424] Parker and others,' did not follow the *practice adopted in the case of Rex v. Marks.' They declined to decide the questions involving the validity of the express commitment which it was claimed, justified the detention of the prisoners and refused to discharge them because the return disclosed a crime confessed by them, for which they ought to be tried if they were not already legally convicted and in the proper custody under the

sentence.

The prisoners had been indicted in Lower Canada for treason, and under a statute of that province had applied for and received pardon upon the condition of transportation to Van Dieman's Land for fourteen years. In the execution of this condition they were taken to Liverpool, and whilst means were preparing there to transport them to Van Dieman's Land they were delivered to the jailor of the city for safe-keeping.

The court having stated the substance of the return, proceeded:

"This is the substance of the return, against which many ingenious objections have been urged; the principal of which seem to be, that the Legislature of Upper Canada had no authority to make any such law; that if they had, it could be binding only within the precincts of that province; that it could communicate no authority to any person out of that province, and therefore could give none to the jailor of Liverpool; that even if it could have that effect, the pardon granted under that law being conditional, it was not competent to the prisoner to accept a pardon, whereby he submitted himself to imprisonment or transportation; or that if it were competent to him to accept a pardon with such a condition, he has still a right to retract his consent, and 425] *to be set free from the obligation imposed upon him by the condition.

"All these topics have been elaborately argued on both sides, and have received due attention from the 23 East, 157.

15 M. & W. 31.

court; but in the view which we take of the case, we do not think it necessary to pronounce any opinion upon them. If the condition upon which alone the pardon was granted be void, the pardon must also be void. If the condition were lawful, but the prisoner did not assent to it, nor submit to be transported, he cannot have the benefit of the pardon; or, if having assented to it, his assent be revocable, we must consider him to have retracted it by this application to be set at liberty, in which case he is equally unable to avail himself of the pardon. Looking then at the return, the position of the prisoner appears to be this: that he has been indicted for high treason committed in Canada against Her Majesty; that he has confessed himself guilty of that treason; that he is liable to be tried for it in England; that he cannot plead the pardon which he has renounced; and that he is now in the custody of the jailor of Liverpool, under such circumstances as would justify any subject of the Crown of England in taking and detaining him in custody, until he be dealt with according to law. Any subject who held him in custody with a knowledge of the circumstances, would be guilty of a crime in aiding and assisting his escape, if he be permitted to go at large without lawful authority. How then can we order the jailor of Liverpool, or any other person who has him in custody, with knowledge of these circumstances, to let him go at large?

"If the prisoner cannot be lawfully transported under his present circumstances, it is to be presumed that the government, upon being so certified, will take proper measures for prosecuting him for the crime of treason in England. For these reasons we are of opinion that the prisoner must be remanded."

*In pondering these reasons the prisoner may be [426 supposed to have asked two questions, which he could not very readily answer.

1st. How was the government to be certified that he could not "lawfully be transported under his present

circumstances," when the court expressly refused to decide that question.

2d. How long was he to be detained in prison under the presumption that the government would one day take proper measures, for prosecuting him?

The Court of Queen's Bench had just had the same questions under consideration and evaded none of them. They also remanded the prisoners because they held them to be legally detained under the commitment, &c., as set forth in the return.'

But if the court granting the habeas corpus, does not possess the jurisdiction of a committing magistrate over the alleged offence, it must discharge the prisoner if the commitment be illegal. As where the power to arrest and deliver up fugitives from justice from France was by the Convention Act of 6 and 7 Vic., c. 75, vested in certain officers, the Court of Queen's Bench in Besset's case, after holding the commitment insufficient, refused to act upon the proofs and remand the prisoner on their own authority, on the ground that they had "no authority of the kind in such a case.'

427]

*SECTION XII.

WARRANT PERFECT, PRISONERS NOT ALWAYS REMAnded.

If the warrant be legally sufficient in all respects, the prisoner should ordinarily be remanded' or in a proper case let to bail. Yet this is not an invariable rule.

1 Leonard Watson's case, 6 Ad. & Ellis, 731; 36 Eng. C. L. 384. 2 Ex parte Besset, 51 Eng. C. L. 480.

3 In New York where a person committed to jail under any process, is brought up on a writ of habeas corpus, before a judge who after an examination orders and adjudges "that the prisoner is not entitled to a discharge, it is his duty to remand the prisoner to the custody or place him under the restraint from which he was taken;" and he has no authority to declare that he is entitled to the liberties of the jail, nor has he power to remand him unconditionally. People v. Cowles, 4 Keyes, 46.

In England it is said that "even though the commitment be regular the court will examine the *proceed- [428 ings, and if the evidence appear altogether insufficient will admit the prisoner to bail; for the court will rather look to the depositions which contain the evidence than to the commitment, in which the justice may have come to a false conclusion."

In the United States the inquiry has not been always limited to the commitment. In Ex parte Bollman,' it was moved to discharge the prisoners on the ground of illegality in the commitment. But Chief Justice Marshall "stated the clear opinion of the court to be, that it was unimportant whether the commitment was regular or irregular in point of form. The court having gone into an examination of the evidence on which the commitment was grounded, they will proceed to do that which the court below ought to have done."

993

At common law, however, the court would look only to the depositions, taken before the committing magistrate, for their direction, and where a felony was positively charged refused to bail, though an alibi was offered to be proved by the "affidavits of eight credible persons.' Nor would the court at all admit of extrinsic evidence, so that they refused to examine whether a man brought up before them had been previously acquitted of a charge precisely similar. So where the defendant was charged with receiving stolen. goods, knowing that they were stolen, his affidavit that he did not know they were stolen was rejected.' This practice, in the absence of any statutory regulation, has been sometimes followed in the United States.

*In the case of The State v. Asselin,' the defen- [429 dant had been committed under a warrant for "feloniously carrying off certain negroes," and being brought up on habeas corpus his counsel moved for his dis

11 Chitty Cr. Law, 129.

24 Cranch, 75.

Rex v. Greenwood, 2 Str. 1138.

4 1 Ch. Cr. L. 130.

5 Rex v. Parnham, Cunningham Rep. 96.

6 T. U. P. Charl. 184.

charge (upon exhibition of evidence written and parol), on the ground that no felony had been committed. The judge admitted the evidence with reluctance, and afterwards held that it was inadmissible for the prisoner, on return to the habeas corpus, to go into a full defence of his case.

"I am tied down," said the judge, "by precedents when they do not militate with the Constitution or the law. It is the glory of our people that their rights are dependent upon fixed principles, and those fixed principles are contained in the fundamental provisions of the Constitution, in the adjudications of our courts, in the precedents established by our ancestors. The imperial legibus solutus is established so soon as a judge sets up his opinion against an uniform current of authorities which have been stamped with the seal of wisdom and acquiesced in by the people." Referring to the cases of King v. Horner,' and Rex v. Greenwood,' he concludes "that no evidence, extraneous to the depositions and informations taken by the magistrate, ought to be admitted to controvert the facts contained in those depositions or the charge exhibited in the warrant of commitment." He adds also, "These cases are fortified, too, by another principle of law, that no one can, in any case, controvert the truth of the return to a habeas corpus or plead or suggest any matter repugnant to it."

1 Leach Cr. L. 226.

? 2 Str. 1138.