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SERCEANT WILDE, MP., THIS REPORT or ^n IfmpovtaiU Consiitutional Cndc, IS RKSPKCTFl'I.LV liKDlCATf.D, VOT (tNlY AS A TRIUUTK TO HIS EMfNKNT KORKNSIC TALKNTS, RUT IN fiUATKPUL ACKOWLEDGMENT OK HIS MANV K I M)N ESSF.S, FROFK.SiStONAl- AM) I'KHbONAl., Til Hir, ATTACHFU rRlKNO, TiiK Arm OR. C'HiWcKRV LASK,Jfnie, '8H9. UK] Jiacoii's J IJiuiies'vS Be(!cljiii<> Beciiuet 1 Black'-toii Brae ton Busl.oll's Bucliaiiau Bulge on (.'liaiicev's CJaike, R Ditto . Coko's Ins Crowlev's ( '';rosI)y's C )anioirs C ')e Vine's ["^eybel's C ^odson's L lliott's Ca Intiiieck v. >lliott V. C IJST OF (ASKS aK'1) VlTIIorxlTlKS UKFKKKKI) hi IN llll': INTIM iDl C TlnN AM) IN IIIK inH'OlM JJacoii'.s Abritlfjinent iJaviios's Case liectliiiiii-, exp. BecfiiK't V. iM'Cai'tliy I'*(,K I'ACF . :W, 41 I Glaiivillr .... . 07, 74 ' Golils wain's Ca.sc . . 87 39 ; Hallain's Miildlo A^os . . I/.'. 10 I 50; ■ — (constitutional His'.orv . 1(3 Black^tonc's Connnentarics 2, 1,0, 1.'), 17, 1 llchurl Bracton . BuslioU's Case Bucliaiiaii 1'. Kiukrr Binge on Colonial Law Clmncej's Case . Clarke, R. v. Ditto . Coko's Institutes . Crowley's Case "'.'rosin's Case )avuoirs Case ')e Vine's Case . j^eybel's Case ^odson's Life of Foster llioH's Case •Intineck v. Carriii_i>ton >lli()tt V. Oijdeu 36, 4h, 52 5 22, 64, 67 50 48 IloMiouse's Case . Hottentot Venus, Case of Huleliins /'. Player Jcnkes's Case ■Kelynj^e's Reports yi ; Kent's Commentaries on Ainericau 40 Law . 05, 64 Ivimberley, H. v. . 37 Krant/, exp. 14 tu IG, 3!>, 7S , Leicester, Euil of, v. Haylcr 37 , London, City of, the Case uf the 1 1 I Marks, R. v. . 7, 84 ; Mead, R. v. o6 i Na.sli's Case . 22, 41 , HO I Nortir.s Life ot Lord tiuildford . 44 , so 38, 103 102 ,84 14 46 u 2 ()7 76 70, 70 72 74 09 76 48 56 47 13 45 Parliameiitury History 23, 25, 40, 41 Pali,nave's Kssav on tlie Priw . 49, 59 1 Council MM I. <'(•■ ,7(ii Suddis, U. /'. 4 I S\\allo\v's (.'as-^lby one," says the writer so often quoted [Bianats'l, " is to wrest hiui from the hands i^the royal officers, that he may not suffer any illegal violence ; — not that he is .set at 1 iTHOl)U< i lo; Tlir writ; of ll:ihons Corpus, wliicli is (trie imporfantiiiodr of elTootin', lliul security, lias hi-cu justly lauded by all constitutiofial writerN, uii i is coiisidered hy Knolislimeii tlie bulwark of tlicir iVceduni. Tlieit attacliinent, to it is w<'ll-tburuled, aud they caunot !)<• too wisely jealoi- in jj;-uardiiii^ its otficacy in every possihlo inauncr. Hut tlie iiujuirii reader will lie probably rnueh surprised to Hiul tliat a. writ of so ji: and wide a eelobrity. and of vo vitally iinjiorlant a i-liaracier, Ir received but a very |j;eneral notice from our le^al writers, aitliou;-: they have been fully alive to its value. For Sir \\'illlaui Jilaei stone describr's it in ilie followina; terms*: — "'!'(» assert an ab>( lute exeinj»ti(ni from iuiprisonment in all cases is ineojisistenf wit every idea of law and political society, aiul in the end would destroy ;. civil liberty, by renderiufr' its ])rotection iniposbible : but the plory . the Knglisli law eon<-i^;ht.''' The information, Jiowever, concerning this wrir, tiuis warmly an>, justly eulogized, is only to be found in scattered parts of various works liberty by this process, because the merits of liis case ure still to be iiiquiro wijiely j«'al\anniiin2f tlie various topics i)f teclinieai leurniui;' comiceted widi it. writ of so ju>! i Thi' principle of permitfin^- full liberty to each individn:' -inless I'haracler, h- « l-fstralned by the express judu,inent of law, is asserted even curlier 'itef^, altliougl ! ^imn in the celebrated clause which forms one of the main provisiojis of A'illiam lilacK ^lagna C hartn. Thus Glanvilh* (who wroic in the tin>e of Henry 11.; issert an abso- ilcscribes the mode of proceeding- a<(ainst persons accused of crimes, in consistent vvitl^ . |l,e foliowin«( manner* : — *•' AVlien any one is chari^ed wiih Hie kin;»;'s 'ould destroy a!,; t^](»jj(.),^ or with havinj;- promoted a sedition, either a certain accuser )Ut tlie glory I'll |ipp(>;u«s or not. If no certain accuser should appear, but the public :he causes, ai.('| voice alone accuse him, then from the first the accused bliall be safely 9itt'dc\\('(\, cif/irr })y /)r()j)er jj/rdi/cy^ or by jmprisoiunent if, liowv'ver.. a certain accuser appears in the first instance, sccuri^v is taken from him to prosecute his plea, and then the party accused is tesuallv attached hf/ safe lanf sccvrc plah/cs^ or^ if he vannot jirotlucr tiiii/ {Ie(f(/rs, he shall be cast into prison. J>ut in all pleas of felonies, the ccused is generally dismissed on ple(l;j;es, except in a plea of liomiridc ,•" |ii which lattev case, he afterwards]- says, *' persons accused are not discliarged unless in compliance with the kint]f''s pleasure." Therefore •t the common law, as Sir Edward ('oke obsorvesj;, " a man accused or indicted of hi*jjh treason, or of any felony whatever, was bailable Upon i^ood security, for at the common law the jail was his pledj^e or Secuiitv that could find none;" and he niitrht have added ''aiulhis only."§ A)i exception, however, we see is pointed out by (llanvllle in cases of homicide. Hut even here, the anxiety of the common hiw |o protect personal liberty was very conspicuous. For to prevent the |vils that might arise from the malicious or oppressive use of this power ^f imprisoniuir a person by char<4-ing him with homicide, the law gave to the .'(Ccused the privilege of suing; out the writ De Odio et Atia, which j^ supposed to have been alluded to by Glanville in the sentence just nii>rls(»nment ■ ' n his Commen pus Act (whirl ; )een considcre: lar to it can b; Its excellenc' alforded for al t to rest for it it us warmly an- vario us works iii(,uirotl into; bi iiuoalcd ; !U"1 tl. it in calmness an lower ol tills WW t \voiikl rescue listorian (|Uot,es ife and propel* hikos ])lacc! will 1 cases only, il i y nianifesltiig tl t the power of ai'* |i rv, or his doputi' ■ * t 11). c. i], pp. •,i3:i,4. .1, williout furlhci ty requiring to V j\ p. 80. * Eeames's Translation, p. 314,1). 14, c i. I X 2 Inst. 189. § lu RicLard II., Act 4, Scene 1., Shakspeare nialwcs Honry IV. say " Lords, you that here are under our arrest. Procure your sureties for your days of answer.'' B 1! INTnoDlXTlON. f|notcd from liim, on the dischiirge by the kin|:f's pleasure. The naliir fiB9::n(l arl and effect of this writ have been rleseribed b3''Keevc,s, in liis commentar- n(^ (.nlv i I on tlio provisions of Magna Charta* : — ♦h^oxjnn>l l)e Oilioft " The writ De Odio et AtiA was rendered more attainable fhy Masfna •< pti;lU«> lil Charta] than it had liitherto been. Ft \Vas ordained that this writ intei^mciito I future should issue j^rat.is, and should never be denied (c. 26). Thisutl(j.v.,^tur I is the first mention of this writ byname. It was one of the greritibi||ius, ne( I securities of j/ersonal liberty in tlu)sc days. vel per Icl I " It was a rule that a person cor.riitted to custody on a charore o' beiJ^'ficial J homicide should not be bailed by any other authority than that of th( th^ whole I King's writ ; but to relieve a person from the misfortune of lying i: Biictoni (I a prison till the coming of the justices in eyre, this writ used to b 04lo er Atl directed to the sheriff, commanding him to make inquisition, by thr crifiinosi . oaths of lawful m.en, whether the party in question was chargec ladliyinos.i' through malice, ' utrun; rettatus sit de odio et atia;' and if it wasfie]^ solet ii found that lie was accused de odio et atia, and that ho was not guilty. cUi||>abIles e or that he did the fact sedefendendo. or per infortimium, yet the sheril ''el|.' ria. I by this writ had no authority to bail him; but the party was then U Xlie priii sue a writ of rradas iji ballium, directed to the sheritf, wliereb) lie was oy4succee(l coinmanded that if the prisoner found twelve good and lawful men o enAts, orda| the county, who would be nsainpernors for him, then he should delivoi .-dbfu by su: him In bail to those twelve. The writ or inquisition De Odio et AtiiV y^|iidictme had a clause in it, nisi indictatus vol appellatus fuerit coram justiciarrii: allchise, hi ultimo itinerantibus, — so that the inquisition was not in such case t ud fttrejudj be taken. We see how important it was that this writ should b<^ '-^8^ Kdwar attainable with as little expense and trouble as possible, to avoid th- coBsidiiion th oppression of malicious prosecutors." noi^ imprisc Sir William Blackstone says oi thh writ-|-— " That the statute o Jrflbght in f Gloucester restrained it in the case of killing by misadventure or self- A-i additi defence; and the statute 28 Edward HI. c. 0, abolished it in all case ;dffy suggestion or petition made to the King or his council, but e Odio et Ati:" y Ji 'lictment or course of law; and that no one shall be out of hi;> am justiciarrii: ani ; ise, nor of his freeholds, unless he be duly ])rought into answer, n such case t nd -rejudged of the same by the course of law§. And again, by the writ should bf "-^Stl) I'.dward 111., c. 3, it is enacted that no man, of what estate or e, to avoid th- cone ion that he be, shall be put out of land o'- tenement, nor taken, nor 'viprisoncd, tier disinherited, nor put to death, without being the statute o Jron.ilit in answer by due process of ihe law. enture or self- A additional security for personal liberty at the common law was d it in all case :iftvrit correlative to the writ De lTomin(.' Replep-iando was ti Uabc'ido. ' '^ lis HI ' *' In A nieiiiio Ciianc<| body hi' a re ni.syo ir laws 5' niercatt Habeas Corpus. writ De Nativo Ilabendo, which presented the mode by which thei.« a.sserted his right to tine possession of his villain. This writ has hap; t become obsolete with the destrrction of the system of domestic slar: with which it was connected, Tliose who may wish minutely to pur'' the learning in relation to it, may consult Tvlr. llargrave's celebia' argument in the case of Summerset the negro, where that learned : laborious jurist has collected it with great care and anxiety^. ^V(: r glgnt. tha in this country no instance of the writ after the time of James 1., m, g|baroaii the system of villainage ceased. But in America, where unhappil; t system still continues, that writ is yet in use§. 'Jlie writ of Habeas Corpus is found in operation at a remote peri'ii * 2 J, illy Practical Keg. HH ; Vin. Ab. Jloinine Rcpleg. A. vol. xiv. p. 305 ; a\ I Fitz. N. IV 152. f Vol. iii. p. 12i>, Coimnent. -t State Trials, vol. xx. <5 'j'liero \>as also the writ De Muiuicnptionn Capieuda, or of "raainprize," as commonly called, created u* uie Statute of Wesiiniitstev 1, o. 15, whicb, reeitiii '. " Slieriiis and others which ha> e kept in prisoii.s persons detected of felony, and linen), have let out such as were not replevisable, and have kepi in prison such ;! because they wonM gain of the one parly and grie\e the other," proceeds to what persons are to be replevied" under tl:e writ of De Homine Replegiando," .^: Mdwaid Coke [2 Inst. 181]. The learning in relation to thiswiit may be be eollecicd by Lord Nottingham hi .Ienkes',s case. [2 Swanston, p. So, et sei[. inciuiry into its nature is only interesting as a subject of antiiiuarian rescareh ; Lord Notiinghauj says, " And now I'luherbcrt and my Lord Coke arc hoih ■ that the statute 28 Kdward III. has repealed the writ De Manucaptioue Capiei t jriminals." See ante, p. 4. I 5.ay CD 1)00 k of me, HI tht iial eharl il'puration INTRODUCTION. ic filazpr, and v-i. "or him*." eases of irnpi's- lot apply. It V ' no-ainst whori e indirect mtn' lal and immed iin Blackstone ^ . tliat it is luv where tiie crov ly to give coin] i a ofciioral rcco al inipvi.'soiimer' eplegiando was le by which the ; 'his writ has liaj : of domestic »h' minutely to pu irgrave'a celebi, re tliat learned mxietyl. Wc; : [J of James 1., a i vherc unhappil; it a remote peri ul, xiv. p. 305 ; in ^'mainprize," as '), wliicli, rccitiu hI of lelony, and in prison such i\.>. cr," proceeds to Replogiando," i<; tswiit may be be.- II, p. Ha, et scAi larian ri'scarcli ; Coke arc both . iicapUoue Capici: jl Kni^lish law. It was anciently called Corpus cum causa, from tlie §rds of the writ, requiring' the party to return not only the body of tl§ person detained, but the cause of tjje capture and detention. It gllidMally superseded the old writs De Odio et Atia and De Nomine Ue- rrite^iando, j)robably from its superior elHcacy, as a prerogative writ. It required innnediate obedience from the party to whom it was directed, > 'Mtd enforced it by attachment. '/I he earliest reign in which I have been able to trace its frequent ap|)v arance, i.s that of Henry VI . At liiat period, it seems to have been ftun liar to, and well understood by, the .Judges. Indeed, a most remark- ^le and Jnif»ortant case in connexion with this writ, occurred in that reit>ii; 1 refer to Vine's case, it is thus correctly* detailed by Sir Orliitido Uriilgman, in his valuable reports of his judgments, )U>t many ye -.in the possession of the profession-|-. '^ In Andrew de Vine's case, 34 II. G, which I shall have occasion De Vine's to mention again to prove the custom, an llabea.s Corpus issued out''' of (liancery, directed to the mayor and sheriffs of London, to bring has ')ody before the king in Chancery, it beitig vacation time. They mfii-.' a return, ' That it was provided and ordained (ab antiquo) by .tip mayor, aldermen and commonalty of the said city, according to li^ir laws, ordinances, liberties, and free customs, confirmed by parlia- iwe'it. that none should exercise the trade of a common l)roker or maker (rf brd'oains, non de contractu seu bargando quocuncpie inter mercatortm Hfiuercator: fa'/iend. tanquani communis abrocator sen mediator se iatirMiiiteret, until he were admitted by the mayor and aldermen, &e., Sttd that Andrew de Vine, for his breaking and making of bargains, not being so adu itted, he being convicted by his ovv^n confe6sh)n btfae tiie lord-i.uiyor and aldermen, was imprisoned.' "^lo this he aiiiii fs answer ; and they reply, and pray that lie may be remanded. 11' ■ Lord Chancellor, by the advice of tlie two chief justices Fortescue ^(1 i'risot, Asheton Justice, and the rest of the justices, and having tard the reasons, evidences, and allegations on both sides, and the ii.iers, liberties, statutes, records anu ordinances of the city on that ^ * I say correct/j/, because I have oxauiined tlie original record in the IJbir Dunl/mmc "nok of groat authority, coinpiled Ijy a Town-clerk of tlic city of London, of tliiit naii;>'i in tbc reign of Edward I\'. and now in the custody of his successors. It eonfaius set! A cbarlers and cases of importance in rehuion to tbe rigbls and privileges of the Oor '...Mtiou. t P. il.Sti. In the case of JIulr/uns v. r/ai/u. INTUOncCTlON. hcliMit, ex nntiquo fact, et approbat., did adjudge that ho should rem; (h;d ill uffii )f the said liberi d ordi ;, statutes, aiut orrunaiic After this period the existence of the writ of Habeas (^orpu- distinctly observed, and its proii^ress can be ofleetively traced. I before the rei«rri of Henry VI., I find myself obscured by a cloud. I the year book 48 Kdward fll., 22, there is a case upon this v\ '. or, as it was then called, Corpus cum causa. And in a book of f^i ; authority, viz. Serjeant r\iaynaid's collection of cases and pleadinyf-- o' till- time of r hvard 11., I find in the index a reference, under the titit of Habeas Corjuis, to the head 'Corpus cmn causa,' — but no such titu as that can I discover in the index, nor, after lookinjj through the bock itself, can I find any case upon such a writ. In Sir Fraucis Palgrave's curious and interesting- " Essay on tk orii^inal Authority of the King's Council,''' there are two remarkable cfse? in the reijrn of I'^dward III., of persons brought before that tribui.r... which illustrate this subject. The I'-. *• was in tiie 10th year of that rei: : . '^ Thomas of "N'ork sets forth, in his petilion addressed to the Cliancn v that he kno\rs how to make silver, and that he has made it in tlic presence (jfgood men of I,ondo'», iu,A tiie silver was found to be genuine. Now there came one Thomas C'rop, of London, grocer, who rn.ide li iself intimate with the alchemist, and persuaded him to bring hiv instruments and his elixir to thv house of the said 7'homas Croj), wh to he worked. \)ut being thus entrapped, the grocer and his allies k ,[,1 the alchemist in duress until he sealed two bonds to the grocer, e ic!; in tlie penalty of a Imndred murks. By virtue of these obligatio is. the alchemist wis arrested and se>it to Newgate, whilst the grocer posiscssed himself of his elixir and apparatus, and other goods a!i(' chattels, to the mountance <»f forty pounds : tiiereupon vhe stii. Thomas prayed that order might be taken for his enlargement; i aii that he might be allowed to come with his elixir and apjiaratus bef uc the Chancery, or others whom the king would be pleased to name to prove his science ; and that the false obligations might be annulled, " The chancery could not act u[)on this bill. The board had .it r power to issue the commission ; and the bill being, therefore, brou .1 * before the kingf and the ffreat council,' durino: the sittinjj: of !)< parliament at Westminster, 10 Edward III., it was then ordered i'w the mayor of London, Sir Robert de Skarthbuigh, and Sir AVilli a.i Scott, or any tMo of them, should take an Ju(picst of rhc matters ( 'H w»- had " tht pJU'tic I INTMODUC'l'ION. u ^^^ return to prison in case he should not prove his allegations, then he 'cly traced. 1 y^^ i(^ |,.iye his writ of mainprize.'" What fuitlier proceedings weri- I by a cloud. ' i^^ in ^i,is case, tlie learned autiior does not state. • 'ipf»' this \\ 1 1 the lil Edward III., in a remarkahle ease of forcible abduction, 1 a hook of gr ; ^^j^ parties were brought before the Privy Council. ai\d i)leading>- u' i "• 13e habendo Margeriara dc la Keche corann consilio Regis. H', under ilio t!t!i t<. ]^^,.x Johanni dc Dalton diivaler, salutein. Quia notorius et ^ean- -but no such tu,- ^q\( ,,1^ clamor, ubiipie in populo liabetur, et querinionia gravlssima through the bock^j^j .. facta est, quod tu una cum aliis dc confederacione tua, Mar- creri 'ui de la Bcche, dilecto ct fideli nostro Gcraulo del Isle, legali >• '* Essay on ti; ,^1^1 imonio copulatam, die sanctse Parasceves ante auroram dici apud ► rem.arkable Ci v (ji^i ^^rium ipsius Margeria^ de Beaumis, juxta lledynges, ubi Leonellus ore that tribui . filJ^i s noster quam dilectus, Gustos Angliie, tune nioram traxit, tomeri- ^'ear of that rei; ^;g^^ presumptuosa infra virgam Marescaleite ipsius Custodis, nou cou- l to the Cliancc t ;, j^j^j. ata preseneia aut reverencia ipsius Custodis, in Dei et sanctie 5 made it in ili EiC< losice ae nosiri irreverenciara et contemptum, lesioncmque pacis md to be genuine n^pt'a'ct terrorem dicti Custodis ac aliorum liberorum nostrorum secum rocer, wmo rn.t/.i c^nnoraneiiun, et totius pcpuli nostri parcium prifidictarum, vi armata him to bring li; mpiiistis, et earn invitam quo voluevas, abduxisti. Nos volentes super mas Crop, wh r. ij|(ji,smodi attemptatis, tarn ho^ridis et injuriosis, remedium congruum nd Ids allies k japjxsni prout decet, tibi. sub forisfactura vit.'*^ et meni])rorum et omnium the grocer, e ic^ aHoi nm qua- nobis forisfacere poteris, prc« <|Bod dictam chargeriam habeas a1)S(jue conculcacione corporis sui, coram •hilst the groce; pfet,(to Custode et consilio nostro apud Westmonasterium cum ojnni other goods am filtiiiacione qua poteris. Ita quod tu et ipsa sitis ibidem die Mercurii reu|)on die s li' piovnuo post instantem ipnudenam Paschal ad ultimum, ad faciendum nlargement; ; ;u' ^l^rccipiondum (jnod ibidem super hoc tunc cOntigerit ordinari. l^t hoc apparatus be h. situ ^ forisfacturam pra^dictam evitare volueris, nullatenus omittas. ased to name t > '-" Teste eustode, &c. apud Kedyng, xxxi. die Marcii. — l*er ipsum , be annulled. c|pt.Hlem et consilium.*" * le board had .i.r flliC research for a higher origin than the tim,. of Henry VI., is ierefore, brou..! ilflliiocessary. The investigation may amuse antiquarians, — it cannot e sitting of !" n«|terially assist a constitutioiuU lawyer, and is quite needless for the hen ordered Tia pficiical security of the liberty of the subjects of Great Britain, Old Sir Willi i M'.ie writ of Habeas Cori)us was, in its early history, used between the matters ( 1 .. * It„t. (ji^^„^ 2^ Kd^^^^iTTiTTirrT^QTZ^ 10 INTRODUCTION, subjoct and su])ject, tli{3 one detained invoking the power of the so vcign to inter])ose and protect liini from tlie un\varnuit.tl)le interfere; of a fcllow-snbjoct. At what period it first be' the liberty of the subject against crown, was distinctly felt and asserted. Thus, Serjeant Bramston, his argument for the prisoner, says expressly — " This writ is the mef, and the only means that the subject hath, in this and such like cases obtain his liberty ; tljere are other writs by which men are delivc from restraint, as that Dc Homine Replegiando, but extends nut to i cause, for it is particularly excepted in the l>ody of the writ De ISliv captione et de C'autione Admittenda, but tliey lie iji other eases — i the writ of ITfibeas (>orpus is the only meaus the subject hath to obtu his liberty, and the end of this writ i^'* to retiirn the cause of the ii. prisonment, that it may be examined in this court, \rhether the jtar;' ouofht ■() be discharged or not." f The earliest precedents I find ci in that case, where the subject sued the writ against the crown, arc the reign of Jlenry Vll. ; X afterwards it became pretty frequent, anc! the time of C/harles I. was held a i admitted constitutional remedy. I ]i.;v just observed that the great case in that reign, of Sir Thomas Darju and others, was the first in which tlie nature of this gretU writ of llabe> Corpus appears to have been fully discussed : and it therefore dema . attention. Sir Thomas Darnell, Sir John Corbet, Sir .John lleveri.'i. ham, and Sir Edminul IJam] - P- G. I Mr. Ihilhun (Middle Ages, vol. ii. p. /'i) says, "There is, I 1)elieve, no record'; iiibUmce of a habeas corpus granted, in any caf-e of illegal imprisonment by the crow; or ils officers, during tlic continuance of the Plantagenet dynasty." § Slate Trials, v'>|. H. ji, I, Sec also Htiuic's Hi>t. vol. f), p, IfU. .li-yl fltondatU hf titeird X0tii ■ \\ wi Wki'idiih'i iient, or tile ii'ip;- dSknmaiw of t"is !•( •Iie'">;y a dfr.'-'.Ttv Wo at e^n-ily »• die.-, i.:^' it oifie i.'.' ^j; "rati pltoc ' e<]in hf tiie cr( )>..\vho OOiUpl Jentw'or! the la^ 'nving I am flatter •t he V ■A those ould h, to thin 'old. fraiich: ichise c Hiament >;nmitt( ixei'son ij sty's s >etv ot t INTUODUCTJO.V. 11 owor of the so itiihlo interfere; to be used ayai 'ise of Sir 'I'lioi. first, case in wlh been thorouf>! Petition of Ivii: bject against cant Bramston, 5 writ is the mej sucii like cases ;ien are delive .extends not to ' le writ De Ma' other eases — eCi hath to obt.i canse of the i., i'hetlicr the par L'deuts I find ei the crown, ar( y frequent, an( lal remedy. I ii. ' Thomas Dajik iU \v'rit of llabe hcrefore dema . rJohn Jleveri; ) the Fleet by es I., for refiis le king. § Tii fori? the Cour d been com mi he Privy Couiu rnand [per sneci: beliovc, no rccov;; )mnent Ly ihe crnw. ijindatum] of his majesty. On behalf of the prisoners, it was objected m their counsel (Sergeant Bramston, Noy, Selden,and C'alrhorp) tliat the •^Iknni was not sufficient in alleging merely a detention by " special cora- lllindment" of the king, without showing the nature of the comnuind- llifent, or the cause whereupon the commitment is grounded,— for that iMf^ Jm])risonment of the subject witiiout cause shown, l)ut only by the djhiiiiaiidmeiit of the king, is not watrantable by the laws and statutes flitids rralm. This great constitutional princij)le is urged with all tliat •liergy and learning which might be expected from the well-know?i love df l"!)orty and vast resources of legal knowledge, which characterised tiro at least, of the counsel for the j>n*soners. As might, perliaj)S, eqii;iily be expected, th(^ j>jdges of that day (who upheld Ship-money) diici led that the return was good, and r.;uianded the prisoners. Tliis olfte })roduced the Petition of Right; for in a few months after its iidication, a parliament was summoned by the king, and their earliest (feedings M'ere directed to the consideration of the measures adopted hf the crown in reference to the forced loans, ami the imprisonment of !«)>.' ^v'ho had refused contribution towards them. Amono- those wlio n rued th^ .^ojiipiaint, are to be found the two celelmited names of Sir Thomas ^cnhvorth and Sir Edward Coke. This last-named veteran champion of the law and liberty of the subject, deserves immortality for the fbll wing spirited speech in the House of Commons, upon this matter : I am not able to fly at all grievances, but only at loans. I^et us latter ourselves; who will give subsiiiles, if the king may impose I he will ? The king carmot tax any by way of loans; 1 dili'er ; those who would have this of loans go amongst grievances : — but dd have it go alone. I will begin with a noble record, it chei rs ) think of it, 2<5 Edward III, : it is worthy to be written in letters ■' "Id. Eoans against the will of the subject are against reason and ' .rauchise of the land, and they desire restituti(> ohise of the land for freemen to be taxed but by their consent in pftlr'iameiit." A day or two afterwards, the House '• resolved itself into a c .amittee for taking \vJo consideration the liberty of the subject in hfe'oson and in his goods, and also to take Into consideration his ■ supply-'* And the particular instance of grievance in the : the subject, was the case of Sir John Heveringhamand those •^ •0 M. ISuilc Tl'iul!^, vul. ui. p. »i;j. 12 INTIIODUCTION. otiior trciitlomoii who were imprisoiUMl 'about loan inoiiry, and tlicreu, • ;i liad hrouplit tliclr 1 fabcas C'orpus, had tlicir case ars>;ucd, and w r.. | nevcrtheloss remanded to prison, and a jiid ', and thcrcii, rucnl, and \v r». it was tlieii s d most in coiid m After a del u. — •" 1st. Tha.M jrwise rcstraiiu-; her, unless soni. , resscd, tor wli it. ined. — 2d. '1 Ira rht to be gri" tei or otliervvise it I'livy Counc'i'jii iiaii be commi.l ' command of tl i LK'h conimitmoir law, he ouglil u '^ i it'tnrnablc upui lie on^ht t) i lace a memonib [^'ommons by b' riieir aigumeti nttorney-gent '>: )r(ls culled for tl: nces and debase? 1, and was i>a!ise. i •rated act, am ' 28 Edward 1 1 said statutes " 3 d provided, di any cause slio fore your just dery-o -vnd rec- • ded to certify •■ that they v- d by the lord otir ])rivy council, and yet were returned back to several prisons, willj- ut beiiijr char^r(.(l with anythin«r to which they iui<y were commitrcd by tiie rivy Coinicil for notabh; contemj)ts committed against himself and is government, and for stirring up sedition. The real cause of ^his oimiitment was the freedom of their speeches in Parliament. Ft was bi('(d, on behalf of the prisoners, when i)roui,^ht up by Habeas :o j)ns th.it this warrant was too weucral, for that the contempt^ milt ro hu' been specified. The jndi>'es thoui;lit that by tiie law hv prisouers ouo^ht to he bailed, giviiiii^ security fo" their jrood el.avioiir. but as they refused to do so, they were remanded to j)rison ii .)olm r,Ili(;tt, Denzii Ilollis, and Benjamin Valentine, were tiM'wards tried on an iidormatio;i for utteriuif seditious speeches in avliament, and judgment was given against them. 'J'lic Hoo.se of (»iiimons, however, afterwards declared both judu-rr.ents illegal, and oted hirge sums in eomj^ensation to Selden, Sir .)ohn I'^lliott, and titers, who had been so illegally imprisoned. And in tbo reign of hai'es 11., on the motion of that upright constitutional judge. Sir oliu, dien Mr. Vaughan, the House of Commons repcjited its solution that the judgment on the information against Sir John lllott, Denzii Hollis. and Benjamin Valentine, was an illegal judg- 1to> lit, and against the freedom and ]>rivileges of F'arliament. "In jfclden's case, the judges (says Sir William IJIackstone-f-) delayed for .||^-<) terms (including also the long vacation) to deliver an ojjinion how 'Mr the charge against him was bailable. And when at length they ;veed that it was, they however annexed a conditio!: of Hnding sureties r good behaviour, which still protrac^^cd thei' !' prisonment, the bief Justice, Sir N. Hyde, declaring ihr.t if they were again remanded that cause, perhaps the Covu't would not afterwards grant a Habeas IS, being already made acquainted with the cause of the imi)ri- nt. But this was heard with indignation and astonishment by Sui)va, p. '}- 3 State Trials, p. 235. f Comment,, v. 3, p. 138. i'% Ji;\i UUUU LTION. .loiikes's rase. every lawyer pn.'sent, according to Mr. Selden's own account of f!i matter, whoso re-senfmcut w.is not cooled at the distance of twenty-f years. Th(!SO [jitifiil evasions gave rise to the statute U» Car. J. c. 8. 8, whereby it is enacted that if any person he committed by Kin;>- himself in person, ov l)y his Privy Council, or by any of nunnberH thereof, he shall have ^^ranted to him, '' thout any th upon nny Hence 'whatever, a writ of IIai>eas Corpus, upon denii or motion li o to the Court of King's Hcnch or Common IMeas. v shall thereupon, within throe court days after the return is m;; exaniine and determine the legality of such commitment, nnd do v to justice shall appeilain, in delivering, bailing, or remanding f;;:, prisoner.'' H The jealousy of i'ariiament on this subject at this period, is every- where observable. I find it to be one of the articles of impeachn ."; against Lord Stratford, that '" ho thc^ said Enrl [being IVesidenii the King's Council in tho northern parts of England] did advi*- counsel, and proeure, finther direetion to be given, that no prohibiii agnin mi be granted at all but in eases wiiere tlie Council shall exceed the liinu lUerted of the [recited j instrueti<»ns ; and tJuit ifcunj vrrit of Ilahens Coi'p?i.s ii-'-wkm-t li f/rantt'd, the party be not discharged till the |)arty j)erforni the dviv |i . s I and order of the said Coinieil*."" iBaiicerA The next important case to which liistory points our attention on d ,f^ fjn, (j subject, is that of Jcnkes, which having been long, though it would si :., Mirer adj erroneously, supposed to have materially contributed to the passing i; wBge just t)>e Habeas Corpus Act, has been ever oiu; of considerable intere- fl^n tcrr and . lid'l. ^^ IN IKDDl ( riOV 7\\ account ol f'l ICC of twciity-f e lU Car. I. c. conuiiittt'd by or l)y any of .tliout any t!t> lus, upon dcnij )Uiinon ricas. v J rclurii is m;; ncut, and do v r roiiianding ^v,':h is period, is every- ;8 of impcachn .'!; >ein^- IVesidint rlandj did advi* that no proldhiii 11 excet'd tlic limii ' IJahcas Corpm '-■ 5crforui llie lacc on the occasion of his ai>plication is as follows* ; — i" At first his lordship did seem nnich surprised, and di is most clear in ihe case, art Inst, fob 08, speaking of the writ of llabta*; Corpus in the i^-'s Bench, he saith, ' The like writ is to be ^ranted out of the iicery, cither in term (as in the Kiiiifs IJcnch) or In the vacation ; the Court of Chancery is officina justitire, and is ever opened, and er adjourned : so as the subject, being wrongfully imprisoned, may e justice for the liberty of his person, as well in the vacation time It term." And in the 4th Inst. fol. 88, speaking of the Court of ncory, he saith, ' And this court is the rather always open, for that if a man ue wrongfully imprisoned in the vacation, the Lord Chancellor grant an Habeas Cor[)us, and do him justice accordiug 10 law;' 1' Inst., fcvl. 182, 190. Thus the lord Coke. Mr Jenkes's counsel likewise offer a j)recedent or two : but the Lord Chancellor made t of the lord Coke's opinion, saying *■ 'Jlic K)rd Coke was not hii)le:' and slighting all that iMr. Jenkes's counsel had offered, ruled the matter, denying to grant t)ie writ." (ikes afterwards applied to the sessions at Westminster to be I va:ist'iM, |). 1. .,11'. 1'. 1 107. It must bo observed that tliis report purports to be publislied " by ♦be fi iids'' of Jenkos. Lord Eldon, however, tiiought the report ia the main correct, aubtoii, p. 43. IG IS lUuMl'lTlON. Ilahoas ♦ 'oipus Act. brought Up lor triul or to l)c ImiltMi, hut the court refused liis applioat i\iul hul)sc(|uoiitly soin(M)f his triruds pctitioutMl ilie lAinl ( Iiuik" to bail him,* hut with no l)t'ttur effect. He tlien prayed the y M. ' liT til council to lei him out on bail, but again he was unsuecesN finally, in the ensuing term, on movinj; the h)rd chief justice ol t King's lU'Uch for a writ of Habeas ( orpus, he was bailed. The ground on which lord Nottingham (evi«lently acting on pol i motives) refused the writ, viz. that it could not issue from Chan in vacation, was expressly overruled by lord I'^ldon in Crowley's <;'s wherein his lordship critically examines the reasons adduced \:y I Notlingluim in support of his posiiion.f 1 must refer the reader to a perusal of Lord ICldon's judgment oi ' subject, as my ol>ject is to present an historical, and iu)t a minutely to cal, view of the writ of J labeas Corpus. Lord HIdon haiun Hallam tolls us that this impression is erroneous. He observes i;- njmj, , ^i^^j g " Jenkes^s ease has been commonly said to have produced the faia X e ge Act of IL'ibeas Corpus. Hut this is not truly stated. The arbiif:i^i^,,.n>| ,t| proceedings of lord Clarendon were what really gave rise to itj|. vf' bill to prevent the refusal of the writ of Habeas Cdrnus was broii;;! into the House on April 10, lt)68, but did not pass the committe-^ i,^ * See 2 Swaiistoii, p. 8o, et seq.' for an account from Lord Notthighain's ]VL\\| Ills reasons for not grantinj^.lcnkt-s ji writ of main-prize. t In the cusc of the Canadians (of wliich the Report follows this Inlroduct . 4 .^i^- • IMDit ion oj preliminary olijeclion was taken l>y the Attorney-tJeneral, that the writ i..suod Iv )', T^ ore r«let) ; e warn Justice Litlledalc had improvidently emanated, as there was no jnrisdiolion judges to issue writs of Habeas Corpus in vacation at eommon law\ The Co 'U Queen's Bench, however, was Huaniniously of opinion, that such a power did >)o|m| ,,. grounding themselves on the evil that would result if the subject could be detail J^M. .' prison during the long vacation without this remedy, and on the distinct tipinion 1 .^K'"^"' "1' judges, delivered to that effect iu 1758. 6ee report, post., p. 40. 'ifr'^'^? ^1 I 3 vol. p. 135-H. ^iHy court § Constitutional Hist., v. .3, p. 15. ^di^K II It was one of the articles of his Impeachment that he had caused many p(,-^^ to be imprisoned against law. N'l lloDtM TION. 17 cmI liisapplioa'ii iAinl Cliaiic l!i |(rayt'tl the y] isuc'oossful. V lii't iustice ol t )aile(l. noting t)n j)ol i If trom Chan lii session. Hiif aiiolhor Jo fho satno |mrp(»Hi', prohahly more rcinc«lial, iltiy Hi'Mt up to tho Lords ill Marcli !()(»?>, 7n. Ir JaiUMl of siu'cos.s iu • Pppor Mouse, hut tho Coin.noiis fontimipd to repeat their stru;(«(U! tliis important measure, and in tiic Hessiou of l(»7:{-4 passed two U, one to prevent tiie iinprisonnn'iit of the suhject in j^aoU beyond die eas, anotlu»r to lUfive u more expeditions ust' of tlio writ of Ilnheas Ci^'pus ill criminal matters. The same or siiniiiir bills appear to have Ml ^' up to the J^ords in 107.5. It was not till HmO, tliat tiie dehiy of I in Crowley s «;'s j^, i,^,g'H I|,i[,ea.s Corpus took place. And this aflair sooms to have adduced ly H judo:mcntoi t t a minutely te Lid procured p< - he was cnabl d ancellor had :i ' to have prod i I (> iriflinjif an influence that these bills wore not revived for the two years, uotwithstandiiii; the temjtests that aj(itated the House itii( that jieriotl. Hut in the short parliament of HJ7U, they appear to e been consolidated into one; and that,}iavin^ met with better success r the Tiords, passed into a stjitute, and is generally denoniinate,,^^, ^ju^j d,;^ j^ty^,t<, of Car. 11. enlarged in a great degree our y states it to i'- Uj^iiies, and forms a sort of epoch in their history. Jiut ihoiigh a very of an obscure "'l:imeHeial enactment, and eminently remedial in many cases of illegal Act.'l But V igjjfcrisonment, it introduced no new princij)le, nor conferred any right He observes Hi^ii the subject.'' oduced the faro Xlie general pi ^visions of that celebrated statute have" been well d. The arbi:r> ougiiricd up by Sir Wm. IJluekstone ; and in order to present a complete wa rise to it||. vi4Wi of the subject, 1 shall insert his statement.* 'PUS was broi, f'l'he statute itself enacts, — the eommitt( t. That on compluint and recpiest in writing, by or on behalf of any Noiiingham's M ■ p*f|<'ii committed and charged with any crime, (unless committed for tre»St>n or felony, expressed in the warrant; or j^s accessory, or on JUipicion of being accessory, before the fact, to any petit-treason or n ,s this Iiilroduct tlie Nvrit i..suocl I 110 lurisdution i '*■■*>'' or on suspicion of such petit-trcason or felony, phiiidy expressed on law;. The Co 10 W^ warrant; or unless he is convicted or charged in execution by Licli a power did ct could bo detail c distinct opinion > ). d caused many p' [)rocess), the Lord Chancellor, or any of the twelve judges, in cion, upon viewing a copy of the wjnrant, or affidavit that a copy "#l|iied, shall (unless the party has neglected for two terms to apply ^•iy court for his enlargement) award a Habeas Corpus for such acr, returnable immediately before hiinself or any other of the ♦ ('omin., vol.3, p. 136. 18 INTRODUCTION. judges; {iiid upon the return niaile shall discharge the party, if i)ail; upon giving security to appear and answer to the accusation iii proper court of judicature. — 2. 'i'hat such writs shall be indorse. ^(ranted in pursuance of this act, and signed i)y the person avvar^ them. — 3. 'J1iat the writ shall he returned, and the prisoner bro up, within a limited time, according to the distance, not exceedin any case twenty days. — 4, That officers and keepers neglectini, mnke due return:-, or not delivering to the prisoner, or his agent, wi; six hours after demand, a copy of the warrant of commitmcn: shifting the custody of a prisoner horn one to aliother, witi suflicient rcdSon or authority, (specified in the act,) sliall for the offence forfeit £100, and for th«^ second offence £200, to the \ Caivf f ffrieved, and be disabled to hold his office. 5. That no person g^^^ * ' ^ ' tJWnrnonj delivered by Habeas Corpus, shall be recommitted for the same offp \ a^. i on penalty of £500.— 6. That every person committed for treaso ^u^ c n\t feiony shall, if he requires it, the first week of the next term, o rtftt^'wrt first day of the next session of oj'cr and terminer, be indicted in (Pi^-well term or session, or else admitted to bail; unless the kings witn <||||itict or cannot be produced at that time: and if acquitted, or if not indictee |m>^^ v-,'r i tried in the sec(nid term or session, he shall be discharged fron. 'm^u jq^ imprisonment for such imputed offence: but that no person, aft*^- tlilgi^jsei assizes shall be open for the county in which he is detained, sha: by u^^-'. CI removed by Habeas Corpus, till after the assi/es are ended; but «ftinou^ be left to the justice of the judges of assize. — -T. That any such pri; bel^ mi tl may move for and obtain bis Habeas Corpus, as well out of the Chai; th« iatt-er or Exchequer, as out of the King's Beneli or Common Pleas; an( vim] on tin* Lord Chancellor or judges denying the snme, on sight of the war. <|q^< ;, or oath that the same is refused, shall forfeit severally to the \ elee grieved the sumof£.')00. — 8. That tliis writ of Habeas Corpus ,Md the islands of Jersey and Guernsey. — 9. That no inhab Hd|t ;n)r !)i Lon«.« INTUODUCriuX. 19 ; party, if baih accusation iii ill be indovsei le person awav' e prisoner bro , , not exceocliu.. pers nejj^lectiitt, or his ag-ent, wi; )f commitmen! . another, witi ,) shall for the ^•200, to the \ 'hat no ])erson or the same oflV v litted for treasf e next term, o , be indicted in he kind's witn )r if not indicte( lischarged fron no person, aft*^ s detained, slu. re ended; but ut any such pri out of the Chav non rieas; an( ij-ht of the war reruUy to the i labeas Corpus d oihcr pvivi Ihat no inhal icts jiraying, * nee in the plji md, Ireland, J< without the k advisers, aiders lol less than rf. d to bear any n ei s, li^ involved the Houses of Lords and Commons in a collision, wKi' h was only terminated by the Queen's proroguing, and shortly aftc' WtU-ds dissolving, the Parliament. The case out of which the controversy arose, was one of great interest at the time, (Asliby »,^A hite*), and its Importance and interest have been very recently rerivrd by the cause of Stockdale r Hansard, now depending in the Owrt of Queen^s IVnch, and by the proceedings of the House of Cwnmons in relation to this last-mentioned action. ';|lsidjy was a burgess of Aylesbury, and brought an action against the constables who were the returning otficers of that borough, for relb^iniito take his vote at the election. It was hol(i*by three judges (Powell, Fowys, and Gould) that the action would not He, against the diltinct opinion of Lord, Holt. The judgment of the Queen's Bench, ho'W'over, was afterwards reversed by the House of Lords, and judgment 'gifipn for the plaintiff, by fifty Lords against sixteen. In a note to iidi lase in the excellent recent edition of Lord Uaymond's Reports, by M»'. Gale, that gentleman has summarily given the history of the **||^rious controversy to which the reversal of this jiidgment gave rise he^ ''Ml the Lordfc and Commons, which was conducted on the part of tW latter with great asperity." The Commons passed resolutions, tftllbcating their privileges, which they conceived invaded by the dtlision of the House of Lords in favour of an action in relation to liptions, which they held to be under their exclusive cognizance ; and! the House of Lords passed counter-resolutions in supjiort of their jmigirient. An admirable report to that effect was drawn up by Lord |t. and published throughout the kingdom. I« ^^ ^"tef and the other defendants, who, notwithstanding the jUinciations of vengeance by the Commons, had been ^aken in eBlpulion, petitioned that House for relief and for protection in five actions which had been brought agaiust them by Paty and others. Hou^e resolved, that the taking in execution, and the bringing !. 1 Lord Raymond, j). 938. f Gala's Lord Raymond, vol. 2, p. i).'')H, ik.Io. ( 2 20 INTRODUCTION. Si the Jiclioiis, were a contravention of their late resolutions, and a hi of their privileges. \\y order of tlie House, Mr. Mead (Asli attorney), John Paty, John Oviatt, John Peyton, jun., Henry B; and Daniel Horn, the plaintiffs in the ahove-mentioned actions, ^v taken into custody by the Sergeant-at-arms, and sent to NevvL- Paty sued out a Writ of Habeas Corpus directed to the keepe . Newgate, who returned the warrant of commitinent by the Speii On argunjeiit, Powell, Powys,and Gould, justices, in c»pposition to 1 • chief justice, held that the Court could not discharge him. Upon t.hi- cision, Pat}'^ proposed to bring a writ of error, 'ilie Commons addr( > the Queen, requesting her not to grant any writ of error in this « Her Majesty replied, ' That as this matter affected the cour- judicial proceedings, it was of the highest importance: and then her Majesty thought it necessary to weigh, and consider very caret : what was proper for her to do in a thing of so great concern.' '* I'he Common?, enraged at the attempts to oppose their autho resolved, * That Mr. Montague, j\Ir. Lechrnere, Mr. Denton, and Page, who had been counsel for the |)risonersin the argument upoi; return to thewritof llaboas Corpus, were guilty of a breach of privih . and the Sergeant-at-arms was ordered to take them in custody ** The Sergeant ap))rehended Mr. Montague and Mr. Den notwithstanding they had a protection from the Lords; and infer the House, ' That he had also like to have taken Mr. Nich Lechrnere, but that he got out of his chambers in the I'emple, pair of stairs high, at the back window, by the help of his sli and a ropf?."* " Mr. Cesar, one of the cnrsitors, was ordered into custody, haviuir neolected to inform the House what writs of error had ; jipplied for. '' The Lords, on taking into consideration the petition oi prisoners, resolved, having previously received the ojiinion of tc the judges, that a writ of error is ex debito justitiie, except in tre; or felony." The Lords then ])assed several ot resolutions in support of Ashhy's right to maintain his action; lastly, fJth, 1 hat a writ of error is not a writ of grace^ but of ri and ought not to be denied to the subject, when duly applied though at the request of either House of I\arliament — the d thereof being an obstruction of justice, contrary to Mogna Charta ion -:^ tions, and a bi r. Mead (Asli nil., llcnry B; :)rKHl actions, ^ sent to NOVV'L' to the kccpe it by the Spcji opposition to 1 ' him. I'pon^hi- ^'omnions acklr( > ■ error in this » iHed the coiirs mcc: and there iider very caret i concern.' lose their aiitho r. Denton, and argnment npoi: areach of privih: I in custody and Mr. l)ei^ 3rds ; and infer iken Mr. Nie'; 1 the Temple, help of his si into custody of error had i he petition oi ^ ojiinion of te' e, except in tre; lassed several ot lin his action; j>race, but of r n duly Jipplie*! anient — the <1 Magna Cimrta INTRODUCTION. ' ^* These* resolutions, the Lords, in a conference, communicat»'d to tht Co?nmoMS, wlio took till 7th March to consider of them. The S^geant-ai-arms informed the Commons that he had been served with imts of Habeas Corpus for Mr. Montairue and Mr. Doiton." L^piMi this the House resolved, " That no Commoner of England, cdiimiired by the House of Commons for breach of privilege or contempt of the House, ought to be, by any writ of Habeas Corpus, mittJe to appear in any other place, or before any other judicature, uliring that Session of Parliament wherein such person is so committed. # That the Sergeaiit-at-arms attending this House do make no return o^V yield a,ny obedience to, the said writs of Hal>eas Corpus ; and, for iAi )iis refusal, that he have the protection of the Commons. i* A second conference took place between the two Houses, which Will broken up on an allusion being made by the Commons to what th«y called a usurpation by the Lords of an appellate jurisdiction in nt0ts of equity. /# The Lords insisted on their resolutions, and agreed on a repre- tion find address to the Queen, praying her to grant writs of error e Aylesbury men. "i l lie Queen replied, that she wuuhi have granted the. writs of 'rbr desired, but that she found it necessary immediately to prorogue ine Parliament, and that therefore there could have been no further "llJ^H'ding upon them. ^ A prorogation, followed by a dissolution, brought to a close the i8(|Usj8ion of this question and a very stormy session."' he (juestion therefore of whetlier a writ of error hiy to the liords biot decided ; and, strange to say, I am not aware of any case, during Khiif ong interval that has elapsed, in which it has been again raised. 1 ime, iiowever, that in these days no doubt would be entertained as e writ of error lying. The proceedings are on record, and do not distinguishable in principle from other cases. It aj)pears that Commons raised the general que. tion in their corlorence with the s, and did not confine themselves to that particular case as an Vgement of thoir'exclusivc right to judge of their own privileges, akJng the Lords a court of appeal upon them. [!Sec Pari. IL'st. V<^^(', i». 40L] Ten Judges agreed that in civil matters a petition for * Gale, ubi su|U'a. ii 22 JNTHUDUCriON. a writ of error was of riglit and not of frracc. And the Queen info im m^er tli« the Lords "that .v/ec would have r/ranted the writs." — [Pari. Ifl^ il^ie ter vol. (), p. 382.— Note.] l|r. Soli All the su- We find nothinjr of peculiar liistorical or constitutional intere t (ir (Sriif atf courts of this subject from that period till the year 1758. The only op'; flpitirner ^"'."^[^'"i'^^^deservinsf of notice in the interval is the establishment of the doc nup, 4|clured junsdiciioa '^ , « "ovov writ that the Courts of (Jommou Pleas and Exchequer had a co-ord'n.;;. fllses cor Co-) s'^^'^ jurisdiction with the King's Bench in issuing the wrJit. It w: |||lij»resse originally thought, and even so late as the time of Charles II., tha in. 'ad ougl Court of C'ommon Pleas could only proceed against a party undei tlii fll^^-e reti writ if he were amenable to its jurisdiction as an officer, and that ili. § -^^'^ 1 only mode of proceeding was by a writ of privilege: but this n (ioi 1'^'"^'^^ ^ was overruled in Bushel's case (Sir T. Jones 13, and \'aughan i;^.^) „wo parli and Jones's case, 2 Mod. 198, and finally the power of the Cour; vn^'w ^^^^* distinctly asserted in Wood's case, 2 Sir William Blackstone, 74), 2 Wilson, 172. Since which time the Courts of Westminster iJa! have all exercised a coequal jurisdiction over the writ of liabcds Co'[. n^ . },'_^^' J. In 1758 some important discussions arose with respect to the po vt: iraprcsbed of this writ at common law^. Several persons in the Savoy, imp;-' -is "'^"* under the 29th Geo. II. c. 4, had applied to Mr. Justice Fostc:[i writs of Habeas Corpus, upon which they were brought up ui discharged by consent^ without any return being made ; but the ka ii judge, conceiving it to be a matter of doubt and consequence ho vl proceed in such cases under the act, desired the assistance of the « il; judges of the King's Bench. They all met accordingly, and f. residt of their deliberation will be found reported by Sir Earl.; Wilmot*. In Dodson's Life of Mr. Justice Fostert, there is n tii account of that learned judge's views on an important question TiM'^ff' ^'^^''^^ during these proceedings. His statement of the matter is as follow?: '^I'^t^'' 5 ^ " It appears by his note-book, that in that term motions w f posed < bliI>rouoli miT the * Sec Wilniot's Judgments and Opinioas, p. 81 , note (a), f And sec State Trials, vol. 20, p. 137j. • See t]j( p.i{>s. 4. ^'ui. •{, INTHODUCTION. la ie Queen intx)rnf'ijp[ei- them to be romovod in tlie mean time ; and that afterwards, in the ;s.**_[Parl. ]{k. ^ic term, ti»e men were discharged })y tlie Court with the'con>cnt of ||r. SoHcitor-Cuiieral Yorke. These cases are severally entitled tlio tutional intere t(ir l|n^ aj.g or restraining the party, should be granted in the same manner as I ijivccted, and under the same penalties as are provided by the said in the case of persons committed or detained for any criminal or descrintion of t:. »lM{'**^^^^c^'""i"^^ ™^^ter ; that the person before wljom the party should ts made rule^ i MP»rt)iiaht by virtue of an Habeas Corpus, granted in the vacation time, tice to be o-ivr '••i'^^ t^*- authority of this act, might ariil should, within three days )i the Savoy n •■ • Sce tlie (Ifbute there and proceedings upon it. Pailiaineutary Hitit., vol. I'» p. tl>s Vol. 1, p. 140, Habeas Coipu? B. !r of the Cour' va> Blackstone, Ul Westminster ila', lof llabcdb Co'['iw spect to the po vy; e Savoy, impr' >«: J .lustice Fostci fit**!! e brought up an .| lie ; but the lea lu onscquence ho v' l stance of the « 'k :;ordingly, and t! d by Sir Ear'; ert, there is a t; ant question r;.i.v. ;t.er is as follow?: ions were mai e : favour of mei) ■ 4, upon afiid b LM INTHODIfCTlON. if'tor th ^tui mj (l( (I to into the facts lUUl proccc audi return, ;uul into the cause of such confinement or restraint, m thereuj)on eitlier tlischart^e, or bail, or remand the party so hrouji;! t. the case should recjuire, and as to justice sliouhl a[)pertain. The n ^♦ the hill related to the return of the writ in three days, and the pen; hi, uj)()n those who should ne^^leet or refuse to make tlie return, < i , comply with any other clause of this re<^ulation. "The l)ill was soon passed by the (commons; but in the JIou o > Lords it was thrown out at the second reading, and the judges ',/o; ordered to prepare a bill to extend the power of granting wriis oi Habeas Corpus ad sui>ji('iendum in vacation time, in cases not within the statute of JU Tar. 11. c. 2, to all the judges of his Majesty's coiu'^ at Westminster, and to j)r()vide for the issuing of pr(tcess in vaci'timi time, to compel obedience to such writs; and that in preparing suil, ||irson n bill they take into consideration, whether in any and what cases it ina\ 9$d plui be proper to make ]»rovi!.ion, that the truth of the facts containtd in ajlgularly the return to a writ of i labens Corpus may be controverted by aftui vits fjgt said s or traverse, and so far as it shall appear to be ])roper, that clause^ ''*'i W ^^'*- ^" inserted for that purpose, atui that they lay such bill before the II iv dlteml U in the beginning of the next session of }>arliament. A bill to this eToc jSJIherint was accordingly prepared by the judges, but the House never cAlv: nito any for it. See a copy of it in i Godson's Life of Sir Miciiari Foster, p. 68. ♦ " When tiie above bill was before the Lords, the following quest Ioi> were proposed to the judges : — 1st. Whether, in cases not within tlo act of 'il Car, II. c. 2, writs of Habeas Corpus ad subjiclendmn, by t!:e law as it now stands, ought to issue of course, or upon probable c.uisi; verified by affidavit ? — t^nd. Whether, in cases not within the said act, such writs of Habeas Corpus, by the law as it now stands, may issue in vacation by fiat from a judge of the Court of King's liench, return.tbif 4 before himself? — 3rd. What effect will the several provisions proprs bythis bill, as to the awarding, returning, and proceeding upon retui to sjich writs of Habeas Corpus, liave in practice ? and how much w the same operate to the benefit or prejudice of the subject? — t Whether at the common law, and before the statute of Habeas Cor, in the 31st of king Charles IL, any, and which of the judges C( regularly issue a writ of Habeas Corpus ad subjiciendiun in tim* vacation, in all, or in what ca^es particularly .^ — ^th. Whether ' es of tters ?- md by t they hould oubte ught I INTRODUCTION, r«ct« contain^ * ; or restiaiiit. ;ii rty so luoiij^l t. ain. The i< >* and the p*Mi; hi, tho return, ' i . in preparing' su. |. wliat ca.sesit" ina\ facts containt (1 in 'ortcd by affu! vii- r, tliat clause^ U before tlie H ;- jfd^es at the common law, and l)cfore the said statute, were l)oiind t»» ipue sucli writ ot' Habeas (.'orpus in time of vacation, upon the donumd of niv person, uiiih'r any restraint ? or mit^lit they refuse to amend such Wjrit if thr) thought proper? — 6th. \Vhcthcr tlie judges at the com- nloii lavA', and before the said statute, were bound to make such writs iipued in time of vacation, returnable immediate ? and coidd they iilorce obedience to such writ issued in time of vacation, if the party it in the Hon -o " tlivcd tiu-re vvitli shouhl neglect or refuse to ol)ey the same, rnid by what the judges we; a|eans ? — 7th. Whether, if a judge, before the said statute, sliould have granting writs oi ij^used to grant the said writ on the demand of any person under any cases not wirJiiii ifctraint, had the subject any remedy at law, by action or otherwise, >) Majesty's cuui'^ j||;iinst the judge for such refusal? — 8th. Whether, in case a writ of dcess in vac'titui B(abeas Corpus ad subjiciendum at common law, be directed to any rson returnable immediate, such person may not stand out an alias d pbiries Habeas Corpus, before due obedience theK*^o can be ularly enforced by the course of the common law i — J)th. Whether saiil statute of JJl Car. TI., and the several provisions therein made the immediate awarding and returning the writ of Habeas Corpus, eitend to the case of any compelled against his will, in time of peace, \. bill to this e L\ jfijlhi'r into the land or sea service, without any colour of legal authority, ouse never c.illi o|to any case of imprisonment, detainer, or restraint whatsoever, except of Sir Miciiari lifees of commitment or detainer i'or crirn'nal or supposed criminal Jlitters? — loth. \Vhether, in all cases whatsoever, the judges are so dlowing quest toi;> j||^i»d by the facts set forth in the return to the writ of Habeas Corpus, ses not within tlo apt they cannot discharge the person brought before them, although )jiclendum, by t! itshouid appear most manifestly to the judges, by the clearest and most m probable c.u ■ il||d()ubted proof, that such return is false in fact, and that the pcrsori so athin the said act, ||P''n^'^ up is restrained of his liberty by the most nnwarranlable means, nuls, may issue iii^i^l iu direct violation of law and justice? — The tlurd ijuestion was Bench, returiiitbl >^pve(l at the request of the judges. Upon the first question, they all rovisions propci flHivered their opinions in the very same words — * That in cases not ding upon rctm ^^'^'^ ^^'^ ^^^ of 31 Car. II., writs of Habeas Corpus ad subjiciendimi, ml how much w '^^Ithe law as it now stimds, ought not to issue of course, but upon IV subject?— ! ^^^*'^^^'^' cause verified by affidavit.'*"' Ujjon the other questions they of Habeas Covi'i ^^ divided — and their opinions may be seen at length in the work the judges c« ™^^ which the foregoing quotation lias Ijcen made.* It would occupy endum in tiuK ' t(WI ) nuch of the limits of this Intvoduction to extract them; and the th. Whether' '^' 1 i ■ftf • See also Pai)iainentary Hist., vol. 15, p. 898, ctsetj. 26 INTllODrCTlONT. 6(.>(J.3, c. 100. reader must be, therefore, tlms summarily referred to tliem, Tlif reasons of one of those learned judj^es, JSir K. Wilmot, may be »eeii. minutely detailed l)y liim in his valuable collectiun of '' Ills ()j»ii ions and Judgments,"'*' p. 77. The learned Kditors to whom I have before referred, add, " Thcu'rii it was now seen that there was a material ditt'ereiicc of opinion amon ;tlio judu;es upon these G^rcat constitutional points, thout^h the defects ij. tlic law were fully exposed, and the Lords, while tlipy rejected the mersurc then before them, aekiiowledi^ed the necessity of a further legi.s!. live enactment to supply those defects, by their direction to the judges ti. pre- pare. a bill for that purpose ; yet the effect of the discussion wasshori and transient. No notice was taken in the foUowinii^ session of thf bill which the judges had prej)ared, nor was the subject in any theslig' tesi manner touched upon. All that Jiad passed seemed to have at - iiue sunk into oblivion ; the law, as it stood, was acquiesced in, as full' adecpuite to the public security ; Mr. Justice Biackstone, in considi juir the stJitute of the 81st of King Charles II., in his Commentaries, . uh lished only a few years afterwards, asserts (book iii. c. 8) that * tiu remedy is now complete for removing the injury of unjust and ilk'g.i! confinement." The next epoch of historical interest ii'. relation to the writ of Habe;i, Cor])us is the year 1810, when the statute 5G Geo. III. c. 100, pa^■.ll^. commonly called, after its author, Mr. Sergeant Onslow's Act. '• When it was first brought under the consideration of parliament it was rejectu. It passed, as the Act of Charles had done, through the Lower Hcuse without difficulty ; but it met with so strong an opposition in the oilier House, particularly from the two great law lords, the Chancellor ml the Chief Justice of the Kintr's Bench, the onedeclarinn; it to be unut- cessary, and the other objecting to it as savouring of the iiniovaii;' spirit of the times, and likely to be injurious to the naval service, l! it was lost upon the second reading. The bill would probably ?; been ,no more heard of, but for the spirit and perseverance of gentleman by whom it had been brought in, Mr. Sergeant Onsl who, immediately upon its rejection by the Lords, moved the Comm- for a select committee to investigate the subject. His motion wa^ instantly complied Avith ; and the committee thereupon appointed, : ported the existing laws to be inadequate to the public security, i ' ground beiiig thus strengthened, the learned sergeant, in the toilow ' aiQrantage of Charles t, may be 'ccii, f '* liis 0|»ii ions y^'wn, introducod the bill aji^ain, when, as before, it passed spc-cdiiy rniigh the (Jornnions; l)Ut, ihou};h thoio appeared to be no direcL sition to It in the other Ifousc, and the chief justice of the Kinjr's frit iidly to it, yet it was foinul necessary, in order nu'h Ijiid become iroirrc d, add, " Thoujrh »"aeilitate its jiroj^rcss, and to secure its passat^e before the close uf ipinionainon^-tlie ffj^ session, which was far advanced, to withdraw tlie great seal from the defects \\< t\w }|| piovl.sions, and to confine tl:e powers granted by it to the judt^cs of ectcd the mef;si]i. fj^^ courts of common law. Thus altered, it passed into a law without further legi.s!, tivt ftitrher objection. the judges ti. pre- ' The bill in its oriirlnal shape, as introduced by the learned sergeujir, »ion wasshori am w§c nearly, if not entirely, the same with that prepared by the judges session of tho biii ii^ i r.j8. The act dlflers from it in the substitution of a power to arrest I any the slig' te^> gg^i \^^y\^ to bail by the warrant of a judge, instead of the grarting- of I to have at - iiie as J'.ttaehnient by a judge in case of disobedience ; in the omission of »sced m, as iull; pov crs to grant issues and award costs ; in making no mL-ntion of the ne,in considi jn.; g^i.t seal; and in its extension to iveiand."* mmentaries, : ii!) O'tiis statute recites that, the writ of Habeas Corpus has been found 1. c. 8) that ' tilt by ^'xperience to be an expeditions and effectual method of restoring unjust and ilieg.d asij ju'r^on to his liberty who has been unjustly deprived thereof,— and th&i extending the remedy of such writ, and enforcing obedience he writof Plabeii tlieiounto, and preventing dehiys in the execution thereof, will be 1. c. 100, paj^iLu. adVi.ntageous to the public, — and that the provisions made by the act sAct. ''Whcnit (^diaries li. only extend to cases of commitraent or detainer for tit It was rejecjeii. criminal or supposed criminal matter : and proceeds to enact that persons he Lower H<■- in the follow; * Bac. Ab. V. 4, ubi supra. 28 INTIlODirCTlDN. By 8CC. H, process oi contempt may be awardpd m vawition i*(.'ii;;. }>crsons disobeying tlie writs of Habeas Corpus incases witliin t;, Htatnte of dliarles II. Siieli arc tht; |M'ovi.sions of the last acton tliis important sub". }ind witli them I close tlic present exposition, and j)roeeed to the Ii< j,, of the arjruments and judgments in the case of the Can.idian prisoui;. Probably the reader will feci, on a careful consideration of the doehiii, urged on the part of the Crown, adopted almost to their full exteji the Judges of the Court of Queen\s IJeneh, and not expressly ncgii*: by the Barons of the Exehe, ( rsoiial liheity, i u [1. UKi^OUT 0W HE CASE OF TMK CANADIAN PRISONERS. TFfr: ailEHN r. HATCH Kf.nOR. ^^'^'^■ On tlio 17 ih December, 1838, twelve prisoners wore brought ith others) to Liverpool, chari^ed in execution of a sentence ti,,. casf transportation to \'an Diemen's Land, for liaving been iicerncd in the recent C'anadian revolt. On the 28th of the me month, application was made to Mr. Justice JJttledale V writs of Habeas Corpus, to bring; them I^efore the Court of ueen's Bencli, with the cause of their detention, on the idavits of Jose[)h Huni ■, Esq., M.P., and .(. A. Roebuck, sq., stating that the jirisoners named had been brought to ivofpool from parts beyoiul the seas, and that they were egaliy detained under semblance of being State prisoners, t liaviug been tried as tlie law requires, and without having d any sentence passed upon them. These writs were at once grante1.\ N ( /VSL. Tlie RcUnn.': l«30. It was ultimately rirranj^od that in the course of the <';^ ^-^^"^ the counsel for the prisoners should he furnished with a t"- ,.' " of the return intended to he filed, and that tlie case shouhi ' RATtuBLnoR. ar<;>;ued on the following IMoiulay. On that day, tlicrefore, ohcdience tothe writs of Habeas Corpus, John G. Parker, Fini Malcolm, John Grant, Uohert Walker, Paul liedford, UaiK Wixon, Leonard \\'"at«on, William Reynolds, Linus Will. Miller, James Itr(j\vn, John Andi-rson, and AV^illlam Ah < were hroug^ht before the (Jourt of (Queen's liench. The ATT0UNLv-Gr>vF.RAi,, the SoLtcnun-GnNEUAL, S FnEnEim; Pollock, and Mr. Wichtman, nj)peared for 1 crown. Mr. Ilii.L, Mr. Falconer, Mr. lloEniicK, and Mr. Fji were counsel for the prisoners. Two returns, each represencing a different class of case? i the prisoners, were then read. 'I'he first referred to .John (trant, L. W. Miller, and \^ Reynolds ; and it stated that at the sessions of oyer and tf miner and general jnil delivery, held at Niat^ara in V\y,<^■ Canada, on the iSth June, 1838, at which Jonas Jones, onr the justices of he- Majesty's Court of Queen's Bench, i: associates, presided ; .John Gr 'it liad been tried and eonvic t of high treason, and judgment of death recorded : and on 1-. Si^iid of October, 1838, by let*;ers patent under the great s> of the province of Upper Canada, he was pardoned from t conviction, on condition that he should be transported to A' Diemen's Land for the term of his natural life; but there bei' no means of transporting him from Upper Canada tliereto, had been sent to Quebec under a warrant of Sir .lohn Colbor the governor, and sent on board the Captain Ross to Liverp' at which place lie arrived on the 17th December, and tli not being immediate means of transporting him, he liad 1. committed to the custody of the keeper of the borough j' of Liverpool, to the end that he might be transported to ^ i Diemen's Land according to the condition of the pardon. The returns in the cases of Miller and Reynolds were simil except that they were stated to have been convicted of felony The second return, which was read, referred Lo the nine oth. ■ 8o' bt I liii ^e urgui leavf roiirsc of the < i*"!!*'*! with u t<. ho case should ' ihiy, tliriL'fore, G. I'arkcr, I'ini lifdtord, Uaiji . •i, Lifms Willi 1 William Ah. (•rich. )R-Genf,ual, S nppearod for \ I ., and ]\Ir. Fji, : class of case?; i Miller, and \^ of oyer and tt iai^ara in rippr nas Jones, ou"! on\s lionch, w cd and oonvii [■ flod : and on t,. (T the (i'veat S' . Ii'doned from 1 isported to V. but there 1)01' lada thereto. .lohnColbor )ss to Liverp(r „ ibor, and tli m, ho had If ic borough )■ IS ported to ^ i he pardon, ds weresimi' dieted of fehi;. o tiic nine otiir Ql FEN lUlCllKI Don. |i toners, an«l WJW as follows*:— I. William Ratclieldor, keeper her Maj«'sty\ jail, of and for the boroiiffellii._i-S t ...J i lin CANADIAN CASK. ^ to be pardi' > | for tliclieiitcii.Mir tlic advico .n: ^rjuit, if it shci' ;sty's name, ii. r proper, ^vj of her Muje.^v, prayer of s attainder ot treason, as fa iroperty real p>i Lild be pardoi : »ported or bani !.. ?. or for any ten vards volinita '. e, contrary to 11 ty of felony. And I do fill- klajesty's prov; ;o provide n offences, an place in his Majesty's dominions, as might be assigned tho reception of convicts, or for banishment from that ])ro- viulo for life, or any term of years, or for solitary conlinemont, or confinement with or without hard labour in any penitentiary 0|lii;useof correction that might be appointed for such purposes, eitli'r during life, or for any term of years. And I do further cer- tify, that by another statute of her Majesty's said province o^ JCJojicr Canada, intituled, " An act respecting the transportation ' (fljf^Miivicts made and passed in the seventh year of the reign o£])is late Majesty King William the Fourth, in the manner attd by the persons and authority required for that purpose by tbt -^aid Art S Parliament made and passed in the thirty-first yfB)' of the reign of his late Majesty King George the Third. After '•eel ting that it was expedient to facilitate the transpor- 'tatilon of oflVuders to such place or places in his Majesty's doBiinions as might be assigned for the receptl(ui of convicts, pnd. U) make further provision in respect to the punishment of triBlsportation, It was enacted, that notwithstandinjj: anythlno: COtttained in a certain act of the parliament of that province, paw* d in the fortieth year of the reign of his late Majesty King George the Third, nititulcd — " An Act for the further introduction of the Criminal Law of England in this ])rovinee, ami tor the more effectual punishment of certain offenders," ituhoidd be lawful, after the passing of that act, to sentence •>*%!idcrs to transportation, not only in such cases where by any 1830. V. Hat c II 1. 1. DOR. 1830. 34 QUKl.N V. Batch 1 u)OR. THE CANAHTAN CASE. law then in t'oice, or tliereafter to be jnissed, it was expn vsly provicU'd that such offenders might be transported, but iih ^ v. every case in which, by the j)rovi.sions of the said act, p;iXM in the fortieth year of his Jale Majesty Kinij^ Geor^( tli,. 'I'hird, the person convicted wouUl be liable to be bani liir from that province: Provided always, nevirtheless, tha ;i oflender should, under the authority of that act, be sente ' to be transported except by such court, and in such cases. ,i for such term of time, as the same oiTender might, accordi: { the said act, be banished from that province ; and tliat noiii;' in that act coLlained should extend, or be construed to [d\< away, or affect th j power of sentencing offenders to be bani .ii according to tlii act thereinbefore recited, when it s! o , appear ])roper to pass such sentence, And that all .; singuhir t)ie } rovisions then in force, wliich were contaim J the saiil Act of the Parliament of that province, passed ii ; forrietli year of the reign of his late Majesty King Georg' ■ 'J'hird, respecting persons returning to tiiat pro\ incc 1 : the expiration of the period for wiiich they had been bai by sentence of a court, or had consented to be bani according to the terms of any conditional j)ardon granted convict sentenced to suffer deat!i, should equally exten i and be in force, with respect to any person returniuL'; transportation after that act, whether such person slioiiu! , been sentenced to i)e transj)orted, or having been eaj. • convicted, should have been pardoned, on condition of transported for a time to be mentioned in such sentem . for life, where that might be lawful, and should in the o. of the court passing such sentence appear pro})er, to place as the governor, lieutenant-governor, or person- ad: r tering the govennnent of that j>rovince, by and wiii; advice of the executive council thereof, should ajipoint. that it should and might be lawful for the governor, lieut< governor, or pers(m administering the government o ]trovince, by and with the advice of the executive C' . thereof, to determine, upon reference lo his ^Majesty's g< • meut in England, to what foreign pos!»essioii of his A; piov riiK ( \>;a]m.a\ r\sr .>i> , it was exj)!-' -sl\ i orteu, but ills » i- e said act, pii^sed \iiiir Geomc tlu' le to be bani liw! ertheloss, tha , act, be sent* in such cases. night, accordii : ; and that noin construed to ; iders to be baiii^ 1, when it s' And that all . I were contain « .' dnce, passed is y King (Teorg' lat province b i i liad been ban • ed to be ban' pardon grantcti equally extei: ; ■son returniiiL'; person shouul , ving been ea]. ' condition ol' I such sentent U)uld in the oi : car proper, to • , or person ad , by and w'v ould appoint, i-overnor, lieut* jrovernment (» e executive C'^ is ^lajesty's l • ' sion of his ^S |V1( ts slioiild be transported from tliat province, under the 183{>. )V]sions of that act: and that an instrument under tlie sign ^nual of the governor, lieutenajit-gov linistering the government of that p O ernor. rovince. or i^erson i^UI'EN and .lireeted «atcu..m>ok. ftlie judges of the Court of King's nench, declaring to what C^on\ or j>hice it had been determined to transport any convict, flllonld he sufficient autliority for the judge who passed sentence rm such convict, or, in liis absence, for any other judge of the Iglti court, to make his warrant, authorising any person or p^sons to carry and secure such convict, in and tlirough that jl|i>viuce, towards the sea-port or place from whence lie or 1^ was to be transported ; and if any person or persons shonld filciu- >^iH'h convicts, or any of them, or assist them, or any i^hem, in making their escope from such person or persons llpshDidd have them in their custody as aforesaid, such offence ilnld be punishable in the same manner as if such convict HI. at ttie time it Avas committed, been confitu"'d in a gaol pri-uii, in the custody of the sheriff* or gaoler, after tci'cc for the crime of winch lie sjiould have b(HMi convicted. |d that if, by reason of any difficulty occurring which might vent the transportation or reception of any convict in any V or possession of his Majesty, the sentence which should V l>0(>n passed on any such convict could not be carrird ■ilect, such coiwict might be detained in prisiui for a I;;.! not longer than that for which he should have been tonced to be transported, mdess it shoidd appear expedient ;u(lon such convict, in which case it might be made a con- on of such pardon that the convict should l)anish himself 'WiWHii 'hat province for a period not exceeding the residue of 'Ae 'ine for which he was to i»ave been transported. And I d&i ihcr certify that af(er passing the said first mentioned rtittn*c, to wit, at a special session of oyer and terminer and ^g»ol delivery began and holden at Toronto, in the home dis- trict of the said j)rovince, an Tluirsday the -ightli day of Mavcli, in the first year of the reign of her said Majesty, before ikm ilonourable John Beverley Robinson, chief justice of the ^d !iiovince,and others his fellows, justices and commissioners n 2 ipm Ji6 Ql'een V. BATCnti.uon. Petition. Pardon. THE CANADIAN CASE. of our said lady tlie Queen under anr the jMi iau i\\ a|ld nui iii wrd< tonar aut of ['pp ••or;., Ills .ii'ri\ m t^jii, ! .vin< • o ■RbcJitfo saf< \i'c said roii CU8!' 'v that ;;. Im • was ';ri.- toe* froDi i cond ; i ' day;! \ the of C , of til toE migl as af with Beveh ■I!(i THK CANADIAN CASE. virtue of lie-. )f tlies:iiuhl see fit th^he advice o sty's belialf, ce said Leonanl o >av, that th. 1 transported ' and for and d; and eonditioi; c said Lieule ante, on tlie t\v. one thousami rs patent muU ■ ir.uhi, (hited tlu d reh;ase the puni>hnient wh lid Leonard \\ fessed by liini, lard Watson ^1 ic said penal ct H Van DIemen'.s Land for and during the term of his natural c. And T do further certify and return that there beini^ no ans of transport inii^ the said Leonard Watson directly from imcr Canada aforesaid to Van Diemen's Land aforesaid, it btcame and was necessary to take him to (Quebec in liei Blajesty's province of liower Canada in North America, for j>ur])0se of carr) ino^ the said coiulition in the said pardon o vtbct, the said ace called Quebec bein}2: the readiest 4j|cl u)o^r convenient place for that jun-[)Ose, Mhercupou and 11 order to cany the said condition into clfect, tiie said onard AVatsun was, after t' <^ said pardon, conveyed l)y authority and warrant of the said Lieuteiumt-Governor Lpper Canada from the said province of Upper Canada o the said province of Leer Canada, and was there, upon arrival in Lov/er C anada aforesaid, by virtue of a warrant li.'it behalf of Sir John Colbornc, t^overnor of the said pro- tc of Love- Canada, delivered into the custody of the Mil of tl'<' di'i!vey the said Leonard Watson to England, to be taken fraDi I hence to Van Diemen's Land, in fnlHlment of the said jBOBdiiion, and thereupon aftervrards, to wit, on the seventeenth day id' November, one thousand eight liundred and thirty eight, the ^:iid Leonard \\'atson was delivered by the said Sheriff of C'uebee into the custody of Digby B. Mortt)n, eapt'dn of til' bark " Captain Ross," fi the purpose of being con\ ul to E ,j,htiid afort^;ai Vju V. Diemen s Lund as afnresnid, it became and was neces.sary that tin- Batch KLiH.ii. ^.^^^ Leonard AVafson shoidd b(! placed in some safecMKr,,,]; nntil tlie means eouhl be j)rovided for conveying him to \'ai> I'u. men^ Land as aforesaid, and tlie. said jail of and for the -i! Horoiighof Ijver}()nl being the fiitesl and mostconvenienr ai for that purpose, he the said Digby li. Morton did, on th -, ami year last aforesaid, deliver the said Leonarus could not be granted i ! Court of Queen's BencJi in term-time, uidess uj)on m 3 like writs of mandamus, &c. The Lord Chancellor imleed it, grant such writs in vacation, for his Court was always opii, CoLKUiDGE, J., here referred to 3 Blackstone's Comm rn)dr() — " This is a high prerogative writ, and ther : by the common law, issuing out of the Court of K'. Bench, not only in term time, but also during the . tion, by a fiat from the Chief Justice, or any other ci judges, and running into all parts of the King's domi' * :3 B. iuid A. 420. R'lO X cast reoD held I h- in: rAN'Ar)i.vN' c \sr. ly-tlic moans in.Ui, ^ol aforesaid t<» Vjir IS nt'cessary tliat the some sate cusrixiv iiiij him to\ an ;ic. of anil for tlio lu! jstcoiiveuii'Ht : aw rton (lid, on tli« '4 ird Watson in; niy ii liimin my i-u ivitli all possiblt ills-, on to be trans) 1 i\ these are the v ;>• ill my custody :;'ii t I am commai I. touney-Geni.'al oLi.ocK (SirF.V aiic , — viz. that a 'i ijH Habeas Corj^Mi ir' turiuible imme 1 • ie that the writ , ,u:: Ilobhouse*, ' »'- It tlie reasons I a writ of ri;.: to show a prt d.'ivit. At coi ' bo irranted i ' ml ess uj)on m mcellor indeed was always oj cstone's Comm lit, and theri : e Court of h ) durinsj; the . tr any other <• Kinj^'s domii )Y flie Kiuij is at all times entitled to have an account why le liberty ^>f aiiy of his sui)jects is restraiiuMl, wherever that fstraiii! m.iv lu- inllii'ted. If it issues in vaeatioii, it is luailv returnable belore the Judi^e himself u ho awarded it, id ho proceeds by himself thereon, unless the term should Itci voiu', and then it may be returned in ("oiirt." [11 is »r(Miip also referred to ('rowley's case*, where Lord Ehlon id much considered the matter, and seemed to shrink from jvini'- eountenanee to applications in Chancery for such writs.] Ha!>eas('vapus Act, 31 Car. 2, e. 2, only ai)j>lied to eases here persons were detained without Jiaviiio- beei: brought trial, and not wliere, as here, they were in rxeruthm of a liiteiice. Die statute 5G Geo. '^, e. TOO, commonly called 'r^eant Onslow's .Act. was intended to apply to cases where irties arc deprived of their liberty, by father or mother, and .es of that description. [(.\)LKHn)(ii:, .[.. referred to Expartc ]ieechini»; h where that lad been held to a))j)ly to cases of smuii^i^lino'. ] ijij.i. said that the writ now before the Court liad issued common law, and therefore any of the judges mi^ht issue it. The Attorn !,Y-Gi;.\ERAi. contended that it could not, be so anted, where parties are in execution of a sentence. The u if so i>sued, mij^ht not be improjier in the first instance, it as soon as the Court saw, by the return, that the prisoners re detained in execution, they would quash the writ (jnia ^kjirooide cmanavit. This was done in Brass ('rossby's case|. was then contemled, that in Crowley's ease Lord Eldon's I] session vas, that the writ was always issuable from the Oo ' 1 of (chancery, as that was ojp'-hta JfL^fitiw, but that it 0011 [ only issue from the common law Courts in term time. !> doctrine was indeed exjiressly laid down in JiacorTs lidgment, tit. Habeas ('orpus, B.'l (voh iv. p. 117). ** 1 lit it seems that by the common law, the Court of King's • 2 8\\uiisl..ri 1. f I Band C. 1^0. X ' \V. r>l;u'k>^ioiie, 764 ; 3 Wilson, 188. None of the reports of tliis cast' 'i'tir out the stutt'incnt. All tli;it appc^ars is, lliat tlio prisoners were roai; 1 !>!c(l. I'lio natural inference from wliieh is, that the returns were helii -'.uoil, and not that the writs were quashed. 1S39. V. HATe!n;i.iM)u. tyj Titi; v.v.^.ii>iAN (wsi:. 1h;{9. B(?iich could have awardcil it only in tonn-ti'ine; but tlin* Cliancevy mii^lit have done it, as well out of as in term, bc'. t,> ITKEN V. BAfcuF;i. *' that we are bound by a course of practice, which has now ti. in existence above 80 years., viz. since 1 7r>S, of granting wr. -iot Habeas Corpus by one judge, returnable immediate, and re!;!rn-fl5p||B u* t! able before the four judges. In the year 17J8, a bill was iMro* apj^i duced into the House of Lords, for the purpose of reraed, n§ /.! some of the defects then complained of, as existing in the iw tht ■• an^i practice of the writs of Habeas Cor|)us. I'iio lIou>:. J ride Lords at that time desired the opinion of the judgessl^, and s< en '^ out of ten declared that the practice luuv ol)jected tc 3« * legal, INIr. J. \^'ilmot stating that his mind was satisfied ; ;i abtti eighty years before that time the same practice hud beci iii *'<^' existence, so that we have at least a period of double that to warrant the course now pursued. 1 am quite aware we might be entertained by antiquarian researches, b) production of a quantity of writs not issued in vacation; it seems to me that we should be tampering witli that v. remedy of the subject, the writ of Habeas Corpus, if am . ci>i aiK ' I, * 1 I5lut. 4()0. t lb. GOO. + I'^- '>^~- § See Pavliiuntiilaiy flistovv, vol. xv. p. 898, et seq., antX WW Jiuignienls and Opinions, \>. 77. va (se and] vd 1 uniie> --^an bj fc, I oe hadi (il Habe ( oi least ; ruvis judge, .imii Coq^ pra thovgli the power fen on Ml a^ias ; - i S( t; the rilE CANADIAN CASi: n ;irne; l)ut tlin* tlie fl|t siiv tluit there arc abundant precedents to jiNtlfy tlic J«39. IS in tern), be- >, in IJurrow, v nr of this descri iti le imnu'diatt vi/. V. McadX]. y to answer ln; at the mornei .;,]1. 58,deli\'ere{l i: ti,o the common Iik - not, in his '• Ji.dg- e the point, T r ;nient of theC : tills writ sinu . ii said ids Lord i; .iiieli has now af granting wi lediate, audrci' ; 8, a bill was i lose of reraed , i, existing in the i\ TJie ITou- I idii't'sij, and si' ea I ol)jected ti' as J was satisfied 'ii cticc hud bec'i in " doubie that i .i » (juite aware 'i L'searches, b\ ill vacation ; ! ;■ with that \L: Corpus, if Avt niJK'tice, as one well established in this Court. According t(> y.-. 1 )()dd*s interesting account of this matter, in his edition of *^}ac()n's Abridgment'*, it appears that when the judges re copsidted in the House of Lords, there were included oiig the smen, C. J. Willes, and Mr. J. (afterward> L. C..).) ilmot: and Mr. .f. Foster, though he diil not iittrnd the rir.g on account of tht? death of his wife, was known to rtain the same opinion, and indeed he wi>hed to carry the ■'Iv siill further •]-. And Lord ^lansfield, wdio was a nd)er of the llou.se of Lords at the tim<', and therefore did pronounce any opinion anu)ng the judges, has left us the II < of well knowing wnat his o|dni()n was, by ihe practice afterwarils iollowedin these cases. The fact too that the bill |n i lit indued was dropped, furnishes a proof that the state- nt of the judges'' opinions was considered by the Uous-e of ds to be a sound exposition of what the law then was. Wq thcret'ore have no dilFiculty in overruling the objection." J 1. 1. ol>ser\cd, that the real majority of the judges was to tlirtH', inasmuch as Lord C'hancellor Harilvsicke (as iiirs by the debate) was evidently of the same opini(vii+. 'he Atjorney.-Okxeiiai. expressed his satisfaction at dt'cision, which had now set to rest the conflicting autho- s, and establishcjl the right of the Court §. X lb. hO\L. t>Gi{., and W il 1. 1, p. 140, Habeas Corpus, B. f Doilson's Life of FoNtev, p. (58. I !m.; nujorily of the Ju{l};es present v\ere seven ; Mr. J. Fo>ter, tiiouj^h I, 'a:is known tu be of the s;uiie (ipinion ; Lord MansCiek), by bis ut (see the canes in JJunow, supra) showed his opinion to be sitnikir ; >ovil lluidwieke ubjpcied to tlic bill of t7j8, on tlie ground tliat it was .osstry, as the coninioii biw gave all the powers propfiscd to Le eenfened (m:c Faiiiainentary History, vol. xv. p. 81)8.) He said, " Tliat he liili't d long been sensible of one defeet in tlic law with lespcet to the ii< Corpus, and wished it to be supplied, but that there u.is not tlie provision for it in the present bill, and that was a power in a 'tingle judge. inintT the vacation, lo enforce a spccih/ rclnni to a writ ol' Habeas Cot^ -raulod by him." His lordship intended by this to jioint out, that thoog] 'lie .\\ii\o(iiiaslio(l tor iiisutlicu'ricy *. AIiIkmii^Ii tlicy mi^l it" iiocossaiy would liorealttT, coiitfiid that tlic rt'Uini mi, controverted in ri'^ard to its alleiiati(»ns, and tiiat its stafi l)V atli d.t 1. rxii), ini<>"Mt he niado the snojecl ot pleadmj^- or dispnte hy atli yot, as tlio return seemed toll. em so l)a(i on liie tact; of it would at once apply to tlie court for the disciiarixe of Wat Ids eiiilit associates, on tiie gTOinul thateviMi if all tliestatr in the return were admitted to he true in fact, vniinioiis, have rocoivod or mav rei'oive his Majohty's 1«.'»'>. )>t <'rar'iou8 ituiiUm. iipoi) ce no means of tvansporiiiiu; hiicIi cori- i-rs to any of the jihicos appointed Ky his Majesty in council that hi'half, uilhont first l)rln«j;in^; them to lMii;lan(l;" and i- act accordin^rly proceeded to make provision for such cases. 'I hat statute clearly ai)plied only to '' convicted" jieisons. U''^ (> icn moved th -.wm L;-h they mi^i ;i! If rt'Uirn mi.' ;;i»i that its statiM i;i..| spnte by alii' vn the fact! of ii- Ui| irtre of Wat-^ni a:,; if all the stale)' f:i^M,;i ^i; vi- was the conviction here ? It M'usperhajjs to he said ;t, v«-t that it'o >5i^^»;it ;illhou<-h there was no conviction, yet there was some- ,cr in holdinir ilifi^^B^j,^ ,,,.,/;,,^,/,,/,/ {^, it^ JJut the court would not tolerate such f ^rumj)tion arose aii;ainst them; and they were as flail r as j)os>ible from that calm, ilecenf, solenui transae- iii open eour! before jml*re and jury, which alike by nuioii law and the 6th Geo. 1 \'., amounted to adjud'ca- II anroces.««, sli.ill I)*.' of any ftirco, nnh-ss iIum l)f ])roMnt sonio attorney on behalf of meh person in cn»>i !\, i'XprOKMly nafnet;" imj \vh(» is to Jilte.st llie e.xei-ntion. If then tlie conrt, w, < jealous of any tmflue Inflnenee (ivvr, or ij»;noi'ant coiuiuet p«?rson in prison, nierily dealing with a part of his prop' liovv innch ii\(ifv jeah)nH oiiyht they to be when tlie pri- was treinl)linL;- with the apprtdiensions which ini;^ht o|) the innocent in such a .situation, and wlien all the dae alike of an ij^norantor rash condncL of his own interests, ( undue innuencc upon him, were niidtiplied ten-fold! court, therefore, was bound to deal with the Provincial stii as an act repuj^riant to the well-l entrusted with only linuted commissions, which in pra expressly excepted the j)ower to pardon for treason or niu; The cotnt could not take notice of the extent of thi> vernor's powers ; for his commission was not before tin Hut whether he had the j)ower to j)ardon for treason ;. niiu'der or not, at any rate he could not exercise a fuuii; which was c\cn beyond his sovereij^n — viz. conmmte i punishment of death for another form of penalty. " The b of a freeman,'' says Lord Ilobartf, " caitnot be made siii to distress or imprisonment l)y contract, but oidy by judyir This princi})le was familiar not oidy to the English law, b law of every civilised state. It was oidy by judii,-mcnt o. thnt iviiiel )n.\ ( tht pi Ml' , a »0t iCj f(» • U. H. 2 Will. IV., s. 72. t Hubart, 61. lllE I'ANADI AN CAST' * Avlncli «'.X[ir< ^ly i>ntV»!SS jutltji' It, T or otluT «> '\f • unless llu'i !)t iMson ill CM^; !v lis riMim'st ; '' al till' eotirl NV. V i-jiiir comliK't I. nf liis |)ro|>' w\w\\ llu' \n'\ L'li iniL!;lit o\) II all till' dan \vn interests, « ?(l ton-ti)Ul ! ' - Provincial stu wise jH'ovisioi tivi', or at Ici' mess. lat tliorc had I that the g«)v. OH the i)etiti< lowevcr, iH)^' erei which in pi:' treason or niu xtent of thi- nut before t' 1 ft)r treason 'xercise a lim viz. conimuti' alty. " The i^ t he nuule mh' only by ./«":/'" Ln|rlish law, )) y judii'ineiit of coinmn tation hccame esta'ilislied as u nsefnl Mie. and its oxerc'iso probably liad bec(»nio frctpienl, alliMniL;h )t ii'-;ally enforceable in invitum, llie let;islature was resiiited to saiictitin its infliction conipnlsorilj henever thouijht IriiMe. At connnon law the crown w \)\v to conunute as to eiilorre the altered pnnishinenf, n .e criminal tluMmht .|t to dissent, and insist npon the oriL-inal penalty awarded to •' bis olfence hv the law. No doubt the idiosyncrasy must be very He ciiliar, which induced a prisoner to compel the jnd«r(> or ■^ow n to hanu: him, t»> whom they designed mercy, in substitut- is^ wiiat they mij^ht think a milder, but he a severer, punish- Ofeiit ; but if the prisoner objected to the proposed aberatlon of » Mi'^luneiu, it could not be intlicted. The fact, that in 1 I e o very case which iiajiponed. no such objection was made, lpi> Ml jtroof of the law. AVIiy should prisoners o])jpct to a I nation of their punishment. '^ * l>ut the <^reat jiriiieiples of aliieh secured the liberty of every freeman, were not tioyed, from the want of power or (lisj)ositioii to claim their ;c ",tly said, when resisting- the argument adduced in favour J rueral warrants, from the long practice that had innpie.s- Uo) liy pre\ ailed in issuing them — " There has been a gajb is^ion of guilt and poverty to power and the terror of pVjIi linuiit."'|- The return here alleged that the ])risoncr 'oil ,"7 to the commutation. But that assent could not alter the caJK hecause, according to Lord li obart, before cited, it was •I* 'lit iu-t;imes t(> that elleol \\,\\v occiu'icil. In the lsl\ol.. ji. 11^7, of Chfe st'diiioii of Sir Wm. Bl;ick^tu!if.''s <.'()iMinentaries,llit'ro is this note: — **T© : cr-oiis capitally convicted, the crown iVeciiioully onVrs a pavduii, upon c«ldi.;i)\i of tiieir bciii^ tran-^porteil for lil'e. Many liave at UkI rejected thlij.;acioiis oirer; and Ukmc have been one or two instances of jicrsons so d«q^Mte as to j)cr.sist in the refusal, and who in consequence suflcied tlie eaiftuuon of iheir sentence." t Entiek i\ Cuiiinglon, 19 State Trials, p. 10G8. HvK-liKLnOH. 4f) 'IIIE CAN Am AX CASE. Ql'KKN r. TjAICUiriDOH. i i not l^y contrarf. but hy judtjmmf., that a prisoner must bo |)Uiiislio(l, 'I'lio only authority bv which tlio crown coi;!/ commute was l)y tlic common law. It could not possiMv rlicrcfore substitute a |)uni>.ijnuMit unknown to that law. ! ;,it transj)ortatiiin was so unknown. " lv\iK> or frans|)ortati( •)." says Hawkins,* " is a sj)ccics of j)unishmcnt unknown to tlie common hiw of Kn^huul, ami where it is now inllic.d it is either by the ciioicc of the criminal himself, in or(U;i to escape capital ))iMiishment,-f- or it is imposed by the expif'ss direction of some modern act of parliament; for no jtowcinn earth, exnpt flu- (uitlionti/ of pnil'nnnf}it^ can send a subjet af I'jii^Iand, not even, a vriiu'nutJ^ out of t!'(^ land (u/dinst his /-iJl. The first iritri*duction of it into our law was in the reiiiMOi (^ueen Klizabelh. l^ut it seems to have taken phice mm )u?arly as now practised, about the time of the Ivestoration.' The practice boiran shortly afrcr the plantation of "r American Colonies, arul was probably sucji^esled by the v. iii; of labour in them. In Kelyno-e's]; llej>crts, (H)()5, temp. < .i', II.) there is the fwin^- report : — "At the same sess.i^nN one Kdward Parrett was in the place where the |)risoi ,1 were to stand at the jraol delivery, who was in for nnirfhe: tr which he had afterwards jud^-ment, and when he was there, "le .John Cojielaiul, a Scotchman. l)ein{r in very g-ood clothes, w :t in thither uiuler colour to sec him, and watchin«i^ tlie time w'fJ the kee])ers were busy, he opened the little door, which .ii bolted, and went out, and Parrett, the prisoner, followed !;i and they both went too-other out of the yard, and run d rl by-allies into White- i'ryers." Copelaml was found f^ui!' i\ rescuinjr Parrett, "and on his request, he being- to clergy, he was allowed to be put into the kini^'s pardon, am. those prisoners of that nature who were to be sent beyoii' sea, if lidvlnfj hrcii, hifrh/ used, that for felonies within cl- ifthrprisoKtr desire it, not to give his book, but to proc;, conditional pardon from the king-, and send them beyon-t * Pleas of llie Crown, vol. i v. p. 207, cap. .'^3. A passage to tin effect is in 1 I>l.ick. Conmi. jv i;t7. And see also Co. Litt. \'V,) a. t Of course he means wlarc the prisoner does not dissent. J P - 1 !u. I ANADf.w" r.vsr isoner must ho ;» crown coiiK! (1 iiol jiossl'i'v that law. ■ '..if trans|)«»rtati' 'v" nf; mikiiowr. lu is now intlic'i^d, self, in or (It; I to [ by tlio o\|»M.'ss for no power on [Mul a subjiH of (u/uinsi /lis '(//, s in the rci;^- 10, ikon place more J Hohtoration." lantatiou of 'Mir ■sled by the v. m; ;ifi().'3, temp, y A'. V same sessbUN ?re the prisf>i •« n for njurthe: |jr he was there. "M rood clothes, w-*. \\(r the time w't^l door, which i ler, followed ' i d. and run fy-*"] as found ^n\\' i\ being to '•>''| pardon, anil' . >e sent beyon<' A es wirhin ch".".;| , bur to procru' I hem beyou'l )iassap;c to tlu s Lilt. l.'Wfl. ili^sonl. X ^ - b> horve five years in some of the king's plantations, and then » have land assigned them there, accordijig to the use in tliosc i)l.a)tations, with a condition in the j^ardon to be void if they ilon^, u-'ade at the Old Jiadey, in 1()(M, are reported, and unongst others, r. 12, '^ That !«nch prisoners as are reprieved, iili intent to be transported, be not sent away as per})etual 5lave>;, hut f/po/i iiulruturoi betwixt them ajul ) articular masters, h) serve in our I'.nglish plantations for seven years, and tiie ^iircc last to have wages." This regidation and report show lire origin and extent of the practice, and that the connnutatiori /as ro/intfarili/ acceded to by the ])risoner. In Uoger North's Entertaining biography of }iis brother, the Jjord Iveeper (iuild- lordi, there is an amusing accoinit of the manner in vhieh this t <) Mavo e»l., vol. ii., p. 'J4, >])tiikiii^ of .leflVies, lie says — " Thoro is {\c hriiiK li di' tlial chiol''.s cxjunlitiDH in the we.'.t, uliich is lii.s vi^iliUion of lie '-ily (if Bristol, ihat hath some siiii;uiariiits, ol' a naliirc >o stiaiif;c, that fhn.k iht'in wuilh iiiv lime to rolale. There liad heeii an iisaue anioiifr le a"(l mien and justices of tlie city (wlicre all pciSDHs more or less trade ;ht Amcrieaii j)lanlations) to euriy u\eY crinuiial>, to/io were pdrdauvd ^il: (■■imlitinn uf fitni.sjior/atidi/, and to sell them for money. This was kii 'I 1 1 he a good trade; liil not liiiij; eoiilinl to take such felons as were ill .' at the assi/es or sessions, ihiy found out a shorter way, which leiiUd a greater ])lenty of the coniniodity, and that was tliis. The mayor ni justices usually met at their Tolsey, and there tiicy sal and did nistiee •iiiess. W hen small rogues and pilferers were l)roup;ht there, and upon catiiiiialiuu jmt inider terror of heiiiir hanged, in order to which miltiniiises IcK niakiiig, some of the diligent olHcers attending insfnirted them tn prai/ sj,>'ihilii:)i, as tiie only way to save them, and for the most part thty did riien no more was done, hut the ne\l ahlernian in course took )! ;ii.ii another as their turns came, some ((uanelliiig whose the last v\as, id sent theiti over and sold them. This trade had heen driven for many kaiN, and no notice taken of it. It apj»ears not how this outraLieous jj'iuee eanie to the knowledge td" the Loid (hiet Justice, hiU when he had ^Id of ilu: end, he made thorough sliteh-wnrk with them, for h<; delighted s'.ich Inn o[ii)ortnnitic-, to rant. lU cinie to the city, and lold soine that '•(hi hmui-Jit a /iro'iiH f. 48 TIIK CANADIAN CASE. 183D. QnoKN V, Batciifldor. Tliirtl olijec- practicp 'ia(i beer, abii'-c'd in tlie city of Bristol, It was 'Jieu rvirlciitiv recent At common law, therefore, the crown c hid not, eonnmire in. invititm, for the pitni.shineijt of trairsportatii :i; a fortiori, a j^overnor. Jiut tiien it was said that he had :,:i. thority by the Provincial statute. 3(lly, That statute, liowever, could not authorize hii:. to tion to return ; kt i • i i i i i i i i i . I'roviiicial Art transport. r>Ti)thin^ could be clearer than that a local Ul;is, inoperative lie- lature and local ij^overnor could ord\ exercise authority wi'iiin their own province. Jieyond the limits oi that locality niev were powerless, and must be treated as perfect straufrers. .\nv attempt to exercise the authority of i>;oveYument extra jm tfrritorii, was merely void and nugatory. The princip' of civil law was clear and fouiulod on reason : " Extra territc: irr' jus dicenti imptme noii paretur*." The governo/, thcretre, without the authority of the Provincial statute, would be ch ■ ly exceeding his powers, in pretending;- to hold any prisoner in confinement i ■. any ])lace beyond the limits of his own provi' je, Besides, heie the pimishment in one case was transporta an for seven years, "after the arrival*" of the criminal in »aii Diemen's Land. Put that was clearly bad, as niakino- -h. ptiriishment capricious, not rei^ulated by the decree of i^uilt. ■ ut depending on the accident of winds and waves. This was clc Iv bad. Tlie local legislature of Upper Canada could no ! ire infringe the rule jnst cited, than the local governor. Tiie 14 G.3,c. 31 . which established the present government of Caii.iia, empowered the local legislatures of tl»e two provinces ' to which Canada v\'as then for the first time divided, to pass for the good government of the provinces, " which sha! binding and valid fcitJiiii the province in which the same - have so passed." Put that gave them no authority to tr port. Panish indeed they nught ; they might puidsh with ralina: iind staring, as his v/.iy was, never left him till he nuuii "J quit the lioiich and oo down to the crinuJial's postal the bur; ami m the mayor hesitated a little, or slackened his paee, ho hauled at him. i"i stamping, ealled f(>r his f^uards, lor Le uas general by commission, i ''ii' llie citizens saw their scailet chiel' magistrate at the bar, to their \iv.Mi\ terror and umazcment." .... * Dig. lib. ii. Tit. 1, s. 'JO. And see Burge on Colonial Law, vol. i. c. I rUE CAN API U\ . to Of KEN V. Hatciieh^or. Il-avv, vol. i.e. 1 pirsou who sliouhl attempt, > )ntniry to their rlecrco, to pass isr>i). liiilo Canada, but as soon as an person, criminal or not, liuU jjroae beyond the coi. fines of their state, their arm w s jiovverk^ss to iiokl him ; untl unless expressly sanctioned by an aet of tlie imjiorial !e<:^islature, all proceedings of detention were illo-al. [Yet such was tlie power atVected fo be exercised by the U lo\'crnors of Upper Canada and Lower Canada ; the last )i 'vliom, according to the return, affects to possess the ri ni to Liverpool, where they are again, by this trans- iiiited irtuc, claimed to be legully confined by the gaoler of tl.at town. A pretty chain of illegalities ! Not only, bow- er, \. IS the power exerted in this ease utterly beyond the 'lioritv of the governors of L'pper and Lower Canada, viz., j);iss c.rfra fincn. but they had even gone so far as to invade L.oth-.M- jurisdiction. They had affected by this act to come iitrn/iiips of another government, and that even of the parent it. ire. But surely, as soon as the prisoners became amenable r.ntilish law, by landing on the English soil, the authority Provincial Governor necessarily ceased ; otherwise a lU, of judiciitures and laws would ensue. Canada was, in r.oiad.i a I .• . \i • *. r • ^ i 4. 1 i. 1 1.1 tuiciQU Stale ;]:iri-.)n to this country, a loreign state, at Icust as regards the ^ [unishment of criminals. In that sense, and for that purpose, ir C onies were as completely foreign as any Independent iliti.i. And it was a well-known rule of law, that no country mid take notice of tlie criminal law of another. "Penal i\v> of foreign countries are strictly local," said Lord Lough- jrougli, in delivering the judgment of the Court in the case of lolliott r. Ogden*, *• and affect nothing more than they can |ach, and can be seized by virtue of their authority : a fugitive ho passes hither comes with all his transitory rights, — he ly recover money held for his use, and the like, and cannot ajfdftd in //' abroad irregular, t!,; had been treated throughout in th( arguments and drciv , asfurciiju ; as in the case of Buchar ui o. liucker ^, on a ,. li,. ment of the Island of Tobago, and in Bec(juet i\ M'Caitli,^ on one of the Mauritius. IJy the 11 (». IV., audi \V. I\ c. 39, power wai .'xpressly given to the two colonies (»f V Diemen's Land and New South Wales, to detain the i idis transported respectively to each, and escaping to theetii . Such an exj., ess enactment clearly showed the state ol law before it. WitJiout that statutory power conferred b im[>erial Legislature, the felons - f Van Diemen's Lar not have been detained by the governor ' '' New ^ t Wales, and vice versa. But this ]>oint had been ah. decided, by a recent act of the legislature, viz. the C. ui Indemnity Act. || For that st.itute was passed to ind, n all persons acting on the Ordinance of T^ord Durham, -ifi in June 1838, in consequence of its illegality, arising irui: its affecting to deal with persons in Bermuda, over MJiiciif colony Lord Durham had no iurisdiction. There a.' other objections to the Ordinance uiuioubtedly urged, lu although various opinions existed in regard to those ( lif objections, > t upon this, the Members of Parliament 'ii? unanimous, imu the ordinance was clearly illegal. '-orii Durham had affected to exercise a power of transporting - /« Jines, which no governor, not even if invested with such po\ieni| as those conferred on him •^, could lawfully exert. Sir .'oh Colborne had committed a similar excess of authority, am i^ Courts here were bound to treat all proeeedings ground. ' I'S • :i- td hy the House of Commons on 11th February, I S3?), jCorrespon- •lonce dative to the affairs of Canada], Lord Durham expres.sly says:- - '' Th^ . onsiiiiited authority here was the f^uvernor, who, under the sanction ■ 1 ' fii laluve of Lower Canada, cchuyed them by means at his disposal erniudas. TItcre (lie jn)wer of the Ic^ixlnftn'c of Lotoer Canada and rt iirmor-Qciier,';/ cx'ased. If was perfectly well nnder-slood here, i:i (he imsJh ^ (ft/ic Ordinance, that there was no power in this legislature to pass anil law ^ which could he binding in the /Jcrmudns. It was foreseen that the ;j' vernor , vol. viii. octavo ed. p. 01(10- 1 .J And the Attorncy- L't^iuial said, in reference to that part of the Unlinance which referred to ^•nding persons to Iknniula and keeping them there in restraint : "This »iiliiui!iee was a legislative act, and as a legislative act it could have no ojucr or operation bei/ond the province of Lower Canada. The Earl of D iil.ini was governor of the whole of the British American colonies, but his Bgislalive power was confined to Lower Camula. This being a legislative |et, it could have no operation beyond the limits of that jirovinee; therefore, liliioiil hesilalion, I pronounce my humble Oj^iniou to be, that that part of 111' ordinance exceeded the auihoiity of the governor and council," [.Mirror If I'.ul. 1 838, Aug. 14, vol. viii,, p. (5271, octavo edition. And see also to ji- sinie ellvcl, ll,^n^:ard^s Purl. Deb., vol. U, p. 1080 -12G7.J E 2 V. ll\icuiii.Doa. T2- -a-a-SiTTT THE {' ANADIAN CASK. 1831). QuKKN y. Batchici-tjou. 4tli o1)iL'('tiou [o rctuiu. Transpovtutiuii illctrrillv '"s- dueled. traii9portati(»n was in its inception not linlawfiil, yet ir.i conduct and carry in;r on vvtMc clearly so. '^y wluit autlioi ly (lid tlje e^uvernor of Lower Canada alTect to interfere • ui authorise Captain Morton to bring" the prisoners to Liverpotx ? 'I'ho gaoler tlioacrht fit, indeed, on this return, to aver that it was inalrer of necessity, that they should be so dealt widi. l^.It surely tliere was no clear and obvious necessity lor bringing men sentenced to transportation from Quebec, round by Kngland. ilie ready statement of the gaoler was ag lin at hand, that it seemed fit to the (^ueen that they sho-ild be brought to Liverpool. Hut how could the gaoler of Liverpool, by possibility, know any such intention of .lie Crown? IJesides, it was a clear principle of law, ti ' '•■' intention of the Crown could only be signified by some d u- ment. Lord Coke said expressly* — "The King, b.* a bodv politic, caniu)t command, but by matter of record, nr 7'(;x prcpcipit^ and lex prcvcipit^ are all one, for the King n '.«t command by matter of record, according to the law." 'fit law was most jealous of any invasion of personal liberty, . o expressly recpiired tliat it should only be efl'ected, as it m\:M be ascertained, by some written instrument. A warra.'* wiis indispensable in all cases to justify restraint, unless fr i the (»verrulinir necessity of the case it could not be ob This jealousy of the law was extremely wise, and she .Id not be relaxed but maintained in its full vigour. There c< ild not pos»n)ly be a greater security of personal liberty, tiiin the necessity of justifying restrairit by the production of some warrant, whenever that restraint was inquired i: o. Sir William Blackstone said expressly f, " To make in ri- sonment lawful, it must either be by process from the Co; is of Judicature, or by warrant from some legal ofllicer, ha\ !'^ authority to commit to prison,— which warrant must be in writing, under the hand and seal of the magistrate, ;in(l ex})ress the causes of the commitment, in order to be exa- mined into, if necessary, upon a Habeas Corpus." N<'\v, « 2 lust., 18(i. I 1st vol., i>. 130, CommciK. ^ H.\rc!u:Li)oa. hvro tlte prisoners were not (ietiiiiu.'d by any process of a ''^•*!'- Coiirf. and tlierefore there must be a warrant in the pers(tti claliuiiij; to Ji(»hl tliein, to authorise their ijnprisoiinioiit. The Wiiirant rc.'err* d to in the relurn had two incurable vices. It wa^ iriven by a person haviiij;- no aufhority wliatever, viz., the m'vernor of Lower Canachi, — and it had not the sH^ivtest reterence to Mr. Batchehlor. It was directed to "such per- son or persons as may l)e hiwfully authorised to receive the >anie." But there was not tlte sli^litest allegation in the return to 'lio'v that Mr RjitciieWor had been so authorized. Anil lastly, the return was clearly insu.Ticient, because it cnh ohjci'tion iiid nut set out the various documents neeiiful to make tiie ni'['','',\"^,^t„iit V lurt see that the restraint of these prisoners was justiliable tltt- clocuuK-nt.s. by law. The gaoler of Liverpool took upon himself to .say, hat they were detained by the legal operation of cenain :ns(ri ments, to which lie generally referred, without giving the least si)ecific statement of their contents. He told the Cuuri. that there was a petition confessing guilt, and pray- *!iw commutation, and that there was a pardon on co' dition of u. asportation, and a warrant of the Governor of Lower Canada- l)i(f it w'dii for the Court, and not the gaoler, to judge how far vuch documents were of a legal character, and to what extent tilt V justified the detention. The principle of ihe writ of Habeas ('or|ius was this — that the Crown, through its judges, was entitled to know why any one of its subjects was held in cus- tody by any other — and for that purpose it was essential that the instruments on which the imprisonment was claimed to be juvrjlied, should be laid before them, that the?/ might decide whether the legal elYect of that instrument had been perverted or mistaken by the detaining party. The lil>erty of every l.nglish subject was secured by this necessity. To permit the person returning the cause of his imprisonmejit of a party ajiplying tor the writ, to state summarily, what he chose to give as the legal effect of judicial proceedings, was to make him the judge of his own case, and to deprive the subject of the j>rivilege of having his cause determined by the Judges of the land. It was against the principle of the writ of Habeas li in TMrrAv.vi fff lN')f). r)ATCIIEIJ)Oa. Corpus, aiul was contrary to tijo wliolo current of aiitliorit;^ . from tlic earliest times, when tliat great remedy became 1 qncntly resorted to. The whole line of cases was consistc .1, and distinctly established that wlien the hiw rccjuired writt n instruments to justify the detention of any person aj)plyinj^ i ir tlie writ of Habeas Corpus, it was imi)erative on the partv 'o whom it was directed, in the return clalinino- to show the caic of the detention, to set out tliose instruments in licpc ve?. . for the examination of the court.* Tliis ]>rinciple was clca :v laid down by that great constitutional ,Judi>^(^ Sir John Vauajli; ;i, in l)UshelPs casc.f l^ushell was one of the jurymen on !;> trial of l*enn and INIead, two Quakers indicted at the Sessi. > in London before the Recorder for seditiously preachin' Sessions. fJusliell was brought \i\> by Habeas Corpus, n:ai the rrtnrn stated the order of the Court, which al'eged ti;at liushell and liis fellow-jurovs liad fouiul their verdict "coii'ia plonani et manifestam evidentiam." C. J. A aughan says— " The writ of Habeas Corpus is now the most usual rci M^(|y by whicli a man is restored again to his liberty, if he have [>■ ii against law deprived of it. Therefore the writ commands tjie day and the cause of the caption and detaining of the prisoi "r to be certified upon the return, wliich, if not done, the Cr irt cannot possibly judge whether the cause of the comniitni ;,t and detainer be according to law', or agninst it. ThcreJi re the cause of the imj)risonment our/ht hij the return to appear 1^ sjiecijicdlh/ and certambj to the judges of the return^ as it . (i appear to the Court or person authorized to commit, else iie return is insufficient The Court hath no knowk ii^e by this return whether the evidence civen were full and maiii- fest, or doubtful, lame, and dark, or indeed evidence a^ ail material to the issue, because it is not returned what evid .« in particular^ and as it ivas delivered, was given. For it is uit * Of these cases, R. v. Clarke was the only one referred to in tlu' arguiui'ii | in the Queen's Ikncli ; the rest were only noticed in the Exeliequer. t T. Jonr^, !;i. Vau-han, in5. G Howcirs State Trials, PO'J. " llll t.iN.UJlAN (ASI-. .sxiMi' to jtid^c ot" t!i;it rijf exposed at all to tlii.s Court, luit the judmni nt upon the ourt ot vSessions upon that e\ Idenee is oidy exposed to us, 1,0 ti'ij us it was full and inanifest. HiU our JM(li»inent ouijfht [o \>v uruled upon our own inferences and nn(ler.Hta»idinu[s, .1 not upon theirs." In Thornlinson s ease*, the reiurn was IK id insufficient as being too jrenerul, for not specifyitig the Miisf or matter on vhich Thotnlinson was examined, he having i)t'in eonunitted by the Court of Adniirahy for not answering |lving, that '' when a commitment is in Court to a proper icer there present, there is no warrant of commitment, and * 12 Co., 104. t Cio. C?r., 557. t I Vcntr., 33G ; and see Rudyard's case, 2 Vcntr., 22. |§ Carthew, 69, 75. || Salk. 349. Coiuyn, 24. 12 Mod., 114. is;}!) (jri:i;M M M't!il[.(.llll|(. ' li I UJU ■■■■■■Ma I Hi, (ANA 1)1 AN CASK, 183!). / , lUjciuj.uoii. therefore lie cannot return ;i warrant ///. Jure verfjn, but , k rettirn the truth of the wiiole matter under peril of an aei.. n, but if ]ie be c(tinn)ittcrl to one that is not an officer, as in 1. case, f/irrc must he. a warrant in xL'rU'nu/^ and when there u //*, it must hr returned^ for otherwise it uum/d he in the power of ,*/* (/ao/er to alter the ca;u' of the jirisover^ and mahe it either heti -or worse 'loin it is upon the warranty — and. if he mai/ take upon i,n toretur)t what he will., lie makes himself J ndf/e, whereas the ( i,t nuf/l't to jiidt/e, and that upon the warrant itself^ N(»r was tiiis the doetrine of old casrs, but wjis expn >: sancliojjed by three very recent decisions, viz. Deybel's c:i^-, Soudcn's ca^je,*}- and Nasli's case. % TJjey were cases um iir the acts for prevention of sinui>ii;linuf. Deybel was arrested f n board a sinufj^i^lini^ vessel, under 5\) Geo. HI., c. 11^1. which makes sinuot^iin^ vessels liable to forfeiture within • ',r leagues of that purt of the coast of (Jreat Jiritain between ti North Foreland and lieaehy Mead in iSussex, and allows ;::. subject on board to i)e impressed for the navy. The retur.M ij a Habeas Corpus ori his behalf stated, that the siiip was williiii eight lea;j:;ues of that part of the coast called Suffolk, to wi'.fili Orfordness, in that county. It was held insufficient, as • • court could not take judicial notice that Orfordness was uni between the Foreland and IJeachy Head. Bai/le/f ./. statin^ that "in these cases, the greatest certainty is requisitf . ' the court must sec distinctly that the party who is broug! • ii; is justly deprived of his liberty."" And Best J. saying, it ougidto appear on the face of the return, that the case is brc > li: accurately within the provisions of the Act of Parliam ;: now that has not been done here.'" In Souden's case, then nm stated (hat a smuggling vessel was found at the iish-ma' i :t. within the limits of the ancient town of Kye. The « < Tt thought the return bad, and discharged the prisoner, as ii was quite consistent with the return that the vessel might be diawL up on land, wliicli would clearly not be a case wdthin 'le statute. In Nash's case, the return stated that the prisonr ■•& * raaiul C, 215. t lb., 294. t lb., 296. nil. 5 A IM \ .N I AM crirriod hoforc ft majiistnito, wrulor a? Geo. III., c 1«7, s. (J, Ih.j'.;. uiid " upon (liio pnjotV' ('ounMitti'd. It was licld insiifficiojit, i'lhoft C. J. i>l)Mcrvi!i^. '* This Act of Parll.iniciit is one liiirlily j. " borifficial in prevent in<»- frauds upon the revenue ; but ar, the '^* '' I .A .\ I. A*' 1- IH.UI. r. li.vntn.i.Dou. lliroii^li the jrovornor (if U|)j»»'r I'aiuula, had I)*- ii jLjraeii U fxirudcd to tlinn : ami now tlu'y llumj^lit, |if to dissent In; tluit very sontpnoe for which thvy had |iruy(»d. liiif \f .hs U'^ally enforccuMe against tijrm, ovrn in invito^. 'L'hc I'r.Aii couUI t'omuiuto at common hivv, even Ix'i'oro conviction, our form of punislnnont for any lesser |)eMalty, ntn <'X|)ri'->l>' repugnant to law, a«i, for instance, rnutihiriun, N(» doui' . t was beyond the power «>f an innocent person to subject Jiim olf to piinishnicjit " by contract;'" but where hiirh crimes had I th confesscfl, the cu)wn could substitute a lesser punishment ; liis Majesty's great vigilance apprehended, many of wlio;i> conscious of their guilt, have by their petition implored > Majesty's mercy, upon condition of their being transported fn some of the British colonies in America; and ihat his Mi- jesty, out of his great clemency, hath been most gracion iy pleased to grant his royal pardon, as well to those tried .iiiii convicted, as those who, by their petitions, have acknowledL?^ tlieir guilt, and im})lored liis Majesty's mercy, as aforesiti "' lUrtHKr.n Ml, 1 f, uroc«'L'«lc«l t»> iMifort't' the j)ai(loiis so p;ranttMl, l)y irHposiutr 1m:J!». .e iiciialty otiloatli on all wiui should return from lransn<.rtu- l,»n witluuil license, or go i»Ut) Spain or I'ranco. A hiinilar •(»ur>o \va^ pursued in tlie Irisli rehelliou of 17!>H. 'I'he Irish .\cl, ;]H rioo. III., c. TH, recited that, ** during tl»e wicked iM in'. lion, several jiersons found aclinjr therein, have heeii ipprehcnded, several *>( whom being conscious of their guilt, iiuve expressed tlioir contrition for the same, and have ini- Liort t1 his Majesty's mercy, that lie wouhl he graciously pleaded tt> order all further proseciition against them to cense, and to fran- Ids royal pardon to tluMn au conditi^ni of f/uir hainr/ \rnm'n>rtal, hanislu.'d, or t \iled ;"" and it )>rocoeded to irdlict the I enalfv of death on all who should vicdatc the eonditiorj, and r»'tuin wUiioMt license. 'V \c power now contended for, therefore, was one which jiul trecpienily been exercised l»y the crown, and had been .pressly sanctioned by the legisl.iture. liut if the condition riis void, the pardon also was void, and then the prisoners le.si submit to the penalty awarded by the law to their offence, '-. death. A-; to the objection, that tins court could not take notice of >reii;n judgments, and that penal laws were strictly local, the isworwas complete and obvious — that Caiuula was not a >'e!;n state, but a colony of England — a part of the iiritish Tipire, and the courts here were bound to su[)port their fdicial proceedings. The cases, therefore, of folliott r. k^dcMj* and AVoolf v. Oxholm,-|- were (piitc inapj)lieable. It las mmecessary to discuss the power of the crown at common to grant such a pardon as the present, because it was not virtue of any such power that the pardon was sought to be )hctd. For, 3idiy, the return justified the pardons, under the Pro- mi,i (.hjoi'iion. icial statute, 1 Vict. c. 10, which it was clearly competent '''■f^^>''i^^»''l '^^'• tlir Canadian legislature to pass, and which expressly con- red on tlie governor and council the power contended for, Id on which they had acted in granting the pardons in ques- M H. Blue. l.'J"». t 6 M. and S., 9{). --— i: TMW1 1839. QlEEN V. UATtllELDUU. ' 5 ■ i ' 5 tioii. That, statute was conclusive on (lie subject. It miv j)asse(l by the leg'islature, established by the acf, Jil Geo. J II e, 31, wliicli authorized the passiu<( of any acts iisseuted tt» In tlie crown. It was an act of the greatest mercy, and v.-. as had been contended for the prisoners, an act of harsh iiv and oppression. So far from beiny^ rcjuio-nant to the hiwsi, Eii}j,land, it wascpiite consistent with them, and was based (;u mildness and humanity. It recited tijat there were per.-.oi concerned in the late insurrection to whctni the lenitv (' government might not improperly be extended : ami .'ic empowered the lieutenant-governor of the province, willi tl. advice and consent of the executive council, to grant apu.'\: before arraignment, on such terms and conditions as irj''. appear proper. Although, as before admitted, no person c!uii,i voluntarily subject himself to mutilation, yet surely it wa.s v.y'! local legislatures. "^Fhe Imperial Parliament had notauUi any such trans|>ortation before the .'3 Geo. IV., c, 84, b\ express statute. But tuc 5 Geo. IV., c. 84, contaiiui' statement of the legislature, that ^' laws were in force" t effect. The ''(Muhision was irresistible, that such laws ii be Provincial, aiul now they had received the express sa; of Parliament. The practice had continued for a long ) i uninterrupted and unquestioned; and it would be mos: gerous for th(> court to hold that all the sentences of tran-. tion from the colonies, which had passed during so many were uidawlul. The first Transportation Act was 18 Car. 11., c. 3; » .v authorised transportation to be Inflicted on the moss-tr- , ' of Northumberland and Cumberland. The next w 2*2 Car. II., e. 5, s. 4, which authorised the judges to tr. persons convicted here of stealing cloih from the rack, : enibe/zling Jiis Majesty's annnunition and stores, 'i ' .'. Car. II., c. 7, s. 4, contained a similar pr(»vision in the - -. j those who maliciouslv burned houses, stacks of corn ai.n a? or killed or maimed cattle. I'hese were the only acts '.t> the Habeas C'orpus Act, which, in the 14th section, coi' ::.a. a proviso that the preceding provisions against illegal * soimient in foreign jails, sht)nld not extend to cjtst»s of f .d praying in open court to be transported. The next ■ ...j:* on this subject was 4 G. I., c. 11, wiiich, for a long peri >!fl the chief statute regulating transportation. It authori. ■ .i transportation to Anierica of felons convicted here of r. ''cr and larceny ; and contained many provisions directing tlu lo of conducting that punishment. 'Jhisact was confirmed an Mfi !li themselves, according- to the condition of their pardon, '(•fiirned before the expiiation of the tern) of transportaiion. Vlienthe American war broke out, it was necessary to make .t'i'. arrantjements in relation to transportation ; and to meet the ir. red state of thini(s, the IG G. III., c. 4,'), was passed, which ! ttstablished the Hulks as a plac<* and mode of punishment. : WIS shortly followed by the I!) (1. HI., c. r>4, which was the ^( Penitentiary Act. Then came the 24 CI. III., c. 50, con- ;;'llitl^• a variety of rej^ulations in reference to transjiortation. t \.as under this art that convicts were first sent to New South \ .ilos. The 25 G. III., c. ;■)(), was confined '(>.) Scotland. The Mr. III., c. ir^G, superseded 24 G. III.,c.5(). The oO G. III., . 1 Vl, estal>lishcd a permanent Penitentiary. Then came the Ij ij. III., c. 101, which was the first act in which transporta- »M Ironi the Colonies was mentioned. It provided for the ijiri^onment in England of convicts adjudt^ed to transportu- oii l»y any Court in any part of His Majesty's dominions }oiid Kn<>-land and Wales, and brourted : and it contained a recital similar to the 17 c. of .') (r. l\'., c. 81. The 1 and 2 G. IV., c. 6, continued f -A) (;. 1 1 1., e. 27; 2a G. 1 II., c. 4() . .>9 G. III., c. 101 ; 28 G. I., t . -4 ; and '\S G. 111., c. 1.5. And that statute was followc d lilt' act now reo-ulatintr transportation, the 5 G. IV., c. 84. insi' were all the acts relatin^i; to tr.msportation passed by the )* rial Parliaiuent ; and they contained no express power the colonies to transport, but two of them impliedly recoe^- ks(l such a power by providing; for the detention of convicts liarisportcd, and in the course, of transit here. The pardon, crciore, would have been good in Caiuida ; and, if so, all jis subsecpiently taken in execution of it, must be erpially ;!. The prisoners were here in such execution, and the 'lit could not discharge them. They were in transit to ii ilestination. The Crown, by its prerogative, had the vt r ot carry ir-ig into efi'ect the sentcMice, when the crimiiuil left the colony, \\ith respect to the late Indemnity Act, lH3f). QlKEN V. Batcheldor. 1 I i 1 >i. ,^^ im ^- AS! 1839. Queen f 4tU olijcction. r'ondiut of the tiiiTispoiuiioi). referred to by the counsel for the prisoners, the ground.- > / the illegality of the Ordinance were not declared in it: an',' tlie real reason upon which tliat Ordinance was declared iriv;ili;l was, that it committed the great injustice of condemning '" . persons describid in it in iheir ahsence, unheard. liut llion, 4thiy, it was said that tiie conduct of the tri-.ns- portation had been irregular and unlawful. Jt had been con- tended that the Governor of Lower Canada had no right rj interfere. But having established that ihc sentence »va< legal, it followed that, all means necessary to carry it i iK. efl'ect, were also legal. It was expressly averred in fLo return, that there were no direct means of transport t oi;; Canada to Van Diemen's Land 'J'hat averment must iion be taken to be true. How was the sentence of an in'nd province to be carried into effect? It could only be don;' hy the Executive Oovcrnment conveying the prisoner from nuc to state, till he reached his destination. Here the prisoners l.tad been sent to the sheriff of (Quebec, the convenient inJ proper custody for the purpose. They were in executi i n; a lawful sentence, which could oidy be carried into effccl the intervention of the executive aiithoritv in the intc; • diate states. And therefore the (Governor of Lower Canad;. wh\ j)erfeetly justified — nay was actually bound, to interferi" It had been said that a warrant of committal was necessary, bii; no such instrument was re(p»ired where |)risoners w^ere in r m- fioii. In the passage referred to from Hlackstone's Comnvnfa- ries*, it was expressly said, that no warrant was necessary '. \m\ persons were in custody under process of a Court. Hert tlie })risoners were detained by virtue of proceedings iantai!:miiii to conviction in Court. They were in execution. [k\ j>roposition contended for on the other side, that a warrarr was necessary in all cases M'here it could be obtained, was too ndf One excei)tion could be fouiul in the very ease mainly relied on for the prisoners, K. v. Clarke f, viz., of commitmei i m contempt; in which case the authority was express, t 'aial W'Ci'- inct 1 Vol- 136 ; see ante, p. 62. i 1 Salk. 34!) ; ante, p. .')4. THE CAVADIAN tlie linijfs tantanioiiiii xecution, IV at a war r a It wi«| ed, was too nde ise inainly vcliw connnitmc! 1 m express, t'atJj \V.) ; ante, p. .'^ (^1 FKN V. IIatcheldor. •M vrant was not nee hOf out (lucu- otlv r documents. lint it was clear, accordiiii^j to the authori- mtnts. tie.>, that the roturn was quite precise enough, it related the uliolc truth of the matter, and conveyed sufficient infor- ina'i'ui to enable the Court to see the grounds and validity of tlic detention of the prisoners. It had been said, in another pair t,i the argument, by the counsel for the {)risoners, tliatthe ga«/Icr was necessarily ignorant of the eircuiastances, and they liai: c (implained of liis affecting to refer to matters on which he . ould not possibly possess any authentic information. And yef here the^ objected that he should set out all fhe docu- me >, which were not in his possesshjn ! The objections v c'i' inconsistent and self-(h^structive. The case of 11. v. Sud- li.s * was decisive against this ol)jection,and indeed the preced- ing ' ne also. There, a writ of Habeas Corpus had issued to :5ir v\'illiam Pitt, the governor of Portsmouth, to bring up he :'<,dy of John Suddis? and the return set out the pro- ceedings of a Court-martial at Gibraltar, at which it appeared tliii! ihe prisoner was found guilty of receiving goods, knowing ilieu) to be stolen, in breach of the articles of war, and that the Court had sentenced him to be transported to Botany Bay for iou;teen years. The return went on to state, that such sen- icn •(; had been approved of by the goverm>r of tlie garrison, uiKi that he, to carry out the sentence, caused Suddis to be >ei ' to Kngland, in the custody of I.ieutennrit Bogers ; and that rhe prisoner having arrived in Portsm(»uth. 'vas detained l)y Sir William Pitt, as governor of Portsmouth, until he sh( iild be sent to I)otany Bay, in pursuance of his sentence. In that case there was no warrant, nor, of course, any returned, Tl • return only alleged that the governor of Gibraltar had • I East, 300. tlO lllii (JAW VlJIAN IwlSr.. If! delivered Suddis into the ciistc.'y of Lieutenant Rogers, • = (•' liad sent liim to Enj^land, and that, having arrived in !• •.;.- land, lie was detained by Oovevnor Pitt, to be safely kep( i-!, Patch KLDOR. j,^ ^^.j^m transjiorted. This retnrn was held good, and ISiiddi-. was reinand(!d in execution of his sentence. His counsel >■,:■ Mr. Kr^kine, who would liave urged any possible objc ;i<.n in his behalf that zeal arul aeuteness could supply. M.uij objections he did make, but not this one of the want if r warrant on the return. Lord Kenyon, in giving judgui ni, said, " 'I'he natural leaning of our minds is in favoiu ut [)risoners ; and in the mihl manner in which the laws of liis country are executed, it has rather been a subject of comp'jiliii by some, that the Judges have given way too easily to '^ -n formal objections on l)ehalf of prisoners, and have bee m idu ready, on slight grounds, to make fjjvourable representutions of their cases. AVe must, however, take care not to eariv this disposition too far, lest we loosen tlje bands of societv. which is kept together by the hope of reward and the fr;u oi punishment." And afrerw.irds he said that the Court w,> " not to liunt after possible o1)joetions "' to a return. And Mr. J. Grose said, tiiat it was " enough for the Court to fmil a sentence pronounced by a Court of coii.,.etent jurisdi. tioii to inquire into the offence, and with power to inflict punish- ment. As to the rest, all must be presumed to be rlfr r m" And Mr. J. Lawrence, in reference to one of Erskine's ( ' jcc- tions, viz., that the return did not show that the princij il in the theft had been convicted, whicli was a necessary |mc iiml nary to warrant the conviction of Suddis as the recti »erot the goods, said he could not admit the validity of that > bjec tion, " This is a return,"" he observed, " to a writ of Ilihciis Corpus, made i>y the person in whose custody the pasty i« placed in execution of his sentence. He cannot be taken to be cognisant of all the proceedings. It is enough tint the Court had authority to award such a sentence. He re rurns the cause for which he detains the party in custody, vi/, tlie judgment of such a Court. This return, I believe, i> a* much as it has ever been usual to make in such cases/' And Mr. J. •lid not \ clia rge( \NiL th( li.iviug Corjjus, m flic tec he iiuldi the [ires wa^ frai. till- re es iir^laiice 'Iirt'Ctcd btdy of he aecoi Alt ,iij-ali Po;ts,//y to • .'i/.e I anchor \v 't away ; Ad;nimlt iniprisiin( ^V'arilen. ^^"^ook, bi the iaann ■anagh th iaw, yet v — t'lut is from othe city of Lo reti/rns, bu ' ' ^! ll.-O ( 'i'e Court '^'kine"s < !jcc- the princi] il i" cossary ])ii umi (lie recfi^or ol of that »bjec writ of Il.ih^'iis dy the pa 7 "^ mot be tak 'iilo enoujyh tlur i''^ ;e. He r irr? ustody, vi/., the believe, is »* h eases." -^"^ y THE CAN A MI AN CAnK. Mr. J. Le Blanc, in referenet; to another obj<'etion, tliat it did not appear by the return that tlie party liad t-ver been \ eiiarged witii the offenee of which he was eonvieted, observed iS*iL the answer to it was, " that it is sufficient for the oltieer i:.i\ inj{ him in his custody to return to the writ of Habeas Corpus, that a Court, haviii^i; a competent jurisdiction, had niflicted siicli a sentence as tiiey had authority to do, and that he holds him in custody utider that sentence." Tlie return in the j>resent case was drawn up ])recist. ly in the same terms, u.id wa- framed indeed on the model of that case. The doctrine tlnre established was quite consistent with older cases ; as, for instance, Barnes's ease''. There a Habeas Corpus had been 'lircctcd to the Warden of the Cinque Ports to brin^ up the btdy of 13., and ccilify the cause of his imprisonment ; and he accordingly returned, that the Warden has a Court of Ao .iiralty for sea causes within his jurisdiction of the Cinize goods, &c., cast on the shore by the sea ; and that an aiK'h(l>'iml of the substance of the matter.'" The cases referred t^) 'ill the other side were not in point. The grouiul on whicji iIk; <'()urt quashed the return in Bushell's case f was not that 'f'ut instrument was defective, but that the order of the Court b7 M3)). (ji r:BN r. liATCUEI.JJOIt, * 2 U(.lle's lUy., ]:j7. V '2 t V;iuf,'li;ui, I M.J. l! ' ' lli i^ i IUtiukldor. Prisoners, at u; clVfllt^, not e tUtiedto iljiir di v harge. uliich it set out was bad for uncortai'nty. So in Scelcs'^s case tij' real ground of the decision was that the Council had no Jurisdiction. The tiiree cases referred to in the 4th volume of Hjirnweil and Ahlerson only decided that the return, in ca■ invalid; but even if they were not, and admitting for ^l.< moment that the return Tniist be quashed by the Court foi insufricieuey^ yet the prisoners would not bo entitled to tleir discharge. It aj)peared to the Court from the return, that t';f y were in custody on a charge of high treason, for whicli tin v liad been indicted, and which they had confessed, commirtfd within the dominions of her Majesty, for which, if the pfi > statute were a nullity, and if they renounced the coiulitiu v J {»ardon, they were liable to be tried in Kngland or Canai to believe the offence had been committed. Therefore, on the supposition that the counsel for the prisoners were success- ful in their objections that the Provincial Act was void, and the pardon invalid, if dissented from by the prisoners, tliry would then be in the same situation as if they had been merely indicted; and with this indictment found, according to the Ifith sec. of the Habeas Corpus Act, the prisoners could not be discharged. If the proceedings hitherto had been irregular, they were still amenable to justice, and must be tried. If they uould persist in renouncing the merciful alteration of their sen- •"CroTCan THE ( ANADIAN CASE. oy 8t'elcs's disc ■ ouncil had no le 4tl» voltiinc cturn, ill casrs f the ll«'V('iuic •re could Ik» mo of the inaiUT. It the prisGiirrs I scnuMice of a eeise accord! s; Idis. :he return were [Hitting for tl.' ' tlie Court for ntitled to tVrir eturii, that llioy for which thov ised, commlrHil ch, if the p<"> li the couditiui' .1 and or Cana Tlirrefore, on s were suci-ess- was void, aiui prisoners, t\\e\ ad been mtrety icordinj^ to tlio oners couhi no' beenirreijular, tried. If tl»^V ion of their ^eii- tt'Mce, they must still •*ul)mit to the law, and be forthwith put iipoti their trial. In Hex v. Kini!)erley*, the defendant was !>rou^ht up by Habeas Corpus, having been committed for feloniously marrying against the Irish Act, in order that he might be sent to Ireland to be tried. Strange moved that he nn djt l>e discharged or hailed, because the power of the judges wa?» conliiU'd to offences coloiu>l I undy's case, 2 \'ent. 314; and in 8 Keb. 738, the Court refused to bail a mar. committed for a murder in Portugal. If application is not made to have him lot out in a reasonable time, you may apply again." Therefore lilt (lefeiulant was remanded, ami afterwards sent over to Ireland and condemned and executed. In Ilex v. IMatt f, the return to I Habeas Corpus state tl'at Mr. Addlngton, a justice of peace, had committed the pri^. '»er for high treason committed at Savannah in Georjiia in North America. He had heen oouunitted to Newgate, and had aj)peared hefore the Judges of oyer and terminer 'uul general gaol delivery at the Old IJailey, and had prayed to be tried or discharged. The Judges v,('iild neither try nor discliarge him, and upon a subse(pient .ipplieation for his discharge he was ret landed. Ihere, there was only a warrant from a Middlesex magistrate for high irt;(son committed in America, and although perhaps it was (.liiHcult to see how such a magistrate could have any authority to i high olVence for whicfT they stood indicted. Hn J,, in reply. As to the 1st and Snd objections. It .v ;■• perteetly competent for the [)risoriers to refuse theirassen ,oi attir assent to revoke it, to the terms on which the pardon had been granted, if tln^y thought fit. Vor, at con\nion law, llic crown could not, either before or after ctnivietioii, substiiil! one form of j)unishment for another lit iurifum. The docri'inc asserted on the partof tln' Crown, was liideed limited to lif* arul limb. IJut where was tiie authority for that limitation? b was merely invented with the original doctrine; for i i no decision of a Court, no dictum of a judge, nor any asserti > i ot any text-writer, good or bad, was a trace of either the doctri (^ur limitation to be found. As to any argument derivable ' uiii practice and usage, instances of submission by guilt and [)ii rty were not to be urged as evidence of a course ot law. Viit! • 1 13. ami C, UbS. And see also I'lx paili' Scott, 1) B. ami C . UO. and til '^' Hi c'fcctivoj — atul il prisoin'is in IS, tliat. tliero is irant/*, wluTf loard one ofhl^ ^, and on sus- laln'aH Corpu'-, 111 1)0 u;uih V . ' (I ti) disci lurj.' lie rnarslial, ip •tentautliorit . in tlic ruturtiN Tliese c:Lsr> Court to laki treason sli.iul.l t(» the writ m) lost danj^eioii' the law. 1 Ik sisttd ill th< ir rown, must i)t' be tried of t\'y tions. it \VM tiieirasseii , <»i he pardoi! Ii;i'i nrnon Un\', ilf on, substiiitt The doctniic ited to lifi arul imitation ^ 1? lie ; for it no ly assertin 1 ot the doctri our derivable ' uin It and jM)' Tty ot law. And T HE (AN An (AN CASE. I • 15. iiiul f. W> r, UArt.llLl.DUU. ^lill loss could any authority bo derived from tho common law 1^31'- !ii favour of the royjil pn.'rotrative to inflict compulsory trans- portation, us that was a mode of punishmeut of comparatively niodern date. The pardons referred to by the counstd for tho iTown were c.'ises where the parties liad voluntarily acted on tl!'» conditio!!. The statutes referred to, viz. 'JO (ieo. II., c. -Ki, and the Irish 7\ct tiH Cico. III., e. 71-5, wore conclusive uf/tiinst tiio position contended for by tiie Crown, because they showed iij iiecessiiy of leoislative interference to compel the execution, or t" punish the infraction, of tin* c(»nditio!!. 3dly. The Provincial .statute was full of dilfieulty and aiubi- l^nl oltjeciioii. n;uiiy. 'I'he pardon was to be on "• such terms and conditions as Tiiiifht appear pro|)er.''' J?ut proper to whom V To the governor and executive council .'' Or was the jirisoner to be a party? ;is would seem to be supposed, from a ronhunt being relied Muoii : and by what rule or test wa.s the propriety to be ascer- tained ? The counsel for the crown chose again to insert a limitation, aiul the terms were to be " known to the law." llut this interpretation could not meet the case ot the man sentenced to a certain term, " after liIs arrival" in Van l^iiimufs Land; for thaf was a punishment clearly )iot " Known to the law." And then the interpretation was to be sliitred, and tlie act could include sucji a case, because, as tiaii>»portation for life might be inflicted, any inferior punish- intiit might be. But the objection to that sentence was not thai it was for too long or too short a period, but for an uncertain o\v\ making the punishment depend not on the moral guilt of the criminal, but on the acts and ca])rices of others, or on ilu' iii'cidents of winds and wa\es. The act, too, was repugnant to ihe principles of English law, for at one stroke it levelled all those defences by which the jealousy of the cotLstitution had liuarded persons under i charge of treason. The policy of till' law of Kngiaud was to restrain the d.jminion of the subject u\' r his own person within stricter limits than over his |)ro[)erty. Ik could not biml himself to abandon his calling in life, lie e* uid not restrain his light of marriage; none of these acts c«'iil(l he do when at large and sui juris. Yet here, with a I i\ r CANAnMN • AST m\\i\ nATclllilUOIl. Heciluls iu»i 1839. churj;r lian^iii^ over li'in, In prison, and it inijrlit he, sliut out i^y'^ iVom nil cominunicjition witli liis frioiuls, he was invifod i- surriMultT liiinst'li to lnuida^o und labour for tho wliolo ot" lii, life. It was tiirrrloro ^irirtly a jtftud Hiiu.v*ii, and jis siuK, l« be construrd with (lu» ^ri'ati'^t sevorify ol iter|»rffation. Tin. 6 Goo. IV. c. 84, 8. 17, was niairdy rtdied on to show that rransportation nii^ht come witiiin ihr oju'ratinn of tiie Pr< vincial Ai't. Hut ar|runuMits founded on mijtposcd U.-jruslativii rt'coi^nitions v>orv extremely dangerous. The act recitrd. tliat *' lawst were in force," authiirisin^ transportation from tlic colonies. So they iniyjlit he, without having a le^•i^^rnJ^f'• operation, hecause they ini;^iit never have been (piestioiu d. I^ut if tlurc; were such " laws in force," where were they? 1 1, wi- the duty of the counsel Tor the croA-n to show tlu'in. The, could ojdy be laws of the lni|»erial Parli.inuMit, und let thcni be pointed out. Transportali »n from India was e.\pre>»>ly ^iUl( tioncd by the tJU \ 40 Ueo. 111., c. 75), ss. 18 and 1 I. and tli;i statute satisfied the recital. Hut if tiie recital rea/v intended i 4 State that the Colonial lejrislatiires had the [)ower of passing ucls sanctioning' not banishment, but transportation, and affecfinir to deal with criminals wlun under the operation of aimthc; province, or of the parent state, it was a clear mis-starement ot" the law, by which the Court was not bound, llecitals in acts of parliament were not biudintir, when against the law or fact, riowden, in his report of the case of the Karl of lA'icester v. Ilayter*, expressly says: — "And further they said, that if the reference to the record had i)een left out, and the act liaht say thai he never was attainted of treason, and so avoid the act entirely; for this recitid cannot be taken to proceed but upon inforniation., and the Court of ParUament mu'f he misinforined as lo Has otuf. Courts ; and when thoij have reci'ed a th'uuj ichich is not trm . it vaimot be otherwise taken hut that thnj were inisinfontK L for none can ima;^ine that they v/ould purposely recilc a i;iise * Rcporis, p. 39H. And see also ilie case of tbe liuion dc Bode, vol 0, Dowliiij^s I'rac. Ca?., p. 766. tiling' ,Uj«tu-e \mi l| I ruth any) a| tliev d growndl ulfinnsl ii* iiiclet shall b| the in III uitentlij Main iii t!ie '• staiui vh-uli a roclti'd prioiess of iliver' liospitd; houses a realm, Oj nd as siu)., I« rt'tatlttn. Tin. to h1u»w that II of the l'i( >Mt'(l lojjfislativii L» act. ret'ito'l. port4»t'uMi from r a Ic^itimat-' 211 (juestioniMl. ro thcv? Il.w!'^ tlii'in. TIk ' aiul lot the III '.\[)re»ly >.iii< (i 1 ^ aiui th:i /v inteiKkd i ol passing ucls p and atTcefiiii^ on of aiiothi ; s-start'int'iit ol* ocitals ill act** 10 law or fact, f Leicester r. said, that if 1 the act hatl |d of treason, tliai he never entirely; for inforniation, /f' ^ as othe, in 71(1 1 tnii it injonni L *or icile a liiisr iJode, vol (), thiiijif to he true, for it is a Court t>f the j^roatost hononraiid .t.<«t]<'e, of which none can ima£ the makers of it." ^.lany instances of flajj^rant violations of fact mi;rht bo found ill the recitids of various statutes*. The most striking in- •^f^nce, pi rhaps, was the well known statute 'M Tien. \ II I. c. IS, •vhich abolished the superior monasteries. I'hat veracious act recited " that where divers and sundry abbots, priors, al)b(;sses, pritnesscs, and otljcr ecclesiastical governors and jj^overnesses, of ilivers monasteries, abbathies, priories, nunneries, colle<^cs, hospitals, houses of friars, and other religious and ecclesiastical iiouses and places within this our Sovereign Lord the King^s realm, of their own free and voluntari/ vi'uuh^ good wUh^ and 'isseuts, wifhnut constraint^ co-nrtion, or vompuhlon^ of mn/ mai'/ur of iiersony"^ had granted their franchises and revenues, kc, to the king. The legislature here, if it intended the position contendeil for by the crown, was clearly mistaken ; and having only ret'llcd, and not enacted nor declared, was not binding on the Court. As this was the main reliance of the crown, coupled with the argument founded on usage (which had been already disposed of), it was unnecessary to repeat the pos.it ions asserte of every nieinl)er of both Honses. wlio took part in th<' di-batr; and as Parliament were deciding upon the hiw as it stood, and tlierefore actini^ judicially, it was as competent for eoun-^cl r<, cite the opinions of members, as it was to cite the re;isons j^iven by the jud^'cs in support of their judgments. 4th ly. No doubt a warraiit was necessary to evidence ai"! justify ihe detention of tlie prisoners. They were 7/,t in cxenitum, N'othinu^ like a sentence, nothini^ anal<\!^ous to it, had taken place. For the doctrine of eqtiivaients was n<>! yet adopted into our penal huv. The position originally as^'Ttcd must be rej^eated ; that the law in all cases, except \)t' ai ovi'rrnlin^ necessity, required a warrant to juscify re>tral!.r. The Ciisc put of a committal for contempt was no exeepn.)?,. There tlie record made in Court by its officer was the warrant. And even incases of execution, the exception relied on li ; tk' crown, a warrant was necessary. The judges' minute o!i t!'.- calendar, which was the sheritrs authority, uas a warrant, 't ever any i)roceedino:N were taken afterwards in relatien to such an execution, a le^i^ai instrument mi<>;ht be drawn up to justify it, founded on the minute, as with convictions by magistrates. 5tlilv. The cases relied on were not suiHcient to justifv tl;e positi«)n o " the crown. Ikirnes's case* was in the main eh ariy bad law ; for it supported anjidjudication by the wardin i,i \m own cause, iiesides, it «^rounded itself on the case of tl o City of London, as reported in 8 Coke i But on an exaiiuni ti^ a (»f the report of that case in 2 Brownh)w|, it a})pc;iri'(l that the prisoner was (/Ischan/tu/^ on the ^4*(mnd tha' the return was not sufficiently precise: a result whicii ' o'd Ctikc leaves in doubt. The return there had justified the detention of one Waggoner, because he had been conun ted bv the mayor and aldern\en lor keeping a shop ami usii'.. th^- ir.yst«'ry of making candles. Hut as it did not aver thit lie had used the trade of a tallow-chandler, it was hehl insuffie. Mit, '♦ iJ Rollc's Hop, l.')M, +lVl'il. : 1». '284. .,- siich .•II tha a }>ri iiarnes'i i \ the V .'•« the cit trly raised, siiirgcst( f'Ovvn, Imminent Krskine. but he n il<'ctrine, u\)>m a udvoeafe tii^' law, ■ in the di-batr; as it stood, and ; for couM'-cl ^u ite the leiisons i\ts. fvidonrc n\"\ f were )i t i:! iiialot^ous -0 it, ntis was not yet 'iiiallv as"<'"rte(i , except ('>'( ai' iisdfy re.-^traiiu. no exee}irior'. 'as the warrant. elied on iV'i' tKr niinule on IIm a warrant, it in relatiii!! to je drawn up to convictions ly It to justifv tl;e 10 main eUariy |e warden iii iiis Ihe case of tl'O >n an exaiuin t I-;, it appe ir.'d lound that tiic It wliieii t)0'd I i»:stifit'Ht he must protest against the dangerous anil unv/arran table i!' (trine, that a case was to have the effect of a judgment ';: M a point never mentioned in it, because some great .fK'oeate had omitted to urge it. Such a mode of making n; law, would place the rights and liberties of Englishmen on .1 very dangerous foundation. liut Mr. ErsUine's omission could easily be accounted for, without sup[)osing any inntten- tliri to the interests of his client. The point which it was ^ll;)]>osed he had purposely avoided, would not, if taken, have pi;i('( (1 his client in atiy more advantageous position. Suddis M'as a sohiier, and therefore, even if he had been illegally luoiight from Gibraltar to Portsmoutli, he could not have been tl'.scfunyrdy but sent back again to (iihraltar, under military ml'. . as a /r/t»//. The only use of the Habeas Corpus to him, was not, as here, to effect his disrhr/rf/c, but to elf to that piactical object : ht; endeavoured to cpiash the jutlLiuient as illegal. If he had succeeded in that, his client woiilil have been freed from ids [)unishment as a felon; but if li'^ iailed in that, what was the utility of taking a i)oint, of ^^1■^.| the only result of a deeisioii in his tavour would have heen to send Suddis back to Gibraltar, instead of to Botany • Eiisl. Vol. ^^, — ' QUKKN r. Batchki-dor. I >' 1 839. Ql ERN I'. As to tlio (lis- cliin^,'e ol' the pri.sunors. Bay, ns afcliKi? If tlto juHiirment against liim was Ictrul^ i was iininattTial to Siiddis, wiietlicr he was at Gil)raltnr m, Uotauy l!ay 'V\\q motive and object of EisUine in not iiro;Iiii, tlio point now raised, was therefore (juite iiitelli^^ible ; and tht* CJise of R. V. Sudilis liad not the slightest application whatever to tlie present. Lastly, with respect to tiie new objection raised m\ beh.. ; of the Crown, that even if the . turn was quashed for ihsut- fieicncy, the priscuiers must nevertheless be va.s that the judjres of ()i/er and 'reriiiiner at the Old llaiU-v lui'! no p<.,ver to try the party for the treason abroad, or to intciui' . 'I'hey had no jurisdiction whatever in the niaiter. lie-id.% it was not a case of Habeas Corj)us at all. .Ml those cases were therefore clearly dislin^uishal'it ,i'om • 3 Kast. 1.17. f- 1 n. .tint ('., -J.'.H. X'l Stiuiuf.si^ 8 1 Lrat-'li'b Crovui Law, lj7. lie p|-( 'fit'", out ill tliey c( (i.'lenti that th( niiii'ss Imo ig-ht ijf', if t ;iL.'';.iust iiinuir< p!<(j)€r iiil'cma 'h.! the cfi.««', L( 'lie retu) -III'! yet, til, retu (•hiiro;ed. lilt retur i'ft liisi'ha ' ).i the nifui of t '■ We J of . retui ;iO(ly of 1 ir Maj Ihe tort 1 1 with bir I lie eij)' dient 'liar ootdi (lb, ii-st'dj 'I'l} rarnc (h'lil rrate jii.-:.'v>s a' till- lif ce m was Iciriil, r it C«il)raltar «», e in in>t iiri;iii!. iiriblo; and th<> nation \vl..Uev(M iih'M on belli. ; isliod tor iiiSsut- tU'tninod, — A)' tvas (juaslin«l, n and a plt'aninjr 'US not i^ood I>v III atlulavit. ^* liuk'd in it \vct\ tre (»f (lie partv A'cn^ all c!' :u!. L'onnjinn fo I.^m • //•/»'(/. All li V >oen no iti (^ri- beiMulfposirions. 1 labfas Coii'Ji, .»n tb»' aiith -ir.u uhicli was only It,, r. Kraut/ f. depositions :>iu* , ili/irti iUi< V t It the pri^ •K.i had ever > ii;:« luired into '" tried. 1 1» j)n)ce<*ded *va.'*, )!d IJailev ha.! or to intnU'i'' . iter. U»- 1 •"'• ■ nishable iroiii THE CANADIAN ( A«F, < I idiMti Ql'KKN Ba;« lil-.LDOR. Iif present. Here the case of the parties ha»i been inquired I>^'»!), fit'». Here the Court had n(»nc of the doeuinents either set ""^ tyii. in th<' return, or brouss they could also see, from authentic instruments, duly Imo ight up before them, .uui which it was incumbent to brinj^ I.}', if they coidd be had, that there was a corpus dellcfi rhuv^vd :"• nist the persons applyiiif^ for the Habeas Corpus, not yet n'.iiired into. Unless the Court could see that fact from the prtiper instruments, they could not act on the return, if infrmal, even although they could see, J'rom the retum^ Uj.! the person was probably rightly detained. In Nash's* ta.«<^ Lord Tenterden said that the circums'J'uces stated In 'lie return seemed quite sufficient to warrant the commitment: •li'l yet, as the alletC5itu)ns were not sufficient m law to make tli( return a proper legal instrument, the p.isoner was dis- ihiii'ged. So in Deybel's cases f , and Sondeirs ease J. Here liie return was clearly bad., aiui tlie prisoners must tijeretore he discharge".. ' )ii the 21st of January, Ii(»rd LV.nman delivered the judg- nieiiL of the Court as follows ;-- '■ We are now to pronounce our iudgment on the validity .hidp^imjit. of . return to a writ of Habeas Corpus for bringing u[) the liO('y of Randal Wixon, !)eing in the custody of the keeper of Hi Majesty's gaol at Liverpool. • I'he writ was issued by Mr. Justice Lirrlcdale, returnaMe As to writ lu-- torthwitli betore himselt at Ins chambivs in Serjeants Inn, vacation, bii' the term was so near at hand, that it was thought full "(uirt. Kvery point ciixdi p- dient to hear the argument in the dmt Could arise u[)on the facts that appea. has been anqily (li^^ u-si'd, and as some doubt was expressed on tl^e right of in\ 'c.irned brother to issue this writ, we desire to state our ilt'i:! I rate owinion, tiiat he has done no more tlii'ii the law J''^ I's a'ld requires. We deserve herein neither the praise II" Ik' censure that may belong to innovation ; we are merely • 4 n. )ui(l A., 'J95. + I :4.5. 11)., '294. I8.m;«. M QlJF.KN r. B\TC1IEJLD0U. THE fANADIAN TASF. ul)i(Htiy an estahlisliod pnctico. Lord ('oko, indocsl, an Lord Hale, and Lord i'h'u'' Baron Comyn, i\s text-writer npon this subject, a|>|io;ir to confine to Cliancery, wlilcli is .i all times open. Ine tfilcina iusticise, tL • powf^r of issuing; ;i I'uboas Corpus iii tii..'t' n: >, ncation. Mi ». rienun'irs Pit as oi the Crown contain ioiii preci'lcnts of writs in the exact lorni of that now before us, earlier tl.an 31 Car. IT. c. 2, one as earl as the 13(1 Eli/a])efh. AVilrnot, in his answer to the House n: Lortls, refers to others anterior t(» the Habeas Corpus Act. ai.ti observes, that the great men who framed it wuidd never liav« left so obvious a defect without remedy. Li 17'''8 he and tlio .ftidji^os, consulted by the House of L'.»rd'>, affirmed this p«.wer. and the veformin • 2 Swanst., 1, lind 'Mrpns Act. aiui u\(\ never iiav* 7oS he and tiie mod this pt.wor. rodueed vvoiihi i)t been ill thitt n, lihickstcneV 1 opinion ai thii I been uTiiiMJti. ;*, l4<>rd 1 (lull issue P. Mahoas for it, but eiy cut ill favour of xhani in Jtuksi I «»ccur at \ -A^^ ed his ()|)i:iion ich mi;j:lir. ave ns of obtip' iii-r by a writ -uw! I eonseiju. ces the pov r ol ('8S the .1: ^es ilecide !■• ne- personal ee- rhority rf i.oril ^served b\ Vir, ts being- 1 ued ini. He Niys, biM'i CorpMs to 1 8:3f>. tJUEEN r. iUxcilE/.UOR. Ml' :•'! lonks, hut not beeause he doubted his ]>owcr to do so. It is ,r more likely he did not choose to entc- into a e(»ntrovi'rsy Ir!i the Privy Council, by whom Tenks had been ecunniirted. i'l ^'aet, therefore, tliere is no deelsi»)n against this d.oetnne, ,.nd in its favour groat autlioriiy, principle, neco«.t 'j , and very eaily precedent, oontinuod to th^' j r; «ent hour. • \V\ proceed, then,, to examine ibis return, which in -uLsLfince neUim. , that after the insurrection in I'pjier Canada u'iir. ' ■pprea:-jd !,.-i year,the lej^islature authorized a pardon to be granted by the 'iMvernor to such persons charged with high treason .jn ,>hould, fore arraignment, confess their guilt and petition for a par- Ki, (»n such conditions as should seem fit; that W'ixon was liarged and so pardoned, on condition of being transported !'» Van Diemen's Land for his life; that for want of the means ..» convey him thither directly, he was first taken to Quebec, ■.'.; Lower Canada, then end)arke(l to Kiigland, and there kept iii safe cirstody, in Liverpool gaol, being a secure and convc- .ii<"it place for tlie purpose of detaining him, while necessary I reparations were made lor transporting him. in lultiimcnt of tiic condition of his pardon. Some general observations are piatf'ria! to be injuie. The return must necessarily be received IS tiiir in all the particidars that appear upon it in tiie present •^Uii;*', in wbieh its sutficieney alone is examined. ' We are sitting r».s on a demurrer, or a writ of error roceed in certai.; cas»s, but whe- tht r, under the cireumstant' > v»f tliis [)risoner, he can justly cor, plain that he is injured, and has a right to be set free. <)l)viously, there is a broad distiiiction between the dutit > Canatia not a 'vi. ii a state may enjoin on [lersons in authority for purposes '^Ji'eig" f^i^^te. ot . own, and the powers of which it may permit the exercise t«. ii\y lawful purpose. The difficult (luestions iliat may ;irisc toii'hiiig the enforcement in Kngland of foreign laws, are f;x 'hided from this case entirely, fur Upper Canada is neither a iKieign state, nor a colony with any peculiar customs Here ou I ■ UUI.) N V. Batcukluou. Ohjcclinns to l*n*viiicial Act. arc no vuiht proliihifa. ; by virtut? of arl)itrary enactments, r' • relatiofj of master and slave is notrrc()jr?ii/o(l as le^al , but qcTn of parliament have declared that the law of Eni(iand and noiio oti»er shall there prevail. The con«*efjucnce is, tiiat wo caii take judicial Jiotice of their ie^al proceedings, can understan' the lant^uago they employ, and must, accordinj^ to all former practice, make every reasonable intendment in support of thoii validity. "The Lcjrislative Act under which the pardon was grantci!, was, however, said to be absolutely void for two inherom vices: 1st. That by the law of ['England no man can contnu* for bis own impri.^onment. " This dictum of C.J. Ilobart, founded on ohler authority and on principle, was cited by ^Ir. Hargrave in his celebraio , argument in the case of James Summerset. It made out IiIj^ point, that even if the negro had sold his freedom, our J.w would liohl the bargain void : but it really has no application to the case of a man charged with a crime, but permitted by tlio law to confess it before arraignment, and so enabled to olit,';i;i a j)ardon by winch his life is spared, but he binds himst if to undergo a less severe punishment. "The second objection was to the enactment tl.at persons may be pardoned * on such conditions as may seem fit ;' as if it ii tru- duccd a power of punishing in a manner unheard of in ourproce- dure,and woidd legalize even torture and mutilation. But w< ii r of opinion that these barbarous practices are impliedly excli.(i'd from the enactirjent, unless it should actually express thtin. I'here is no doubt that transportation was intended, tor that niode of punishment is mentioned in the second section et the same act. It appears frojii former acts passed in Canau.i to have been in force there; and the 5th Geo. IV. c. 84, s 17. proves the frequency of transporting to the penal settU in .'Ht.-! for offences committed in certain colonies belonging t lior Majesty : while it is notorious that tlu- substitution o-' lia' purnshment for the loss of life has been constantly, durii.,' a long course of years, an acknowledged practice in this coui ry Another (objection drawn from a different provision of tlu ic^, \ hat iIm to {troj- nuch {• with tlii " OI) in ie.>»j»f tiiue is I ostpon " Thq 'Mat as '' fvrtio) jfower t( nf his d( the })ar< has powi sons trai ilieir jiui that all heen niai " The the ninu( inferred. to have 1: t!ie confe 11.': reqii duty to i deSiTipli( tor 'Mirsei the ,' real • To t facr is sti to receiv< ]>r(>bably '•oniidenc r.-iirada, I'lIK TANM rrsr <^d^ lactments, f'- le^al , but jic • laiul and nuno (, that wo can 'an undcrstaii'' r to all fonnti- iipport of til oil n was granti-i!, two iiihoicru u can contrat* lev authority. bis celebrarp , t made out liis edom, our \c'.v no appiii'ition prinitted by flie ablod to o!tt;;!;i iiids liimst if to at persons may , ;' as if itii tro- of in ourpvx'o- on. Rutw* arr i.Mlly excl'. ('-d express tlitm. ndod, for that section of the in Canaci t(» \ c. 84, s. 17„ al 8ettlein>;nt. on^ino' t', her itution ot haf ntly, diiri: .r a n this coui.iry- ion of tlu icf. liat ilie pardon was made eqiiivalent to an attainder in respect "^-^'^ to property, and tlierefore could not afl'ect the person, was not ^^'^^*' luich pressed ; as this proceedinir is in n(» dej^ree connected r. vvitli the principles of aHalnder. HAuuti.uon. "Objections were raised to the condition of the pardon both Ohjcciion to m te.««pcet to the time ami tlie place of tranj«i)ortation. The '*""."''"' ' ' ' punisliincnt. liine is 14 years, to be reckoned * from the arrival of the party' '*n Van Diemen's Land ; thus depending- on accident, or perhaps , ostponed by wilful delay, and void for the uncertainty. " 'Ihe answer ^iven at the bar, ajtpears to us satisfactory ; tiiat as the transportation may be for time of life, it may, 'I fortiori, be for any shorter period. It was then said, that t):e (tower to receive tlie convict at \ an Dicmcn's Land, the place ed for the want of every one of Ohjrction as to , T ^1 ^1 • 1 . ^ • • defect of return rUc numerous (ioeuments, whence the rig^lit to ni^pn-^on was i,j ,„,j s,,tii„jr inferred. The indictment for treason, it was contended, ought 'uit ddouments. to lave been recited, if not set forth iji terms : the petition, tiie confession, the pardon, the assent (thout^h tliat indeeril places his oonlidence in the captain who broiig'ht the prisoners from Canada, or in some other person ; but ho is bound by the .?-• Itli; rANADIAN CA-M-.. I (jl CICN If AT( Mf i.UDU ( )l)ji'i'ti(ni ; lfl3f>. aserson in thi'^ country, the more es]ieeially as Sir .fohn ( olbornc's letter- patent are , that the person making this return is justified in rend^'rin;^ iiis assistance to the captain of the vessel which has brouifhi th^ rriM-.iuv IV- . . _ ^ m iiuUhI prisorjcr trom Lower Canada, in detaining him, and to .) loir truth ma\ t ?nav be coin- ify to tnmsn»ii le has sucoes Tlie tronsod (•ulossion wa- [-ovver Caiiai'. n to KiijjLuKl? person in tliis tome's letter-: in Kni^laiid a-* no warrant Is oler of liiver- son answerii!-^ irdon Jia«] hof'ii \\m] a rii^ht u> steps tor tliu. trity, and m. e aiKlressed to [nself no more (K'tains tLc uk at once for / i/iterniefliato he ncce>Nar\ \i -fully bo'Uid o. IV., in the 1 the coh; lic- ivcd iii ] ;jir- 'J'lie resuk. is, renderinii his is hrougfht th^ and to -^uch IH.S9. V. IUti UFLDOR. ither as may be employed to earry him to Van I )iem» n's T.ainl, •nd that the prisoin^r must be remanch^d to liirtustoriy. *" W'e liave selected the case oj)en to the most numerous .hjections for our first judgment. Ij'i^ht.otiiers, vi/., John (J. .'afkcr, Kinley Malcolm, Robert Walki-r, Paul licdford, '.conard W'atstm, James Brown, John Anderson, and William Xlves, must be disposed of in the ^ame manner for sub- f^antialiy tlie same reasons. Three, vi/., John Cirant, L. \V. vlillerj and W. Ueynolds, have not been pardoned under the <'U^islative act, but aceordinir to the ordinary practice, as stated ij tlie return, after l)einj( duly convicted at a court of session, ind oyer and terminer at Nia<(ara, in Upper Canada — one of iiicm of treason, the other two of felony. We liave carefully •onsidered whether these allegations are sufficient, and on the t'linciples already stated we thiid< they are. On this point we i'ely on the principle laid down in I James's case, that returns rothe writ of Habeas Corpus do not require minute eorrect- tK^ss, if the substance of the facts is stated ; and on the prc- c!'(lent acted upon in R. r\ Suddis, where similar allegations, but still looser, were sanctioned and held good. These then iiiust also be remanded," HjLLthen moved for an attachment against Mr. IJatchelilor, \T,ition for pii vw the PTound that the return placed on the files of the court •"^'"'"•"'"f was. false, and false to his knowledge.* lie moved, on an affi- [litulieMor for Huvitof Mr. Waller, clerk to Messrs. Ashurst and Ciainsford, the solicitors of the prisoners, by which it appeare\as cMtitlcoine actit)n then pending in tlie city Courts. He claimed priviic^R as being a suitor in the Coumu>n Pleas, and sued out a writ ♦ It happened .'M. Hen. 6, and is particularly mentioned by Sir OHaniio Bvidgiiian. See his Judgments, p. 28M,in the case of Hutchina v. r ayet. A lull '. latemcnt of tlie case, as detailed in the argument, will be found anie, r '• t 12 Co., 8-2. \ Bridgman's Reports, p. 274. of llabe itevailcf >ad not lUe Kill; ;»ower •' )rlan(hi I'cen dot iacts ai! iPtuatuh' .!>rainv'.t . justin' .'.arrant, ame m gun. .b •ic was e .'V wiif (• M'fre sral ti'at the that: hi' wiiich pr \v;is allov tli;ii plea it A\ ould lie please 'inistbe t to take tl .'I'dorman uKi^^rmen ?'k y liad th."Mint kVc rcma ; I ilir tir uder th( v.hich wa * See lu t :> Co., ;: I Sid. nil ! 4 V sni AN (' \si:. i^i l« of the will he return Ii suhjects wiv', information, r, when tht • of which ))>■ e notion thm mswer to tin ; as ini^ht b nity, viz. /In ?(! to, and t)'. as one of tl [)ns, and Tor , There w;ih a return are , and nothing )l('a. Hut if t ori, wlicn tl ^ proceedin;;-, I Sir William by the lligl 1 ; and u\w\\ leM, that the hat four, as rofjuirc d by d into whirli, In rinfihias "*layor was in pc'ct of ^oin(.^ ncd privitcffe d out a writ by Sir Orianilo t7r/n< V. 1' ayer. be fouiiil a/t/f, of llal)f'as Corpus in ihal Court ; for at that period* a notion irevailed thai tlic Courts of" Common I'lea^ and Mxciierpu'r • ad not a general co-ordinate jnri.Mliction on thi«j suhjoet with ilie KImj^'s IJcneh, hut that it was necossary to ^nnmd ihtMr Mower on the privileges ^'^i the suitor. In that ease Sir ' )rland(» llridginan fxamined tho refnrn, very mueh as had I'oen done in f'inrs case, on which he grounded himself. Tlie 'acts alleged were found to he true, and tlie party was i»>nianded. In .S7. Jn/nCs mset, a man named Clardcner, .btiiiru'd judgment in the King's Heneh against Mr. St. John, i justice of peace, and having a cojn'u.i against him, got a .'. irrant, directed to a special I)ailifV, who, feari'ig resistance, amenear to the residence of Mr. St. John, armed witli a short ^im, St. .loiin arrested the servant, fiiulinr, him armed, and he was committed i>y the nearest magistrate until lie paid 10/. A wiit of Habeas Corpus was then sued out, and the facts •i'rre stated in the return. Hut it was ^«i^*aded in evidence li'ju, tlie bailiff, being an ofKeer, had a right to carry arms, and Miat he was therefore not within the statute oli II. H, c. ti, which prohibits " the carrying of any hand gun." This plea was allowed, and the officer disch.'.rged ; but if the truth of that plea had been denied, it rnu^t have been traversable, for it ^vould be absur Co., 71 ; S. C, renortoil as II. t;. CJiudiner ('ni, Eli/., H2\. : I Sid., 287. ISMf». . r 15,\'r( iin.n.'R. A .%. v>7-'i- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 !ffi^ IIIIIM 'i lis IIIIIM 1.4 1.6 V] <^ /i /a "cr^l ^1 J^ > i? / Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 «v # :\ ,v \ % V \ ^ '<» t '<> i U; » AXADIAN' CAS I r. Batcuki.duu. return was coTichisive, aiul tli;it the only remedy open to tin. parly irn|)risone. taken from the Excliange, or from behind his counter, iic matter wljence, and thence to the Savoy, or aboard a tendor: and if his friends happen to iiave time enough to procure a Habeas Corpus, a sufficient return to the writ is imraedialoly made (there are precedents enough in the Crown Office, am. they are soon copied), and the man is sent away, in due ion -, of law^ to take his chance, for some years perhaps, amidst the perils of the sea and the disasters of war. Tkit it is said tli:'.t he is not without a remedy. Jl'//at remal// ? An action iujain.si a man prrhnps not uwrth a (jroat. But how rcsponsihh soet n- the officer may he, mhat satisf'act/oji in damages is equal ft' lln' injur jf ? Or, if that were poasibl// to he had^ icluit hecontea oj thr action., if the plairitiff dionld be Imoehed. on. the head, in Ih service? IVhj/ truli/ moritur cwn persorl. In short, he hath, /j' this view of the f^a.se, no remedy ^ unh'ss you yivc him what 1 call the specific remedy, a riylit to cojitrovert the truth of the rctirrn l)efore it is too late^ In the case of It. v. ll'hite \, this cour'-c was pursued. An affidavit had been made against JViaim White, for improperly impressing one Reynolds. " Affid ;vits were read on both sides, and the Court said that althougi' it is not usual to enter into the truth of the facts set forth in the return to a Habeas Corpus, yet in this case, as the party * P. 1371. t -20 Slate 'Iriuls, p. 1377, note. I hi: c a\' adtan* casi;. y open to tin. etum or false lit across tlic , vvliich coiil'i itCfl. A' U}i.'jr he ioimd Ml raclod in tin- * of the St:.i liiiion that tlic aflfidavit, aiiu e characttr < i fiordetl to the " The man - , is counter, iii> oard a tcndor ; 1 to p roc me a s itnmediateiy tvn Olfic(N a>ii. y, in duo ion i ips, amidst t'lo it is said tli;'.l n action iKjaiiisl 'sponsible soever is equal (o the ' becomes (ij t/ir 'le head in fi ort, he hath, m him wltaf I eall fh of the return f' I, this com-'-e against M.i'u . " Atfid.'ivits lat althougi' it ;ts set fortli In , as the party .Hole. usinii" the wric hath no other reraedv, it mav I)e (h)no ; and that if Reynolds is not witlun tlie description of tlie act, tlie \vlu)le proceediui!;- is a mere nullity, coram non judice.' In consequence of the public attention I)ein<; stronjj,ly directed to these cases, a bill to amend the Habeas Corpus Act was iiitroduccd into parliament, i)n the arrival of v, hich in the Lords, they desired the opinions of the judii;es. Amonu-st the ;en questions propounded to them in relation to the existing- law of Habeas Corpus, the last was the follow iug; — •' Whe- ther in all cases whatsoever, the judi^es are so bound by the facts set forth iji the return to the writ of Habeas Corpus, that tiu'y cannot discharge the person brought up bef ight be Con- or conjgiMnpt, the writ iX » statements, er to plead le therefore IS for an at files of the* false to hi< ^ed Wat>)/'. e mandat'..r»/ it liave b'vni nent agaiast ^li was read dgment tliifs ms, or rather he contends it to be su;i- tiole. ;;arted by some alHdavit ; and in the second place, Mr. Hill .rodnces an affidavit ^ Watson, yet in the operative part there i;. no direction to carry Leonard Watson to England ; the iiiiines of the others are mentioned, but his does not appear, so that there is clearly an inconsistency between that fact and the ^itatement on the return, that the warrant directed him to be carded over. When brought before us upon this affidavit, it does not appear to authorize the bringing over of Leonard Watson. That individual has therefore a right to say, " You ^luve not only imprisoned me on a return which 1 have qucs- MCHKLUOR. :m) iill, CANADIAN (ASF. \^'.',<}. Qui: F.N V. IJATCilLLriOlt. tinned, but uj)Oii u warrant which you liave i"aJ.s<^ly hiid iu'iorr tlie Courf, innsinuch as you say that it includes cvoj-y naiuc, wlureas 1 am prepared to sliow that it does not mention v\\ name." Tiie (/Ourt ouplit'fo be extremely careful, whenever it 1ms the means of ascertaining the truth of facts, that tin- fact shall be truly stated, and without at all entering' into tin question • hether that warrant be material to the justiHeafioi! of the party, or whether the judgment already pronounced does not dispense with it, I am of opinion that no such mii!i:tr inquiry rdiould be made on the subject; and that ifwefiii/. that theje is an untruth, it is a sufficient />?•/'///« fade case for us to call upon the party wlio has untruly stated anything, u. account for his liaving so done. I am, therefore, of opinion th >' a rule nisi for an attachment ought to be granted. Mr. i. l^iTTLEDALE. — A person imprisoned has two modes :•< proceeding — one by bringing his action for ffilsc imprisonmt" * against the party who has him in custody, the other by apph - ing to a judge for a writ of Ha1)eas Corpus. If he proceed^ by action for false imprisonmejit, the party must either '-<- out his ground specially in hi-i j)lea, or, if allowed, in evidemn; • but either way he will be bound to prove the truth of a.u the facts put in issue, and a person in the circumstances of tho gaoler of Liverpool would be bound to prove the truth of everv fact. But not having so proceeded by action, the gaoler is ii; . ]laccd in that situation to be com])elled to verify the truth ■' the matte.. He hcs proceeded by applying for a writ '^* Uabeas Corpus in a summary way; the judge granted tjia- writ, tliC gaoler was called on to bring up his body to ti e Court, itmX account for his having him in custody. In ti^is case we have held it to be not so material to specify all tin- matters with the same minuteness as in an action for faibt imprisonment. But then it is said, the returUj at all events, should be supported by an atlidavit. I do not find any instai.t.e to show that a party in tlie first instance is bound to prove tiif' truth of the facts by affidavit. There is no precedent for that. I do not think that in a proceeding upon a writ of Ilahca^ ><^ly laid i)(>ioiT s cvr-ry iianu>, »t lllOlltioil IMV oful, wheiiover facts, tliut till' teiin<>' into tlt^ !io jiistificatini; ly ()ronouiioe(' iio such miiMitr that ir we i'm.'. ^aclc case for i;s I anything;, td of opinion tl* «' :"(h as two modos -t I imprisonmt" ♦ ither by apph - If he pvoeeeci- lust oitiior '•'- (I, in evidentv; • le truth of a.u nstances of \hc truth of every le leader is ih.>. fy the truth f for a writ o« 3 ijranted tjiui. s body to ti e ody. In tl.'^ specify all iae ction for false at all events, d any instai'.ce d to prove t\■.^^ edent for tha. i-'rit of Hai)o:i- TIIL CANADIAN (.AST.. v.^urpus, WG can d(>viale from the usual course so far is to cquire that to !)e done wliich has never been done before. So much for that part of the moiion calling on the o-aoler of iiiverpool to verify the truth of tiie return by affidavit. AVith regard to the other part of tlie application for an attachnivMit jigainst the gaoler for having made a false return, it is founded on this — that he has made a return, stating that Sir John '"'olborne, by letters patent, directed the master of the bark ^'(ij)t(im Jfi'ss to convey Ijeonard Watson to Liverpool, ajul lieiiver him to such U'^rsons as should be authorized to receive him, for the purpose of carrying into execution his sentence ',/f trans[)ortation to Van Diemen's Land, hi the recital of the writ the name of Leonard Watson is mentioned, but in the mandatory part of the writ it goes on to say, " These are rhe.efore to require you," i. e. Captain Morton, to '' take A. li. &c., the persons enumerated, but among tliem there is no nention of Leonard Watson. His name is not there ; and as tins document was v/ithin the knowled/'c of the yaoler of Liverpool, as he must be presumed to have looked over the •document under which he was to detain the prisoners, a rule nisi must be granted, calling on him to account lijr the circum- btances under which he has put into his return that Sir John Colborne had directed Cajitain INIorton to convey Leonard VV'atson to EnijUuid, whereas Leonard Watson's name is not mentioned in the operative part of the warrant. Mr. J. Williams concurred. Mr. J. Coleridge. — I am entirely of the same opinion on both parts of the application. With regard to the first point, :i rule has been granted, but it is only a rule nisi, the Court abstaining most cautiously from prejudging the merits of the question, and proceeding upon this ground, that wherever a p;iblic officer has made a return, which, jir'una facie, appears untrue in any particular, it is necessary for him to account ioi 11, and state why lie has so dealt with the Court. The othi>r point is, that it is necessary by affidavit to support the return. .\ great deal has been said in the first part of Mr. Hill's 01 is:)!). liAXcniLnoii. h TI!F. CANADIAN rA.SK. I(i3;). I>ATCIIKl,unH. ar^ume/it, by wny of general t»l)Scrvation, on tlio liberty of tlu- biibjoct, aiu! the illusory tlTect of tlie writ of llabea« Cor|Hi>, unless the Court sustains the arcrunienf. llpon riuit sul.ji'ii ; will merely say this, that on CAamiiiation of the history ol England, it will be found that that judge docs best for the liberty of the sulijeet, who does not indulge in speculations ul his own as to what will be best for the peoi>ie, to the exten'. of straining the law beyond what the law will permit, but w' adheres to the law as he finds it written and acted on, houe\' defective it may be; because, if it be defective, the evil is .>iiu- to lead to an improvement of the law in the regular and con- stitutional mode. Mr. Hill has no doubt argued the iiuitLer with great learning an*! ability ; but the authorities do n>; sanction his position, which is, not that the truth of the retuni may in any stage be controverted, either by plea or affidavii. luit that in the first instance the crown, or the party filing th. return, is bound to support it by affidavit. 'I'here is not single case, from the time of Henry VI. down to that of M' Hargrave, which, in the slightest degree, bears that oit >•. terms. Indeed, the great current of authorities is the other way. Sir Michael Foster is to be taken as a very strong au- thority in this matter, for it is well known what his opinions were ; and if he did not carry the point further than that the .party controverting the return might file alHdavits for thar purpose, — if he did not go on to say that it was incumbent on the party making the return to support it by affidavits, — h must be taken that he had found no authority which coulc' enable him to make that position good. So, then, thus standi the case on the authorit'.2S ; but now it is contended, thai although by the authorities the onus lies on the party contro- verting the return, justice requires that it should be shifted, and the onus thrown on the other side. That is a proposition in support of which no case can be cited, and the Court cannot go to such an extent. T therefore agree, that there is v.rt ground for granting the first part of the application. The Attorney-Cteneral, Solicitor-Generai., Pot- TlIK lANADl VN CASK. H3 L' liberty of iln labeas Corpu-,, 1 tliat subject ! the liistory ol cs best lor i\>c sj)C'ciilatioiiR ol I to the extt'?!* erinii, but wLi jd 01), houevf the evil is sure gular and cui - ied the iiirttLe • orities do n>; h of the iet!!i;i lea or affidavii. larty tiiiii•: 3S is the othci ery stron^^ au- t his opinions than that tlic lav its for thjjt ineumbeiit on affidavits, — ii which coah^ n, thus standi itended, thai party contro- d be sliiftei!, a proposition Court cannot . there is no HI. EIIAJ,, Pot - iocK, Srii l«\, and Wkhitman, showed cause aj^ainst the 'ule. The inference attempted to be drawn, tliat Mr. I]atchehh)r kr w of tlie omission of Watson's name in the warrant, and wilfully mis-stated it to the Court, was quite unjustitiable. The omissioTi was a mere clerical error, and bein<^in the mandatory part of the warrant, was immaterial. They showed cause on affidavits, wliieh clearly exculpated Mr. IJatcheldor from all wilful blame, and therefore at once relieved him from this r\de. Mr. Blunt, and another elerk of the Colonial Office, stated that despatches ha'l been received by Lord (ileaelt^ from Sir George Artiiur, transmitting a list of persons, pardoned on oondition of transportation, of which Watson was one, and also tlic pardons and warrants, and that they verily believed the omission of his name in the mandatory part of the warrant 'vas a clerical mistake. Mr. Batcheldor deposed, that when he received the prisoners, their names were called over to him by Captain Morton ; that among them was the name of Leonard Watson, and a list containing that ]>risnner*s tiame was also delivereil to him on the occasion. He {^oceeded to say, that no document or other warrant was then prodticed, but that in the course of the day he received a warrant from the Town Clerk's office, purporting to be mider the hand of Sir John Colborne, and to have the seal of the Province of Lower Canada; that he then read the warrant, and it was occasionally in his possession afterwards. The deponent then stated, that he brought tbe warrant, the writs, and the prisoners, to London ; that he lodged the prisoners in Newgate, and delivered the pajiers to the agents of the Town Clerk of Liverpool. He further stated that he signed certain returns, which he understood had been prepared by counsel, and that he was not aware, until after they were filed, that Watson's name did not occur in each })lace among those of the prisoners ; that the solicitor for the j>risoners was in possession of a copy of the warrant ; and that he, the deponent, had no intention to state anything as being in the warrant which did not appear there. The reason of withdrawiucr the first return and substi- 1831). V, f)». ] Hi: <'ANAI»UN (ASK. |HM!». HATCHIiruoll. tiitinp^ jIk! second, was, tli.'it in ilu- lorinor Mr. I^ilcliclddr allcj^'od that lio dotrtincd the |)ris been too stupid. A copy of the document was in jiossesslon oi thr solicitor for the prisoners, and theref()rt) the fraud must ot necessity have been at once detected. The rule, therefon. must be disposed of as a^-ainst Mr. Batcheldor. Itut the effect of the error could not possibly benefit Watson. Accordirn^ to tlie cases referred to in the former nr^^ument, he mu.>r be detained, if the Court had reason to believe that he had /uicji liCuilty of hiu;li treason. They should move to amend the return, aecordiji^ to the facts. This application, how»^ver, woidd have this t^ood result. It would show the public thnt the writ of Habeas Corpus was not such a mockery of a remedy for the liberty of the subject as the counsel for the prisoners had endeavoured to make out. 'I'hey at once freely admitted, that if a case of fraudulent tampering- with a return coidd b.' established, the parties, however hi<>h their rank, mii^ht and ought to be visited with the severe displeasure of that Couii which they had endeavoured to deceive. Hiere M-as, therefore, a remedy, other than an action, open to persons injured by a false and fraudulent return. That, however, was not the ca^ here, and therefore the rule must be diseharfi^ed. Hill, Falconeu, IIof.buck, and Fry, supported the rule. Tiiey joined in congratulation with the coinisel for the crown, at the admitted summary remedy, which must now be con- sidered established, afforded to parties injured by a fraudulent return. But the remedy must be extended even nuich further than to 7i fraudulent onQ^\i the liberties of Englishmen were to be duly secured. Unless tlie party applyingfor a Habeas Corpus was i althc. a rem Occa< safe!;; Corp was ti a retu clejirl; con';lit anil f that Couii as, therefore, niured bv a not the cas ted the ruh^ or the crown, now be con- a franduhMt nnich furth'^r men were to ibeas Corpus was ivntitled to hhovv that (lie rttnrn was false in fact, even aitlionirh not wilfiill} ^o, he wonUl l,»c h> ft with that mockoiyof a remedy — on action, when l>e was half-way across tlie Atlantic Ocean, liut surel ihe law of Enj-Iand must haw riven other safeguards to the subject, whieii liave made the writ of Habeas ('Orpus th(.' topic of such j^reat eulojry here and abroad. A\ liat was the position of the ease now ? I'he court had before them a return ^^hich, whether wilfully false or not, was, at any rate, clearly err^eous. Its credit, therefore, vvas impeached : ami, eonsiderincr the vital importance to the prisoners, ou^^ht to be considered alto«jether ^onc. In a material point, the judu;es saw that Mr. Jiatcheldor, wilfully or not, had misled them. The j>resmnption, therefore, on which tliey hadact«'d In assum- ing it to be correct, was found to be mistaken. The Court was deceived, liut after such a ^larin;"^ proof of carelessness (to 'i,ivo it the least blame), how coidd the court deal, on such a return, with the liberties of so many EnoHsh subjects? ^\ hy, upon ]\lr. Ijatcheldor's own statement, the return could have iio authority, lie did not venture to say that he had ever read it. He appeared to think reading- unnecessary — that he was not bound by the facts therein stated, because he said he was to consent to any alteration that might be approved of by the learned counsel who drew the return, and w Iiq rnig-lit in- dulire the luxuriant imau'inalion of a ])leader in endless iictions. The return was, therefore, Mithout the slii^htest authentication hy the person makinf^it; and even at the best, to what did it amount ? Mr. Bateheldor having all his information at second- I'.and, trusting third persons, chose to convey it through the pen or mouth of another. All the information before the court on the return was mere hearsay. Surely it was not by such a document that the liberty of the subject was to be restrained. It had now been shown to the court to be a defective instru- ment, and thev were bound in justice to the unfortunate men at their bar not to transport them, some for life, and others for a considerable portion of their existence, on a document which at ])est was only grounded on hearsay infoimation, but which, )AI(;UK1.I»0H Ik ls3!) >M) I'. lUTcifn.non. JuiIlXDlOlH Oil till.' mot ii 111 I'nr an xtiachiiient. •ri!) CANADIAN CASL, now proved to be erroneous m an im|>ort«nt partioulai^ l»arpns, by whiflr he JMStifu'S hlinseirfor keepinu; i" custody the body of Leonard Watbon. Tt has been moved for, on the j^round of his havinjj been guilty of contempt, in misleadi.ig and deceiving theeoun, by falsely setting out the warrant by which he received the body of Walsoj'. : and J believe that if there had been anything like wilful I'atM'hood in this matter, and that this had been done ior fraudulent purposes the ret\irn would have beeji quashed, and the person who made it se^•erely punished. 1 will allow, (an'd my learned brothers agree with me) that there has been a degree of neglect, culjiable neglect, in making this return, and that tlie false statement renders it proper to visit the persons who made it with our displeasure. There is no doubt that the statement was untrue, and that it was incorrect to say that the letters patent'of Sir Joiin Colborne, uhieh Haeheldor received, and described as the warrant by which lie keeps Watscm in custody, in the iuantlatory part, re(pured tlie captain to bring the prisoner over from Quebec to that particular part of Kng- land, viz. Liverpool. In the first place, I do not think the person making out the return was free from blame in receiving the body of a person, when, in the mandatory part of t!ie warrant, he was not instructed to receive him. On the con- trary, it was the boundeu duty of a gaoler not to receive the body of any person without !)eing first satissfied that he had lawful authority to do so; and I cannot pass over, without some degree of censure, the circumstance of Bacheldor detaining Watson on a warrant, in which the name of that person ilever once occurred. In criminal proceedings, such a mistake would be attended by most dreadful consequences ; and when any person is intrusted with an office which controuls the liberty of his fellow-subjects, he ought to take care not to controul rhat liberty without being fully convinced, and without taking the proper means of seeing, whether he has authority to do so or not. the cui Uiiti no l)een i^atclu of th( (his U): did not i.-jCil. \ of lh(! (diargi in a 81 1 <)thers, !»y whit ati'sfaet •onsidei he com !"e no (h I;e was { think IJj ub'eet ; I'lelette Leonard f ho ugh r uiy othe; lave ovi ;Maudato] (hat Bate treating ] tiuned bj '■'.hat has U> the in( vvas ; an( Attorney 'I. exce{)t "-tated tlu ' tinsel V IJll'. ( ANAUIAN I ASH. 5*7 U'tioului^ had ihc court, fnont against. 1, VvllO llii"* lis, by wliidi y of Leonard of liis hiivJuGf Uv^ tliocoun. received the cen auythinsr ,1(1 been done een quashed, I will allow, re has been a Is return, and t the persons loubt that the [) say that the Idor receivcvl, OS Watson in )tain to brln-^ part of Vavj;- lot think the b in receivinfi!; ' part of the On the con- o receive the that he had without some or detaining; person never listake would 1 when any he liberty of ontronl that t taking the ly to do so 01 not. rh;it, however, is not the point now in cpieation- -not If^'i^. fhe c«»ntenipt fi»r which we arc to pufdsh Uufciieldor; \\\'\!i motion 1 ^1 I r f III -, , . (ivvv.n tuts not hci'n brought forward on aecotint or \\ atson s havinj;- v hern Ijnpr{»[)cr!y imprisoned; but wc are to decide wliether IJATrnui.ooii Hutchcldor has not unduly triHed with justice und the autiiority of the coint, because lie said in his return tliat he had received this man under tiic warrant of Sir John Colborue, wheti he «Hd not really exuinine the warrant to ncc if he was so author- i.-scd. Whether tlie warrant wiu> material or not, is not decisive of tluMpiesriou whether the party makini( the return c?u» he charged vvitli coutem[)t of court in saying what was false ; but In a subsecpjejit part of the case, the atiidavits of Hateheldor and others, which have been read to th? court, set forth the reasons by which he had been nusled, and make everything appear so itisfactory, as for it to he impossible, when those reason** are •onsidcred, to impute to him any such intention, or of u-eati?)g he court with contempt in making a false return. There can t«e no doubt that he fully believed he was doing right, and that i.e was authorised by the warrant to detain the prisoner. I think Batcheldor ought to have made himself more sure on the ■;uliject; but when he found a long list of names set forth in I lie letters patent of Sir Joh.n Colborne, with the name also of Leonard Watson in the introductory part of the warnuit, ab 'hough not in tlie mandatory part, it seemed possible, without my other blame than that of want of carefulness, that he should lave overlooked the omission of the prisoner's name in the niandatory part of the warrant. I, therefore, cannot conceive that Batcheldor stands before us in such a condition as to justify ireating him with such severity for contempt as has been men- tioned by the learned counsel. 1 cannot help just adverting to what has been much dwelt on — the supposed blame imputable to the individual who committed this error, for such it certainly was; and as to that objection, although I agree that the Attorney-General and his coadjutors had nothing to do with 'I. except that the gaoler should have seen that the warrant -tated the facts in general terms, yet there is no doubt that the ' >unsel vyho drew up the return had probably copied only the H 08 THE CANADIAN CASE. 1839, QUKKN V. Hktcuelvor. first name, and then loft it to some other person to fill up tlic blanks with all the other names; but at the same time, I doning "Watson ; and it.woulr! not become the court to argue hi defence and vindicatioe of i. judgment to M'hieh they have given their most anxious ai;d deliberate consideration, underadeepsei'se of their rcsponsibili^^y to the country. It would be unw'uilty of some fraud arnl collusion, in putting that forw'ard as a real protection, wlii^ n is said to turn v"'t to be nothing but a subject of undeser. THE CANADIAN CASL. I ti»> 99 ^on to fill n\) tlic same time, 1 (!■) rfcer or other in no as make it a t. I cannot tVol )ecause the court >e broiiglit hol'ore lied in Enj4laTHl, iswer, and be re- nin^- thatrv;(iul>i- the warrant, tlie 10 de«^r^'e matori'il ;on ; and it .woul'l (I vindication ol" i most anxious ar.d ,lieir responsibility ;he trust and co liicli we have pro- l is consistent with into the question r neither assent to down on the sui)- iay that if Watson, atFidavii, that any he eon hi make it |iij)ropriety or not; lash the return or f the falsehood of |e court would liO' ity of having tli.'' Habeas Corpus •n, as if it were : [powerless, or as ii If some fraud ;i 1 protection, wlii* ii let of undesen panei^yric. Still it appears to me, in a case of this peculiar ii^39. kind, for which it is likely no precedent can be found, that even Ol'KEN if the remedy had entirely failed, still the provisions made by „. the law for the liberty of the subject have been found for ag'os liATcnELooK. elfectnal to an extent never known in any ot]\er country, through the medium of the summary right g-iven by means of the writ of Habeas Corpus. i\v^ even in this case lam not [)reparpd to say, where there is that statement before us, touhich we gave entire credence, of the legal proceedings which authorised the Imprisonment of Watson, if any part of those proceedings could be impeached by the party in prison us urilrue, that there should not be full i?iqniry, and the means of bringing out the triith. As to the amendment, it clearly foUows from whj;t I have said, that it would be fit that it shouhl be made, not for the purpose of varying tlie nature of the case, because the return was sufficient without it, but on the ground on which the court has granted the rule, that it is not fit or decent that any^ falsehood should appear on the face of a return filed in this court. Mr. J. LiTTLEDALE. — The qucstiou morc particularly before the court, is the rule moved for, calling upon Mr. Bacheldor to show cause why an attachment should not issue against liim for contempt of court. He has certainly made a return which, ia point of fact, was not true, and that is a justification for us to Inquire whether it was true or not, and if it were not, whether we ought to grant an attachment against him. Il ap- per rs that the statement vvas not true in point of fact, and it, th( 'efore, lay on him to show that it was owing to some mistake, SOI e misconception, or something to [»rotect him from the pr« ceedings of the court against him. From the affidavits it appears, that there was a .nistake, arising from one in the warrant of Sir John Colbornc, for the name of Watson, although mentioned in the first part, was omitted in the man- datory part of that warrant. The prisoner, however, was del eredby Captain Morton to Batcheldor, under the authority of le magistrates, and at the time he had not seen the warrant, alt. >ugh it was afterwards delivered to him in the course of ri 2 , r m""!" IBP THE CANADIAN CASE. Ql ;UEEN V. ■ Batcueluoa. J8;;9. tlje (lay, and given by liim to tho town-clerk. Me onglit to have seen it, l)ut ho liad coiiscqnently little opportunity of perusing it ; and as he has acted inider no wilful intention to deceive Llie court, it appears to me that he has exculpated hinisell, and that the rule tor an attacliinent ought tlierefore to be disciiarged. As to the other parts of the case, I will not enter into them, as the judgment of the court has been given on them before. It is sufficient to say, that the warrant was not at all material, because if these persons were, under a Canadian Act, under sentence of transportation, it was com- petent for the governor of Upper Canada to send them to l>ng land without any warrant at all. The warrant cerlaitdy doe« not appear to have been drawn up in a very business-liki'. manner, but that is not material to the (piestion, whether the prisoner shoidd be remanded or not. The amendment ought to be made, so that there may not be a return known J;o hr false on the fde. Mr. J. VVii.LiAMs. — The observations winch have been already made on this subject confine the (piestions for consi deration within a narrow compass. The fir'-it is, whether a»! attachment should be issued against the gaoler of Liverpool? It may j>erhaps be admitted that the learned counsel in favour of the rule was correct in his remarks, that it was not how far Watson might or might not bo affected by the error in the return, but I agree with him that the (juostion really is, whethor in so doing there has been an abuse of the process of the Court, a!id an attempt to treat the Court with contempt and disobe- dience ? But, upoli the discussion of the question, wliether oi not it was that the facts in th(! affidavits supersede all comment, yet the learned counsel (Mr. Ilill) has declined to enter int" that which was substantially the main question, viz., whethei this was a wilful error or not, and which the learned counsel said he left for the decision of the Court. If that be so, he is retreating from the question. Why, before punishment is awarded, the Court must be satisficil of there being an intentiou to treat it with contempt. When we examine the facts, what reason is there for saying that ? The Court does not resf simply 1 ignoran onduct iio volu '•im of I .'lafc Hat 'lay or a *s nothii :■ zealou But i : uck), t i-.!l veri) . r. a (list; watch hi ver, en The opi: ho fonnii occurred iiizaiit o: ^ anada. shortly t< srated in ;>urposes not sho ahandonc should be Mp. J. iias been for the cc with then bv'en gon uitli the not consii immate»Ii uhich thi lent retui The ques THE CANADIAN CASE. 101 lie ought to >pportuinty of il intention to as exciilpatod [jt therefore to ;e, I will not as been ^\vca\ e warrant was were, under 1, it was com • them to I'ng certainly does r business-liki'. I, wdiether the ndnient ou^ht known io ho ch liave I)een ons ^'ov consi- ■;, whether ai! of Tiiverpool ! nsel in favour is not how f;ir error in the ly is, whether of the Court , t and (lisol)e- n, whether oi all comment, to enter int-i viz., wdiethci \rned couns'^l ,t be so, lie is unishment h an intention lie facts, what loes not rest Ft I limply on the affidavits wiiich state that Batcheldor was utterly gnorant of the error until the motion was nmde, but in his onduct in other respects. What has been his conduct ? Did volunteer to take possession of the prisoner and abridge '•im of his lil)erty ? Not fit all ; for, by the affidavit, it appears riafc Batcheldor luw acted under the immediate authority of the •layor and magistrates of Tiiverpool ; and therefore I think there s nothing to show that he has gone too far, to show he was :■ zealous partisan to deprive tliis man of his liberty. But it has been said by another learned counsel (Mr. Roe- ' uck), that in proportion as the Court attributed to liatcln Idor i;!l verity, all knowledge, and all certainty, that he knew things :-i a distance as well as those before him, it is incumbent to watch him with a double degree of scrutiny. I will not, how- ver, enter into the consideration whether that be new or not. The opinion of the Court has been given, and I think it will he found that General Pitt, whenlie made his return of what occurred at Gibraltar, being in England, was not more cog- nizant of the facts than Batcheldoi- was of what occurred in f^'anada. Novelty in this case tiiere is not ; and if so, it comes >hortly to this — wJiether the party was ignorant of the facts stated in the return, or ^whether he has mis-stated them for the purposes of positive wilful fraud? [ think that the latter was not shown, and that the rule ought, therefore, to be abandoned. As to the amendment, I am of opinion that it should be made. v Mk. J. CoLEKiDGE. — 1 entirely concur in the decision which has been expressed by my learned brothers on the two poitits for the consideration of the Court, and I almost entirely agree vvlth them in their reasons also. JNIariy irrelevant topics have '),'en gone into, and I do not think we have at pre' '^nt to do with the conduct of the gaoler as to receiving Watson. I do not consider that the question depends on the materiality or immateriality of Sir John Colborne's warrant, for the point on which this rule turns, founds itself upon a criminal and fraudu- lent return, and contempt thereby practised by the gaoler. The question of materiality of the warrant is not im[)ortarit, B V. AfCnULUOB. I; I ) > 102 18J59. Queen t'. BArCIIKLDOU. AppUcation to tlie Court of Hxchcqutr for ;i writ oi' Habeas Cor- pus. THE CANADIAN CASK. nor whotlier the false return went to prejudice Watson or not. I do not say the gaoler was free from blame, for he 'ouinion that there is no foundation for this applicatiov As to the second point, of amenditig the return, 1 tliiidc it should be urantcd in furtherance of the truth of the case ; bat it should be seen that it would not prejudice Watson. Whetlier the warrant was mat^TJal or not, it is enough to say, tiiat it does not prejudice any ulterior remedy which the prisoner ni; y be advised to adopt ; and in this point it seems worthy of obser- vation, that the Court have offered the Counsel for the prisoix i an opportunity of learning whether he wished to state a ^ new idcts. I think, therefore, the amendment should le made. On the 24th January, Roebuck applied to the Court ol Exchequer for a writ of Habeas Corpus, to bring up the bodies of Parker, Wilson, Bn.vn, and Watson, on an affidavit of Mr. Waller, clerk to Messrs. Ashurst and Gainsford, the solicitors for the prisoners, which stated that he had ap))lied on their behalf to the gaoler of Liverpool, for a copy of the warrant under which ihey were detained, and had received the copy annexed, and also on an affidavit of Mr. Ashurst, stating that n was recited in the warrant that the prisoners had been convicted of treason, which stjitement he believed to be untrue, and thai they had never been tried by any Court of law. U()L:i«ucK referred to the case of the Hotfentot Fams *, to show that it was not necessary to support such an application by an affidavit of tlie party confined. * 13 East, 197. But ti i>r not 1 1 abeas .. 'jertaii rom hi the per 'o satisf ;o niid\« A ceo ^pplicat tating r sente they wc detalnc" down tl must ex jjrisonei vvhich tl vhicl. ci and whi It procei facie cas •anse td The ' ;he vali( nbservii mderst tv certai irulh of On 1 Fry, r motion ClTOR-< argumc Queen' one]. THE CANADIAN CASK. lU.'i Watson or not. for lie "oiiolit to But it appears nmodiately, not itands so uncoii- ise, that I have rule should he -ding, a criminal he would »\rn h him with the '■ I am, ther(j^ this apjilicatioif urn, 1. think it f the case ; ]>at tson. WhetJier to say, tiiat it le prisoner m;;y ^'orthy of o])ser- for the prison tr d to state a v lent shouhl lie > the Court of g" up the bodies an affidavit of Gainsford, the had ap))]ied on '"of the war ran f eived the copy :, stating tiiat ii been convicted ntrue, an({ tlial iW. RoEBCCK to show that )lication by au ^^^/"^ Qlekn V. B.VTtlltLDOfl. But ti»e Court said, " tliat there a reason had been assigned '^3'^ or not producing an alHdavit from licr. J^efore granting a Habeas Corpus to remove a person in custody, we must .. 'icrtain that an atli(Uivit is not to be reasonably expected rom him. An affithivit was liere absolutely necessary from the person who claimed the writ, or from some other party, .0 satisfy the Court that they were so coerced aa to be unable :o make it."'' Accordingly, on the following day, Roebuck, renewed his ■\pplication, on the affidavits of the four prisoners themselves, tating that they had never been arraigned, tried, convicted, r sentenced by any Court in Canada or elsewhere, antl tliat they were wholly ignorant of the term for which they were detained. Although in Sir John Uvbhouses case* it was laid down that the writ did not issue of course, but that the Court uuist exercise a discretion uj)on it; yet here they found the prisoners detained, under a warrant of Sir John Colborne, of ^vhich the force was spent on their arrival in England, and vhicli could not authorise the detentioi of any person here, and which contained untrue allegations as t!\e grounds on which it proceeded. That must bo enough to constitute a pri)/td facie case, and call on the party detaining them to show good '3ause to the Court for his Kct. The Comt granted the writs, as doubt had been thrown on ihe validity and legal operation of the warrant. Lord Ablnger observing, that he wished it nevertheless to be distinctly mderstood as his opinion, that when a man is detained under '■i certain warrant, he is not to be at liberty to question the iruth '.)f the statements in that document. On the 28th January, JIill, Falconer, Roebuck, and Fry, moved for the discharge of the prisoners; and their uiotion was resisted by the Attorney-Ckneral, the Soli- citur-Geneual, Sir F. Pollock, and Wightman. [The arguments were substantially the same as in the Court of Queen's Bench, and therefore both have been reported as one]. * 3 B. and A., 420. 104 THE CAN. Mil AN CASE. I' • ' li; I: iHri9. Ill Ka-ster term, 1839, Gth May; Loud Abinc;kr deliverei' ^"^'^ the jiKVnient of the C'ourt of Exclicquer us follows : — This is 1,, case ot a Habeas Corpus to the gaoler of Liverpool, on the retun I.ATCHELDOR. jq v\'hich a motion has been made to discharge the prisoner. .lii(lol Habeas Corpus, though the return should in some respects I.'e informal, or should go into matter not essential to the question. The return then in substance is this — that by an act of the legislature of Upper Canada, the lieutenant-governor, t: the advice of the executive council of that province, was enabled to grant a pardon under the great seal, upon S'.icJ terms as might appear proper, to such persons then under charge of high treason committed in that province as should petition the lieutenant-governor before their urraignmentj praying for [)ardon, and that the same act provides that i case any persons should be pardoned under that act upo condition of being transported or banishing himself from tha- province either for life or for any term of years, such perso. if he should return to the province before the period of his transportation or banishment, should be giiilty of felony and liable to suffer death ; that after the passing of that act, the prisoner was duly indicted at a special Court of Oyer and Terminer, held by authority of another act of the same legis- lature, for the crime of high treason; that before his arraign- ment, in accordance with the statute, the pusoner petitioned the lieutenant-governor, confessing his guilt of the treason charged against him, and praying that her Majesty's pardon might be extended to him upon such conditions as the lieutenant-governor, by and with the advice of the executive council, should see fit; that the lieutenant-governor did, with the advice of tVe council, consent that her Majesty's mercy should be extended to him upon condition that he should be transported and remain transported to her Majesty''s colony of Van Diemen^s Land for the term of fourteen years next ensuing the date of his arrival at Van Diemen's Land, to againsi princi^ Canadi had, i provin .person the ga the pa not CO submi if it V , gondii set fr< 'I'll I. (AN AIM AN (AST. !•! iixaF.R (le]ivere« lows .-—This is uoJ, on tlic retun jc the prisoner. >f the return ; ii > show that tf'- :iarge hiin l^><)\ ume respects We [ to the quest I. *n. y an act of th( -governor, tr province, was eai, upon s;ic' )ns then under vince as should r arraignniciitj rovides that i that act upo nself from tha- ■8, such perso. period of his of felony and that act, tlie of Oyer and he same lepi'=- e his arraign- ner petitioned f the treason ijesty's pardon itions as the the executive nor did, with jesty's mercy lie shouhi be :y's coh)ny of 1 years next I's Land, to vhieh terms and conditions the pri-^oniT assented, and there- ore the licut('iiant-L;overuor did, by letters patent uuder the seal of the province, remit and release the prisoner from all iiid every punishment that might be inilieted upon him by reason of the said treason so confessed, uiton the eonditiou. evertheless, that he should be and remain transjiorted for the erm aforesaid. The return then states, that there l»eing no means of conveying the prisoner directly fiom TTpper Canada to Van Diemen's Land, it became necessary to convey him first to Quebec, in Lower (^lanada, and then to iMigland, fin- he purpose of transporting him to \dn Diemen's Land, and that accordingly lie was transmitted by authority of the Meutenant-governor of Upper Canada to (Quebec, and thence, by authority of the executive government there, which issued letters patent in the name of her Majesty to command that the prisoner should be delivered to Digby j\[orton, the master of the bark Captain Ross, to be by him conveyed to Englaml, to such place as her IVIajesty should thiid< fit, to the end that yhe might thence be transported to Van Diemeirs Land: (hat jpigby Martin accordingly brought him to Liverpool, the same being the place wliich seemed fit to her Majesty, and which was the most proper place for the purpose, and there delivered him to the gaoler of Liverpool, who retains him in his custody whilst means are preparing to transport him to Van Dienien's Land. This is the substance of the return, against which many ingenious objections liave been urged, the principal of which seem to be, that the legislature of I'^pper Cairada had no authority to make any such law ; that if they liad, it could be binding only within the precincts of that province ; that it could communicate no authority to any .person out of that province, and therefore could give none to the gaoler of Liverpool; that even if it could have that effect, the pardon granted under that law being conditional, it was not competent to the prisoner to accept a pardon, whereby he submitted himself to imprisonment or transportation, or that if it were competent to him to accept a parrlon with such a , condition, he iias still a right to retract his consent, and to be set free from the obligation impose.\ Qi i;kn r. rrnKl-DOU. '■? ! 106 1839. Queen V. ; \\ ' TIIK CANADIAN CASE. All tliese topics have been elaborately argued on both side and have received due attention from the Court ; but in tl. view which we take of the case, we do not think it necessai to pronounce any opinion upon them. If the condition upo . v.'hich alone ^he j)ardon was granted be void, tlic pardr must also be void. If the condition were lawful, but th ; prisoner did not assent to it, nor submit to be transported he cannot have the benefit of the pardon; or if, having a»^ sented to it, his assent be revokable, we must consider hiu to have retracted it by this application to be set at liberty, ii which case he is equally unable to avail himself of tl.>c pardon Looking then at the return, the position . of the prison*?!- appears to be this, that he has been indicted for high treaso^^ committed in Canada against her Majesty; that he has con- fessed himself guilty of that treason ; that he is liable to be trie« for it in England; that he cannot plead the pardon which he ha: renounced ; and that he is now in the custotiy of the gaoler o Liverpool, under sucli circumstances as would justify an; subject of the crown of England in taking and detaining him in custody until he be dealt with according to law. Atjy subjects who held him in custody with a knowledge of the circumstances would be guilty of a crime in aiding and assisting his escape, if he be permitted to go at large without lawful authority. How then can we order the gaoler ol Liverpool, or any other person who has him in custody, with knowledge of these circumstances, to let him go at large ? If the prisoner cannot be lawfully transported under his presenf circumstances, it is to be presumed that the government, upon being so certified, will take proper measures for prosecuting him for the crime of treason in England. For these reasons, we are of opinion that the prisoner must be remanded. THE END. LONDON : IHAUBinV AN/) EVANs, I'ni.VmilS, WHITKrBiARS. ed on both side ourt; but in th hink it necessai le condition upo I'oid, the pardr lawful, but th be transported )r it^ hav^in^ u'^ List consithn- hin ?et at liberty, ii ;lf of the pardon of the prisoner for high treason hat he has con liable to be trim h)n which he ha; of the gaoler o jld justify an; I detaining hini to law. Any ovvledge of tht in aiding and i large vvithouf the gaoler ol ti custody, witii I go at large ? ider his presenf ernment, upon for prosecuting these reasons, landed.