REG. v. THE situation, and the removing thereto prisoners confined under civil GOVERNOR OF utility, &c. WHITECROSS STREET. REG. v. Power is then given to the corporation of London to build a new prison, which shall be divided into four separate and distinct parts, one for the confinement of prisoners confined under civil process in the custody of the sheriff of Middlesex; two other of GOVERNOR OF the said four parts for the two Compters of the city of London, &c.; and the remaining fourth part for the said prison of Ludgate. Sect. 56 enacts, that THE NEWGATE. 1865. From and after such time as the prisoners confined under civil process shall have been removed from the said gaol of Newgate to the said new prison, in pursuance of this Act, the said gaol of Newgate, and every part thereof, shall for ever thereafter be appropriated exclusively to the confinement of such felons and other prisoners liable to be confined therein as are not by this Act authorised to be confined in the said new prison. Sect. 57 provides, That all prisoners by process of contempt for not paying any sum or sums of money, or costs, issuing out of any court of law, and all prisoners for contempt of any court of equity for not paying any sum or sums of money, or costs, ordered to be paid by any decree or order of any such court, shall for the purposes of this Act be considered as prisoners confined under civil process, and shall be accordingly removed to and confined in the said new prison. Sect. 58 provides, That nothing in this Act contained shall extend or be construed to extend to infringe, defeat, or affect the power or authority of any court, judge, justice, commissioner of bankrupts, or others to commit any person or person whomsoever to the said gaol of Newgate, or to any other gaol or prison. By sect. 2 of the 12 Vict. c. 14 (an Act to enable overseers of the poor and surveyors of highways to recover the costs of distraining for rates), it is enacted (inter alia) that When to any warrant of distress for the levying of any sum or sums to which any person or persons is or are now or may hereafter be rated or assessed in or by any rate or assessment herein before mentioned, it shall be returned by the constable that he could find no goods or chattels whereon to levy such sum or sums, it shall be lawful for any two or more justices of the peace before whom the same shall be returned, . . . if in their discretion they shall so think fit, to issue their warrant of commitment against the person with relation to whom such return shall be so made as aforesaid, and thereby order such person to be imprisoned in the common gaol or house of correction for any time not exceeding three calendar months, unless the sum or sums therein mentioned shall be sooner paid, &c. Bovill, Q.C. (Poland with him) appeared for the parish authorities, and contended that Whitecross-street prison is the proper REG. v. THE STREET. REG. V. gaol to commit to for the non-payment of poor-rates; for, although the 12 Vict. c. 14, directs defaulters to be committed either to the common gaol or house of correction, yet, as by the 52 Geo. 3, GOVERNOR OF c. 209, prisoners on civil process are not to be committed to New- WHITECROSSgate, and as the Legislature in passing the 12 Vict. c. 14, must be taken to have been aware of the provisions of that statute; it could not have intended that prisoners on civil process should be committed to Newgate, but to that gaol which in such cases GOVERNOR OF was made a substitute for it. He contended that a commitment in default of distress for non-payment of a poor-rate was a civil process: (R. v. Cope, 6 Ad. & Ell. 226; Mather v. Egginton, 2 Ell. & Bl. 717; Re Masters, 33 L. J. 146, Q. B.; 9 L. T. Rep. N. S. 733.) Keane, Q.C., contended that Newgate, and not Whitecrossstreet, was the proper prison to which to commit in such cases, for that the subsequent statute of the 12 Vict. c. 14, in express terms directs such persons to be committed to the common gaol or house of correction; and moreover that the committal for non-payment of a poor-rate is in fact penal process and not civil process, the justices having a discretion to commit or not, and only committing where they believe that the party refuses from wilfulness to pay the amount. [COCKBURN, C.J.-But if that were so, how is it that he has a right to be discharged immediately upon payment?] He is sent to prison because he will not pay the debt. His committal does not discharge the debt. For not paying the amount he may be imprisoned for three months. Newgate is certainly still the common gaol. But Whitecross-street is neither a common gaol nor house of correction. Mellish, Q.C., the Recorder of London, and Clarke appeared for the corporation. COCKBURN, C.J.-I am of opinion that this order for the commitment of a person to prison for non-payment of rates which he is liable to pay under the statute should be to Whitecross-street prison. I think there can be no doubt whatever that, under the Act of the 52 Geo. 3, c. 209, the gaol of Newgate being the common gaol of the county of Middlesex, that would have been the place to which a person committed under such circumstances would have been properly sent. Then, that Act of Parliament, practically speaking, divides the common gaol of the county of Middlesex (that is Newgate) into two departments-a civil department for persons in custody on civil process, and a department for persons in custody on criminal process. Then arises the question of whether this class of prisoners falls under the one or the other category, and I can entertain no doubt, having paid the greatest attention to all that has been urged by Mr. Keane, that this is a commitment on civil process. The liability is clearly a civil liability. Upon non-payment, no offence is created, but process against the goods of the party failing to satisfy the statute is issued. the event of no goods being found on which distress or execution may take effect, then there is an authority to the magistrates In THE NEWGATE. 1865. REG. v. THE STREET. REG. ซ. GOVERNOR OF 1865. upon summons to commit the party to prison, but not to do so in the character of a punishment for the offence he has GOVERNOR OF committed in not paying, but simply as a means of enforcing WHITECROSS- payment if by possibility the process of imprisonment can have that effect. As soon as the man pays he is entitled to liberation, and it is clearly shown that the whole proceeding is for enforcing payment of a civil liability, and not by way of punishment; and I THE think the true criterion is, whether or not an indictment would have NEWGATE. lain in the event of the statute not providing the summary remedy which it has given, and I am of opinion it would not. The whole is a civil liability from beginning to end, the liability to pay money to enforce which the power is given; but as soon as it is discharged by payment the party is entitled to freedom, and his liability is at an end. Considering it therefore as a civil process, it seems to me the commitment must, by virtue of the 52 Geo. 3, c. 209, be to the civil department of the common gaol of the county of Middlesex, and not to the criminal department. The only difficulty which presents itself is created by the 57th and 58th sections; but when these come to be looked at the difficulty disappears. I doubt very much whether there was any necessity for the enactment of the 57th section. I cannot help thinking it was put in out of abundant -perhaps superabundant-caution. Whereas the division is made for two classes, persons in confinement under civil process, and persons in confinement under criminal process, it might be doubted whether contempt ranged itself under one class or another. The 57th section was intended to remove the possibility of a doubt by enacting that persons in custody on process of contempt for not paying any sum or sums of money or costs, shall be considered as prisoners in custody under civil and not under criminal process. And then comes the 58th section, which I own I have considerable difficulty in understanding or putting a construction upon which is at all satisfactory to my own mind. I cannot help thinking that this section was intended again to operate by way of distinction between the civil process of contempt for not paying any sum or sums of money, and any of those contempts of any court, judge, justice, commissioners of bankrupts, or others, for which, in the administration of justice, they have power to commit. But be that as it may, though I do not think it necessary on the present occasion to say whether or not by virtue of that 58th section any of the authorities in the administration of justice to which that section refers might commit to the gaol of Newgate, though I am very strongly inclined to think that it is limited to cases of contempt, as distinguished from contempt for non-payment of money, I am bound to say (whether or or not the power to commit to Newgate is or is not taken away) that it seems to me, looking at the scope and intent of this Act, and at what the Legislature evidently contemplated and meant, that a commitment in respect of a civil liability of this sort would be wrong; and the proper course to pursue is, to commit to the civil department of the gaol of the county of Middlesex, that is to say, REG. บ. THE STREET. to Whitecross-street prison. The question for us to determine is, whether a commitment or an order for commitment to Whitecrossstreet prison is proper or not? I entertain no doubt, on the whole GOVERNOR OF view of the matter, such an order is right, and that the keeper of WHITECROSSthe gaol of Whitecross-street is bound to receive a prisoner under it. I think it is unnecessary to say whether the commitment to Newgate is legal or not; it is sufficient to say that the commitment to the county gaol is right, therefore the order must, of course, be considered as good. CROMPTON, J.-I am of opinion this commitment is in the nature of civil process, and, according to the true construction of the Act of 52 Geo. 3, there was no power to send to Newgate, but they were bound to send to Whitecross-street. Now, first, as to this being civil process. This is clearly process analogous to an execution. It is on a debt; it is on the return of nulla bona, and just like an ordinary ca. sa. It holds a man not for any punishment for contempt, or anything of that kind, but it is as purely civil as it can be. If he does not pay, there is the process against his goods, and, on the return of nulla bona for that, there will be an execution in the nature of ca. sa. till he pays the debt, capias ad satisfaciendum strictly. If the magistrate thinks there ought to be a ca. sa. under the circumstances, he should have the discretion to order it. It does not alter in my mind the nature of the process. The only question, as it appears to me, really is, is anything in the nature of punishment inflicted? It seems to me to alter and strain the enactment to say it is a punishment if he does not pay. It is no more a punishment than is an ordinary ca. sa. I am clearly of opinion it is in the nature of civil process, and I think more so than it was in the case of Reg. v. Egginton, which was for handing over books and accounts. That being so, where is he to go? The object of the Act is to divide the common gaol of Newgate into two-a gaol for London and Middlesex for criminals, and a gaol for the sheriffs of London and Middlesex in civil matters; and it seems to me on these enactments, without going through them, that no others but criminals, felons and misdemeanants are to be confined in Newgate, by reason of there not being room for others there, and that a new prison is to be built which is, in effect, the sheriff's prison, as is so said in the section referred to by Mr. Bovill and Mr. Mellish, and which new prison is to be divided into four parts, one being for the confinement of prisoners under civil process in the custody of the sheriff of Middlesex, two other parts for the confinement of prisoners under civil process in the custody of the sheriffs of London, and the remaining part for the confinement of freemen of the city of London, or clergymen, proctors, or attorneys who would have been confined under some old enactment in Ludgate, I suppose. That being so, there is a clause expressly to say, "That from and after such time as the prisoners confined under civil process shall have been removed from the said gaol of Newgate to the said new prison in pursuance of this Act, the said gaol of Newgate and REG. V. THE GOVERNOR OF 1865. REG. v. THE STREET. REG. v. THE GOVERNOR OF 1865. every part thereof shall for ever thereafter be appropriated exclusively to the confinement of such felons and other prisoners, liable GOVERNOR OF to be confined therein, as are not by this Act authorised to be WHITECROSS- Confined in the said new prison." Then some doubt might be raised, whether civil process extended to matters which are really of contempt, which this is not; because it is by a fiction of contempt we make an attachment against a person for not paying a sum of money, if he has not paid it under our rule of court. You may have a rule of court drawn up in form and served upon a person, and that would be merely a civil process, though there might be some doubt as to whether it is a process of contempt. This 57th section was to meet that. This case of contempt, which is for not paying money, is only a form, it is only a remedy for getting your money paid, and the man might be discharged after he had paid the money. It is very different in the case of contempts of court by its officers, or anything of that kind. They get into contempt, and must purge it, or answer it, or pay the money as the court or judge directs. That is the meaning, I think, of the 57th section. You must not have recourse to any quibble in saying this is not civil process in the case of ordinary debt, but you must mind that it includes what is really the process of getting so much money by means of the fiction you may call it almost, of an attachment. Then, they seem to me to put in the 58th section, I do not think very necessarily, because I do not think it would have touched the power of the commissioners of bankrupts to commit a bankrupt for not answering them. They seem to have thought, "Oh, we must take care that no person gets into it for any other contempt besides what is mentioned." Therefore, where there is contempt of a court sitting, which I take to be a contempt of a criminal nature (and I think the Lord Chief Justice gave a good answer to that in saying that was a proviso of the 57th), they do not mean to take in cases of contempt of that nature. I have considerable doubt whether any justices exercising a duty of this kind ministerially, awarding execution, would come within that if it did not mean and was not confined to a real contempt; but I am inclined to think it means a real contempt. At all events, " Commissioners of bankrupts seems to me to point to the nature of the crime. think it means crimes of that nature and species. Any court, judge, justice." "Justice" might mean what Mr. Mellish referred to, justices of any Superior Court. Nothing in this Act contained shall affect the power or authority of any court, judge, justice, or commissioners of bankrupts, or others, to commit any person or persons whomsoever to the said gaol of Newgate, or to any other gaol or prison." I think that must allude to contempts of the nature that have been referred to. At all events, I do not think it can destroy the effect of the 56th section, because, if so, that would extend to the power to commit for debts of any kind. To my mind that would upset the meaning of the whole Act of Parliament, and destroy in effect the great object of classification which the Act intended to enforce, confining what is strictly crime, 66 66 I |