Lords Sitting of 9 May 1815

LIBERTY OF THE SUBJECT BILL.
The Marquis of Lansdownemoved the second reading of the Bill for better securing the Liberty of the Subject. The noble lord said that the object of the Bill was twofold; the one was to authorize individual judges, during the vacation, to issue the writ of Habeas Corpus; and the other was to empower the judge to allow the return to be traversed, and to liberate the party in case the return were false, and to give greater expedition and facility to the action for a false return. Individual judges

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had long been in the practice of issuing these writs during the vacation, and therefore so far the Bill could not be considered as carrying the remedy beyond what it practically was at this moment: but then it had been doubted whether the power of the individual judges rested upon any thing but the practice. In the year 1757, certain questions had been put to the judges on this subject, and the answers were contradictory. It was fitting, therefore, that the law on this subject should be clearly settled and declared. The other part of the Bill was necessary, in order to render the remedy complete, for at present a return before a judge in vacation could not be traversed, however false; and if the party against whom the writ was directed refused to make any return, he could not be punished for contempt, and no action could be brought against him till the next term. The party aggrieved might by this means be deprived of all remedy, for before term time he might be hurried away out of the country, and might lose his health or his life before he could have any opportunity of bringing his action; and even if he should at length have that opportunity, the person who committed the wrong might not be to be found. He understood that the Bill was to be opposed as being injurious in cases of lunatics and the impress service, but he could not conceive how it could do any harm in either. The only effect would be to prevent persons being confined in either case, who ought not legally to be so restrained.
Lord Ellenboroughstated, that judges had been in the constant practice of granting this writ in vacation time before and since the year 1757. The Lords had at that time suggested the propriety of preparing a Bill on the subject, but none such had been passed, probably because no inconvenience had been felt; and a Bill prepared by the judges had been laid aside, and one had been drawn up by that great ornament of the law, Mr. Justice Foster, which was published in the account of his life which had lately appeared, and that was the Bill now before their lordships: but from the year 1757 till the publication of the work in question, nothing had been done; and the abandonment of the object was a proof that it had not been found necessary to introduce any such Bill. The judges in vacation time exercised the right of granting these writs, and the remedy
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rested on the broad foundation of the common law as well as on statute and practice. It was true, the judge had no power to enforce the remedy immediately, incase no return were made; but then immediately on the commencement of the term a return could be compelled, and the offending party punished for contempt. In his own judicial experience of thirteen years, he had only known one instance of such refusal. It was in the case of a person who refused to make any return till the term, detaining in the interval a girl whom he had seduced, and whose liberation was the object of the writ. The court immediately on the commencement of term punished him for the contempt, by six months imprisonment. As to the case of lunatics, no well-founded application had ever been made to him on that subject. But the danger to the naval service was manifest; for if this Bill were to pass, when a fleet was about to sail on an important service, innumerable applications would be made for these writs, and considering the description of persons who were usually employed as law agents by the seamen, there could hardly be any want of affidavits. These would be traversed; the officers would be delayed; and irreparable mischief might result to the public service. He deprecated likewise the laying the burthen of punishing for contempts on individual judges. No one could be more willing than he would be to give every proper effect to this remedy; but at present there appeared no case of pressure, and he could not, therefore, agree to the second reading of the Bill.
The Lord Chancellorsaid, that however he might be disposed to endeavour to give effect to a Bill of this kind resting on a narrower basis, he could not assent to the further progress of the present Bill. There were two cases in which it would be most mischievous; first, with respect to lunatics: persons who had recovered from this last of human calamities were often confined to prevent a relapse; and even those who were most attached to them were the persons, who often, by demanding this writ for their liberation, did them the greatest injury. Besides, under this Bill, the writ might be demanded by any body; and yet it had been said by lord Mansfield, that in cases of lunatics, such writs ought to be demanded only by those who were interested for the lunatic. Besides, the Chancery knew of no terms,

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for it was always sitting. Then, as to the effect on the naval service, affidavits would be readily made for the reasons stated by his noble and learned friend, and those affidavits might be met by counter-affidavits; and more applications would be made in a week for such writs than all the judges could manage in a month. The whole would be an endless scene of litigation, confusion, and mischief to all the parties concerned. And besides, as the whole case would be disclosed on the affidavits, the action for a false return must be abolished; or if it were to be retained, it could be brought just as soon as this new action under this Bill, for no declaration could be delivered till tire commencement of the term.
Lord Grenvillesaid, that it was sufficient to know that a case might exist which required a remedy, to induce their lordships to pass the Bill: but it evidently appeared, even on the statements of the noble and learned lords themselves, that some remedy was requisite, and that the want of it had been felt in practice: a person had from the want of it been able to detain a young woman, whom be had seduced, for three weeks. As to the case of lunatics, the evils which the noble lord on the woolsack dreaded, might be remedied in the Committee: and it was to be considered that though the recurrence of the malady might, in some instances, be prevented by proper restraint, the malady might be brought on by undue confinement. As to the other point, there could be no wish in any quarter to injure the naval service; but it was a great object to prevent abuse of the powers necessary for the interests of that service. Persons not subject to the duties imposed on seamen might be taken, and unless an immediate remedy could be had, the case must often be without remedy; for a man, to use the language of Mr. Justice Foster, might be hurried away to the most distant quarter of the globe without any legal authority; and what signified it, in such a case, to say, that he had his action against one who might perhaps be no where to be found? One of the objects of the Bill was to guard against this inconvenience, without trenching on the powers which the law necessarily gave for the protection of that service which was the safeguard of the law itself—a power which must exist till the means could be found of providing in some other way for the effective supply of the navy.
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Upon the whole, he gave the Bill his firm, support, and hoped it would be allowed to go to a committee.
Earl Stanhopesaid, that the noble lords opposite seemed not to be aware of the danger to which, under the existing law on this subject, they were exposed; for, by a clause in the Habeas Corpus Act, 31 Car. 2. those who were any way concerned in sending a person beyond seas illegally, were liable to the pains and penalties of a prœmunire—they were to be out of the law—to forfeit their goods, chattels, lands, &c. The noble and learned lord on the woolsack had said, that the Court of Chancery was always sitting, and indeed it was a technical saying, that Hell and the Court of Chancery were always open; but then the whole of the business would fall upon the noble lord's shoulders, when it came to be known that he was always in waiting to grant these writs; and the noble lord could not complain, as he brought it on himself.
The Marquis of Lansdownesaid, he had heard nothing to convince him that the Bill was unnecessary, and still urged the second reading.
The motion was, however, negatived; and on the motion of lord Ellenborough, the Bill was ordered to be read a second time on that day six months.