MOVING FOR LEAVE

Mr. Serjeant Onslow rose and said:

Mr. Speaker; The motion which I now rise to make, has for its object, the improvement of the remedy by writ of Habeas Corpus in those cases of illegal imprisonment, which are not affected by the statute of the 31st Car. 2d, which is entitled "An Act for the better securing the liberty of the subject," but which is more generally known by the name of the Habeas Corpus Act. That Act, Sir, is confined to cases of commitment or detainer for criminal or supposed criminal matter, and leaves the remedy for all other cases of illegal restraint in the same inadequate state as it was previous to the passing of that Act: writs of Habeas Corpus originally only issued out of the courts of Chancery and King's-bench, except on behalf of persons entitled to privilege in the other courts; but the statute 16th Car. 1st, which was made expressly to regulate the proceedings of the privy council, and to abolish the Starchamber, having mentioned the court of Common Pleas, as co-ordinate with the court of King's-bench, with regard to such writs, that Court has ever since issued writs of Habeas Corpus, in all cases of illegal imprisonment. The real benefits received in consequence of the statute 31st Car. 2d, and the interest excited by the great struggles that took place previous to its passing, have most likely occasioned a generally received, though most erroneous opinion, to prevail, that the remedy is now complete for preventing unjust and illegal confinement. My object, Sir, is to extend the principle of that Act, to all the omitted cases; I wish to give to all the courts in Westminster-hall in term time, and to all the judges of them, in vacation, the power to issue and enforce obedience to writs of Habeas Corpus in all cases of illegal imprisonment, and, although the return to the writ may show a legal cause of im

prisonment, to give power to inquire inte the truth of the facts stated in such return, and to do justice according to the result of such examination. The judges of the court of King's-bench have long exercised a power of issuing writs in such cases in vacation, but have no power to punish, in vacation, disobedience to their writ; indeed, that power is even omitted in the statute 31st Car. 2d.-The court of Chancery has been stated by very great authorities to possess the power of issuing such writs in vacation; but lord chancellor Nottingham, in the well-known case of Jenks,' refused to issue the writ in vacation; no precedent, notwithstanding the most diligent researches, being found to warrant the application. In the cases of infants and of lunatics the lord chancellor does interfere for their protection in vacation, but that is not by means of the writ of Habeas Corpus at common law, but in consequence of the especial power delegated to him in those cases.

But the defect I chiefly wish to remedy, is the want of power to examine into the truth of facts stated in the return to a writ of Habeas Corpus. Can it, Sir, be endured that a return valid in law, though utterly unfounded in fact, shall be conclusive as to the discharge of the prisoner? An action certainly lies for a false return; an action against the person in whose power the injured party is detained, and who can in the great majority of cases, where the writ is sued out, send him to distant parts of the world, and into the most pestilential climates! Sir, unless a speedy remedy is given in such cases, the injured party is absolutely remediless; and in no case can a compensation in money, be an adequate compensation for the loss of liberty. Sir, in the year 1758, a bill to remedy these evils was introduced into this House by sir John Cust, who afterwards filled that chair, the dignity of which you so eminently support; it passed this

House after very acrimonious debates, but was rejected, and I think properly rejected in the House of Lords; I think it was properly rejected because it went far beyond the mischiefs complained of, and instead of enlarging the powers of the judges, tended to degrade their judicial functions: and, Sir, it was not rejected until after very strong debates; and so much violence was produced by the discussion, that two noblemen, who at different periods of their political lives were most closely connected (lord Temple and lord Lyttleton), were required by the House to declare upon their honour," that they would not pursue any further resentment upon the occasion of the words that had passed between them."* It is mentioned, Sir, by a cotemporary writer, as a circumstance almost miraculous, that lord Mansfield spoke for near two hours and a half in the course of one of the debates; a circumstance you, Sir, would now think by no means extraordinary. Whilst the Bill was pending in the House of Lords, ten questions were, on the motion of lord Hardwicke, ordered to be put to the judges; on their application, they were excused answering one of the questions; but the remainder were answered by ten of the judges: lord Mansfield being a peer, of course did not answer as a judge, and Mr. Justice Foster was prevented by a domestic misfortune from attending. The only question to which I find it necessary to draw the attention of the House, is the following: "Whether, in all cases whatsoever, the judges are so bound by the facts set forth in the return to the writ of Habeas Corpus, that they cannot discharge the person brought up before them, although it should appear most manifestly to the judges, by the clearest and most undoubted proof, that such return is false in fact, and that the person so brought up is restrained of his liberty by the most unwarrantable means, and in direct violation of law and justice "-By the answers of the judges to that question it clearly appears, that although the judges

did not conceive themselves precluded from discharging the person brought up before them, if it should appear manifestly to them, by the clearest and most undoubted proof, such as a verdict of a jury or judgment on demurrer, or otherwise, in an action for a false return, that such return is false in fact, yet that they were of my opinion, that in case the facts returned to a writ of Habeas Corpus shewed a sufficient ground in point of law for such restraint, that the court or judge before whom such writ was returnable, could not try the facts contained in such return, by affidavits. Although, Sir, Mr. Justice Foster was unable to attend and deliver his opinion, it appears, from the history of his life, written by his nephew, Mr. Dodson, that he took a very strong interest in the question; he seems particularly to have felt the inadequacy of the law to afford protection, where a return is made good in law, but false as to the facts contained in it. In his correspondence with lord chief baron Parker (which is included in his life), he dwells much on that defect, and alluding to the remedy by action for a false return, he observes, "An inadequate ineffectual remedy is no remedy;" the lord chief baron in answer says: "As you agree to the general principle that the return to a writ of Habeas Corpus cannot be contradicted in that proceeding, so I must confess, that your reasons are very strong to shew the present to be an adequate remedy; but I am afraid, that the parliament only can apply a more effectual remedy." Sir, although lord Hardwicke opposed the Bill I have mentioned, yet so strongly was he impressed with the conviction, that the law ought not to remain as it was, that he moved that the judges do prepare a Bill to extend the power of granting writs of Habeas Corpus ad subjiciendum in vacation time in cases not within the statute 31st Car. 2nd, chap. 2nd, to all the judges of his Majesty's courts of Westminster, and to provide for the issuing of process in vacation time to compel obedience to such writs, and that in preparing such Bill the judges do take into consideration, whether in any and what cases, it may be proper to make provision, that the truth of the facts contained in the return to a writ of Habeas Corpus may be controverted by affidavits or traverse, and so far as it shall appear to be proper, that clauses be inserted for that purpose: and the House of Lords made such order in obe

England be what England had hitherto been? He must maintain that, under such a dependence on foreign nations for our subsistence, the solid fabric of our power would be shaken to its very foundation. It had been said that this danger was visionary and speculative, that we had experienced formidable confederacies, but were always able to procure supplies of grain. It was true that we had been the object of such hostile combinations, but it was to be recollected that we had met them with an improved and largely increasing, and not a decayed and languishing agriculture. There was a wide difference between the condition of a country which was approaching to the point of its own supply, and that of one which was receding from it. In some of the years of deficiency in the present century, in 1812, for instance, the balance of importation had been very small; and if in that year we had been at a great distance from the point of our own supply, instead of being as near it as we were, we should have had to have endured a dearness approaching to scarcity.

But when gentlemen talked of speculation, he wished the House to examine whether there was not some speculation on the side of the advocates of free importation. In the first place, he must repeat, he thought the great cheapness, which was promised, very problematical, and next he considered the expected advance of the manufactures as very dubious. Before the manufactures could add one particle of wealth to the country, they would have heavy losses to repair. They would have to make good the loss sustained in agricultural produce, and they would have to supply the diminution in the consumption of this island as well as in that of Ireland. Their progress, too, must be in some degree impeded by the distress of the landed property, which, including the various interests immediately connected with it, comprised no small portion of the national wealth. Such a system could not be adopted without much public misfortune. The reduction of the gentry of the country would be a great public misfortune-a heavy calamity to the people. It was not true that the landed proprietors had been rolling in wealth-they had suffered their portion of privation. He begged to be understood as intending no invidious contrasts. To the immortal honour and renown of the country, there was not one

class or description of persons in the community from the highest to the lowest which had not gloriously sustained its station, and had not evinced its due share of that patient and illustrious fortitude which had carried us through the painful and protracted struggle from which we had been just delivered. He meant no more than that the landed interest had borne its share. The impoverishment of the tenantry of the country was, in his contemplation, to be reckoned as a great public misfortune. The diminution of the inland trade was a great public misfortune. The state of the peasantry would be a heavy public calamity. What was to become of that valuable part of the community? All writers on political economy admitted, that nothing was more difficult than the change of men from one employment to another. The agricultural labourers would not be instantly absorbed by the manufactures; a man was not easily transferred from the plough to the loom. The peasant was not readily converted into an expert and skilful manufacturer. There would be then an interval, in which this most moral (as it had been justly described to be) part of the community was to be consigned to indigence and idleness.

Thus, as it appeared to him, we could not at present, at least, depart from the system of policy we had hitherto pursued, without bringing on the state much public calamity, and imposing great and unmixed suffering on a considerable part of that portion of our population which was now employed in raising the national subsistence. He nevertheless must repeat, that the subject was full of difficulties; and it was not unnatural that those, who most agreed on other topics, should differ in their sentiments on this. For his own part, after the most mature and dispassionate consideration, it was his clear conviction, that we could not permit our agriculture to decline without tearing up the most sure and stable anchor of the power and independence of the country.

Sir James Shaw wished to repel, in the strongest manner, the charge made against his constituents and himself, of encouraging and exciting popular clamour and disaffection. The whole tenour of his life disproved this accusation. It had been said, that he had been guilty of misrepresentation in stating that if the present measure were allowed to pass, the loaf would rise to 16d. He held in his hand