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32X

JUDICIAL DECISIONS

ON THB

WRIT OF HABEAS CORPUS

AD SUBJICIENDUM,

AND ON THB

^ROTIJVCIAI, ORDI]¥A]VCi:

2d Victoria, Chap. 4,

WH£REBY THE HABEAS CORPUS ORDINANCE OF 1784
HAS BE^N SUSPENDED;

WITH NOTES,

<-x

THREE'MJtVEnS, FEBRUARY IS39.

l/'# "

THREE RIVERS, 8d Oecember, 1838.

On the Petition of Celestin Honde for a Writ of
Habeas Corpus.

^.Ir. Justice Vallieres de St. Real explained the
grounds of his Judgment as follows :—

•^ SHOULD feel much regret in having to decide alone on the
difficulties of this case, were it not that the same questions which
have been learnedly treated before me were recently discussed by
eminent Counsel, and adjudicated upon, after a full consideration, by
a superior judicial authority in another District

I am not in the habit of swearing in verba magistri: I know that
the decision rendered elsew'iere is not binding in this place, but good
reasons are good everywhere, and truth is everywhere the same ; and
if I have drawn great resources from the labour of my colleagues at
Quebec, it is because I have found it to abound in good reasons and
important truths.

Celestin Houde, detained in the common jail of this District, under
a warrant of commitment on suspicion of treason and treasonable
practices and for seditious words, requires of me by his Petition*, a writ
of Habeas Corpus ad Subjiciendum. His Petition is presented by
Mr. Turcotte, who has argued the cause of his client with as much
ability as zeal. Mr. Vezina, of Counsel for the Queen, has exhibited
the same zeal and ability in a discourse having for its object that the
request of Celestin Houde should be rejected.

1 am requested to issue a Writ of Habeas Corpus. This is a legal

remedy, the origin whereof blends itself with thbl of the common law,
and which, like that law, is of such remote tradition, that its commence-
ment cannot be shewn.

4^ l«^a Mliiedy Olat has ft««n cmiflrivi«<lf facilitated and made more
efficient by several English statutes, namely, by the 16th Charles I,
chap. 10, and particularly by the celebrated law of tho 31st Charles II,
chap. 2, a law which the English nation compare to their great charter,
anii eihp)iati<Ally t«ll Ihe Mtabe^» Carput Adi,

Certain Writs of Habeas Corpus appertain to the Civil Jurisdic-
tion, such are the writs characterized by the terms ad faciendum et
najpietuhiiHt tidrtspMkitndwil^ ad.»aUi^atitndilin^vili[\ which we have
not to occupy ourselves^ ,

The writ now asked of me is the Habeas Corpus ad Subjiciendutfu
• writ of ii%h pitordgalive( th«( subject's writ of right, a recouTBe to
die oriminiat jurisdkiioni

2t it a Writ of high prerogative^ for it must efer be the right of tb«
sovereign to have the reasons explftinecl -10 him, why any one of his
subjects is deprived of his liberty, wheresoever it may be ; and as the
hfgii prcr0^tive» of the sovereign hav<» as it Were the same l^al ubi-
<|uity 9i tiie sovereign himself^ we must conclude hence \\vii tlie WHt
fitHabttts C4irpu$ ad Svijkiendmn is a part of ow public law, as are
liie writs of Memdanm*^ Certieruri, Prohibition^ Quo Warroftto and
others of the same noture that ore grounded solely oo tlie royal preiro*
gative.

The Writ of HiklMas Corpus ad Sulijieiendum is the Subjects' writ
«f right. P6r»onttl liberty is.* natural right, inherent to every Briiisii
wferjoct* It is a right unatieaable, such as a British subject can neither
kise nor jeopardise otherwiit tlian by committing some great crime, and
of whidi he cannot be deprived otherwise than according to the express
|iroviiions of the law. Now a British subject carries this natural
rig^t^ adhering to his person, into every part of the empire. It is tho
same at Quebec and in London, (or thb very reason, that it is the raWr
ritance and birthright of every British subject; but, above all, this
Writ ofHbbtias CorjMa ad Subjieieodtim is a recourse to the Cfiminal

)nrlR^iction. I have already observed ihat a British subject could not
otiierwise lose Ins liberty than by tho commission of some great crime,
und according to the precise dispositions of the law and one of the most
beautiful features of the law of England is that clet rness and precision
with w4)ich it has defined the lime, •causes and extent of a legal impri-
sonment. Hence the necessity of stating in every virarrant of commit-
ment the causes that have led to it, in otder that the Court upon a
Habeas Corpus may judge of their validity, and may, according to cir-
cumstances, either discharge, or bail or remaiid the prisoner*

But what Court shall judge of the circumstances of a criminal accu-
sation? It cennot be a Civil Court, which wouli be incompetent
rationc materiee ; it must be a Court of Criminal Jurisdiction : hence
the fetters that impeded the jurisdiction of the Court of Comr.ion Fleas
in this matter, anterior to the Statute 16 Charles I., chap. 10 ; for, of
common right the Court of King*s Bench, as holdinj^ the Pleas of the
Crown, had alone the fullness of Jurisdiction upon a Habeas Corpus
in criminal matters, and if by this statute the Court of Common Pleas
has been placed upon the same footing as the Court of King*s Bench
in relation to tlie Ilabeaa Corpus in criminal matters, tlie only infer-
ence thai can be drawn from it is, that in order to facilitate the exercise
of a right essentially vhal. Parliament has invested the Court of Com-
mon Pleas with a criminal Jurisdiction which it had not before, and it
was unquestionably in the same view that the same jurisdiction was
communicated by the statute 31 Charles II, chap. 2, to divers other civil
auihoriiies.

The Writ of Habeas Corpus demanded of me is considered as a
Writ of Error, to obtain the revision by a superior tribunal, of the cause
of im{)risonment stated in the return, and in that point of view also the
Writ of Habeas Corpus ad Subjiciendum is necessarily within the
scope of crintinal jurisdJction. It is the accessory of a criminal cause
and this accessory is constantly of the same nature as its principal.

But iftha Habeas Corpus in criminal matters be a recourse to the
criminal jurisdiction, then of necessity, the commpn law which creatjed
it and the English Statutes by which it has been secured and improved,
arc parts of the criminal laws of England, and since the statute of the
14 George III, < !iap.83, bag given ui those criminal laws to the exdu-

sion of all otben, it must be granted that those parts of the commoik
hiw of England which have imparted existence to the Habeas Corpus
in criminal matters, and those English Statutes that have rendered it
more beneficial and effective, particularly tha statute 31 Charles II,
chap. 2, have been established as laws in Canada by the statute 14
George 111, chap. 83.

if this reasoning required conikmation, it would be found most com-
plete in the Provincial Statute 52 George III, chap. 8, clause 7tb,
wherein it is enacted that the several regulations therein mentioned shall
apply to ail Writs of Habeas Corpus issued in virtue of the statute 31
Charles II, chap. 2, and under the Provincial Ordinance 24 George
111, chap. 1.

* But if the Legislature has precisely recognieed in a public law tliat
the English Statute 31 Charles II, chap. 2, may be the basis of a
Habeas Corpus m this Province, what Judge, what Court, what Pro-
vincial Authority shall have the power to assert the contrary t

I have not the pretension of adding to the authority of an Act of
the Legislature, but I cannot refrain from stating the fact that the Pro-
vincial Statute of 1812 was penned by a celebrated personage^ equally
<pminent as a lawyer and as a Juf^e.

It is certain that the Habeas Corpus laws existed in Canada, even
before the statute of 1774, as part of the criminal lawsof England intro-
duced by the Royal Proclamation of the 7ih of October, 1763, and the
ceiiainty of which as well as their mildness and the benefits and
advantages flowing from their execution had been sensibly felt by the
inhabitants of the country from an experience of more than nine years,
duiing which they had been uniformly administered. This is fully
))rovud as well by the statute of 1774 as by the discussions and petitions
which it occasioned, in several of which the men of a party complained
that this Act of Parliament, by restoring the ancient laws of Canada for
the decision of controversies in matters of pr(^7>erty and civil rights, had
virtually abolished the Habeas Corpus and given up the Canadians tp
the rule of Lettres de Cachet and arbitrary imprisonment; yet if we
barely cast our eyes on the statute we shall be convinced that the
Britii^h Parliament when it rjiivoked the Proclamation of the 7t}i of

October, 1763, repealed the English criminal law* for a meie instant
of reason, since it enacted that they should continue to be administered,
to the exclusion of all others. But if the Habeas Corpus laws were
part of the English criminal laws introduced by the Proclamation of the
7th of October, 1763, how can they not be comprised in the same cri*
ininal laws which arc to continue to bo administered in virtue of the
statute of 1774 ? Are not the criminal laws of the proclamation and the
criminal laws of the statute the same ?

I say then, that the English Statute 31 Charles I(, chnp. 2, was
introduced into this Province by the British Statute of 1774 ; I say
that the common law of England, modified and improved by the several
statutes relating to the Writ of Habeas Corpus, became the law of
Canada by the same act of legislation ; and that our Provincial Le-
gislature has recognized the English Habeas Corpus Act as the law of
this Province ; and since there has been done nothing to repeal these
fundamental laws of civil liberty in this Province, they exist at this
Boment in their full vigor, unless their suspension be the legal result
of the ordinance passed by the Governor and Special Council on the
8th of November last.

The learned Counsel for the Queen produces this ordinance to me
as a law, adverse to the claim of Celestin Houde and which I am bound
to obey : the learned counsel for the prisoner, on the contrary, assures
me that this ordinance has not suspended the Habeas Corpus intro-
duced with the Criminal Laws of England by the statute of 1774, and
moreover that I cannot obey this ordinance without violating an Act of
Parliament, and he reads the statute 1 Victoria, chap. 9, as containing
d clause that annuls the ordinance. Thus am I placed between the
grave inconvenience of rejecting an ordinance, probably useful, perhaps
necessary, of the Provincial authority, &nd the inconvenience at least
as great of contravening an Act of the Imperial Parliament. In this
perplexity as in ail the intricate questions daily presenting themselves
befure the Judges, there are, happily, certain fixed principles which
being applieJ give the light and lead to the truth. To ascertain pre-
cisely the extent of obedience, we need only find o^t the precise extent
of authority, the one being necessarily the measure of the other — an au-
thority without limits requires an obedtfince vithout bounds ; but when
the power is limited, its boundaries are^^lso the bounds of obedience* '

i-.

There are in everj governnR«n<t« supreme aiMkoritjr and subordiiiate
authorities.

The supreme authority of the empire of which we oonstitMe a p^jrtioa
is Parliament which can do all things. >

We may class amongst the subordinale anthorrties of this emplM
those Legislatures which have been establislied in several British <^»>
nies and Provinces by divers Acts of Parliamentt with powers defined
and limited by those acts. Such subordinate Legiiilatures may de all
that which does not exceed the boundaries given to their powers by lh«>
supreme authority, but beyond those limits they can do nothing.
This applies to every limhed authority. Thus, when a Judge or Tribu-
nal has exceeded the bounds of its jurisdiction, thetbing is very corro(!fly
said to have been done coram non jndice ; but the application «f this
rule is of urgent necessity when the subordinate autliority is at (he satn6
time an exceptional one, extra ordmem^ such as the existing LefislaluM
of this Province, grounded upon the temporary euspension of the tight
which appertains to every British subject, to obey no otfher laws lliaa
such as he has constitutionally consented to.

Governed by those principles, a Ju4ge tinds in «A Act ni Partia-
ment the reason and the rule of his decision : *tis enough for hfm to
understand, and ho obeys it; bat in deciding npon fhe ordinance oTm
subordinate Legislature, the Judge has a double duty to performs Ho
must peruse the ordinance, to ascertain what hi commands, and lie
cannot do otherwise than examine the aot which constttotes ihe in/boTA-
nate Legislature and the limils thereby given to k*s powen, for if ft 'hat
exceeded those limits, whatever transcends them ^has been ordained
without legislative power: but w4ien <he limited Legiflflatare1uni:tm«
fined itself within its limits then its ordrnance is a law nd miait%b
dbeyed.

Applying theise roles to (he preseiftt^se, Ilittre'naStriftitocrtfpa-
Ions attention the ordinance of the %d Victoria diap. 4. I there fiu8
that the Provincial Ordinance 24 George HI, diap. 1, ti^hith' is oar
Provincial HabeoB Carpus Aet^ js suspended nntM the 1st of June
next, 80 far as relates to c^sbs of High TfeasoA, "SuspUHtm tf 9tifl
TmnniMi$ptittHdfBi8% TnuttmaATrtMnOifk ftadita.

k read alao, and this in the irst datisa, that all persons committail
by wnrrant for High Treaton^ Susuicion of High Treason^ Mispri*
ton of High Treason or Treasonable Practices, f>hall be iccpt in wifo
custody wiilioiii bail or mainpii/.e during (lie continliHiice of ihis ordi*
nunc(>, and Um( dining the same continnancci no Judge or Justice of
tliK Peace shall bail or try any person so committed, without an order
from (IiH Governoi with the advice of llie Elxecutive Couucili any laVi
ordinance or statute to the contrary notwilhstandingk

The suspension of the Provincial Ordinance 24 Qeorge IITt ch. %%
seems to admit of no diflTiculiy, and will not occupy us any more ; but
the learned counsel for the Petitioner argues, that notwithstanding that
suitpension and the terms of the first clause of the ordinance under con-
sideration, his client cannot be deprived of the Writ of Habinu Corpu*
he prays for ', according to his view, the statute 1 Victoria, chap. 9, has
the ('fleet of annulling that clause, which of itself enacts r- thing directly
ngainst the Habeas Corpus : and in fact, the same <hird clause whicti'
confi'rs at first upon ihe Governor and Special Council, the ponder to
make laws -Mid ordinances lor the peace, welfareand good governiient
of thin Province, such as the Legislature of Lower Canada as thei|)
consiiiiiied, would be authorised to make, contains this amongst other
restrictions," it shall not be lawful, by such law or ordinance, to lepeal*
" suspend or alter any provision nfany Act of the Parliament of Great
** Britain or of the Parliament of the United Kingdom or of any Act of.
** the Legi»latnre of Lower Canada fot* repealing or altering any sucb
** Act of Pailiament.*^

The first clause of the Ordinance 9d Victeria chap. 4, does not '
directly suspend any provision of any Act of ParliKment or of the Le-
gislature of this Province, and Would appear, at first sight, to be in
nowise contrary to the restriction contained in the act which constitutes
the Provincial Legislature now existing, but if the statute of 1774 has
introduced into Canada all the laws of England, traditional and written
in criminal matters: if the common law which has given existence to
the Hahr.as Corpus : if the written laws, and namely the statute 31
Charles 1 1, chap* 2, which havo made it more beneficial and eiTective,
are part of thpie criminal lavs, then t%ose Itvs, coaunon and vritton,
are «s k «Koro transcribed, wi4 ombodiod in tbo iltUilo of If 74 ; and

then, every TegisTative saspension of the rights and remedies awarded!
by (hilt coinmnn hw, and spouvd by those statutes or wrilteii lawsy
would be virtiMlly, though iiirlire^Mly, a siis|)eiisiori of a priiicipil |»rovi>
sioii of the Act of the PaiTiaiiMMTt of Gn'ai Briiaiii 14 Grorgn IIL
cha|i. 8<3, a snspension that woiil() be imiII accoriiog to ilie tHruK of
the constituting statute, 1 Victoria cliap. 9. But it suffices iu the pre-
sent state of the case, toadjudi^e that ootwiihstandinu the su«pRiision of
the Provincial Oidinance 24 George lit. chap. 1, thero are still cxi^t*
ing in this Pruviucc, by force of tho British statute of 1774, laws in
virtue of which tlie subjects of the Quee!>, being deprived of their
liberty on a criminal accusation, liave a ri^ht to a revisal of ihe catises
of their imprisonment, by V/ ni of Habeas Corpus; and this I do
adjudge, after mature examination, saving the questions that may follow.
For the Ordinance 2 Victoria, chap. 4, has only suspended the Ordi-
nance 24 George II [. chop 1. It did not, nor could suspend the Bri-
tish statute of 1774, or the criminal laws of tingland which it bus estd«
blishfd in this Province.

Very loud cries have been uttered about the circumstances of the
country, the danger of a collision between the Executive and Legisla-
tive authorities, and the Judicial powers has been painted in lively
colours. We have been told that in times of rebellion the laws are
dead, and the learned Counsel for the Queen has said, tbit ilie weal
of the state, that necessity, was the supreme law which every thing*
must obey.

I grant that the circumstances of the country are difficult, but let the
law giver look to circumstances ; the Judge looks to the law : and if
rebellion has killed the law in another part of the province, it cannot
be charged with the legicide in the District of Three-Rivers, for there
has been norebeHion, no sedition, not the smallest popular commotion
in this happy and peaceful part of the Province. To anticipate the
collision spoken of by the learned Counsel for the Queen would be
presuming against law, and I do not consider myself at liberty to enter*
tain such a presumption. I assure myself that my judgment if erro'
neous, will be corrected by a legal authority superior to mine : and if
it be not vacated in a judicial way, I make myself equally sure that il
will receive ii*s ejwcution, and will be respected by all the aiUhorities-
•f tbe country.

The greatest public ^ood, the most pressing necessity in my opinion
is, ihiit we shotilil respect the laws, even when they tliwart our desires
and resist uiir viewer for lawo are ihn ronitiiun salV'gurirl of govern*
nieiitii hihI of natiuMs, and there can exist no society or government
witlioui ilieiii.

Tht* learned Counsel for the Queen, who has had ilip modesty of
statint; his Hrgumenis in ilu.> shape of doubt", lost iiothiu(> by it, for I on
my pail have coiisidend h s doubts as weighty objecMious. Upon una
of llieni in particular I aui anxious to satisfy hiui. I uieau that which
makes hiiu fear that according to the terms of the Provincial Statute
34 George Hi. chap. 2, I,as judge of Three Rivers, should be disabled
to grant a writ of Habeas Corpus in criminal matters. I think the
fears of the learned Coimsel wdl vanish if he will take the trouble to
cast his eye on the Provincial Statute 10 and 11 George IV. chap. 22,
clause 2, by which it is enacted, that the Resident Judge of the District
of Three Rivers shall have and possess therein all the jtu-isdiciion,
powers, auihoriiy of which the Justices of the Courts of King's B.-nch of
the Districts of Quebec and Montreal are Invested in the said DiMricts
respecii\el)' by any laws in force in this Province, aiid also all the
powers, jurisdiction and auihoiity which were then vested in liie Pro
vincial Judges of this District.

I am therefore of opinion that there exist in this Province Habeas
Corpus Laws in criuiinal matters, which are inaccessible to the powers
of the existing Provincial Legi>lature, and [ hold that the Resident
Judge has all the jurisdiction required to carry those laws into execu-
tion : therefore 1 grant to Cclesiiu Uoude the Writ of Habeas Corpus
which he asks of lue.

«i

It'

MONDAT. 7th January 1839.

On Petition of Joseph Guillaame Barlhe, for a Writ
of Habeas Corpus.

Mr. Justice Rolland on giving Judgment, spoke as
follows : —

ON the Petition of Joseph Gulllaume Bnrtho for a Jluheas Corput :
hit imprisonment being on a charge of treasonable practices.

Messrs. Vezina and Dunioulin, of Counsel for the Queen, have
been heard : they have argued agiinst the application, and grounded
themselves on the Ordinance of the Admini>uator of Government and
his Special Council, of the 8ih November, chap. 4, which suspeiids the
Habeas Corpus.

It would seem that this ordinance onght to pMt an end to the dis-
cussion, for it is formal, and forbids the Judges from b tiling individuals
accused as is the prisoner: but the prisonei's Ciiiinsel coiiiend that
notwhhstanding this Ordinance and it's iiijiinciions, the Judge ought
to award the Habeas CV^n«, because the existing Logixhiure which is
exceptional, has exceeded ii's powers, and thit whiievcr it has done or
ordered beyond it's attributions is ipso jure null. That an Ordinance of
• subordinate Legislature, to be valid, niiisi be aniliori/.ml by ii*s char-
ter, and that the existing Legislature was cioaied merely as a lonipo-
rary substitute, with very limited powers, for the Ctmsiitutional Legis-
lature. It is therefore stated in opposition, that the Imperial Statute
1 Victoria, chap. 9, contains a proviso concluding in these words :—
•• nor shall it be lawful, by any such law or ordinance, to repeal, sus-
pend or niter any provision of nny Act of the PnrliMMOt of X2f«nl

■■'}

** Britain or of the Parliament of the United Kingdom, or of any Act of
** the Legislature of Lower Canada, as now constituted, repciiling or
altering any such Actof Pniliiunent," and th;ii the Ordiniince in quKs-
tion suspends the RfTectof an Act ofUiL' lin)M>ri>it l*'irli imenl, byiihiT-
ing the Criminal Lhws uftlu' cunniry, \vhi<-h can nut br. ReleKMice
is made first to the Staliiie 31 Charit's II. rhip. 2, calh'd iIih Habnas.
Corpus Act, and next (o iIim 6iatnie 14 Georgu 111. wliicli, it is said,
lias ititiuduced the Criiniiiai Laws uf b^iigland into (his Cuiiiitry : tiiusu
two arts, it is coi tended, aro nut nor can be re|i«.'Hk>d : thuy aie still in
full force : tlify allow the Habeas Corpus prayed (or, which the Judge
cannot refuse.

And liereaiiscse\'eral important questions: and the first is mooted
by the officer of the Crown, who mainiaiuA that thu Jud^e cannot pro-
nouiice in opposition to this Ordinance, which is an Act of (he acknow
ledged L(>gi>l>tiurc, (he oidy one exis(inj> in the Province ; and that all
ii*s Oidinancesare law: that (hey must be obeyed though it were even
true that the Legislature had exceeded ii's powers and transcended itV
attributions. If (his proposidon is true, all a Judge has to do is to read
the Ordinance, to understattd ii*s meaning and conform to it.

.It

.1)

■J

Without entering into a discussion of this question as if it concerned
an Act of thu Imperial Parliiuient of the supreme and sovereign Le-
gislature, 1 ought to say in this place, that a Judge might, in cerirtiii
cases, be called upon to examine wheiher the existing Ijegislatiiro of
Lowei Canada, created by Act of Pailiameni, which might be compared
to a Commission or Charier us was [traciised in the old binglish Co^
lonit's, ^<4.j authorising (he Governor with a maiori(y of a Council of
not le>s (h in five members, to pass certain laws and n) others, has ex-
ceeded ii*s poweis. It is not (he first time that English tribunals have
adjudged in a similar case. The reason is very plain. There is a de-
legation of power from (he sovereign Legislature, all that has been done
by the delegate without being authorised, is ipso jure null. And to
make (he thing more palpable, and show that there is in this no ano-
maly, let us suppose thu case of an Ordinance emanating from our pre-
seni Leuislature. In its preamble it rehearses as its authority, the Sta-
tute which created it. On referring to it we see that Her Majesty is
thereby authorised to constitute, 6y Contfnmio^, a Special Council for
the affairs of Lower Canada, with a majority of which U shall be lawful

1ft

for the Governor to mnke laws for the welfare and good government of
tliH Province. As the Ordinance refers to the Imperinl Statute, it is as
if it were insrrit'd word for word thrrfMU. Now Wft cannot omit the
clauses that restrain the poweis which it cuiifti's. Let ks now snopose
that this Ordinance should establisli an iiMpost absolniely inohibiied,
sliali it be said that when thn legality of this inipixt comes to be tried
before a tribunal, the Judges must read no more of the ordinance than
what it commands, wiihitut remarking that it refers to the Act of it*ii
constitution which, as it pi-ohibits iIik imposing of tax. s, necessarily
annuls whatever contravenes this prohibition ? No : the proposition of
the Counsel for the Ciowii is i!Ot founded on princi|)le. There may
be cases where the Judge could not refrain from declaring null an Or-
dinance or part of an Ordinance which evidently was without the power
or attributions of the present local Legislature. Hut certis^ to Justiiy
the Judge, the case nmst bv of the utmost evidence ; and then to judge
thus is agreeable to law. He could not read the Ordinance without
finding virtually recited in it, the Statute that created the Council, or
without perceiving therein the limits given to thiit power, and beyond
which It can do nothing. He could not but see that the Impeiial Act
declares null whatever shall be done contrary to its provisions ; and
he, the Judge, when he pronounces the nullity of the Ordinance, does
no more than declare a nullity previously pronounced by the Imperial
Statute, which to him is the supreme law.

But let us proceed ; let us see whethet such be the case ; whether
the Governor and his Council have fallen into this error ; 1 have sup*
posed, whether notwithstanding the prohibition of the Imperial Sia--
tute, by suspending the Habeas Corpus^ they have suspended the effect
of an Act of the Imperial Parliament. The question is delicate,
and for a Judge in such a case to resolve against acknowledging the
injunctions of an Ordinance, however subordinate the Legislature may
be, it needs that he be very strong in his reasoning, and that he find in
the Ordinance ph infringement of the laws which he is bound to admi-
nister. I will therefore examine the question, referring first to the
Statute 31 Charles IL chap. 2, and to judge rightly, it will be well
to know what was this Statute ; did it introduce un droit nouveau !
Can it be considered as appUcal>le to. the Colonies of Great Bri-
tain?

■fj

Th« preamble shews that it did not kitTod««e the Haheai Corpm
which existed al common law. But it prnvich-s more cffectiially for the
exercise ot'lhal right of the Eiigli>h stibjfct which is ess»Miii;il (or ihe
proteciiun of his libeiti«'s, d ml for iln; expciiiion of ihf VVrii oi' Habeas
Corpus whiMi il h!i> biin issued: it rstabli^JKS riilos for ihe Jinlgos as
well MS for all olher persons concernefl, and also penahies in case of in-
fringing ii*s pmvisions. This Act was passed in express terms (ot
England and Wales*

In Canada, previous to the Stnlnte of 1774, the subjoct might be
entitled to the Habeas Corpus without ii's bein^ necessary to infer
that the Siatnte 31 Charles II. chap. 2, was in force in the country,
any more than the regnlaiions and pena'ties which it established fur
England* And such is my opinion. (/^.)

Let ns now see whether this Statute 31 Charles IT. chap. 2, was
introduced into Canada by the Statute of 1774. Th's is the llih
clause which has been cited. It will be Well to read it with attention in
order to give it ii*s effect*

•• And whereas the certainly and leniiy of the criminal law of Eng*
*' land, and the benefits and advantages resulting from the use of il
" have been sensibly fell by the inhabitants from an experience of more
** than nine years, during which it has been uuifoniily administered,
** Be it therefore enacted that the same shall continue to be adminis-
** tered, and shall be observed as law in the Province of Quebec, as
** well in the description and quality of the offenee as in the method of
** prosecution and trial and the punishment and forfeitures, &c.**

Certainty, the Statute 31 Charles IT, chap. 2, is not introdvtced
nominatimt but we are told it was virtually so, as being part nf
the crioiinal laws of England, when the statute (of 1774) was passed^
The right of Habeas Corpus is not of criminal or of civil law, properly
speaking; it is the consequence of that protection which the laws
afford an English subject fur his personal liberty, which mny be'
assailed by arrest for a crime or without any crioiiual charge what*
•▼er. (C,)

Wiih respect to the Statute 31 Charles II, chap.S, I shall say tha^
'no. fur a<t it ha I relation to arrests for crime it formed part of the eri' '
minat laws of England. But the terms of the statute of 1774 which I
have just ciled do not appear to me sufficient for the introduction of all
the stHlutes of England, which, like the Habeas Corpus Act, have a
bearing towards criminal law. We must necessarily except such as '
are nut susceptible of receiving their application in a Colony, and *
wliich evidently were passed for the Metropolis alone, to the exclusion
of Colonies. And the clause is sufficiently explicit to prevent the >
supposing of any thing else. (Z>.) s

■..S^fi

Surelv, one mav conceive the introduction of the cl'iminal law in '■
the terms of that clause, without the introduction of \Vhat was qualified -
the Habeas Corpus Act, which has regulated for England the manner'
of using and enforcing the privilege of An Engli>h subject to be brought^
before tbn Judge in case of arrest for crime, and which in order to its '
becoming law in Canada, ought, it seems to me, to have been especially
ni'dnlioned; and it ought even to have been said that it was introduced ''■
as far as it might be applicable.(£) If there be any doubt in the general
proposition, the statute seems to resist our considering as introduced
into Canada any more of the criminal law than what is formally men-
tioned in the clause, t/ui ditit deunOnegatde altera. Moreover, it
appears to me that the Legislature intended merely to continue the
<^xi$tence of the criminal laws, as they had prevailed in Canada since
the Proclamation of 1763. Now the Habeas Corpus Att 31 Charles
It, chap. 2, was not in fui^ce, but there was the right or privilege of
this writ in virtue of the common law ; this is the utmost that can be >
said. But what, if the statute is not susceptible of becoming law in'
Canada, if like many other statutes it was passed solely for England,
and though it may be considered as forming part of the criminal law
there, it cannot receive it's application elsewhere? See the clauses
8, 5, 10, 11 and 12. All those clauses are Only applicable to England.
11 is on this account, no doubt, that it became necessary to pass a law '
in Canada, in imitation of the English statute, but the provisions whereof
in regard of localities, are necessarily different, (i^)

But it is said : suppose the statute 31 Charles II, chap. 2, is not the
statute infringed upon by the ordinance ; has it not transgressed the'

■ C • '

»!"

•i>

ri1

• 1

Statute of 1774 by suspenciing for a time the criminal laws introchced
by that statute 'i This question is already answered. Can it be said
that the suspending of the Habeas Corpus is ? suspension of the code
of Cngh'sh criminal laws confered upon us ? Does it imply any thing
repugnant to the English criminal law such as we hate it ? Can th^
right of Habeas Corpus be conceived without there bting joined to it a
co-existing right in the Legislature of the country, of suspending it in
certain cases, such as thai of open rebellion ? But it is added, whatever
affects the criminal law, destroys the Imperial Act of 1774 by which it
was introduced as a code into Canada. It may be said in answer that the
statute did not introduce the crimina'I laws of England, but said they
should continue to be in force. One might as well say that it introduced
the civil laws, and that no change can he made therein without an in-
fringement of the Imperial statute. I cannot persuade myself thnt in
prohibiting the repeal, suspension or alteration the provisionsof acts of
the Imperial Parliament, it was intended to prevent all legislation on tHv
sifbject either of the civil or of the ciiminal code of the country. (GJL

Representations were made in Englafnd against the act of 1774, and
whatever may have been the motives of those who made them, and the '
reasons, good or bad, given by them in relation to the Habeas Corpus,
it Would appear to have been the general opinion, in Canada as iln
England^ that the Habeas Corpus Act was not in force. It is even
mentioned that in the debates at the passing of the act of 1774, it was
{fropused to insert a clause for introdncing the Habeas Cort^uSf but
that it was rejected by the House of Commons, (this fact is of a nature
to be substantiated) but I have no need of recurring thus far, and I take
the ordinance of 1784. Does not this act of the legislation of the time
explain itself on this subject? In a problematical question, I thinft
myself much assisted when I have the opinion of the Legislature. This^
ordinance declares that it's object is to introduce the Hai>eas Corpus
which existed in England in virtue of the common law ('which it says,
H the right of every British subject in that Kingdom) such are it*8 terms.
Ii also explains itself in it's preamble. We see that the Legislature is
introducing un droit noiiwcatt.aright which up toihat time, England had'
been reluctant to allow, as wo find was the case with the other Englis*
Cdodies before that time. They had the common law of England, the
criminal law of England, and they had not, according to the opinions of
the Officers of the Crown, the law of Habeas Corpus or any corres-

iti'

Djomding l^w* It W94ild seei|i then, that the one might exist without
the other.(/l) To pronounce the contrary, I must put my sense in
opposition to the general opinion of that period, and wherefore 1 To
find fault wiiii an ordinance of the present time, which' in itself, has
nothing but what is useful, and to make which the Governor ought in
my opinion to have been empowered, if in truth he has not by the
Imperial Statute 1st Victoria. |

It is therefore without difficulty that I adopt the opinion that tl^
•fdinauce of 1784 is the Habeas Corpus law of this country. I proceed
l&irther, and will sny that we must consider it a^ such, because it was
passed with the formal intention of introducing and regulating that right.
What need have we to ascend any higher % Is it usual in case of a
new code, to refer to any part of the old which is comprised in the new t
After the ordinance of 1784, ought we to occupy ourselves with the
statute 31 Charles II, chap. 2, or to cite it in any way ) Well, tifis
ordinance, the only one whi h in 1838 was the Habeas Corpus \9yf
in Canada, has been suspended ; and it might be> How revive an o.l4
statute which, in my opinion, ceased to operate upon the passing of thqi
ordinance which was substituted in it^s stead, if it was ever in force x%
the country, which is more than doubtful. (/)

This manner of looking at the subject is the more satisfactory to
me as the legality of this year's ordinance happens not tp be a question.

I will add another observation. How can it be conceived that th^
Governor and his Council should have a rio^ht to suspend tho ordinanc9
of 1784, and that by this means there would spring up an old statute as
if purposely to defeat the wholesome purposes of the new ordinance ?
But this cannot be, for although the ordinance of 1784 be suspended,, it
is nevertheless a law, and an existing law, it disables us from cousiderit^
tlie old law, the force of which it has destroyed by incorporating i|
within its own legislation. It cannot even be said that this is like the
case of the Militia Act, which, by expiring, is said to havo caused the
revival of the old ordinances to which it had been substituted. {Ky
But I must not forget to mention the statute of 1812. This law recog>
nizes the statute of Charles II, as in force in this country, for it directs
that all the provisions of the act shall apply to all Writs of Habeas
Corpus issued, as well in virtue of the Act 31 Charles II, as under t\ie.
Provincial Ordinance of 1784. It is expressly said : one cannot deny it.

1 '
111.

We are then at ihh day to pronounce that ^hfi Provhicial Legisiatuce
in 1812 was in error, and certainly it is with pjgmsibility that this decla-
ration of the statute is relied upon as a rule for the interpretation of ther
statute of 1774. It is added that several Writs of Habeas Corpus
have been awarded under the Imperial Act, which is an additional
authority.

But we have a conflict of legislative authorities. The ordinance of
17S4 gives clearly to understand that it introduces un droit nouveau.
The statute of 1812 says that this was an unnecessary trouble, since we
the benefit of the Act 3L Charles II, and last, an ordinance passed
within these few days, tells us that that statute never was in force in this
country. (L)

In such a case, a Judge must be free to form and follow his opinion,

and I will abide by my first idea, which is that the statute Char'es II,

was never a law in this country. It ought also to be observed that the

statute of 1812 only mentions it incidentally, as if to give the law it*s

eflect in every possible case o( Habeas Corpus. (Ji) My opinion, as is

apparent, does not rest in any right in the Executive to silence the laws

in time of rebellion. I cannot recognize that principle which has been

relied on. It would, at most, apply to the case of the laws being silent

of themselves, because they cannot be administered, and martial law is

enforced, and this only in the case of necessity as when the tribunals

are unable to act. I ought to say th:it I should not have arrived so

promptly to the determination of refusing such a writ as the Habeas

Corpus^ particularly after the decisions which have been given on tho

same question, if I had not since its agitation seriously applied myself

to it. The Judges who have given a contrary opinion did it with

regret, and it could not but be so. More fortunate, 1 adjudicate in

favour of a legislation, that of the suspension of the Habeas Corpus,

in case of rebellion, which in many cases becomes absolutely necessary
for the salvation of the state.

(Mr. Justice Rolland has revised and corrected this Translation

of his Speech.)

(A.) In most Charters there was a restriction from making a:;y law
contrary or repugnant to the laws of England : in that of Canada in
1838 there is a proviso against passing any in opposition to any Act of
the Imperial Parliament, see 2d vol. of Chalmer^s opinion, p. 27, 28„
29, 30, 31.

NOTES.

The Inhabitants of Canada were entitled to the mbeas Corpus^
anterior to the year 1774, namely, in virtue of the English laws intro-
duced by the Proclamation of the 7th of October 1763 : now the same
Statute <Jf 1774, while it repealed the Proclamation, enacted that the
Criminal Laws of England should continue to be administered, whence
ii follows, that Lower Canada hai had since 1774 the same Criminal
laws, and consequently the same Habeas Corpus laws in Criminat
matters, which it previously enjoyec under the Proclamation of 1763,
and those Criminal and Habeas Corpus Laws, whether common or
statutory, exist in this Province in virtue of the Statute of 1774;
»nd cannot be suspended without suspending a provision of an 4ct of
the Parliament of Great Britain, contrary to th^ Statute 1 Victoria,
chap. 9.

(C.)

The Habeas Corpm m civil matters belongs to the Civil as dis-
tinguished from the Criminal laws ; but the Habeas Corpus ad Subji-
ciendum is a criminal proceeding, and belongs to the Criminal law.
My Lord Hale, P. C, vol ii. p. 145, after mentioning several Writs of
Habeas Corpus, in matters Civil and Criminal, expresses himself thus:
» The other Writ is the Habeas Corpus ad Subjiciendum, which is.
♦• for matters onhj of crime.'* See 1 Chitty's Criminal Law, 119.

.1?

(*•)

.•l>

The Statute of 1774» by confirming the inhabitants of Canada ii^
the enjoyment of the Criminal laws of England, has given force of law
in this Province not only to the Common Luw of England as it relates
to Criminal matters, but alun tq^ |ll {kf $t«tVtes of England which treat
of the same matters.

Thus the provision in Magna Charta, *' that na free man shall bt
'• taktn or imprisoned^ or disseised of his freeholds or of his liberties
•* or free customs f or b,i outlawed or exiled or otherwise datruycd: and
** that the King shall not condemn him or cause him to be condemned
•* otherwise than by the lawful judgment of his peers and by the law
*' of the land." This excellent law, though made expressly and eX'
cimivefyfor JSv^laud, is. at this day the law of Lower Canada, not by
iVs own furpe, but by the 6riti»h Statute of 1774, made expressly and
Pfciusioely fur Canada, and ihe same British Statute has introduced ai
}i<ivs 'in Caitada the English Statute of 25 Edward lU. defining the
9ritue of treason, the Statute 5th Elizabeth against Perjury, the Habeas.
Corpus Act, the Riot Act, and volumes of othor Criuiijial laws made
^fitl9iv*iy for iun^land^ but now in full force in this Province.

If it be true (and it cannot be denied), that certain parts of the
Jiak^at Corpus Actt S^l Charles If, chap, 2, and of other English
SfatMtes in criminal matters cannot be executed in Canada, it mu.xt be
coi\cedtid tjiat those impossible parts are not bindi^^i; ; impossibitium
puUa est obligatio ; but the general princi|)les established by those
laws and all their practicable provisions, are undoubtedly binding, for
the Statute of 1774 has conferrec| nppn Canada all the criminal laws
of England, that is, all the criminal laws originally mae/e /or England
mioue to ike exclusion of the CoUmittt And wiiulever ifi those laws i^ not
impQtsibie is |^ndeni»bly binding.

* *

If the. HaiieM frotpus ad Si|b)iciendun»'f« ai.criipinal proceeding, m
caniMt be doubted, if it ibrmed part of the Criminal Law of JBpgland,
as the learried JudgjB very truly says it did, it is difficult to conceive

W':'

liow it could be otlier#ise than inrrdduC^d irftb^ailMda h^ ih% ^Oftod
of 1774, which establi>hesthe CrimiiiRl Laws of England to the exclo*
sion of tilt others, as well in the description and quality of the nfftnet
^% in the method of prosecution and ^ritt/und the punishment tindf'**^
feiturct that U to say, in every particular, in eVery thing. No ittgemti^
could point out ai^y part of the Criminal Law not inchided In ^htt 'Aill
of 1774.

If there could he Imagined any part of the 'Crtmlniil ttati^s irdt (ibilh^
prised in the terms of the Statute, there might be some reason todoubt^
but those terms comprehend every branch^ every detail of the Crimim!!
Luw, as well in their substance as in their outward formii, and (he Sta-
tute has been uniformly and universally understood to oonfprehend (hb
whole body of the Criminal laws of England, as they stood in England
in 1774.

It is snid the Act of 1774 did no more than contirfue the%XiBfitfilfi!e
in Canada of the laws of England, as they had prevailed under the
Proclamation of 1763; be it so; aild then we must say that as the
Pruclamalion had introduced the laws of England without restriction^
80 the Statute has continued the Same laWs, in criminal matters, also
without restriction, in all their fulness, quidicitde omnibus dicit dt
singulis-

The Statute Cireumspetth agatis, 13 Edw. I. raientions (he Bishcfp
X)f Norwich on\y^ dxit de uno : y^t thk Statute ha« always extended,
by an equitable construction, ^to Otfal^r >0i«h<l^8, ^riUrary «(o ihefuMe
conclusion negat de altero.

The remedy^g?Veh%y Statute H^ Edw. If I. chap. 9, against exeat-i
tors has always been equilnbly extended to administrators, contrary (o
the same supposedTul4% but this trivial adage qui dicit de unO negat de
ttltcro is a false Argument. It protres nothing, and ought to be banished
from the forum as irrtl «s from (he school if we ivish to make law ar
reasonable scitfncet 10 Totiliitr, No. 802, page 433.

Several provisions of the Habeas Corpus Act, 31 Charles II.
chap. 2, are inapplicable to Canada, but the Habeas Corpus ad Sub-

JieUndum itself is not only applicable, ii is indispensably necessary to
secure to the subject the lenity of the laws of England in the method oj
prosecution introduced in Criminal matters by the Statute 1774. The
common law which created it, and the Statutes which hsive secured it ;
all this is applicable, and is consequently binding in virtue of the Bri>
tish Statute of 1774.

. •>•

It was necessary to pass a law in Canada, not for introducing the
Habeas Corpus ad Subjiciendum^ the creature of the common law,
but for regulating and securing rtie privilege thereof, as a law had
been found necessary in England for the same purposes. A law was
required in Canada, merely because the 3d, 5ih, lOih, 11th -and 12th
Clauses of the English Habeas Corpus Act were inapplicable to the
Province ; but the other provisions of that law, it*s general spirit, the
common law right of Habeas Corpus, all these things existed in Ca-
nada previous to the Ordinance 24 George III. chap. 1. Since the
whole body of the English Criminal laws was enacted for this Province
by the Act of 1774. The Common law of England is Statute law Iti
Lower Canada.

A suspension of the Habeas Corpus^ introduced or established by
a provision of the Statute of 1774, is in fact a suspension of that provi-
sion of the British Statute. It is also a suspension in part of that pro-
vision of the same Statute bv which it is enacted that the Criminal
laws of England shall be administered in the method of prosecution^ for
<ifa different method be adopted, as impisonnient in lieu of bail, where
. is the remedy without Habeas Corpus?

We may easily conceive the right to an Habeas Corpus or any
-other right established by the supreme Legislature of the empire, v^ithout
any co-existing power in a subordinate Legislature to suspend such a
right. Nay, one cannot understand such a co-existing power in the
/subordinate Legislature, without an express permission from the So*
• vereign Lawgiver : otherwise there would be two Legislatures equally
supreme^ which in one and the taint state it is really difficult to
conceive^

tfi

(H.)

Th6 ()rdinahce of lt84 did not introduce th6 Habeas Corpriii It
|tVtiil no definition of it, and does not prescribe its form, but like the
£h^Hsh Habeas Corpus Acti it treats of the Habeas Corpus as of a
khm^ well kno^n. It is true the preamble of the Ordin»nce recites
i^rtaih Royal Instructions wherein it is suggested that the LegislHttire
ieould not follow a better example than that wttich the common law of
^tigldrid ha*^ set in the provbion made for a Writ of Habeas Corpus^
#hich is the Hght of every British subject in that kingdomi B(it iho
Inistt'iictions are barely recited as a fact: as the act of the Cxecuiivp,
ffot of the Legislature^ and the very first clause of the ordinance departs
t'om the Royal Instructions by declaring and enacting the privilege of
Habeas Corpus in criminal matters, to the full extent of the common
and statute lau)s of England, but nothing in the ordinance shews any
intention in the Legislature to introduce the Habeas Corpus. The
significant word declared^ which governs the enacting clause is wont
to iiidicate a different nieaningi

The claim of the other English Colonics to the Habeas Corpus
Act or other laws of /ia6eas Corj9u« depended, on general principles
or on particular chatters. Several of those colonies had been eMab-
iishe^, and a number of them had obtained their charters before the
year 1679 when the Habeas Corpus Act was made, and could not
avail themselves of the laws of England enacted since the date of their
establishment or charters. Thus li'eland having received the laws of
Ehgland in the 12th year of King John, the acts of the English Parlia-
iioient made since that time did not extend to Ireland unless it were
ipecialLy named : and accordir^'y the old rule of English law nullum
ieinpus oeeurrit regi^ s:ill prevails in Ireland, though abolished in
England bj statute 9 George III, chap. 16, and by other statutes. In
Canada the question is governed by the statute of 1774, which confers
upon Canada all the criminal laws of England.

It is universally admitted that a prior law is re^at^d 5y a jiosteribr
and contrary etx^cimenXt posteriores leges priorts contrarias abrogant /
iut it is equ&lly evident that any number of Ik^s (ftii&clefl at dlflbretii

times on the sanio subject may exist together if not contrary to each
otiier. Hence the doctrine that all statutes in pari materid are to bo
read and construed as if they were one statute. Hence also the option
allowed in many instances to proceed either on the statute or at conimou
law. But if laws barely compatible may have a joint existence, what
shall we Sfiy of two laws the latter of which is the complement and
perfecting of the former? Such is the Englisih iStatuieSi Charles II,
chap. 2, in relation to the common law of England ; such the ordinance
«f 17S4 with reference to the previous laws introduced by the statute
of 1774. To say that those two enactments have repealed a!l previous
Habeas Corpus laws, would be tantamount to maintaining that the
perfecting has destroyed the very thing that was intended to bu
perfected. j

Tlie suspension of a law is the temporary repeal of that law, and it
is not (liiricuii to understand, that by the repeal (even for a time) of a
repouliug statute, the original statute is revived. But the ordinance of

.1784 not having repealed the Habeas Corpus laws established in
criminal matters by the act of 1774, its suspension can have no effect
on those laws, which, as they existed anterior to the ordinance, have

. existed with it, now exist wiihuut it, and will exi.st with it when th«
liuspunsiun has expired,

(L.)

There is no coujlictus legiim in the case. The Legislature of 1812,
acting wiiliiii the scope of it's authority, has expressly admitted tbe
Enylihh Habeas Corpus Act to be law in Lower Canada. The ordi-
MfiiM-e of 17y4 contains noiliiug to the contrary but the bare recital in
it's preairtblc of certain Royal instructions having nothing of a legislative
* fcharucter, ^,^'j

■kl: i^ .!.b!.;-

' ij

If we suppose the ordinance and the statute to be at variance, then
tliH hiuv.r act of legislation would supersede the former ; posterioret
. k^cs jtriurca contrarias abroganU

,;. ,'V:o cite a recent declaratory ordinance is to beg the question. The
niaktrs of that ordinance have no {^}wer to declare what they have no

power \9 enact, for the law doet not permit th^t to be 4one indirectly
which it does not allow to be done in a direct manner ; and the wise
proviso of the statute 1 Victoria, chap. 9, would bo c^uite powerless if
the legislative power created by that act could anniiiilHte by a declara-
tory ordinance those very acts of Parrianieot wit.ich iji has not the power
of suspending even for an instant.

The intention of the Iiogislature was clearly to extend certain
regulations of the :<!tatute of 1812 to every possible case of Habeas
Corpus^ hot the statute contains an eiiunipration of those possible
cases, and one of them is the issuing of a Habeas Corpus in virtue of
the statute 31 Charles U> chap 2. It is therefore undeniable that a
competent Legislature has adjudged the English Habem Corpus Act
to be the (aw of Lower Canada^