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jurisdiction as the Courts of Common Law and the Court of Chancery had, which is practically the same as saying that it has the jurisdiction which the King's Courts at Westminster had.
Then, of the archaic terms to which reference was made, essoin, wager of law and imparlance have been abolished, whilst protection, privilege, and what I take to be a defence of nolle prosequi still exist, and appear to be as available here as in England.
THE HONGKONG WEEKLY PRESS AND | objection dopends upon whether the order was | a warrant of commitment and detainer or not, within section 5. If it was such a warrant, the objection cannot prevail; if it was not, the objection is valid.
But whether or not the said order was a warrant of commitment and detainer within the meaning of section 5 of the Act turns on the answer to the question whether or not the plaintiff was detained for a criminal or supposed | criminal matter, a question which will be con sidered lower down.
The Court was referred to the case of Attorney-General' r. Stewart, 2 Mer. 143, by which it was decided that the Statute of Mori. It was objected, sixthly, that the plaintiff had main, 9 Geo. 2. Cap. 36, did not extend to the not been damnified by the refusal of the defen- island of Grenada in the West Iudies, on the dant to deliver a copy of the order of banishment. ground that the Statute was not a general Now, if plaintiff was entitled to have a copy regulation of property and that the Court of of that order delivered to him, he was assuredly Chancery in Grenada had no such establish- injured, in the eyes of the law, by the refusal ment as an enrolment office attached to to deliver the copy demanded. In such case he it, DS was attached to the Con t f had heen hindered of his right and had thus Chancery of England. It was held, therefor, suffered an injuria which imported damnum. that the principle of the Act and the political | (See Ashby r. White, Lord Raymond, 938 ) object of the Act precluded its application to Before passing on to consider the second Grenada, where, moreover, there was no ma objection advanced by the defence and reserved chinery for carrying it out. Further, in Jex for consideration last of all, I will examine r. McKinney, L. R. 14 A. C. at p. 82, Lord into the construction which has been placed Hobhouse said that every judge who had address-upon the the Act of 31 Car. 2 c. 2 and into ed his mind to the question had decided that the Statute 9 Geo. 2 c. 36 was framed for reasons affecting the land and society of England, and not for reasons applying to a new Colony,
Iam of opinion that neither the general objects of the Habeas Corpus Act nor the wording of section 5, prevent that section from having effect in this Colony, because the principle underlying the Act, viz., the preservation of the liberty of the subject, is of universal applicability, and the machinery for giving effect to section 5 exists in this Colony. It appears to me to be plain that though the Act was framed for reasons affecting the liberty of the subject in England, its objects are equally applicable to this Colony as to England.
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the scope of that Act. As to the construction of the Act. it is both a remedial and a penal
measure.
In Huntley e. Luscombe 2 B. and P. at p. 535. Lord Alvanley, C.J., said "I assent to the argument which has been advanced in favour of the plaintiff. so far as it goes to state that the Habeas Corpus Act is a remedial law; and that the judges of every Court are bound to enforce its provisions according to their spirit, in such a manner as most effectually to relieve the subject from illegal imprisonment. But though it be a remedial law so far as it respects those persons for whose protection it was framed, it is grievous in its penalties with respect to those persons who neglect the duties thereby imposed upon them. It is remedial quoad some persons, but it is penalquoad others." Heath, J., said " In the first place, there- fore, though I admit that this is a remedial statute.
yet I consider it as ponal with respect to this defondant" (who was a gaoler).
Rooke, J., said—“ It appears to me therefore that guolers are entitled to all the protection which the law can afford theul consistently with the liberty of the subject,"
The third ground of defence was that no penalty could he recovered from the defendant hocause he had no mens reu. I will not stop to consider whether or not mens rea is necessary in a person who is shed for a penalty before that penalty can be recovered. For it seems to me that, presuming that he ought to have deli- copy of the order of banishment when it was demanded, the deliberate refusal of the defendant to deliver such copy pro. cludes any defence of no HORS rea being successful. Ho clearly had a mene rea, for his conduct was wilful, and as he refused to deliver the copy he can be saved from the con.King's subjects sequences thereof only because some condition precedent to the demand had not been strictly complied with or satisfied. Knowledge of the fact that the plaintiff was a British subject and of the purpose for which the copy was demanded was not, in my judgment, necessary in order to affect the defendant with mens rea,
The fourth objection raised by Mr. Pollock was that the demand for the copy had not been made, as required by the fifth section-" By the prisoner or person in his behalf.“
The paraphrase which he put upon the expression "person in his behalf" was "a person with the authority of the prisoner."
If the Court can accept that paraphrase, then this fourth objection holds good, because the plaintiff did not personally make a demaud nor❘ did he directly authorise Mr. Mounsey, who made the demand, to take such a step.
The construction advanced for the defence is, in my opinion, too narrow, and I prefer to interpret the expression as meaning "pereon who acts for such prisoner's benefit or in the interests of such prisoner.”
Otherwise, an ignorant or indigent or sick prisoner might lose the benefit of section 5 in this respect, if any friend or other person were not competent to make the demand on bis behalf unless by his instructious.
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Next as to the scope of the Act or the matters to which the Act relates.
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[September 14, 1901.
Act, by which it is provided that no person in eustody of any officer for any criminal or supposed criminal matter shall be removed from such custody into the onstony of any other offoer except in certain authorised modes, and that any person who signs a warrant for such removal contrary to the Act shall incur the pains and forfeitures already mentioned in the Act, vix, in the fifth section of the Act.
The first count of the plaintiff Cobbett's declaration stated that he was a prisoner and in the custody of the defendant Slowman at a lock- up for a certain criminal matter, to wit, a contempt of Court.
Thus, the very point now under consideration was prominently before the courts of Exchequer and Exchequer Chamber, viz., the interpreta. tion of the phrase "criminal or supposed crimi. nal matter," and was before that Court on an action for the recovery of a penalty. It was thus raised in exactly the same manner as the question is raised in the present action.
Pollock, C.B., said "The words 'supposed criminal matter,' I apprehend, are intonded to meet the case where a charge is instituted against a person, which may or may not turn out in the event to be a criminal charge; as, for example, where the facts adduced in support of the charge are insufficient to prove it, or where it may fail in point of law. But I take it that the whole scope of this Act of Parlia- ment has reference to criminal charges upon which the party may be broùght to trial.”
Parke, B., said -- "I agree with what has been said by the Lord Chief Baron in this case." He also stated, concerning the Act, that it only related to persons in custody for offences triable in the Court of the then Queen's Bench, or at the Assizes or Sessions, or in some other Court where the offence was properly cognis able. He added—" I:have no doubt that the Act does not apply to any case where the party is in custody for an offence for which he is not by trial amenable by law."
The plaintiff took the case to the Court of Exchequer Chamber, where the judgment of eight judges was delivered by Maule, J., affirm- ing the judgment of the Court of Exchequer.
In the course of that judgment, which is reported at pp. 633-6 4 of 9 Exchequer Beports, Maule, J., said—" There seems no reason why a different construction should be put on the words * criminal or supposed criminal matter' in that section (the ninth), from that which they bear in any other. We (ie., eight judges) entertain no doubt that they apply only to cases where a person is in prison upon some charge for which he is liable to be tried.”
In the preamble of the Act occur the words — committed for criminal or supposed criminal matters.' In section 2 are the words" All persons imprisoned for any such criminal or supposed criminal matters"; In addition to the opinion of the ten judges and in section 9 is the following-"Any person of the Court of Exchequer Chamber and or persons, subjects of this realm,
of the Court of Exchequer Chamber, there is mitted to any prison or in custody of any officer | the expression of the opinion of Patteson, J.. or officers whatsover, for any criminal or sup- | who in Carus Wilson's case, 7 A and E, N. 8. at posed criminal matter."
p. 1,010, said—” That Statute, vix., the 31 Car. 2 c. 2, applies, I think, only when the party has been committed for trial, or has been tried, the obvious meaning of the learned judge being, where the party has been committed for trial and is in custody awaiting trial, or has been tried and is undergoing a sentence of imprisonment.
In the preamble of 56 Geo. 3 c. 100 it is recited as follows—"Whereas the provisions made by an Act passed in England in the thirty- first year of the reign of King Charles the Second intituled, etc., etc., only extend to cases of commitment or detainer for criminal or sup- posed criminal matter."
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In the case of Rex r. Hobhouse, 2 Chitty's Reports, at p. 211, the Court said the Habeas Corpas Act clearly does not apply to a case of this description, because it is confined wholly to the cases of commitment for crime, with the
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exception of felony, or the suspicion thereof." The words For the suspicion thereof” are an interpretation of the phrase "supposed criminal matter," which occurs in the Act.
In the case of Cobbett r. Slowman 9 Each. Reports p. 63, Maule. J., said-It appears to us very clear, from the whole scope of the Act 31 Car. 2 e. 2, that its principal object was to expedite the trial of persons in custody under some criminal charge.”
Moreover, I think that the plaintiff must be taken to have ratified the contract which his Having adverted to the construction and mother, without his authority so far as is knowu, scope of the Act, I will consider the mean. made with Mr. Monnsey on his behalf when sho|ing of the expression "criminal or supposed instructed Mr. Mounsey to take all necessary steps in the matter.
criminal matter.”
The case of Cobbett v. Slowman, reported in The fifth objection for the defence was that 4 Exchequer Reports, 747, and on appeal by no demand had been made for a copy of the way of writ of error, in 9 Exchequer Reports, | warrant of detainer, but that the demand was | 21, is instructive on this point. made for a copy of the order of banishment It was an notion of debt for £300 for penalties only. This no doubt correctly represents the under the Statute 31 Cur. 2 e. 2, and was terms of the demand; but the force of the" brought under the ninth section of that
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I proceed now to apply these expressions of opinion to the matters for which the plaintiff was in custody under the order of banishment issued by the Governor in Council.
The statement in the order of banishment of the grounds upon which the order was made runs as follows ;---
“That the mid Leung Kun-yau, has been onco convicted in the Police Court of this Colony for attempting larceny from the person and vagrancy, and that, in the opinion of the Governor in Council, he is dangerous to the peace and good order of the Colony."
Bearing in mind that the plaintiff had served his term of imprisonment nader the sentence passerl in the Police Court when he was arrested under the order of banishment, I nak—Was he - in custody under the order of banishment upon some charge for which he was Hablo to be tried?. Cl-arly not. He was not liable to be tried i second time either for the attempted larosny from the person or for the specific not of vagrancy, nor did the fact that he was dan- vus to the poses and good order of the Colony constitute a charge for which he was Hable to be tried