The Sun. — London, England, 1839-01-21 00:00:00

JERS• .~►Y•) this In orn ly crowded judgmen t corpus for odd' of the, , and he 7 credit: :ranstn i not ar itted iv ;ranted• ver ad how :ountryt, patent horized gaoler. pardon ,ions of urpose• i urge t. a those it was er Ca -occed- condi th ere ;ho sth nsports in pre-- settle s justi whom taining 7.arried le case deci 'at ker, James e dis- same casco r pri- Vilson 3lative - --- rn an y ..,r 60 pill- Dining e, and rsons, SUN ; LONDON, MONDAY, JANUARY 21, 1839 an confinement, that is all the Court knows with regard to this person the gaoler, of Liverpool, upon anything that may be called evidence. There is no oath of Mr. Batchelor, he does not speak even from his own information. Your Lordships have supposed that in the judgment already pronounced it is extremely probable that this docu ment which he states to exist, he has never seen, but all his information respecting these prisoners is from the master of the barque, Captain Ross. It is impossible by any hypo thesis I could invent a case more strong than this to show the necessity for the proof of the facts alleged. If my Learned Friend s are right when they say that Mr. Batchelor's unsup ported statement is to be taken as conclusive against the, pri soner, it follows that upon the unsupported.statement of Cap tain Morton, persons may be taken to America with out the power of your Lordships to interfere in their be half. They may be sentenced to transportation, and that sentence may be carried into effect without any Court in this country having the power to interfere. That, my Lords, is a roposition, so absurd and monstrous upon the face of it, that should only weaken the effect of it by reasoning the point. Here Captain Morton brings th ese p ersons i nto the port of Liverpool; they may be, according to the hypothesis I have mentioned, persons against whom he has a private pique. If such a thing could be done, there never was a nation so deluded as the people of England in boasting of their Habeas Corpus Act. If such things could be done, that Act is not worth the paper on which it is engrossed, and the writ is not worth the parchment on which it is written. But this cannot be : it cannot be that th e b oas t o f t hi s country for so long a period been founded not only on mistake, but upcea an absurdity too gross even to be ridiculous. As, my Lords, lam obliged to proceed by steps, and as I am obliged to suppose that it re quires to be proved that these men are not to be transported upon the dictum alone of Mr. Batchelor, / must commence at the beginning, and call your Lordships.' opinion to what the great text writers have said on the subject of the writ of habeas corpus. Your Lordships cr,il recollect the terms of tr iumph and a ppl ause w i t h whicla Blackstone speaks o n thi s subject, and the manner in Welch he treats this remedy. He " that in a former parr. of his Commentaries he had expa tiated at large on this sub:,cct ; that it was shown to be a national inherent right, which, could not be forfeited unless by the :ommittal of some atrocious crime, and ought not to be taken way unless by Some special enactment of the law." He says 1) 11 another r:ases " that this writ h a s b een h an d e d d own to us y our &aeon ancestors, not w ith s t an di ng t h e contests t h ey had With the Danes, and it was established by the provisions of Mee t , Charta." He says, " the glory of the English law cotsists in clearly detiuing the time, the cause, and object, and 'what degree of imprisonment the subject shall have." What glo ry , m y Lord, is there in the law of England if these me n are to be sent to the other side of the glo'se by the mere statement of any man, however high his station, or however great his character ? Can it be said, my Lords, that there is any glory in the English law, when it sanctions the detention of persons upon the statement of facts totally unsupported? Is it to be said that any person, by physical force, can put another man in confinement, if he can only find a special pleader sufficiently conversant with precedents upon the subject of habeas corpus to draw a good return ? If such can be do ne , a man, b y a mere statement, can imprison an life. 2ther, have hi as punished, and probably seetenced to slavery for Mr. Justice Fortesque says that the lib er ty o f the subject Cannot hazel, upon so slender a thread, and M r . J us ti ce Black thee obs'erved that the liberty o f th e su bj ec t was protecte d b y thee Writ.of ha beas corpus. Little did that great man think of state of things now existing, when he made that state . Lord Deemee—Will you be so good, Mr. Hill, as to state What your motion is? _ Mr. HILL —My Lord, I sh a ll fi rs t argue on th e return as i t ..( 7 4 25 t vhesrtalnds, that Mr. B a t c h e l or i s ca ll e d on to prove t h e trut h r t his return • b ut I a l so su b m i t a mot i on which is distinct, or might say subsidiary to the main application, or par titnn of the a ppli cat i on . I now make (for I state it, my Lord, la nlY as a portion of the original application to have pri soners discharged), which- portion I was permitted to reserve for the present day ; because it was quite It n ugh to consider the su ffi c i ency o f t h e return ,„, One time, and independent:of the truth of the return. Ile *notion, my Lord, I shall make is this—l shall move, upon an affidavit which I shall read to the Court, for en attach- M e et against M r . B atc h e l or f or a f a l se return. N ot merely, !:a Lord, a return which may turn out to be false, but which his false on the knowledge of Mr. Batchelor himself—false on the knowledge of those (whoever they may be, whether of high station or low station) who have advised Mr. Batchelor to insult the Court by putting such a return on its files—false on the knowledge of Mr. Batchelor by an important document, - which be has in his own possession, namely, the warrant he received when he received these persons, which warrant I shall shn'w he delivered to the solicitor for the prisoners as the au thority on which he retains them, and which document, for !some reason or other (no good reason can, I imagine, be given), has been kept from the files of the Court and the face *of your Lordships. It is because Mr. Batchelor has suffered 'himself to be inveigled into such a return that I move—until Eome other person come forward and identifies himself With this step—against Mr. Batchelor ; and the mo anent anybody will have the candour to come here 41 nd acknowledge himself to be the person who put tis on the fil es o f th e C ourt, b e h e who he may, aye, my da if he were th o P r i me Mi n i ster o f E ng l and, I would 'Stand f orwar d to move an attachment against him for such a totNrous perversio n o f every pr i nc i p l e o f j ust i ce. But your ot tiship s see this motion, important though it be, does not t° the full extent of the important principle which I am e 4 0 1 g under the notice of the Court, because for the ,ra'shment of Mr. Batchelor, I must not only show that a f t he has stated is fals e , b u t I mus t s h ow one 1 ' t t wo other thi ngs . I mus t e i t h er s h ow h e k new 4u , to be false, or that he has, considering his Qe `Y. Most ras hl y, and, therefore, most criminally made Rations u p on t hi s return, o f the truth o f wh i ch he i s igno :tit. Now, my Lords, I shall argue that upon either of these r oun ds, and still niore upon both of them together, I am ' e d a ,, t itied to an attachment against your officer, who has, in due mod e of stating it , made allegations, of the truth of du he he is ignorant, which, I say, is ot fulfilling his tt 'a to war d s this Court, but who, in another mode of "nig it, has made allegations of th e t rut h o f w hi c h b e con versant—that the truth is ccntrary t o t h ose a ll egat i ons . stewever, my Lords, both the s e propositions do not F° to the full extent of the principle, because I say that the axreth of these allegations (supposing Mr. Batchelor to have :ted correctly from beginning to end) is what your Lordships Tri re now called upon to inquire into. What your Lordships . 13 i k ist see, before you can touch the principle of this remedy by a a ucas corpus, which p his J to be the principle— t'ilizo that the King by his Judges has a right to know—for at is the word of the law—has a right to know the cause f i n his subjects' imprisonment. My Lords, how do you ri cw it? Because Mr. Batchelor tells you something ?ceurred in Upper Canada which justifies it ? Is that 4aowledge ? Why, it is not knowledge, as your Lordship has r i ‘l , of Mr. Batchelor. How, then, can it become knowledge 3 ' Wog transferred from Mr. Batchelor to you ? It's of of a gross kind. In Mr. Batchelor it's ienorance of a gcriminal kind, because not knowing these facts, he b ought not to a ve stated them. What is the duty of a gaoler ? Is he an °Pliosed party to the man he keeps in custody ? Is it not r ather his duty simply and plainly to state the circumstances !Met' which h e h o ld s hi m ? O ug h t Mr. Batchelor to have one 'ngle wish that it may turn out the warrants or any other do etlinents h e may have to justify the detention of these men, shoul d in p o i nt o f law really justify it ? N o , he would have f ulfilled his duty if he had put the Court exactly in the same Tate with regard ozelsnowledge that he is in himself ; and, my l'esrds, it m ay turn ou t th at t h at was M r. B atchelor ' s or i g i na l nt eution. It may turn out that he came into this Court with a re turn honestly and properly drawn, setting forth the war rants oti which he arrested these men, and setting forth nothi ng else, and it may turn out that be was interrupted by B° rne person or other ; that that return so honestly made was taken from him, and that the return which now disgraces the files of this Court was put in instead. Having then, in obe dience to nay Lord Chief Justice, pointed out the nature of my motion, probably your Lordships may in this most impor tant case allow me to follow the order of argument I had laid ( ~I : 2l w n, and to su b m it m y c ase in that manner to the Court, :l a nkful to you r L or d s hip s a t all times for doing me the kind :C,SS, and f or p o i nt i ng out u p on w h a t you require inf orma ti on , w hich I shall be at all times ready to give within the very nar tow limits of my knowledge. My Lords, lam sure you will feel there has been but scanty time allowed to Counsel for re searches into matters of so much importance, and lying 8( ! far out of the usual course of one's daily practice. bear ing Th at must be my excuse if I omit any matter ugon the principle I am now offering to your Lord -e"Ps in th e course o f t h e argu ment I am about to pursue. " 1 , Y Lord s , I was say i ng t h at M r . J us tice Blackstone had con s'dered that these great principles, which until the present t une I w ou ld h ave sa id were not on ly t r uths, but truisms (but the actual truth of which we cannot, but for a moment, begin !° doubt) h e supposes t h at t h ese great p r i nc iples are carriedthe t ato effect by the writ of habeas corpus ; and that Jealousy of individual liberty, which individual liberty he says its b y what i n th e Englishman, had been su ffi ciently guar ded what he calls " the great and efficacious writ of ha beas corpus. " H e says , " B ut t h e great and efficac ious (3 writ i n all manner of illegal conf i nement , is tha t iix o f habeas corpus a d su bj ec i en d um, di recte d to t h e person deta ng another, and commanding him to produce the body of the pr a i f a - : 1 1er, with the day and cause of his caption and detention, d ciendum subjiciendum, et recipiendum, to do, submit to, and to r eceive w h atsoever t h e J u d ge or Court, awarding such writ, shall consider in that behalf." Is it * possible that that this great text writer thought he was dealing with such a farce as this, Which, according to my Learned Friend's representation only comes to this—you are at perfect liberty to exercise your legal i magination to the fullest extent, only find some person, who upon any facts which any body may suppose, is capable of drawing a sufficient return, and that is all you need; except had forgotten the great remedy suggested by my Learned „Nend—except, to be sure, the gaoler is open to an action for a 'llse return, the plaintiff being in bonds in Van Diemen's Land ! Is it possible this great writer could have been dealing with !tich a case, speaking in terms of triumph, and as he thought Just triu m ph, on t hi s matter . Th en , my L or d s , M r . J ust i ce Blackstone states this— The ArToaNEY-GENERAL—WiII you allow me respectfully t o i nterpose. My Lords, if my Learned Friend had been acting to produce affidavits to contradict the return, all that he i t s now sa il ing would be highly relevant, but in answer to your Lordship s ' question he stated that that was not his motion—his 'notion was for an attachment against the gaoler for a return that the gaoler knew to be false. Now, my Lords, upon su ch a motion as that, I humbly submit to your Lordships that 'nese authorities must be wholly irrelevant, and that no autho riti, S can be required to show that. If he can make out a east: that a fals e re t urn be m ade by the gaoler within his own , nowledge, which he knew to be false, that is a charge your ,Lordshis will entertain i nd if my fo Larned Friend will read i lia affida p vits, (although it s not r m e e to prescribe to him, much less to the Court, what course be shall pursue, but that would be the most convenient course to pursue) your Lordships would then be able to judge better as to the course that should be adopted. Mr. HILL—My Learned Friend says he will not dictate to me, but he does dictate. Lord DENMAN—You say, Mr. Hill, that the party making the return is bound to support it by affidavit. Mr. HILL—Yes, my Lord. In order to shorten the pro ceedings as much as possible, I have taken the whole—l have explained that my motion only goes to a part of the whole case ; bet still I think, my Lords, that after the return has been read I have a right to move to discharge those prisoners. Lord DENMAN—On the ground that the return is not verified ? Mr. HlLL—Certainly, my Lord. Your Lordships have de cided that the returns are sufficient. Your Lordships have likened the case to one of demurrer, which, though the Court allowed that, did not prove its truth. The proceedings in the Courts in Scotland are more strictly analogous than they are here. Your Lordships aro aware that the fiest question there is, whether the indictment is good; and that being determined in the affirmative, the Crown then goes on to prove its case. That is not only the law of England, but it is in strict accordance with justice and com mon sense—it would be monstrous if it were not so. I will, my Lords, occupy no more of the time of the Court than is absolutely necessary, but I trust your Lordships will concede a little in a case which is of such mighty importance not only . to these prisoners —not only to the whole public, but to all posterity. My Lords, the notion that the return is sufficient for all purposes, whether of law or of fact—that the return is conclusive upon the fact, is a modern notion. I will refer your Lordships to a case that was found out by that eminent and learned person, Sir Orlando Bridgman. It i s , m y L or d s , the case of Andre w Devine, a case which was discovered by the deep research of Sir Orlando. That case, my Lords, occur red in the 24th o f H enry VI., an d i s to b e f oun d in Bridgman 268. A habeas corpus was sued out of the Court of, Chan cery, commanding that the body should be brought before the King in his Chancery, (it being then vacation time). The authorities of the City returned that he was imprisoned because that he, not being a broker, had acted in that capacity, con trary to the laws of the city, that he had confessed, and there fore he was imprisoned. It appears that he makes answer to this by pleading ; the City reply, and pray that he be recom mitted. The Lord Chancellor acting upon the advice of the Lord Chief Justices, Fortescue and —, along with the rest of the Judges, having heard the reasons assigned and the alle gations made by both sides, and having referred to the Charters, liberties, records, and privileges, adjudged that he be so re manded. Sir Orlando found this case in the old books of the City. The book containing it is now in the Town Clerk'sOfficc, and I will shortly lay an ;extract from it before your Lord ships. It is called the " Libre Dunthorn," and it seemed to be compiled by a contemporary of the transacsions it details. The authority of the book has been pretty well ascertained, and may well be relied upon by the Court, having been treated as authority by the Learned Lord Chief Justice Bridgman. The book is so minute—it is so exact—that lam quite sure 3 our Lordships will have- no doubt of its authority. It, my Lord, establishes the great principle that the truth in some way or other is to be investigated before the returns are to be taken as conclusive. Your Lordships will not forget that one of the authorities upon whose advice that case of Devines was decided, was Fortescue—be was one of the Judges, and it is impossible for your Lordships to get higher authority. The n. at case to which I shall refer your Lordships is the case of Sir William Chance, which is to be found reported in 12th Cook. The party there, Sir William Chance had been im prisoned by the High Commission Court, which your Lord ships are perfectly aware was established by the Ist of Elizabeth. He was discharged upon habeas corpus by the Court of Queen's Bench, and that upon a ground which did not appear upon the face of the return. He was discharged upon the Court look ing into the Commission, from which it appeared that the Commission could only act by a quorum of four. That was not averred in the return—that did not appear on the face of the return, yet the Court acted upon it. That case, my Lords, distinctly shows that the. Court did look cut of the re turn, and that for the express purpose of discharging the party from custody. The next case to which I will refer your Lord ships is that in which Devine's case is quoted; it is that, my Lords, of Hutchins and Clair, which is reported in Bridgman. Clair was in custody in the city of London, in respect of some action then pending in one of 'the Courts of the City. He claimed privilege as being a suitor in the Court of Common Pleas ; he sued out a writ of habeas corpus in that Court. Your Lordships are aware that at that period it was held that the Court of Common P.leas and the Court of Ex chequer had not the right to grant writs of that nature unless they were claimed as privilege by some suitor before the Court. Bridgman relied on Devine's case, in Hutchins against Clair. In that case, my Lords, it appears that the parties pleaded. It appears, my Lords, that that was the form in which that case was conducted. But they afterwards proceeded to an examination, in order to support the state ments made in the return, and it further appears that that examination was made into the muniments and records of the City Ccurts. It was found that the facts alleged in the re turn were true, and therefore the party was remanded. There is a case, my Lords, anterior to that to which probably I ought to call your Lordships' attention first. It is that of St. John, and is reported in 5 Cook 71. In that case, Gardiner had sued out a capias against St. John, who was a Magistrate of the county of Bedford. The espies was put into the hands of the officer, who, fearing resistance, went into the neighbourhood of St. John's House armed with a dag, which your Lordships are well aware is a short gun. St. John sent out his servant, and he knowing the officer and his business, took him into custody for going Ebout with arms in his hands. As St. John was the nearest Justice of the Peace, the officer was taken before him and the charge entertained. The officer was sent to gaol till he paid a penalty of 10/.-5/. to the King, and 5/. to the in former; A writ of habeas was sued out. The facts were. stated upon the face of the return, and again the Court travelled out of the return, for they discharged the officer upon the ground that being an officer, of which they had had evidence, he was privileged to go about armed. If the truth of the fact bad been denied, then that plea might have been traversable, because it would be absurd that any one might plead what ho thought proper—that he might plead a con fession and an avoidance, and then to say that that plea must be conclusive. As far as regards the prisoners, I should not have much to complain of, but to me it appears an absurdity. There is then the case of Swallow in Ist Sackerville. Swallow was elected an Alderman of the City of London, but he refused to take the sacrament—he refused to qualify. The Court of Aldermen committed him to prison, as they bad a right to do. The Court admitted the right of the Court of Aldermen, but it was suggested to them that Swallow was Master of the Mint, and therefore exempted. Next let me call your Lordships' attention to the case of the impressed men in the year 1758. Your Lordships will find a long account of that in Dodson's Life of Foster. In Dodson's Life of Foster it appears that several persons, shortly before that celebrated discussion in the House of Lords, to which re ference bas been made, took place—that several persons had been impressed, and that if the return had been conclusive, as my Learned Friend says this re'urn is conclusive, they would have been sent out of the country, not certainly into transpor tation for life, but they might have remained out of the country for some years. This was felt to be so monstrous by Mr. Jus tice Foster, that he thought there ought to be an examination into the truth of the allegations in the return. In the case of White v. Reynolds, the affidavits on both sides were read upon that return, and the result was that the prisoners were both discharged. Lord DENMAN—I believe that is not reported in Burroughs. You refer to Dodson's Life of Foster, in the 20th volume of State Trials. Mr. HILL—In the addenda to Somerset's case your Lord ship will find an extract. Mr. Justice COLIIIIIDGE—Do you know on which side the affidavits were first filed, Mr. Hill? Mr. HILL—My Lord, I have not directed my mind to that, but I will look. The King v. White I find in Dodson's Fos ter, p. ea, and it gives first of all the return. Major White, in the name of Richard White, returns that Reynolds, the prisoner, was committed to his custody as a person impressed according to the Act of the 18th Gco. 11. c. 10, then lately made for recruiting his Majesty's land forces and Marines, and he brings his body into Court. The return seems to be sufficient, says Justice Foster, in point of form. Reynolds being brought into Court in custody of Major White, it is ordered by consent of Counsel on both sides, that the name Thomas White be made Richard White, and that the said Richard White bring into Court the said prisouer Reynolds on Wednesday next, and on reading the affidavits it is ordered that Thomas Bedwell and others, show cause why the said Reynolds should not be discharged out of the custody of the said Richard White. The affidavits were on behalf of Reynolds, to show that he was not a person within the description of the Act, and that the impressing him was a wicked scheme, and founded in malice. That answers your Lordships' question, showing that the firs-, affidavits were filed on behalf of the prisoner. Reynolds, being brought into Court, gave recognizances for his appearance the first day of next Term, and therefore it +a as ordered that he should be discharged. Affidavits were read on the part of Reynolds, and the affidavits of the Com missioners, an d o f Mr. Robinson in support of the Commis sioners. Reynolds appeared, and the recocrnizances were discharged, no opposition being made on the part of the Crown. Mr. Justice Foster says, " I have an imperfect rote of the case. Affidavits were read on both sides, and the Court said though it was not usual to enter into the truth of the facts set forth on the return to the habeas corpus, yet in this case, as the party serving the writ bath no other remedy, it maybe done." Let use pause here. " Hath no other remedy." Surely he had an action for false imprisonment. Mr. Justice Foster means, no other efficient remedy. He could not bring the judgment into Court, as judgment may in some cases ; for your Lordships may obtain, for this purpose, a sight of almost any record in this country. That would of itself account for the practice having been that the returns are not examined as to the truth of the facts by affidavit, it being in general compe tent and easy to the parties to bring the real substratum, the foundation, before the Court, to see whether that is a good foundation or not. He says—" And therefore if Rey no ld s i s not within the description of the Act, the Commissioners have no jurisdiction over him—the whole proceeding is a mere nullity." Your Lordships know, and I am sure I need not bring it to you in detail—your Lordships are well informed of the very strong opinion held by Mr. Justice Foster, and the powerful language in which these opinions are expressed. I had occasion to refer to them at a former time, and therefore will not detain your Lordships with them now ; but your Lordships are aware that among the Judges, although some,held that a return to a habeas corpus could not be examined at all, and was conclusive for ail pur poses, as regarded the liberty of the subject, in that form of proceeding, yet others of the Judges held that they were not bound, and the majority of. the Judges were of opinion that they were not bound by the return. Justice Wilinot, after ward Chief Justice Wilmot, was of opinion, that though the Court was not absolutely bound, yet they were bound, except the facts appeared in the clearest manner, and in that clearest manner be defined to be by demurrer, or by a verdict in an action for false imprisonment. Now, my Lords, one does not exactly see by what authority the Court could look out of one proceeding into another, even in their own Court, if the rule was so strict and stringent as it is said to be on the other side. There was much difference of opinion on the matter. The majority of the Judges thought that the Judges could examine, and were not bound by the return ; and one or two of them limited that opinion on their parts to whet I have stated ; but others do not limit it so. Your Lordships will have the kindnesi at your leisure to look to the opinions of ten of :the Judges, and you will see that what I have stated is borne out by the fact. Mr. Justice Wilmot gives a long and elaborate argument upon the point ; he gives his reasons at length why he thinks the Court is bound. Your Lordships will find them in the fifteenth volume of Hansard's Parliamentary Debates. The Chief Justice examines two of tl ose cases which I have mentioned to your Lordships —the King v. Gardiner, and Swallow v. the City of London, and he says these cases are consistent with the doctrine, for he says they only amount to this—to show that the party may confess and avoid. But your Lordships will see that this is really admitting the whole argu ment ; for if they confess and avoid by alleging some new fact, surely there must be the means of examining whether that new fact is true or not. Lord DENMAM— What are yon quoting from ? Mr. HILL—I ant quoting from Mr. Justice Wilmot's opi nion and judgments, p. 116. Your Lordships will not fail to remark that all the observations of the Lord Chief Justice Wilmot, and all the opinions of the Judges in 1758, were made in ignorance of those two cases : one ccided by Sir Orlando Bridgman t and the Court° of Common Pleas, of which he was the Chief Justice, and the other Devine's ease. Your Lordships are aware that the re ports of the Lord Chief Justice Bridgeman have not been in the possession of the profession for more than fifteen years ; that they were printed from some old MSS., which Mr. Hargraves, at some time or other, found and deposited in the British Museum. Mr. Justice COLERIDGE—Both those cases were cases of privilege ? Mr. Hiee—l do not apprehend both were cases of privilege. But the reason given by Lord Chief Justice Bridgman fur Ap plying to the Lord Chancellor was, that it was in vacation time. The natural inference was, that it was nut a case of privilege. The application seems to have been made in conformity with the old doctrine, now held to be fallacious by the decision of Lord Eldon, that an application for habeas corpus could only be made, in vacation, to the Lord Chancellor—disputed by Lord Nottingham on what seemed to be very old authority, and which Lord Eldon did not seem to be aware of, viz., De vine's case, cited by Bridgman. My Lords, without calling your attention to others—decisions up to late times—up to fifteen years ago—prove that the profession was ignorant of these most important precedents—of Devine's case—where the pleadings went on ' • and where, upon those pleadi ngs , evi dence was t a k en; and where the ultimate decision was the result of pleadings on both sides, and of evidence. Pro. bably 'it will not be considered by your Lordships as a very unfair presumption, that if this case, decided by the Chancellor of England, by the Chief Justices, and by the other Judges—Fortescue being then Chief Justice of England —that if this case had been known to the Judges in 1758, the majority would have coincided in opinion with the minority— and they would have stated broadly to the House of Lords that there was the means of investigating the truth of the facts of every case upon habeas corpus. Probably, however, the House of Lords came to that opinion, that there was such a power. It would not be respectful to them to suppose that when such a gross defect in the law was pointed out, that they should have thrown cut a Bill which had for its object to amend such a defect of law as it then was. My Lords, let me next refer your Lordships to G, Idswain's case, 2d Blackstone, 1,207. That was the case of a bargeman with a Navy Protection, who was taken as he was going out of the King's Docks, and impressed, by virtue of a warrant from the Admiralty. This seemed to have been a very oppressive case, and the Judges, intimating to the Counsel for the Admiralty that it was a very flagrant and opp ress i ve case, t h e Counse l for the L or d s o f the Admiralty abandoned it. But if your Lordships look to the judgment, you will find that most emi nent person and great constitutional lawyer, Mr:'Justice Gould, laid it down ihat neither the Court nor the party were con cluded by the return to the writ of habeas corpus; but that the party may plead to it any special matter necessary to regain his o Geo. the 111. opinions givene re liberty ; and th en h e accounts for the record not being found. f A o l r y e L i o s r d s m , any this yearsa in subsequent the 18t t 18th in the House of Lords. And your Lordships will consider Mr. Justice Gould's opinion, deliberately stated, to be evidence that the opinion in the House of Lords was considered to be an opinion which would favour the doctrine which lam now submitting to your Lordships ; because your Lordships will recollect that there is not the opinion of the majority against the power to investigate the return, and probably it may be considered that there is a strong opinion against the power of investigating it in every respect : but it does not appear that even that strong opinion was possessed by the majority. My Lords, you will allow me to refer, and with some confidence, to that most eminent lawyer, Mr. Har grave, now no more. In that work, which he calls by the singular "name of Jurisconsult Exercitationes," points his argu ment in the negro Somerset's case with notes, to one of which notes I wish to draw your Lordships' attention. At page 22. he says, " Upon a habeas the truth of the return cannot be re sisted by pleading against the truth of it ; consequently upon a habeas corpus the question of liberty cannot go to a Jury for trial, although indeed the authority making a false return is liable to an action for damages and punishable by the Court for contempt." My Lords, I have thought it right to bring the case before you, because I may use it for the purpose of showing you that, though I am free to admit that Mr. Har grave's authority is against me on the subject of pleading, it does not anywhere appear that Mr. Hargrave was then cogni zant of the cases in •Sir Orlando Bridgman's—and still more of Devine's case. My Lords, in the former part of Mr. Har grave's opinion, he only follows what I freely stated when I mentioned it on a farmer occasion, was the common doctrine in modern times, and in ignorance of the more ancient and humbly submit the better precedent. But Mr. Hargrave, who is strongly of opinion that this cannot be pleaded, is of opinion that it is examinable by the mode which I point out to your Lordships by one of the two motions which I now make. It is examinable in that way, forjhe goes on to say the Court will hear objections against the truth:of the return, and, if not satisfied with it, will 'wore the party to his liberty. My Lords, I feel now that my Learned Friends will: cite the 56th George 111. against me, and I suppose their argument will be—that this Statute provides fur examining into the truth of the return only in certain cases; that this is not one of those cases; and that expressio unius is exclusio alterius. Now, my Lords, I will call your attention to that 56th George 111. And first of all let me make this observation, which is not my own, or it would be worth nothing, but it is Lord Eldon's. He said in Croly's case that it was not to be endured that a statute made in favour of liberty should be construed to the limitation of liberty ; from which I draw this inference, that all which has been done by the statute of 56 Geo. 111. goes to leave the matter just where it was. My Lords, I have another observation to make upon that statute, which appears to me to show that that statute is in our favour. The 31st Chas. IL, according to its preamble, is to have relation to the imprison ment of persons who have been committed for criminal or supposed criminal matters ; and if that preamble had not been limited by the enacting part, it would cover all cases, both where the party is imprisoned awaiting his trial, as where he is imprisoned in commitment upon execution. The words, our Lordships see, in their natural signification, are large enough to include both classes, and indeed all classes, which can be drawn under the very wide meaning of those words, " Criminal, or supposed criminal matters." But then, under the third section, these words are limited by this exception— " Other than persons, convict, or in execution by legal pro cess." So that the statute of Charles II only applies to per sons who are imprisoned awaiting their trial and commitment, for some ulterior purpose, not yet ascertained and decided upon. The 56th Geo. 111., is intended to apply, and is stated to apply to all persons, except those who are imprisoned for criminal or sup posed criminal matter. Now here are two cases in purl inatcrii, which must be considered as if they were one statute. And when I find that in the 31st of Charles 11. a statutory meaning is put upon these words " criminal or supposed criminal mat ters," and that this statutory meaning is different from the common and ordinary meaning which would be attached to those words, I submit that when the words are used in the latter statute they must be taken to be used according to the definition and the limitation contained in a former statute ; and therefore, if it were necessary for my case, I shouldeonfidently submit to your Lordships that we are within the 56 Geo. 111. But, my Lords, I think my case strong enough to rest upon at common law. Your Lordships know that the course of this, and all other Courts, whenever the liberty •of the subject is concerned, and often when it is not, that if the Court has a power, by a tedious and formal process, to put the facts into a course of investigation, by which the party may recover his liberty, they will use a summary jurisdiction, and by a shorter means will come to the facts of the case ; and therefore it is, I say, that the party may bring his case before the Court in that summary manner. Your Lordships know that formerly a party having privilege, whether of Court or of Parliament, could not be discharged from arrest, unless by suing out his writ of privilege, but now your Lordships will discharge him. A femme covert was for merly obliged to plead her coverture. Now your Lordships will discharge her upon motion, unless she has by some misconduct induced your Lordships in your discretion to put her to the more tedious and formal remedy. And so it is with many cases in which the liberty of the subject is not concerned, and the practice which has been observed is consistent with this doctrine. It is now many years since a plea was actually made to the return to a writ of habeas corpus ; but your Lord ships will find there are many cases in which affidavits have been received. I would refer your Lordships to one other case, the King v. Marks, 3d East. Lord DENMAN—That was a case where a party was brought up for bail. Mr. HILL—Yes, he was brought up on habeas corpus There the commitment was imperfect, and the Court acted as Justices of the Peace, and using an original power, corn. mitted him. The Court has over and over again said it wonld inquire into the truth of the fact upon affidavit. They have used expressions in making those statements which probably my friend will bring under the consideration of the Court, clearly showing that the Court has adopted the pra c ti ce o f examining into returns upon affidavit. The last point, my Lord is this—if the Court may examine into the truth e f a return, whether upon plea, according to the old method, or upon affidavit, according to the mo dern practice, it is not, and cannot be said that the particular course of inquiry adopted by the Court for the convenience of itself and the parties, can change what is not more a maxim of law, than sound reason, that the onus of proving anything in derogation of another must be upon those who say he is to be deprived of his liberty or his property ; and, therefore, the circumstance of the Court, in order to the more speedy execution of justice, departing from the old mode of pleading and adopting the more modern method of affi davits, is no authority for doing that which would be unjust. Now, my Lords, I have established that this return is not conclusive; if it is not upon whom does the onus rest of showing that these persons are properly in prison ?It would be an entire mockery—it would be 'hanging the nature of the illusion•to say it was for the pri • soners to show that they were unjustly punished. From the case put by my Learned Friend (the Attorney-General) the minr day, it is clear that the prisoners had no such power. Upon what principle of the law is it, I would ask, that any man confined by another is bound to show that that confine ment is unjust ? I say, with great submission, I have shown to the Court that that doctrine of the law cf England is not that cruel absurdity which it is supposed to be. I submit, therefore, that the truth of this return must be shown either by plea or by affidavit. I have submitted that the change made from pleading to affidavit, cannot draw after it the consequences that the party in prison must prove he is improperly so. `Supposing, my Lords, the matter went to a Jury, would the prisoners be bound to prove the negative of his plea, or would not the onus be 'thrown upon his prosecutors, to justify the cause of his impisonment ? Mr. Justice Comttooe—Have you found any case, Mr. Hill, in which the plea is simply the denial of the return. Mr. HIL L _Sly Lords, I have given your Lordships all the cases I have been able to find upon the subject. In Devine's case your Lordships will see the plea there was in answer, denying the fact and asserting the right of the party; and I submit to your Lordships most confidently that there cannot be the power to confess and avoid, without the whole legal power being given. Supposing a party guilty, and that a conditional pardon has been given ; and supposing that that conditional pardon had been made absolute by the Queen. Supposing there was a plea of confession and avoidance, and that the conditional pardon and the absolute pardon were stated 'n that plea ; could that plea, I would ask, be traversable ? Certainly not. If the power is once admitted that there is a right of confession and avoidance, upon what principle cal it he said that that right does not go the whole length required far the purposes of justice. My Lords, your Lordships will recollect that there is no hint in these ancient cases that the power is limited. It is Mr. Justice Wilmot who, finding these cases went against his doctrine, explained them away by Raying that the right was confined to confession and avoidance. I don't know of any other instance in our law in which there may be confession and avoidance, and which may go to trial before a Jury, and yet there should not be the whole power in the party to make such pleas as will meet the justice of the case. My Lords, having concluded the observations which I have thought it necessary to make to your Lordships upon this part of the case, I must now , bring before our Lordships the affidavit on which I move for an attachment against Mr. Batchelor, the gaoler of Liverpool. That affi davit is made by Mr. William Waller, who represents himself to be the clerk of Messrs. Ashurst and Gainsford, who are the solicitors for the prisoners. He says that on Saturday, the 29th of December last, be received from the governor of the borough gaol of Liverpool the document, of which a true copy is set out in his affidavit; that it was given him upon his demanding the document under which the prisoners were detained. In that document the names of all the prisoners were set out ; and among them was that of Leonard Watson. He says that he was informed by the governor of the gaol of Liverpool that the prisoners were held in custody solely under the authority of the warrant so produced to him, and that there was no other document or varraot whatever connected with the prisoners; that at the time the return to the writ issued in the case of Leonard Watson was shown to him, he also saw the original returns, that he read them, and that they simply set out the warrant. 0.1 that affidavit, my Lords, I move, as subsidiary to the question before your Lordships, for an attachment against Mr. Bat c h e l or; an d one advantage gainedby the prisoners was, that they would have the warrant of Sir John Colborne before the Court, that warrant which my Learned Friend the Attorney- General has struggled so zealously to keep from the eyes of your Lordships. Your Lordships know that it is made imperative by the Habeas Corpus Act to give to the party the warrant upon which he is detained. Your Lordships thought it was premature on my part to call the attention of the Court to that subject in my former argument, but it is now clear that the warrant must be set out in the return, for whether this be a writ at common law or a writ under the statute of Charles the Second is immaterial. That Act did not give new rights to the subject. I infer, my Lords, that the subject has a right to see the warrant wider which he is detained, and that being mentioned in the S:atute is nothing more than a solemn recognition of that common law right. If necessary, I shall now submit to your Lordships that writs of habeas corpus are writs under the Statute as well as at common law. It was not necessary on the former occasion to touch that part of the question, but, my Lords, I apprehend, that this party is not committed within the Statute on the execution of any sentence—that he is con victed not by sentence, but by an act of mercy—not because he is convicted but because he is pardoned. That, my Lords, is the statement of my Learned Friends ; and then, if that be so, I apprehend that these writs are still writs under the Habeas Corpus Act, and that the gaoler was clearly bound at common law to give a copy of the warrant. • I say, my Lords, more over, that whether he was bound or not to give a copy of the warrant, he did give it. Why is the prisoner to have a copy? Is it that it shall be torn, burnt; or destroyed ? Is he to forget it, or to make no use of it ? No. And how then is he to make use of it, but by bringing it under the eye of your Lordships ? How, except by the law considering it, and not taking it for granted on the simple statement of any man, that there are sufficient reasons to warrant the detention. I say, my Lords, that the gaoler is bound to bring it, and to set it out ; and not setting it out as a part of the return, is a gross breach of his duty. My Lords, your Lordships will find no case—l think I may confidently say—to justify the gaoler in that course. Your Lordships will see that it is not a case in which there is no warrant. What is the value of a warrant— what its validity may be—how far it may justify the gaoler— is nothing to the purpose. He has a warrant, and he should, dealing honestly and fairly by the prisoners, put }our Lordships and the Court in possession of that which he himself has. He has a right to say that is the warrant I re ceived with them, and that is the warrant on which I detained them, and surely, my Lords, he ought to bring that document bef,,re the Court. It appears from his own confession that there is no other document in his possession but this warrant but before I call your Lordships' attention particularly to this warrant, allow me to ask whether a public officer is dealing right with the liberty of the subject, who, being in possession of' any information by document on which he can rely, chooses, upon hearsay—the value of which your Lord ships have not the power of estimating, because you do not know from whom the statements have come—chooses to allege that the prisoner in Canada made a petition, and confessed his guilt. My Lords, I put plainly this proposition before your Lordships, in order that the people of England may know what they have to rest upon. Has a gaoler a right to say that of which he confesses he has no knowledge, and upon the knowledge of which the law of England would not transfer the value of a pin from one person to anc ther—having a right to deal in this way, and put upon the returns, which your Lordships say is legal—a statement of facts of which he can know nothing ? I submit to your Lordships that any public officer so doing (and every gaoler in England is a public officer, and under the special superintendence and control of your Lordships' Court, so far as being called upon to signify to the King'sludges why be detains a certain man, and who puts on the return a number of facts occurring in a foreign country, and not authenticated to him by any document whatever), has not discharged properly his duty. Has the gaoler done 'so? My Lords, he ought to ,the lf re a la i t 'a iv l e e r would od have cesreedfasunswde were e t n h ts e ee s ra e ets mentsia ofcu a n pdc consigners sa s i n g. m e n h ea rrst o circus. ann,sd m avt consignees easnsceel be much more fully set forth than in this case, and if the ship's papers could show no better property in Morton of the cargo than is shown to bring up these men, I question whether the ship would be safe from seizure. I say, my Lords, it would not. Is it then to be supposed that the law which l l holdingbe s aid, twelve my Lords, Taeaia takes this care o f pro p e rty shall be so utt er l y di sregar dl ess thatof the a rights of may personal come restraint witho u t an y document, and transfe r th em t o a gao l er of Live r p oo l, an d t h a t that man shall dare to put this statement on your fil es , w h en b e has not a single scrap or part i cle of paper to justify hi m — an d s hall he in such a case b e h e ld to have done his duty ? M y L or ds, I promise to show y our L ordships that not only h as M r . Batchelor most rashly a n d cr i m i nally made i i n ib to erty our ? waters ha statements which he did not know were true, but that he has made stat emen t s which he knew were f a l se , an d I shall pro ceed to show that. my Lords. l am moving at the present moment in the case of Leonard Watson, an d your Lordships will find it stated in this return that Leonard Watson was directed by the warrant from Sir J. Colborne to be taken on board the barque Ross, and that he was to be brought to Liverpool. That is stated in the return. Now, in the warrant before your Lord ships, there is a recital of the most extra or di nary an d unmean- E i as bein g unmean ing kind that can be imagined. In this rec i ta l , t h e name o f Leonard Watson is to be found, and h e i s ca ll e d or d escr ib e d allegation th a t h e i s con victed—be convicted, and then in the operative part of the warrant, v i z ., t h e part wh i c h as a is described men directs Morton to take certain persons f or th e purpose.o f trans porting them, in that part of the warra n t L eonar d W atson i s not found. The gaoler , therefore, retu rne d th at w hi c h not only is unfounded, so far as his k now l e d ge goes, b ut of which he had complete knowledg e , an d t h at comp l ete knowledge told him that the fact h e was putt i ng on your Lordships' files was false. I as k your Lordships if that be within the duty of the gaoler of Liv er p oo l ? I must not b e a Theres uchs_ no told by any Learned friends that these warrants are unim portant. Is it foe the gaoler to make that discovery ? Is it for the gaoler, in the teeth of that great Act, the writ of habeas corpus, to make that discovery ? What right has he to keep back any evidence he may possess ? What right has he to keep you in the dark ? What interest should the gaoler take in the matter, except to discharge his mind of all the knowledge he possesses, and to place the Court in the same state as he is himself? Let your Lordships look carefully at this warrant. You will see the many legal blunders it contains, and I suppose that' that, among ether reasons, is the reason why your Lordships have not yet been able to see the warrant. Of that I complain. From what ever quarter his instructions may come, I complain of it, and I bitterly complain that every document is not here before your Lordships. Suppose the documents were imperfect, in matters of law or of fact, I ask your Lordships, who is there here standing behind the gaoler of Liverpool who has a real interest, an honest interest, in keeping these defects in the instrument from the knowledge of your Lordships? I say, my Lords, they are not worthy instructions they are not consistent with that care which every Govern ment takes, and which I am bound to suppose our own Government takes, of the liberty of the sub ject. I now conclude my long task. I have very imperfectly laid before you, so far as the short interval which has been allowed for me, the reasons for which I respectfully and earnestly implore your Lordships to see that these men arc not sent into banishment until it is proved to your Lord ships—until your Lordships know, as the language of the writ has it, "wherefore they may be sent." My Lords, I have not argued this case without the deepest anxiety. The liberty of twelve men—'.heir fates, and the fates of their families, depend upcn your LordThips' adjudication; but I freely confess that their fates are not, in my mind, the highest importance of the matter now before your Lordships. It is the people of England now living, and yet to be burn, !vim are interested in this judgment, and when I think of this I may well say with the greatest of Roman orators—" Non solum animo commovior, seri etiam toto per corpore horresco." This country has lung been looked up to as feeding the great lamp of ty, and diffusing its light over all the world. It depends upon year Lordships' judgment to-day, whether she d serves that high station among other nations, or whether she till be shown to have dealt with the great remedy of the sub ject, so that when applied to any man to save him from the greatest danger short of death which can occur to him, is powerless to help him. Shall this country support the obser vation of the great and glorious Milton, who stated that she possessed " the high prerogative of teaching the nations how to live." I confess that I wait with much anxiety your Lord ships' decision whether you are to proclaim to the laughing, scorning world that the great writ of habeas corpus is a mere idle invention for lawyers to impose on he world that there is liberty, but when it is required to oppress—where there is to be punishment without inqutry, eecellent reasons may be found and good precedents may be quoted from books in all times, whether good or bad, to show that your Lordships have no power to in quire whether a mall who tells you he knows nothing- about the metier is specking the truth ; but after that, and upon that• confession, your Lordships are still bound to send those men into banishment. Mr. ROEBUCK said he was not about to address their Lordships, but he wished to state, that they intended to move the Court in all the other cases; and perhaps it might save the time of the Court that they should be heard now. Their Lordships then conferred together for about twenty minutes, after which Lord DENMAN seld—Upen the return which was laid before the Court some days ago, and upon which we have given judgment this morning, I understand Mr. Hill to make two motions, perhaps on the alternative— fi st, contending that on the return, as it now stands, the proof of it ought to be supported by some affidavits ; and in the second place Mr. Hill produced an affidavit upon which he grounds the motion for an attachment against Mr. Batchelor for contempt of this Court in making a false re turn. Now with regard to the first question, there appears to be no kind of authority for saying that in any instance whatever it has been held necessary to support a return by any effisfavit, and I don't find that in practice that has ever been dune. It appears to me, therefore, that we should not be justified in introducing any new practice, or in saying that now, for the first time, it can be necessary that the party elm makes the return should verify it also by any state ment upon oath. There are certain other securities provided by the law. If that law should unfortunately be insufficient for the protection thus required, that is their misfortune, and would not authorise us to introduce altogether a novel prac tice upon this subject. With regard to the motion for an at tachment, on the ground of the return being false to the knowledge of the party who makes it, that is founded upon this statement—that the return handed to the Court states that Sir Julia Colborne, on the 17th November, by his letters pa tent, directed the captain of the barque to carry over Leonard Watson to England, for the fulfilment of the condition upon which the pardon was granted. Upon looking at the warrant, which appears, in the first instance, was shown either to Mr. Watson or to the attorney who ap peared on his behalf, that although the letters patent enume rated the names of all the parties, and amongst others the name of Leonard Watson, yet in the operative part of the letters patent there is no direction to carry Leonard Watson to England—their names are mentioned, but his does not ap pear, so that there is clearly an inconsistency. When the warrant is brought before us in affidavit it does not appear to authorize the bringing over of Leonard Watson to this country. That individual has a right to say, " You have imprisoned me by the statement of a warrant which you have fa!sely laid before the Court—for you say it includes my name, and lam now able to show that the warrant of Sir John Colborne did not include it." I must own that in my opinion the Court ought to be extremely careful wherever it has the means of ascertaining the truth of the facts, that the facts should be truly stated to the Court, and without entering into the question how far that warrant may be material to the justifica tion of the party, whether the judgment we have given does not dispense with it, I am of opinion that no such minute inquiry ought to be made upon such sub ject ; and that if we find there is an untruth, that is a suffi cient prima . facie case fur us to call upon the party who has untruly stated anything to account for his having so done Therefore I am of opinion that a rule nisi for an attachmen ought to be granted. - Mr, Justice LITII.EDALE.—A person in prison has two modes of procceding—one by bringing his action for false im prisonment against the party who has him in custody; the other by applying to a Judge to grant a writ of habeas corpus. With regard to the first, if he chooses to proceed by action for false imprisonment, it then lays upon the party either to set cut especially in his plea, or, if he be allowed, to give it in c6dence ; but either one way or the other he must. set forth the ground, and would ho bound to prove the truth of the assertion of all the facts which were put in issue; and certainly a person placed as the gaoler of Liverpool is would be bound to prove the truth of every fact. He has not adopted that method—he has not put the gaoler ina situa tion to verifj the truth of the matter under which he has been deta;ned. He has proceeded by applying for a writ of habeas corpus ; he applied to a Judge in a summary way ; the Judge granted that writ ; it calls upon the gaoler, therefore, to bi - ing his b..tly before the Judge or the Court, to account for his having hint in custody. In that way,it has been held not so matcri.rl to specify all the matters with the same minute ness as on an action for false imprisonment; Lut then, it is said you ought at all events to support that by affidavit. Now, I don't find any instance to show that in the first instance the party is bound to prove the truth of the facts by affidavit, for there is scarcely a return to a Habeas Corpus that might not have been quashed. Mr. Hill argues that from other proceedings with regard to a ;habeas corpus, by following that up further you ought to compel him to prove the truth of it by affidavit. It appears to me that there is no precedent for this, and I do not think we can so far differ from the common course as to require that to be done which has never been done before. So much for that part of the motion calling on the gaoler to verify the truth of the re turn by affidavit. With regard to the other point, he applies for an attachment against the gaoler of Liverpool for making a false return, and it is founded upon this, that he has made a return stating that Sir John Colborne by letters patent in structed the master of the vessel to convey him to Liver pool, and there deliver him to such person as might bo authorised to receive him, in order to carry into execution the proceedings under which he was to be sent to Van Diemen's Land. In the recital of the writ Leonard Watson is mentioned; but in the mandatory part of the writ it goes on to say, " These arc therefore to require you,"—that is, Captain Morton—" to take"—the several persons enumerated ; but among those he does not mention the name of Leonard Watson. It appears his name is not there ; and therefore, as this document was within the knowledge of the gaoler of Liverpool, and as lie must be presumed, particularly when persons are' brought before him, to look over the document under which he is to detain them—if he has omitted the name of Leonard Watson. I think he ought to be called upon to account for the circumstances under which he put in his return that Sir .John Colborne had directed Captain Mor ton to convey Leona: d Watson to England. Mr. Justice WILLIANIS -I am also of opinion that on that part of Mr. Hill's motion which requires the return to be supported by affidavit, the decision of the Court is an answer to that, because the re turn to the writ of habeas corpus, prima facie, imputes verity. The Learned Counsel, in citing Mr. Justice Forster, quoted that doctrine, and it is not new ; because in various cases, well considered, it has been acted on. In the case of The King v. Clarke, and in the case of. The King v. Saddis, a more modern case—well considered, and the resons well given— argued by no mean advocate, no less than my Lord Erskine, upon that occasion fully considered ; and in a still more recent case, ca. parte King, which I believe was not quoted in Ist I3arnewcll and Creswell, the various operations and the im mediate effect of the return was under the consideration of the Court ; and therefore, if the return imports, as it does, a prima . facie verity, it seems to me to follow as of course, that therefore, until it is impeached at least, nothing is necessary beyond the facts contained in it, on which this Court, accord ing to those authorities and the authorities of the law, is bound to judge. Mr. Justice COLERIDGE-4 am entirely of the same opinion on both points. With regard to the latter part of Mr. Hill's application, which the Court has granted, I think it only necessary to say that as it is only a rule nisi which is granted, the Court abstains cautiously from prejudging the question either for or against the application. It proceeds upon this, that wherever a public officer has made a return which, prima facie, uppears untrue, it is for him to account for that, and to state how it is he has so dealt with the Court. The other point was, that on this return it was necessary in the first instance to support i t by affidavit. A great deal was said in the first part of Mr. Hill's argument by way of observation on the liberty of the subject, and the effect of the writ of habeas cor pus. I will say that with regard to that, merely, that I apprehend, and I think the history of England shows it, that that Judge does best for the liberty of the people of England, who does not indulge in any specu lation of his own as to what would be the best for the people, by straining the law beyond what the authorities per mit, and that he does best who adheres to the law as he finds it, and as lie finds it has been acted upon, however defective it may be ; because, if it be defective, that is sure to lead to an improvement of the law in the regular and constitutional mode. Now Mr. Hill has, I have no doubt, with great learning, examined into the authorities in support of his position, and when you consider the weight of those authorities, you are to remember the position to which they are supposed to apply. The posi tion is not that the truth of the return may in any stage be controverted, either by plea or :affidavit, but that in the first instance the Counsel or the parry filing the return is bound to support it by affidavit. There is not a single authority which he cited, from the time of Henry VI. down to the present, which in the slightest degree bears that out in terms. One or two of the cases (I allude particularly to Sir William Chance's case, in 12th Cooke and Hutchins, and Clare in Sir Orlando Bridgman's reports). In Sir William Chance's case, as it appears to me, by looking at the report, it does not seem any thing more was decided there but that upoia the face of the return it was informal. But supposing that was not so, I apprehend it would be found, on examine; ion, that cases of privilege may stand on a different footing fro.'n ordinary cases, aad that were the Court to see any of its offi c2rs, or that any privilege had been dealt with unfairly, the Court might ex-officio institute an inquiry of its own, yet that the great current of authorities is the other way. But, perhaps, in the earlier cases, the party was at libirty to controvert the truth of my plea, and in the latter cases a practice of filing affidavits had been allowed irr some instances. Now, Sir Michael Foster is to be taken as a very strong authority in this matter. It is well known e bat his opinions were, and if he does not carry the point further than that the party controverting the return may fie affidavits for that purpose—if he does not go on: to say that it was incumbent on the party to support the raturn by affidavits—it must be taken, I think, that Sir Michael Foster had not, at that time, found any authority for that. So, then stands the case on the authorities ; and then the mode in which Mr. Hill seeks to apply them is this, " Though we find by the authorities the onus has been oa the party coatraverting the return, yet justice requires you should now shift that onus and throw it on the other side. Now, -I must say, that that is a position in support of which no authority has been cited, and the Court cannot go to that extent. Therefore, I agree with the opinion expressed that there is no ground for granting the first part of the application, The ATTORNEY-GENERAL—My Lords. what I am now going to ask is that which I apprehend w 1 be for the conve nience of both parties, which is, that your Lordships should direct this rule to be drawn up for an early day—say peremp torily for 'Wednesday morning. Lord DENMAN—Have you any objections to that, Mr. Hill? Mr. HILL—None at all, my Lords. We shall probably find it proper to plead on the return. Lord DENMAN—That is subsequent matter. Mr. H ILL—Yes, my Lord, but I was merely about to say that as that would be a new course of proceeding I trust there will be no attempt to remove the prisoners beyond the jurisdiction of the Court, untii ample opportunity is allowed for any pro ceeding their advocates may think necessary. The ATTORNEY-GENERAL—My Lords, I shall take care, so far as I can, that the prisoners are not removed until the most ample opportunity is afforded for applying to the Court in their favour, in every mode that ingenuity can suggest. Mr. HILL—Your Lordships have desired that they should be remanded. I presume they will be remanded to the cus tody from which they have been brought ? Lord DENALAIsf—That is not inconvenient. I suppose? Mr. HILL.—Oh no, my Lord. Then I understand my Learned Friend will leave it where it is with regard to all natters we consider your Lordships to have decided upon. The prisoners were then removed in custody. BAIL COURT.-(THIS DAY.) TEIR. QUEEN V. SIR JOAN MILBANKE. Mr. CRESS WELL was instructed, on the part of Sir John Mitbanke, to move to make the rule absolute which was granted by his Lordship a few days ago. Mr. BINGHAM was instructed to consent, on the part of the Magistrates, and Mr. SAUNDERS on the part of the prosecutor. The rule was made absolute accordingly, on the party en tering into recognizances, himself in 1,0001., and four sureties in 2501. each. THE QUEEN V. THE SELECT VESTRY OF ST. MARGARET'S, LEICESTER. In this case a mandamus was granted, during the last Term, to the Select Vestry of St. Margaret's, Leicester, to make a rate for the repairs of the church. To this mandamus a re turn was made, which Mr. Balguy now moved should be quashed. Mr. Justice PATTESON, after I airing a statement of the f:cts, granted a rule nisi. THE QUEEN V. 13ARRETT AND OTHERS. Mr. LEE, on Saturday last, moved for a rule to show cause why the defendants, who arc sale to Lave been concerned in the Todmorden riots, should not be admitted to bail. Mr. Justice PATTESON, this morning, granted the rule. HOLLAND AND BELGIUM. ANTWERP, JAN. 18.—Tbe Observateur has the following letter " PARIS, JAN. 16.—Count Felix de Morose has laid be fore the French Cabinet the proposals which your Govern ment thinks of presenting to the Conference at London. The fo.lowing are the bases of this proposed arrangement Belgium shall retain all Limburg and all Luxemburg, except the frontiers of Maestrecht and Luxemburg, which shall continue to be the exclusive property of the [louse of Orange, and of which the second shall continue to be occu pied by the troops of the German Confederation.' " The communication between Maestrecht and Germany at.d Holland shall be free, and without any impediment; the use of the two military routes shall be guaranteed to the garri sen of the fortress, on the rayon of which Belgium will repair to all military operations. The communication with Germany shall likewise be free from impediment. Belgium will refrain from all assembling of troops, and all military operations which endanger the safety of that fortress. " Belgium does not acknoe ledge itself a debtor to Holland rr ore than a little above two millions of francs annually ; neeertheless, in order to hasten the conclusion of peace, and as a compensation for the concession to be made by the Cabinet of the Hague, Belgium consents that this annual payment should be increased to four millions of francs; it will besides engage to ply to Holland sixty-five millions of francs, after the exchange of the ratifications. (I do not answer for the cor rectness of this last sum ; it seems, however, that the proposed indemnity, instead of being one hundred millions, as bas been stated, does not exceed sixty-five millions.) ' Such is the plan which Count Merodet has laid before the King of the French, requesting him to instruct Count &has tiani to support it in the Conference. It is said that his re quest has been favourably received." We hear that the ♦acant Garter is to be given to the Duke of Cleveland. The present Duke of L'uckingham and Chandos is expected to succeed his late noble father in the Coloneicy of the Bucks Militia. No successor to his Grace as Lord Lieu tenant and Custos Rotulorum of the county has yet taken place. The appointment will not take place until after the interment. The Conservative dinner to the present Duke, at Ti.ame, in Oxfordshire, on the 28th instant, will not take pl Ace, his Grace having ceased to be a Member of the House of Commons. In the event of a dissolution of Parliament, Peter Laurie, Esq., the nephew of Alderman Sir Peter Laurie, will, it is reported, be proposed, upon the Conservative interest, as a candidate for the representation of the borough of St. Mary lebonc.—Morning Post. Sir John Awdry, it is said, is to succeed Sir Her bert Compton as Chief Justice of Bombay, and Mr. Henry R4cr is appointed to succeed Sir J. Awdry. Mr. Roper was f. r several y ears a practitioner at the bar in India. Sir J. R. Carnac, the new Governor of Bombay, and suite, will embark, on the 29th instant, on board the Thomas Coutts, Indiaman, for the seat of his Government. Lai) , Carnac and family accompany Sir James. THE NEW PUBLICATIONS.—Mr. Bentley, Pub lisher in Ordinary to her Majesty, New Burlington-street, has just published the following New Works, which may now be obtained of all booksellers and at all libraries. 1. Wild Sports of the Forest and Prairie, by C. F. Hoffman, Esq., author of a Winter in the Far West ; 2 vols. post Bvo., price sixteen shillings. 2. Mr. Trollope's new novel, The Widow Barnaby ; 3 vols. post Bvo., price twenty-four shillings. 3. Sam Slick's Bubbles of Canada ; one vol. Bvo., price twelve shilling 3. 4. Rob of the Bowl, a romance, by J. P. Kennedy, Esq. ; 3 vols., post Bvo., price twenty-four shillings. 5. In cidents of Travel in the Russian and Turkish Empires, by tho author of Incidents of Travel in the Holy Land; 2 vols. small 8%3., price fifteen shillings. 6. Memoirs of Charles Mathews, comedian ; 2 vols. Bvo., with numerous characteristic illustra tions. 7. ( Immediately) Legend and Romance, African and European, by Richard Johns, Esq. ; 3 vols., post Bvo., price twenty-four shillings. ODESSA. DEC. 20.—The Governor-General of Minor Russia, Gen. Federof 1., and the Commander-in- Chief of the Military Colonies, Count de Witt, have received an Im perial rcsei ipt, of which the following is the substance:— " The Emperor, desirous to assist foreign nations who are in want of corn, and at the same time to enable Russian mer chants to satisfy without loss of time the orders for corn which may have been, or might hereafter be, addressed to them, has ordered-- " 1. That three-fourths cf the corn sow stored in the Go vernment reserve magazines and in :hose of the military colo nies, may be lent to Russian merchants, ;:rovided they could show that they had received orders for corn fl'f.itu foreign countries. " 2. That the loan of this corn should be completely gratui tous, but on condition that the borrowers should restore it in kind in the space of six months." This measure proves both the desire of the Emperor to ac commodate Russian merchants, and his friendly disposition towards foreign nations. Of late the orders for our corn have been numerous and very extensive. There are at this moment in our harbour 124 English, French, Italian, and Spanish vessels taking in cargoes of wheat and barley. All the other harbours of the Black Sea are equally encumbered with vessels, coming for the same purpose.—Journal des Debats. . _ A hair-dresser, named Bickers, committed suicide yesterday afternoon, at 14, Clement's-lane, by cutting his throat. Two children were in the room at the time, and the youngest, about two years old, was dabbling with its fingers in the blood which flowed from iLs unfortunate parent. Such is the present demand for straw plaiting, that the earnings of females in the parishes of Braintree, Halsted, and that part of the county are greater than the wages givers at the silk mills the latter have in consequence experienced a deficiency of hands. Applications have therefore been wade to other parts of the county fol. girls to work in the mills, and no doubt the hands will soon be supplied. There is at this time in the Union workhouse here a family of the name of Harris, deserted by the father, belonging to the parish of 131oomfield, consisting of Jano Harris, the mother, aged 49, and her five girls, of the respective ages of 20, 19, 14, 11, and 8 This family may immediately earn in the silk mill some thlog more than 20s. a-week, and an arrangement is in pro gress with Mr. Courtauld to send them to this establishment under the pi otection of the mother, for whom a cottage is to be provided at a moderate rent. The temptation is great at this tim-j for parishes to provide such families with the means of earning their own living, the cost of maintenance in the per head.—Essex H era ld. Union-house now averaging 3s, Bd. ieter ity to sup art of ,ut to ike a your t the 1, or My irch is in roent all -0011- hing ueen