attorney of the Court, who reported that she was a free agent, and the rule nisi was discharged. See In re Thompson, 30 L. J. (M. C.) 19; Cobbett v. Hudson, 15 Q. B. 988.

the writ.

An important question arises, whether, on a return to the writ, The return to affidavits are admissible to controvert the statements either in the return or the order of commitment, and show that they are not true? A distinction must be here taken between cases under statute 31 Car. 2, c. 2, or at common law previous to statute 56 Geo. 3, c. 100, and cases to which the last-mentioned statute applies. The rule previous to that statute is thus laid down by Hawkins (Pleas of Crown, bk. ii. c. 15, s. 78): "It seems to be agreed that no one can in any case controvert the truth of the return to a habeas corpus, or plead or suggest any matter repugnant to it. Yet it hath been holden that a man may confess and avoid such a return by admitting the truth of the matters contained in it, and suggesting others not repugnant, which take off the effect of them." Upon this point, see the cases cited in Leonard Watson's Case, 9 Q.B. 788-90. Wilmot, J., says: "In case the facts averred in the return to a writ of habeas corpus are sufficient in point of law to justify the restraint, I am of opinion that the Court or Judge before whom such writ is returnable cannot try the facts by affidavits in any proceeding grafted upon the return to such writ of habeas corpus:" Opinions and Judgments, p. 106. But it would seem that this doctrine ought now to be limited to cases of commitments for matter of a criminal nature (as in returns to writs under 31 Car. 2, e. 2), or commitments under civil process; for by sect. 3 of statute 56 Geo. 3, c. 100 (commonly called Onslow's Act)—which provides for the issuing of the writs of habeas corpus in vacation time, in the case of persons confined or restrained of their liberty, "otherwise than for some criminal or supposed criminal matter, and except persons imprisoned for debt or by process in any civil suit" -it is enacted that the Judge before whom such writ is returnable may examine into the truth of the facts set forth in the returns by affidavit, and "do therein as to justice shall appertain ;" and by sect. 4, "the like proceeding may be had in the Court for controverting the truth of the return although such writ shall be awarded by the said Court itself, or be returnable therein." Under the authority of this statute affidavits controverting the

truth of the return were admitted in the case of persons imprisoned on a charge of smuggling: Ex parte Beeching, 3 B. & C. 136. There, Abbott, C.J., said: "The habeas corpus in this case was a writ issuing by virtue of the common law; and I think that under such circumstances the 56 Geo. 3, c. 100, s. 4, gives to the prisoners the right to controvert the truth of the return." But more recently, when a defendant had been committed to prison by order of the Master of the Rolls, for not putting in an answer to a bill in Chancery, the Court of Queen's Bench refused to allow affidavits to be used, on a return to a writ of habeas corpus, to show that the statements contained in the order were not true: In the Matter of Clarke, 2 Q. B. 619. Patteson, J., there said: "There is no case in which a party has been allowed in this way directly to contradict facts set forth in an order; all that the Courts have permitted has been to allege a collateral extrinsic fact, confessing and avoiding, as it were, the disputed order."

Here the distinction does not appear to be adverted to, between a commitment for a criminal matter to which statute 56 Geo. 3, c. 100, does not apply, and such a commitment as was then before the Court; unless, indeed, it could be deemed an imprisonment "by process in a civil suit," and so taken out of the operation of that Act. An additional reason was, however, given by Lord Denman, C.J., for rejecting the affidavits, which puts the matter on a different and more tenable ground. He said: "The adjudication of any competent authority deciding on facts which are necessary to give it jurisdiction is sufficient. It would be different if the affidavits tended to show that the magistrate's order was obtained by fraud, or that he was not really exercising the functions which he professed to exercise." And per Wightman, J.: "No case is cited in which parties have been allowed to controvert a fact directly decided by a Court of competent jurisdiction."

Where a prisoner is in custody under the sentence of a Court of competent jurisdiction, no inquiry will be made by the Court on the return to a writ of habeas corpus as to the validity of the sentence and lawfulness of the custody. As was said by Lord Denman, C.J.: "When it appears that the party has been before a Court of competent jurisdiction, which Court has committed him for a contempt, or any other cause, I think it is no longer open to this Court

to enter at all into the subject-matter. . . . . . The security which the public has against the impunity of offenders is, that the Court which tries must be considered competent to convict:" Carus Wilson's Case, 7 Q. B. 1008. See also In the Matter of Clarke, ubi sup.; R. v. Suddis, 1 East, 306 (sentence of a court-martial); Brass Crosby's Case, 3 Wils. 199 (commitment by the House of Commons); R. v. Flower, 8 T. R. 325 (commitment by the House of Lords). This, however, must not be taken to mean, that where it appears on the face of the return that the commitment was wrong, the Court will not discharge the prisoner. In Bushell's Case, Vaugh. 135, the return was that the prisoner was a juryman who had been fined and imprisoned by the Court of Session at the Old Bailey (a Court of oyer and terminer), for giving a verdict contrary to evidence; and he was discharged on the ground that the sentence was illegal. And in the case of Burdett v. Abbot, 14 East, 150, Lord Ellenborough, C.J., said: "If a commitment appeared to be for a contempt of the House of Commons generally, I would neither in the case of that Court, or of any other of the superior Courts, inquire further: but if it did not profess to commit for a contempt, but for some matter appearing upon the return, which could by no reasonable intendment be considered as a contempt of the Court committing, but a ground of commitment palpably and evidently arbitrary, unjust, and contrary to every principle of positive law or national (qu. natural?) justice; I say that in the case of such a commitment (if it ever should occur, but which I cannot possibly anticipate as ever likely to occur) we must look at it and act upon it as parties may require from whatever Court it may profess to have proceeded."

What then, it may be asked, is the safeguard of the subject? For the committing Court may suppress in its warrant the particulars of the cause of commitment, and then the Court which issues the writ of habeas corpus cannot inquire into it, or discharge the prisoner. The only answer seems to be that conveyed in the judgment of Lord Denman, C.J., in the case of The Sheriff of Middlesex, 11 Ad. & Ell. 292, which had reference to a commitment by order of the House of Commons, but is in principle applicable to all commitments: "Indeed (as the Courts have said in some of the cases), it would be unseemly to suspect that a body, acting under such

!

sanctions as a House of Parliament, would, in making its warrant, suppress facts which, if discussed, might entitle the person committed to his liberty." The truth is, that in many cases much must necessarily be left to the discretion and good sense of tribunals acting under the authority of the law, and responsible to public opinion. As was observed by De Grey, C.J., in Brass Crosby's Case (3 Wilson, 202; S. C. 19 State Tr. 1150-51): "It is better to leave some Courts to the obligation of their oaths. In the case of a commitment by this Court (Common Pleas), or the King's Bench, there is no appeal. Suppose the Court of King's Bench sets an excessive fine upon a man for a misdemeanor, there is no remedy, no appeal to any other Court. We must depend upon the discretion of some Courts. Some persons, some Courts, must be trusted with discretionary powers."

A distinction must be taken between a commitment under a final sentence, or judgment, and a commitment for the purpose of trial. In the latter case the Court will examine on affidavits the circumstances under which a prisoner has been committed for trial, in order to see whether it is proper that he should be held to bail : see Bac. Abr. Hab. Corp. (B) 11: see In the Matter of Douglas, 3 Q. B. 825.

In a false return, it is said there is no remedy against the officer, but an action on the case at the suit of the party grieved, and an information or indictment: Bac. Abr. Hab. Corp. (B) 8. A writ of attachment will, however, issue against him as for a contempt: Leonard Watson's Case, 9 Ad. & Ell. 797.

The return to the writ ought to set out the warrant of commitment. In Bushell's Case (Vaugh. 137), Vaughan, C.J., said : "The cause of the imprisonment ought, by the return, to appear as specifically and certainly to the Judges of the return as it did appear to the Court or person authorized to commit; else the return is insufficient." This, however, is stated too broadly. It certainly is not necessary to specify the particulars of the offence which led to the commitment, which may be quite unknown to the person to whom the writ is directed, and whose means of information are confined to the contents of the warrant itself. See the observations of the Attorney General (Sir V. Gibbs), arguendo, in Burdett v. Abbot, 14 East, 91, and the doubts thrown by Lord

Ellenborough, C.J., on the correctness of the proposition laid down by Vaughan, C.J. Thus a commitment by a competent Court for a contempt need not specify the nature of the contempt, and on a return to the writ stating contempt generally, the Court will not inquire into its nature and see whether it is sufficient to justify the imprisonment. This was solemnly decided in the important case of The Sheriff of Middlesex, 11 Ad. & Ell. 273, which was the case of a commitment by order of the House of Commons, and where all the authorities were elaborately reviewed (1). There Littledale, J., said: "If the warrant declares the grounds of adjudication, this Court, in many cases, will examine into their validity; but if it does not, we cannot go into such an inquiry." And in the previous case of Burdett v. Abbot, 14 East, 1, 150,-as to which Lord Denman, C.J., in the case of The Sheriff of Middlesex, ubi sup. 289, declared that there is perhaps no case in the books entitled to so great weight,-Lord Ellenborough, C.J., said: "If a commitment appeared to be for a contempt of the House of Commons generally, I would neither in the case of that Court or of any other of the superior Courts inquire further."

In the case of a commitment under a writ de excommunicato capiendo, it was held that the cause of excommunication must be set forth in the writ; and the reason assigned was that by statute 5 Eliz. c. 23, the writ is made returnable in the Court of Queen's Bench," which could be to no purpose if the cause were not to be set forth in the writ, and this Court judge of that cause:" R. v. Fowler, 1 Salk. 293, 350; and see R. v. Snellor, Vern. 24.

The return need not be, and in practice never is, supported by affidavits: Leonard Watson's Case, 9 Ad. & Ell. 731–794.

We have seen that under a writ of habeas corpus the warrant of

(1) By an order of the House of Commons, 23rd of June, 1647 (the Long Parliament), the sergeants and keepers of persons were directed to make returns to writs of habeas corpus, with the causes of detention; but the judges were ordered not to proceed to bail or discharge the prisoners without notice to the House: 5 Com. Jour. 221; see May's Parliam. Pract. 71, n. 5 (3rd edit.). It is needless to say that, so far as it applies to the Judges, such an order would, at the present day, be entirely disregarded, and they would act in the spirit of Willes, C.J., who said, in Wynn v. Middleton, 1 Wils. 128: "I declare for myself that I will never be bound by any determination of the House of Commons against bringing any action at common law for a false or a double return; and a party injured may proceed in Westminster Hall, notwithstanding any order of the House.'