Petty Judicial Committee of the Privy Council,
Her Majesty the Queen.
On Appeal from the Court of Petty Appeals for the University of the Dominion of Virginia
614 P.J.C.P.C. 913, 50 Am. P. Apps. 344. (2019)
Statement of Case.
This was an appeal from an order of the Court of Petty Appeal for the University of Virginia, (Tang, C.J., Lorenzo & Gladden, B.B.) dated January 30, 2019 and reported sub.nom. R v. 1L Gunners  23 All V.R. (Petty) 792, dismissing the appellants’ appeal against their conviction at Chad’s Term of the Virginia Assizes Petty on two counts, viz.: unlawfully effecting a public mischief in breach of the Queen’s peace and conspiracy to corrupt the public order. At the trial before Luk, B., the jury, under guidance from the learned judge, made out a special verdict which found the facts of the case thus:
“that on the 12th January, 2019, certain 1Ls, the prisoners, were, with upperclassmen, for the first time admixed within the lecture-halls. That, on the first day of classes, they were free to find seats among their fellows. That, on the second day of lectures, they remained in these seats. That notwithstanding they did among themselves at divers times upon these dates converse in confidence to change their seats within the halls. That the prisoners had spoken among themselves of worry at their grades and job-placements, and suggested that it would be better to take the seats of their classmates that their grades might be saved. That the prisoners felt they would improve their seats by so doing. That upon the third day, the prisoners having in secret arranged among themselves so to do, they contrived to arrive well before the beginning of the next class within the lecture-halls mentioned in the particulars of the offence and to sit upon certain places claimed by the upperclassmen. That upon the arrival of the upperclassmen they declined to move from these new seats, and with sullen looks refused to be budged. That upon the request of the upperclassmen for them to move they demurred impudently. That upon that day the seating-chart was circulated. That an indictment was thereupon drawn against them and they were carried to Scoco to be committed for trial. That under these circumstances there appeared to the prisoners every probability that unless they then changed their seats or very soon changed their seats, they would be unable to sit among their friends and that their grades would suffer. But whether upon the whole matter the jurors may find, that the taking of the seats be public mischief and conspiracy to corrupt the public order, the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court say that the taking of the seats be public mischief and conspiracy to corrupt the public order, then the jurors say that the gunners were each guilty of the said petty-misdemeanour and conspiracy as alleged in the indictment.” The learned Judge then ordered the Assizes adjourned until January 20. Upon the application of the Crown they were again adjourned until February and the case ordered argued before a Court of five judges; on the verdict of the jury sentence of transportation for life being passed, special leave was given to appeal to the Court of Petty Appeals and thence to the Petty Judicial Committee of the Privy Council.
January 31. Dame L. Welch A.G., Serj’t., (M. Schmid, Q.C., and Luevano, with her), appeared for the Crown.
The record having been read,
Sir S. Pickett, Q.C., (W. Palmer, Q.C. and Grill, with him), for the appellants objected, first, to the finding of a special verdict in the case below, both facts and conclusions of law ordinarily being within the ambit of a jury properly impanelled, second, that the special verdict, though not unknown to the laws of England, is, by the long span that has elapsed between its last invocation, become obsolescent, and as such is come into implicit antinomy with the Judicature Article of the British Virginia (Constitution) Act (32 Geo. III c.VII), which specifies “at Lawe and Equity, tryal by Jury, in accordance with the Usages of our Lawes and Statutes.” Third, that what is styled in the indictment a “conspiracy to corrupt the public order” is unknown to the common law, and it was not therefore for the learned judges to find in the facts of this case that the appellants were guilty of the offence. That so to find was contradictious with the rule of law and an ex post facto imposition of punishment for an offence hitherto unknown; that no law forbade early arrival in classrooms to secure by priority a favourable seat, and to do so could not be ruled an offence against public order, and an agreement to do so could be no conspiracy against it.
Dame L. Welch A.G., for the Crown. As to the first two points, the special verdict is of well-attested form and was invoked correctly in this instance. [She cited R. v. Washington, 2 Am. P. Apps. 122 (1778), Marsh’s Case, Walsh, C.P.E. 887 (1763), R. v Brown, 3 Terr. P. Reps. 235 (1859).] Though not often in usage in these years, it cannot be shewn on any authority that it has been explicitly overruled either within Britain or in her Dominions. That, pace the learned counsel for the appellants, reference made by the Constitution Act to “the Usages of Our Lawes and Statutes” subjects any understanding of that document to the authority of the English common law, and a verdict found according to the law of Britain must perforce go as good law in Virginia. As to the third point, that the common law would be a faithless watchman if it were not within the power of the learned judge to apply the general principles which underly it to acts hitherto unattested. [She cited Shaw v. D.P.P, HL 4 May 1961 & R. v. Manley, 1 K.B. 529, 1933] That these principles were certainly offended by the secret arrangements of which the appellants’ conduct gives tangible evidence, &c.
[Their Lordships intimated that the above points taken on behalf of the appellants were untenable.]
Sir S. Pickett, Q.C., for the appellants. With regard to the substantial question in the case, on the contrary to the Crown’s contention, it is popularly recognized in the custom of the country that until the moment of the actual circulation of the seating-chart, that the place of seating in a lecture is not assigned. In the alternative, when under a necessity, set seats may be moved or exchanged. That, in fact, the gunners here were under that necessity, they having a reasonable fear that they would not be able to sit with their friends, indolently whisper pompous commentary on the lectures from seat to seat and that their grades might reasonably have been adversely affected thereby. That in 1L spring this necessity was of particularly compelling character.
[He was stopped.]
Dame L. Welch, A.G., for the Crown.
To this point, custom in this case has been superseded by statute, the Seating Chart (Assigned Class Seats) Act, (127 Vict. c. XIV). Although the seating chart may not be distributed until the third meeting of a class or later, new seats in a class may be taken no later than the second meeting. That no necessity could reasonably be adduced from the intuitions of the appellants; that most students receive a B+ average and are gainfully employed following graduation; that no doubt can be advanced against the proposition that cliques tend to irritation and offence to the public order.
[Their Lordships took time for consideration]
February 5. The judgement of the Council (Lord Ranzini, C.J., van der Meulen, Zablocki, JJ., Malkowski, Schmalzl, BB.) was delivered by
Lord Ranzini, C.J. The appellants, styled the “gunners” of the 1L class, were indicted shortly after the first of this year for conspiring among themselves to take by subtlety and convert to their own usage the preferable seats of divers members of the upper classes. They were tried before the learned Baron Luk at Scoco on the 15th of January, and through the careful direction of my learned Sister, a special verdict was returned, whose legal effect, having been twice disputed, it falls to us finally to pronounce a judgement upon.
The special verdict, as it has at length come before us, is as follows: [His Lordship read out the special verdict as set out supra.]
From these facts, it appears sufficiently certain that these were indeed gunners, and that they felt themselves under a powerful compulsion to obtain for themselves the seats which, at the first and second meetings of their classes, chance had denied them. Yet nevertheless it is clear that in changing their seats they incommoded those in whom a claim upon those places had already inhered.
Learned counsel for the appellants have made some point of the principle of legality as applied to the laws of the Dominion of Virginia and certain implied liberties which emerge from nice distinctions within the Act of Constitution and the English common law, to which the Attorney General has ably replied. These are of no moment. Before this bench is a matter in petty law, to which the First Principle of that law applies—We shall do what we want. The slights and wrongs in which the petty law deals are trivial in their apparent magnitude but would fatally unwind the warp and weft of our civilisation if left without their lawful challenge. The breadth awarded our discretion in these matters is the appointed check to these ills.
Upon the substance of this case the learned counsel for the appellants has advanced that a defence of necessity attaches to their acts. This too cannot––must not—detain us. Man is, by barbarous nature, born a casuist, but the law in its noble essence must have no truck with special pleading. Such a principle, once admitted, would be made a cloak for the impulsive evil that is in men’s souls. Necessity can never substitute for justice before this bar. No judge can tread the path of the law who strays from it on so weak a principle. True, we set up standards we ourselves too often cannot reach. But it is the prerogative, instead, of the Sovereign to exercise mercy when the terrible equity of the law lies too heavy on its subjects. Their Lordships will therefore humbly advise Her Majesty that the judgments appealed from ought to be confirmed, and the appeal dismissed, and that sentence of transportation be commuted to mild public ridicule.