7 Q. B. 9% CARUB WILSON’S CABE 759

special trust is found, they mast have been trimtees €or geiieral parochial ~ ~ u r ~ s e s ; aiid so none af the above cited cases apply.

Rule discharged.

fg@] The r e ~ o r t of this case, decided ~ ~ i a l i y ir, last Easter term, has beeti uKiavoidably postponed.

CARUS ~ 1 ~ ~ ~ ’ ~ CASE. 1845. The writ of habeas c o q p ad s~~bj ic ie i~dum rutis to Jersey. A Baron of the ba chequer may, in vacatioti time, uricter stat. 1 & 2 Vict. c, 45, s. I , aiid in exercise nE the commorr law power possessed before that statute by the Court of &. B., issue such writ, tinder the seal of the Court of Q. B., returti- able in that Court in term time. He may do so 011 affidavits errtitled iti the ~ ~ c h e ~ u e r ~ i ~ i ~ s m u c h as the a p p ~ ~ c a t i o ~ i may be made to him as a Baroo of the Exchequer, upo~i which appIieatioti he may act, irr his discretion, by making the writ re t~r i iable iri Q. If. S e I n ~ ~ e , that, if such writ were ~ b t a ~ I i e d by f r a u d ~ ~ e r ~ t representation, this Court would quash it oit motion. But this Court will riot quash the writ because it appears that the Judge who issued it abstained frotn inquiririg into facts which, if kriown to trim, might probably have induced hitn either to refuse the writ or otily to graIit a rule tiisi. ~ s p e c ~ a ~ ~ y if such facts may be properly retnnied. The writ issued, dirscted to the viscourit and gltoler of Jersey, c o ~ ~ m a t i ~ i I i ~ them to firirrg up the body af W., to undergo, &e, Return, that the viscount arid gaoler took, atid the gaoler detained, W., by virtue of a seotance of the fioyal Court of Jersey, which was set out, arid which stated khat, in a cause depending before them, by., when the Court was about to deliver at1 ii~terlocutory judgmeiIt, ititerrupte(~) by utter~Iig itr the mosb u ~ i b e c o ~ j ~ ~ g tone a protest against the competency of the Court ; arid that the Court, conform- ahty with art article in the Jersey laws o r ( ~ e r j r j ~ thst all ~)ersoris who shall have been wanting ia respect to the bailiff should be imprisotted uetil they had asked pardon and paid the firte imposed, aird cot i s~der i f i~ that the bailiff had in the course of the cause ordered W. to be more respectfnt, cotidemried W. to a fine of 101, arid to ask p~rdor1 of the Court ; and, W. havirig refused to comply, he was seitt to prison uiitil he shouitl have obeyed : that the senterice was legal according t o &he law of Jersey : that, by such law, the viscourit arid gaoler were o b l ~ ~ e d to take arid the gaoler to cletairr : that they had itot, atitl by such law could not have, atry warr~r i t other than the setitetice : that the eour t was presided over by the bailiff assistsd by Judges railed jurats, arid had the power of p u I ~ i s h ~ i i ~ such a cotItempt in the matiiier directed by the sei~tetice: that there was such a11 article as mentioned i t 1 the seiitertce; Chat the m&ters i a the sentetice were true: that the senterice was read aloud in tihe hes~irIg of W., arid was duly entered in a book of record called the book of crimitiat p~osecutior~s, beiag the proper book for the purpose: atid that the se t i t~ t~ce was iri due form, and a suffiaferit authority for the takirig a d detairririg. Held, I. Tbat aftidavits could not be received for the purpose of shewii~g that the Royal Court had acted i~ ico t i s i s~nt ly with the law of Jersey. 2. Tbat the returrr was mt objectionable for warit of shewirig a w ~ I ~ ~ i t t for the caption or ~lelai!~er. 3. That, as the words used might be, aiid were by the Royal Court adjudged to have beeii, uttered i t1

such a maimer and tone as made them c a i ~ t e m ~ t ~ ~ o u s , this Court would cotisider that there had beeii s c o ~ i t e m ~ t . 4. That i t s ~ i ~ c i e I ~ t I y appeared that W. had been setiteIi~ed to ask partloir of the Court for the conlempt, arid was legally imprisoued uritil he obeyed. Prisoner ren;ari(~e~i, ~ ~ j e ~ t j o z j hrtvirtg been made to the returtt, 0x1 behalf of the p r i ~ o t ~ e ~ , a d courisel havittg been heard agaitist the objection, one counsel was allowed to reply in support of it.

[8. C. 14 L, f. Q. B, 105, 5301 ; 9 Jur. 393.1

The f ~ l l ~ w i t ~ g order was made by Eotfe B. “B. M. Kolfe. Upoii hearirrg Me, Peacock for Charles Carus Wilsoti, a i d upori

reading the several [@se} a ~ d ~ v ~ t s , ” <!e., ‘‘1 rlo order that a writ of habeas corpus ad s u b i i c i e c i ~ u ~ issue directed to Johtt Kanclich, gaoler of the gaol of Her Majesty’s get01 ia Jersey, and to Johrt le Couteur, viscoutit of the said island, to bring up to the

760 CARUS WILSON’S CASE 7 Q. B. 88%.

Court of Queen’s Bench the body of Charles Carus Wilsoii ; returnable on the 18th day of January 1845.

The rule was obtairied on an affidavit of Wiliiam Russell, sworn before Rolfe B., and eatitled I‘Swo~ri iti the Exchequer,” He deposed that he had read an a ~ ~ a v i t made by Mr, Wileon, and believed the sanie to be true.

A copy of Wi1~0i-r’~ said &davit was annexed. The depotietit stated therein that he was an Englishnian, and a subject of Her Majesty, having been born in Ettgland and resided there uritil 1840, when he wetit to live in Jersey ; arid that he bad i n part resided in Jersey up to the then present time. That, on 23d September then last, he was seized and taken by the Deputy Viscotint of the island of Jersey to Her ~ a j e s t y ’ s prison there, arid lodged in the custody of John Kandich, the keeper of the said prison, in whose custody he had been detained ever since. That he was advised and believed that buch imprisonmerit was itlegal. That 0x1 the 23d and 24th September then fast, and on several subsequetit occasiom, he “demanded of, and applied to the said John Kandich for, a copy of the warrant or warrants of commitmerit or detainer under which he, the said John Kandich, detaioed and detains this deponent i n his custody ; and that the said John Katidich, on each of those occasiorrs, told deponent that he, the said John Katidich, had nothing of the kind to give to deponeiit.”

“That, on Suiiday the 29th day of September last, the E9861 said John Kandioh, of his own wili and accord, brought into atid left in the cell where this d e ~ r ~ e n t was then confined a paper writing in the words and figures following ; that is to say :

“‘Sept. 23, 1844, Charles Carus Wilson condemned to pay a fine of ten pounds sterlithg to Her Majesty, and to make an apology b the Court, in default of which he is seIitenced to be impriso~ed in the gaol urrtil he has obeyed the said judgment, (Signed) J. Le Couteur, Viscount.

Dated the 23d of December 1844.”

%9 Sept. 1844.’’’

John Kandich, Gaoler.’ ” EA t rue copy.1

That he, Wilson, had not received from Kandich, or aiiy other person 011 his behalf, a copy of ariy other warraut, and verily beiieved that Kandictt had no warrant what- ever, unless the document of which the aforesaid was a copy could be called such. “That ha verily believes that the pretence for this deponeut’s imprisotiment is an al~eged eontempl of the Royal Court of Jersey, or rather a preteiide(~ Royal Court in Jersey; but this depoiierit verily believes that there is no valid judgment, order or warrant in existence against this deponent in respect of such alleged contempt, atid that the Court, as then composed, was utterly iircotnpeteat to act as a judicial body on that occasion.” That, prior to his imprisoti~ueti~, he had often occasiou to iriquire whether there was any commissiouer residerit in Jersey duly authorised hy the Court of Queen’s &rich to take affidavits, and was u~iable to fitid auy such commissioner; and that, since his im~r~soiimetit, he had agaiti iriquired, and believed i t to he true that there was no such commissioner. That Edward Nicolle was oue of the twelve 19871 jurats or Judges of Her Majesty’s Royal Court in Jersey; “arid deporieiit verily believes that, from time immemorial, used arid approved of, the said jurats of this iste have been a c c u ~ t o m e ~ to take and admitlister oaths, atid solemn deciaratio~~s or a ~ r ~ a t i o n s in lieu of oaths, in all matters, causes and things, civil or criminal, arieiiig or pendiug in the island of Jersey, aud that all such oaths,’’ &c., ‘ I taken by arid before any one of the said jurats, have been and are corisidered bi~iditig i t i law on the parties making the same to all intents and purposes of law whatsoever.

“Sworn in Her Majesty’s gaol in Jersey, by the within named prisoner, Charles Carua Wilaon, this 22d day of October 1844, before me, Edward Nicolle, Esquire, oiie of the jurats or Judges of the isle of Jersey, who, froin time to time im~emor ia l , have beeu, and are, accustomed to make and administer oaths in all matters, civil or criminal, arising in the island of Jersey,

(‘ Before me, ~ D W A R D XICOLLE, Jurat, Jersey, “ CflARLES CARUS ‘VVILSON, Prisoner.”

Russell, in his affidavit, verified the signature of Mr. Nicolle, and confirmed Wilsoo’s s t a t e ~ e r i t as to Nicolle’s authority to take a ~ d a v i t s . He deposed also to his own belief that Wilson was imprisoned without lawful warrant or authority, and

7 Q. B. 9M. CARUS WlLSOff’a CASE 761

that the paper writing metitiotietl iri Wilsoo’s affidavit was the only authority for the detainer, arid was riot a sufficient or lawful warrarit, accordiiig to the laws of Jersey or otherwise. H e deposed, further, that a writ of habeas corpus was, 011 or about 6th November 1844, duly issued out of the Cuurt of Queen’s Beitch, conirnaiitliiig Kandich to have the body of Wilsoii before the said Court, together with the day and cause of bia being takeu or detaiiied, a t We3tminster, inimediataly after the receipt of the writ. Tbat depoiiertt was informed and believed that ari affidavit was prepared to prove service of this writ oii Kaitdich, aiid that Mr. Nicolla was requested to swear the party making such atfidavit, b u t refused to do so. Kussell added that he had been informed atid believed that there was IIO person iri Jersey, competerit to administer the oath, who would administer it.

I n purauatiae of the above meiitioried order of Holfe B., the followiug writ issued, under the seal of this Court.

‘ I Victoria,” &c. ‘ I To Johri Katidich, keeper of our gaol of Jersey, iri the islatid of Jersey, and to Johri le Couteiir, viscourit of said islarid, greetirig. We command you that you have the body of Charles Carus Wilsoti, detaiiiecl iii our prison urider your custody, as it is said, togettier with the day arid cause of his beirtg takert arid dehiaed, by whatsoever name he may be called or kiiowii, itt our Court before US, at Westrniiister, on the 18th day of January next, to undergo aiid receive all and singular such matters ant1 thiugs which our said Courh shall theu arid there consider crf him in this behalf : aiid have there ttiert this writ. Witness ‘rhomas Lord Denman, at Weatmitister, t he 23d day of Decernbei~, irt the 8th year of our reigu.

I ‘ By the Court. I ‘ ROBINSON.”

I‘R. M. ROLFE. The writ was iiidorsed a3 follows. “ At the instance of Charles Carus Wilsoti.

“ Wm. A. Laagdale, 7 Gray’s Irin Square, Loiidoii, ‘ I Attoraey for tho said Gharles Carus \.Vilsoit.

‘‘ 23rd Uecetriber 1844.”

[989] III Hilary term, (1 I t h January) 1845, Sir F. Thesiger, Solicitor Geiieral (a)l,

obtaiued a rule (b) caflirrg upot~ Wilsoii to shew cause why the writ of habeas corpus should not be quashed ; arid it was ordered that John Kaitdich aiid J u h i i le Couteur should have to the 23d of January to make a return to the writ. The grounds of motion were, that the learued Baron could itot issue a writ iii vacatioii urider the seal of, and returiiable in, this Court. That, if he had such power, it would riot a t any rate authorize a writ, to rut1 iirto Jeraey. That the writ, i f i t issued a t all, could do so oiily utidei statute 31 C. 2, c. 2, aiid that it was uot in coiiformity with that statute. h i d that, upoii tbe applicatiori, the letrriiecl Uaroti \?as riot iuformed of facts which would have iriduced him, had he kriowii them, to exercise a discretion in refusing the writ.

111 support of the rule, Thomas le Bieton, Eq. , Her Majesty’s Procurator General of Jersey, made affidavit that Jersey was governed by laws aiid custorns differerit from those of Etiglaud. That the lloyal Court there was coniposed of the bailiff arid twelve jurats, the two Crown officers, iiantely the Procurator General arid the Advocate Geiieral, the vicomte or sheriff, the greffier, atid other iiecessary ofhers and atteridaiits. That it wa9 a Court of Record, and the only Court of civil arid crirnirial jurisdiction in the island. That i t posaessed the power of puriishiiig coiiteinpts; ati[l that the keeper of the prison of Jersey was bourid to carry irito executiou [%O] such seitteiice for a contempt as afterwards meritioried. That, by an article i i i a code of l a w ~ ( a ) ~ , all persons who should fail iu respect to the bailiff’werw to be punished by irnprisorimetit until they should have repaired their fault by asking pardon, and paid the pecuniary fiiie imposed oii them. That, on 23d September 1844, (luring the sitting of the Royal Court, Mr. Wilson committed a contempt of the Court, aiid failed i i t respect to the

(a)’ The Solicitor General stated that he was not acting for the Crown in this case. (6) The rule nisi was etititled “111 the Queeri’s Berich,” and, iri the margin,

___ _ - _ _ _ _ _ _ _

I‘ Eiiglarid},’’ The affidavits were entitled “ In the Queen’s Berich.” Jersey (a)’ Cude of Laws for the Islaiid of Jersey, 1771, p. 163.

762 CARUS WILSON’S CASE 7 Q. B. 991.

bailiff, in the manner stated in the senteuce of the Conrt after mentioned. The a5davi t then stated the seriteiice, which makes part of the return set forth, p, 1002, post, and which, alter describing the contempt, concluded thus (b)* : The Court “ has condemned the said Mr. Wilsori t o a firie of 101. sterling to Her Majesty, arid to ask pardon of the Court. And, the said Mr. Wilsoii having refused to coniply with the judgment of the Court, he is sent to prison uritil he shall have obeyed.” The affidavit went on to state that Wilson was accordingly committed to tbe custody of Kaiidicli, the keeper of the prison to which, accordirig to law, it was right that he should be committed. That the sentence was read aloud i r i his presetice and that of his advoaate. That the vicomte, or his deputy, is the officer whose duty it is t o execute the sentences of the C o u ~ t ; that such senteiices were publicly read i t i open Court, and tbat, where they inflicted imprisonment, the viconite or his deputy conveyed the person as soon as possible to the gaol. That all such seriteiices are opeti to all parties applying to read the same, a i d any persoii might obtain an official copy. That ail order OP 19911 sentence in the form of that of 23d September 1844 is the only authority, by the law and custom of Jersey, which is drawii up or used iii criminal matters for the purpose of authorising the arrest or detentiori of ariy person otdeied or senteuoecl to be imprisoned ; and that 110 warrant or commitment is ever drawn up or delivered to the vicomte or his deputy, or the gaoler, or ariy other pemoii, for authorising arrest, imprisonment or deterition. That the sentetice of the Court, entered and recorded i n a book of record called “ Le Livre des Poursuites Criniiuelles,” is the orilg authority used or required for those purposes; “and every such arrest, imprieonnient aud detention takes place under atid by virtue of such act of the Court, and not of any other or separate commitment, warrant or authority; nor is i t necessary, or required by the law of the said islaiid, that any copy of such act should be made or delivered to the vicomte, his deputy, the gaoler, or any other persoli engaged in executing or obeying the same.” And that the deporieiit believed that the admiriistratioii of justice i n Jersey would be inipetled if a facility were given to the issuing of writs of habeas corpus from the Courts of Westmirister Hall to Jersey.

Charles de Ste. Croix, Commis RU Breffe, or Deputy Registrar, of the Royal Court, confirmed the above stateinerit of the law of Jersey, arid stated that coiiternpts of the Royal Court were coiisidered crimirial offences, or ‘ I ddlits,” arid puuiahable as such by tine arid imprisonment at the itistarice of t h e Procurator Qeueial. ‘ I That separate aud distiiict books are kept for the entry atid preservation of the acts or orders of [Ha] the said Royal Court; arid that a separate atid distinct book of record is kept for the entry of acts of said Court relating t o criminal niatterj and proceedings ; arid that all such orders or acts, i n the matter of ariy coritetnpt of the said Court, are colisiderecl as acts and orders i r i crimirial aiattets, arid are accordingly entered in the books of ‘Poursuites Crirninelles,’ or criminal prosecutions.’’ Aiid that the act of ?3d September 1844 was e n t e i d i n such book. That, shoitly after that clay, the deponsut was applied to for ail office copy of the act, atid imriiediately prepared ail office copy, which, as he was iuformed a i d believed, was delivered to Wilsoii at the ead of that month or t h e early part of the next.

Edward Nicolle, EYq., jurat, made affidavit tbat he had decliiierl sweariiig Mr. Wilson or his wife, 011 the grouiid of what appeared to h im the impropriety of the langusge of a letter addressed to him by Wilson ; but that he, Mr. Nicolle, had ori two previaus occasions attended a t the prison arid administered an oath to Wilsoii. The bailie arid teri other jurats (a) also made affidavit tbat, if applied to, they would have admitiistered the oath to Mr. and Mrs. Wiluori.

In the eama Hilary term (b)2.

(a)’ The sentence was set out in French in the affidavit, with a translation. (a) l t was stated, in the argument, that the twelfth jurat was ill. (b)s January 30th, 1845. Before Lord Derimaii C.J., Pattesoii and Coleridge Js.

A writ of habeas corpus had been obtained from Pattesori J., before the writ was issued by Roue B. Sir F. Thesiger, Solicitor General, iii Michaelnias term, 1844, obtrriued a rule nisi for quashing the former writ; and, in Hilary term 1845 (January 16th, before Lord Denman C.J., Patteson, Coleridge, arid Wightmari Js.), Kelly and Peacock hewed cause, and Sir F. Thesiger, Solicitor General, arid Wortley supported the rule. The Court took time to consider; but no judgment was pronouuced, the returri t o the writ issued by Rolfe B. having made the other writ umecessary.

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7 0. B. W. CARUS WILRON’B CASE 763

19931 Kelly and Peacock shewed cause. It is objected, in the first place, that the learued Baron had no power to issue a writ into this Court. If that were so, the proper mode of taking the objectiou would be by motio~i to discharge his order, riot to quash the writ itself, which agrees with the order; Il‘urpuand v. Hawtrey (9 M. & W. 727). Stat. 11 G. 4 & 1 W. 4, e. 70, s. 4, enacts that every Judge of the three Commoii I,aw Courts a t Westminster, “ to what- ever Court he may belong, shall be and he is hereby accordingly authorised to sit it! Loridoti and Middlesex for the trial of issues arising i n any of the said Courts, a i d to transact such business a t chambers or elsewhere, depending iu any of the said Courts, as relates to matters over which the said Courts have a conimon jurisdictioa, and as may, according to the course and practice of the Court’, be trarisacted by a single Judge.” That enactmetit, indeed, confined the power of a Judge, irr cases not ii i his own Court, to cases actually depeiiding, arid wherein there was a common jurisdiction : but stat. 1 & 2 Vict. e. 45, s. 1, after recitiiig the former provision, ertacta, “Tha t every Judge of the Courts of Queen’s Bench, Common Pleas, or Exchequer shall have equal jurisdiction, power, and authority to transact out of Court such business as may, accordirig to the course and practice of the Court, be so transacted by a single Judge, relating to any su i t or proceediiig, i n either of the said Courts of Queen’s Bench or Common Pleas, or on the conimon law or revenue side of the said Court of Exchequer, or relating to the granting writs of certiorari or habeas c o r p ~ ~ s , or the admitting I9941 prienriers on crimitial charges to bail, or the issuing of extents,” &c., ‘I or relating to any other matter or thing usually transacted out of Court, although the said Courts have na cornmoii jurisdiction therein, i n like manner as if t he Judge transacting such business had been a Judge of the Court to which the same by law belongs.” And in Leollard Watson’s case (9 A. 8 E. 731, 744), i t was decided that a Judge of the Quem’s Bench might, in vacation, by the conimon law, grant a habeas corpus ad subjicieridutn returnable before himself a t chambers.

It is said that the writ cantmt be considered as issued under stat. 56 G. 3, c. 100, the prisoner being confined ‘ I for some criminal or supposed criminal matter,” and therefore within the exception iu sect. 1 . It is true that in Mr. Long W e l l e s l q ‘ s case ( 2 lluss. & M. 639. Bee p. 668), a11 attachmeirt for a coiltempt, comniitted by clatidestiriely removirig a ward of Chancery, was considered as i n the nature of a crimiual proceeding so far as regarded the jurisdiction of that Court: but the doctrine has never been applied to a habeae corpus. It is also said that, although stat. 31 C. 2, C. 2, s. 2, applies to the cage of parties detained for any crime not being treasoii or felouy, the preserrt writ is not coriforrnable to that statute, not being marked ‘‘ per statutum,” &c., as required by sect. 3. But the wr i t inay be supported a t conimoii law, as in &z parte Beeching (4 B. B C. 136). Coleritlge J., i r i Leonard Wutson’s cuse (9 A. & E. 739), cites 3 Blacket. CON. 131, to shew that such a w i i t rail a t cotnmori law i n term or durittg vacation. [Patteson J. I doubt whet,her [996] Blackstone be correct in stating that the writ may by common law be retiiriialde in vacation.] Leonard W’atson’s m e (9 A. (QE E. 731), shews t ha t he is. [Lord Denman C.J. referred to R e x v. C h k e (1 Bur. 606).] The learned Baron has therefore exercised only the common law power of this Court, as he was authorised to (10 by stat. 1 He has made the writ returnable here, because it was a proceeding of this Court which he was directing. He could, if there had been time before term, have made i t returnable before himself iu vaoatioti, acting w i t h the authority of x Judge of this Conrt ; but he could riot have made a writ of this Court returnable before himself in term time.

It will, however, be urged that stat. 1 & 2 Vict. c. 45, is not binding i n Jersey: and it is true that ail Act of Parliament, not naming the isla~id, is not held to apply there : but the rule does not apply to such a provision as that in stat. 1 B 3 Vict. c. 45, s. 2, which regulatas o d y the mode of piitting this Court i r i motion, and creates no new law and no new power in the Court. It might RS well be said that, after the term8 hem were altered by stats. 11 G. 4 RE 1 W. 4, c. 70, s. 6, and 1 W. 4, C. 3, s. 3, the Court, as to Jeraey, could act only during the terms as they previously existed. The Regency Act, 51 G. 3, c. 1, did riot riame Jerssy; but no doubt was ever enter- taiued that the Pr ime Regerit was authorised to exercise sovereignty over it. As to any supposed misrepresentation or suppression of facts, that is ortly a ground for setting aside the order of the learned Baron ; Z’urpuand v. Rnwtrey (9 M. & W. 727).

But he bad power to order the writ.

Then objections are taken dependirig on the iiature of the writ itself.

2 Vict. c. 45, s. 2.

764 CARUS WILSON’S CASE 7 Q. B. 996. I The matter alleged on the [996] aflidavits in support of this rule, if available, should be shewn on return to the writ.

Sir E’. Theaiger, Solicitor General, Wortley a i d J. W. Smith, coiitri. By conimoii law, a writ like this, returnable here, could he issued only by a Judge of this Court. The power conferred by stat. 31 C. 2, c. 2, has iiot been exercised, the writ not being marked ‘I per statutum.” Under stat. 56 C. 3, c. 100, s. 1, any Judge could issue the writ returriable in his own Court, or before himself, but iiot i n any Court of which he was iiot a Judge. Then this proceediiig is said to be justifiable uirder sttrt. 1 & 2 Vict. c. 45. But sect. 1 of that Act recites stat. 11 G. 4 & 1 W. 4, c. 70, s. 4, which related only to business depending before the Courts ; arid the object of stat. 1 8 2 Vict. c. 45, was merely to enable every Judge to act iti causes where the Court of which he was a member had no jurisdiction, not to give him authority i r i cases not dependitig iri Court; and indeed it applies orily where some Court other tbati his OWII had exclusive jurisdiction, whereas here the Courts have a commoti jurisdiction.

Next, stat. 1 & 2 Vict. c. 45, does riot apply to Jeraey, that islatid tiot being named ; 1 Blacket, Corn. 106, 4 Inst. 287 (U). It is by rio means clear that the alteration of our terms by Act of Parliamerit would, as suggested oii the other side, hirid Jersey. The Regency Act, 51 G. 3, c. 1, s. 1, expressly cotiferred all the authorities which lawfully belong to the King of the United Kingdom. If the writ be issued without authority, if, ir void, and ought to be set aside without [997] settiug aside the Judge’s ordel-. 111 Twquand v. Hawtiey (9 M. & W. 727), the only question wag to the way iu which the Judge had exercised a power wbich utidoubtetily belonged to him.

Further, the learned Baroti was misled by the affidavits upori which he granted the rule. Russell’s statemetit as to the inability to swear affidavits, is distinctly negatived. And, if the leartied Judge had been told that this was a commitment for contempt, and that such commitment was, by the law of Jersey, a crituirid process, that a formal adjudication had been made, arid that, by that law, iio warrant is neces- aary for imprieonmeut, he would in his discretion have refused the writ. It is true tha t the writ is claimable of right; but it does riot issue as of course. Some foundatioti for the application must be shewn. In Lecntcwd FVtitson’s case (9 A. & E. 731), the writ issued upari affidavits suggestitig objections to the imprisonment. Hobhuuse’s case (c), and the authorities there cited, especially Re2 v. Schievei (2 Burr. 765), shew that the writ mag be refused if no proper ground he laid fur the application. Possibly, in this case, the learned Baron, if properly informed, would have granted a rule nisi for a habeas corpus, as was dotie in R. Blake’u case (2 M. & S. 428), arid iri Wude’s case (2 M. & S. 439, note (a)). The priticiple, that grautirig the writ a t commori law is not a matter of course, is distinctly asserted by Wilmot C.J., i i i his Opiriiori oii the Writ of Habeas Corpus (h). Indeed, if the law were otherwise, a person secluded 011 aacoutit 19981 of his havirig upori him an infectious disorder, or a violent Iiiriatic, might be removed for a time from proper custody. The inexpediency of allowing the writ to go, as a matter of course, into every country subject to the British Crowri, is manifest : and, as to Jersey, the affidavits expressly assert this. [Coleridge J. Is there ariy instance of quashing a writ of habeas corpus iri the way suggested by this rule?] A certiorari may he quashed: aid, iti Rex v. Cozule (2 Bur. 834, 856) , Lord Matisfield treats the question, whether a certiorari could go to Berwick, as arialogous to the quesbion whether a habeas corpus could go thither

Lord Denman C.J. The affidavit on which this writ was obtained is entitled in the Exchequer.

Peacock. It does not appear, by the affidavits oti which this rule was obtained, that there was no affidavit sworn in the QueeriJs Bench OIL applyiug for the writ. Even if i t did, that would he a ground only for moving to quash the Judge’s order.

Cur. adv. vult. Lord Denman C.J., in the same term (January 31st), delivered the judgment of

the Court. That the writ of habeas corpus ad subjiciendum has legal force in the island of

Jeraey, and must be obeyed there, is now admitted 011 all harids. Nor cari we be

(a) T h e case of Parliament in Ireland, 13 Rep. 109, was also referred to. (e) 3 B. & Ald. 420. (h) Notes of Opinions and Judgments, &c., pp. 88, 91, &c.

See 8. C. 2 Chitt. Rep. 207. And Bee 4 Bsc. Ab.

141 (7th ea.), tit. Habeas Corpus (B), 13.

7 Q. B. 990. CARUS WILSON’~ CASE 765

parties to tha encouragement of atiy doiiht, whether the inconveniences that may possibly arise i n giving eflect to the writ will justify us, or any Judge who may pos-[999]-sess the power, i n decliriirig the exercise of i t in behalf of any persan wbo lawfully requires it.

The present qiiestiori therefore, on the rule for quashing the writ issued by my brother Rolfe, depends on the peculiar circumstances belonging to that writ. Had the learned Barori power to issue the habeas corpus? We are convinced by the discus- sion that he possesses that power. The statute 1 & 2 Vict. c. 45, s. 1, uses the words habeas carpus in the most general arid unrestricted matitier. I n any case we shall be slow to control the operation of uiiambiguous words from ariy supposed intention of the Legislature : arid we shoiild least of all think ourselves a t liberty to pursue that course so as to restrain the power to issue a writ of habeas corpus.

We do not think it ueedfril to dwell more particularly on the arguments urged at the Bar in support of that proposition. But, secondly, these affidavits are entitled “111 the arid n serious doulit was felt whether, so entitled, they cart authorise a Baron of that Court to act as a Judge of this, under the statute 80 often alluded to. No reference was made yesterday to the riile promulged by all the Courts i n Hil. k, 2 W. 4 : I. 4. “ A n afirlavit Bworri bofore a Judge of ariy of the Courts,” &c., Ir shall be received i r i the Court to which such Judge belongs, though not entitled of that Court ; but not in any other Court, unless entitled of the Court in which i t is to be used.” This rule is riot applicable to the presetit case ; but its language points out a distinction which we think is so applicable. These affidavits are not pressed upon us to be received here: they have heen received, and have performed [lOOO] their office, before the learried Baron. It is enough to say that they may have beeti ; for, when they were laid before him, he may have acted as a Judge of the Excbeqiier, and had power to make his writ returnable there. It is stated that he was requested to do so; but that he himself saw reason to suggest that i t should he rnade returnable before 111. Then, he would have received them properly in the first iristance ; arid he had a discretion as to the Court where tha writ should be made returriahle, arid might lawfully, on these atiidavits, send the matter before the Qtieeri’s Beoch.

But, thirdly, a deception is said to have been practised by the applicant, iriaamuch aa ha knew that he was imprisoned under a sentence of contempt pronounced by the Royal Court of Jersey, arid frauduleritly suppressed that fact. If the Baron had been properly iriforrned of it, he would 1101 (it is said) have issued the writ a t otice, but would either have required ful l information of such fact from the applicant, as was done in Hobhouse’s case (a), or would have granted only a rule ~iisi. In either case there may possibly be good reason for believing, as was contended, that the writ would not have issued.

It may be that, if i t appeared beyond a doubt that a fraud had been practised, the writ ought to he quashed. It rather meems that Mr. Wilson, an English lawyer(b), may have bonL fide believed that a warrant for his commitment was uecessarg, aiid that either the absence of atiy warrant, [loo13 or the refusaI to shew him the warrant, would entitle him to his liberation. He may very probably have been ignoraiit tha t by the law of Jersey the sentence of the Coiirt was in itself a sufficient warrant.

If fraud is not made out, we must consider, fourthly, whether the writ is to be set aside because the learried Baron did not require the information which might have been given, i.e. whether he has abstained from exercising a discretion so obvioilsly demanded by the occasion that we ought to condemn and annul what he has done. The strong cases supposed, of a n application for producing a sick matt labonririg urider an infectious distemper, or a raviiig and dangerous maniac, brought to the knowledge of the Court, would shew an overruling riecessity to which all other considerations must give way. But there is a wide difference between such a state of things and the inconvenient general coiisequences that may possibly attend the liberation of a sane man, by whatever authority imprisoned. We do not intimate that a previous inquiry

He described himself as ‘(gentleman,” in the introductory part of the affidavit annexed to Russell’o affidavit (ante, p. 985).

Were they properly received by him?

But of the fact w e are not satisfied.

(a) 3 B. & Ald. 420. (b) It was understood that Mr. Wi lson was an English attorney.

See S. C. 2 Chitt. Rep. 207.

766 CAHUS WILBON’S CASE I Q. B. 1002

would be wrong where there is reason for supposing the prisoner to be under aentence of a Court. OR the contrarg, we think such a course the most desirable, and may conjecture that the learned Judge would probably, on more reflection, have p a n t e d a rule nisi for that purpose. But this is an application to quash a writ actually gone forth. We find from the Master of the Crown Office that the Court held more than once, in 26 G. 3, that no writ of habeas corpus should be quashed for matter that can be properly returned to it. As a general rule, that is certainly the mosb convenient course, most just to the party applying for the writ, and most in furtberance of the great object for which our constitution has appointed it. But, as [lOOZ] the learned Baron, with full authority, has formed his own opinion on these circumstances, and has so far helped the apgticant on his way to obtain his freedom, we do not feel ourselves justified iri interfering with his progress in the manner prayed.

Rule discharged. The following return was made.

‘I We, the said John le Couteur, Viscount of the island of Jersey, i i i the writ here- unto annexed named, and John Kandich, keeper of Her Majesty’s gaol iii the said island, in the said writ also named, do hereby certify and rctuni, it1 obedience to the said writ, tbat, before the coming of the said writ to us, to wit 011 the 23d day of September A.D. 1844, we did take into our custody, arid the said John Karidich still does detain in custody, the said Charles Carus Wilson, i r i the said writ named, under and by virtue of a certain sentence of the Royal Court of the said island of Jersey, whicb said sentence is in the French language, arid is as follows.” (The sentetice was then set a u t in French.) ‘I And which said sentence, beirig translated into the Eriglish language, is as follows.

’ I s A t the Royal Court of the island of Jersey, in the year 1844, the 23d day of September : whereas, in a cause depending between Mr. John le Gros arid Min. Charles Carus Wilson on the one part, atid Peter le Sueur, Esquire, an advocate of the Bar, on the other part., the said Mr. Wilson, wheri the Court was on the point of dalivering an interlocutory judgment i n the said cause, took upon himself to interrupt the Court by uttering, in the most unbecoming tone (a), the following words,-I solemnly protest against the reading of the judgmeiit, which you, an incompetent Court, composed of a bailiff, and two lieutenant bailiffs, who have been recused, aud who have riot purged themrelves of tbat recusation and have not the power to do so, have rendered : the Court, conformably with the conclusions of the Queen’s Procurator General, applying the article of the code of laws which orders that all persons who shall have been wanting in respect to the bailiff, as representing the person of Her Majesty, shall be punished by imprisonment until they shall have made reparation for the same by asking pardon, arid shall have paid the pecuniary fine imposed upoii them, according to t h e nature of the offence; arid considering that the bailly has several times, but in vain, during the arguing of the said cause, ordered the said Mr. Wilson to be more cautious in his expressions, and more respectful iri his conduct towards the Court ; has condemned [loo31 the said Mr. Wilson to a fine of 101. sterling to Her Majesty, arid to ask pardon of the Court. And, the said Me. Wilson havirig refused to comply with the judgment of the Court, he is sent to prison until he shall have obeyed.

I‘ FRS. GODFRAY, GREFR.’ And w e further certify and return that the said sentence was duly and lawfully

made and pronounced by the said Royal Court of Jersey, according atid in conformity to the law then and still i n force i n the said island. And that, according to the law aforesaid, the said setitence was arid is a good, valid and lawful authority and sentence, whereby, and in obedience to which, W O were obliged and empowered to take into our custody, and the said John Kaiidich has been and is obliged aiid empowered to detain therein, the said Charles Curus Wilson as aforesaid, and that we had and have not, uor aceordirig to the law of the said islarid could have had or could have, any warrant or authority for so taking and detainiug him, other than or different from the sentence aforesaid.

And we do further certify and return that the said island of Jersey is, and from time immemorial has been, governed by laws different from those of England. And that, lang before the taking and detaining the said Charles Curus Wilson, there was,

(a) I‘ En pronoiiqant, du ton 10 plua i nco t~venao t ,~~

7 Q. B. 1M4. CARUS WILSON'S CASE 767

and ever since has been, and still i s , in the said ialand, a Court entitled the Royal Court of Jersey, being the said Court hy which the said setitetice was so pronounced as aforesaid, and which, during all the time aforesaid, has been and still is the ottly Court of criminal and civil jurisdiction in the said islard. That an appeal lies from the said Court to the Sovereign i n Council, and to no other authority or tribunal whatever. That the said Court, during all the time aforesaid, has heeii and is presided over by a high officer entitled the bailiff, who is the principal civil functionary in the island of Jersey, and who, while so presiding, is considered to represerrt the Sovereign, assiated by certain Judges, called, in the said island, jurats That the Viscount of tbo said island of Jersey is an officer of the said Court, whose duty i t is to take care that its sentences arid orders are carried into efl'ect. And that the Procurator General and Advocate General of Jersey are also officers of the said Court, whose duty i t ia to appear and act 011 behalf of the Crowri i n crimiiial and other matters. That all pleadings in the said Court have been and are delivered, and all acts, setitencee and proceedings of ant1 in the said Court have been arid are proriouiiced and expressed, in the French language. That, long before the taking arid detaitiitig the said Charles Curus Wilson as hereinbefore mentioned, the said Royal Court of Jersey, by the law of the said island, possessed, arid ever sirice has possessed, arid still possesses, the power of punishing such a contempt atid distespect as iii arid hy the said sentence appears arid i s stated to have beeri committed by the said Charles Carus Wilsori in the manner in arid by the said sentence directed. That, hy an article in and [loo41 forming part of a certaiii code of laws, and which, before arid at the time of the SO

taking arid detaining the said Charles Carus Wilsori as aforesaid, was, arid ever since has been, and still is, in force in the said island of Jersey, arid during all that time formed, arid still forms, part of the law thereof, i t was atid is directed iri mariner follow- ing : (that is to say) "(the article was theii set out i u Frerich) : " which signifies, in English ' that all persoils who shall have failed i r i respect to tlie bailiff (as one repre- senting the person of the Sovereign) shall he puriished by imprisonment, until they have repaired their fault by asking pardori, arid have paid the pecuniary fine wbich shall have been imposed on them, according to the nature of the offence.' And we further certify arid return that, on the 23d day of September, A.D. 1844, during the sitting of the said Royal Court of Jersey, and while the bailiff arid jiirats were present and sitting iu the said Court, t he said Charles Carus Wilson committed a coritetnpt of the said Court, arid failed i t i respect to the hailifl'iii the manner arid by the misconduct in the aforesaid sentence stated arid set forth. Arid we further certify that the several matters arid things stated arid set forth in the said sentence are truly arid correctly stated and set forth. Arid that, the said Charles Carus Wilson having EO acted and spoken, aiid having committed such miscoiidiict arid disrespect as in the said sentence meritinned, withiti the view arid in the hearing of the said Court, siteh proceedings were thereupon had, and the said Court, after due examiiiation and corisideratiort of the said conduct af the said Charles Carus Wilson, and after full opportunity to the said Charles Grus Wilson to deferid, explain or apologise for his said conduct, did in con- formity with the law of the said islartd, iii the presence a d hearing of the said Charles Carus Wilson, arid of John Hammorid, Esquire, beirig ari advncnte practisirig in the said Court arid being then of counsel for the said Charles Carus Wilsoii i n the cause in the said sentence mentioned, give, make atid pronouncc the aforesaid sentence, which was thereupon read aloud in the presence and hearing of the said Charlos Carus Wilsorr and John Hammorid, arid was thereupon duly eutered i r i a book of record of the said Court called Le Livre des Poursuites Crirninelles, heiug, accordiiig to the law of the said island, the proper book for that purpose. Aiid we further certify that the said sentence was arid is, in every respect, i r i due form of law according to the law of the said island ; and that, upon the same being proitouriced arid given by the Court a8 aforesaid, i t became arid was, according to the law of the said islatid of Jersey, the duty of the said John le Couteur, being then viscount of the said islimcl, to cause tbe same ta be carried into execution as hereinafter nieiitinned. And that, the said Charles Carus Wilson having wholly refused to pay the said fine and ask pardon as in tbe said senterice directed, the said John le Couteur, beiiig such viscount as aforesaid, in performance of his duty as such viscount, and in con- formity with the law of the said islarid, (lid, by his lawful deputy John Philip De Ste. Croix, deputy viscount of the said islarid, take the [loo51 said Charles carus Wilson into his custody, oiid convey him to the gaol of the oaid iolarrd,

768 CAR US W I LRON’S CAS E 7 Q. E. m e .

being the gaol to which, according to the law of the said island, the said John le Couteu was bound and empowered to coiivey him, aiid did there deliver hini into the custody of the said John Kaiidich, who was then the gaoler of the eaid gaol, and the person into whose custody the said John le Couteur ought, according to the law aforesaid, to have delivered him. Arid the said John Kaiidich did thereupon receive the said Charles Carus Wilson into his custody, as siich gaoler, arid as, according to the lam of the islaiid, he was boond to do. Arid we further certify that the said Charles Carus Wilsoii has ever siiice neglected arid refused to pay the said fine and to aak pardon, as in and by the said sentence directed, arid has not in any respect obeyed the sentence of the said Court, or expressed any intention of so doing, arid still continues to he, and is, liahle to be imprisoned under and by virtue of the said sentence. And the said Johri Kandich continues to be, arid is, borinrl, by the law of the said island, to detain him in custody in execution atid by virtue of the same. And we further certify that the said Charles Carns Wilsori was takeri into custody by the said John le Couteur, by his deputy as aforesaid, iri pursuance of the sentence aforesaid, in open Court, the said Court being then sitting, and that, according to the law of the said islarid of Jersey, i n force before arid at arid ever sirice the time of the taking the said Charles Carus Wilson into custody as aforesaid, i t was not, nor is it, the practice, nor is it necessary, that there should be any warrant or commitment drawn up or delivered to us, or either of us, or to any other person, for the pui’pose of authorising or comniandirig the taking or detairiirig i r i custody of ariy persou taken or detained in custody by the order of the said Royal Coiirt, other than the sentence of the said Royal Court ; but such sentetice of the said Royal Court was, during all the time aforesaid, accordiiig to the law of the said islaritl, a fu l l and sufficierit command and authority for that purpose, arid fully and completely b i d i n g arid obligatory upon us atid each of us. Arid we certify that, by the law during all the time aforesaid arid still iri force in the said islarirl of Jersey, the sentences of the said Royal Court are pronouriced i n open Court, iri the maiiiier hereiiibefore mentioned : and that thereupon it becomes the duty of the viscount to cause the same to be carried into executioii ; arid, if such sentence iriflicts the puriishment of imprisonmeiit, immsdiataly to take the persoii ordered to be iiiiprisoiied arid coiivey him to the gaol of the said islarid. Aiid that every such sentetice is entered i n the said book entitled Le Livre des Poursiiites Criminelles, where it remains opeli to the irispectioii of all peraons, arid from which any person inay, on applicatioii, ohtairi an official copy of it. That no other authority is ever drawn u p or used for the purpose of authorising or commandiiig the arrest or detention of any persori liable or ordered to be imprisoiied i n pursuance of such sentence ; arid that no warrant or commitment is ever clrawri up or delivered to the viscouiit, gaoler, or any other person for the purpose of authorising rucb [lo06] taking or imprisonmerit, or for ariy other purpose ; but that the seriterice of the Court is, according to the law of the islaritl, the orily authority used or required for those purposes. Atid every siicb arrest arid imprisonmetit takes place under and by virtue of the sentence of the Conrb, arid riot of any other or separate commitment, warrant or authority ; ~ i o r is it necessary or required, hy the law of the said islatid, that any copy of such sentence should be made out or clelivered to the viscount, gaoler, or any other person for the purpose of authorising such arrest or iniprisonmeiit.

“Aiid we do herehg further certify and returti that the above is the cause of the takitig atid detaining in custody, as in the said writ rneritioried, the said Charles Carus Wilsoii, the body of which said Charles Carus Wilson I, the said Jobn Kandich, have here ready, as i n aiid hy the said writ is commanded.”

In Hilary vacation, 1845 (a), Mr. Wilsori was brought into Court, atid the returii read. Hoebuck, wbo appeared for Mr. Wilson, asked time to examine the retiirri, statirig that he had only received his iiistructions imriiediately before the return was read. The Court directed that Mr. Wilson should eilter into his owti recognizance to appear 011 the %rid of April i n the term following.

Kelly and Peacock (b), for Mr. Wilsori, claimed to put i n affidavits coittradictirig

(a) February 13th. Lord Denman C.J. stated that the leaiiietl Judges must be considered as assisting each other in performiog the functions of a single Judge.

Lord Denman C.J. said that i t might be permitted i t ) this iristaiics, but that the case was

011 that day, ~~ ~,

Before Lord Derimari C.J., Pattesoii, and Ctrlericlge Js.

( b ) A questiou arose as to the right of Peacock to be heard on this point.

I

I

.

7 Q. E. 1Mn. CARUS WILSON’S CASE 769

the statement in the return as to the law of Jersey. The caBe is not as if a warrant had been returned, on the snfficiency of which the Court could judge, as in the case of The Shwifof MiddEesecr(11 A. C“ E. 373, 291). The return here states that the law of Jersey requirea no [loo71 warrant : the prisoner is erititled to bring that question before t h e Court. It is said that this is a criminal matter. Now the exception in etat, 56 G. 3, c. 100, S. I, ccOtherwise than for some criminal, or supposed criminal matter,” excludes simply all cause of imprisonmetit, not being treason or felony, which is included in the words of stat. 31 C. 2, c. 2, S. 3, “for aiiy crime, unless for felony or treason.” A commitment for contempt was mver supposed to be within stat. 31 C. 2, c. 2, s. 3 : at all events this commitmetit is riot so; for the Judge could not follow the directions of sect. 3 by binding the party to appear where the offeiice is cognizable, namely in the Royal Court of Jersey. It seems to follow that stat. 66 G. 3, c. 100, applies to this case, and that the matter of the return is therefore traversable under sect. 3. Suppose a return were to rely upon the alleged law of some local Court in England ; could not the party imprisoned hririg before this Court the charters under which the local Court acted 1 [ Patteson J. If this he a misdemeanour, it ie clearly not withiri stat. 56 G. 3, c. 100.1 That is, if i t be a misdemeanour according to the Etiglish tneaniiig of the word, so as to be within stat. 31 C. 2, c. 2, s. 3. If this application he disallowed there is no remedy : for an action for a false return cannot be enforced against parties residing i r r Jersey.

Sir F. Thesiger, Solicitor General, coritr8. This is certaioly riot a writ under stat. 31 C. 2, e. a : but i t does not follow that i t is under stat. 56 G. 3, c. 100. It is a commoii law writ, as appears by what passed at the former stage of the pro- ceedings. Under stat. 56 G. 3, c. 100, a Judge could make a writ returnable orrly in his own Court. A i d , further, by the law of Jersey the im-[1008]-prisotiment here is for a definite offeiice, arid is iiot analogous to an attachmerit for contempt in an English Court. The law being distinctly averred in the return arid a legal proceeding set forth, this Court will not allow such matter to be traversed by affidavits.

Lord Denman C.J. The retarti states that the viscourit and the gaoler bring up the prisoner, being in custody, by virtue of the sentence of the Royal Court at Jersey, which has passed upon the prisoner for the coutempt, i n conformity with the law of Jersey, as set out in the returri. It is proposed to sbew, by affidavit that the law is untruly aet forth. Without inquiring whether any affidavit is receivable a t all in the case of any prisoner under sentence, we may decide the question before us by cotisideritig the pririciple of the exception that ruiis through the whole law of habeas corpus, whether uuder commori law or statute, namely, that our form of writ does not apply where a party is iri execution under the jtidgnient of a competent Court. If, indeed, i t were proposed to shew that the prisorier had never been before such Court at all, or that no such sentence hacl been iri fact given, there might he H. difficulty in saying that a traverse to that effect could not he allowetl. But, when i t appears that the party has been before a Court of competetit juristlictiori, which Court has committed him for a contempt or any other cause, I think i t is no longer open to this Court to enter a t all into the subject matter. If we were to do so, we should con- stitute ourselves a Court of Error from such other Court ; and should be constantly examinitig whether the circumstances, the existence of which was proved, [loo91 warranted the opinion which such Court had Formed. Suppose a party were cotrvicted of murder, and ordered to be executed i r i three weeks, could we, while he waaawaiting the execution of his sentence, receive a statement that he was improperly convicted, that evidence was improperly admitted, or that the offence was trot murder? The security which the public has against the impunity of offenders is, that the Court which tries must be considered competent to convict. We could not interfere in this way without incurring the danger of setting a t large persons committed for the worst offences. Whether the proceeding here be under statute 31 C. 2, c. 2, or 56 G. 3, c. 100, or common law, this is clearly a case in which we are not entitled to enter into the proposed enquiry. A Court within the Queen’s dominions, exercieing public authority, must be taken to be competent to judge of its own law. Whether the party might have an action for a false return, furnishes no test for us, since we must give credit to all countries for providing a remedy where there is a wrong. At all

not to be drawn into a precedent, the regular practice being t,o hear only one counsel on a preliminary point.

K. B. X L I V . - ~ ~

7 70 UARUS WILSON’S CASE 7 Q. B. 1010.

even&, our judgment is not to be exercised by setting aside the proceedings of a competent Court. A question was raised, riot long ago, whether a committal by the Master of the Rolls was valid; and we held that we could not look a t affidavits to shew that be had acted improperly ; In /he Matter of Clarke (2 Q. B. 619).

There is, indeed, a difficulty in saying under what authority this writ issues. I have not much doubt in [lOlO] saying tha t i t does not issue under stat. 31 C. 2, c. 2 : we d o not find the words “per etatutum;” and that statute applies, I think, only where the party has been committed for trial, or has been tried. And I am inclined to think that i t does not issue under stat. 56 G. 3, c. 100 : that statute excludes criminal matter and process in civil suits, meaning, as I understand it, to except all cases of proceedings a t law, and to include merely caaes where parties are detained without any authority. It seem$, therefore, to be a writ a t common law. Whether any statute gives to a Baron of the Exchequer, as such, power to issue the common law writ, I do not know : but, under stat. 1 & 2 Vict. e. 45, s. 1, he may act as a Judge of the Queen’s Bench, and make i t a proper writ of this Court. If the writ be at common law, I do not say that we cannot receive affidavits : I know of no principle upon which I can say that. If it be under stat. 56 G. 3, c. 100, power is expressly given to us to receive affidavits. If i t be under stat. 31 C. 2, c. 2, we clearly cannot, that statute giving us no such power. But, assuming i t to be under stat. 56 G. 3, c. 100, or (as I think it is) a t common law, and that we can receive affidavits, then what are the affidavits which we can receive? Thicl is a return, made by officers (tiot by a Court ; a Court never makes a return), that tho prisoner is it1 custody by sentence of the Court, which has directed that he should be sent to prison until he shall have obeyed the order sentencing him to pay a fine and ask pardon of the Court. That is the essential part ; the rest is immaterial, containing a statement as to the law of Jersey, which we are not to take from the parties making the return. It might be proper to receive affidavits [loll] to shew that such sentence has not, been passed : but we cannot receive affidavits impeaching the validity of the sentence. 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 a t the assizes, and at the sessions. When a man is sentenced to be hanged, no warrant issues. The confusion has arisen merely from the language of stat. 31 C. 2, c. 2. The only question is, whether we are to receive affidavits here as to the law of Jersey. To do so, after we have been told that the sentence has been pronounced i n Jersey, would, in truth, be entertaining an appeal. But we cannot review the proceedings of the Court there.

I agree with my Lord that it is not material to decide whether or not this writ issued under the common law. But the supposition most favourable to Mr. Wilson is that it did so. For what purpose then are the affidavits tendered 1 To sbew that the law of Jersey is contrary to that acted on by the Royal Court. It is not necessary to say that affidavits would be receiv- able on any ground whatever : but, at all events, there is a marked distirictiori between affidavit8 that are to shew tbat the party was never hetore the Court at all, or that no welence was pronounced, and affidavits to sbew that there is no such law 8s that acted upon by the Court. By common courtesy, credit is given to Courts which have pronounced the law, tha t they have proceeded legally. If, indeed, there has been committed any gross and flagrant violation of natural justice, that may be inquired into by adiscussion of t h e matter on the face of the return. But [1012] we cannot see tha t an attachment for a contempt of Court is contrary to natural justice. It constantly issues here; and why are we to :mume that it may not i n another country 1 The question is, whether we are to receive affidavits to show that the law is not so. I think we cannot. I agree that our decision does not involve the assumption that the party will have a remedy in Jersey: but we must suppose that country to be regulated by laws administering justiee for every wrong.

Wlgbtman J. I am of opinion that the affidavits cannot be received, whether this writ iwued at common law or under stat. 56 G. 3, c. 100. The return states the sentence of a Court, not denied to have competent jurisdiction. It is proposed to deRy upcm affidavit, not matter of fact, but matter of law. By allowing this we should in trath be deciding, upon appeal, whether the law has been rightly pronounced by a Court of competent jurisdiction to which we are bound to give credit, Without

Patteson J. I am entirely of the same opinion.

The officers shew that they act by that authority.

Williams J. I am entirely of the same opinion.

7 Q- B. 1013. CARUS WXLSON’S CABE 771 saying that the affidavits would be receivable under any circumstance8, i t appears to me that they are not receivable for the purpose for which they are now tendered.

Kelly and Peacock then contended that, on the statements of the retunr, the prisoner must be discharged. I t appears that there was no warrant: the imprison- ment WEB therefore illegal, however legal the return ; Fudmg v. Bray (2 Saund. I82), Mayhew v, h k e (7 Tautit. 63). [Lord Denman C,J. referred to Van Sundun v. Turner (6 Q. B. 1731.3 Next, the return [1013] shews no contempt authorizing imprison- ment. I n the case of The Sherif of Middlesm (11 A. & E. 273), this Court, if the contempt bad been described in the commitmetit, would, as appears by the judgments, have been bound to enquire whether there really was a contempt. The language of Lord EllenbQrough in ~~~~e~~ v. Abbot (I4 East, 1, 150), clearly leads to the same doctrine. Here the alleged c o n t e ~ p t is shewtr, which appears to have consisted merely iJ1 Mr, wilso€i’s objecting to the technical competer~cy of some of the Judges. IC does not appear that tbe objection was not valid, nor that he took i t at the wrong time, The only 8uggestiori of ariy thing like a corttempt is the aflegation that he pronounced the words in an unbecoming tone. That i s much too vague.

Sir F. Tbeeiger, Solicitor General, Wortley and J, W. Smith, contrk. It was said from the Bench just now that a warrant waa not necessary. Pattesorr J. I did say

the queetiori as still open,] If all the return be read, there is a distinct allegation that no warrant is necessary. And iti the case Zn the Maller of Clwke (2 Q. B. S19), thia Court held that an order was enough iri the case of commitment for contempt. But, if 80 much only of the return be taken as cantairis the sentence of fine and imprisoo- ment, the question as to the warrant cannot arise. As to the contempt, the return #hew+ that the Court had eriterta~ried the cause ; nothing in the nature of a plea to the j ~ r i s d i ~ t i o ~ could then he pro~er ly urged. The objeetiori had evidently been made before arid overruled. It further appears ElOl4J that Mr. ~ i I a 0 1 ~ had been repea ted i~ ad~ori ished. [Lord Dertmati C.J. There is tio statement that he bad repeatedly been disrespectful.] But, lastly and ptiucipally, the tone is said to have been unbecoming: that fact must be taken from the sentence; this Court cannot examitle whether the sentence is in that report true. [Lord Denmart C.J. For what W~LB he to ask pardon?] The presumption will be in favour of the legality of what the Court has dotie; €$ex v. Suddia (1 Eaet, 306, 314).

Peaoock i n reply. [Sir F. Thesiger, Solicitor General. The other side are not, entitled to the re ly. They have in effect sbewn cause against the motion to remand. Lord Denman C.!. They rather were in the position of parties raising an objection to the return, which you answcr, and they reply ou your answer. In Regina v. Bains (12 A, & E. 210, 213, note (a)), 8 similar course of a r g ~ i ~ ~ e t i t was allowed,] The prisoner is c o ~ m i t t e ~ till he asks pardoit. It should have been pointed out for what he was to ask pardon. And he should not have been jmprisoiied till be da 80, for he cannot d o so when he is in prison. [Pattesorr J. He may send word that he is ready to aek pardon, It is just like the case of a bankrupt committed till he make answer,]

Lord Denman C.J. I profess to decide thia upon what I find returned as to the practice of tke Royal Court. We give full credit to that Court for kriowing arid administering their own law. W e find the party sent to prison in cotiseqiience of a supposed contravention [lOlS] of the law by which those who shew want of respect to the bailiff are to be sent to prison till they have asked pardon and paid the fine imposed. Had anything positively absurd and unjust appeared, we might have acted a8 repeatedly has been done in cases where we have seen that the Colonial Courts have pronounced judgment against a party who had no opportunity of making his defence. But here i t appears that a contempt was eupposed to have been committed. That is a case in which i t becomes the urifortunate duty of a Court to act as both party arid Judge, atid to decide whether it has been treated with contempt. We cannot decide upon the face of this return that they have come to a wrong ~ o n c l u s i o ~ . A Court may be insulted by the most innocent words, uttered in a peculiar manner and tone, The words hero might or might not be contemptuous, accordirig to the manner in which they were spoken: and that is what we must look to. If the words might be contemptuously spoken, that was an ample occasion for the decision of the Boyaf. Court witb which no other Court can meddle. Every Court in such a wee has to form its own judgment. We must always feel most uuwilliiig to interfere in this way:

80 ; but that warn not necessary for the point then hefore 11s. 1 am ready to cousider

For the irisult to the Bench, which the return alleges,

772 CARTJB W I ~ S ~ N ’ S CASE ? Q. B. 1018.

indeed the practice has almost been discorrtinued for a century ; and there is no Judge who would riot be extremely grieved a t finding himself c o I ~ ~ p e ~ ~ e d to exert tbe power, AB to the q u e s t i o ~ whether i t s u ~ c j e r j t ~ y appears for what pardon is to be asked, I agree tha t i t is shewtt to be for warit of respect. The Gourt had ad j i~dge(~ the fact of want of respect, and had a right to order re~)ar~~t ior i ; having called for it, the law left them no choice as to the mode in which they wera to enforce their demand,

[1016] Patteson J, As to the first question, i t did not occur to me, a t the time when I made the remarks 011 the absence of a warrant, that that was to be made a substantive objection, or I woultl riot have expressed niy opinioa before I heard the point argued. Still, n o w tbat it has been argued, I do iiot see the slightest doubt. ~u~~~ v. Lock6 (7 Tautit. 63), shews orily that a justice of the peace cannot commit for cotrtempt w~thoiit a ~varrant. This does riot prove that Courts of co~rpetetit juris- diction cannot do so by oral serttence. As tu the other point, I agree tbat the COII- tempt was a matter in which the Royal Gourt had to decide for itself. It does not depend on the mere words, but partly on the manner, very often on the previous aonduct, as appears to be the case here, the party having been repeatedly warned. Then i t is added that the protest was made iti the most uti~)ecomiz~g tone. That brought i t withiir the article iri the code which the return sets out, W ~ i e t h ~ r the protest waa a contempt in itself, I do not ktrow. Mr. Witsori may Hot have known the facts before the time at which he protested. I do not know the couwe of pro- ceedinge in the Royal Caurt : hut otie would rather have thought that the objection ought to have been takeri earlier. I do not, however, rest my judgment 011 such coesiderations, but on the fact that the mairner was improper, a fact of which the Royal Court had to judge, and of which we cannot judge. Nor do I think it of any importance whether there be any power of appeal, I do riot know what power of appeal tbwe is when we commit for cotitempt. It cannot be made error on the record : uor do I see how our ~ ~ o c e e d ~ ~ t g could be reviewetl. Perhaps the p roceed~ t i~ [1017] of the Royal Gourt cannot be reviewetl : but I do iiot see what that signifies.

~ i l ~ i a m s J. It is quite obvious that corrtempt may be shewn either by language or manner. We can imagine l a ~ i ~ u a ~ e which might be perfttetly proper if uttered iti s temperate ati in er, but might be grossly ~ ~ i p r o p e r if uttered iri a ( ~ i ~ e r e t ~ ~ manne~. No one not present can be a c ~ ~ ~ ~ e t e i i t judge of this. The a $ ~ u ~ e r i t that has beet1 addressed to u s on behalf of Mr. Wilson has proceeded on the ~seiimptiott that the mariner was perfectly respectful. In such a case, I should have been slow to came to the conclu&iot~ that there was a c o i ~ t ~ n ~ p t in puttitig in the reci~aat~on a t the wrong time; for he might have believed that, i f he had not protested a t the partiaular time, he would have been precluded. But, wheri I sea tha t a totre was used which may have amourited to a corrtempt, the ca8e is changed, aiid the rrrgumerrt does not apply to the only as6umption on which the Eoyal Court seems to have proceeded, which certainly was not that of a licetitia sumpta pudet~ter. I will trot assign the prtxise meaning of the word ~ ~ ~ c o n v e r i ~ ~ r t ; but it must at least amouiit to somethirig incort- venient ; and it may well have been something which the Court fourid indecorous.

First, as to the absenee of a warrant. At the assizes no w ~ r r a n t issues for the deteritioii of a party set~tence(~ to imprison~et i t . In this case the sentence appears to be entered ie a book which is in the nature of a record, and to bave beeri properly carried [1018] into effect by the viscount, according to the law of Jersey. Unless Mr. Wilsoti’s cosduct, as d e ~ r ~ b ~ d in the return, could not by possibility be coiitempti~uus, we are bound to respect ths opinion of the Court, who are the beet judges. It seems to me that it might be aontemptuoue, as being highly disrespectful, although the words themselves are not necessarily so.

Wightmati J. I shall address myself to o d y two questions. It seems to me that the oral sentence was sufficietit.

Secondly, as to the contempt.

Prisoner remanded.