BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Leod v Buchanan [1835] (Justiciary Case) CA 13_1153 (24 January 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SJ1153.html
Cite as: [1835] (Justiciary Case) CA 13_1153

[New search] [Context] [Printable version] [Help]


SCOTTISH_Shaw_Court_of_Session

Page: 1153

M'Leod

v.

Buchanan
No. 365.

Justiciary Cases

Jan. 24 1835

Lord Gillies, Lord Mackenzie, Lord Moncreiff, Lord Medwyn, Lord Justice-Clerk

Peter M'Leod,     Suspender.— Rutherfurd— A. M'Niell. Archibald Buchanan and Hamilton Rose,     Respondents.— D. F. Hope— penney.

Subject_Process—Jurisdiction—Citaton—Stat. 6 Geo. IV. c. 129.—

1. Held that, under the above statute, a warrant to apprehend an accused party must be issued by two justices of the peace. Question, (1.) Whether a date be essential to a petition presented under a statute accusing a party of an offence. And, (2.) As to the nature of the warrant to be delivered to the jailer in order to detain a party convicted under the above statute—it being required that the original conviction shall be filed in the records of the Quarter Sessions.

James Finlay and Company, merchants in Glasgow, are proprietors of cotton works at Catrine in the county of Ayr. Mr Archibald Buchanan, who is a partner of the company and manager of these works, with concourse of Mr Rose, deputy procurator-fiscal, presented a petition to the justices of peace for Ayrshire, setting forth * “That

_________________ Footnote _________________

* Previous to this, the following correspondence (which was laid before the Court) had taken place between John Wright, residing in Glasgow, acting for the Power-loom Workers of the West of Scotland, and Mr Buchanan:—

“Arch. Buchanan, Esq. of the Catrine Works.

Sir,—The Power-loom Workers of Glasgow and West of Scotland beg leave most respectfully to direct your attention to the position in which their fellow-workers in Catrine are placed, in consequence of your refusal to advance their price of labour to an assimilation with the prices paid by the proprietors of other works, who are under the necessity of competing with your company in the same market

“The workers of Catrine, as you are well aware, have for many years laboured for you at a rate of wages far below what would have been afforded them any where else in this country; and even their nominal prices were, in many instances, materially reduced by fines and other impositions, just as the whim or caprice of their masters dictated. Such was their situation, when they learned that the manufacturers of Glasgow had threatened us with a general reduction, in order to enable them to compete with the Catrine Company on equal terms. So soon as your workers were satisfied of the truth of this, they petitioned and remonstrated with you on the subject; but petition and remonstrance have been found equally fruitless; and now the only legal alternative to which they can and will resort to, is to withdraw their services from the Catrine Company, and either seek employment where it will be better rewarded, or rely on the support of their fellow workers, whose interests are also deeply involved in the issue, and await the return of a better spirit among the proprietors of the Catrine Works.

“In consequence of this determination on the part of your workers, and we well knowing that on the issue of the struggle depends the future subsistence of ourselves and families, or the entire ruin of all that is near and dear to us, we appeal to you, sir, and to the humanity of those for whom you act, if such steps are not absolutely necessary, if all that in life worth contending for, is not at stake. And, therefore, are we not in self-defence justified in firmly opposing ourselves to your ruinous system of policy?

“Your workers have offered to continue in your employment at the rate of 12½ per cent below the Glasgow prices, which, according to the opinion of several individuals well qualified to judge, is declared to be a reasonable, nay, even a liberal allowance, to counterbalance all your local disadvantages; and yet so anxious are we to avoid extreme measures, that a still farther concession of 2½ per cent, making in all 15 per cent discount on Glasgow prices, will be made, provided that you agree to this before the expiry of the warnings now in progress. If not, the original proposal of 12½ will be insisted on, and no accommodation will be made on other terms.

“You may say that we have no right to interfere in the private affairs of any company; neither do we. The amount of wages paid to workers is a public act, and involves the interests of all in the same line. So far as the payment of wages affect us, and so far as the workers at Catrine are willing to unite with us in protecting the price of labour, in so far are we justified in joining together to secure the first demands of nature—bread to ourselves and families; and in order to secure this most necessary article of subsistence, we will persevere to the utmost extremity in our lawful efforts, and leave the justice of our conduct in so doing to be decided at the bar of public opinion.

“In name of the Power-loom Workers of Glasgow and West of Scotland. Yours, &c.

John Wright.

“Glasgow, 10th December, 1834.”

“Mr John Wright,

“Catrine Works, 12th December, 1834.

Sir,—I have received your letter of the 10th instant, in name of the power-loom workers of Glasgow and West of Scotland.

“When you, and the other members of your committee, judged it proper to wait upon me here, I told you that the rate of labour would continue to be governed by other laws than those of trades unions, and, as heretofore, would be regulated by such as govern the price of food and raiment; or, in other words, by the demand and supply in the different localities or markets.

“The people who have been employed at the Catrine Works for the last thirty years are not so ignorant of their own interests as you represent them to be; and, unless they had been convinced of fair treatment in every respect, would have changed to a better situation long ere now, as we have no tie over them but their own interest, nor do we wish to have any other.

“The regulation and agreement you propose are quite unsuitable to the state of society in a free country, and therefore could not be of any duration.

“If not giving you too much trouble, I would beg to recommend to your committee the article upon ‘Trades’ Union Strikes,' in the Edinburgh Review for July. last, where their effects are clearly pointed out, from more extensive experience than this country has yet been subjected to; and their general tendency has been more to reduce than to support the price of labour throughout the country, to those who have been foolish enough to trust to a fluctuating commodity as the means of permanently raising the price of labour in the different markets.

“We shall, therefore, go on here as we have done, making our people as comfortable in every respect as the state of the trade can possibly warrant, and shall not be dictated to by those who, in ignorance more than design, would overturn all the laws of the social compact by which we have hitherto been held together.

“I therefore hope this letter will close our correspondence upon this subject, and remain, &c.

Arch. Buchanan.”

by the 6 George the IV. cap. 129, it is enacted, ‘that from and after the passing of this act, if any person shall, by violence to the person or property, or by threats or intimidation, or by or in any way obstructing another, force, or endeavour to force, any journeyman, manufacturer, Workman, or other person hired or employed in any manufacture, trade, or business, to depart from his hiring, employment, or work, or to return his work before the same shall be finished, or prevent, or endeavour to prevent, any journeyman, manufacturer, workman, or other person not being hired or employed, from hiring himself to, or from accepting work or employment from, any person or persons; or if any persons shall use or employ violence to the person or property of another, or threats or intimidation, or shall molest, or in any” way obstruct another, for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association, or not having contributed, or having refused to contribute to any common fund, or to pay any fine or penalty, or on account of his not having complied, or of his refusing to comply with any rules, orders, resolutions, or regulations made to obtain an advance, or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade or business, or the management thereof; or if any person shall, by violence to the person or property of another, or by threats or intimidation, or by molesting or in any way obstructing another, force, or endeavour to force, any manufacturer or person carrying on any trade or business, to make any alteration in, his mode of regulating, managing, conducting, or carrying on such manufacture, trade, or business, or to limit the number of his apprentices or the number or description of Ms journeymen, workmen, or servants; every person so offending or aiding, abetting, or assisting therein, being convicted thereof, in manner hereinafter mentioned, shall be imprisoned only, or shall and may be imprisoned, and kept to hard labour for any time not exceeding three calendar months.’

“That notwithstanding of the foresaid act, and of the provisions thereof before quoted, upwards of two hundred persons in the employment of the said Messrs James Finlay and Company, at their works at Catrine, in the county of Ayr, as weavers, tenters, and dressers, did lately join a trades’ union, for the purpose of foreing their employers to pay them a higher rate of wages, and submit to other regulations to be imposed on them by the said union; and in consequence of the non-compliance of their masters, have struck work, and now endeavour, with the assistance of many evil-disposed persons, by violence to their person and properties, by threats, intimidation, and by molesting and obstructing the workmen and other individuals in the employment of the said company, and especially those lately taken into the works, to prevent the said workmen, and other persons employed as aforesaid, from accepting work from the said company, and from working, and going out and in from their employment. In particular, on the morning of Wednesday last, the 17th day of December current, or on some one or other of the days of the said month, prior to the date hereof, or of November immediately preceding, and also in the evening of the said day, David Watson, John Stevenson, John M'Dowal, James Muir, Robert Paterson, Alexander Campbell, David Black, William M'Cartney, and Peter M'Leod, all residing in Catrine, were guilty of the foresaid offences against the said act, or one or other of them, in so far as the said David Watson, John Stevenson, John M'Dowal, James Muir, Robert Paterson, Alexander Campbell, David Black, William M'Cartney, and Peter M'Leod did, time and place foresaid, as the work-people were going into the mills at the breakfast hour, and as they were coming from the works in the evening, and on other occasions, obstruct the said work-people, by forming a crowd around them, and did throw dirt, stones, and other missiles at the said work-people, and did strike, injure, and abuse many of them with the said stones and other things thrown at them, and did make use of threatening and abusive language to the said work-people, and did hiss, hoot, and groan at them, for the purpose of preventing them from going on with, and accepting employment, as aforesaid, whereby they have each and all of them incurred the penalty imposed by the foresaid statute, applicable to the said offences.

“The petitioners, therefore, prayed that it might please their ‘Honours to consider this petition; to take the oath of the private petitioner to the foresaid charge, as required by law; to grant warrant for apprehending and convening the said offenders before any two or more of your number, to answer to the said charge; and, on the facts before set forth being admitted or proven, grant warrant, decern and ordain the said offenders to be imprisoned for the full period prescribed by the foresaid act, or for such length of time as to your Honours shall seem just, to deter others from committing the like offences; and do otherwise in the premises as to your Honours shall seem meet, and agreeable to the provisions of the foresaid statute.’”

This petition was signed both by Mr Buchanan and Mr Rose.

Subjoined to the petition (which bore no date) there was the following entry:—

“Compeared the said Archibald Buchanan, who being examined, depones, That from information received, he believes the before mentioned persons are guilty of the offences charged against them, and he charges them therewith accordingly on oath.”

This was signed by Mr Buchanan, and by Claud Alexander, Esq., a Justice of the peace. It was not dated. Then followed this warrant:—

“Catrine, December 18, 1834.—The justice of peace having considered the foregoing petition—Grants warrant for apprehending and convening the persons accused in the said petition, before two of his Majesty's justices of the peace for Ayrshire, to answer to the charges against them; and, in the mean time, grants warrant for summoning witnesses, according to the act before quoted.”

This warrant was signed by Mr Alexander alone.

On the same day, Mr Alexander, and Alexander Montgomerie, Esq., another justice, held a court at Catrine, before whom M'Leod appeared, * and, he having pleaded not guilty, a proof was allowed and immediately taken.

The two justices thereupon issued this deliverance:—

“Be it remembered that, on the 18th day of December, in the year 1834, in the fifth year of his Majesty's reign, James Muir, William M'Cartney, Peter M'Leod, David Watson, and John Stevenson, are all and each convicted before us, Claud Alexander and Alexander Montgomerie, two of his Majesty's justices of the peace for the county of Ayr, of having, on the evening of Wednesday the 17th day of December current, been guilty of using violence to the persons, and by threats and intimidation, or at least aiding, abetting, or assisting, for the purpose of preventing the persons employed at the Catrine Works continuing in their employ, contrary to the act made in the sixth year of the reign of King George the Fourth, entitled an act ‘to repeal the laws relating to the combination of workmen, and to make other provisions in lieu thereof.’ And we, the said justices, do hereby order and

_________________ Footnote _________________

* M'Leod stated that he was apprehended; while the petitioners averred that, on the warrant being notified to him, he came voluntarily. No proof was taken as to this.

adjudge each of the saids James Muir, William M'Cartney, Peter M'Leod, David Watson, and John Stevenson, for their said offence, to be committed to, and confined in the common jail for the said county, the said William M'Cartney and John Stevenson for the space of two calendar months; the said Peter M'Leod and James Muir for the space of six weeks; and the said David Watson for the space of one calendar month, from this date.—Given under our hands the day and year above written”

This was signed by the two justices.

The parties so convicted were thereupon brought from Catrine to Ayr by constables, in virtue of the above warrant.

It. was stated by the suspender, M'Leod, that the above warrant was not put into the hands of the jailer, but that he was imprisoned by virtue of the following document:— *

“Justice of Peace Clerk's Office, Ayr, 18th December, 1834.

Gentlemen,—The following judgment or conviction has been pronounced by Claud Alexander of Ballochmyle, and Alexander Montgomerie of Giffen, Esquires, two of his Majesty's justices of the peace for the county of Ayr, in the petition of Archibald Buchanan, Esq., one of the partners of Messrs James Finlay and Company, and manager of their works at Catrine, with concourse of Hamilton Rose, writer in Cumnock, deputy procurator-fiscal of court, and of the said Hamilton Rose, for the public interest, against James Muir, William M'Cartney, Peter M'Leod, David Watson, and John Stevenson, all residing at Catrine, and others, ‘Be it remembered, that, on the 18th day of December,’ &c. (Here was inserted the copy conviction above quoted.) And you will be pleased to incarcerate and detain the persons of the said James Muir, William M'Cartney, Peter M'Leod, David Watson, and John Stevenson accordingly, and for the periods above set forth. I am,” &c.

This was signed by the justice of peace clerk, and addressed, “To the Magistrates of Ayr, and the keepers of their tolbooth.”

On the 3d of January, 1835, M'Leod presented a bill of suspension and liberation, on the ground—

1. That the petition bore no date, which of itself was a nullity. 1 Besides, by there being no date, the period when the alleged offence was committed was left uncertain, for the offence was charged as having been committed “on the morning of Wednesday last, the 17th day of December current.” This was more especially objectionable, as the

_________________ Footnote _________________

* No enquiry was made into the truth of this statement, but it was not denied by the respondents—See foot note at the end of the case.

1 Alison's Practice of Criminal Law, p. 121.

statute (§ 7) declared, that no complaint should be competent for any offence alleged to have been committed “within six calendar months before such complaint or information shall be made.”

2. The oath was not dated, and therefore could not be regarded as a judicial act, on which a charge of perjury could be founded.

3. Although it was competent for a single justice of the peace to issue a summons for the purpose of citing the accused to appear before two justices, yet it was not competent for him to issue a warrant to apprehend him, as this could be done only by the joint act of two justices. This was specially provided by the 7th section. * But, in the present case, no summons to cite was issued, the suspender having been apprehended on a warrant signed only by one justice.

4. The document on which the suspender had been imprisoned bore no legal character, being neither a warrant nor an extract, but merely a private letter by the justice of peace clerk, informing the magistrates and jailer that a judgment or conviction had been issued by the justices.

_________________ Footnote _________________

* That section is in these terms:—

“That, on complaint or information on oath before any one or more justice or justices of the peace, of any offence having been committed against this act, within his or their respective jurisdictions, and within six calendar months before such complaint or information shall be made, such justice or justices are hereby authorized and required to summon the person or persons charged with being an offender or offenders against this act, to appear before any two such justices at a certain time or place, to be specified; and if any person or persons so summoned shall not appear according to such summons, then such justices (proof on oath having been first made before them of the due service of such summons upon such person or persons, by delivering the same to him or them personally, or leaving the same at his or their usual place of abode, provided the same shall be so left twenty-four hours at the least before the time that shall be appointed to attend the said justices upon such summons), shall make or issue their warrant or warrants for apprehending the person or persons so summoned and not appearing as aforesaid, and bringing him or them before such justices; or it shall be lawful for such justices, if they shall think fit, without issuing any previous summons, and instead of issuing the same, upon such complaint and information as aforesaid, to make and issue their warrant or warrants for apprehending the person or persons by such information charged to have offended against this act, and bringing him or them before such justices; and upon the person or persons complained against appearing upon such summons, or being brought, by virtue of such warrant or warrants, before such justices, or upon proof on oath of such person or persons absconding, so that such warrant or warrants cannot be executed, then such justices shall, and they are hereby authorized and required, forthwith to make enquiry touching the matters complained of, and to examine into the same, by the oath or oaths of any one or more credible person Or persons as shall be requisite, and to bear and determine the matter of every such complaint; and, upon confession by the party, or proof by one or more credible witness or witnesses upon oath, to convict or acquit the party or parties against whom complaint shall have been made as aforesaid.”

Buchanan and Rose answered—

1. Although a summons, from its form, contains within it a date, embodying as it does the warrant to cite; yet a petition could not do so, being altogether different in form, and not containing within it any warrant; indeed it was only when the warrant was granted, that the petition became an authority to act upon; and the warrant in this case was dated.

2. The oath did not require to be dated; and, at all events, it clearly appeared to have been emitted on the same day with the issuing of the warrant, which was dated.

3. In fair construction, the statute did not import that when a warrant to apprehend was issued, it should be so by two justices. It gave a power, where, under the circumstances, it was necessary to grant warrant to apprehend; but this warrant was to proceed from the same authority, which was competent to grant warrant to cite. This authority was given to a single justice; and the common law did not in any case of a warrant to cite or apprehend, require more than one justice; and if there was any ambiguity in the statute, it must be read consistently with the rule of the common law.

4. The statute requires that the original conviction shall be transmitted to the Quarter Sessions, and filed among the records of that Court. It is plain, therefore, that it was not to be put into the hands of the jailer; and, consequently, the only warrant which could be given to him was an exemplification (as it is called in England), or copy duly certified by the clerk of Court; and it was immaterial that it was engrossed in a letter sent by the clerk.

Lord Gillies.—This is a case of very considerable importance, but upon which I have been all along of opinion, that there was an irregularity, arising from the want of a date to the petition, and to the oath. I doubt very much if that oath could be considered a ground for convicting a man of perjury. The date of a written document cannot be proved by parole. You cannot prove perjury where there is no date. You cannot prove the negative of a thing which happened at no time specified. Neither can the date be supplied by the subsequent deliverance of the judge.

Not to dwell on that point, we come to the next—whether one justice is entitled to grant the warrant. I am clearly of opinion, he cannot. I have carefully read over the sixth and seventh sections, and it is remarkable how carefully the distinction is drawn between the proceedings of one and two justices. On complaint, the party must be summoned to appear before two “such” justices; then, if he does not appear, these justices may, in consequence of non-appearance, grant warrant—plainly implying two justices, A greater power is given to these justices than is vested in two,—a power, de piano, of apprehending a party who does not appear. The lesser power is limited to two, and we are now required to hold that a greater power is given to one, while the act speaks, in the plural number. I think the eighth section operates against, rather than for, the argument. It is there made lawful for justices to issue his or their summons. The word justice is used in the generic sense, and the meaning is plainly marked, and pointed out, by the subsequent clause. On the same principle, the words his, or their, would be used in the seventh section. But it is not held that a greater power is given to one, where the jurisdiction was previously limited to two.

Then we come to the warrant of committal, I have great difficulty in saying whether, under the act, an extract could have been sufficient. I doubt it very much. In the schedule there is a form of conviction and commitment, plainly implying, that the warrant of commitment was to be the principal conviction. But leaving that, this letter is not equal to an extract or certified copy. In fact, it is equal to nothing at all.

I am sorry to give this opinion, because I believe the justices acted in bona fide. They have one most important excuse in the terms of the act, which introduces English forms and practice, and which it is difficult to follow out in Scotland.

Lord Mackenzie.—Except on one point, as to which I am doubtful, I concur. I concur in having very great doubts about the date. Supposing a trial for perjury, would it have been competent to convict upon this oath as a legal oath, bearing, as it does, no date?—not appearing by reference to apply to the petition; and, if it did, the petition has no date.

I concur also as to the want of a warrant of commitment. I think the statute in this particular quite unambiguous. I have not the least doubt the statute contemplated nothing but this—that the form in the schedule should be a commitment, and that it should be given out as a warrant, and the party committed carried away with it to prison. At the end of it you have the words, “Given under our hands.” It is not a mere decree; it is called a commitment, and not only so, but it is evidently a thing to be given out, and, as in England, is the writ to be taken by the officers of Court as their warrant? Notwithstanding that, there is certainly room for doubt, whether the universal rule of Scotch law, by which a regular extract of any sentence of a Scotch court is probative and equal to the sentence, might not apply here, not being excluded by the statute. If it be true that this practice has prevailed in Scotland all along down to the period of introducing this English drawn statute—if that can be made out, I cannot say but that it may be so strong as to sanction the application of the rule of Scotch Law. But even if we were to go on that, it must be in good form; it must be a regular authentic extract.

The next point relates to the validity of the warrant of apprehension. If the original proceedings are invalid, then of course the whole must fall. It therefore becomes material to ascertain, whether the warrant is void, because it is only signed by one justice. Here I am rather of an opposite opinion from that given by Lord Gillies. In the first place, it is a general principle applicable to justices as well as judges, that there must be a quorum for trying a case, but not for giving a warrant of apprehension. I know of no instance where a quorum for apprehension is required in the whole compass of the law. It is not so in this Court, and I believe it is the same in the Court of Session. I suspect that this rule of law was evidently contemplated in the statute. It begins by providing that one or more justice or justices are to summon for appearing before two. Here it is plain, that if one only could be had, one is enough. It next provides, that if the party do not appear (that is to say, before the two), then that quorum for trial may grant warrant for apprehending the person or persons so summoned. It is said, that this draws back to the original warrant of apprehension, on the assumption that two are to be there to try, and if the person fails to appear, the same two are to grant warrant for apprehension. But it is of importance to notice that this apprehension is granted by two, not because they are necessary, but because they are there present at the trial.. Then the act goes on to provide, that, instead of issuing the same, that is, the original warrant upon such complaint and information as aforesaid, they are to make, and issue their warrant or warrants for apprehending, &c. On this point, I hare no doubt that the statute reverts back to the original justice or justices receiving the information, and departs from the quorum for trial; though it does not. vary the expression, it varies the sense. The justices are not justices for trial, but the same justice or justices who receive the application. The words “instead of” plainly make the statute to speak here of the original justice or justices. And it just comes to this, whether it may not designate the one who originally issued the warrant. It does appear to do so, because the one alternative of the act comes in place of the other. They are put exactly in pari casu. Then it is said the word “justices” cannot apply; but it does appear to me to apply. For what does it provide in the 8th section? That it shall be lawful for the justices of the peace, &c. to issue his or their summons; and what is the inference from this? That this section, which is plainly speaking of the same justices, by denoting them as acting both individually and collectively, makes it reasonable and probable that the statute is just following out one general purpose; and that, in the one case, in speaking of the justice or justices, and, in the other, in using the words his or their, it just adverts to the same persons throughout. This is more agreeable to the expression which points out the warrant of apprehension as coming in place of the original warrant of commitment. In short, it just comes to this, that if a contrary construction is to be put, one justice must be obliged to refuse any warrant at all; and that the party complaining must seek out two justices when a man is on the point of making his escape. Such are the reasons which induce me rather to differ on the point, though certainly not without great doubt.

Lord Moncreiff.—As my opinion coincides with that of Lord Gillies, I shall endeavour to express myself very shortly.

I have gone over the act very carefully; and I have formed a decided opinion as to the question of the warrant of apprehension, which I think should be granted by two justices, and also on the question as to the form of the warrant of committal. On the point of date, I am inclined to agree with what has been stated; we must all agree there was an irregularity, and on this it is not necessary to say more.

With regard to the question, whether there should be two justices, I may observe that the power given by the act was rendered necessary by the repeal of the combination laws; and on account of the violent proceedings which have taken place, it is of consequence that there should be no misunderstanding as to the import of the statute. The provisions of the statute are highly penal; but most penal in that part which empowers the justices de piano, and the moment the party is brought before them, to proceed forthwith to take evidence and to convict. When a statute is so highly penal, we must undoubtedly construe it strictly, and more especially see that it is carefully observed in point of substance. I cannot but observe that it is unfortunate that an act of the kind should have been so loosely drawn; and that, in regard to Scotland, it should have Been left to stand as it now does. By the 11th Section, it is made to appear that all prosecutions under the act may be insisted on at the instance of the public prosecutor either before the justices or the sheriff. Yet it is not easy to see how the phraseology of the 7th section could be applied, if the proceedings were to take place before the sheriff in the first instance, for the 7th section gives no power to the justices to summon the party to appear before the sheriff; so that we are left to judge of the procedure before the sheriff in some sense by analogy. This, however, is foreign to the question. Let us come to the provision immediately under consideration.

When a complaint is made before any one or more, of them, such justice or justices are authorized to issue a summons to require the party to appear before two justices, and if he does not appear then, such justices shall issue on oath their warrant to apprehend, and bring him or them before such justices. We are all agreed this is bringing them before two. Then the statute goes on to say—“It shall be lawful for such justices,” &c.,—not one or more, for these words are the same which we are all agreed apply to two justices. How, then, can it be said that this gives power to one? The words are in the plural number;—how can it be said that “such justices” in the first clause, means not the same thing as the same words immediately following. I could not construe the statute in that way, even if there were not in theory very good ground for supposing it to be otherwise. The principle of the statute seems to be to make a marked distinction between warrants of citation and apprehension. If any illustration were necessary, it is to be found in the 8th section. I admit there is a looseness of expression; but that is explained by the words which follow. It might be supposed to mean one throughput, but then you observe in the first clause there are the words “his” or “their” and then what follows? they are to issue a summons to appear and give evidence as a witness before such justices, and, if they do not appear, they are authorized, &c., not he or they, which plainly shows that the warrant must be granted by two. Upon these grounds, I think it impossible to come to the conclusion that one justice has the power of apprehension. Lord Mackenzie has observed that there is a reverting to the persons before whom the original complaint is to be made; but these persons are the justices of peace—it may be one, it may be two. These two alternatives are in the original provision, which is merely for summoning. Then, though you do revert, you must still take the clause in that alternative which gives warrant to two. That is the way in which I think it can alone be explained. If there is any doubt as to the import of the words, it is clear it lies on any one to prove it who says that he can give a construction out of this statute which I do not find in the words of it.

As to the warrant of committal, I am clear that it is not good. It does not depend on the schedule merely, but on the substantive provision in the act. How to get out of that I cannot conceive. Look at the 9th section. It is not the convictions merely, but the warrants or orders for commitments that are to be drawn up in a particular form. Does not this show that they must have a signature? There is no other warrant within this act. The legislature knew they were dealing with a thing not to come before a court of record, but before a court from which there can be no extracts. When dealing with an act of this kind, we must consider it in the same way as in England. I must say I cannot see how they are to grant warrant in any ether way than is pointed out by the act. It is said there was a certified copy. I do not know any act which says that a common letter is to be held as such. The person who wrote it must have been aware that it was nothing of itself, for he adds—“you will be pleased to detain and incarcerate,” &c. The clerk had no authority to give an extract out of a court not of record, still less had he authority to carry into effect the sentence of the justices, by merely writing a letter. I shall be sorry if there has been a practice in this country of proceeding in this form; but when I am called on here as a judge, I cannot be ruled by any state of practice which I must hold to be erroneous. Nothing is easier than to follow out the terms of the act. The act has specially provided for the preservation of a copy of the warrant, independent of that which is given to the jailer. There is no occasion for the clerk copying it.

Although I am under the necessity of giving this opinion, I am sorry for it, as 1 have no doubt of the bona fides of the justices—no doubt whatever. Nay, more, I do not wonder that they were misled. I believe they intended to act correctly, and according to the substance of the act, but I must take care that this statute is strictly, and in every particular complied with.

Lord Medwyn.—I agree that, in considering every statute of this kind, penal or not penal, we are not to go beyond the terms of it. I am quite aware that it is penal. But I do not know that it prescribes to us any rule by which the intention as to form is to be interpreted so very strictly.

With regard to the question of the necessity of a date to the oath and petition, I must say I know of no authority by which these summary petitions are required to be dated. With regard to the oath not being dated, and the opinion that it would not be a ground of conviction for perjury, all I can say is, that when a petition of this kind is presented to a justice, all he has to do is to receive the oath and instantly to issue his warrant. It would be a dereliction of duty in a county justice or sheriff if he were to refuse to give that warrant because the petition was not dated. I know a good deal of the practice. I must also take the liberty to observe that it is not necessary that warrants of citation should have a date. I refer particularly to the second volume of Hume, and likewise to Tait. The forms in Mr Tait's book have no date.

The next question raised is as to whether this was a competent warrant of apprehension. I will candidly own that when I first read the statute I entertained a different opinion, and it is only on careful examination that I have come to think that the interpretation put upon this part of the statute by Lord Mackenzie is correct. I do not see any reason why a single justice should not issue his warrant even in the case of a capital crime. The act supposes two justices assembled. It contemplates the party found while they are there in the court. It then goes on with an alternative—not an alternative to the second, but to the first, branch of the act. I do not say it is impossible to construe it otherwise, because some of your Lordships differ with me. It says, the justices who are assembled to try may issue their warrant to apprehend, but this does not preclude the construction that the first time the justice is to act he may either summon the parties to appear or issue his warrant to apprehend them. I do not say the statute might not have been more precise, but I certainly conceive that the alternative applies to the original and anterior part of the section. If the party is a peaceable man, and not likely to run away, he may be simply summoned to appear. But I cannot see why it should be required that they should go round the country to get two justices to grant a warrant to apprehend when he is just going to fly the country. I may be wrong in my interpretation, but if so, it is at least an honest one, and I think it is justified by the manner in which the alternative is pat in the 8th section.

The only other point regards the way in which the warrant should be written out. Most certainly that is the most difficult point. It is an English statute, and I presume it was intended that the form in England should be adopted. What that may be I do not pretend to know. Considering, however, that inveterate usage should have some weight, I have made it my endeavour to make enquiry. I do not think there is any thing incompetent in acting upon an extract. I am satisfied a copy signed by the justices would be sufficient, or an extract by the clerk. I do not think the 9th section imports the contrary. I do not say but what it is the most regular form to send the warrant by the officer. The reason why the officer does not get it seems to be that he must lodge it with the jailer, and, after he has lodged it with the jailer, it cannot be got up. You cannot withdraw the warrant.

The only question which remains is, whether this letter is a proper extract? If the word “gentlemen,” and the words at the end had been left out it would hare been a proper copy, and I cannot help thinking it was a fair caution on the part of the clerk. On this and the previous point I have formed my opinion principally on the practice.

Lord Justice-Clerk.—It is of importance both to the law and to these parties—nay, it is our bounden duty, after having given our attention to the argument, to give them the full benefit of hearing the grounds upon which we found our opinions. As to some of the points under consideration I at first took a different view from that which, after very mature deliberation, I now entertain. As to the dates, I think that there are materials for finding that, under the circumstances, there cannot be any legal objection to the want of a date either to the petition or oath. The other two points are of a very different nature, and, knowing that there was a difference of opinion, I made it my endeavour to give them my utmost attention.

In the first place, it is an undoubted rule that we are to apply a strict interpretation to an act such as this, and I cannot see any principle in law for applying it to one part more than another. I must keep in view that the statute is penal, and that the rules of strict interpretation are to be applied to it.

If there is any room for ambiguity, and that there is ambiguity is shown by the difference of opinion among your Lordships, we must cast the balance in favour of the party pleading the benefit of the common principles which apply to the liberty of the subject. Admitting, then, that there are doubts, the first question is, whether it is competent for a single justice to grant a warrant for apprehension, not for examination—not as a preliminary step, but to grant a warrant, which, when acted upon, shall bring him before two justices, who are to proceed to conviction. I am much afraid that the rule applicable to commitment in the case of felony does not apply. That commitment is only for examination, not for immediate trial. This is a statute which confers powers on two justices to proceed forthwith to take cognizance of, to enquire into, and proceed to give judgment at one sederunt. I apprehend we must look strictly at the words of this section. It appears to me that the legislature has made a marked distinction between the summoning and apprehending of parties. If only one justice is at hand, the act empowers him, if an oath is made, to summon hint to appear before two justices; but then the statute goes on to provide, in case of his failing to appear before two justices empowered to try and decide, that these justices are to issue their warrant for apprehending him and bringing him before them. If the ordinary rule of apprehension for examination is to be held as in view, would it not have expressly provided, if so intended, that this might be done by one? Accordingly, we are all agreed that two justices alone can grant that warrant. If one were to grant it on failure to appear, it would be quite nugatory. I am aware there is another provision, and a very necessary one. Cases might occur where there was a necessity for the immediate application of the power of apprehension—as, for instance, where there are riots. The object here is to endeavour to check this, by giving a power of apprehending and bringing the offenders immediately to justice. In looking at the phraseology, “or it shall be lawful for such justices,” &c. (§ 7), you are no doubt to refer to the provision in the other case, so far as there must be an application on oath; but then the words are in the plural number, and you are therefore driven back to consider, that, although there is a manifest declaration of a power of summoning by one judge in ordinary cases, when a different course is to be followed, and the urgency of the case makes it necessary not to give fair warning—to apprehend and to convict de plano—it does appear to me that, to give fair play to the act, you cannot hold that this power is given to one justice.

Is there any word that can be held to give a direct power to one justice to grant such a warrant? I was at first of opinion that the terms of the 8th section might have admitted of application to this part as an explanation of the manner in which the general term is used; but, on consideration, I have come to be of the opinion which I have now formed, and I think the provisions are quite distinct. This matter of summoning witnesses, it was not so necessary to deal with tenderly as with the case of an apprehension; and, upon the whole, my opinion just comes to this, that, in the provision for dealing with the principal party, if such a power had been intended to be conferred on one justice, it would certainly have been given in explicit terms. It is my duty to say that, when I find that individual judges differ as to the interpretation of this statute, there is great excuse for any error which may have been committed by the justices. It is clear that the justices of the peace are as much entitled to judge of this matter as your Lordships; and it certainly is not surprising that they should have fallen into a mistake in not following out to the letter what may be truly called an English statute. I wish it to be expressly understood, that it is my own opinion, and indeed that of all of us, that these justices acted with perfect bona fides.

As to the other matter, I have no difficulty, because, when I consider the terms of this letter, the only document for incarceration—that this letter is written by the clerk (who was not present at the meeting) in his chambers at Ayr, I am clearly of opinion, that there was no legal ground for detaining those persons as prisoners. If there had been a regular exemplification of the judgment, though authenticated by the justices, I question if it would have been precisely in accordance with the terms of the act. This letter, however, cannot, by any construction of law, be held to be even an extract of the judgment. It does not bear any of the authentic marks of an extract; it does not even say that it is written at the request of the justices. How does it appear that the justices may not have recalled their own sentence? Something might have been done to make them cancel the judgment Prisoners cannot be received upon the fidelity of any man whatever. It is plain it is not a legal extract, and the only question is, if it is a warrant at all. Here we must go back to the act—we are not entitled to go one iota beyond the terms of the act. It declares that there is a schedule apart containing the proper form to be used in carrying the sentence into effect. In short, the legislature contemplated prescribing the whole procedure to be observed, from the first act of the judge to the commitment to prison. The schedule is referred to, not only as a form of conviction, but commitment. The justices might have ordered as many copies of it as they chose. As to the copy directed to be written on parchment and filed in the Quarter Sessions, it applies to a different purpose altogether. Suppose the magistrates had refused to receive these men, I ask your Lordships, if you could have found fault with them? Unless the officer brings with him that warrant which the act requires under the hand of two justices, the magistrates were not bound to receive the prisoners; and if they chose, out of courtesy, to receive and detain these persons as prisoners, they did it at their peril.

The Court accordingly suspended the letters. *

_________________ Footnote _________________

* The Clerk to the Peace, in reference to the objection to the form of the warrant of committal, on seeing a report of the case in a public journal, addressed the following letter to the Editor, which has been communicated to the Reporters:—

“In a report given in yesterday's Observer, of the grounds on which the Court of Justiciary set aside the conviction of the individuals who were tried before the Justices at Catrine, on the 18th of December last, for combination, &c., there is the following statement:—‘With regard to the last objection, namely, the warrant of incarceration transmitted by the clerk, the whole Bench, with the exception of Lord Medwyn, were decidedly of opinion that it was not the warrant contemplated by the statute, and that nothing but the conviction itself could warrant the incarceration. The decision of the Court was consequently to quash the conviction, and liberate the prisoners.’ On that statement I beg to observe, that, if it be the case that the decision proceeded in any degree upon the ground above stated, the Court cannot have been made acquainted with the material facts, that the offenders were incarcerated on the original conviction itself, and that no warrant of incarceration was transmitted by the clerk. In point of fact, it was impossible that a clerk could have given or transmitted a warrant for incarceration, because no clerk was present at the trial at Catrine, or had notice to attend. Nor was any thing whatever known at this office here of the trial or conviction till some time after the offenders had, by virtue of the original warrant, been taken into custody, brought from Catrine, and incarcerated in jail. After imprisonment had taken place, the proceedings were lodged in the office by the sheriff-substitute, with instructions to give to the town-clerk the usual certified copy of the conviction; and that was accordingly done in the manner and form that has been in practice for at least fifty years past. It is no part of the duty of clerks of court to see that warrants are properly carried into effect; but I believe that no prisoner, confined in jail by virtue of warrants from the Court of Justiciary or Sheriffs, is detained in any other manner than that in which the Catrine offenders were. It may further be observed, that as the Combination Act provides that the conviction shall be transmitted to the Quarter Sessions, ‘to be filed (deposited) among the records,’ it is to be regretted that the report alluded to affords no information with respect to the process by which the Court thought the Justices might be enabled to place that conviction among these records, and, at the same time, allow it to remain with the jailor,”

Solicitors: C. Fisher, S.S.C.— Gibson-Craigs and Wardlaw, W.S.—Agents.

SJ 13 SJ 1153 1835


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SJ1153.html