main question for the issue of a fresh writ he could not help it, but the affidavit had been prepared to enable a fresh application to be made, which their Lordships would, as a matter of course, at once entertain without notice. As the hour for the return of the writ was now long past he simply moved that the writ be read.
The Attorney-General, in reply, said he had nothing to do with ulterior proceedings; they were not before them. He understood his friend to say that he made his application for the writ upon one ground alone, without reference to the formality or sufficiency of the proceedings, but with reference only to the length of time the men had been detained, and that and all sufficient facts appeared on what was before the court. He did not know how to reconcile that with the fact that by the same motion his learned friend moved for a writ of certiorari. Then with regard to a return in Chambers, he thought there could be no question that what had happened in court was not a command to the terms of the writ. Suppose in England the judge ordered the return to be made at his Chambers in Serjeants' Inn, and instead of producing the man at Chambers in Serjeants' Inn the Superintendent had gone to Westminster Hall, that would not be a return to the writ. To say that by some circumstances the writ had got into the hands of the Registrar and been marked as filed was not at all to establish that any return had been made to the writ, and if it were so he apprehended there was some way of getting out of it when there was a notice of motion filed in court to the effect that that writ was going to be questioned and that a proceeding was pending to quash it. But there had been no return, because the person to whom it was addressed had not taken it to Chambers. As to the endorsement, his friend quite misapprehended the nature of the objection he had endeavoured to put before the Court. The practice had been that the writ should be endorsed by rule of court. That was not a mere form or matter of ornament, but something which disclosed on the face of the writ that it had been issued in term time, and in a proper way, that was, by rule of Court, and not by the mere fiat of a judge. That was the practice which had so far prevailed here; it was the practice which had prevailed in England long before that Court was established, and by the Ordinance that practice was adopted. Then a most extraordinary and audacious proposition had been put before the Court with reference to the Court and the judge. The Interpretation Ordinance simply said that wherever the word "Court" occurred you might substitute "judge," but it did not say everything that could be done by the court might be done by a judge in chambers. It did not mean that wherever by the common law the court could do a certain thing a judge in chambers could do the same thing. Then they were told they could disregard all these additions, and that the names in the margin were simply a memorandum. Let the writ be capable of being executed without that addition and the addition invalidated it. Then there was one point his learned friend had not touched on, the omission of a date. As to the necessity of an affidavit the learned counsel read a passage from the case of Bexson and Welsby, and contended the affidavit was necessary.
The Chief Justice, in giving judgment, said he was of opinion the writ must be set aside on the grounds that the learned Attorney-General had stated; they appeared very cogent ones, and he had very little doubt each one of them was in itself sufficient to induce the court to set aside the writ. With regard to the first objection, that the writ was not endorsed, he thought what the Attorney-General said was very true, that it was absolutely necessary to observe forms in these particulars. It was well observed by Mr. Justice Coleridge that though technicalities were not of much importance, forms were the essence of all liberty. He did not think the irregularity was covered by the return of the papers. How they came into court he did not know; he believed they had been filed, but he did not think that affected the argument of the learned Attorney-General. That the writ was made returnable in Chambers was clearly a mistake: the words were evidently put there for a proceeding in vacation, and by some mistake the fact that the writ was moved for in term was not noticed. That in itself, he thought, was enough to set the writ aside. With regard to the alterations and endorsement of names on the margin of the writ, he must say he thought it was a most improper proceeding, and he was astonished that Mr. Wotton should have induced Mr. Hayward to give up the writ. And the importance of it was that the learned counsel referred to the alteration as a matter of which the court should take notice. He was of opinion that when the writ had been once served on the gaoler that was the only good service, and that ground alone would be sufficient for discharge of the writ. He need not refer to the other points.
Mr. Justice Russell concurred. He said, if for no other reason than to mark the sense of the Court of the enormity of this offence of altering the writ he would concur in the quashing of the writ. That a writ of the court should be altered and amended after having been signed and that it should then be relied on by Mr. Francia on the ground that the alterations were initialed by the Registrar and therefore regular, was something monstrous.
As to the necessity of an affidavit by the men, he thought the material before the Court might have been sufficient on which to grant the habeas corpus. The writ, if good in other respects, would have been good without the alteration of names; if the gaoler was able to identify the men it was clearly his duty to bring them to court. The writ, however, was apparently prepared to bring them before a judge in Chambers, and therefore it was all wrong so far, but so far as the construction went, he thought the cause of detention was shown in the warrant of admission. The matter could be easily cured, but on the irregularities appearing on the face of the writ and other grounds pointed out by the Attorney-General he thought the writ ought to be quashed.
Mr. Francis then moved for the issue of a fresh writ, which was granted and made returnable on Saturday.
SUPREME COURT.
5th November.
CRIMINAL JURISDICTION.
BEFORE THE FULL COURT.
IN THE MATTER OF YEUNG AKAM AND TWELVE OTHERS; RETURN OF WRITS OF HABEAS CORPUS AND CERTIORARI.
Mr. Francis, instructed by Messrs. Brereton and Wotton, appeared for the prisoners, and the Attorney-General (Hon. E. L. O'Malley), instructed by the Crown Solicitor (Mr. E. Sharp) for the Crown.
Mr. Francis said he had to move their Lordships for the discharge of the prisoners on two grounds—first, that the warrant of commitment and the whole of the proceedings from beginning to end were wholly illegal and void and coram non judice; and secondly, assuming that their Lordships were against him on that point, and to hold that the warrant of commitment and proceedings were originally good, on the ground that the detention in prison under the warrant had been unreasonably and unnecessarily prolonged, and had become illegal. Assuming the warrant on the face of it authorised the detention of the prisoners for such reasonable time as was necessary for their delivery over to the Chinese authorities, any detention beyond what was reasonably necessary for the purpose became illegal. He would only point out to their Lordships in support of that view that if the present warrant was good to authorise the detention of the prisoners in gaol for eleven months it was equally good to authorise their detention for eleven years.
The Chief Justice said the language of Ordinance 2 of 1850 authorised detention until the order of the Governor was made.
Mr. Francis said that must mean, as every other statute meant, such reasonable time as might be ordinarily sufficient for the purpose. Their Lordships would see that if those prisoners were to be detained until the Governor's order for their rendition had been issued it was within the power of any Governor to detain them in prison for the whole period of their natural lives, and that certainly could not be the intent and meaning with which the Ordinance was passed. Any reasonable detention, all the circumstances of the case considered, was justifiable under the warrant, but their Lordships, he thought, would take it as a matter of common knowledge that if any reference to England or Peking had been necessary in connection with these prisoners time enough had elapsed for three or four separate communications to England and a dozen to Peking. To show what was the
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main question for the issue of a fresh writ he could not help it, but the affidavit had been pre- pared to enable a fresh application to be måde, ! which their Lordships would, as a matter of course, at once entertain without notice. A the hour for the return of the writ was now long past he simply moved that the writ be read.
The Attorney-General, in reply, said he had nothing to do with alterior proceedings; they were not before them. He nuderstood his friend to say that he made his application for the writ upon one ground alone, without reference to the formality or sufficiency of the proceedings, buf with reference only to the length of time the men had been detained, and that and all sufficient. facts appeared on what was before the court. He did! not know how to reconcile that with the fact that! by the same motion his learned friend moved for a writ of certiorari. Then with regard to a re- turn in Chambers, he thought there could be no question that what had happened in court was not a command to the terms of the writ. Sappose in England the judge ordered the return to be made at his Chatabers in Serjeants' Juu, and in- stead of producing the man at Chambers in Serjeants' Inn the Superintendent had gone to Westminster Hall, that would not be a return to the writ. To say that by some circumstances the writ had got into the hands of the Registrar and been marked as filed was not at all to establish that any return had been made to the writ, and if it were so he apprehended there was some way of getting out of it when there was a uotics of motion filed in court to the effect that that writ was going to be questioned and that a proceeding was pending to quash it. But there had beau no return, besanse the person to whom it was addressed had not taken it to Chambers. As to the endorsement,, his friend quite misapprebended the nature of the objection he bad endeavoured to put before the Court. The practice had been that the writ should be endorsed by rule of court." That was not a more dourish or matter of ornament. bat something which disclosed on the face of the writ that it had been issued in term time, and in a proper way, that was, by rule of Court, and not by the mere fat of a jadge. That waN the practice which had so far prevailed here, it was the practice which had prevailed in Eng- had long before that Court was established, and by the Ordinance that practice was adopted. Then a most extraordinary sad audacious pro- position had been put before the Court with reference to the Court and the judge. The Interpretation Ordinance simply said that where- over the word "Court" occurred you might substitute judge," but it did not say every- thing that could be done by the court might be done by a judge in chambers. It did not mean that wherever by the common law the coart could do a certain thing a judge in chambers could do the same thing. Then they were told they could disregard all these additions, and that the names in the margin were simply a memorandum. Lat the writ be capable of being executed without that addition and the addition in validated it. Then there was one point his learned friend had not touched on, the ouis sion of a date. As to the necessity of an affidavit the learned souusel read a passage from the case of Besson and Welsby, and contended the affids-
vit was necessary.
The Chief Justion, in giving judgment, said he was of opinion the writ must be sat aside on the grounds that the learned Attorney-General had stated; they appeared very eogent ones, and he had very little doubt each one of them was in itself sufficient to induce the court to set aside the writ. With regard to the first objection, that the writ was not endorsed, ho thought what the Attorney-General said was very true, that it was absolutely necessary to observe forms in these particulars. It was well observed by Mr. Justice Coleridge that though technicalities were not of much im. portance, forms were the essence of all liberty. He did not think the irregularity was co- vered by the return of the papers. How they came into court he did not know; he believed they had been filed, but he did not think that affected the argument of the learned Attorney-General. That the writ was made returnable in Chambers was clearly a mistake: the words were evidently put there for a proceed. ing in vacation, and by some mistake the fact that the writ was moved for in term was n t noticed. That in itself, he thought, was enough to set the writ aside. With regard to the alterations and endorsement of names on the margin of the writ, he must say he thought it was a most im-
proper procceding, and he was astonished that Mr. Wotton should have induced Mr. Hayward to give up the writ. And the importance of it was that the learned counsel referred to the altera- tion as a matter of which the court should take notice. He was of opinion that when the writ bad been once served on the gaoler that was the only good service, and that ground alone would be suth- Fe neat not oient for discharge of the writ. refer to the other points.
Mr. Justice Russell concurred. He said, if for no other reason than to mark the sense of the Court of the enormity of this offence of alter- ing the writ he would concur in the quashing of the writ. That writ of the court should be alterad and amended after having been signed and that it should then be relied on by Mr. Francia on the ground that the alterations were initialed by the Registrar and therefore regular, WAS As to the necessity something monstrous.
of an affidavit by the men, he thought the material before the Court might have been sufficient on which to grant the habeus The writ, if good in other respects. corpus. would have been good without the alteration of names; if the gaoler was able to identify the men it was clearly his duty to bring them to soart. The writ, however, was apparently prepared to bring them before a judge in Chambers, and therefore it was all wrong so far, but so far as the caustrnotion weat, he thought the cause of detention was shown in the warrant of admission. The matter could be easily cured, but on the ir regularities appearing on the face of the writ and other grounds pointed out by the Attorney-Gen- oral be thought the writ ought to be quashed,
Mr. Prancis then moved for the issue of a fresh writ, which was granted and made return. able on Saturday.
SUPREME COURT.
5th November.
CRIMINAL JURISDICTION. BEFORE THE FULL COVET.
IN THE MATTER OF YEUNG AKAM AND TWELVE OTHERS; RETURN OF WAITS OF HABEAS CORPUS AND CERTIORARI.
Mr. Francis, instructed by Messrs. Brereton and Wotton, appeared for the prisoners, and the Attorney-General (Hon. E. L. O'Malley), in- structed by the Crown Solicitor (Mr. E. Sharp) for the Crown.
Mr. Francis said he bad to move their Lord- ships for the discharge of the prisoners on two gronods-first, that the warrant of comunitment and the whole of the proceedings from beginning to and were wholly illegal and void and corum non judice; sud secondly, assuming that their Lordships were against him on that point, and to hold that the warrant of commitment and pro- seedings were originally good. on the ground that the detention in prison under the warrant had been unreasonably and annecessarily pro- longed, and had become illegal. Assuming the warrant on the face of it authorised the daten- tion of the prisoners for such reasonable time as was necessary for their delivery over to the Chi- nese authorities, any detention beyond what was reasonably necessary for the purpose became illegal. He would only point out to their Lord- ships in support of that view that if the present warrant was good to authorivs the detention of the prisoners in gaol for eleven months it was equally good to authorise their detention for eleven years.
The Chief Justice said the language of Ordia- auce 2 of 1850 authorised detention until the order of the Governor was made.
Mr. Francis said that mast mean, as every other statute meant, such reasonable time as might be ordinarily sufficient for the purpose. i Their Lordships would see that if those prisoners were to be detained autil the Governor's order ¡ for their rendition had been issued it was within the power of any Governor to detain them in prison for the whole period of their natural lives, and that certainly could not be the intent and meaning with which the Ordinance was passed. Any reasonable detention, all the circumstances of the oase considered. was justifiable under the warrant, but their Lordships, he thought, would take it as a matter of common know- logo that if any reference to England or Peking had beou necessary in connection with these prisoners time enough had elapsed for three or four separate communications to England and a dozen to "Peking. To show what was the
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