Scottish Court of Session Decisions

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.