The Sun.
London, England, 1844-11-05 00:00:00

QUEEN'S BENCH.-(THIS DAY.)
(Continued from our Afternoon Edition.)
IN THE MATTER OF JACQUES BESSET.
HABEAS CORPUS.

In this ea. the prisoner Besset had been a mer-
chant, carrying on business in London and in Paris.
He became a bankrupt, and the French Government
demanded that he should be given up to them under
the provisions of the extratradition treaty, as a person
guilty of fraudulent bankruptcy in France, and who
had escaped to England. He was arrested, taken to
the Mansion-house, and committed to Giltspur-street
Compter by the Lord Mayor, preparatory to his being
surrendered to the French Government. Before
that surrender could take place, application was fmade
to Mr. Justice Wightman, at chambers, for a
writ of habeas corpus, on the ground that the offence
of fraudulent bankruptcy was an offence un-
known to the laws of England, and that,
therefore, it was contrary to law to arrest
a prisoner, or to keep him in custody on such a
charge. Afr. Justice Wightman considered the matter
of such importance that he refused to decide at cham-
bers, and directed application to be made to the full
Court. On Saturday Mr. Chambers obtained the
writ of habeas corpus, and this morning the keeper of
the Compter appeared on the floor of the Court with
his prisoner.
Mr. CHAMBERS, on being called on, moved that
Jacques Besset be discharged.
The return to the writ of habeas was then put in
and read. It set forth the warrant of the Lord
Mayor for his committal on the charge of fraudulent
bankruptcy committed in France.
Mr. JAMES said that an objection had been taken
before Mr. Justice Wightman that the prisoner was
not in a position to apply for a habeas corpus, he
being a French subject, accused of a crime committed
in France, and in custody under the convention.
Probably it would be better to take that point first.

Lord-DENMAN—Perhaps so.
Mr. CHA➢fBERS contended that there was nothing
to show that the prisoner was in a different position
from other persons, and that the other side could not
now raise the question upon affidavit.
Mr. JamEs replied that he had a right to show by
affidavit that the prisoner was not in a position to
apply for his habeas.
Lord DENMAN—The words of the Act of Parlia-
ment are, " that such person shall be committed upon
such requisition aforesaid, and delivered up in case
requisition shall be duly made." Now the words of
the commitment are, " until he shall be delivered by
due course of law." There is not a word about any
requisition having been made. How can you explain
that, Mr. James ?
Mr. JAMES—There has been a requisition to the
Secretary of State. The Secretary of State ILI
issued his warrant, that has set the magistrate in
motion, and he has committed the prisoner until
he shall be released by due course of law,
instead of until he shall be delivered by requisition.
Such a discrepancy might or not be a reason for
ordering a prisoner's discharge, but he contended that
the prisoner being a criminal, a subject of another
country, accused of a crime committed in another
country, was not entitled to his writ of habeas. It
had never been stated under which Act the application
was made, the Act of Charles 11. or that of George
111. The prisoner was a fugitive criminal from
another country, accused of that which is not a crime
in this country. t y the Act Charles 11. the relief
by habeas was confined to subjects of this country
accused of crimes which could be tried in this country.
Upon that point there had been an express decision in the
case of the King and M'lntosh, 1 Strange, in which the
Court decided that a person in custody for treason
committed in Scotland was not entitled to his habeas
corpus, because he could not be tried for it in this
country. The Act of 56th George 111., was
only an extension of the Act Charles 11., and
enacted that persons confined for anything
but criminal, or supposed criminal matter should be
entitled to his habeas—thus remitting him to his re-
medy at common law.
Mr. Justice WILLIAMS—What is his remedy t
24 common law ?

Mr. JAMES apprehended the writ of habeas ; but
he submitted that at common law a fugitive criminal
from another country could not be entitled to his
writ of habeas. lie apprehended the question was,
whether a person in custody for a crime committed in
France was entitled to his habeas. _ _

Lord DENMAN—That is to say, whether our
gaolers are to be gaolers for France without the con-
vention.

Mr. JAMES submitted that the Court could not
discharge the prisoner on account of the wording of
the warrant—for to be delivered up by due
course of law would be to be delivered
up in conformity with the requisition, or in
the event of their being no requisition, his being
discharged under the provisions of the Act of Par-
liament. He also submitted that if the warrant
were bad, and the depositions set forth a crime, the
Court could remand him back to the same custody.
Mr. Justice WiLLlAms—That is only in cases in
which the prisoner could be tried in this country.
Mr. JAMES admitted that the Court would be taking
upon itself to decide whether a crime, according to
the law of France, had been committed by a French-
man in France; but, inasmuch as the magistrate
would have the power of issuing a fresh
warrant, he submitted that to give effect to the Act
of Parliament, their Lordships would remand him to
the same custody.
Mr. Justice CoLERIDGE—Setting the magistrate's
warrant out of the question, have we, proprio vigore,
the power of committal under the Act?
Mr. JAMES apprehended that the Court had the
power to remand, and that it could exercise that
power, on finding a crime set forth in the depositions.
He submitted that the depositions ought to be read,
and the prisoner re-committed by the Court, in the
event of any crime appearing in those depositions.
Mr. Justice WIGHTMAN—That is to say that we
are to discharge him under the warrant, and commit
him ourselves de novo ?

Mr. JAMES—Yes, my Lord.
The SOLICITOR-GENERAL attended by desire of
the Lord Mayor not to oppose the prisoner's dis-
charge, but to submit to whatever the Court might
direct.

Lord DENMAN—It is a great misfortune that this,
the first application made of this very important Act
of Parliament, which may affect the administration of
justice throughout the whole of Europe, should be
made in such a very defective manner. We
have no power to interfere. The gaoler has no
power to detain this person, except what is given to
him by this Act of Parliament ; and when we look
to the wording of the Act of Parliament, we find
that in this case the directions of the Act have
not been followed. It is clear he cannot
be detained. We have been applied to to remand him
as having been guilty of some crime. We can know
nothing of the commission of any crime except what
appears upon the warrant. We have no power to take
cognizance of any crime committed in another
State, except under the provisions of the recent
statute. It would have been unnecessary to pass
that statute if we had possessed such a power as that
which we are now asked to exercise. It should be
distinctly understood that this writ of habias is
issued under the common law, and not under the
Act of Charles 11. or George 111. The writ was
secured by the petition of right, and was known to
the law long before those Acts were passed. The
prisoner must be discharged.

SPIRIT of the PUBLIC JOURNALS.

FROM THE EVENING PAPERS OF THIS DAY.

GLOBE.—We are glad to add our own hearfy tri-
bute to the general satisfaction with which the ap-
pointment of Mr. Erie to the vacant Judgeship has
been welcomed. Men of all parties confess that, in
plain language, there was no one in the field whose
claim ranked so high ; and through the very ram con-
currence in him of great powers with amiable and
honourable qualities, there is perhaps scarcely
a barrister on his side of Westminster Hall,
however slight his personal acquaintance with him,
to whom the news of his elevation did not convey the
thrill of pleasure with which we receive the tidings
of the good fortune of a friend. As to what are
called party claims for preferment, lawyers, we be-
lieve, think little abont them ; the public, which has
the substantial interest in the appointment of good
Judges, still less; the Rigby, Tadpole, and Taper
generation must settle this fresh ground of quarrel
with Sir Robert as they may. There is one
point of view, and one only, in which we hail
the elevation of this accomplished lawyer with
feelings approaching to regret. The vacant glace
was in the Court of Common Pleas ; and thus the
Court which has the least work to do, which from
its admirable mediaeval constitution is expressly cal-
culated to do as little work as possible, re,eives
a fresh addition of vigour at a time when the
judges of both the other Courts are notoriously
overtasked. This is the more vexatious, a 3 the
same Court enlisted the last young and
hearty recruit in the person of Mr. Justice Cress-
well. Both these juvenile and energetic spirits will
vegetate in a region whose climate seems to render
exertion as impossible as it is needless—the very
Castle of Indolence, where
" No living wight could work, ne cared even to pl:xy"—
where the judicial pun falls rare and pointless, and
the advocate fights as one who beateth the air.
The prospect of such ease after a hard-working
period of honourable toil may he pleasant enough
to Sir William Erle • but for our parts, when we see
youth and strength taking their ease in the Park at
three o'clock, while the veteran part of the judicial
corps is grinding on through its ever-growing heap
of business till long after the candle-lighting hour of a
London November, we feel continually reminded of that
most unequal division of labour in the old apologue
when the son rode the ass while his aged father walkeci
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