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commitment (or a copy of it) must be returned. But in several cases, such as commitments by Courts for contempts, and in passing sentence on persons convicted of crimes, there is no warrant, but merely the oral authority of the Court to keep the prisoner in custody. In Carus Wilsons Case, 7 Q. B. 1011 (the case of a sentence of imprisonment for contempt, pronounced by a Court in Jersey), Patteson, J., said: "No warrant was necessary. Courts in such cases seldom act by warrant. We never do. If a party is brought up we sentence him in open Court. The same course is pursued at the assizes and at the sessions. When a man is sentenced to be hanged no warrant issues." (But if sentence is not awarded in open Court, the service of a written warrant is necessary: see per Parke, B., in Ely v. Moule, 5 Ex. R. 925. And when a justice of the peace commits for contempt, a warrant is necessary: Mayhew v. Locke, 7 Taunt. 63.) What then in such cases is the gaoler to do when called upon to make a return to the writ? This question is answered by what was said by the Court in King v. Clerk, 1 Salk. 349: "Where a commitment is in Court to a proper officer there present, there is no warrant of commitment, and therefore he cannot return a warrant in hsec verba, but must return the truth of the whole matter under peril of an action."
A defect in form in a commitment by a Court of oyer and terminer will not entitle a prisoner to his discharge where there appears a good cause for his commitment: see Bethell's Case, 1 Salk. 348, where the Court said: "Before Bushels Case (6 State Tr. 999), no man was ever by habeas corpus, without writ of error, delivered from a commitment of a Court of oyer and terminer;" and see Hammond's Case, 9 Q. B. 92. As was said by the Court of Queen's Bench in Leonard Watson's Case, 9 Ad. & Ell. 787 (where reliance was placed on the authorities—Barnes's Case, 2 Bo. Rep. 157; B. v. Suddis, 1 East, 306; and see Beenan's Case, 10 Q. B. 492): "Returns to the writ of habeas corpus do not require minute correctness if the substance of the facts is stated." But in an earlier case, Bayley, J., said: "In these cases the greatest certainty is requisite, for the Court mu6t see distinctly that the party who is brought up is justly deprived of his liberty:" DeybeTs Case, 4 B. & Al. 246. Perhaps, however, these apparently conflicting statements may be reconciled by making a distinction between commitments by regular Courts of competent jurisdiction and commitments under a special authority given by Act of Parliament. In the case to which the observations of Mr. Justice Bayley applied, the prisoner had been impressed as a seaman as a penalty for having been engaged in smuggling by virtue of the provisions of statute 59 Geo. 3, c. 121.
An error in the return may be amended: Re Clarke, 2 Q. B. 619; Leonard Watson's Case, 9 Q. B. 731. As was pertinently observed by Lord Eldon, L.C., in 2 Buss. 584, "It would be a strong thing to say, that the merits of a committal are to be tried merely by the return to the writ, however erroneous that return may be. The return ought to show by whose order the commitment was made, and a return alleging that the prisoner is a deserter, and detained under statute 5 & 6 Vict. c. 12, ought expressly to show that he is a soldier and ought to be with his corps:" Be Douglas, 3 Q. B. 825.
In Cams Wilson's Case, 7 Q. B. 1001, the Court of Queen's Bench said: "We find from the Master of the Crown Office that the Court held more than once, in 26 Geo. 3, that no writ of habeas corpus should be quashed for matter that can be properly returned to it. As a general order, that is certainly the most convenient course—most just to the party applying for the writ, and most in furtherance of the great object for which our Constitution has appointed it."
As to the right of action for refusal of copy of the commitment or warrant, see Hudson v. Ash, 1 Stra. 167.
If no return is made to the writ, the Court will grant an attachment nisi, without a rule to return the writ: B. v. Wright, Stra. 915. It will not, however, grant an attachment to accompany the writ in the first instance: B. v. Earl Ferrers, 1 Burr. 631.
The penalty of £500, imposed by stat. 31 Car. 2, c. 2, s. 10, Penalty applies only to a refusal of the writ by a Judge in vacation time, i The statute, says Hawkins, "leaves it to their discretion in all other cases to pursue its directions in the same manner as they ought to execute all other laws, without making them subject to the action of the party:" Pleas of Crown, bk. ii.
The writ should be directed to the person who has the actual custody of the prisoner, and ought not to be in the disjunctive—as, for instance, to "the sheriff or gaoler:" B. v. Fowler, 1 Salk. 350.
In execution in civil cases, the custody is that of the sheriff, but in
criminal that of the gaoler: Ibid.
Where the It is laid down that the King may send his writ of habeas corpus writ runs. ...
ad subjiciendum to whom he pleases, and he must have an answer
of his prisoner wherever he be: Bacon Abr. Hab. Corp. (B) 6. And it runs at common law to all the dominions of the Crown: Calvin's Case, 7 Co. 20 a; B. v. Cowle, 2 Burr. 856 ; Bac, Abr. Hah. Corp. (B) 2; Be Anderson, 30 L.J. (Q.B.)|129, where the writ was granted to bring up the body of a British subject in Canada alleged to be illegally in custody there. The Court said: "The more remarkable cases are the instances in which the writ of habeas corpus has issued into the islands of Jersey, Man, and St. Helena, all these in very modern times." Lord Denman, C.J., in delivering the judgment of the Court in Carus Wilson's Case, 7 Q. B. 998, said: " That the writ of habeas corpus ad subjiciendum has legal force in the island of Jersey, and must be obeyed there, is now admitted on all hands. It was held that the writ lay to Calais, when that town was subject to the Crown of England—Bacon Abr. Hab. Corp. (B) 2— and to the Isle of Man: Crawford's Case, 13 Q.B. 613; Be Brown, 33 L.J. (Q.B.) 193, where it was held that the Isle of Man is not a foreign dominion of the Crown."
Now, however, by stat. 25 & 26 Vict. c. 20, no writ of habeas corpus shall issue out of England, by authority of any Judge or Court of Justice therein, into any colony or foreign dominion of the Crown, where Her Majesty has a lawfully established court or courts of justice, having authority to grant and issue the writ, and to ensure the due execution thereof throughout such colony or dominion.
Suspension of The following are instances of suspension of the writ of habeas the writ
corpus by Act of Parliament: 1 Will. & M. stat. 1, cc. 7, 19; 7&8 Will. 3, all; 6 Anne, c. 15; 1 Geo. 1, cc. 8, 30; 17 Geo. 2, c 6; 19 Geo. 2, c. 1; 17 Geo. 3, cc. 3, 9; 34 Geo. 3, c. 54; 35 Geo. 3, c. 1; 38 Geo. 3, c. 36; 39 Geo. 3, c. 44; 39 & 40 Geo. 3, c. 32; 41 Geo. 3, c. 26; 57 Geo. 3, cc. 3, 55; 11 & 12 Vict , c. 35.
(1.) Joint Opinion ofthe Kings Advocate, Sir Christopher
Doctors' Commons, May 15, 1823.
My Lord,—We are honoured with your Lordship's commands of the 3rd instant, transmitting a letter from Lord Francis Conyngham, inclosing the copy of a note which has been addressed to Mr. Secretary Canning by the American Minister in this country, requesting that certain proceedings of outlawry which have been passed in Upper Canada, against John M'Donnell, may be revoked; and your Lordship is pleased to request that we would take the same into consideration, and report to your Lordship our opinion, as to the steps necessary to be pursued in the event of his Majesty deeming it expedient to comply with the application of the American Government.
In obedience to your Lordship's commands, we have the honour to report that, in the event of his Majesty deeming it expedient to comply with the application of the American Government, the effect of the outlawry against John M'Donnell, the legality of which does not appear to be questionable, may be removed, either by a nolle prosequi being entered upon the indictment, by the Attorney Gene- I ral of the province, on the part of .his Majesty, or by a general | pardon to be granted to Mr. M'Donnell.
Christ. Robinson. To the Earl Bathurst, R. Gifford.
&c. &c. &c. J. S. Copley.
(2.) Joint Opinion of the Attorney and Solicitor General, Sir John Copley and Sir Charles Wetherell, on a Petition presented to the Governor of the Colony of the Cape of Good Hope containing libellous matter, and as to how far it was privileged (i).
Serjeants' Inn, April 28, 1825.
My Lord,—We have had the honour to receive your Lordship's letter, dated the 13th instant, requesting our opinion upon the following questions, viz.:
1st. Whether under the statute 1 Will. & M. c. 2, or under any general principle or maxim of the law of England, it is competent to a natural-born British subject of his Majesty resident in the colony of the Cape of Good Hope, to present with impunity to the Governor of that settlement a petition for redress of grievances, containing statements which, if published to the world at large, would, according to the principles both of Dutch and English law, have been libels in the Courts of the colony; and which, according to the principles of Dutch law, would be punishable as libels, even though communicated exclusively to the Governor?
2nd. Whether the impunity of the petitioner in such a case depends upon the statements in question being relevant to the objects of his petition; or whether libellous statements, if clearly irrelevant and unnecessary, would subject him to a criminal prosecution for libel?
3rd. Whether any distinction is to be made between petitions presented to the Governor in his judicial character, and those addressed to him as the chief executive officer of Government in the colony?
4th. Whether his Majesty's subjects born in Great Britain enjoy any privileges in this respect, while actually in the Cape of Good Hope, distinct from those of the Dutch inhabitants who have become his Majesty's subjects by the cession of the colony?
In compliance with your Lordship's request, we have taken into our consideration the statement and questions contained in your Lordship's letter, and beg leave to report, as our opinion upon the first question, that a British subject born within the United Kingdom, but resident at the Cape of Good Hope, could not so act with (i) See page 86, ante.