The Sun.
London, England, 1847-04-30 00:00:00

LAW INTELLIGENCE.

COURT OF QUEEN'S BENCH, April 29.
(Sittings in Banco, before Lord Chief Justice DENMAN, and
a full Court.)
JURISDICTION OF COURTS IN THE CHANNEL ISLANDS.

Mr. CROWDER applied to this Court fir the discharge of
John Brennan and Henry Gallan, two lads who had been
sentenced to transportation by the Royal Court of Jersey for
the period of seven years, on the ground that on the face of
the return the Court possessed no authority to pass such a
sentence. The Learned Counsel stated that the two boys
had been tried before the Royal Court of Jersey for breaking
into a baker's shop in the town of St. Helier, in that island,
and stealing a quantity of sweetcake therefrom. The sentence
was passed in the usual form, namely, that the prisoners should
be transported to such place beyond the seas as her Majesty,
or her Privy Council should direct and appoint, and the pri-
soners were re-conveyed to prison. Sir George Grey after-
wards sent his warrant for the removal of the prisoners to
this country, and they were placed in custody in the Peni-
tentiary at Milbank. He had now to submit to their Lord-
ships that on the face of the return made there was no com-
petent authority in the island of Jersey to sentence any
parties to transportation. He contended that, where sen-
tence of this kind was passed in any foreign countries, it
was necessary that it should be shown on the face of
the return that a proper authority existed to inflict
such a sentence. No such authority appeared on the face of
this return; and not only was it not shown that such
authority really did exist, but there was every proof that it
did not exist. A minute of Council had been framed with
reference to the disposal of prisoners who should have been
sentenced to transportation in these islands ; but that
minute did not, nor could not constitute any authority to
pass sentence. It merely pre-supposed the existence of such
authority at the time that the minute was framed. The
right to pass sentence of transportation did not exist by
common law,—it was only conferred upon judges by
Act of Parliament; and, therefore, unless it was
passed under such Act of Parliament it was n,t
only invalid, but against the law. Not one of
the lets which had been passed with reference
to this punishment had in any way any application
to the courts in this island ; nor even under the ancient laws,
upon which the island was formerly regulated, did any such
authority exist. Any British subject who was committed to
custody, in any gaol or prison, had surely the right of know-
ing upon what law or authority he was detained. It was not
incumbent upon him to show that there was no authority to
detain him, but it was incumbent upon those who deprived
him of his liberty to show that they had a legal title to do
so. No such right was shown on the part of the Baillie of
the Royal Court of Jersey, and therefore as there was no
means of reversing the judgment, the prisoners were entitled to
their discharge. The Learned Counsel then proceeded to cite
at some length several authorities in support of his view of
the case.

➢fir. LUSH followed upon the same side, and contended
that upon the face of such a return sufficient should be stated
to enable the person detained, in case ha should be unjustly de-
tained, to found an action upon it. In this case the return
was perfectly correct in the fact which it stated as to the
sentence passed, but was silent as to the authority given to
pass such a sentence, so that parties accused, although sen-
tenced by an authority which was not competent to pass
sentence, could found no objection upon the return, inasmuch
as the facts stated in it were perfectly true. Their Lordships
were asked to infer the authority of the Royal Court of Jer-
sey to pass sentence, because they had actually passed it.
Such a poposition would be a most dangerous one, if allowed
to be valid.

The ATTORNEY-GENERAL contended that the Court could
not interfere with the judgment which had already been
passed by a court of competent jurisdiction, although the
parties accu,ed might be within their jurisdiction. Sup •
pose the case of a person sentenced to banishment from
Scotland, and while being removed for the execution of that
sentence the vessel in which he was was wrecked within the
jurisdiction of their court, having been sentenced by a court
of competent jurisdiction, they could not interfere legally
They could not order him to be remitted to the jurisdiction of
the Court which sentenced him,nor could they discharge him
with the sentence hanging over him. The only course that
could be pursued with regard to the prisoner would be to
show respect to the judgment passed upon him. If a person
were sentenced in England, and ordered to be imprisoned in
the county of Middlesex, that would not render his detention
in the county of Essex an illegal one. A Court, having a
competent jurisdiction to pass sentence, and the prisoner who
had received that sentence having been brought over to this
country, the absence of any statement as to the authority of
the Court to pass sentence, upon the face of the return, ought
not and could not constitute any right on the part of this
Court to interfere with the sentence.

The SOLICITOR-GCRERAL said, that if this precedent were
admitted, there would exist a necessity for inquiring into
the cases of many Scotch prisoners who were detained ia
this country under sentence of the Courts of Scotland. The
only method in which any such case could be brought under
the notice of the Legislature was by petition to the Queen
in Council; and, in the present case, where sentence had
been passed by a competent Court, the same appeal, namely,
by petition to the Queen in Council, must be adopted.
L nder such circumstances, this Court would establish a very
injurious precedent if it allowed the present application, and
interfered with the sentence.

Mr. HILL addressed the Court upon the same side. lie
contended that by the sentence passed the prisoners were to
be transported beyond the seas to such place as her Majesty
should appoint. The prisoners were detained in Jersey until
that pleasure was made known. The discretionary power
was vested entirely in the Crown, and their detention any-
where until that pleasure was made known was merely a part
of the sentence passed. A writ of habeas corpus might just
as well apply in the case of a prisoner whose ultimate desti-
nation was not named for a long time after his sentence of
transportation. His detention in that case, as well as in the
present one, was merely a portion of the execution of the
sentence.

Mr. WADDINGTON having been heard upon the same side,
Mr. CROWDER, in reply, urged that his objection with re-
ference to the powerof the Court of Jersy to pass sentence of
transportation had not been answered.
Mr. Justice ParrissoN said that the question was not one
of error as to the judgment; it turned upon the power of de-
taining the prisoners in this country.
Mr. CROWDER said, that under any circumstances his
Learned Friend bad shown no authority by which these pri-
soners could be detained i❑ this country under a sentence
passed by the foreign Court of Jersey, the laws of which'were
unknown to this country, and also unrecognised. The sen-
tence was passed under the laws of Jersey, and the prisoner
was found in this country, and how could any right to detain
him be shown? The sentence of transportation was un-
known to the law unless created by Act of Parliament,
and it had not been so created in Jersey. If a pri-
soner were brought before their Lordships under a
sentence which condemned him to lose a limb, such a
sentence not being known to the laws of this country, and
being passed by a foreign court, would not be recognised, and
the person would not be legally detained in this country.
The Act, sth of Geo. IT., provided that when any sentence
of transportation was passed by any court out of the United
Kingdom, and within the limits of her Majesty's dominions,
the prisoner should be sent over to England to be
transported. His Learned Friend had laid great
stress upon this provision, bat if there was no
authority in the Royal Court of Jersey to pass sen-
tence of transportation, that Act could not apply. His
Learned Friend the Attorney-General had assumed that the
Court of Jersey possessed that authority, and had confined
his arguments to the question as to the legality of the cus-
tody in this country. That was literally an assumption of
the whole question ; for if it should be found that the Court
had no jurisdiction, the Act could not apply. On these
grounds he submitted to their Lordships, that the Court
ought to entertain this application. If the Court possessed
the power they ought to have stated it upon the face of the
return, and as they had not done so, that return was invalid,
and constituted no authority to hold the parties in custody in
this country.
There Lordships reserved their judgment.

BAIL. COURT, April 29
(Before Mr. Justice COLERIDGE.)
TIIE QUEEN V. BRAITHWAITE AND ANOTHER.

Sir F. TIMMER applied to I.il Lordship for a rule calling
upon Mr. John Braithwaite, tile proprietor, and Charles
Wyman, the publisher, of the I?aitway Times, to show cause
why a criminal information should not be filed against them
for publishing a libel in that journal reflecting on the cha-
racter of George Frederick Muntz, Esq., M.P. for Birming-
ham. It appeared from the affidavits on which the Learned
Counsel founded his motion, that in August, 1845, a meeting
i-Lhawas; a
.ahowileasehorideceiruestfedßitromaintgtehnadm.
was convened at Birmingham to consider the propriety of
S
iZrm. forming
sembled, by whom'
uantrallw ay from there to Leicester, which meeting
be carried out,
proposedur6 that he agreed to take 100
c success of thief
measure
gentlemen as-
tend the meeting, where he found about six o
and
80 weas resolved that
domuaeltdd-
easonvinced was Mr. Muntz of the ulti-
mateshares in the
ompany, which were accordingly