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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v Young [1835] CA 13_535 (24 February 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0535.html
Cite as: (1835) 13 S 535, [1835] CA 13_535
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SCOTTISH_Shaw_Court_of_Session
Page: 535↓
v.
Subject_Jurisdiction—Statute.—
1. Warrant of imprisonment under the Hawkers' Act, which held illegal and not protected by the act so as to exclude the jurisdiction of the ordinary courts. 2. The offences under the act held not to be criminal, and the Court of Session, not the Court of Justiciary, the proper court to give redress.
By the 55 Geo. III. c. 71, commonly called the Hawkers' Act, it is provided (§ 10), “That if any such hawker, pedlar or petty chapman, or other trading person, so travelling as aforesaid, shall, from and after the said 1st day of August next, trade as aforesaid, without, or contrary to, or otherwise than as shall be allowed by such license, such person shall, for each and every such offence, forfeit the sum of £10, to be recovered and applied as herein after mentioned; and that if any person trading under or in virtue of any license to him or her, granted as aforesaid, upon demand made by any person or persons authorized or appointed to demand any such license, by the commissioners appointed by this act, or any two of them under their hands, and upon producing or showing such authority or appointment to such person so trading as last aforesaid, or upon demand made by any sheriff or stewart, depute or substitute, justice of the peace, provost, constable or other officer of the peace of any county, stewartry, burgh or place, where he or she shall so trade, or by any officers of the customs of excise, or by any person to whom such hawker, pedlar, or petty chapman, shall offer any goods for sale, shall refuse to produce and show the same unto such person authorized and appointed as last aforesaid, or unto such sheriff, steward or justice of the peace, bailie, constable, or other officer of the customs or excise, that then the person so refusing, or not having his or her license ready to produce and show as aforesaid, shall forfeit £10, to be recovered and applied as herein after mentioned; and for non-payment thereof, shall he treated as a common vagrant, and be committed to the nearest jail or house of correction.”
By § 13 it is declared, “That it shall be lawful for any person or persons
When the penalty exceeds £25, it is declared (§ 17) to be recoverable in the Court of Exchequer; and, as to lesser penalties, it is by § 18 enacted—“That in all cases where the pecuniary penalty by this Act imposed does not exceed the sum of £25, it shall be recoverable before the sheriff, or steward, depute or substitute, or before one of his majesty's justices of peace of the county, stewartry, city, burgh, or place wherein the offence shall be committed, on proof of the offence, either by voluntary confession of the party or parties accused, or by the oath of one or more credible witness or witnesses; and one moiety of every such last mentioned penalty shall belong to his majesty, his heirs and successors, and the other moiety to the informer or informers prosecuting for the same; and, in case of non-payment, the said sheriff or steward, or the said justice, by warrant under his hand, shall cause the same to be levied by poinding and sale of the offender's goods and effects, or of the goods and effects with which such offender shall be found trading, and the surplus of the money raised, after deducting the penalty and expense of the poinding and sale, shall be rendered to the owner; and shall also commit the offender to the prison of such county, stewartry, city, burgh, or place, there to remain until the said penalties, and the reasonable charges of the poinding and sale shall be levied as aforesaid, or until the same shall be paid or satisfied by such offender.”
An after section (the 20th) subjoins—“Provided always, and be it further enacted, that no person committed to any jail or house of correction, for any offence committed against this Act, shall be detained in such jail or house of correction for any longer space of time than three calendar months.”
By § 21 it is provided—“That if any person or persons shall find
As to convictions by the sheriff, on the other hand, it is enacted (§ 22)—“That no conviction made, or decree given under or by virtue of this Act, by any sheriff, or stewart depute or substitute, shall be removed to the Court of Session by advocation, nor shall the same be suspended; but any sheriff or Stewart, upon being required by the party or parties, after they have granted bond with two sufficient sureties, in the manner above-directed, in the case of any appeal to the Quarter Sessions, shall state the facts specially, for the determination of the Court of Exchequer.”
In November, 1833, the respondent, Young, a merchant in Cromarty, presented a petition to the other respondents, Joyner and Ross, justices of the peace for the county of Cromarty, setting forth that he was in the certain knowledge that the suspender, “William Campbell, travelling chapman or hawker, has been in the habit, for some time past, of going about the country and vending his wares without a license, as required by Act of Parliament, 55 Geo. III., cap. 71, § 10;” and, therefore, craving—“that the said William Campbell may be brought before your honours, and upon confession or probation of what is set forth, to decern and ordain him to pay the fine ordained in said Act of Parliament.”
Campbell having been brought before Joyner and Ross, on a warrant for apprehending him for examination, “confessed that he had been in the habit of selling his wares without a license, as set forth in the petition, and therefore throws himself on the mercy of the Court.” Thereupon the justices gave the following deliverance:—“The justices, therefore, upon consideration of the foregoing confession, ordain the said William Campbell to find sufficient security to appear for judgment when called for, and failing of which, to be imprisoned as the act directs, or pay the penalty specified in the act.”
Caution not having been found, Campbell was imprisoned, in virtue of
To this it was answered, 1. and 2. The warrant in the concluding part of the deliverance of the justices is not truly as a penalty for failure to find caution, but is the penalty for the offence under the statute, of which Campbell had confessed himself guilty; and the previous provision as to security was a mere suspension of the warrant being carried into effect out of favour to him, and, as was alleged, conceded at his own request; and therefore, in respect of this, the warrant was not inconsistent with the statute. 2. The reference to the act for the penalty and period of imprisonment was perfectly sufficient, the complaint being specially grounded on the tenth section. It was further contended by the respondents, that the suspension was incompetent.
The Lord Ordinary on the Bills having reported the bill with answers, the Court, with a view to the question of competency, remitted to Lord Moncreiff to discuss the reasons on the bill. His Lordship ordered cases.
Pleaded for the Respondents—
1. A special mode of redress when parties have been aggrieved is provided by the statute, viz. by appeal to the Court of Exchequer, when the sheriff shall have decided, and to the Quarter Sessions, when the justices shall have decided. This being a new offence created by statute itself, the procedure so pointed out is necessarily imperative and exclusive, in the first instance at least, of any other jurisdiction. 1
2. Even if the provisions above referred to were not exclusive of all other jurisdiction, it is the Court of Justiciary, and not the Court of Session, who are competent to interfere. The matter charged against the
_________________ Footnote _________________
1 Cook v. Mill, May 17, 1823 (ante, II. 317); Campbell v. Mill, June 28,1823 (ante, II. 440); Craigie v. Mill, Feb. 10, 1820 (ante, IV. 447, and 1 W. and S. 642); Alexander v. Seymour, Dec. 2, 1828 (ante, VII. 117).
suspender was an “offence” of which he was to be “convicted;” one half of the penalty was to go to the crown, and was to be expiated by imprisonment; and it falls under the same class of cases with those regarding those violations of the Game Acts, Salmon Acts, and others, for which pecuniary penalties only are imposed, with imprisonment for a fixed period in lieu of it, if not paid, which are held to be Justiciary causes. 1
Pleaded for the Suspender—
1. The statute can afford no protection to a warrant not in terms of it. Here, the warrant is in total violation of it, in no way authorized by it, and cannot be considered under it. In such circumstances, it has repeatedly been decided, even as to matters of statutory jurisdiction newly created, that this Court may properly interfere; and, unless otherwise excluded, it is the peculiar province of the Court of Session to secure the liberty of the person against illegal imprisonment. 2
2. The statutory offence here in question is not malum in se, or, in its own nature, of a criminal character, so that, unless intended to be made so by the statute, the Court of Session must be competent. There is, however, no appearance of any such intention in the statute. The penalty is purely pecuniary—the imprisonment, though restricted in duration, is, alongst with the poinding and sale, merely for securing payment of it, and of the expenses of the poinding and sale. No concurrence is required from the public prosecutor, as is the case in regard to all criminal offences, and the express exclusion of suspension by the Court of Session, where judgment is pronounced by the Sheriff (in § 22), clearly implies that the Court of Session was the court, under whose jurisdiction it would, in the understanding of the legislature, have fallen. As to the Game and Salmon Acts, offences against them have always been considered criminal, and they involved, in early times, the punishment of death; and as to the case of Robertson and Bisset, the statute there in question was for the prevention of “frauds,” and the offences were criminal in their nature, though made punishable merely by pecuniary mulct.
The Lord Ordinary repelled the objections to the jurisdiction, sustained the jurisdiction of this Court, and appointed the cause to be enrolled for further procedure, adding the subjoined note. *
_________________ Footnote _________________
1 Robertson v. Bisset, May 21,1829 (ante, VII. 663); Johnstone v. Lambert, Nov. 29, 1828 (ante, VII. 83); Gibson v. Murdoch, June 18, 1817 (F.C).
2 Countess of Loudon, May 28, 1793 (7398); Young, June 28, 1814 (F.C.); Goldie, June 1, 1814 (2 Dow,. 534); Shand, July 28, 1814 (2 Dow, 519); Knowles, July 5, 1815 (3 Dow, 280); Chivas, July 11, 1804 (F.C.); Imray, March 2, 1811 (F.C); Dawson, Feb. 18, 1809 (F.C); Heritors of Corstorphine, March 10, 1812 (F.C.); Brown, Feb. 1, 1825 (ante, III. 480, and 3 W. and S. 441); Ross, March 2, 1826 (ante, IV. 514).
* “The question on the merits in this suspension is, whether the suspender was imprisoned without a lawful warrant? That question would not be altered by his being liberated on caution found under the compulsion of imprisonment. But he denies the fact, and says, that the finding of caution was an artifice of the respondents.
“The imprisonment might be without lawful warrant, although a good sentence for the penalty of the statute had been pronounced, for example, if the Justices, on a correct petition, had found the fact proved, and decerned for the penalty, but granted no warrant for imprisonment.
“It seems to the Lord Ordinary that the question of jurisdiction cannot be discussed without taking some view of the objections to the warrant of imprisonment. For, in general, the Court of Session is the proper Court to give liberation where there is imprisonment without a lawful warrant, and it must depend on the nature of the alleged warrant, whether that jurisdiction is excluded. But the question of jurisdiction being preliminary, and the discussion summary, no record has been made up. The case must at present stand on the record of the proceedings.
“The application seems to have been of very doubtful competency, in so far as no time or place for the habit of trading alleged was specified. As the act provides that the penalties shall be sued for before the Sheriff or Justices of the county wherein the offence may be committed, the locus is essential to the jurisdiction, and here it does not appear, in any part of the proceedings, that there was any act of trading in the county of Cromarty. In considering the warrant of imprisonment, such a thing cannot be taken for granted.
“But the more material questions are, 1st, Whether there was a legal sentence or decree; and, 2dly, Whether there was a good warrant of imprisonment under the statute.
“So far as the Lord Ordinary can judge at present, he thinks that no sentence under the statute was pronounced. The order is, to find sufficient security to ‘appear for judgment when called for.’ The Lord Ordinary can make no meaning of these words, if they do not mean that, if caution were found, judgment was not to be pronounced till a subsequent time, and, consequently, that judgment had not yet been pronounced.
“Then it goes on, ‘failing which, to be imprisoned as the act directs.’ The words which follow, ‘or pay the penalty stated in the act,’ have manifestly been written after the subscription of the Justices. But taking all as it is, it is quite away from the statute. It is an order of imprisonment, not for enforcing a judgment of conviction but as a penalty for not finding security to come to receive judgment. But the statute gives no warrant for ordaining the party to find caution to appear for judgment, or in default to be imprisoned. Neither does it give any warrant for a sentence of imprisonment, without a judgment finding the charge proved, and the penalty due. Nay, it gives no warrant for a sentence of imprisonment at all, except in aid, in the first instance, of a warrant granted, at the same time, for levying the penalty by poinding and sale. There is no such thing in the act as a warrant to imprison, simply till the penalty be paid.
“Supposing, however, that the Court could, by implication, and by cutting out the leading order, hold this to be a good judgment, finding the complaint proved and the penalty due, the Lord Ordinary cannot think that it would be a good warrant of imprisonment. For the reasons already stated, it is not authorized by the statute. But separately, it is not a legal warrant, because it does not express distinctly the cause of imprisonment. The party is ordained, either to find caution to appear for judgment, or to be imprisoned ‘as the act directs,7rsquo; or to be imprisoned till he pay the penalty stated in the act. This warrant does not tell what security was required, nor what is the imprisonment which the act directs, nor what is the penalty stated in the act. And the alternatives are left in complete ambiguity Who was to judge of these things? Was the goaler to study the statute and petition, and to determine on what terms, and how long he was to detain his prisoner? The Legislature never could contemplate that any man should lose his personal liberty on an alternative and indefinite warrant like this. Supposing, therefore, that the objections to it as a sentence could be overcome by reference to the petition and the statute, it still could not be a good warrant of imprisonment in such a form.
“The statement of the respondents, that the first part of the deliverance was put in at the desire of the suspender, cannot avail in this question. No such fact is in the recorded proceedings; and whether, if true, it might avail or not in an action of damages, it cannot be considered here—at all events, in the view of the case, necessary for the question of jurisdiction.
“The objections to the jurisdiction of this Court must be considered principally with reference to the nature of the warrant:—
“1. If the warrant were ex facie good in itself, and in conformity with the statute, the question, whether a party, complaining of irregularities in the proceedings, was bound to go to the Quarter-Sessions, might perhaps depend in a great measure on the nature and extent of such irregularities, as inferring nullity or not? The Lord Ordinary does not think that the authorities support the plea of the respondents even in this view. But if the grounds of suspension go directly to impeach the form and substance of the warrant itself, as contrary to the general law, and not sanctioned by any special statute, he has no idea that the ordinary redress against wrongous imprisonment in this Court can be excluded merely because it originated in proceedings meant to be under a statute, which has been perverted. Was the suspender to lie in jail on an illegal warrant till the meeting of the Quarter-Sessions? In short, if the warrant was illegal, this plea against the jurisdiction cannot avail.
“2. For the same reason as well as others, the Lord Ordinary thinks that the Court of Exchequer had no jurisdiction in the matter. That Court never had power to judge generally of the legality of a warrant of imprisonment, or to grant liberation. And if the warrant was not authorized by the statute, how can the case belong to the Exchequer? But the Lord Ordinary is of opinion, that the case is not, in any sense, an Exchequer case; and there is also a strong implication against the plea in the 22d section of the act.
“3. The only question which the Lord Ordinary thinks materially doubtful is, whether the suspension should have been presented to the Court of Justiciary? The limits between criminal processes peculiar to the Justiciary, and suits for pecuniary penalties, are not clearly defined. In general, the nature of the thing prohibited by special statute under penalties, should be more regarded than any particular word applied to it. Here, the thing to be prevented was not malum in se, which the common law could have dealt with as a crime, The penalty is money only. No public prosecutor is required. The money is to be recovered by the civil diligence of poinding and sale of goods, the legal character of which is not altered by the particular modification attached to it. Imprisonment is only authorized to secure the effect of the diligence and recovery of the money. If it could be regarded in any other light, the complaint could scarcely proceed to that effect, without a public prosecutor, consistently with the case of Syme against Murray, January 19, 1810, notwithstanding the clause in the statute. Attending to this state of the case, the Lord Ordinary sees no decision among those quoted which he thinks at all applicable to render this a Justiciary case. But he does also think that there is a strong implication, both in the 22d and 26th sections of this statute, against the idea that the process thereby authorized was of that criminal nature which should compel the party to seek his redress against the abuse of it in the Court of Justiciary.
“The Lord Ordinary is, therefore, of the opinion that none of the objections to the jurisdiction are good. What may be the consequence it is not necessary now to enquire. The suspender may have no substantial cause of complaint, seeing that he has confessed that he had been acting in violation of the statute. But the Court must take care that this statute, in the strictest sense penal, shall not be perverted in the execution, so as to break down the far more important rules of law for the protection of the liberty of the subject.
“The Lord Ordinary thinks that he cannot go further than to sustain the jurisdiction, without a record being made up.”
The respondents reclaimed.
The Court accordingly adhered.
Solicitors: H. Inglis and Donald, W.S.—R. Roy, W.S.—Agents.