§ MINUTES OF EVIDENCE.—Select Committee on the Laws respecting the Writ of Habeas Corpus ad Subjiciendum.
§ Mercurii, 7° die Junii, 1815.
§ Mr. SERJEANT ONSLOW in the chair.
§ David Burton Fowler, Esq. called in, and examined.
§ What office do you hold?—lam second Secondary of the King's Remembrancer's-office in the revenue department of the Exchequer; I have held my office fifty years.
§ Have you ever issued during that period, any Writs of Habeas Corpus ad Subjiciendum, except where the party was under a criminal charge?—Never, except when he is under a criminal charge; I refer to the case of a person detained in charge as a smuggler; such persons have been brought up on various occasions to testify, and to be charged in execution; and except in civil suits, where the party was in the custody of a sheriff.
§ Out of what office in the Exchequer does the prerogative process issue?—Out of the King's Remembrancer's office.
§ Thomas Platt, Esq. called in, and examined.
§ You are head clerk to the Lord Chief Justice of the King's bench?—I am.
§ How long have you been conversant with the business of that office?—Five-and-thirty years.
§ Do you know of any case in which a Writ of Habeas Corpus ad Subjiciendum has issued in vacation, where the party was not under criminal charge, obedience to which has been refused or delayed?—None.
§ Do you know a case where a woman was under confinement, and the party delayed obedience for a fortnight?—I apprehend the case of Jane Groves must be the case alluded to, for I can find no other; that was in March last, but the facts were not as is supposed: an application was made on the 16th of March last by Messrs. Aubrey and Curtis, on behalf of Thomas Groves, of Cambridge, who was stated to be a tailor, who stated himself in his affidavit to be the brother of Jane Groves, who was of the age of seven- 894 teen years or thereabouts, and that she was seduced and carried away from Cambridge, or a place called Milton, near Cambridge, on Sunday the 5th day of March, by one M'Cann, who was then or had lately been a gentleman commoner of Christ's College, Cambridge; the affidavit, which I have in my hand, went on to state the belief of the deponent that she was detained against her will, and that an application had been made to M'Cann, to restore her to her friends, and which he had refused to do, upon which the Chief Justice signed a Writ of Habeas Corpus to M'Cann to bring before him Jane Groves: shortly afterwards an application was made to me by Mr. Richard Hill, an attorney resident in Chancery-lane, for a copy of this affidavit; he acted as the attorney for M'Cann; a copy of the affidavit was granted to him, and after, that I heard no more of it; and it would certainly appear that obedience had not been paid to the Writ of Habeas Corpus, although it would be supposed that, if it had not, an application would have been made to the Court for an attachment: I made inquiry yesterday into the case, I went to Mr. Hill, and was informed by him that within four days after M'Cann was served with the writ, he brought the female to his (Mr. Hill's) house, notice having been previously given to the solicitors who applied for the writ, who met them there; that the brother who had applied for this writ had an opportunity of an interview with the girl, and that the result was, the delivery up of the girl there to her brother; so that so far the effect of the writ was obtained; she was taken to some place which the brother had to take her to, and was to have set off next morning with him at seven o'clock, but she thought proper to get up at six and run away again, and return to Mr. M'Cann, the person who had taken her away from Cambridge, and with him she at present resides, her relations finding that she is not to be controlled: That is the only case I am aware of, to which the question can allude.
§ Mr. James Rooker called in, and examined.
§ You are clerk to Messrs. Kaye, Fresh-field, and Kaye?—I am.
§ Do you remember the case of an Habeas Corpus directed to Jose Berestien, to bring up the body of Ludwig Hoffman?—Perfectly.
§ State the particulars of that case?— 895 Ludwig, Hoffman was master of the ship Charlotta; she was freighted by British merchants to Havre-de-Grace, under licence of his Majesty's government, with sugar and coffee; she sailed in April or May 1813, under Danish colours; after be left Portsmouth, she was captured by a vessel under Spanish colours, assuming to be a Spanish privateer, called the San Juan Baptista, in which Mr. Berestien was, I believe, the chief mate; the Charlotta was brought into Portsmouth in the month of July 1813, as prize to the San Juan Baptista: no control whatever was exorcised over the person of captain Hoffman; he came to London, and occasionally went down to Portsmouth, and went on board his ship, until the month of April, 1814; on the 6th of April 1814; he went on board for the purpose of superintending the delivery of the cargo out of the Charlotta into warehouses under the Custom-house locks, an application having been made by the proprietors, that, pending the proceedings going on between the captors and the proprietors (her character of a Spanish privateer being denied) the cargo might be delivered into their warehouses; captain Hoffman was seized on going on board, by the prize-master and the Spaniards on board his ship, and thrown into a boat along-side the vessel, Without either hat or shoes, carried on board the San Juan Baptista, and there put into irons; information was immediately given to the proprietors of the cargo, and on the 7th of April, application was made to Mr. Justice Bayley for a writ of Habeas Corpus, and the writ was granted by Mr. Justice Bayley on the same day, and forwarded to Portsmouth that night by express: I think on the 8th or 9th, the writ was served on Jose Berestien, the person having the command of the San Juan Baptista, who refused obedience to the writ, disclaiming the authority of the Court, and stating that Hoffman was his prisoner; and in fact he entered a protest with the Spanish Consul at Portsmouth, against the process of the Court; an affidavit of the service was transmitted to town, accompanied with a statement of the refusal of the commanding officer to deliver up Hoffman; in consequence of which an application was made to Mr. Justice Bayley, to enforce obedience to the writ; he had a conference with Mr. Justice Dampier, at which Mr. Dealtry of the Crown-office was present and a letter 896 was addressed by them, or one of them, to lord Ellenborough, stating the circumstances of this case, and the imminent peril in which Hoffman's life was considered to be from the violence of the conduct of this man; for I should state, it was exceedingly difficult even to serve the process, for the crew of the San Juan Baptista came on the deck with cutlasses and daggers, and threatened the life of any person who should come on board: application was made, as I understood, from Mr. Justice Bayley to lord Ellenborough, on the 12th; on the 15th we received lord Ellenborough's answer, that obedience could not be enforced till the succeeding term, which commenced on the 27th of April; many delays took place after the commencement of the term, and he was not released in fact till the 15th of May: they obtained a rule to show cause why the writ of Habeas Corpus should not be quashed; and Berestien made an affidavit, claiming Hoffman as a prisoner of war; affidavits were made to rebut that statement; and on the hearing of the case on the two sets of affidavits, the Court ordered Hoffman to be discharged.
§ Was any attachment ordered against Berestein?—An attachment was ordered to lie in the Crown-office.
§ How came it not to be enforced?—He delivered up Hoffman, and allowed him to be taken on shore.
§ Was any compensation obtained?—Only the costs: I have omitted to slate, that so fully were Mr. Justice Bayley and Mr. Justice Dampier aware of the danger in which this man was placed, and the importance, if possible, of enforcing obedience to the writ, that when they wrote to lord Ellenborough, they also directed Mr. Dealtry to write to the Commissioners of the Customs in their names, requesting their interference to prevent, if possible, Hoffman being taken out of the San Juan Baptista, or the sailing of the Sao Juan Baptista, or in fact to control the conduct of the Spaniards respecting him.
§ The Judges were of opinion they could not issue process of contempt in vacation?—Yes, that was the impression upon their own minds; and they stated the case to, lord Ellenborough, in order to have the sanction of his opinion.
§ Was any action afterwards commenced for the damages?—No, there was not.
897§ Mr. John Alexander Berry called in, and examined.
§ In what office are you?—In the Six Clerks Office in Chancery; I am agent to Mr. Shaddick; I have been in the office between 30 and 40 years.
§ Have you ever known writs of Habeas Corpus ad Subjiciendum issued out of the Chancery in vacation, except where the party was under a criminal charge, or was an infant?—I have; I recollect one instance where a Habeas Corpus was made out to bring in the body of a married woman returnable in vacation; but it was made out in the term.
§ Have you known of any instance of such a writ being issued in vacation?—No, I have not; and I have taken pains to ascertain whether such a thing has been known in the office, and cannot find chat any other person is aware of such a circumstance: I have applied at the Register's Office, to know whether they have ever drawn up an order for an Habeas Corpus in the vacation; and they have no recollection of having done so.
§ Do you know of many applications having been made for writs of Habeas Corpus?—I never knew but of two applications for Habeas Corpus; the one in the case of a married woman, and the other in the case of a child.
§ Henry Dealtry, esq. called in, and examined.
§ When was the writ issued in the case of Berestien?—On the 7th of April 1814. That was in vacation?—It was.
§ When was the attachment moved for?—On the 28th of April, which was the second day of term.
§ What was the issue of that matter?— The Court granted a rule to show cause why an attachment should not issue; on the 6th of May Berestien obtained a rule to show cause why the Habeas Corpus should not be quashed; on the 14th of May, the Court discharged the rule Nisi for quashing the Habeas Corpus, and made the rule absolute for the attachment, but directed the attachment to lie in the office till the further order of the Court.
§ Would it be in the course of the Court to give any directions with respect to costs in such a case?—No, I think not; in regular course they might have discharged the rule Nisi for the attachment on the payment of costs; the only other way, I apprehend, in which they could give the 898 costs, would be by mitigating the sentence for the contempt, in consideration of the payment of costs.
§ Is or is not an attachment for not returning a writ of Habeas Corpus bailable by a Judge?—I have always considered it to be so.
§ Does the Court of King's-bench, upon a return to a Habeas Corpus ad Subjiciendum at common law, examine by affidavit into the truth of the facts contained in the return?—I apprehend not.
§ Are the applications made to the Court of King's-bench for writs of Habeas Corpus ad Subjiciendum not within the statute of Charles 2nd, numerous?—They are more numerous in time of war than of peace; but I am not prepared to give the number, not having an individual knowledge of all the applications, each clerk in court issuing those for which application is made to him.
§ What do you conceive to be the proportion of those issued under the statute, to those under the common law?—I cannot speak to the proportion, but I conceive very few indeed are issued under the statute.
§ In time of war is not a large proportion in the case of impressed seamen?—It is.
§ Have you known instances of applications made in the case of infants detained?—Yes.
§ Have there been many such cases within your experience?—Not many.
§ Have there been any in the case of married women?—There have.
§ Have there been any in cases of lunacy?— There have been several applications; and I think there have been one or two granted in the cases of persons confined as lunatics.
§ Do you happen to recollect within, your own experience, instances occurring in vacation time, of an application for at writ in any of those cases, of lunatics, infants, or married women?—Yes; the instances of such applications have been very few.
§ Lunœ, 12° die Junii, 1815.
§ Mr. Serjeant ONSLOW in the Chair.
Mr. William Cook, called in, and examined.
I am partner with Abraham Rhodes and Thomas Handley, as solicitors and attornies, and was employed in October 1803, by Wm. Woodward, and Fanny Woodward, the brother and mother of Elizabeth Woodward, a minor of the age of sixteen years, 899 to sue out a writ of Habeas Corpus directed to William Wilson, of Basingstoke, in the county of Hants, inn-keeper, having the custody of Elizabeth Woodward, to bring her up before Lord Ellenborough on the receipt of that writ; she left her mother's house at Winchester on Sunday 9th Oct.; she lived with her mother, who, I believe, lived on her fortune; on her being missed, she was traced, after great trouble, through various stages, to London, as accompanied by Wilson, in whose custody she remained: the writ of Habeas Corpus was served on Wilson on the 18th Oct., he was served at Basingstoke, and her abode could not be discovered; on the 22d October he returned the writ before Mr. Justice Laurence, stating that Elizabeth Woodward was not, at the time of serving the writ, nor at any time since, in his custody or power, and that she was free from his control, and that therefore he could not produce her: I objected to the return, as untrue in the fact of her not being in his custody; but the Judge was of opinion that he could not enter into that inquiry: on that a bill in Chancery was filed, and she was made a ward of court; and by an order of the Lord Chancellor she was delivered up to her friends: term commenced the 6th Nov.; application was made to the Court of King's-bench against William Wilson, for not having paid due obedience to the writ of Habeas Corpus; and it appearing to the Court that he had wilfully disobeyed the writ, he was in the Hilary Term following committed to the custody of the Marshal of that Court, and being brought up again in the same term for judgment, he was by the said Court ordered to be imprisoned in his Majesty's gaol of Newgate for six calendar months, and to pay a fine of fifty pounds.
§ Jovis, 15° die Junii 1815.
§ Mr. Serjeant ONSLOW, in the Chair.
Thomas Johnson,esq. called in, and examined.
I am partner with James Farrer, esq. the principal secretary of the Lord Chancellor; in the situation of secretaries, we have not made out any writs of Habeas Corpus ad Subjiciendum since Mr. Farrer held the office, during eight years: we have caused inquiries to be made at the Six Clerks Office, at the Petty Bag Office, Crown and Cursitors Office of the Court of Chancery, and have not been able to ascertain that such a writ has issued in the 900 Court of Chancery within the last ten years.
§ Henry Dealtry, esq. further examined.
§ Did you, by the desire of Mr. Justice Dampier, Mr. Justice Bayley, or either of them, address any letter to the Commissioners of the Customs, respecting the case of Ludwig Hoffman?—I did, by the desire of Mr. Justice Bayley, address a letter to the Commissioners of the Customs, of which the following is a copy.
§ [Copy of Letter, and also a return of the number of writs of Habeas Corpus, &c. delivered in, and read.]
§ To the Honourable the Commissioners of his Majesty's Customs.
§ I am directed by Mr. Justice Bayley to state to your honours, that a Writ of Habeas Corpus being issued out of the Court of King's-bench, requiring the person having charge of the ship San Juan Baptista, or other person having the custody of Ludgwig Hoffman, to have the body of the said Ludgwig Hoffman before the Lord Chief Justice of the said Court: and it being represented to Mr. Justice Bayley that the said ship is now at Portsmouth, under the charge of officers of the Customs; and that Jose Berestien, first mate of the said ship, is the person who has the custody of the said Ludgwig Hoffman; and that he has refused to pay present obedience to the said writ: it appears to Mr. Justice Bayley that it may conduce to the furtherance of justice if the said ship was not permitted to sail, or the said Ludgwig Hoffman to be removed by the said Jose Bereslien, until the said Writ has been obeyed.—I am, with great respect, your honours most obedient servant,
§ Crown-office, Temple, H. DEALTRY.
§ April 12, 1814.
§ A Return of the Number of Writs of Habeas Corpus ad Subjiciendum issued On the Crown Side of the Court of King's-bench, during the year preceding the first day of last Michaelmas Term.
§ Writs of Habeas Corpus ad Subjiciendum have issued for bringing up eighty-six persons—exclusive of eleven such Writs, issued for bringing up sheriffs.
§ Crown-office, Temple, H. DEALTRY.
§ June 8, 1815.
Mr. Serjeant Onslowgave notice, that it was his intention, early in the next session, 901 to submit a motion to the House on the subject of the preceding Report.