The Sun.
London, England, 1842-11-16 00:00:00

LA Nvs:,(ll,t,rnn- ,-4 vai
12.*" I.A 143 EA ki .124 •
Bk;NCH.-4THIS DAY.)
(Sittings' in Banco.)
CAst CAPTAIN. DOUGLAS-
., Tui.,
.OF ARCHIBALD DOUGLAS, A PRISONER

~ . .
Ile !1-:-TIIE_CUSTODY OF COLONEL. KAY.
prisoner
las, ,•, in this case, Captain I:reibald Doug-
ha,elas, this morning, brought up under a wr • it of
as, in railitarcustody, in order to have the cause
of hi • y
Captain Douglas
s unprisonment inquired into.
enter the Court at ten o'clock, and he was accom-
panied bY ,olOnel Kay', an officer of the staff, in
the i,ess ?Worm, as his guard. He took his seat cm
Waes-:`,„rlen 110er the box. His attorney, Mr. _nobler,
r•• ergant communication with him.
Clarksontkirney and Solicitor-Generals, and Mr.
writ
appeared in support of the return to the
ThiM Air. Chambers appeared for Capt. Douglas.
tail, e Judges took their seats on the bench at five
ates alter
The ten o'clock.
as om return to the writ stated that the pfis.onerw as
East Teer in the 49th regiment, in the service of the
John India" Qompany, and had been committed by
'tett: Harawick, Esq., one of the Magistrates of the
,iese°Politan district, to Tothill-fields Bridewell, as a
wh,rt" fiorn the East India Company's service, from
likiilee, by authority of the Secretary ofWar, he
taandie n transferred to the custody of the officercom-
lit eag thie depot of the East India Company s forces
Th-;ualti, in whose custody he was now brought up.
kr: return haYing been read, ,
and attr said he appeared. for Captain Douglas,
Th. 1114Ved 'tat he be discharged. He also
ttd t „ sub-
noDou las
t e ° ]Pettourt en affidavit from Captain g
whi
lolntralllha.k.t,
~t,.-4, urti Of but explanatory of the retlirn,
be re —l4'avr lit trusted the Court would permit to
ead, nun Jo„
1-11, A
t•(), ntr 4113catNE-r.. GENERAL submitted that it was
uie_toll,-.7.''!jall Ifile to admit affidavits, either contra-
ha
hea.r,' ior explanatory of a return to a writ of
he o fltdy were received on one side, they must
V.
th.
Ik clevr•
lion t° ,Ltir apprehended that there was no objec-
° reqce.affidavits in such a case.
41). I'd liiiiiiaN—lt is not the usual course.; pern-
Oki Y°ll will tell us why you wish us to receive a
Mat ?
Mr• l = •
the en ‘ tvratild the case differed essentially from
not --alnnml'ilrder of eases. Captain Douglas was
corn,
milted initted.for. trial for any offence—he was coin-
to the "der the Mutiny Act. He was committed.
4/41thnellsthdy of 'Colonel Kay; to be kept for a time,
4tas es'i,n to be sent-td India. Under these circun.i-
-e-3"q* put in CaptainDouglas'saffidavit,
-ttin,f ~, oposedto
nr,a(ls I°,P• ,Itilet the rank he held and the circumstances
f
~,`-'olor,,j•/71„M*4had'been placed in the custody o
k;olo,,tla-i' tlar,tititrder that the Court might judge if
f
the Nlii-t;''''kS"ttk4tithorised, under the provisions
The
4,4ea'rti,„risnY Act, in keeping him in custody.
,
Abriccn(vittbritieman' .then quoted from "Bacon s
4ii•eetaeitt 11 to siliew,that affidavits might be re-
:tt.babe,•,7l,4l__,lipqrsoir was brought up on a return to
'4 C --v°4-Pus.,',:lie.begged to call the attention of
Whiel'i'llrt to the 22d section of the Mutiny Act, under
show heiTtninfDouglas was committed,- in order to
C -14"te ° it to admit the affidavit of
aptaio ce.sary was
torn ~,,,rOuglas, in order that many parts of the re-
and ..,A•ell-appeared obscure might be made plain
Illittialf.Tatowl. The section authorised the corn-
% c soldiers who o ht to have been with the
rps to , . s, ought
The
foin,d „Vnich they belonged, by a Magistrate.
%how a"l'in of this proceeding was, that it must be
the
en that he was a soldier, and ought to be with
be ,„trPgis 'to which he belonged. If he ought not to
ka .--; ale corps to which he belonged, that the
IyOristrate had no urisdicti. He sld show
oughe, tiukt torp j s was, and alsoon that Captahinou Douglas
telo ;111it!to have been with the corps to which he
thatntri,eld under those circumstances he submitted
affidavit-74nagistrates had no jurisdiction, and that the
Lord
must be received.
ent rather
ta ,h rd bErim AN thought that argument w . t
did aw•qhat the return was insufficient. The Con.
roit,thll3t. think that affidavits could be admitted. It
3it he argued that the return was insufficient. _
Air
I(zt.lasked if the depositions were in Court r 0r,,, .T.
it
4"wwsthmi—That depends on your certiorari.
Court.
tr.lleared that the depositions were in.
koved '''‘'Ll.T. then, on the part of Captain Douglas,
l had
se that he be discharged. Capt. Doug as
tved th
thttli -e East India Company with credit for more
to-
Ilish,PVTlV.years, mid he was certainly much as a
tapta-' J'A. being ' charged as a deserter. lie was
at
YA1,4149q the 49th regiment of Native Infantrdyhad
tIit,Y4ST• lie was with his regiment in India, and
lihe-1141: leave of absence, and was in corisequen at
proper
tili,!%Y4o dispose of his person as he thought.
I),„lng,the time to which that leave extended. Capt.
,:gglas. was apprehended in London in October,
fields
~
wPfore a Magistrate, committed to Tothill-
of War,
'4 1,134 an order obtained kora the Secretary
transferred to the
'll.i'tc'-,j s e 'I. nen c e of which he was,
Cap((3-379t‘P I. Kay, to be sent to the Eastlndies.
. ''' ''
° submitted tint he was no deserter,
that i. •Qu.glas ~
"e' h - committed breach of duty which
kave col had no
f detainin him
and 't 01101 Kay st legal ground or g
1 t t -,m-ir d 1 ' to decide whether he
Was le 'A (1 ritt .am Jor s lips
' stru-
tient -\%l ri 1 Aor not. The first legal in
cif e Plain ' I•Fii'e the foundation' for the detention
i
a
•vieki . 1,,,; Zug as; s.%:a'a the *arrant o
fro k,
.deserter
tailii4g.l2,e,was charged with being a.nt.
Ile tr - -(4.1.4.E.ti5f India Coilpany's 49th Regiment.
l‘tagistrni" , alb_ ,Ohould show to the Court that no
ntuder
...n;. A/P,S,l4sed any authority to commit _
i
War
then •45,71 fieJl:jeurnst.ances. The Secretary at
"aPtal•ss-I,e 'l4' 'warrant to' ColOnel Kay to receive
06444, ouglas into his custody, and the return
tckfit,'APat-COlonel Kay
had received him into cus
Nvere,Y virtue of the said warrant. The facts then
kistrat "t Captain Douglas was charged beforea
Ma-
Was a.V4:ith being a deserter. He denied
"that
he
Ratio deserter, and he was Committed on a -warrant,
Ivitlit that he had been committed charged on oath
the'rn-ei,ng a deserter, and the Secretary at War made
b0ua1..4 extraordinary order under which Captain
Nvoardals was Low detained—an order which he never
the
ei nave ;
~ -issued if his attention had been called to
kitt,ciurnstances of the case. He (Mr. Kelly) sub-
Vtherthat
, there was no power under the statute
~-11the'§in the Magistrate to commit Captain Douglas,
Ziltd, eeretary at War to order him to be sent to
tin ns, or in Col. Ka to obey such an order. The Mu-
of het related almost exclusively to the management
tendectarroy of her Majesty, but the 32d section ex-
Nay, t=r4nnae of its 'provisions to the East India Com-
regard Tees. By the Act a power was given, not asd
the e„ ~,e- the commissioned officers, but as regardei.
diers"rn°u soldiers of the British army, that so
4 kar,,,..Ted with deiertion, on being brought before
%oldie,."Ltafe, and . its being proved that they were
the 4,,and that they ought to be with their corps,
lie , gltirate might commit them to civil custody.
to eZKelly) submitted that the Act related solely
not t(I p4',4?lSnidiefis, or non-commissioned officers, and
Vas n,,rarnissioned officers ; and, secondly, that it
kri wh.: Tnade to appear that the prisoner was a per-
longed,'s Ought to be with the corps to which he be-
referred It was not so stated in any of the documents
anti to in the return, because it would have been
laittegdei as the prosecutor well knew. He also sub-
taus that the Act did not apply here at all
e•th e , be-
forto regiment to which Captain 13ouglas belonged
this no part of the East India Company's forces in
11,,,,ve?Intry, and that, consequently, the Act did not
tell'ii,..,:,,With regard to the first objection, he submit-
sohrti!Lt ti,le word soldier, in the Act, meant a common
I:ef and did not apply to a commissioned officer.
(41 ti 7 11)NINIA'14z----Mr. Attorney, do you rely solelyf
detctil.3d section of the Act as your authority for
IleetiounY Captain Douglas, or do you imagine that
Ilii"t e._xPlained by any other section ?
that the 22d
seetion IrORNET-GENERAL apprehended .
Parts 4!;„4,d,t114 34d section of the Act, were the only
-1 d ' had reference to the case.
4or 1\
with th .`"tlg hoes—Then we certainly are much struck
that he. e objection that the warrant not
does state
is
be with his
reginla soldier, and that he ought to
think it
neees erit* I put it to you, if you do not
sh sarY that
, ould h_ under the
22d' section such a statement
to ,ive 7 made
•,,,,.upon the face of the warrant, in order
The r.e .knagistrate authority to commit. _
lay s riar.Totivzi.-GEivanai?—The return was
c_
formed,
lac be ' upon those materials alone
.whi h were
fore the of the East India Company.
wt&.11.04 ,
.. e advisers
and th 4 before the Magistrate who committed him,
°eektio.er f.ol'e, I cannot state what passed on that
-,. :• ~. -...
...ord :.r,
You,,:th. -'7'
illkiltAii---Does it not appear necessary to
that at n .iirder to give the Magistrate jurisdiction,
Tl 7 should be mentioned.
It to: hi,Arinn/irty-GErcznAL—lf your Lordship puts
roe to ,e, I lira bound to admit that it does appear to
the Alaue essentially necessary in order to authorise
been iigistrate to commit, and that it ought to have
,i, stated in the commitment.
-od D
Court 11A1,1r—That is precisely the answer the
Theexpected from you.
IP itted A. .rroaxEr-CrEmmia.--Perhaps I may be per-
LearnetP.,,a3' that until it was pointed out now by my
I,,ere
..,u_. Friend M the warrant of commitment, we
the return' aware of what objections would be made to
to
u_ . tirll. A
h --i'y Learned Friend did not communicate
of o'clet e objections he intended to take to the legality
Mr. commitment.
Prier,- 4,"----I do most fully give my Learned
-7 Lie' Att i credit for what he has
State 4
; ulit the objection was distinctly stated to the
The lie at the time of the committal
the e6io. AT at
was not present at
. mittal
ought to ' *
~, ,an o
dld thinkthat I earned Friend
my 4
.
mane gave me credit for my statement, after the
r in ~,i
The c nieh I have acted on the present occasion.
drops
. °IIItT suggested that the matter had better
I;
and
Captain ordered to be dis-
and Douglas was
The
and "ivift attorney-General then leaned over the bar,
M.
TsPered something to Captain Douglas.
solee iCELLy immediately- rose, and exclaimed with
des., Nyartntli—My Los cis, the Attorney-General has
degas Ca t• •
p twin Douglas not to leave the Court. I
Apprehend that by your Lordship's order he is dis-

charged, and I ask if your Lordship desires that he
should remain. ia s 47:
• The ATTORNEY- GENtRAL--A Rave App.iCatt6
to make to the Court relating tolCaptain Douglas,
and I was certainly desirous that he should net leave
the Court until after that application should haVe been
made.
Mr. KELLY—I wish to know_if it is your Lordships'
orders that Captain Douglas should remain ?
The ATTORNEY-GENERAL—I apply on behalf of
the East India Company, that Captain Douglas be
detained as charged with having extorted large sums
of money, amounting to more than 12,0001., in the
East Indies, and I move that he be detained to take
his trial on that charge in this country.
• Mr. KELLY—And, in the mean time, I wish to
know whether Captain Douglas, who it appears is'
now detained here, and on whom something almost
amounting to a personal assault has been conunitted
in the face of the Court.—l wish to know if it is your
Lordships' desire that Captain Douglas should not
leave the Court.
Lord DEN MAN—I apprehend that the effect of the
decision to which we have just come to is, that Cap-
tain Douglas is at this moment
.as much at liberty to
leave this Court as any other person in it.
Captain Douglas then left the Court, accompanied
by his friends.
The ATTORNEY-GENERAL hoped, after what had
occurred, that the Court would give permission to his
Learned Friend to state what had passed before the
Magistrate.
Mr. CLARKSON begged to state that the question
had been raised before the Magistrate, and that the
Magistrate had given it as his opinion that Captain
Douglas was a soldier, and that he ought to have been
with his corps. How.the statement came to be omitted
from the warrant, he could not explain.
Lord DENMAN could easily imagine how such a
mistake should arise.
The officer of the Court then called on the next case,
but before. the Learned Counsel engaged in it had
commenced his argument,
Mr. KELLY rose and said—My Lord, I have just
been informed that Captain Douglas, as he was leaving
the Court, was arrested under a Sheriff's warrant for
a large sum of money. .Under these circumstances,
I apprehend your Lordships will order his immediate
discharge.
Lord DENMAN—We must have proof in the usual
manner. , •
Captain Douglas, accompanied by Mr. Hobler,
shortly afterwards entered. the Court, in order to pre-
pare affidavits setting forth the circumstances of his
arrest. .
We understand. that as ,soon as Captain Douglas
emerged from thedoors of Westminster-hall, a Sheriff's
officer stationed in Palace-yard arrested hin, and
endeavoured to take. him to the King's Arms Hotel.
Mr. Hobler, who was with him, directed immediate
information to be conveyed to Mr. Kelly of What had
occurred, who in consequence made the above appli-
cation to the Court immediately:
At a later period of ihe morning,
Mr. KELLY rose and said—Will it be convenient to
your Lordships to .dispose of the question of the arrest
of Captain Douglas now ?
Lord DJNMAN—If you please.
Mr. KELLY then stated that he moved an affi-
davit that Captain Douglas he discharged from
custody. Captain Douglas .had been arrested,
as he was leaving the Court, by an officer
of the Sheriff of Middlesex, on a precept claim-
ing penalties amounting to 12,8001. This pre-
cept had been issued on the information of her
Majesty's Attorney-General, which he submitted
should be read by the officer of the Court.
The Officer of the Court then read the warrant,
which was for the arrest of Capt. Douglas for the
recovery of penalties incurred by him, amounting to
12,8001., on an information filed by her Majesty's
Attorney-General, under the provisions of the Act
33 Geo. 3, cap. 62, sec..l4, charging the defendant
with a misdemeanour, and claiming the penalties.
Mr. KELLY said that the proceedings had been so
unusual in this case, that it was difficult to say
whether the arrest had taken place on a civil or
a criminal process, because. if .he had been
arrested on a charge of misdemeanour, a. ca-
pias would not be issued. It appeared that he had
been arrested for penalties amounting to 12,8001., and
that, therefore, he would have to give bail to that
amount before he could be discharged. This, there-
fore, was merely a civil process.
The . ATiohNE-i-GENzhaL—The' information is
before the Court. .

Mr. KELLY had not had an opportunity of see
ing it, but it was quite clear that the defendant had
not been arrested upon a warrant issued out of this or
any other Court, but upon a civil warrant issued by
the Sheriff. The defendant having appeared in the
Court to clear his discharge under a writ of habeas,
and having been by the Court discharged from what the
Court had decided to be illegal custody, had on his
way to his home, been arrested by an officer of 'the
Sheriff of Middlesex, upon the warrant which had
been read. Now he (Mr. Kelly) submitted that
Captain Douglas was entitled to his privilege redeundo,
and that their Lordships would protect him
from any arrest like the present until he should
have reached his home in safety. The East
India Company baying thought proper to_ cause
the defendant, one of .their own ofkin-s,. to lie'
lO
taken into custody illegally,,,could not tadva4tage:
of their own wrong, to have him arrested 'uncleer
this warrant. He was entitled to his privilege
re.deundo, and he • trusted that their Lordships
would take care, that he should freely reach
his own residence. This had been decided in ,the
case of the King 'and Delaval, 1 Blackstone. 416,
in which Lord Mansfield had laid it down, that per.
sons discharged by habeas corpus were entitled to the
privilege redeundo. In the present case Captain
Douglas had not had an opportunity of returning
home ; he was desirous of returning home, and he
had been arrested on this process for the recovery of
penalties. He would not then go into the question as to
the legality or illegality of this information, but he would
rest his case on the fact, that Captain Douglas having
been discharged by habeas corpus from illegalcustody,
was entitled to his privilege redeundo, and that, there-
fore, he must be discharged.
Mr. Justice COLERIDGE—There is a later case in
the 2d Neville and Marriott, the King v. Blake.
Mr. KELLY was obliged to his Lordship ; that case
decided that persons who had been discharged by
habeas corpus were privileged from arrest, until
they should have an opportunity of returning
home. He, therefore, submitted to the, Court
that Captain Douglas must be discharged from
the custody of the Sheriffs' officer, and that their
Lordships would interpose their authority for his pro-
tection until he should have had an opportunity of re-
turning home.
Mr. ROGERS and Mr. CHAMBERS followed on the
same side.
The ATTORNEY-GENERAL submitted that Captain'
Douglas was not entitled to his discharge. He had
been arrested not upon a civil, but upon a criminal
process. By the Act 33 George 111., cap. 52, sec.
62, it was enacted that if any officer in the East
India Company's service should be convicted
of demanding and receiving any sum of money as a
gift or present, either for his uwn use or for the use
of any other person, from any other nation, he shall
be deemed guilty of extortion, and of having com-
mitted a misdemeanour in law, and proceeded
against and punished as such, and that the
offender should also forfeit to the Crown
the whole amount so received, or the value
thereof, in addition to the punishment which the Court
might award, to him. So that their Lordships would
see that he was arrested on a criminal charge, and
that, therefore, no question of privilege could by
possibility arise. It was much to the credit of the
service to which the defendant belonged that cases of
that sort were rare, but he would refer their Lord-
ships to the case of the King v. Stevens and Agnew,
5 East, 244, to show that the information which
he had filed, and under which Captain Douglas had
been arrested, was strictly regular. In that
case 'an objection had been taken to the form
of the proceedings. The case had been
heard before Lord Ellenborough, who had decided
that the proceedings had been strictly regular. Was
it to be contended, that if Captain Douglas had
been charged with murder, he would have
been privileged from arrest, because he had been dis-
charged by habeas ? Certainly not. How then
could it be contended that he was privi-
leged from arrest for misdemeanour ? He. had
I been arrested in a criminal, and not in a civil process,
and therefore the cases which had been quoted were
altogether inapplicable. He had fuel the information
as Attorney-General at the suit of the Crown, appre-
hending from the information which had been laid be-
fore him that the Crown had an interest, not only
in the recovery of the penalties, but also in the pu-
nishment of the offence with which Captain
Douglas was charged. That information he was
willing to admit he had received from the East
India' Company, but it was in his official cha-
racter that he had filed this criminal information.
He had done so merely in the discharge of
his duty, . and a most unpleasant duty it
had been to him to have imposed upon
him. He submitted that, having been taken
into custody on a criminal process, Captain Douglas
was not entitled to his discharge.
The Solicitor-General and Mr. Clarkson followed
on the same side.
Mr. Kelly having been heard in reply,
Lord DENMAN said that there was no doubt that
if any person had been discharged by the Court
under a writ of habeas corpus, such person was
privileged for arrest under civil process until his re-
turn to his home. The onl uestion the Court had to
consider in the case was whether Captain Douglas was
in custody under civil or under criminal process, as
there could be no doubt that any person arrested un-
der criminal process was not so privileged. Now
although in this case there was a penalty to be reco-