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PTf-jru^Yfi admiaifltraliflD justice .... But with respect to any rights of Government taxation, exclusive administration of justice, or exclusive trade, otherwise than as a consequence of the right of ownership of the land, such rights could not be legally insisted on by the Hudson's Bay Company as having been legally granted to them by the Crown. This remark, however, requires some explanation. The Company has, under the charter, power to make ordinances (which would be in the nature of bye-laws) for the government of the persons employed by them, and also power to exercise jurisdiction in all matters, civil and criminal; but no ordinance would be valid that was contrary to the common law, nor could the Company insist on its right to administer justice, as against the Crown's prerogative right to establish courts of civil and criminal justice within the territory. We do not think, therefore, that the charter should be treated as invalid, because it professes to confer these powers upon the Company; for to a certain extent they may be lawfully used, and for an abuse of them the Company would be amenable to law." This opinion will be found in extenso in the Appendix to the Blue Book, Report on the Hudson's Bay Company, 1857.
Joint Opinion of the Attorney and Solicitor General,
Temple, January, 1839.
My Lord,—We have had the honour to receive your Lordship's letter of the 19th instant, transmitting to us the copy of a despatch from Sir John Colborne, with respect to the suspension of Messrs. Panet and Bedard, two of the Puisne Judges of the district of Quebec, from their offices, and requesting our opinion whether the proceedings of these Judges, on the occasion referred to, were consistent with law.
Having perused all the documents connected with this case, and maturely considered the subject, we have to report to your Lordship, that, in our opinion, the proceedings of Messrs. Panet and Bedard, on the occasion referred to, were not consistent with law.
We think that the writ of habeas corpus to bring up the body of John Teed, was improperly issued by M. Panet, on the 21st of November, 1838, and that his judgment and that of M. Bedard, on the return of this writ, holding that it had properly issued, are entirely erroneous.
The warrant of T. A. Toung, on which Teed was in custody, showed that he was committed on suspicion of high treason ; therefore the Judge before whom a copy of the warrant was laid, had notice that the ordinance passed by the Special Council on the 8th of November, took away the power of bailing the prisoner, and if that ordinance was valid, the writ ought to have been refused. The doctrine is well settled that, whether a writ of habeas corpus be applied for before the full Court, or a single Judge, and whether under the statute or at common law, some probable ground for granting it must be disclosed by affidavit; and if it appears that when the prisoner is brought up he must, on his own showing, necessarily be remanded, the writ ought not to be granted.
We consider it unnecessary to discuss the question whether the Habeas Corpus Act, 31 Car. 2, was introduced into Canada by 14 Geo. 3. The writ of habeas corpus ad subjiciendum was unquestionably introduced into Canada as part of the criminal law of England; but there is great difficulty in saying that the specific regulations respecting that writ, and for bringing to trial persons charged with offences introduced into England by 31 Car. 2, were applicable to Canada before the provincial ordinance of 1784.
Assuming, however, that 31 Car. 2 was introduced into Canada by the authority of an Act of the Parliament of the United Kingdom, we are of opinion that it was suspended by the ordinance of the 8th of November, made under the imperial statute of 1 Vict, c. 9. The two Judges have picked out and relied upon a particular expression to be found in this statute, instead of looking to the general frame and scope of the statute, and the other enactments which it contains, wholly at variance with the construction they put upon the particular expression.
The proviso respecting Acts of the Parliament of Great Britain is evidently to be confined to Acts of the same nature as those expressly mentioned, and cannot be supposed intended to prevent the Special Council from passing any ordinance at all to vary the criminal law of Canada from what was the criminal law of England in the 14th year of King George III. ' If the extended sense were given to the proviso, the Special Council would be wholly inadequate for the purposes for which it is declared to have been created, and several of the most important enactments in 1 Vict, c. 9 would be entirely nugatory.
We think the two Judges would have been right in deciding that the return to the habeas corpus by the gaoler was insufficient, if the writ had properly issued; but their judgment upon the invalidity of the ordinance of the 8th of November is contrary to law.
As to the habeas corpus directed to Colonel Bowles, if the proceedings upon it are disconnected from the proceedings upon the habeas corpus directed to the gaoler, they appear to us to be regular. Affidavits were laid before M. Bedard, showing an unlawful detention of Teed, without disclosing that he had been committed on suspicion of treason, or showing anything to bring his case within the ordinance of the 9th of November. Supposing the writ to have lawfully issued to Colonel Bowles, he was in contempt for disobeying it, and subject to an attachment.
Considering, however, that there was upon the files of the Court an affidavit clearly showing that Teed had been committed on suspicion of high treason, that this affidavit had previously been brought to the notice of M. Bedard as well as of M. Panet, and that both Judges knew that Teed had been transferred to the custody of Colonel Bowles upon the original charge aguinst him, we are bound to say that, in our opinion, the habeas corpus to Colonel Bowles ought not to have issued, and that the subsequent proceedings against him were unjustifiable.
The Lord Glenelg, J. Campbell.
&c. &c. &c. R. M. Rolfe.
NOTES TO CHAPTER XVI.
It has been often said that Jenkes's Case, in 1676, 6 State Tr. 1189 —where so many difficulties were thrown in the way of his obtaining a writ of habeas corpus that he lay for several weeks in prison—was the cause of the passing of the statute 31 Car. 2, c. 2, known as the Habeas Corpus Act . But Hallam has satisfactorily shown that this is a mistake: Const. Hist, of England, iii. 15 (3rd edit.). The arbitrary proceedings of Lord Clarendon, in causing persons "to be imprisoned against law in remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law," to quote the fourth article of his impeachment, really gave rise to it. So much importance was attached to the writ at common law long before the statute of Charles II., that we read of a Bishop of Durham who, in the 31st year of the reign of Elizabeth (1588), was fined £4000 for returning that he was a Count Palatine and therefore not bound to answer the writ: Bac. Abr. Hab. Corp. 6; and see B. v. PeU, 3 Keb. 279.
The old common-law remedy, where a person was improperly restrained of his liberty under no legal process, was the writ de\ homine replegiando, which did not issue of course, but was applied' for by petition to the Great Seal, and upon affidavit disclosing the foundation on which it was prayed: Wilmot's Opinions and Judgments, p. 92. And when the writ was granted, an action was brought to determine the right of detention. Thus the defendant might plead that the plaintiff was his villein, and the plaintiff had to find sureties to deliver his body to the defendant in case the jury found the fact against him. The writ issued to the sheriff, commanding him to replevy the plaintiff, and the question between him and the person who had restrained his liberty was tried in the same way as in the case of a distress of chattels: Fitzherb. Nat. Brev. Writ de Horn. Bepleg. It has been said that it does not appear when the writ of habeas corpus, which seems to have been adopted from the writ de homine replegiando, was first applied to relieve against private restraints: Ibid.
Chief Justice Wilmot declared the writ of habeas corpus to be "a remedial mandatory writ, by which the King's Supreme Court of Justice and the Judges of that Court, at the instance of a subject aggrieved, commands the production of that subject, and inquires after the cause of his imprisonment; and it is a writ of such a sovereign and transcendent authority, that no privilege or person can stand against it:" Opinions and Judgments, p. 88. For Court, however, in the passage just quoted, we may read Courts.
The writ of habeas corpus may issue "either at common law, or under one of the statutes applicable to it. Where it issues under the statute 31 Car. 2, c. 2, it is marked per statutum tricesimo primo Caroli secundi regis, as sect. 3 of that Act provides. It must, however, be borne in mind that the Habeas Corpus Act, 31 Car. 2, c. 2, applies exclusively to cases of persons committed "for criminal or supposed criminal matters," and not to cases of restraint of liberty otherwise than for such matters. These latter cases are specially provided for by statute 56 Geo. 3, c. 100, which, however, excepts persons imprisoned for debt or by process in any civil suit: see per De Grey, C.J., in Brass Crosbys Case, 3 Wils. 188; S.C. 19 State Tr. 1138. Thus, a person confined as an alleged lunatic, or under any kind of private duress, cannot be relieved under