Scottish Court of Session Decisions

By the statute 39 Geo. III. c. 79, entitled “An act for the more effectual suppression of societies established for seditious and treasonable purposes, and for better preventing treasonable and seditious practices;” it is enacted in sect. 27, “That, from and after the expiration of forty days after the passing of this act, any person who shall print any paper or book whatsoever, which shall be meant or intended to be published or dispersed, whether the same shall be sold or given away, shall print upon the front of every such paper, if the same shall be printed on one side only, and upon the first or last leaves of every paper or book, which shall consist of more than one leaf, in legible characters, his or her name, and the name of the city, town, parish, or place, and also the name (if any) of the square, street, lane, court, or place, in which his or her dwelling-house, or usual place of abode shall be; and every person who shall omit so to print his name, and place of abode, on every such paper or book printed by him, and also every person who shall publish or disperse, or assist in publishing or dispersing, either gratis or for money, any printed paper or book, which shall have been printed after the expiration of forty days from the passing of this act, and on which the name and place of abode of the person printing the same shall not be printed as aforesaid, shall, for every copy of such paper so published or dispersed by him, forfeit and pay the sum of £20.”

In regard to the penalties, it is provided by sect. 35, “That any pecuniary penalty imposed by this act, exceeding the sum of £20, may be sued for and recovered by any person who will sue for the same, by action of debt, in any of his Majesty's courts of record at Westminster, if such penalty shall have been incurred in England or Wales, or in the town of Berwick-upon-Tweed, or in his Majesty's Court of Exchequer in Scotland, if such penalty shall have been incurred in Scotland, in which action it shall be sufficient to declare or allege that the defendant is indebted to the plaintiff in the sum of £20 (being the sum demanded by such action), being forfeited by an act made and passed in the thirty-ninth year of the reign of his Majesty, King George the Third, entituled, ‘An act’ (here set forth the title of the act), and the plaintiff, if he shall recover in any such action, shall have his full costs; and any pecuniary penalty imposed by this act, and not exceeding the sum of £20, and for the recovery whereof no provision is herein-before contained, shall and may be recovered before any justice, or justices of the peace, for the county, stewartry, riding, division, city, town, or place, in which the same shall be incurred, or the person having incurred the same shall happen to be, in a summary way; and in case such last mentioned penalty shall not be forthwith paid, such justice, or justices, shall, by warrant under his or their hand and seal, or hands and seals, and directed to any constable or other peace-officer, cause the same to be levied, by distress and sale of the offender's goods and chattels, together with all costs and charges attending such distress and sale; and in case no sufficient distress can be had or made, such justice or justices shall commit the offender to the common goal or house of correction for such county, stewartry, riding, division, city, borough, town, or place, there to remain, without bail or mainprize, for any time not exceeding six calendar months, nor less than three calendar months.”

The 36th section enacts “that all pecuniary penalties and forfeitures imposed by this act, shall, when recovered, either by action in any court, or in a summary way before any justice, be applied and disposed of in manner hereinafter mentioned; that is to say, one moiety thereof to the plaintiff in any such action, or the informer before any justice, and the other moiety thereof to his Majesty, his heirs, and successors.”

In 1834, a dispute arose between the civil authorities of Paisley and the clergy regarding the use and control of the church bell, mentioned ante, p. 432. In connexion with this dispute, the following Notice was printed in the form of a hand-bill, not bearing the printer's name, and distributed about the town of Paisley:—

“NOTICE.

“Seeing that the Lord Advocate of Scotland has found and declared the bell in the steeple of the High Church, actually to belong to, and form part and portion of the sacred portion of the church, and that the same can only be rung under my orders, for the purpose of assembling my spiritual belligerent flock: Intimation is hereby given to all belonging to our most Holy National Church, to her clergy as well as to her laity, to her pastors, elders, and deacons, members, and those who are not members, but are friendly to her establishment, and to such only is this intimation made, viz.—The High Church Bell will be solemnly baptized and anointed oleo chrismatis, in my Session-house, on the evening of Sunday first, at eight o'clock. The Bell to be consecrated to the memory of the Tutelary Saint, St Mirren, and will receive the exorcism of the bishop of the diocese, for the more effectually expelling the devil! and whole herd of Voluntaries and Infidels from out of the hearing of its sound.—I Mannikin, Parish Priest, High Session-house.”

On the 13th December, 1834, a complaint was presented to the Justices of Renfrewshire against the advocator Dunlop, a spirit-dealer in Paisley, for distributing this hand-bill, by the respondent Hart, procurator-fiscal of the Justice of Peace Court. The application bore to be,—“The information and complaint of John Hart, writer in Paisley, Procuratorfiscal of court, for himself, and the public interest.” It set out with reciting the 27th and 35th sections of the statute above quoted. It then proceeded thus:—“That notwithstanding of said enactments, the publishing and dispersing of irreligious and scurrilous printed papers, placards, or handbills, on which the name and place of abode of the person printing the same is not printed, as is prescribed by the said statute, tending to revile the religion of the country, and to bring the profession and worship thereof into contempt among the ignorant, and tending to revile, insult, and ridicule clergymen and others, has lately become common, and ought to be prevented. That the petitioner has been informed that John Dunlop, spirit-dealer in Broomlands-street, Paisley, High Church parish, and burgh of Paisley, did, on Monday, Tuesday, Wednesday, Thursday, Friday, Saturday, and Sunday, the 24th, 25th, 26th, 27th, 28th, 29th, and 30th days of the month of November last, 1834, or on some one or other of the days of that month, or of the month of October immediately preceding, or of the present month of December, 1834, or at least within these three months last past, within and throughout the town and suburbs of Paisley, in the high, middle, low, and Abbey Church parishes of Paisley, and county of Renfrew, or in one or other of the said parishes, publish or disperse, or assist in publishing or dispersing, either gratis or for money, printed papers or handbills, or copies, amounting to the number of twenty-five and upwards, in the petitioner's opinion of the nature and tendency foresaid, and of the following tenor.” The complaint then recites the handbill in the terms in which it has been quoted, states that it did not bear the printer's name and place of abode, as required by that act, and that Dunlop had incurred a penalty of £20 for every copy which he had published or dispersed, or assisted in publishing or dispersing, besides the expenses of the application and subsequent procedure; and further, “that, in order that the said John Dunlop may be punished for the said contraventions, in terms of the said statute, so as to deter him, and all others, from committing the like in time coming, the present application is made to your honours.” The prayer of the petition was, that the justices should grant warrant “for bringing or summoning the said John Dunlop before them for examination;” and thereafter, on admission or proof of his publishing and dispersing, or assisting in publishing or dispersing the handbill,—“to fine and amerciate him in the penalties thereby incurred by him in terms of the said statute, or otherwise, to find and declare the said penalties forfeited by him, in terms of the said act, payable to the petitioner, to be applied and disposed of in terms of the said act of Parliament: to find the said John Dunlop liable in the expenses of this application and subsequent procedure, and decern accordingly; and in case such penalties shall not be forthwith paid, to grant warrant for levying the same, and costs and charges, or otherwise, for committing and imprisoning the said John Dunlop in the common jail or house of correction of Paisley, therein to remain without bail or main-prize, for a time, to be fixed by your honours, in terms of the statute founded on; mean time, to grant diligence to both parties for citing havers and witnesses, to appear and depone in so far as they know, or may be asked, anent the points to be proved by either of the said parties, in reference to, or any way connected with the foregoing complaint, at such time and place as may be fixed by your honours, each under a penalty of £100 Scots, or to do otherwise in the premises, as to your honours shall seem proper.”

On this petition the justices gave a deliverance, granting warrant for summoning Dunlop to appear before them “for examination;” directing that he should be served with a copy of the complaint forty-eight hours at least before the diet, and granting warrant to cite havers and witnesses. No list of witnesses was furnished to Dunlop, either with the copy of the complaint, or at any other time.

On the 19th of December Dunlop appeared, and besides pleading the general issue, he stated certain defences founded on want of competency in the court, and of relevancy in the charge. The justices disposed of these by the following interlocutor:—“The Court having heard objections to the competency of the complaint, and the petitioner's answers thereto, repel the objections; find the complaint relevant; allow to the petitioner a proof of the complaint, and to the defender a proof in exculpation and alleviation, and ordain such proof to be adduced instanter.”

Dunlop was examined before the justices, and afterwards put upon oath as a haver, and called on to produce the hand-bills complained of in his possession. Hart then examined witnesses in support of his case. On the 30th December the following sentence was pronounced:—“The Justices having maturely considered the complaint and productions therewith made, statute founded on, declaration of the defender, and proof adduced for the prosecutor, and advised the whole case; find, in so far as not admitted, that it is sufficiently proved that the said defender, John Dunlop, has contravened the said statute, in so far as he, within the time mentioned in the complaint, and in violation of the said statute, did publish or disperse, or assist in publishing or dispersing, twenty copies of the hand-bills or notices founded on and produced, the same not having the printer's name thereto attached, in terms of law; and that he has forfeited the sum of £20 for each such offence. But, in respect of the circumstances of the case, and founding on the statute, 51st Geo. III. c. 65, § 2, mitigate the same to one-fourth part thereof, or £100, being £5 for each such notice or bill so distributed: therefore, fine and amerciate the said John Dunlop in the said mitigated penalties, amounting to £100, and adjudge that he pay the same to the prosecutor, to be applied in pursuance of said statute founded on in the complaint: find the said John Dunlop liable in costs of prosecution, and modify those to £15 sterling, payable to the said prosecutor, and decern therefor, and order conviction, in terms of the statute, to be issued accordingly; and, in default, mitigate the imprisonment to four months within the jail of Paisley, and decern.”

From this sentence Dunlop appealed to the Quarter Sessions, and on the 3d March, 1835, that Court pronounced as follows:—“The Court having considered the process and acts of Parliament founded on, by a majority of 28 to 4, dismiss the appeal, and affirm the judgment appealed from; and by a majority of 22 to 9, find the respondent, Mr Hart, entitled to expenses; ordain an account thereof to be given in, and remit to the clerk of Court to tax the same, and to report to the next Quarter Sessions to be held at Paisley.”

Dunlop then presented a bill of advocation to the High Court of Justiciary, on the grounds of want of jurisdiction in the justices, want of title in the respondent to prosecute, and various alleged informalities in the proceedings.

To the competency of this bill Hart objected, in limine, that the process was truly of a civil nature, and not cognizable by the Court of Justiciary.

On this point Dunlop pleaded, that the form of the complaint, and especially its prayer, along with the subsequent procedure, gave a criminal character to the proceeding in question, and made it, according to every test, cognizable before the Court of Justiciary; that the fact of a contravention of the statute being punishable by the imposition of penalties, was no criterion that this was not punishment for an offence; ¹ that the 39 Geo. III. c. 79, was an act for repressing the crime of sedition, as appeared from the title and preamble, and, therefore, an offence against this act must necessarily be a criminal offence.

To this it was answered—It is not enough that, in point of form, the proceeding has taken a criminal turn if it is in substance a civil action. ² The statute intends the payment of the penalty, which is the primary object of this proceeding, to be enforced by civil process, and the mere fact of the prosecutor having assumed the proceeding to be criminal, does not give this Court jurisdiction. Whatever may be the object of the statute, the enactments founded on refer solely to publications, of what nature soever they be, wanting the printer's name.