873, the Court of Exchequer Chamber, after referring to the L. C. J.'s opinion, observes that ' it is satisfactory to us to feel that the general question of privilege as apphed to communications be- tween military authorities upon military subjects .... is yet open to, final consideration before a court of the last resort.' When the question did eventually come before the House of Lords it was settled against the view taken by Cockbwn, L. C. J. It is curious to observe that in this question the Lord Chief Justice stood alone against two single judges, against his col- leagues in the Court of Queen's Bench, and against the Court of ten judges in the Exchequer Chamber, and finally against all the law Lords. Nor is this with the Lord Chief Justice merely a question of ' the privilege of communications between military officers.' In Thomas v. Churton,^ seven years before, he had applied the same principle to the case of judges. There he says, ' I am reluctant to decide, and will not do so until the question comes before me, that if a judge abuses his judicial office by using slanderous words maliciously and without reasonable and pro- bable cause, he is not to be liable to an action.' (Cp. Scott v. Stansfield, vtfra, p. 79.) The law upon the question is now, however, settled beyond the reach of any but legislative interference. ' L. R. 5 (). 13. 94. 2 2 B. & S. 475 (1862). Digitized by Microsoft® Liability of Officers. 71 Excursus VIII.— LIABILITY OF OFFICERS- MILITARY AND NAVAL. Some degree of protection to the persons responsible for the performance of duties imposed upon them by the executive is necessary, to induce them to undertake the performance of those duties, and to secure their regular and unintwrrupted working. This protection must be twofold — first, against their own subordinates, and secondly against the general public. - I. No officer is responsible to strangers for any injury done to them in the regular discharge of his proper duties, or arising out of his pursuing the instructions of his proper superiors. This is illustrated by Buron v. Denman^ where a slave dealer in Africa brought an action of trespass against a British naval commander who had seized his slaves. In this case his act was ratified by our government, and so was treated as the performance of a duty imposed by them. In Nicholson v. Mouttcey,^ a sloop of war bad run down the plaintiff's vessel, while it was under the defendant's command, although at the time of the collision the ship was under the navigation of the lieutenant. The captain was held not liable, since he is not in the ordinary position of the master of a vessel, and the lieutenant was in no sense his agent. Hodgkinson v. Fernie^ was a curious case, in which it was laid down that this immunity from action would extend to a private shipmaster acting under the commands of a naval officer. But the officer's immunity will not extend so as to cover any tortious act which does not take place in pursuance of the proper discharge of the officer's general or special duty. This is shown in Madrazo v. Wilks,'^ where the captain of a man of war, who had wrongfully destroyed a Spanish slaver, was held liable for the loss suffered by the owner. It was suggested in Tobin v. The Queen, reported above, that ' 2 Exch. 167. ' 15 East, 384. 3 2 C. B. N. S. 415. ■• 3 B. & Aid. 353. Digitized by Microsoft® 72 Constihitional Law. an action might lie against Captain Douglas, who had also destroyed a supposed slaver. 2. Prompt obedience is essential to the discipline and efficiency of the services ; and superior oiRcers must often decide hastily. They must be guarded against excessive re- sponsibility t'o their inferiors. It is settled, therefore, that an officer cannot be held liable for any act done in the discharge of his duty, even though it be alleged to be done maliciously. For this Sutton v. y^ohnstone is the great authority. The proper tribunal to entertain such a charge would be a court martial. It is to be observed that the services are governed by articles and regulations of their own, and the Courts will, as a general rule, refuse to enquire into purely military or naval matters. This has been definitely established in the course of the recent important case of Dawkins v. Lord Rokeby, by a decision of t'le House of Lords. In Barwis v. Keppel^ the Courts refused to entertain an action in the case of a sergeant who had been maliciously reduced to the ranks by the defendant, an officer in the Guards. The act had been done in Germany during war time, and the Court held that it had no jurisdiction — the king acting then by virtue of his prerogative. ' 2 Wils. 314. Digitized by Microsoft® yudicature. 7 3 PROHIBITIONS DEL ROY (CASE OF PROHI- BITIONS). 5/«. /, 1607. 12 Coke, 63. The king was informed, upon complaint made to him History. by Archbishop Bancroft concerning prohibitions, that he had a right to take what causes he pleased from the determination of the judges and to determine them himself To which Coke, C. J., answered, in the presence and Answer, with the consent of all the judges of England : That the king in his own person cannot adjudge any case, either criminal or betwixt party and party, and judgments are always given by the court : The king may sit in the King's Bench, but the judg- ments are always given per curiam, and the judges are sworn to execute justice according to law and the cus- toms of England. No king after the Conquest assumed to himself to give any judgment : The king cannot arrest any man, for the party cannot have remedy against the king. Digitized by Microsoft® 74 Constitutional Law. BUSHELL'S CASE. 22 Car. IT., 1670. Vaughan, 135 ; 6 S. T. 999 ; Br. 120-144. History. -^ jury had acquitted William Penn and William Mead at the Old Bailey Sessions, on a charge of preach- ing in a London street, and had been fined by the Recorder forty marks each for contempt in doing so, and in default committed. A habeas corpus was moved, and the return was that the prisoners had been com- mitted for findings ' contra plenam et manifestam evi- dentiam, et contra directionem curiae in materia legis.' Judgment. Per Vaiighan, C. J. : The return is insufficient, for it gives the Court no opportunity of forming their own judgment as to the sufficiency of the evidence. Nor is the Court bound to accept the opinion of the sessions court, for judges' decisions are constantly reversed. Then (i) the jury may have evidence before them that the judge has not ; (2) in any case they do not find the law, and therefore cannot return a verdict contra direc- tionem curiae in materia legis. Without a previous know- ledge of the facts the judge cannot direct, and he only knows the facts from the determination of the jury. They should be said to have acquitted against the evi- dence, corruptly and knowing the evidence to be full and manifest. Decided: — That finding against the evidence, or direc- tion of the court, is no sufficient cause to fine a jury. Digitized by Microsoft® Liability of fttdges. 75 FLOYD V. BARKER. Sja.J., 1607. 12 Coke, Rep., 23 (vi. 223). A grand jury of Anglesey had indicted one William History. Price for murder, and he had been convicted and exe- cuted. . Floyd proceeded by ' bill ' in the Star Chamber against Barker, the judge of assize on the trial, and the grand jurors. The case was heard before Popkam, and Coke, CC. JJ., the Chief Baron, the Lord Chancellor, and all the Court of Star Chamber, and it was Resolved: — That when a Judgment. grand inquest {i. e. grand jury) indicts one of murder or felony no action will lie against the indictors, even where the party is acquitted. What a judge doth as judge of record ought not to be drawn into question in this court or before any other judge. Note. — The reason of this is said in loc. to be that the king himself is de jure to deliver justice to all his subjects, and because he cannot himself do it to all i>ersons he delegates his power to his judges. Any cause of complaint, therefore, ought to be laid before the king himself (12 Coke, 25). Digitized by Microsoft® 76 Constitutional Law. HOULDEN V. SMITH. 13 Vut., 1850. 14 Q. B. 841. Hisioiy. This was an action of trespass for false imprisonment. The defendant, as county court judge, had ordered the plaintiff to be committed for contempt in not appearing before him upon a summons. The plaintiff did not reside in the county court dis- trict of which the defendant was judge, but in a neigh- bouring district, and this was known to the defendant, who supposed, nevertheless, that he had authority. Judgment. Held: — That the commitment being in excess of juris- diction, and made under a mistake of the law and not of the facts, the judge was liable in trespass. Digitized by Microsoft® Liability of yudges. 'j'J KEMP V. NEVILLE. 24 Vict., 1861. 10 C. B. N. S. 523 ; Br. 734. The plaintiff, a milliner, had been arrested in the History. company of several undergraduates at Cambridge, and had been committed to prison for fourteen days as a person of bad character, by the defendant, the vice- chancellor of the University, in the course of his judicial duties. She recovered damages against him in an action for assault and false imprisonment. The defendant moved to enter the verdict for himself The plaintiff relied mainly on certain minor points Argument, arising out of the peculiar administration of the proc- torial system at Cambridge, which rests upon a charter of Elizabeth, confirmed by statute 13 Eliz. c. 19. (i.) No witnesses were examined on oath at the hearing by the vice-chancellor, nor were certain persons sent for to whom she referred as to her character. (2.) There was no warrant in writing. (3.) The place of imprisonment (called the spinning-house) was unlawful, not being a common gaol. These were overruled on the ground (i, 2) that the Judgment, charter prescribed no particular procedure ; (3) that as to the place of confinement, the court was bound to suppose in favour of the existing user. But the main contention of the defendant was that as he acted throughout to the best of his judgment in his judicial capacity as judge of a court of record, no action of trespass could lie for anything done by him as judge; and in that he was right. Digitized by Microsoft® 78 Constitutional Law. FRAY V. BLACKBURN. History, Demurrer. Argument. Judgment. 26 Vict., 1863. 3 Best dv Smith, 576. The plaintiff had been plaintiff in a previous action heard before Sir Colin Blackburn, one of the judges of the Queen's Bench, and had obtained a rule nisi, which the defendant at the hearing refused to make absolute. She now brought an action against him, and claimed 50/. damages. The defendant demurred 'that no action lies against a judge of a superior court for anything done by him in his judicial capacity ; (2) that the declaration was bad for not alleging malice and want of reasonable and probable cause.' The plaintiff argued her own case, and was refused leave to amend, because, though it be alleged that the act charged was done maliciously and corruptly, that will not make the declaration good. , Decided: — That an action does not lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly. Digitized by Microsoft® Liability of Judges. 79 SCOTT V. STANSFIELD. 31 Via., 1868. L. R. 3 Exch. 220. The defendant, who was a county court judge, had History. said of the plaintiff, an accountant, that he was ' a harpy- preying on the vitals of the poor.' The plaintiff brought an action of libel. Held: — That no such action as this can under any judgment. circumstances be maintainable. Digitized by Microsoft® 8o Constitutional Law. CALDER V. HALKET. 2 dv 3 Vict., 1839. 3 Moo. P. C. C. 28. History. This was a case before the Privy Council, on appeal from the Supreme Court of Judicature at Fort William, in Bengal. The plaintiff had been apprehended, by- order of the defendant — who was a magistrate having jurisdiction over Asiatics only, and the plaintiff was a European — for supposed participation in a riot. He brought an action for assault and false imprisonment, and upon a verdict being entered for the defendant, the plaintiff appealed. Argument. By statute (21 Geo. 3, c. 70, s. 24), the provincial ma- gistrates in India have the same immunity from actions extended to them in respect of their judicial functions, as judges have in this country. It was argued for the appellant that as the act in question was in excess of his jurisdiction, which ex- tended only to natives, an action would lie. Judgment. Decided: — That a judge is not liable in trespass for a judicial act, without jurisdiction, unless he knew or ought to have known of the defect, and it lies on the plaintiff in every such case to prove that fact. Digitized by Microsoft® Liability of Judges. 8i Excursus IX.— LIABILITY OF JUDGES. The law as to the civil and criminal irresponsibility of judges is well settled. No judge is liable to any proceedings before any ordinary tribunal for any judicial act or omission — with two singular exceptions, the refusal of a writ of habeas corpus, ex- pressly provided for in the Act,' or the refusal of a bill of ex- ceptions.^ 'A series of decisions from the time of Coke (in Floyd V. Barker) to Fray v. Blackburn, establish that no action will lie against a judge for acts done or words spoken in his judicial capacity in a court of justice.'^ And judicial acts are not only those done in open court, but all those emanating from the legal duties of a judge, as for example, acts done in chambers.'' This doctrine has been applied not only to the superior courts, but to the court of a coroner, and to a court martial, which is not a court of record. And it does not matter although malice and corruption be alleged, or want of reasonable and probable cause. Nor even if the judge exceeds his jurisdiction will he be liable to an action, unless the plaintiff can prove that he knew, or ought to have known, the defect of jurisdiction. This rule has been established to secure the independence of the judges and to maintain their authority. For this purpose they must be free from the liability to harassing and vexatious actions at the suit of discontented parties. The decisions cover the cases of the highest judge in the land, the Lord Chancellor, the Superior Courts, the court of the Vice-Chancellor of a University, an ecclesiastical judge, a coroner, and a county court judge. Magistrates or justices of the peace are not protected to the same extent. Their case is provided for by ii & 12 Vict, cc. 42 — 44 (Jervis's Acts), and an action will lie against them in either of two events : 1. For an act done without their jurisdiction. 2. For an act done within their jurisdiction, but maliciously and without probable cause. ' By 31 Car. 2, c. 2, s. g. ^ By Stat. Westm. 2, 13 Edw. I, c. 31. 3 Per Kelly, C. B., in Scott 'i. Stansfield, L. R. 3 Ex. 223. ■• Taafe v. Downes, 3 Moo. P. C. C. 60. Digitized by Microsoft® 82 Constitutional Law, What remedies then are provided in case of error or miscon- duct on the part of judges ? For errors in law a remedy exists in an elaborate system of appeals. For actual misconduct in the case of judges of the superior courts, the only remedies are by impeachment, or by removal on the address of both Houses of Parliament.' Since the Revolution there has been only one instance of such im- peachment, in the case of Lord OasxiC^ox Macclesfield va. 1725. The judges of inferior courts, however, are subject to the Queen's Bench, and are removable for misbehaviour at com- mon law or by statute. The Lord Chancellor may remove a coroner or a county court judge for inability or misconduct. A justice of the peace is subject to a criminal information for misbehaviour, and may be discharged from the commission at the pleasure of the crown. ' The control exercised by Parliament over the judicial system will be found fully treated in 2 Todd, Pari. Gov. 724-766 (c. vi.). Digitized by Microsoft® GENERAL INDEX. A. Act of State, No action will lie against a governor for an act of state, 62, 65 What is or is not an act of state is not a question for a jury, 62 Act of Union (Scotland), 37 Action, On general warrant for the seizure of the person, issued by the Secretary of State, 8, 54 On warrant for the seizure of papers of an author not named issued by the Secretary of State, 8, 53 On warrant for the seizure of papers of an author named issued by the Secretary of State, 8, 55 Against a judge for any judicial act, 10, 75-81 Against magistratesorjusticesofthepeacefortheir judicial acts, 8t, 82 Against a sheriff for making a double return, 6, 25 Against constables of a borough for refusing to admit a vote at an election of burgesses for Parliament, 6, 26 For a libel published by order of the House of Commons, 6, 29 For debt against a colonial governor, 8, 6x Against a naval officer, 9, 67 For malicious prosecution before a court-martial, 9, 67 Administration, The administrative power of the Crown, 8 Certain immunities afforded to public officers, 9 Aliens, See Excursus III., 37 Persons bom in Scotland after the accession of James I. to the English throne not aliens, 36 What they may now acquire within the kingdom, 3 7 Their naturalization, 3 7 Allegiance, See Excursus III., 37 Its definition, 36, 37 Digitized by Microsoft® 84 Index. Allegiance — continued. Is not limited by time or space, 36, 37 The earlier English doctrine, 37 Modified by modern legislation, 37 B. Bankers, Loan of, to Charles II., 39 The breach of faith by Charles II. towards, 39 Bill of Exceptions, Judge punishable for refusing, 8 1 Bill of Rights, Abolishes the dispensing power, 24 Bishops, Decline, as peers, to enter into their recognizances on a charge of libel, 14, 16 points of law raised on their trial, 1 6, 1 7 Proof of handwriting, 14, 17 Proof of publication, 17 C. Colonial Governor, Action against, 59, 61, 64 Liability of colonial governor to action, 59, 61, 65 Indemnity of the acts of, by the colonial legislature, 64 Not personally responsible for goods supplied for the use of the Crown, 57 Action lies against, in England, for wrongs done by him in his dependency, 59 Can legally giye his cojisent to a bill in which he is personally interested, 64 Not responsible in an action for an act of state, 65 Colonies, Governor has not a delegation of the whole royal power in any colony, 60 An action will lie against the governor in the court of his colony, 6 1 Commander, Naval, not liable to an action for ordering his subordinate to be tried by court-martial, 67, 69 power to hold court-martial recognised by Acts of Parliament and the articles of war, 69 Constitutional Law, Where to be found, i Its extent, i Constitutional law proper — administrative law, 2 Digitized by Microsoft® Index. 85 Constitutional Law — continued. Its object, security against misgovernment, 2 How related to the Common Law, 2, 3 Contempt, House of Commons can commit for contempt, 6, 31 Court Martial, Sentence of, not subject to revision by court of law, 9 Is the only proper tribunal for all naval and military ques- tions, 69, 72 Crown, Having once delegated the power of legislation to a colony cannot afterwards exercise that power, 38 Is the grant of the Crown binding upon successors, 39 Not responsible for damage due to the negligence of the servants of the Crown, 40 Not liable for wrongs done by the servants of a predecessor, 40 Can be sued in a particular manner, 61 The king cannot adjudge any case either civil or criminal, 73 The king may sit in the King's Bench, but the judgments are always given /«r curiam, 73 No man can be arrested by the king, 73 Customs, A child of the Common Law, 19 Fixed by the Common Law, 1 9 Not to be imposed arbitrarily by the crown, 19 D. Declaration of either house of Parliament has no binding force, 56 Declaration of Indulgence Ordered by James II. to be read in churches, 14 Its legality discussed, 1 5 Dispensation, By licence, 1 2 By letters patent, 13 Dispensing Power, See Excursus I. Its existence, 13 Its extent, 12 Several times questioned by Parliament in the reigns ot Charles II. and James II;, 15 Abolished by the Bill of Rights, 24 Double Return, Held not actionable, 25 But made actionable by statute, 25 Digitized by Microsoft® 86 Index. E. Error, Writs of error in Barnardistan v. Soame, 25 Ashby V. White, 26 Burden v. Abbot, 28 Howard w. Gosset, 32 Z^a^^-^ V. Money, 54 Sutton Y Johnstone, 67 Dawkins v. Rokeby, 69 Are writs of right, 27 Evidence, Proof of handwriting in Bishops ease, 14, 17 Of publication, 17 Exchequer, Proceedings against Hampden in, 21, 22 Exchequer, Barons of. Petition to, to compel payments of annuities by the Crown, 39 Executive, How it acts, 3 Its functions, 7 King is the executive, 3 Actions for illegal arrests upon general warrants, against, 8, 53, 54, 55 Executive protected, 9 F. False Imprisonment, Judge liable in trespass for, being in excess of jurisdiction, 76 Fines, Imposition on jurors illegal, 10, 74 Functions of Government, Their classification, 3-4 G. General Warrants, See Action on. Issued by secretaiy of state, B, 53, 54, 55, 56 Their legality considered in Parliament, 56 Governor of a Colony : See Colonial Governor, Action against, 59, 61, 64 Liability to an action, 59, 6r, 65 Indemnity of the acts of, by the cojonial legislature, 64 Digitized by Microsoft® Index. 8 7 Grant from the Crown, Where injurious to third parties to be remedied by a writ of scire facias, 42 H. Habeas Corpus, The great safeguard of the liberty of the subject, 43 To discharge a slave in England, 45 Act of Charles II., 43 Judge finable for refusing, 81 Handwriting, Proof of. In the Bishops' case, 14, 17 House of Lords, Gives judgment for plaintiff in Ashby v. White, 26 Withstands the House of Commons ^.s to their excessive claim in the matter of privilege, 27 I. Imparlance, Claimed by the Bishops, 1 7 Imports, Illegal for the Crown to tax, 20 Impositions, Only six from the Conquest to the reign of Mary, 480 years, 19 Has the Crown an imposing power, 18 Held unanimously by the Barons of the Exchequer that it has, 18 Arguments for and against in the House of Commons, 19, 20 Impressment, See Excursus V. Its legality, 51, 52 For the army, 53 For the navy, 51, 52 Extended to all seafaring men, 51, 52 Founded upon Common Law, 51, 52 Imprisonment, Of jurors, for finding against evidence, 74 . Liability of governor of colony for false, 5 9 Action 9,gainst a iudge for false, 77 Information, For refusing to pay the duty on imports, 18 Criminal, for publishing^ a seditious libel, 14 Digitized by Microsoft® 88 Index. J- Judges : See Judicial Officers. Not liable to an action, 78, 79 Not liable in trespass for a judicial act in excess of jurisdiction, unless they knew of the defect, 80, 81 Remedies against, by impeachment or by removal, on the address of both Houses of Parliament, 82 Finable for refusing a writ of Habeas Corpus, or Bill of Exceptions, 81 Judicial Acts, No action lies against judges for, 78, 79, 81 Though alleged to have been done maliciously and corruptly no action lies, 78 Judicial Decisions, Their importance; and note, 81 Judicial Officers, Non-liability to an action, 78, 79 Not liable in trespass for a judicial act, unless they knew of the defect, and it lies on the plaintiff to prove the fact, 80 For actual misconduct by, the only remedies are by impeach- ment or by removal, on the address of both Houses of Par- liament, 82 Jury, ^ Fine by the Recorder for contempt disallowed, 74 Finding against the evidence is no sufficient cause to fine, 74 ... . No action will lie against a grand jury for indicting one of - felony although he is acquitted, 75 Justice of the Peace, An action against a, will lie for an act done without his jurisdiction, 81 An action will lie for an act done maliciously and without probable cause within his jurisdiction, 81 Is subject to a criminal information for misbehaviour, 82 May be discharged from the pommission at the pleasure of the Crown, 82 K. King : See Crown, Cannot adjudge any case either civil or criminal, 73 May sit in the King's Bench, but cannot interfere with the judgments, 73 No man can be arrested by the, 73 Digitized by Microsoft® Index. 89 L. Laws, The Crown cannot dispense with existing laws, 5, 11, 12, 13, IS, 23 Several attempts of the Crown to dispense with existing laws, 5, ii> 12, 13, iS> 23 Leading Cases, Meaning of the phrase, 4 Libel, References for seditions, 16 Published by order of the House of Commons held not privi- leged, 29 But now protected by statute, 30 Liberty, Personal, secured against Executive, 8, 43 A primary general right, 48 Exception to English doctrine in the case of impressment, 8, 5i> 52 Loans, Of bankers to Chas. II., 39 Forced : Darnel's Case, 43 Lord Chancellor, Not liable to an action for judicial acts or omissions, 81 May remove a coroner or County Court judge for misconduct or inability, 82 Lord Lieutenant of Ireland, Not liable to an action for an Act of State, 62, 63, 65 Where such an action has been brought the Court will on motion stay the proceedings without putting him to his plea, 62 M. Magna Carta, • Concerning the defence of the kingdom in general, 2 1 Maxims, The king can do no wrong, 40, 42 Nemo potest exuere patriam, 37 Messenger, Of the Secretary of State, his liability, 53, 54, 55 Minorca, A subject born in, has a right to appeal to the king's Courts of Justice against his own governor, 57 Digitized by Microsoft® 90 Index. ' MONSTRANS DE DrOIT, Employed against the Crown where the two conflicting titles appear on record, 42 N. Naturalization, See Aliens and also Excursus III., 37 Navy, Legality of pressing for, 51, 52 NoN Obstante Clauses, 12 O. Officers, Are officers of Parliament and not of the' Crown, 41 Liability of officers, military and naval, 7 1 Liability in the service of the Crown,- 71 Liable for tortious act not in pursuance of a proper discharge of public duty, 71 Not liable for any act done in the discharge of their duty though done maliciously, 72 The Courts will as a general rule refuse to enquire into purely military or naval matters, 72 P. Parliament, Prorogation of Parliament puts an end to imprisonment for breach of privilege, 27, 30 Is by law appointed as the means of supply, 2 1 Petition, Right of. References for, 16 (note) Petition of Grievances, ii, 20 Arising out of the decision in Bates' case, 18, 19, 20 Petition of Right, 24 See Excursus IV. Made to the Barons of Exchequer, 39 Cannot be maintained against the Crown for the recovery of unliquidated "damages, 41 Simplified by statutes, 42 May now be brought into any of the Superior Courts, 42 Petition of Right, Conference between the two Houses of Parliament, 43 Its contents, 43 Digitized by Microsoft® Index. Petition to the Barons of the Exchequer, To compel payment of annuities by the Crown, 39 Post Nati, Held not aliens, 36 See Excursus III., 37 Power of Crown, Includes legislation in the case of conquered colonies, 7 Otherwise does not include legislation or taxation without consent of Parliament, 5, 18, 22, 23 Argued to be two- fold — ordinary and absolute in Bate^ case, 18 The absolute power argued to be salus populi and above the Common Law, 18 Power of the Crown in the seaports said to be absolute, 1 8 Precedents, Of the Exchequer must be followed in the Exchequer, 18 One of the chief sources of Constitutional Law, i Prerogative, Limited by law, 1 1 Privilege, See Excursus II., on privilege of Parliament and the Law Courts, 34-35 References for, 34 Each House claims to be sole judge of its privileges, 34 What constitutes a breach of them, 34 Each House may commit summarily for contempt, 34 Has been pushed to extravagant extent, 35 The extent to which the Courts entertain questions of privi- lege, 35 Houses may not create any new privileges, 35 Its present condition, unsatisfactory, 35 Disputes between the House of Lords and the House of Commons as to the privileges of the latter, 26, 27 House of Commons claims the right to adjudicate on the rights of electors, 26, 27 Held not to cover the pubhcation of libellous matter, 29, 30 Court of Law will not enquire into the grounds of commit- ment for contempt, 31 Privileged Communications between military officers,- 70 Privy Council, Lords of, may not commit individually, 16, 55 Proclamations, Case of, 1 1 Prerogative of king to make, 1 1 Digitized by Microsoft® 92 Index. Proclamations — continued. Extent of royal power to issue, 1 1 Cannot alter the law, 1 1 Cannot create any offence, ii Property, How protected against invasion from the Crown, 42 Public Officers, Not liable for contracts made on behalf of the public, 57 Not liable for anything done by them in their public capa- city, 58 Q- Queen's Bench, Exercises control over Inferior Courts, 82 Depositions to be returned into in case of criminal proceed- ings against a colonial governor, 66 R. Realm, Means provided for its defence, 2 1 Right of the Crown to levy for its defence, 21, 22 Relief, Edward III. prays his subjects for relief, 19 Resolution Of either House of Parlistment cannot alter the law of the land, 29 Return, To Habeas Corpus, when sufficient, 31, 43 Returning Officer, Action against for refusing to receive vote, 26 S. Scire Facias, Where the subject is injured by a grant made by the Crown to other parties he may have a writ of Scire Facias, 42 Secretary of State, Has no right to issue general warrants, 53 Although authorised to do so for a terra by the Licensing Act of Charles II., 56 And they had continued to do so after the Revolution, 55, 56 Digitized by Microsoft® Index. 93 Secretary of State — continued. Is the King's private secretary, but has not the authority of a magistrate, 55 Seditious Libel, Bishops' petition, 14, 15 References for, 16 Seizure of Papers A warrant to seize papers of a person not named in the case of seditious libel is illegal, 56 And even if the person is named it is also illegal, 55, 56 Seizure of Person, Upon a general warrant is illegal, 55, 56 Serjeant at Arms, Action against the, for executing the Speaker's warrant, 3 2 Sheriff, As returning officer is to be regarded as a judicial officer, As returning officer held not liable at Common Law to an action for making a double return, 25 But was liable by statute, 25 Liable to an action for refusing the vote of a duly qualified elector, 26 Committed for contempt by the House of Commons in the performance of his duty, 3 x But held not entitled to his release, 31 Ship Money, Argument for the right of the Crown to impose ship money, 22 Argument of Mr. St. John against the claim, 21 Judgment of Crooke, J., against the claim, 22 The Crown held entitled to levy ship-money only in inland towns, 22 But this judgment annulled by statute, 22 Ship of War, May be considered as a floating island, 46 Slaves, Whether a slave coming to England and again returning to the West Indies acquired the status of a free person, 48 Trading in slaves is not a crime by the law of nations, 47 Slave Trade, Is not piracy or a crime by the law of nations, 47 Digitized by Microsoft® 94 Index. Slavery, Not a question of Constitutional Law, 44 Earliest assertion of the English doctrine, 44 Opinion in favour of slavery, 1729, 44 Donatio mortis causd to a slave upheld against an adminis- trator, 44 Arguments against slavery, 45 Slaves on an English ship of war considered free, and no action lies against an officer refusing to give them up, 46 Star Chamber, Practice of issuing general warrants, 56 Statutes, Magna Charta, 20, 43 13 Edw. I, c. 31 (Stat. Westm. 2), 81 25 Edw. I, c. 7; 20 34 Edw. I, St. 4; 20 14 Edw. 3, St. I, c. 21 ; 20 19 Edw. 3, St. 2, cc. I, 4; 19 28 Edw. 3 ; 43 36 Edw. 3, c. 11; 19 1 Ri. 2, c. I ; 22 2 Ri. 2 ; 22 21 Hen. 4; 22 7 Edw. 6 ; 1 2 7. Ja. I, c. 5 j 54 9 Ja. i; 12 1 2 Car. 2 ; 12 16 Car. I, c. 14; 22 28; 52 25 Car. 2; 13 31 Car. 2 ; 43, 81 I Will. & M. ses. 2, c. 2, s. 13 (Bill of Rights), 24 7 & 8 Will. 3, St. I, c. 15; 25 II & 12 Will. 3, c. 12 ; 65 12 & 13 Will. 3, cc. 12, is; 39 5 Anne, c. 8 (Act of Union in Scotland), 37 12 Anne, St. i, c. 15 ; 25 24 Geo. 2, c. 44; 52 19 Geo. 3, c. 10; 52 3 & 4 Vict. c. 9 ; 30 7 & 8 Vict. c. 66 (Aliens), 37 1 1 & 1 2 Vict. cc. 42-44 (Jervis's Acts), 8 1 21 & 22 Vict. c. 48 (Allegiance), 37 23 & 24 Vict. c. 34 (to simplify Petitions of Right), 42 33 & 34 Vict. c. 14 (Naturalisation Act, 1870), 37 Digitized by Microsoft® Index. 95 Subjects, Owe obedience to the Crown, 36, 37 Protected against the executive, 2, 7, 8 Their remedies against the Crown, 7 Entitled to protection, 37 May resign or regain their British nationality, 3 7 Subsidies, On wool forbidden by statute of Edward 3, 19 Suspending Power, 12, 13, 15, 24 See Dispensing Power. T. Taxes, May not be imposed without consent of Parliament, 5, 22 Tenure, Of land appointed as a means for the defence of the realm, 2 1 Trespass, Against judges of County Courts, 76 Against Vice-Chancellor of Cambridge, 77 Against Serjeant-at-arms of the House of Commons, 32 Against King's messengers for acting under warrant of the Secretary of State, 53, 54, 55 Against naval officers, 46 Against Speaker of the House of Commons, 28 Trial, By jury, how guaranteed, 74 U. Uniformity Act, Bishops intrusted with carrying out, 15 Union Act, Renders obsolete the doctrine in Calvin's case, 37 University of Cambridge, Peculiar usages of the Vice-Chancellor's Court, 77 V. Verdict, Jury are not liable to be fined for their verdict, 74 Vice-Chancellor of Cambridge, May commit to prison without written warrant, 77 Without sworn evidence, 77 Is protected as Judge of Court of Record, and no action will lie against him, 7 7 Digitized by Microsoft® . 96 Index. Viceroy, A colonial governor is not a viceroy, 60, 65 Villein, Only so by blood or by his confession, 45 Favoured by the judges, 50 Villeinage, The only kind of slavery ever recognised by English law, 45 The last cases of villeinage in England, 45, 49^5° Its decay hastened by the discountenance of the judges, 50 References for its history, 49 W. Warrant, Of the House of Commons is a writ of a superior Court, and is therefore not reversible for form, 32, 33, 34 Of an election committee held entitled to the same respect, 32, 33 Writ, De homine repkgiando, De nativitate probanda, 50 De nativo habendo, 50 Of habeas corpus. See Habeas Corpus. Of scire facias, 42 Of error a writ of rightj 27 THE END. BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRlARS, LONDON. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®