The object of the Habeas Corpus Acts was this, that there should be some provision of law shown, as distinguished from mere will, under which they could be detained. Now here was a distinct provision of law which provided for the detention of the prisoners, and it did not simply say they should be detained for a particular purpose, but it went on to give the Governor the largest powers of dealing with them when so detained. Their Lordships would understand the necessity, under the circumstances, of giving such large powers. He did not say there might not be a great deal to be said in favour of limiting the period during which such disposition of the prisoners by the Governor should be allowed. As between ourselves and other European powers, that limit was laid down in the Extradition Acts as two months, and in the case of Waco, it happened to be one month, but in the case of dealing under the treaty to which Ordinance 2 of 1850 applied, he thought their Lordships would see it might well be necessary that larger powers should be given to the Executive. He was reminded that the treaty to which this Ordinance referred had been abrogated and that we were now under the Tientsin Treaty, but he might remind the court that the scope of the Ordinance as applied to this matter had been well discussed and decided. It might well be necessary to give larger powers in dealing with this class of cases than was necessary or should be allowed in ordinary extradition cases between England and other countries. Of course, it was a power which ought to be used, and he apprehended they must take it that it was used with discretion, and that unnecessary delays were not incurred. He did not understand that the court would desire or require, for the purposes of its decision, any statement or affidavit to the effect that this had, in the contemplation of the Executive, been a reasonable or necessary delay. He took it that was to be presumed, that whether reasonable or not, the act of the Executive was one which was guardedly excluded by the Ordinance from the consideration of the court. The Ordinance left the largest possible discretion as to the disposition of the prisoners in the hands of the Governor; it did not say "you may detain them only for the purpose of handing them over," it did not say that handing over should be the ultimate end, but it said the gaoler shall have power to detain them until the Governor orders him either to transmit them to the Chinese authorities or to discharge them. He did not think it was necessary to say more on the question of time than that. If their Lordships should hold the warrant was good, the application must be dismissed.
Mr. Justice Russell said that here were these men detained for eleven months, and as Mr. Francis asked, if they could be detained for eleven months, why not for eleven years, and where then was the liberty of the subject?
The Attorney-General said that with regard to that, he quite admitted the serious nature of the dilemma, but he submitted it was to be borne in mind that it was not in this case, as in other cases, so strictly a question of the liberty of the subject. Mr. Justice Russell—Why not? A man is entitled to be tried. If this were in the jurisdiction of Hongkong, he would be brought up at the first Criminal Sessions.
The Chief Justice—Must we not interpret the Ordinance by the Habeas Corpus Act? Therefore, reasonableness must arise.
The Attorney-General said that other provisions of the law provided that when a man was committed to prison, he must be tried. That was not the object of the Habeas Corpus Act. The position of the prisoners was not like that of a person who had been arbitrarily arrested.
The Chief Justice—But they have not been committed on final conviction.
The Attorney-General said it was quite true the prisoners had not been committed in execution, but they must look to the position. These men were not in the same position as persons who had merely been committed by a magistrate in England pending their trial. There, a great deal was left to the magistrate in the exercise of his discretion, and he might fairly take into account the fact that the prisoner would come before another tribunal where the question of his guilt would be sifted, but here, though the magistrate was not required to convict, the scope of his inquiry was one which required him to find a strong prima facie case established before the man was handed over. There was no second inquiry. Therefore, the case of the prisoners was not like that of persons committed for trial in England, where a man is presumed to be innocent until he is proved guilty. Here, the presumption must be that they were guilty. It would not be reasonable to hand them over unless there was a presumption they were guilty. Looking to the terms of the treaty, that would be seen to be the presumption. Therefore, the alternative here was not an alternative between the liberation of these men and their detention in gaol; it was merely between the detention of them and the handing of them over in accordance with the terms of the treaty. However long the detention might be, the presumption was that the only alternative, or the most reasonable alternative, to their detention was the handing of them over to the Chinese authorities. Therefore, there was a cause of detention implied in that state of things.
Mr. Justice Russell—Is not the clear presumption of the Ordinance that they must be handed over within a reasonable time, say two months? If the Governor is a court of review, if he comes to the conclusion that he won't hand them over, then the presumption is that they will be discharged, not that they will be kept in prison from month to month. And the question still is, you have kept them for eleven months, how long are you going to keep them?
The Attorney-General said that looking at it as a matter of common sense, it came to this. The British Government entered into a treaty with China, and in order to enable the Government to carry out its obligations under that treaty, its officers must be armed with large powers, very large powers. All that was done by this statute. If these powers were to fail the officer, if he did not get them, then the Government could not carry out its obligations. Therefore, were large powers given, and he presumed that was the intention of the Ordinance, large enough to cover the exercise of any reasonable discretion in its officers who had to carry out the treaty. The object of the Ordinance was to arm them with sufficient powers to discharge the treaty obligations of the Government. Well, now, they were surely the best judges, and the only judges, of what was required of them in order to enable them either to hand over the prisoners or refuse to hand them over. That was a question he presumed the court would not go into. The Executive was armed with powers to discharge its duty under the treaty, and the Executive must be the judge of its own action in that matter. Therefore, it was that the Ordinance gave so large a power, a power not restricted, as in the English Acts, by limiting the time to two months; it left the time open, trusting no doubt those entrusted with the power would exercise it with discretion. He thought it was a fair argument to put that there was some difference between the exercise of this power by the Executive here, from which there was an appeal, and by the supreme Executive, from which there was no appeal. In the latter case, unless the law could reach the Crown, there was no provision of law to protect you, but here the Executive is—
Mr. Justice Russell—In other words, the Executive here is not the Crown.
The Attorney-General—Yes, it is.
Mr. Justice Russell—And the Governor here has more power than the Crown from which he derives its power?
The Attorney-General—No; I don't say that, but a power of a more arbitrary character. I should say the Crown can exercise powers in Crown colonies it may exercise elsewhere, but I say, looking at it from a common-sense point of view, there is reason here for entrusting to the Executive much more arbitrary powers than at home. You have to regard local circumstances and the nature of the authorities with whom you are dealing. The learned Attorney-General added that if any statement explanatory of the delay and showing that it was reasonable should be necessary in the case, he would endeavour, if the court would give the necessary adjournment for the purpose, to put such a statement before the court.
The Chief Justice said they would consider that point.
Mr. Francis said he would not have the least objection to that, provided the statement were made by affidavit and that the persons making those affidavits were submitted to cross-examination. The learned Attorney-General had referred to the treaty. So far as the treaty had any effect or operation in connection with this argument, he would simply call attention to this. The obligation of the English Government to deliver up offenders under that treaty was solely upon proof of crime and upon demand made by the officers of the Chinese Government; they were under no obligation to deliver up offenders without such proof and demand.
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