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

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
Friends 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 these persons into 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 the boast of this 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
triumph and applause with whicla Blackstone speaks on this
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 has been handed down to us
y our &aeon ancestors, notwithstanding the contests they had
With the Danes, and it was established by the provisions of
Meet,
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
glory, my Lord, is there in the law of England if these
men 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 done, a man, by a mere statement, can imprison an-
life. 2ther, have hi as punished, and probably seetenced to slavery for
Mr. Justice Fortesque says that the liberty of the subject
Cannot hazel, upon so slender a thread, and Mr. Justice Black-
thee obs'erved that the liberty of the subject was protected by
thee Writ.of habeas 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 shall first argue on the return as it
..(7425t vhesrtalnds, that Mr. Batchelor is called on to prove the truth
rt his return • but I also submit a motion which is distinct, or
might say subsidiary to the main application, or par-
titnn of the application. I now make (for I state it, my Lord,
lanlY 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
Itnugh to consider the sufficiency of the 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-
Meet against Mr. Batchelor for a false return. Not 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
41nd acknowledge himself to be the person who put
tis on the files of the Court, be he who he may, aye, my
da if he were tho Prime Minister of England, I would
'Stand forward to move an attachment against him for such a
totNrous perversion of every principle of justice. But your
ot
tiships see this motion, important though it be, does not
t° the full extent of the important principle which I am
e 401 g under the notice of the Court, because for the
,ra'shment of Mr. Batchelor, I must not only show that
af t he has stated is false, but I must show one
1
't two other things. I must either show he knew
4u, to be false, or that he has, considering his
Qe`Y. Most rashly, and, therefore, most criminally made
Rations upon this return, of the truth of which he is igno-
:tit. Now, my Lords, I shall argue that upon either of these
rounds, and still niore upon both of them together, I am
'eda,,titied to an attachment against your officer, who has, in
due mode of stating it, made allegations, of the truth of
du he he is ignorant, which, I say, is ot fulfilling his
tt 'a towards this Court, but who, in another mode of
"nig it, has made allegations of the truth of which be
conversant—that the truth is ccntrary to those allegations.
stewever, my Lords, both these 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
Trire now called upon to inquire into. What your Lordships
.13 ikist see, before you can touch the principle of this remedy by
aaucas 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
fin his subjects' imprisonment. My Lords, how do you
ricw 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
ri‘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, heb
ought not to
ave stated them. What is the duty of a gaoler ? Is he an
°Pliosed party to the man he keeps in custody ? Is it not
rather his duty simply and plainly to state the circumstances
!Met' which he holds him ? Ought Mr. Batchelor to have one
'ngle wish that it may turn out the warrants or any other do-
etlinents he may have to justify the detention of these men,
should in point of law really justify it ? No, he would have
fulfilled 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 may turn out that that was Mr. Batchelor's original
nteution. It may turn out that he came into this Court with
a return honestly and properly drawn, setting forth the war-
rants oti which he arrested these men, and setting forth
nothing 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:2lwn, and to submit my case in that manner to the Court,
:lankful to your Lordships at all times for doing me the kind-
:C,SS, and for pointing out upon what you require information,
which 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.
bearing
That must be my excuse if I omit any matter
ugon the principle I am now offering to your Lord-
-e"Ps in the course of the argument I am about to pursue.
"1, Y Lords, I was saying that Mr. Justice Blackstone had con-
s'dered that these great principles, which until the present
tune I would have said were not only truths, but truisms (but
the actual truth of which we cannot, but for a moment, begin
!° doubt) he supposes that these great principles are carriedthe
tato effect by the writ of habeas corpus ; and that
Jealousy of individual liberty, which individual liberty he says
its by what
in the Englishman, had been sufficiently guarded
what he calls " the great and efficacious writ of
habeas corpus." He says, " But the great and efficacious (3
writ in all manner of illegal confinement, is that
iix of
habeas corpus ad subjeciendum, directed to the person deta ng
another, and commanding him to produce the body of the prai
fa -
:11er, with the day and cause of his caption and detention, d
ciendum subjiciendum, et recipiendum, to do, submit to, and to
receive whatsoever the Judge 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
imagination 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 triumph, on this matter. Then, my Lords, Mr. Justice
Blackstone states this—
The ArToaNEY-GENERAL—WiII you allow me respectfully
to interpose. My Lords, if my Learned Friend had been
acting to produce affidavits to contradict the return, all that he
its now sailing would be highly relevant, but in answer to your
Lordships' 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
such 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 false return be made by the gaoler within his own
, nowledge, which he knew to be false, that is a charge your
,Lordshis will entertain
ind if my
fo Larned Friend will read
ilia affidapvits, (although it s not r mee
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 is, my Lords,
the case of Andrew Devine, a case which was discovered by the
deep research of Sir Orlando. That case, my Lords, occur red
in the 24th of Henry VI., and is to be found 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, and of 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 Reynolds is
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 pleadings, evi-
dence was taken; 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 oppressive case, the Counsel
for the Lords of 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 then he accounts for the record not being found.
fAolrye Liosr d sm,
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 practice of
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. HILL _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. Batchelor; and 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
,thelfrealait'aivlee
r
would
odhave
cesreedfasunswde
were
etnhtseeesraeets mentsia
ofcu an
pdc
consigners
sasi ng.
men hea
rrst o circus.ann,sdm avt
consigneeseasnsceel
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 said,
twelve my Lords,Taeaia
takes this care of property shall be so utterly disregardless
thatof thea
rights of
may personal
come
restraint without any document, and transfer them to a gaoler
of Liverpool, and that that man shall dare to put this statement
on your files, when be has not a single scrap or particle of paper
to justify him—and shall he in such a case be held to have done
his duty ? My Lords, I promise to show your Lordships that
not only has Mr. Batchelor most rashly and criminally made
iinibtoerty our ? watersha
statements which he did not know were true, but that he has
made statements which he knew were false, and I shall pro-
ceed to show that. my Lords. lam moving at the present
moment in the case of Leonard Watson, and 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 extraordinary and unmean-
Eias being
unmean-
ing kind that can be imagined. In this recital, the name of
Leonard Watson is to be found, and he is called or described
allegation that he is con-
victed—be convicted, and then
in the operative part of the warrant, viz., the part which
as a
is
describedmen
directs Morton to take certain persons for the purpose.of trans-
porting them, in that part of the warrant Leonard Watson is
not found. The gaoler, therefore, returned that which not
only is unfounded, so far as his knowledge goes, but
of which he had complete knowledge, and that complete
knowledge told him that the fact he was putting on
your Lordships' files was false. I ask your Lordships if that
be within the duty of the gaoler of Liverpool ? I must not be
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
it 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,