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Tin; ordinance, it is said, was passed by a Lnsislature, incompetent for want of power, and could not therefore have the effect of suspending the Statute 31 Charles II, c.2, commonly called the Habeas Coruits act.— 2d. Tlie ordinance was passed, on the 8lh of November, after a Proclamation had been issued, for convening the Special Conncil. on the 9th of tht same month.— 3d. The Special Council, by which the ordinance was passed, was not appointed by Her Majesty. The validity of the ordinance necessarily depends on the extent of power, conferred on (lie existing Legislature, by the Imperil Act Ist Victoria, c. 9, and the exercise of that power, in conformity with the |)rovisions of the Sta- tute. It has been assumed, in argument, that this power does not extend to the repeal, or suspension of any act of Parliament whatever, in force in this Province, and it is urged, that as the Statute 31. Charles II, c. 2, makes part of the criminal law of this Province, and is, there- fore, in force, it could not he suspended by the existing legislature. According to the view I am about to take of this subject, it Is altogether immaterial, whetlier the Statute now mentioned be, or be not, part of the criminal law of this Province, in as much as it was within the competence of the present legislature, to repeal or sus- pend it, even though it he a part of the criminal law of this Province. As this is a point, on wliich I must be presumed to have a decided opinion, wliich it would bo unfit to conceal upon this occasion, I must, in frankness, admit, that I consider the Statute 31 Charles 2, to be, from the nature of its provisions, part of the criminal law of England, and that as such it has become part of the criminal law, which now prevails here, under the Statute 14 Geo. 3, ch.83. At the same time, I abstain from any discufwion of this point, 9.S being, in my opinion, entirely unnecessary to the decitlon of the (juestion be- fore tlie Court. To delcrmiD* the question, a« (0 flu competence of the power of the Provincial Legislature, tha 3d Section «f the Statute 1. Vict. c. 2. is first to be considered. — By this Section it is enacted, " that it shall be lawful for tht " Governor, with the consent of the majority of the said " Counsellors, &c., to make such laws or ordinances (or " the peace, welfare and good government of the said " Province of I/)wer Canada, as the Legislature of '' Lower Canada as now constituted, is empowered " to make, and that all laws and ordinances so " made, subject to the provision hcreiiiafler contained '< for the disallowance thereof by Her Majesty, shall « have the like force and etfect, as laws passed before " the passing of this act, by the Legislative Council and •' Asseinlily of the said Provinse of Lower Canada, and " assented to by Her Majesty, or in her Majesty's namcy <* by the (Jovernor of the said Province." The effect of this enactment having been, to confer on the newly constituted legislature, subject to certain restrictions to be presently mentioned, the same legisla- tive power which was vested in the suspended legisla- ture, it becomes necessary to ascertain the extent of the Icgisldtivc authority, held by the latter,and transferred to the former le>,isliitiirc. Bytlic Act3l Goo. III. c. 31. establishing the sus- pcniicd legislature, it was enacted '' that in each of the " said provinces (of Upper and Lower Canada,) respec- " tlvely. His Majesty should have jinwer, with the ad- " vice of the Legislative Council and Assembly of such " provinces, respectively, to make laws for the peace, " welfare, and good government thereof, — such laws not " being repugnant to that act." The terms of tliis en- actment plainly convey a general legislative authority, which rendered the suspended legislature competent to repeal, suspend, or alter any part of the civil and crimi- nal laws of Lower Canada, as well, that constituting the common law, iis that to be found in the statntes of Eng- land transplanted inta this province, and making part of the general bcdy of the law. That this power was thus conveyed, is expressly recognized in the 33d Section of the same Statute, by which it was enacted, " that all " laws, statutes and ordinances, which should be in " force on tlie day to be fixed, in the manner therein " after dir«ted,for tlie commencement of that act, should " remain and continue to be of the same force, authority, « andfiffeci, in eachci" the said provinces, respectively, " as if that act had not been made, &c., except in aofar <' as the same are expremhj repealed or varied, hj that " art, nr in m far as the same should or might, thereof. •' tcr, hy vlrtin' and under the autlurrlttj of that act, be " repealed or varied, hy //« Majesty, his heirs or sur.~ " ."cs.s'»r.?, by and T'l'm the advice and consent of the " LezisldineCnuiicHs and Assemblies of the said prooinccM " resiiccticely.^' Under the legislative power thus conferred, various alteratiopis (ii)wpre,from time to time, made in the crimin- nal law nf tliis provincp, by the suspended legislature, by repealing and mollifying Statutes of the Parliament of England and of Great Britain, which, having been originally made for England, and having therefore, proprii) vigore no authority in Canada, had become the law of this province, by a general Iiitioduetion of the cri- minal law of England. Tiiis legislative power was held, however, subject to the general restriction, under which dependent colonial legisliituros exercise their authority, namely, that nf not being capable of repealing, altering, or siispending any act of Parliament made expressly, for the colonies, or for Canada in particular. Tliis restriction, which is inherent In the constitution of all colonial legislatures, and is indispensalile, for the maintenance of the supre- inai'v of the parent or metropolitan state, was enforced, with respect to the old American colonies, in which it (11) Vide Provinrlal Statute! 41 Ceo. S. rb. 9., 4 Gen. 4. c. I., 4 Geo. i. c. 4., 4 Geo, i. c. 6., G Geu. 4. c. i. fl hailVon repeatedly viot:»tcrl, hy the ilntute 7 & B Will. X c. 'I'i. i i, wliinh statute was, l>V i-xprt'ss onautmtiit, intrndiiccd into, and bccamn part ol' thn law of Canada, under the 18th section of tlie act It (ipo. 3. c. 83, Hy the mh section of tin- statute of William Hifi Third, it Was enacted, that " all laws, byo-laws, iisages and ctiJ- " toms, which shall be in practice, in any of the planta- " tions, repugnant to any law mado,or to be maile, in tliis " Kinfifdom, relative to the said plantatioits, shall be iit- *' terly void and of none elTcct." The same restriction was, at a recent period, repeated, in more explicit terms, in the Imperial statute 6 Geo. IV. c. 114, by thc49tb section of which il is enacted " thi>t all laws, bye-laws, " iisai^cs, or customs, at that time, or which shonlil ♦• thereafter, he in practice, in any of the British pos- " sessions in America, which are in anywise repugnant « to that act, or to any act of Parliament made or tnere- «« after to be made, in the United Kinirdom, so far as tiie « said act should relate to, and mention the said plan- " tations, are and shall be null and void to all intents « and purposes." To these enactments has been super- added, tn the same effect, a similar declaratory provision, contained in tlie statute 3, & 4 Will, 4, c. 59, § 56, couched in the same terms, as those of the section last quoted. The last of these enactments was cited, in the ara;umcnt of this case, but for a ditfcrent ] irpose, from that for which it is now referred to. The fight of the suspended lca;i:lat\ire tn repeal, alter, or suspend any act of Parliament, whether civil or cri- minal, not made for the colonies in tjeneral, or for Canada in particular, but transplanted into, and makin,' part of the e;cneral body of the laws of Lower Canada,boing th".s shewn to be unquestionable, it is equally certain that the same power has become transferred to, and is now vested in the existins; lesrislatiire, under the 3d section of the Statute I. Vic, c. 9. above recited, unless some restraint on this power has been imposed byth" proviso annexed to that section, Thn power of alterina; the criminal law, it may be observed, was possessed and exercised by a for- mer Legislature of this Province, the Lejislative Coun- cil established under the Act 14 Geo. Ill, c, 83, con- stituted in the same manner as the existing Lei?isiature, but with more circumscribed authority, (a) The proviso which has been referred to is in the followinii; words : — " Provided also, that it shall not be lawful, by any suoh " law or ordinance, to impose any tax, duty, rate, or " impost, save only in so far as any tax, duty, rate, or " iMpost which, at the passing of this act, is payable •« within the said Province, may be thereby continued. '< Provided also, that it shall not he lawful, by any such ^ law or ordinance, to alter in any respect, the law now 'i existing in the said Province, respecting the constitu- * tlon or composition of the Legislative Assembly there- *' of, or respecting the right of any jierson to vote at •' the election of any Member of the said Assembly, or '' rospoctin? the qualifications of such voters, o" rcspect- <* ing the division of the said province into counties, »' cities and towns, for the purpose of such elections ; *' nor shall it he lawful, hi/ any nufh law or ordinance, to '' repeal, auapend, or alter ami provision of aivi Act of «' the Parliament of Great lirilaiu, or of the Parliament '' of tlie I'nited Kingdom, or of any Ad of Ihe Legi^a- '' ture of Lower Canada, nx now rumlitutcd, repealinq " or altcrin^r ant/ syWi Art of Parliament." This proviso is what is called a saving ;>roviso, the object of wiiich is to establish certain evceplions to the general enactment precedinsr it ; and it is of the nature of such a proviso, that it be not repiunant to, or incon- sistent with, the purview or body of thf art : if it be so, it is to he rejected. (/)) To the general legislative power f<0 Viile lir.^o, III. c P?, Ill.r. 1. BiulS<)r;eo. Ill.r. S (/.) Vide 1. JuD. 8S9, 10 1. Rep. 4T. ' II. Pinv. Ord. 27 Geo. Mod. 115. Plowd. 504. mnfi'ired by the enActmcnt hnmodUitely Jir^cfjinff, the provisu makes throe e''iu'rting the con- stitution and composition of tl\e Legislalivo assembly, 3d, The power of repealing, altering, or suspending arty provision of any act of Parliament, or any act of th« suspended legislature, repeating or altering any such act of Parliament, — The tirst of thene excenlions was obvi- ously dictated, by the consideration of the peculiar con- stitution of the new Legislature, excluding any represen- tation of the people, and the second was required by the Very principle on which the act was framed, namely, that of suspending, not of taking away, or altering the constitution, or composition of the then existing Lceis- lature. From neither of these exceptions, proceeding from special motives, therefore, can be inferred any in- tention, in the Imperial Parliament, not to give to tho newly constituted Legislature, in other particulars, the same power held by the suspended Legislature, nortu withiudd from the former, any power necessary for its entire efficieMcy, as a substitute for the latter. The third exception, by the use of the words any " Act of Parli,.- mcnt" wilhoiit limitation, has given occasion to a misrbn- strurtinn of the import of these wonts;— ai)ii.>construction ■vhii'.h will invariably occur, where the import of the law is taken from the mere letter, ex ncriptioiie /cgi'.'s qxia in llferis cut, and not from tho intention of the Legislature, and the real sense and meaning of the words which have been used. The words any " Act of Parliament" are con- strued, on the part of the applicant, as importing ermj act of Parliament whatever, which makes part of the law of this Province ; whereas, accordinij- .o a sound interpretation of these words, and the sense in wliiih, in our opinion, th^y were understood by the Legislature, (hey import, not everji act of Parliament, but such acts only, as have been made for the colonies in general, or for Canada, in particular. — If the former construction were adopted, the Proviso, instead of being consistent with the purview and body of Ihfc Statute, would be destructive of it, in priticiple and policy : — it would he so also, without the attainment of any reasonable ob- ject or purpose, and indirect contradiction to (he general policy, that has governed the parent stnt", in relation to its dependent colonial Legislatures, which have been permitted to repeal, suspend,and alter any portion of their laws, whether civil or criminal, not enacted for them, by the Supreme Legislature of the Empire, If (he cpn- struction now held (o be erroneous were adopted, the newly constituted Legislature would be absolntcly power- less. The criminal and civil law of this Province rests on the same basis, the Act 14 Geo. Ill, c. 83, by which the French civil law, and tho Knglish criminal law, are made the rules of decision : if the latter, composed of tie English criminal common iiud statute law, could not be altered or suspended, without violating the authority of that statute, so neither could the former, comjioscd, in part, of (he edicts and ordinances of the King of the French, be altered or suspended, without a similar violation. New laws are not made without interfering, more or less, with (hose which already exls(, and a Legislature established, according to (his construction of the statute in question, woiild be an object of contempt, without nnswcrinjany purposcof utility whatever. It is to he observed, a'so, that this constniction is given to a statute, (he object of which was to provide a remedy for evils of (he greatest magni(ude, which could only be expec(cd from a Govern- ment armed vi-ith unusual powers. The suspended Legls- lature, or at least, one of its branches, had virtually abdicated its functions, and rebellion had raised its standard, and threatened dcstniction to the existing Go- vernment, it was to meet and wArd olT evils, sttch as these, that the (titute now tinder considcradon wa« passed. nut m ! -From the 'villihilis 1st, TIk' B power of iimkiin ri;''ii(Tliii!^ thn con- i^islalivo assembly. , or Hinpoiidin!; arty or any act of tlm fcrin^ any such act fcoptioM was nlivi- 'I the peculiar con- iiliii'^ any reprpscn- ■111 required -hy tho IS frameif, namely, 'ay, or altering t)i« ion exlstinfi; Lfisis- ptions, procecdinij ' inlerrctl any in- V)t to i^ive to the sr particiilais, thn eirlslatiirp, nor to T necessary for it» ' latter. The tlijrd Y " Act of Parlii.- lasion to a miscdn- -aiiii>con,'itniction import of the law ione kc;;s qiue m f the Lna-islatiire, vords which have Hameiit" are cpn- ' importin'j rrrnj akcs part of the ■ilini,'' iO a sound ense in which, in the Legislature, snt, but such acts ' in general, or for :onscrii- <• will, orn rciw(<;nant inlcni." The roustruclion which we 'luintain is, a|i>o, strongly conlirujed by the policy which has dictated similar provisions, in other Statutes in pari malcria. 1 refer, particularly, to the Statutes above quoted— 7 8t M W. 4, r, 'i'i, 4 9. « Geo. J, c, 1 II, i. 49, and 3& 4 Will. 4. c. 66. It was the ehjeet of these provisions, tn declare and enforce the restriiint, under which colonial legislatures were to exercise their dependent authority : the sense in which the words any '• Act of Parliament" with wl'ich these legislatuics lire interdicted from any interference, are understood, in these statutes, may, with great projiriety, lo referred to, in determining tlie sense in which the san)c words are to be understood, in the statute now under discussion.' Now, in these statutes, the words any " law, " and iiny »' Act of Parliament" include, not Acts of Parlia- ment transplanted into, and making part of the general body of the laws, in any colony, but such acts, only, as relate to and make mention of the colonies. — A sure and sound e.xposition of the words any " Act of Parliament'' is thus obtained, from the legislature itself, by which all tliese acts have been passed ; and, in adopting this e.xposi- tion, on the present occasion, we run no hazard of fall'- in!- into error, as to the intention of the Imperial Pavlia- muut, inthe use of thcsauie words, in the statute, I Victo- ria, c. n. I cannot, however, pass over this ground ot construc- tion, without observing, that as respects the subject in hand, thisconstrnctionis further confirmed, by the stastute 14 Geo, 3, c. 83, already quoted, by which, on the perma- nent cstiihlishment of the criminal law of England in this Province, it was e,\-prcssly subjected to such alterations, as the C(donial legislature, constituted by that act, mli;lit think proper to make in it. Besides the expediency and fitni'ssof confiding such a jKiwcr to the local legislature,, with respect to a body of laws, made for another country, and, necessarily, requiring adaptation to the country in which it was introduced, the British Parlia- ment, it is to be presumed, wa« governed, in this enact- ment, by its general colonial policy already adverted to. The legislature, to which the power of altering the crimi- nal law is thus given, was constituted, precisely, as the present Provincial Legislature now is. This power havinsf been thus given' tn the former Legislature, when tranquillity prevailed within the Province, it could never have been intended to withhold it from the latter, at a period of civil commotion and rebellion, when the power of the local Legislature might require enlarge- ment, but could not suffer abridgcment,without detriment to the public safety. The power which is now contest- ed, as not belonging to the present Legislature, namely, that of suspending the Habeas Cm-pus law, it must further he chserved, would have belonged to the Legis- lative Council, established under the Act 14 Geo. 3, c. 83, and is incident to the Legislative authority of every English Colonial Legislature. It was exercised hy tlie suspended Legislature during a series of years, as may »een in acts passed hy it, annually, between the years 1797 aud 1811, (o). In rmmtries where the (a) Vide ProT. Stat, paued »nnu»lly from S7 Gee. 3, lo SI. Geo. III. c. 11 incluiire. principles of English Government obtain, the exercise of th)s power, in cases of civil commotion and rebellion, is, frequently, a matter of necessity ; and, even in Eng- land, where the liberty of the subject is lo strongly pro- tected, considerations of expediency have, repeatedly, caused this measure to be resorted to. From tno reign of William the 3rd, down to that of George the 3rd, at peiiods when the public safety seemed to require it, the suspension of the Habcan Cur/ius act has taken place. In susuending the Ualwaa Corpus law, therefore, in the recently convulsed state of this Province, the existing Le- gislature not only exercised a power, to which it was per- fectly competent,but a power which has been sanctioned, by the usage of the parent state,in cases of less urgency. The construction of the statute, which is now insisted upon, is further confirmed by the consider.ition of the concluding part of the Proviso, by which it is provided, that the newly constituted Legislature shall not repeal, suspend, or alter " any piovision of any act of the Legis- " lature of LowciCanada, as now constituted, repealing " or altering any such act of Parliament." Tnis ex- ception or saving of a certain class of Provincial statutes, from the power of the new Legislature, is made, in connection with the exception or saving of a parti- cular class of acts of Parliament, which immediately precedes it ; and to give efl'ect to this part of the proviso, two conditions must concur, Ist. The act to which this exception extends must be an act of Parliament of Great Britain, or ot the Parliament of the United Kingdom : and 'idly. This act must have been repealed or altered, by the" suspended Legislature. — Now, there arc no statutes transplanted into this Province, from the statute book of England, making part of the law of this Pro- vince, without having been enacted for the colonies in general or for Canada in particular, which had been repealed or altered, by any act of the Legislature of Lower Canada, as constituted at the time of the enact- ment of the Proviso, as to which the concluding part of this Proviso could apply : but there were, at that time, important statutes, made expressly for Lower Canada, by the Imperial Parliament, which, under an exprf ss authority of that Parliiunent, to that effect, had been in part repealed and altered, by the suspended Legislature. These statutes also, as in part repealed and altered by the suspended Legislature, are laws, which the most nu- merous portion of the inhabitants of the Province, that is, the inhabitants of French origin, are desirous of main- taining, in complete integrity ; wliile another portion of the inhabitants, thatis, the inhabitants of British origin, would readily dispense with, or alter, and modify some ol^ the provisions contained in them. Here, then, is a class of Provincial statutes, which, it would, natura'iy, enter into the policy of the Imperial Parliament, t i ■<)*ect against change or innovation, by the newly in-iituted Le- gislature, in which the influence of the le> . numerous portion of thcinhabitants might preponderate. The act of Parliament, establishing the constitution of this Province passed in the year 1791, (c) and the Act of Parliament commonly called the tne Tenures Act, (d) are acts of the description now mentioned, both these acts having, under the authority of Parliament, been in part repealed and altered, by the suspended legislature. It is plain, tlKii, from the concluding part of the proviso, that the words any "Act of Parliament" cannot be under- stood, as importing acts of Parliament, not made for this Province and transplanted into it, but must be undei- slood as importing acts of Parliament, made for the Colr- nies in general, or Canada in particular. So far as i\\U last class of acts of Parliament arc in question, the pro- viso, on the establishment of flie new Colonial Lcgisla- (^■^ Vide Brit : S'.at : SI. Cm : HI, r. .'il. (,/) Vide liii|) : Slat ; C, Ofo : IV, 1. W. •!. r : Cn Pict : Slst -.'J, Ova : IV, «: i'l. \ li Ure, ruu!it h« niidentooJ, u ma)ort *t abimduuti cnit- tttOf in thu ukt ot° the wonl* nny " Act of Fiirliuinenl," to have reitKweii and repeated (he restraint lin|)09ed an rolonlitl IcKixlation, by the ArU7 & 8 Will. III. cnu. -n, Soc. '>.-6 G.;o. IV. c. 1 14. Sine. 4!>, and .'< & 4 W. IV. c. fi9, 6t). already quoted ; while the coiicliiilini; part nt° (he provian, t'runi ipecial cotMideratioiiA, protocti nt^ainht repeal or alteiation, the clasii uf Provincial btutiites, uf which mention hiii just htv.i\ umilc. In ndoptliif;. tlx-re- fore, the cnnilructioii, vvhicli the Court putg on the Sta- (ute in question, the principal test of a aound and ^nod conitruction is found, in (he circnmstaurc of itn rcconcil- inj; the proviso with the pniview or body of tho atntuto, and the aevoral clauiea and partii oflhe statute, as well an i..s particular parts of tho proviso, with each other ■, thus eivinfl; full and entire cll'uct to the whole statute, nccurd- ing to the intention of the lc,i(iiilature, nud the sense and meaning of itj enactments. Although the reasonable and £ roper inrerpretatien of the statute, as understood by the ourt, IS thus cstahlishcd,('X ii'scn i/itis actus, without the aid of extrinsic circumstances, I may, ]ierh.'^p8, be al- lowed, so far to refer In the debates in the House of Com- mons, in relation to this statute, in its progress throusb (hat House, |)ortians of which have been cited in the argument of tJiis case, as to observe, that ihcsa debates, an reported, seem to confirm the ronstructinn which has been put on the concluding part of the proviso ; in.x^much as the protection of tho Tenures Act, in parti r, as altered and amended by the suspended Legisin , (a) ■gainst further alteration by the newly c< luted Legislature, appears to have furnishcil thu imme- diate motive for that part of the proviso. On the grounds now stated, the Court can entertain nn doubt, that (he first reason, which has been assigned, for the supposed invalidity of the ordinance, namely, want of power in the present t'rovincial Legislature, to suspend tno Statute 31 Charles II. c. 2, is without any foundntion whatever. The second reason, ur^^ed agniniit the validity of tho ordinance, is derived from the fact, that a proclamation wa« issued,for convening the Special Council on the Pth November, and that the ordinance was passed on the 8th of that month. It is to be observed, that the act, under which the pieseiit Legislature is constituted, prescribes no form in which the Special Couiicil is to be convened, nor does it require any specific interval of time to elajise, between the notice of a meeting, and the actual meeting of the Council. The third section enacts " that it shall be lawful for the Governor, with the advice and consent of the majority of tho councillors present at a meeting or meetings, to be for that purpose, from time to time, convened by the Governor, to make laws, &c." The manner of convening the Special Council is, there- fore, left entirely to tho discrclinu of the Governor. The «rdinanc« which is objected to purports, upon the face of it, to have been enacted by the Governor " with the advice and consent of the Special Council for the affaiis of the Province, constituted and assembled, by virtue of nn act of the Parliiuncnt of the Uniltii Kingdom of (ireat Britain and Ireland, passed in tho fir^t year of the reign of Her present Majesty, intituled," an act to make tem- iwrary provision for the government of Lower Canada." The Proelamation of the 9th Nov. is olTcrcd as presump- tive evidcncCjthat there was no Special Council conven- ed on the 8th. But this is an averment against the truth of what is stated in the ordinanee, by the legislature itself, and cannot, therefore, be received. (6) Acts of the I.egislaturo are rernrds of the highesi authenticity and authority, affording the most iibstoiutn proof re). They admit, therefore, of no contradiction, or proof to impeacit the truth of what is expressed in them. This Court (a) Vide Pro» : Slut: P. G«o : IV. c. 77. {bj Vidt Co. L. SCO. a. K Cutu. Dig. r. Record F.. p. 170, (c) 1 Gilb. CT. p. U. 1 St. p. S. p. 161. 1. Fh. on fid. ZU, rnunot, (h«refnr«,«n(ci1uin such a ground,(Dr lui)i«ar,liin| Ihv validity of the ordinance. Tlie tliird reason urved against tbu ralidily of th« ordiiianre is, that the Special Council has not been ap- pointed by Her Majesty. Hv the iA ifclkuii ut'tlin act I Vlciorla, ch. B, Her .Vl»jti. ly nihy •mioiN/t er mny aithnrnt llie (Jitrnnur i» appoint tlM Nprclal ( oiinirilorii, who are lu ruiu|K»e ecl«l Council, lilsiiol, ihei'ffurfl,uvor«>Mi',v. under ihln aci, thar the iiHiMiiialt appointment oi' aepclal i uiiiinelliirs aliuiilil prucefd from Her Vliijotv. riirKruuiidinn which the ralidily of Ijie oidhiHiice has been iinpoacbed btliig dUponed ol, we cijiie now tu Ihw second gi'iicral grouud.on which the applluaiit'ii i\^\\i tut lie wilt of NaAcii) ( uryiiii has been urged I hit ||><»')id in de- rived from the firnt section of Iho urdinaiiee priMcil un tlia 8lh Nnveniber, by which it Is enacted " lliiil im JihIko or " Justice of the Pence »hall hail or try any pe rnoii oi per> sonii ciinimlttrd as mentioned In the uidlnaiice, willioiil au order I'i'oni the (iovernur, &c." it has been cunliiulrd that the word "Judge," in this ordinance does not coiujiro. hrnd tliis Court, and, that theiefore, uo reitmiut lius ijveu laid ou iu power to bail the pri«uner.—'rhU point was railed, and detuiiuliicd by the Court ut' King's Ueiicb, hi Knitlund, nearly I5U yettis ago, which detcrniiiiatlon baa since con. tinned to be law there, and thercl'uie, very linle need bn said on this part of ihe subject betoie ii>. The words uf tlia onllnauce now referred to, Imvu beru copied from lliu En^li»h iitatutei, by which the tlabnuiLorfu* Aclliua been at ditl'erent periods sutpcnded, in Kn^luiic. 'I lie same Interpretation of IbeKo words, as now cuiilerJed for, was urged ill the case of the King t» th* huH olitrrtry ifiid others ill tbereignot Will' HI. (c)and wasthen held to be errunroii:), it being deterniiued, that the woidtin qiivstiuninchidml tlie Court of king's Ueiich, and reslialned tliut Coiiit from bailing tho piisouertf, charKed with the oHenccs niuiilluuvd III the statute suspending tliu llabtat Curput Act.— '! his de- cision has since been acted upon us law, Iroiu thut period lo the present, us may be ascertained by referring to tlie cases which Uavo since oeenrred. In the cuse of the h'iti^f ri. DtiiHifd, which was cited by >lie prisoner's counsel fur the purpose of establiahlng a dlft'erent proposition, no ques- tion was raised on this point, it being taken for granted that the Court liud no power lo bail the prisoner, The third and last ground, on which the Court is call- ed upon, to issue this Writ of Habeas Corpus is, ihr.t there is no discretion in the Court, to grant or refuse it, and that it must issue, as uf course, even though, after it has been issued and rt turned, the prisoner must be re- manded. This propositition, if true, would not be consistent with the general wisdom of the law, which does not re- quire acts of authority to be pcrfuimed, which can be of no use, to the party who solicits them, and would be per- fectly nugatory. But it is, we think, erroneous. It is, altogether, within the discretion of thisCourt, to grant or refuse a Writ of Uabcaa Corpus ; and convinced as we are, that if tho Writ were issued and returned, we must necessarily remand the prisoner, on the grounds which have been stated, our discretion would be ill exercised, if we were to issue it. The case of ihc King vs. Despard was referred to, in support of this ground, hut no such point was agitated in that case. The authority which gave occasion, for a time, to the supposition, that a Writ of Habeas Corpus was to be issued, as of course, was that of the King vs. Flower, (d) in which a hasty dictum fell from Lord Kenyon, that was supposed to warrant this proposition. £ t this point, afterwards, in 1820, came under consideration of the Court of King's Bench, in the case of the King vs. Hobhouse, (ftii c»iie,.,„|,j '••'•locinotconiprB. ' 'Mira.iit l,u,ia...„ ;''t'»liilw«iui,cd. "«"'cl<.itiKi.«lu„d '"•• li». .Ince coil. *«•> IKtIe used bn • 'hewordjofiln ■n copied IVoiii tliu f-'"-;"" Act lint been "«(;"'<;. 'J h warrant this "1820, came ' Bench, in the the dicturn of ed in law. On I as of reason, i»rdi in notij, '»P«rd, ; 'JR. m» »n i)( opinion that th* Writ of llabtoi Cmou* ouglit not to h« Krantdd, u of course, Inasmuch m if it werii iuupd, this Court, on thn application which Km bef ii madn fur It, would b« without power to bail or discharge (lifl (trtsaner. IlnwEN, Juitia, 'i'hr peculiar rircumstancM under which this appll- catlim is made, give to it more than the ordinary share of interest which attaches to every ijiiestion alfectinir the lilwrty of the subject. This application for a Writ of HiiIhuii Corptt* is I'ounried upon tlie alkdgvd invalidity of (hp OrdiiiaucRS of Ills Excellency Hit John Colborne, and the Special Council appointed for the I'roviiice, but moin particularly of the Uruiiianceof tiie 8th Novuinbur, IMA. 2. Victoiia— «h. 4. The Ant clause, however, of that Ordinance, if it be law, afTunls a complete and per- fect answer to the present application, and would enable the Court biiefly to dispose of it ; but in a matter of this importance-, it is fitting to go more at length into the coii- lideration of the subject, which is uneof infinite delicacy, 111 tending to involve the constitutionality of a Legisla- tive Act. The [mperial Statute 1 Victoria, ch. i>. which sus- pends the powers of the Provincial Legislature of Lower Canada, and makes temporary provision for the govern- ment thereof, authorises the Governor and the Special Cnuncil to make such Laws or Ordinances " for the " peace, welfare, and good government of the Province *' of Lower Canada" as the Legislature (as then consti- tuted) was empowered to make — and it declares, that all laws nr ordinances so made, subject to the provisions in tlie said act contained, for diiaUowance thereof by Her MajrMy, ** shall have the like force aiid fffect m laws " pa.wd before the pasimg of the act. by the Legislative " Council and Assembly and assented to by Her Majesty, " nr ill her name, by the Oovernorof the said Province." Tlirn follow several provisoes, the last of which is as fol- lows '. — " Nor shall it be lawful, by any such Law or '' Ordinance, to it-peal, suspend, or alter any piovMion of '< any .'Vet of the I'urliainent of Great Antotft, or of the '< Harliament of the UiMed Kingdom, or of any Act of '< the Legislature of Lower Canada as now constituted, « repealing or altering anv such Act of Parliament." Tlie Court is here called to put a legal conttruclion upon this Statute, and to ascertain the true intent and meaning of the restriction contained in the said proviso. It cannot for an instant be presumed, that the Imperial Parliament, having seen fit to susjiemi the powers of the then Colonial Legislature, and to substitute, during that suspension, another and diTerently constituted Legisla- tive body, with power to make laws or ordinances for the peace, welfare, and good government of the Province, words borrowed from the Constitutional Acts 14, Geo. 3, c. 83, and 31 Geo. 3, c. 31, could have contemplated the annihilation of the very powers thereby created, powers extraordinary in themselves, but arising from ex- traordinary circumstances, and the acknowledged neces- sity felt for such suspension. This Act, like all other acts of Parliament, must be so construed, one part of it with the other, that the whole may, if possible, stand, ut res majis valeat quam pcreat, and to give to it the effect for which it appears to have been framed. " Every Statute ought to be expounded, not according " to the letter, but according to the intent." (a) " Every Statute ought to be construed according to the " intent of the Parliament, and, therefore, if a corporation " be misnamed, if it appears that it was intended, it is " sufficient. (//) Again— « Such exposition of a Statute ought to be (a) Rol. 318. Bl. Con. I£l, 168. (») B. 10. Co. 57,-6. " /rimiurid, a« hinders the 8tiitule fioni being •Iviiril." (t) " The groqnd and cause uf making a statute explain theii'.^nt."((<) Unuer the authority of the statute 1 Victoria, ch. 9, divers ordinances have been recently enacted by the Go> vernor and Special Council, and amongst others, one bear- ing date the Hlh Nnvcmlier, 18:18, 'i Victoria, ch. 4, in- tituled, " An Ordinance to aulhoiise the appreheniion *' and detention of persons charited with Uign Treason, " Suspicion of High Treason, Minpiision of High Trea- '< «on, and Treasonable Practices, and to suspend for a " limited time, as to such persons, a certain ordinanca '* therein mentioned, and for other purposes." The prisoner's Counsel aMPtts tnu ahtdule nullity of this Ordinance, and contends that the Governor and Special Cnunrll had no authority to make such a law, because it purports to ituspeiid the provisions of the Act of Parliament of Great Uritain It Geo. 3, c. 83, which introduced into Caiuidu the Criminal law of Eng- land, and the Ual)eu» Corpui Act :<1 Charles J, c. 3, one of the principal I'catiires of that law. If it can be shewn that the Criminal law of England was not introduced into Canada by the M (ieo. 3, and that the 31 Charles 2, forms no part of the Criminal law, and never was in force in the Province, then the argu- ment of tlic prisoner's Counsel, in this particular, it wholly falluciouN. No principle in law is better understood, than that tlio Sovereign, by the effect of conquest, carries with him into a newly acquired territory the criminal code of his own kingdom, for neither ho or hit subjects know, and therefore, cannot be held to obey any other code of crinii- nal la^v. The civil law, indeed, of the conquered in- habitants remains, until altered by the will of the Sove- reign dtily declared,. Canada having been coiuiuered by the arms of His Britannic Majesty in 1769-60, the criminal law of England, by the elftct of such conquest, and of the Royal Proclamation of 7th October, 1763, rr(rtri>, it Imtrue, that lltoCiiniiiiul I.nw o( Fji;- titnil VVU4 ihliuilikiMl liilii Cnimilii, not liy Ihi' i4ili itm. I — lint liv <-'ri>"»'i>' "' 'hn Ritt ir it Wfrc Irm, thiit the ("rimiiiHl law nl' Kntrlmnl hnd lH*nii iiitrnitiiri'il hy thv Hlh (ii'o, II, c. Kl, hiiiI tli.it tlin (tnvi'rnnr mil Spi'i'inl Council mk |iiiiliiliiti'il Iiimii •utpenilin); the Ac If nf tliv Purlimnrnt ot " (iical Hii. fdin," or of tlin <> Vnilnl kiitudom" tliii mint lie iinilnr. Itnott with rrfini-o only to >uah Acti m wrrr (••pt-i-i- lilly wnacti'il lor tlm CnlonidH in ^'iMiRrnl or lor Lower CnnailHii) purtiniUr, hhiI whirh Ihn (.'oluiiial Li'Kislntiir)', •KSiirh, HhiI not tho )towi»r to alter or nflVct ;— Tim MUi Ono, 3, hownvsr Kbvc, vxpr^Mlv, to the Colnnial LvKi!*- Iiitiiro, thn |viwii liiw in till itN |iriivUii>ns, to it i^ a provision of thiit law, thnt the riiininal cuilu MAY hi; ai.tkhkp and ainenileil, anil cai»ci)Ui'.ntly, tlio MalirM f 'or;iiw, either nt ruiiimiin law, or iiiiiIit tliu Proviiifial Onliniince of 17M, which in lU'Hrly a Inins- cript nflil. Clis.'j, anil may lio ujitly chIIhiI the CaiiuHiiin Wnftfo.i Cnqim act, nioy lie attain lusiwrnleil, »» was hrrftdfori! i)oni> in the yeur IT.lT.anil «iilisi'(mi'ntly,liy tho then Provinriiil Le^iiilatiire, iiniWr the (mwers vonuilieil in thn British ilatiite of I7!ll. It has al«) hern contemleil, that ulthiiiitfh thu (tovrrnnr •nd Imperial Council uiijtht iii^penil the I'Mvineial Oidi- nnnre of 17M, they coiil'l not »iis|itnil tho Ml. (.'ar. *.'. «. 'I. that hein^ u Statute of the KiiiKiloni oi l''n)(lanil, 'fnnntnc: part of Ibn rrimimW '-w/c of that cuuntry , ami OS ttiM wilmUueil into Cmuiila, In my opinion, the Statute of 31. Car. 2. c. 2. forms |io part of the Criminal Coile uf EnKlaml, ami was not •vrr rnnsiilerrd as Inw In Canada, iiiilets indeed, by the mere coraory reference to tho title of it, to he found in the Init elaaie of the'Pruvinrial Statute &'i. (ieo. 'A, ch. •8. paaned in 1812. The Statute of Charles is not a cri- .minal act — it create* no new olfence, it imposes no new pnnishment, it was ninde to ensure u more ready chedi- •nee to the Common' Law writ of Halwus C'lryws, hy ini- poainK certain penaltica and civil riisahililics against per- aoiK who, in vacation time, might refuae to grant thu t*Til, or yield ohedience thereto. Tho lOlh and 11th clauses of the Statute shew, that it did not extend to the Colonies, that the writ mis:ht he directed and run into •ny County Palatine, the Cinque Ports, or other jirivi- ledjfcd places inV/iiii the Kint^dom of Kiipland, dnmi - nion of Wales, or Town of Berwick upon Tweed, and the Islands of Jersey or Guernsey, and mii{ht he ohtained ns well ont of the High Court of Chancery, or Court of Exchequer, as ont of the Court of Kind's bench or Com- mon Pleas, or either of them ; clearly shewing; that the Jvdffti and Courts *f WrMmtnnttr Hall were tliose only contemplated hy that Statute. That sucli was univer- sally nndurstood to he the case, ten years jfter the pas- sing of the Statate 14. Geo. 3. is manifest, as well from the dehates in Parliament on the passing of that Act, the history of that period, (o) the case of Pierre Du Cal- ▼et and others — imprisoned by General Heldimand in 'I7B0, and from the Memorial to the King— and the in- vestigation into the eanses of the amoval of Peter Li- viss,: Esquire, Chief Justice of the Province, by General Carleton, of the Ist May, 1778, as from the Provincial Ordinance of 1784, the Canadian Hahrns Corpus Act, the preamble of which is as follows : — " Whereas it has graciously pleased the King's Most Excellent Majesty, •' in his instrurtions to His Excellency the Captain ♦' GeneraLand Guvctnor in ChicfofUiis Province, to com C") Set ( baloier'i AomIi. ** mil lu tlw LaguUtura thcrrW, lh« coiuili|«ruii.>|i o/ *' making due proviiim fur the luciirity ol the peimuuil *' liberty uf hit lubjectt tlivtvin, and to lUKktnil, thai tor *' that purpose, the Lvginlatiiru iniiiil twt fulliiw a iMlter " nuaiiiple than that whirh the cninmoii law of Knul.iinl *' h.id tut, in the pruviiion ni,iile for a will lA llnln; *< ('or/iii.«, which it the right of «verv nriti«lMiil>|>'i I in " the Kingdom." And it tlirn gort on tu enuel, alinoKt in tht very words of the atutule, the snine proviMoim tt those ronlaiiied in the KM9;li«h IIuIhuk <'or;>i/ji Act III. (Ui'i. II. Now, if llii vincial ordinance 24 Geo. It, runiilitiite, prnpeily vpenk- ing,fliiy part of the Criminal Code, but are each ol lliein laws in aid of the prerogative or roininoii law writ ot Hiilicds Cnrpui ail mtijicimdHm to be iKsmiiin the cues of persons cliurged with some criminal oH'enrp, und uliu may, bv law, he entitled to be admitted to bail, orb* ilis- ehnrged from custody, Hut then it it taid, that hy the Provincial ptntiite 6'.', Gen. I), rh.N, passed in 1HI2, the slatiile 31. Car. II, is referred to as law in Canada — it may not Iheieforr he out of place here to contider what are tlie purviews of that slattilo. It is entitulril — " An Act to secure the libeity •*of the subject, by extending the powers of His Majesty 't «< Courts of Law in this Province as U)vitH*n( llnhamCi.i- " ;ms od sti/ijicicm/iim, and as to the means of enl'orring " obedience Id such writ." This statute conlains Off « r/di/xfs, of whirh the first lix relate, exriiisively, to Ibi' cites of persiuis confined or resliained of their liberty, otherxi'isr than for some rriniiiii't or niipjiomd criminal matter, and the several Jiidues of the Coiirti of law are thereby authorised in rnralion, to iiisue such writs ad Huhjicicndum returnable immediate, and they are enabled tn awnnl process of cnntumpt tKaintt persons not paying obedience tnsuch writs. -if It also authorises the Judges and Courts, if in their opinion obedience thereto cannot he conveniently paid in vacation, to make the writ retiirnRbIc in term— ami. If applied for in term, may, at the discretion nftbo Judge, he made returnable, on a ilay certain, in vacation. Judges are, likewise, empowered to examine into the truth of the facts set fcith in the return, and into the cause of confinement and restraint : these are among the principal objects of that Statute, and by the seVinlh clause it is enacted, that the several provisiontof (bat Ad, touching the making Writs of Halmts fV/»(s, issuing m time of varalion returnable in the several Courts of King's Bench, or for making such Writs awarded in term linw returnable in vacation, as the chsc may re- spectively happen, and also for awarding process of con- tempt, in time of vacation, against persons neglecting or refusing to make return of such Writs, shall e.xtend to all Writs of Jhhtuf Coi/mi.v awarded in pur- suance of a certain Act passed in the tliirty. first year of King Charles the Second, intituled, " An Act for '.lie '« better securing the liberty of the subject, and for the " prevention of imprisonment beyond the seas." And of a certain Ordinance of the late Province of Quebec, made andjiassed in the twenty-fourth year of the reign of King George the Third, intituled, «« An Ordinance " for securing the liberty of the subject, and for the «' prevention of imprifonment out of this Province," or citlicr of them, in as ample and beneficial a manner as if such Writs, and the said cases arising thereon had been herein before specially named and provided for. If then, prior to the .y«ar 1812, the English linhrns Cnrpua Act was not law in Canada, and I have attempt- ed to shew it wai not, no lawyer will he found to con- tend, that tlie mete reference to the title of that Act had icnrily 0/ IJ,, ,„„„„„, II. (., .MW,,|, ihai (or "J'l "lit Jullou) 11 |„.tt,,, "inoi. Inw „r |;„.|,„„| l',„. •'itp, prn|icrlv v|„,,.,|<. 'i"iin'fnr|,"„i ,|„.„| "iiiiiKMi Ihu- writ .,f i.«!.i|r,|j„ (do,.,,,,,, ;''''"'■'"'''' '""'"lio ''•'I lol'iiil, Hr0vlnrl.1l ()r<(in«nce of 17HI, wliicli, beinf ne.irly 11 lr.in«'ri|)t of Ihx Ntatiltn of CharlM, m*y hitvr iiiViMi ri^e to llie rnmal meittioii of i( M I'imnri in ih« clanno in qiieHtion. Yet, if it v/<>re Inw in f'.inadn, utill it doe« not lull iniilor the wnnlnnf tlin |irorltn, fur it ii noithem M.ilille of "f;re»t Britiiin," or of llio •• I'nitud King- dom,'' lint I1 • Slatnlo of ill* Kiniftlnmnf Kixf/unW, loritl iri iln niilnre, urtd never wh« Inw in ('iiniiila, nor ia llm «lii(hti'»t ^illusion ni^idw to it in thf I'mvinrlal Stalnlt 4iil)V'i|ili'ntiy ihiMfd in IWI, the I Oao, 1, eh. N, where- in more ample powetf arn ennfcrred upon Ihn Jndirci to Krnnt, i«!itii>, and determine upon VVriti of llalmu Cnr- pti% ml »itlijliirndum in raeiition time, nnderthn Ordinancff of l7Ht, and repealin); enrtain nioviiioiiit uf the Jiidtca- ture Art of I7!W. The effert of a iin«nen(il'm of the tlnlmu Curpun Art it not in iiHnlf to enalilft any one to impriion •imperled perwint, witlioMt trivinK any reason for 10 doini;, but it prevents pemnns who am committed, upon certain chaises, fiD'ti l> 'liii; hailed, tried, or diiclmrafed ^r the timv of the iiiion^i/ji/tfi/ altcndiii); an i(te)(Hl imprison- m nl. Ii \* the happiness of our Constitution, fai MtirkMnne Well expresses it,) that it is not left to tne Executive power lo lieterinine, when the danger of the State ii lo threat as to render this measure, (eonlinement of the per> »nn ill iraol) expedient ; for it is the Parliament only or T,ry,it(itii<,' pinrrr that, letirnfn^r it see.t prnper, can autho- rise the Cmwn hy snspendini; the Itafifan Curptu Act for a fhort and limited time to impriKon susprclfd permnn without pivlni; iwr/ rfiitrmn fw so rfoincr. In cases of er/remr enierircnry, the nation parts witli its liberty for a iiililli; in order to preserve it for ever, (a) The Ordinance of the l^th November is but a transcript cfttit! Ordinance of the 2Hd April last, 1 Victoria ch. 'i, which ordinance came iinilcr the considerstion of the ■ "iral authorities in Kngland, and even of the Imperial Tarliaiiient, in the discussion which took place respecting thii orctinance relatinn to thn banishment of curtain per- sons to P.ermndi, and had any doubts been enff rtained of tU leiralitv, would have been disiillowed with thn Earl of I)iirhani's ordinance in that behalf. The illegality of this ordinance of the Sth November is likewise on the fcrnund that His Excellency conld not le- iTaliy anticipate the period fixed by his proelamatiim for the meetinir of the Special Council and summoned it to meet at the city of Montreal on the Pth day of November, any law jiassed Iry the Governor and Council on the 8th, must he utterly null and void.— To meet this objection, it is, barely necessarv to consult the ImperiftI Statute 1 Vic- toria ch. n,which does not impose, upon the Goycrnor, the necessity of i'suins; anv proclamation to summon the Spi'cinl Council, and if from courtesy, the personsresidiiii,' at a di.ftancn from the present scat of Government, the formality of a proclamation, instead of a circular letter, or other mode of callinsr them from home has been observed, it can In no wise vitiate the prnceedlnfp. The Council are nnt bv Inw allowed to initiate hills, but to ^ive or withnid their assent to such bills as the Governor may from lime to limn think tieht to submit to their conside- ration. It is matter of notoriety, that Sir John Colbome was ohlijrnd Intake the field on the Jhh November, aeninst persons who were then in amis nttempting to snhvert Her Majesty's finvcrnmcnt in the Province, and thonce the necessity of submltlinsr to the Special Council on the Sill llie ordinnnce in question. fliit to revert to the caSc of the prisoner, /oftn Teed: — by his own shewino; it appeats ne is detained in the common gnol at Quebec, charged with suspicion of high (a) I. Ul. Com. 186. Colcrid(«'i Eing of tlie orilMiaaoff Ihu worda of it hainx, that all peiwiiM who aiu ur aliall ka in prison, or sUiarwika In cnatudy ii> this Fin*inu«,«t or ii^Hi tha day of makiuK and pasHinit theraof, or nfUVf hy miy warrant for any of lli« AirvKuinc utTnnces, may Im di-l.iined in safe cuatody without bail or nminprli* durhiK the contiiiUHno* uf such ordinancu, and no Jud^fl or Jiiitica of the Pence shall, liurt/y,' *im:A rmWintMnMy bail ortry any uerson or peraona ao committed, wilboiil an otijer from tlx (iovainor willi the lulvtca autl coMoiit iif the Executive Council of tlia Province. The suspensimi of thn ordinance 'it Geo. III. ch. 1^ conttiined in the second ilaHin, was by no moan* ntoas- sary for the luirpoM of depriving peraaiieso conlined from tliii bonelil of II writ of Halitiu Cnr/nts—iht rlitrt object of that clause appuius to have beau to Ax and linnit lh« time of thesns|M'nsii>n tu Ihu flrsi of Juiieiiaxt, and like-' WISH to prevent haraasing anils at law, from beini< brought axniixt IIm ministers uimI ullicer* of justice, who nii|||hl rei'uio to grant wriU of H«t)ta» Corjmt, nndef the enact- ments uf the tlrst elmiee. It has been argued, that thie Court ia bouiMl to isMi* the writ of //«tti Cor/n/f, and lo cause the prisoner to Ih! hroiiKht before it, and to exainiM into klie Krounils cf the commitment, even tho' it kliuuld not have the power to lilierate, try, or admit to bail, persons so accused. Tho lollowinf; autnorities will siillice lo shew the opinions of the Courts in Eugland und uf the United iStatueon tlut point. It is not compuhnry on tlte Court or Judge to jtrutt tho writ n( Iliiheii.^ Cnrpm.— \,m " The arguments against commitmer.ls on suspicion of " treason, are at least as strong, tor ni«rc sxispicion may " nof even anwunt to treasonable practices, anil yet they " are admitted on all hands to he Irgal. (n) As showing the intention of the House of Commons in the year 1774 upon the question whether the Habeas Corpus act was introduced into Canada by the 14. Geo. III. c. 83. the following proceeding of that body may be referred to " when all the clauses were rejected or agreed to and the Speaker was read'ng over the bill Afr. Dempster moved that a clause should be inserted " that " the Canadians should, on claiming it, hare aright tc " the benefit of the Habeas Corpus act" a division was the consequence of this motion, when the numbers were 76 noes, 21 ayes. Mr. Ma/eres the fir.t Attorney Gen- eral of the Province, on his examination before the House of Commons in committee upon the same act, adverting to the use of Letlrcs de cachet said " I cannot helj» " thinking that if they were used, the subjects against " whom they were employed would be without any " legal remedy against them. For if a motion was " made on the behalf of a person imprisoned by one of " them in the Court of King's Bench in the Province " for a writ of Habeas Corpus or any other relief against " such imprisonment, the judges would, probably ,"thiuk " themselves bound to declare, that as this wasa ques- " tion concerning personal liberty, which is a civil " right, and in all matters of property and ciril rights « they are directed by thu act of Parliament to have *< resort to the laws of Canada and not to the laws of " England, they could not award the writ of Habeas " Corpus or any other remedy prescribed by the Eng- " lish law, but could only use such methods for the " relief of the prisoner as were used by the French " Courts of justice in the Province during the time of " the French Government, for the relief of "a person im- " prisoned by the intendant or Governor, by a leitrc de " cachet signed by the King of France. And such relief " would, I imagine, he found to be none at all. There- " fore, if it is intended that the King's subjects in Ca- " nada should have the benefit of the Habeas Corpus " act, I appreheml it would be most advisable, in order " to remove all doubts and difficulties upon the subject, " to insert a short clause for that purpose in this act." By the foregoing citation I by no means mean to express my own opinion that a subject so imprisoned would not have been entitled to have, from the Court of King's Benchjin term, a writ of Habeas Corpus, at common law, (0 Per Lord Ch. J. Vaugban in Buihel'i cim— 2. Jon. p. 13. cited by Sir Wm. Blacki. in 3. Com. 182. (fc) Per Lord MantGelil, Hex. vi Cowle. 2. Burr. 8SS. 6. (0 Ueipard'i rate, 7. Ter. Rep. 743. (m) lb. p. 740. (n) Dnpard'i caw, 7 T»r. R«p. p. 7iO. 741 amov ofQ>|. byhil Apiill blyif hem) Provl latinJ petsol taviJ aifuT^ Quen Mr." 111,< <* ci^ Mth«^ i at ex of tlv CI F a' • P'otabl. cauM ta ht fe'eJ, »ometimps called y ore supposed to S' nuran,. upon a proner ff the power which .he ,-« re^.ef o„ i., ,he^ ^elected nSne where the the ofendanls, if t,,c ,V "'? Court did „ot here be doubt i„ the '^'■T treasonable ;,:'c! '> to be bailed. /m> -^;Mnd,et.hej: I '""f of Commons ,-,> I whether the «aiej I nada hy the H. Oeo, = ot that body „ay t re rejected or a/ree J .^r the bill ^X. "be inserted « that »'^« a division was first Attorney Gen- onbcfi,re the House ame acf, adverting " "{.cannot hcht « ^"bjeots against ^ '"' without any " a motion was Pfsoned by one of .'! '" the Province her relief against ". probably, think this was a que.,. '"^•h 's a civil ai'l cvii rif^i,,, 'ament to have ' t°.the laws of ^wnt ofIU,a, ""ethods for tile bylhePrench "ng- the time of ot a person im- "j hy a /f /,re ,lr ^nd such relief *',«"• There- ^y'yects in Ca- ffaheas Corpus 'able, in order "n the .subject^ e in this act." 'ean to express ^en would not ""■t of King', eommon law, I^P«i«-3. Job. Burr. 855. 6. but merely that he cOuld have had no raeh remedy In vacation under the statute of Charles II. As a part of Uie history of that period it may be observed, that ihortly after the passing of the act of 1T74, the memorial of Mr. Lwius to His Majesty, bearin,; date the 33d September, 1778, may be referred to. He was amoved from his office of Chief Justice of the Province of Quebec, by Sir Guy Carleton, for two motions made by him in the Legislative Council, the first of the 8th April, 1778, That His Excellency the Governor be hum- bly requested to communicate such Royal instructions as he might hare received relative to the legislation of the Province, the second of the 23d of the same month, re- lating to the appointment by His Excellenry of five persons, (calling the same a Privy Council) and of their having taken upon themselves to act as a council for the affairs of the Province of Quebec in opposition to the Quebec Act. In complaining of his amoval from office, Mr. Livius makes mention of the Quebec Act, 14 Geo. Ill, c. 83, as having « abolished the trial by jury in all " civil causes and of no provision having been made for " the security of personal liberty ; to take away these '< pretences lor discontent, soon after that act was passed, " His Majesty was graciously pleased by his royal in- *' structions to the Governor, to recommend and direct " that very ample satisfaction should be given in both " respects, and that the instructions for that purpose <' should be forthwith communicated by tlu Governor to « the Council. They have never, says Mr. Livius, to " this hour been communicated." The 13th of these instructions is as follows : " Security to personal liberty, " is a fundamental principle of justice in all free govern- " ments, and the making due provision for that purpose " is an object (he Legislature of Quebec ought never to « lose sight of; nor can they follow a better example than « that which ^he common law o'' this Kingdom hath set " in the provision made for a writ of Habeas Ccyrpvs, " which is the right of every British subject in this " Kingdom." In the petitions presented to the House of Commons after the passing of the Quebec Act in 1774, the following was constantly prayed for by them, •' That " the Habeas Corpus Act and the other laws of England " relating to personal liberty, be made a part of the « Constitution." A decision of the Court of King's Bench, at Quebec, rendered by the Commissioners for executing the office of Chief Justice, during the absence of Mr Livitta, may also be referred to as shewing the opinion of that tribunal that the Statute^ of Charles 2nd was not in force. 1 refer to the case of Pierre Du Calvet, who was imprisoned by order of General Haldimand, and remained a prisoner from thfe 27th Sept. 1780 to 2nd May, 1783, not for any supposed correspondence with the King's enemies, or for any other practices against the welfare of the Province, but for having written an expostulatory letter to the Governor, in a style which bethought too free. He petitioned on Hie 21st Nov. 1782, for a Writ of Habeas Corpus, and bis petition though supported by very able Counsel (Mr. Russell) was rejected by the Court, on the ground that the English law of Habeas Corpus (meaning I presume, the Statute of Charles II.) was not in force in the Pro- vince. Upon the whole of the case I am of opinion, that the prisoner's application must be over-ruled. That the sus- pending Ordinance of the 8th November last in no way militates against the provisions of any Act of the Parlia- ment of Great Britain or of the United Kingdom, or of any Act of the Legislature of Lower Canada, repealing or altering any such Act of Parliament, that the Ordi- nance lias been enacted by competent authority, is there- fore, a law binding upon all classes of Her Majesty's subjects until the 1st day of June next, unless sooner re- pealed or disallowed by Her Majesty, and, being made for the public good, it is to be expounded so as to attain its end. Tub BabIhs Compos Cats. QoBBic, 20(h Movemlin-, ISSli. /n Chamien :— Before the HonUe, Justices Pan et and Bedard. This day Mr. Aylwin appeared before the Hon. Jastiees Panet and Bedard, in Chambers, in support of a pctUloo addressed to the tint named Judge, for a Writ of Ha- beas Corpua, by Jolin Teed, a pritoner in Ibe Common Gaol of this District, on snspicion of treaion. Wednesdav, 21it Nov. This day, at 12 o'clock, their honors Messrs. Justices Fanet and Bedard gave judgment on Mr. Aylwin'i motion, to the following effect. The Judgment was rendered on the Bench, the Inferior Term of the Court of K. B. being then open. Mr. Justice Fanet observed that the present petition was made by John Teed, who set forth that he was a pri- soner In the Common Gaol of this District, nnderawarrant signed by Thomas Ainslie Young, Esq. Inspector and Superintendent of Police, accusing the said Teed of being suspected of the crime of High Treason ; and demandiug a Writof Habeas Corpus in accordance with the imperial Statute 31st C hs. II. cap. 2, This petition, which has been strongly opposed by the Solicitor General, representing the Crown, gives rise to a number of important questions, discussed on either side with mnch talent, learning and research. The first point mooted is, whether or not the Imperial Act SIst Chs. II.be law in this Province? To ascertain this, it wonid snffice to enquire whether this Act formed a part of the English criminal law when it was introduced Into this country by the I4th Geo. Ill cap. 8S, It would be very difficult to doubt that it did form part of that law. In proceedings of a criminal natnrc the first step > to arrest the person accused, and on this the per- son i^ntsted has the right of appeal to ■ superior tribunal, in oroer that, in the form of a Writ of Habeas Corpus, the legality, or otherwise, of his imprisonment may be de- cided. In England it has been so far considered that the Writ of Habeas Corpus formed part of the Criminal Law, that it has been held that the (lourts of Common I'leas and l<:xchequerliad nopnwer to issue it, because their juris- diction extended only to civil matters. Now, where in the Act of the 14th Geo. Ill which introduces Knglish'cri- minal law into this Province, is to be found an exclusion of the Writ of Habeas Corpus i I am still more atroDgly supported in my opinion by the Hrovincial Legislature having admitted in the 53 Geo. 111. cap. », that this Writ could issue equally underthe Ordinance tf4th Geo. III. or the Imperial Act SIst (hs. II. It must, therefore, be ad- mitted that it b impossible not to consider, as it forms part of the English criminal law, that it must also be a component part of our criminal code. The second question which preients itself is, whether the Ordinance cap. IV. lately passed by the Special Council affects the Imperial Act 31st Chs. II. } The answer to this question must be in the negative ; the Ordinance does not pretend to do so. If it had so pretended, the i^pecial Council would have exceeded the powers vrith which it is vested by lis Constitutional Act, for that act forbids it to repeal, suspend or change any pro- vision of any act of the Imperial Parliament. The Council then not keiog empowered to do so directly, cannot doit indirectly. Let it be observed, incidentally, that it is re- markable and highly satisfactory to ui, that this construc- tion which we put on the provisions o( the Imperial Statute constituting the present Legislature of this country, is in conformity with the expressed opinions of the most eminent legal men in the Imperial Parliament A number of other objections have been made to the legality of the Ordinance of the Special Council, and to the legal compo* sition of the Council itself, I ut I can see no necessity for discussing these difficult questioitatute8 that weconsulted, enable us to overcome the difficulty, and firmly convince us that we cannot, without palpable injustice, refuse tb« petitioner the writ of Habeas Corpus which he de- mands. Mr. Justice Bedard said, — Howeverit might be my wish to remain silent on the subject of the present appli- cation and on the judgment rendered by my fellow Judge, to whom the petition was addressed, 1 should consider myself wanting in the duty which I owe to the public it, in a matter so deeply interesting to every one who has tbe 10 •dvintue of being able to cbU hinuelf a Britiih tnbjeC I did not Tute the reasons w.ich I have for concurring in petitioner's prayer for a writ of Hal)cin forpus b^.-.^' sranted. I nave seriously thought ot the consequences which some Individuals who are more zealous than r»Hect- Ive may deduce from a difference of opinion between the existing legislative and judicial Biitborities ; and I feel the importance and advantage of their acting in unison. I will go further and say, that if 1 were called upon »s an individual, in a time of turbulei.cy, to make a sacrifice or my onn oersonal riglits for the peace and happiness of my country,! might do It ; but as a Judge, charged with pie- •ervlug the integrity of the laws of the Empire; also to assiii e the most bumble individual in society of all the rights with which the law invests him ; bound to fulfil these duties by •n oath of which 1 have to render an account before a tribunal infinitely superior to any that is human ; persnadcil as I am that the safety of the linpire depends upon the administration of the law of the land, and that the moral power of the Empire is in exact proportion to the cerlainly which every one ought to have that be will receive the pro- tection or chastisement of the law, according as he may be deserving of either the one or the other; I cannot hesi- tate in giving my opinion on th- present question. If I had the slightest doubt, I wo ;! 1 sive that doubt in favour of the legislative authority, but having none, I am un- willing that the Government under which 1 live should have to blush, for my sake, at the weakness of one of lis Jndges. (lod forbid that hereal'tcr, in speaking of the case of John Teed, it could be said of cither of us, who are charged with the administration ot'justice, what Idack- itone said in speaking of the affiir of Jenk^— ">evv sliifts and devices were made usii of to prevent his cnlar«ement by law ; the Chief Justice as well as the chancellor decli- ning to award a writ of Habeas Corpus lid aulijiciiiuliim in vacation although at last he llionght proper to award the usual writs ad rfe/iA<>ran(/«m. It is these subterfuges which gave rise to the Act Sl.st. I lis II. of which the present pe- titioner claims the benefit. This Act did not introduce a new cestom into England, it was merely a remedy to the subterfuges,— the "new shifts and devices"— which the Judges employed to evade the Common Law which then said and still says,- " no man shall be taken or imprisoned bv suggestion, or petition to the Kiuff or his Council, un- less it be by legal indictment on the process of the Com- mon Law." Now the ( (inimoii law hoUls as bailable, sus- picion of liigh treason, which is the caii.sc of coinmitnient o» the present petitioner. This " su.spicion of hijjii treason" is only a misdemeanor. In virtue alone of the axiom that no man can lie imprisoned withoiit a legal cause, the Ha- beas Corpus prayed for ought to be granted, in conse- quence ol the petitioner being detained for a misdemeanour only, which would entitle him to being liberated, on potting in bull, notwithstanding the Ordiiianfe of the -peti.i . Council of the 8lh November in.stant, suspending the i'ro- vincial laws relating to the Habeas I orpiis. Let lis con- sider the intent oftliis Ordinance ; and admitting, hypo- tbetically, that it has theett'ect of ^nspendiiigall laws HJiat- ever that relate to the Habeas Corpus, I will ask, with one of the last Commentators on Hlackstone, "tthat is tlie object of astispen.sion of the Habeas Corpus Ait .= Is it to enable any individual wliose deranged inia;:iuation inisjlit cause him to mistake for high treason one (jV the most legi. timate acts iu human life, to lay hohi of the person of any Hritish subject whatevei ? No. 'i'lie rule of the law is a safer tiling than the brain, well organized ordcraiip;ed, of any • individual whatever. I he (ommentator on Hlackstone says, " The effect of a suspension of llio Habeas oiis without giving any reason for so doing, but it prevenls persons who are romniilted upon ccrtHin ehaijjcs Iruiii being bailed, tried ur diicliarued, fur the time uf the kuipeiition, eicept under the provisjniis of liie suspending e.et." With this authority, §o replete witli sound sciisf, iiefore ts, how can we determine the reasons whicli the necuicr had fur lbriiiiiii> Ijjs suspicions, without granting the writ piaved for, and without the Hisislnnce of the deputitions taken liy tlje IMRgiktratt's. The Magistrate, ndniitting the suspension uf all the hiw uf Haljeas Corpus, cannot " imprison suspected persons ivitliout Bi»ing any reason for so doing." N»w, is not llie nmntin;; of the tvrit the only means of uhtainin;; the irasnns f Tliii rritson kingly, would lie iuIVh lent tncpnTiuco nneiif the iKcettit) if granting the writ prayed for, Let ui boweTcrconiult another authority. In looking at theease of the King «i. Deip*rd,in Iha 7ih Term Reports, p. 73'J, it will he seen that although the 38 Geo. IM. cap. 36, susprmtlng the Ilahens Corpus Act was in force, the ( niiit ordered that a writ of Habeas Corpus do is- sue The prisoner was brought into Court in virtue of that writ, and the Attorney General moved to quash the writ quia imyirnn'i/p fmiiiKin'/. The Court overruled the motion, saying that although it whs true the Court could not admit to hail, it didnot follow that thenril was illegally issued. In the pre- sent ease the writ ought therefore to issue, though of couise, the Court would, a« iu the ease which 1 have cited, remand the prisoner if the law required it. Hut a much more impor- tant question has been raised. It is that as to the eflect which the drdi.'ianee of the 8th N'uveinber, suspending the llakeai Corpus, has on that privilege uf the subject. It has relation to the pre.'.ent case and we oujiht to decide it. Is this Ordinance legal as to taking away the right which every Ijritish subject possesses, in virtue of the Imperial Act of 1771, of obtaining a writ of Halieas I orpus ? I am compelled to ^,lv, liral ii U.>a not the eflect of doing away with that ri^ht, in the first place. Iiecausc the Ordinance does not pretend to derogate from the imperi.d Act of ITTl, and, secondly, because, if the Ordi- nance had any such pretension it could not sustain it. Troui this arises and is decided the objection taken by the Solicitor General, for, well founded as that olijeclion may appear, I cannnt ailiiiit the inlerence which he draws from an ac- knoivleil^ed oiaiini. It is true, us he sa)s, that ii single Judge, iu vacation cannot he a judge of the exi>ling].();ieiu i ouncil eanni't he the existing l.eiiislature, us far as the Ordinnnce Mi-peniliii); the Ilaliias Cuipiis jiws, I aui forced tokay that it cannot. The ival '..c^islature here ii that iiieant to he eMalili>lied by tlic Imperial A( t ht Victoria, cap. 0. enlitlcd, " An Act to luuhe teuiporaiy provision for the Governnietil of Lower ' anaila, iVc." It is this law made by the Imperial I'ailianicht which I.ecomes eielusively ours. It i« this statute which liecouu s ihesole guide of all lejiislativc ns well Hsjudici.il authority in the country. Anil it is to Ihii Act of the 1st Vic, cap, 9, that the judicial authoiily owes iiopllcit ohedi nee, as emanatiiivi:.ii)n lor the w.ii.ls of ilie cuunMv. It in in vain to nsk, —i'', treason conspires, if irenyoii is in ann.s, if society i». 11 'Cferconiult nnothcr ngu. Dei|)«rd,in lh« that nltlinu|{li the M Corpus Act tvai in labcus Corpui do ii- rt in firlue of that I qunsli t|je wiit^ttia I Ills motion, sayioK not admit to Imil, it wued. In the prf- . tliough or cuiitix-, inve oiled, uniand niucli ninre iaipor- to the efTcct wliicli snding (he llabeai . It hiis lehilion to Is this Ordinance fry liritish subject 1774, of obtainini; I In s.iv, llliit II Ihij , in the first place, derogate from the ause, ir the Urdi> t tustain it. I'roin n by the Solicitor on may nppeiir, I laivs I'loin an ut- tint II single Judy's IK l.fyi'Utuic, but IIU l.ci;i»laturi', im as Cut [HIS ;:ni's, I -<'i;islnluie btre is I Art l-t Victoria, y provision for the thin latv made hy .'lusively iiuis. It of all IrjiiUativc And it is to Ihii il iiulboiily owes jprcniv lejiislutive I he right of the ■iiiuil, unless it be It bouuil to obey liitivc poMcr, to dinntc, ive niiitt :i'iiil ( ouncil, as in to ivhich the ; laws under cer- on of the Officer t juiIec the L,e- incijilu he made iniiot be admit- 1 subordinate le- i^iiid timt, be. itradictoiy lawt loi'dinate to the tncc to the su. Iiority. I mutt ) induce nie to I a decision in cul Lejiislatuje ' in every house of the act con. refusal, of per. ibcas Corpus ? ill vacation act. In vain ithorily of the , — the subor- c ■liidgcs owe (' the supreme ritiitliin in ilc- Miiy then any, nd to jiidfipe a • «»», that as ncral laws, it a hnv uhicli t is in viiiii (a ide siiflicient vniii to ask, if sucii'tj- i». menaced with total ruin, if necessity (that item law «if nature) requires and demands snch and such means of pro- tection ? Ask the answer from the Imperial Parliament. It is net n question to which the Judges bound hydnty to adiuinisterthelawasil is, canor ought to an? r. 1 will now Imik into the clfect which the Ordinanre '• tion can have on the ripht of Habeas Corpus. S ■ r - granted that the local legislature, being subordinate ti. ■;. Imperial rarliamcnt by which it was created, '••>nnt t M./ringe upon any of the provisions of the Act U' .■ virtue of which it exists; anil that its powers and attributes entirely result fi'iiin the Imperial Act Ist. Vic. cap. 1).— an act of which every section, every line and every word is imperiously authoritative over the present Special Council and the Courts of law. The third clause of this Act after conferring on the (resent local legislature, powers on the extent of wliii b, il' (I itiiin respects, I am not at present required to deeidf, ii:;>i.i iln se words "nor shall it be lawful by any such J^aw or Ordinance to repeal, suspend or alter any provision nf any Act of the I'arliiiimmt of CJrcat Britainor of the Par- liament of the United Kingdom, or of any Act of the Legis- lature of Lower Canada as now constituted, repealing or nlterlii!.'- iinv such Aci of Parliament." It would seem that the words '" of the Parliament of the United Kingdom," would h-ive been sullicient, hut the Legislature to avoid all pnssiliility of doulit.aa to its intention, goes back to.the lime of the Union of England and Irelanil. If words were ever manifest and distinct, as to their meaning, lliose which I have qnolcil are so. If it be true that when the words of a law are clear and distinct it is to those words that we must attach the most importiincc , if it be truf ; as it is said by all the writers, that yon innst look for the intentioris of the I^egislator in the expressions which Imenii loys ; if again, according to l)warris(p (i(il).) '•Where the puiviso of an Act was directly repugnant to the purview of it," (which certainly is not the case here, as tne statutory clause and tiie proviso are easily reconciliable,} ''the proviso slionld stand and be held a repeal of the purvicu, because it speaks the last intention of the lawgiver;" it must follow that the present local legislature eoiilil not repeal and can in no way sns|icnil or alter the Imperial Act of 1774 nor any portion of that Act which was niiule expressly for, and is in force in this country. The proviso of the 1st Vic. cap. D.sec. :i, is an express prohiliilion to meddle with iinv portion of the Impe- rial Act. lint, again, one of the provisions of this Act of the Imprri.il I'lirrninient ( 14 Geo. III. c. 8,i) introduces into tliiseniiiitrvthe Criminal J.aw of England. This provision