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."

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 Wilson's 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 hæc 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 Bushel's 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 Ro. Rep. 157; R. 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 must see distinctly that the party who is brought up is justly deprived of his liberty:" Deybel's 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 Russ. 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 :" Re Douglas, 3 Q. B. 825.

In Carus 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: R. v. Wright, Stra. 915. It will not, however, grant an attachment to accompany the writ in the first instance: R. 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. 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,

Where the

writ runs.

Suspension of the writ.

for instance, to "the sheriff or gaoler:" R. 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.

It is laid down that the King may send his writ of habeas corpus 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; R. v. Cowle, 2 Burr. 856; Bac. Abr. Hab. Corp. (B) 2; Re 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 judg ment 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; Re 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.

The following are instances of suspension of the writ of habeas corpus by Act of Parliament: 1 Will. & M. stat. 1, cc. 7, 19; 7 & 8 Will. 3, c. 11; 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.