The Sun.
London, England, 1824-04-20 00:00:00

•WRIT; Of' IiABEAS CORPUS.

Fort William in Rengal.—George -the Fourth, by the Grace
Of God, of the United hilgdom of *Great Britain and Ireland,
King, Defender of the Farth, and so forth : To Lieut:-Colonel
John Vaughan,. Town .and Fort Major of Port Williarn
Greeting; We arrnmand you, that you have iha body of
.ford Arnot; by whatsoever name he it:se:llW now, detaining in.
your .custody, unlawfully, as it is said, together with the day
rind cause of taking and detaining. the said Sar4fOrclArmit, be-
fore our trusty; and well beloved Sir Francis W'orkrnan
naughten, Kt. Senior Justice, and Sir Anthony Buller, Knigli
Puisne Justice, our, supreme Court of, Jiul iCatti re at. Fort
William in 11engal, at their Chambers at the Court House-at
Fort Williarrkafaresaid, on the 18th day of September. instant,
at the hOurof twelve o'clock at noon of that day, to do and. re-
ceive, and be subjected to what our said Justices shall then and
there consider of him in this behalf; Witnesi Sir Francis
. Workman Macnaughten, Knight, Senior Justice at Fort Wil-
liam the 16th day of. September, in the fourth year
of our. Reign,. and in the year of our, Lord Christ, one thousand
eight hinidied- and twenty-three..
T.. Liwix, Clerk of :the Crown.
Hou.a, Attorney.
(Signed.) A. Rui..x.,Eit.
SEPT. 18.—Th.e Return was.postponed till tomariori at the
request of Mr. Pee, the CoMpany'S was ac-
ceded to on the other side.

RETURN TO THE WRIT.
Made by the Town and Fort Major of Fort Earn.
I, John' Vaughan, Esquire, a Lieut.-Colonel in the Military
Serviee of the (Jnited Company of Merchants Of England, trad-
ing to the Eatit Indies, Town and Fort Major of Fort William,
do hereby, most humbly certify, and return to the Justices of
the pipreme Court of Judicature at FOrt William in Ilcn al,
'that Sandford Arnot, in the Writ of, Habeas Corpui hereunto
annexed, Mentioned, was, on the 6th and 12th-days of B,eprem:
ber instant, and still is a subject of our Lord the now King of,
and belonging to the United Kingdoiri of Great Britain and.
Ireland, residing and being at Calcutta, at Fort William, in
the Province of Bengal in the East Inclies, within The lrinits of
the elusive Trade of the said United Company, without the
license of the said United Company, and without, being cithier-
'ti-ise thereunto, lawfully authorized, and who was trot on the Said
6th and 12th days of September, instant, or either of 'these
days, or at any nine since, nor is now in any manner legally
authorized to he, or remain in the East Indies, within the
limits of the said Trade of the'said United Company. '
That on the said 6th daY of
.September, instant, the Right
Hon. William. Pitt Lord Arnhem, Governor-General of, Fort
Willlam In Bengal, did, by his Warrant, by. him duly
signed and sealed, authorile, charge, and require, William
North and Joseph Laverry, two Constables, in and for
the Town of Calcutta; and each of them' to seize, tale,
and arrest, the said Sandford Arnot, wherever he should be
fbund in the Proiinces of Bengal, Behar; and Orissa, and
places subordinate to the Presidency of Fort William' afore-
said, and him safely to keep and detain and to deliver over the
body of the saki Sandford Arnot if so eirested and taken to me
John Vaughan, Town Major of Fort William in Bengal afore-
said, to be by the kept and detained in custody until' lie the
said Sandford Arnot should be remitted and sent to. England
on board some one of the ships belonging to or in the service' of
the said United Company, which should next after the date
.hereof he dispatched to the said United. Kingdom'; by virtue
of which said warrant and according to the powers and instruct '
lions therein contained, the Said William 'North and Joseph
Laver' (lid in Calcutta aforesaid, afterwards arresf the body of
the said Sandford Arnot, and' did on the 12th day of'Sept.
in conformity with the poviers and instructions in the said war-
rant of the said Governor-General, in -that heir:Elf, contnined,
deliver over the body 'Of the said' Sandford Arnot, so arrested;
to me, the said John Vaughan, then .being, Town and Foit-
Major of Fort William aforesaid, for the purpose •in the said'
warrant of the said Governor-General in that behalf stated; and
the said. John Vaughan; do-hereby further hrimbly certify
and return- to the said Justices•that the said Right' Hon. % in.
Pitt Lord Amherst, Governor-General of Fort William entre-
said, by his certain other warrant by him duly signed
Oat and seal-
ed, bearing date 11,th day of September instant, and:direct-
.

-191h.--About raid-day Mr: Arnot was
brought to the Fort, in custody era .serjeant, and -agreeabli to
the summons on the writ of llabths Corpus, prodyeed hefoie
the JUdges. As it had been announced in the news Papers, Oita
the bUsiness was to be done in charribers, not in. the open CoUrt;
a general itnpression Prevailed, that the proceedings '-would be
entirely private, and :no -fterston admitted to hear Ahem unkii
personally concerned. 'I his, however, did not prevent a great
concourse of persons being in attendance, Who were anxious tb
hear the result ; and whin it was afterwards found that the Pub.
lie were not excluded, as had. been anticipated, many, regretted
deeply the erroneous iMpression which bad kept many away
from these interesting proceedings. • • . •
The Judges having Mken their scats in the large hall, appro-
priated to the Grand Jnryi when doing business,. the BarristaiS
and Attornies -connected:with the case, and some:Others, fa*.
their seats at the table plated.ahout the centre ; and the numer-
ous •Midience-of 'the inhabitants Of Calcutta assembled,• ranged
thernselVeS around in the room in the most convenient situatibil
they could obtain lot hearing the proceedings.
And we mnst now express our regret for not being able to
give a more hilt and pole& account of them, for reasons whith
ate easily explained. ()wing. to the general impression above
mentioned, that the' proceedings Ivottld be perfectly private,
-none of the gentlemen who usually report for the Press, came
prepared; arareOnSequentli having been taken by suriniss
when thepleadingS began, and unprovided with either paper, •
pencils, or other' means, -no notes were taken by them.. We
have, theta:re; had to labour under unusual difficulties; but
CO ensure, as,Peffect an' account of the proceedings as possible,
recourse has been had to every person present likely to affbrd
any assistanet,t skit frohrtheffintlibotrts of theltePorter of the
ti urkatu and our own, this Report has been drawn up : which
• will acUOnnt for its appearing itytwOpapers,'on the same day. in
the most material part of the RePort—, the opinions of the Judges,
we have fortunately poisessed an advantage which enables its to
vouch for their atcuracyrthe 'Counsel for Anat. having; as
is usually done, taken tio*iiliotes of the judgment, with which
we wsre obligingly furnished, and from them, together. with
theiaolleetton of three or four different auditors,..besides those
of thireprirters of the' papers named, every: thing at all mate-
rial has been Preserved; and we think we May add; very .tor-
reedy represented. To e' cure, it' possible still greater accu-
racy, the jildgment of Sir f'aiicis Macnaugliten, was submitted
' to' hiS Lordship with a hope, that hd would consent to revise:li,
but under the particular cireinustimees'of the ease his Lordship
declined doing so, On the grounds, however, above stated,
we can pledge ourselves for rte correctness although •it can-
not convey any adequate idea of • the glow of feeling, and the
fOrce and. energy' with which it•
was delivered.; nor .irn-
...
part in the reading, that syinpathene delight with which was
heard. " ' •
Mr. Ttiit-T02.7 appeared as Counsel for-Mr.',Arnot, and Pro-
ceeded to-state-the 'grounds on which•be Would claim his:
charge; but, for the realaoni above stated, we can only give a mere
skeleton of suth of his arguments as we curt recollect, without
pretend ing &preserve strictlY the order in whiclethey -were urged,
or to give the words in which they were expres:;ed.- The Learned
Counsel began by intimating, that he had nothing tasay as to
the power of Government to transmit to England British Sub-
jects found in India without a license; hls.business being Solely
with the right of itoprigoiing iueh persons in thYinteitnedfate
time between the order for their removal •and their embarkation.
Before entering "farther -,.into the. question-, he would obierve
that; althotigithi had many objections to the return rnad by
Lieut.-Colenel ,Vaughart4to the writ of Habeas Corpus, yet
he considered himself to stand non other and stronger g jounde,
he would not adduce•these objections unless he was driyen -ter
it : and theiefbfe, in 'the meantime,‘ -he waved thein entir 1p;
reserving; however; the right of haVing recourse to theriiin•
case of necessity.' He would; in the first-mitance;einfrdeffiiii-:
self to the quetition•of, whether the .Government. tiole. a iithi
by Act of Parliainent, to confine an individual whom they:are
abotit to sendhorne ? He would first state itaS a Orinciple firlty
recognises( in• English • Courts of Justice, that as,•
betty was the.natural right of every man, and nor be abed,
except for what the Coinmon Law of' the land diitinctly'dared,
to be a sufficient cause ; theiefore no British subject etittid lie
deprived of his liberty,' without the eipresS warrant hf atv- -Act
Of Parliament. A high legal authority (Mr. Jnitiee Mick-
atone), hid (131. Com. I, 135), statedtbe grounds -on. vas the
Subject could be deprived of his liberty ; arid; hr the ©ruin
Charter itself, (or if-he might be allowed to call it the Greatest
Chartei), of English liberty, it was declared that," na
should betaken of imprisoned but by' the law,fhl jifderseent of
his equals, 'or by the law of the-land." At The ect:oki. VC the
English law (said Sir Wm. Blackstone); 'consists in Cleatilt de-
fini ngthe times, the causes, and the hen; whirifOrec-and
to what degree, the irnprisOnment of the subject may be laiffuh"
(M. Corn. 111. hqs it. downi as a Title, tbat the. Oki
sonal liberty of the subject so jestatfily guatdett; being :frmi-
tural inherent right whfchcOuld not be 'surrendered& fOrfeitit'l,
unless by the cotmnission of some great and atrocious eritne,z-
might not 'to be abridged in any "case without themieclfib,pei7
Mission of law." Now to 'apply these principles. to ,tV3l4ttlf
Section of the. 53t1' Geo. 111. -on which the conmlitment -of Mi.
Arnot is grounded by the Government, we find-that le sf!rnPf+
gives them the 'power "to take, seize, arrest; and send ohtboara
a shiplioUnd for England:" There is no, word abdift,i*
w .Pri-
sonment : there. is no arrautno " special.!pertnissibtr,fert
his confinement. ' Therefore, all .theconfide:mut the Goffri,..
ment had a right to inflict, was, that which Was'zccessartwhili-
ionveying the' individual on board the ihips and no7thoie.z...
The Learned Counsel had heard, (for things of tils
ki(its in
such cases as the present, would get abroad tornetirnes), thattre
was to be met on the ground that, although the Act ,
tinctly give to..the Governor-General the power of iinpriqcirt-
meta ; yet, it was only natural to suppose it contained within
itself the power of its own enforcement; and that this *ag
power; therefore, necessarily arising from the-Act itself, in
which such . imprisonment, it would -be argued, is neceSgaidy
implied. BM in Opposition to such a doctrine, he would Main-
tain, that such a power ought to be clearly and expreSSlygiierrt
otherwifie it cannot be assumed. There was no such' Vower
even hinted at in the Act; and no one had a right to suppose
and supply what was not to be found there. At the time it
era's passed the country was at war 'with France; consequently
fleets could only Sail under convoy prObably twice a year.; and
from the delay thus occasioned; there could seldom be opp'r-
tunities of transmitting 'persons to England ; perhapi once in
sir Months.. The 'Legislature knowing this, and that if the
power of imprisOntitent were given, individuals Might be soli-
jected to a long confinenient, did not introduce Stich a P.Ofer.
into the Atet: they therefoie aid not intend the perioni to be
mated with such severity ; thinking their -removal to -khz-

"tad hardship enough, without such an aggravation mo
ly n-Eer-
i five room-months' imptieonment.
That such was the view of the legislature in passing this
oleariy proved by contrasting it with.another of a eimi-
Jar nature; the Act respecting foreegnera. In this they did
eventemplroe such imprisonment; and the manner in which a
el:oreigner shall he treated, is distinctly pointed out. Now, if
the right of intermediateimprisontuent was necessarily implied
intim power to remove, why did they take the trouble to give
it expressly -in the case of foreigners? Does the English Goo:
esernmentoWith the advice and assistance of its law eaffisters,
Peas actsfor mere waste paper; stuffing them with superfluous
reed useless clauses, giving people powers which they must have'
000rsessed without them ? The following is an extract from
the Act referred to :
' And whereas it is expedient that the several Governments
:'.ll the Post
.Indies should be enabled -to prevent subjects of
lereign states from residing or sojourning within the British
territories, there, againstehe consent of sueh Governments re-
epectivelf ; Be it further enacted, that it shall and may be law-
ful to and for the Governor General in Council, .and .to and for
The Governor in Councilor Chief Officer for the :time being of
any presidency, or of.any place not being shbordinateto any
Presidency under the Government .of the united Company of
..rterchants of England trading to the East Indies, to cause
notice in writing to: be given .tonny person, not being a native
set any part of the British territories in:lndia or within thelimits
Of the charter of the said.united company, other than such na-
tural born subjects of hisPiajesty's as may from time to time
'Awfully resort to, or reside in the East Indies, to -remove him-
eeltutieraeltfrorn such presidency, or from all or any part of
the British -territories in the East Indies, as may be deeined ex-
pedient within a time to be limited'by such notice; and in case
any such person shall notobey such notice then it shall and may
lYostlawfal to and for the Governor General in Council or
vernorin Council, or other Chief Officers, as the case may be;
of the place where such person shall be found, to cause such
lersop. to he apprehended and brought before the Court of civil
-or criminal judicature, to ,the jurisdiction 'whereof such place
.may be subject:; a.nd,upon.proof being made upon oath to the
.satisfaction of-such Court by any credible witness sweariey, to
saris knOwledge or -belief, stating the ground of such belief that
such person is an alien and the subject of a foreign state, and
that-stich notice as aforesaid has been served on such person,
~eitheofpersonally or by leaving the same at hie dwelling house,
unless sueh person shall prove thathe is a natural born subject
be his Majesty, authorised to reside in India, or a native of the
-British territoriesin India, or within the limits of the charter of the
Company, for the making which nrool,reason ableoinie and oppor-
. tunity shall be allowed by the said Court, such person shall be re-
mended by the said Court into the custody' of the Governor-
General, Governor CiaietOfficer, who shall, as soon as'may
-cause anchperson. to-be removed in such manner as his or her
rank, state and condition in' life-shall require, by the first con-
venient opportunity to the country or place to which. he or she
shall lielmige if he or she 'shall:. be . eto go thereto, or,
onherwiee to such country or place as': the GeiveznereGencral„
err Officer 'by whose authority he or she Shall have ,been eppree
.handed or shall be detained, shall be of opinion shell be most
,proper, regard being had to the convenience of the.perioo to he
removed, and the peace and security of the itritieli Territories
in the East Indies, and of the Allies of .his Majesty and the
Mast ....ludia,Compapy, and of any neighbouring. princes or
states ; mill in the mean time, and until each person can be con-
-venientiv.and.pruperly removed, it shall and. may be lawful to
or her in such custody or under such guard as the
Pelson-by. witeee•aothority lee or she shall have beep apprehend-
ed orlshill. be..detained, shall -see fit anti necessary, so as that
the_peseon.aetained may be pat to as little inconvenience as
el:all le.consistent.with the objecteef his or her detention ; and
An case any such person, having removed him or herself in pia-
-silence of any such notice, or having been so removed, shall
again%Welly return to any country or place from which he or
she 4141 have had notice to remove without the consent of the
Goveinment or .chief officer of the place to which he or, she
shall teturro it than and may be lawful to and for the Go-
verlearoGeneral in Council, or Governor .in Council, or chief
efli n of the place where suds person shall be found, to cause
such person to be apprehended and detained in .sate custody,
until-he or she shall be discharged out of oestotly, upon such
terms and conditions as the Governor-General in Council, Go-
vernor; in Council, or other. chief officer at the place where he
or she, shall ha detained, shall deemoufficiene for the peace and
security-of the BEtich territories and of-the allied of his 3lejeety
. and pf the bast India Co:npanv, and of the neighbouring
Princeo.and states."-55 Geo.-llf. cap. 8•4, Sec. G.
. Wag it possible (asked ;Vr. Tinton) to imagine, that the Le-
gislattire, having made such-careful provision for the confine-
ment of foreigners, with due attend= to, -their contorts, would
have been utterly regardless about the treatment of British born
subjects.? If it had meant the latter to be imprisoned, when
.fountlin India without a licence, would it have made no provi,
..st-m-Aki- their good trcatmi at ? would it not, in' sonic Man-
ner,; have mitigated or. restrained the exercise of tte power.
itgraiitcd over them ? Or was the English Government, in
consenting that its own natural subjects should be deprived
of tlie,ir liberty, to assign no limits. to the exercise of this
power, hilt leave them entirely to their fate, without any hope
of relief.?
11tr,,,r4u ILI as also argued. that Mr. Argot could not he im-
, prleenetlin -the fort, nacre; the act expressly, authorised it, as it
was an •illegal place of .confinement. If the Governer General
had. the.-power of committing to private prison and not to a
public prism, the benefit-al the t § 7. c. 3 (certifying commit,
rneot,s) wonid be lost. He referred to Acts passed against con-
'. lining..pea:4)/e to private houses or dungeons, to which persons
Might be horried away, and shut up without an opportunity of
eoamounicating with their friends ; and as the keepers made no
reports-of their proceedings to any'legal authority, a person
might be immured in this way without any means of legal
redress. He referred to a case decided in Englend, in which
Mr. 47ergusson,. the present Advocate-General at this presi-
, dent johad adduced it very able and learned argument to Wive
that a person was illegally confined in Cold-bath-fields on the
ground. that it was not a.public prison. The Judges had ad-
initteirthe validity of the argument, and only decided against
him ona particulaeground; that a certain Adt of Parliament
tool rendered this a public prison;; otherwise, the perion must
have been held to be illegally confined.
.Returnipg to the Act-on which. Mr. Arnot had been corn;
meitteo—heseabservedottiet as it gave extraordinary powers,' it
eohnst be strictly interpreted,—its meaning not arbitrarily ex-
tended.. It appeared, by its preamble, that transmission was
intended fur cases where no-other punishment was required; a
circumstance which aloneesoggested its being need leniently ;
the government were authorised to proceed against individuals
here ~withoirna licensofor. a misdemeanour ; and they might-
Ptusiehed by. a- fine not exceeding Sieca Rupees 2,00 t), or im-
prisopment not exceeding two ,inontli*. But,. observed the
4o:earned Counsel, as there may be cases when removal to Eng:
. land is enough, without any further .punishment, the Govern-
-. -mem is thee authorised-to apprehend individuaLe in this pre-_
Aims:Let-40;1cl send them to, Unglsed, when-no further punishe
meat-is deemed necessary—not even two inonthe imprison-
mentdeeervedo Could the Act at the sane time intent to in-
flict severocr eight months imprisonment, or more, (for such it
idight amount to) over and above the haniehaneot to England.
On the grounds :stated, and others• which,eif necessary, might
be adducted from the return, the Leerned,Counsel concluded
that AlreAvnot was entitled to his discharge.
The AreseoceT„o-GEorunon then stated, that he appeared
in support of the return made -to hiss writ of Habeas
Cerra. from the first mention of it, he had.never entertained
hr doubt that the government possessed the power to imprison ;
if it had not this 'were, the person must be set at large at
once; and the tloyernor-General -would be left without the
means necessary for .exekcising the authority vested in him by
the Act for sending to the .United Kingdom British subjects
found 'here without a license. It would be absurd to suppose,
. -the Legislature meant -to give him such a power, without
giving.also the means necessary for carrying it into effect._
The analogy drawn between this case and that of aliens or
foreigar.s was inapplicable:. because aliens vieze guilty of no
otTli-noe -by- being in the _country; whereas British subjects re-
siding here without a license were declared by theiket of Por-
i:Amer-it to be, committing a high crime-and misdemeanour every
deys ..The Government was authorised he arrest and send them
to -,f4soland ; -and the power of detention till they could be put
onboard a•ship was clearly necessary for the exercise of ohat
power. • , The Learned Counsel then referred to a manuscript
oonkr containing accounts of the proceedings of the Supreme
Court of .Calcutta, extracted and copied (he stated) under the
onentrintendaoce of a gentleman very competent to the task,
(Mr. l'faclier, clerk of the papers), Irone this he cited a case
sledded in this Court, when Sir Robert Chambers was Chief
Justice—than whom, he thought, an abler Judge bad not sat'
ou that Bench. • Mr. Burroughs, M r. Ledlle,.(andutheri Whom
he named), all men of considerable abilitleae were Couniel in
the-case.; and although all time -argument's on both sides were
not given, it appeared to have been fully cinvassed,.affording
the greater security for a mature and just decision. This was
the case of "Julian in 1791,, when a writ of Habeal Corpus was
applied. for : and a return being made that he had been con-
Eorid in the Fort-by order of the Governor. General, the-Court
• decided thet he could not release him.
.(The beck contained a copy of the return in that case : which
return Sir Francis Macnaghten pronounced to be manifestly
bad and not supportable inlay/. It bore, we believe, that the
parson was to be kept in prison, unless he entered introseverity
to quit the country,) •
The ADVOCATE-GEXERAL then quoted the fitly Geo. I.
cap. 21, which confirmed the, 2 thand 1001 of Wm. Ili. for-
-bidding pecple to trade, to the East Indies without license under
p alty of forfeiting the effect embarked in such trade, and
'aoidsleelle value thereof; and it was settled ,that residence.,
veithout licence, should be construed into unlawful trafficking.
ma none of the Acts till the 53d Geo. 111. was there any men-.
Jaen of the indivittual unlawfully trading or residing being put

• Note.—This is a mistake of the Learned Advocate, for
the C'ompa»ys ships are dispatched even in the height of the
Monsoonl it is not material however ; for the argument, if well
founded, would cut both ways.
t We should think this is not quite correct, because we
understand that a ship cannot properly be said to be bound'
for a.p,ort, until she has actually sternheeted customs fot
that place.

•
* With reference to the supposed danger: of persons ordered
to quit India being allowed to go at large in the intermediate
time before their embarkation, Mr. Turton observed in one
part of his address to the Judges, that " he was well aware
the Government did not apprehend any danger at all in the
present case. Indeed his client was punished for the fault ot
another person." (Meaning the Editor of the Paper, lie being
solely resonsible as before stated for what appeared in its
pages).—This observation of Mr. Turton was omitted in the
newspAper reports.
t IVe are desired to state, that with reference-to our report
of the judgment given by Sir Francis Alacnaghten, in the case
of Mr. Arnot, his Lordship did pot speak of the decision of
this Court in 1701, in the case of Duhan, as at-all connected
with the construction of any Act of Parliament. Be. declared
the Return to the writ in that case to be bad, inasmuch as Du-•
han had been arrested under special authority, which special
authority did not appear by the return: Hedisapproved of the
decision, because. the return having been bad, the prisoner
ought not to have been remanded.; and because the Court, in
support of its decision, treated the proceeding as if the Coun-
cil Chamber had been a Court of Record : it was this that be'
considered to have been contrary Ito .I.aw.—(Calcutta .Journal
of Sept. 27.)