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 is sued 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 into 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 pri soner? 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

* For an interesting account, by Dr. Birch, of the Debate in the House of Lords, May 9, 1758, on this Bill; and also for a Paper, intituled, "Heads of Objections to the Bill for extending the Habeas Corpus Act," copied from the MS. notes of lord chancellor Hardwicke, see New Parliamentary History, vol. 15, pp. 897, 923. See, too, p. 871 of the same volume,

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 contro verted 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

attended the task he had to perform. These difficulties and embarrassments were now so far from being diminished that they were rather aggravated, by the amount of the burthens which it was now

his duty to propose. It was painful to him to be under the necessity in the present year, the commencing year of peace, to be compelled to impose fresh taxes upon the people of Ireland, at a time when parliament had been enabled to relieve Great Britain from similar burthens. If the difficulty which he had to encounter was, in one point of view, increased by the nature of the system which had been adopted with regard to the finances of Ireland, and by her not being called upon to bear various taxes which were imposed upon Great Britain, on the other hand, a certain degree of benefit was derived from that remission of burthens which she would otherwise have been called upon to bear, because she was by that exemption enabled to support those additional burthens which it now became necessary to impose.

Having made these preliminary observations he should now proceed to state to the committee the amount of the supply, and of the ways and means by which he meant to meet it. The first article was the deficiency of contribution of 1813, amounting to 4,466,4711. The next was the estimated quota of Ireland for this year, amounting to 8,782,6891. The interest of the present debt, with the sinking fund, was 5,546,2997, making altogether a total of 18,795,4551. He would next submit to the committee the state of the consolidated fund. The balance in the Treasury on the 5th January 1814, was 1,383,758., and there was remaining a balance of the loan of last year, made in this country 2,953,1471., making together 4,336,905, from which deducting the arrears of the principal of outstanding Treasury bills and Lottery-prizes, 28,480., and of Inland Navigation 69,596., making together 98,076., there would remain as the surplus of the consolidated fund, 4,238,8201.-The total of the supply the committee would recollect he had stated was 18,795,455l. Irish currency, and he would now state the ways and means by which he proposed to cover this supply. The surplus of the consolidated fund he had stated as amounting to 4,238,8291. The revenue he estimated at 5,350,000l.

advanced, 71,000. The proportion belonging to Ireland upon the sale of Naval stores being 2-17ths of 576,351, was 73,4561. The loan made in Ireland was made for 3 millions, and that made in England 5 millions and a half, or, in Irish currency, 5,958,3331., making the total of the ways and means to cover the supply 18,811,618. The charge upon the loan made in Ireland, (and he was happy to say that there never was a loan made, under any circumstances, upon terms more favourable to the country,) was 51. 11s. 9d. per cent. amounting to 167,6251.; and the charge upon the loan contracted in England which was at the rate of 5l. 18s. 94d. per cent., was 353,9001., making together 521,5251., which was to be provided for.

Before he proceeded to enumerate the duties and taxes which he meant to submit to the committee, to cover that sum, he felt himself authorized to state the view under which he should propose his resolutions to the House. The committee were aware that by the Act of Union, a power was given to the united parliament to review the provisions of that Act, as far as they related to the state of the finances of the two countries, and to make such arrangements respecting the debt of both, as might, under all the circumstances, be deemed advisable. Without going into all that extent of observation, to which the consideration of that subject would necessarily lead him, he might be permitted to state, that it was one of the utmost importance, and to repeat what he had said upon a former occasion, that it was one which could not be effected till parliament could be enabled to take a general and comprehensive view of the finances of both countries. He had expressed his hopes, on a former occasion, that the next time he opened to the House the state of the finances of Ireland, he should have to call the attention of parliament to this most important subject; and he had the satisfaction of knowing, that what he had then said had met with the approbation of those public men who had turned their attention to this subject: but the committee must be aware, that this was a subject of so much importance, and embracing so many considerations, that it could not be taken up with too much de. liberation.-Whatever anxiety he might have felt to bring this subject forward,

yet he was prevented by one cause, which weighed much in his mind, and which he had no doubt would have great weight with the House. He did not think it would have been right to have called the attention of parliament to this subject during the absence of his noble friend (lord Castlereagh), who was employed upon a great public service, and which he had executed in a manner so honourable to himself and so glorious for the country. He did not, he said, think it right to take up so important a measure in the absence of his noble friend who was the minister for Ireland at the time the great measure of the Union was brought forward and completed; and he was happy to say, that no great inconvenience would result from the delay. With this view of the subject, he had felt it to be his duty to take care that the resolutions which he had now to propose, should be of a nature to lead to, and prepare the way for the future consolidation of the finances of the two countries. It would be necessary, before such an arrangement of the finances of the two countries as that which he had alluded to could be proposed and effected, that Ireland should have made all the exertions in the way of finance that was in her power, and that she should have been brought into a state of taxation upon those articles which might be deemed luxuries, corresponding, as near as the situation of the two countries would admit, with that of Great Britain. There were indeed amongst those articles to which he should be driven, some which could not be considered as luxuries; they were in Ireland of prime necessity, and he only lamented that still greater national necessity which obliged him to recur to them as a means of supply: when he (under the general head of customs) came to propose, for instance, the augmentation of the import duty on deals and timber, he knew he should be told of the severity with which such a duty must press upon the people; he saw, however, no alternative; and gentlemen would bear in mind that, on the same principle as in this country, the produce of our American colonies would be still admitted almost duty-free; so that upon the restoration of those pacific relations with the United States, which the magna. nimity of the parliament and the people of England had always in despight of American provocation continued to desire, we might expect to receive the necessary

supplies of those articles at a reduced rate, while in the advantage derived to the native and the shipping interest, we must be considerable participators. Thus though some objections might be made to the detail of the resolutions which he should have the honour of bringing forward, yet he felt satisfied that upon consideration, the principle upon which those resolutions were founded would counterbalance any objection that might be urged against them. The first resolution he should have to propose would be for an equalization of the custom duties of Ireland to those of England. The supply of last year bad, to a certain extent, been provided for by an increase of the duties of customs; for he had felt it to be his duty, when his right hon. friend proposed to augment the custom duties in England, to make a similar proposition with regard to Ireland; and accordingly the duties. had been increased, in some instances, twenty-five per cent. Although he had not had the good fortune, in those resolutions which he had brought forward last year, to meet with the concurrence of some of the gentlemen on the other side of the House, yet he was sure that they would be glad to learn that their predictions respecting the produce of these duties had not been accomplished. He was sure that they would be more pleased to learn, that he should be right in his estimates. rather than that they should. There was not one of the duties then proposed which had not answered beyond expectation. He thought, therefore, that the grounds which he had stated would dispose the committee to concur in the resolutions he should now propose; for, though he was quite convinced that there were strong reasons why Ireland should be exempted from some sources of taxation, to which Great Britain was liable; yet with respect to the duties of customs, he saw no reason why any difference should subsist, even if no arrangement was ultimately to take place. It would be, he felt, but candid in him to state that he meant now to bring under the custom duties many articles which were not subject to them before, and articles, too, which were employed in the manufactures of Ireland; but he should accompany his proposition with regulations, which he trusted, would remove the fears of those who were most anxious about the state of those manufactures. There were several articles now exempted from duties, such as ashes, barilla, dye