Old Bailey Proceedings supplementary material. Ebenezer Smith Platt.
19th February 1777
Reference Numbero17770219-1

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On the First or Second Day of the Sessions, a Petition was presented to the Court from Ebenezer Smith Platt , a Prisoner in Newgate, under the following Warrant, praying the Benefit of the Habeas Corpus Act.

Middlesex, to wit,

TO the Keeper of his Majesty's Gaol of Newgate, or his Deputy.

"These are in his Majesty's name to authorize

"and require you to receive into your

"custody the body of Ebenezer Smith Platt ,

"herewith sent you, charged before me upon

"the oath of Richard Scriven and Samuel

"Burnett, with high treason, at Savannah

"in the Colony of georgia; and you are to

"keep him safe until he shall be delivered by

"due course of law, and for so doing this

"shall be your sufficient warrant.

Given under my hand and seal this 23d day of January 1777.


The prisoner was set to the bar, and his counsel Mr. HOWARTH and Mr. ALLEYNE contended, that the words of the Habeas Corpus Act, all the forms of which act the prisoner had observed, were sufficiently large to warrant the idea entertained by the prisoner, to enable himself to be discharged upon bail; that there did not seem to be in the act any restriction at all upon the judges sitting upon a Commission of Oyer and Terminer; that in every possible construction that can be made of a law, that which is most favourable to the liberty of the subject, is always adopted by the magistrate; and that any person who is committed for high treason or felony, is entitled to his discharge, upon application being made in pursuance of that act; that there had been sufficient time to have brought the prisoner to trial; the prisoner gave public notice that he was ready to take his trial; that a commission might be added to that under which the court were then sitting; that as the prosecutors had not thought fit to procure a special commission for the trial, that the court finding him in the gaol of Newgate, would certainly comply with the prayer of his petition, for the court were bound to deliver the gaol of every person that should be found in it, let the offence he is charged with be of what nature it may, unless some particular application should be made to the court to detain him upon legal or reasonable cause; that if it were otherwise, a person might be imprisoned for life without a possibility of redress: the counsel said, it might be urged in answer on the other side, that the prisoner might petition for a commission to issue against him for his trial, but it might be then doubtful whether his petition would be heard, or how surely he would obtain the prayer of it; for if those who have the power to grant the commission have not the will, the prisoner has no mode of compelling them; that it is the duty of the officers who prosecute for the crown, to see that the commission issues in due time, and with proper expedition; the counsel observed, that it had been suggested, that the court having no power to try Mr. Platt, they had therefore no power to interfere; that though that looked specious when stated, yet they did not conceive it to be true in point of fact; as for instance, suppose a man was confined in Newgate for a felony committed in Yorkshire, the court at the Old Bailey has certainly no power to try him; but suppose such a person was upon the first day of the opening of the commission to present his petition, grounded upon the Habeas Corpus Act, requesting to be discharged or tried during the session; that the court would certainly order him to be immediately removed by Habeas Corpus to the county of York, there to take his trial; and that if the court did not do it in the first instance, that man would certainly be entitled at the call-over to be discharged; that if the court could make no order (which the counsel contended they could not) to send the prisoner to any other place, or to refer him to any particular commission or jurisdiction, they submitted to the court, that the party would be entitled at the last day of the session, either to be discharged, or admitted to bail; that it had been said, a special commission was to be issued upon the statute of the 35th of Henry VIII. to try the prisoner; that if such a commission was to issue, it should appear upon the face of the warrant that the prisoner is a person liable to be tried under that commission, for unless that appear with precision upon the face of the warrant, the court certainly would not intend or presume any thing in order to bring him within that

commission; that on the contrary, so far as intendment and presumption would go, the court would intend and presume every thing in favour of a man, who is in a strange country, and who has applied to be tried: that the statute of the 35th Henry VIII. passed for the purpose of removing some doubts that had been entertained upon the construction of the statute of the 33d Henry VIII. but the court would recollect, that the law says, that a commission shall issue to try persons accused of treason in parts without the realm of England; that supposing the party to be indicted for the offence under a special commission, the words of the commission would express the offence to be committed without the realm of England, and the indictment must necessarily follow that description; that if there was a description generally that he was indicted for high treason committed at Savannah, in the Colony of Georgia in North America, that upon that description only, such an indictment would clearly be different and be quashed; that the necessary allegation and averment must be, that it was at a place without the realm of England: the counsel contended, that the warrant ought to contain the same certainty of description; that that averment was no where to be found in the warrant, for he is committed as charged upon oath with high treason at Savannah, in the Colony of Georgia in North America; that the warrant does not go on to state that it is without the Realm of England; they observed, that in such case, the court would not intend that North America is not in England; that no judge will intend or presume that the East Indies or any other part is without the realm of England unless it is so averred to be; that by fiction it is often averred to be within for the purpose of having actions tried here that could not otherwise be tried; nobody controverts the fact, and therefore it is taken as an admitted fact upon the pleading, that it was necessary that it should appear to the court upon the warrant, that the prisoner was committed for an offence that is indictable and triable, under the statute of the 35th of Henry VIII. which could not appear unless the commitment had gone on to allege, that this was committed at Savannah, being a place without the realm of England; that upon that single principle, whatever the court might conceive of their general power, under the habeas corpus act, yet upon that single principle the prisoner was intitled to his discharge. The counsel further observed, that they did not find themselves at liberty to argue now a question, which they should have been glad to have done; whether a general commitment for high treason is sufficient; they acknowledged that it had been settled in Sir William Wyndham 's case, though the counsel said the reasons did not convince them, but taking it upon the general proposition that the court could not presume or intend that the offence was committed without the realm of England, as it was not so specified in the warrant; the counsel therefore concluded, that the court would under the general prayer of the petition that the prisoner had presented to them under the habeas corpus act admit him to bail.

Mr. ATTORNEY GENERAL and Mr. WALLACE, of counsel for the crown, argued, that in cases of high treason, particularly in Broom's case in second Roll's Reports 107, and in abundance of other cases in the time of Queen Elizabeth and James the first, it had been held that the commission of gaol delivery did not extend to high treason; when that was held, Stamford says, that commissioners of the gaol delivery shall not deliver prisoners committed for high treason, because they have no jurisdiction to try it, and when that came to be corrected, as it did afterwards in Crompton's book of the jurisdiction of courts, a surmise is made that by the first of Edward VI. the law appeared to be otherwise; likewise Coke, Hale, and Hawkins say, the law appeared to be otherwise; but then the reason upon the law being otherwise, what do they conclude? why that the court may deliver them, because they have jurisdiction to try them; that a perusal of the act will plainly prove the whole scope and purpose of it, which is merely to bring into the gaol delivery prisoners in franchise, that they may not lie without the benefit of gaol delivery; and that act has put a penalty upon all sheriffs, lords of franchize and gaol keepers within the county for not bringing in criminals, that it was not in the contemplation of that act, that any other but those who could be tried before the gaol delivery ought to be brought in.

The counsel observed, that they had been drawn a little forwarder in what they purposed to offer to the court in these observations, but they intended at the outset to consider, in the fairest order that presented itself to them, the several arguments that had been used on the other side; they declared they had not in this particular case either personally or politically a single wish about the event of the application to the court, beyond that of keeping the law steady and clear in its due course; let the law be preserved; they had no kind of objection to what became of this individual case; liberty regulated by law and protected by law, they said, they venerated and admired; but liberty qualified in any other manner, they had no sort of esteem or regard for, for it was nothing better than licentiousness; that therefore the single question before the court was, as upon a point of liberty regulated and protected by law; and the counsel said, they would confine themselves in arguing it merely to the point of law upon the question; that the first thing that occurred was the observation that had been made upon the warrant, in order that it might be seen whether the prisoner was in gaol under such circumstances, as that he might be detained in prison: that the whole observation that had been made upon the warrant amounted to this; that although the crime is described in the warrant to have been committed at Savannah, in the province of Georgia in North America, that it does not sufficiently appear to have been committed without this realm. They observed that the counsel for the prisoner, instead of applying themselves to any kind of learning upon the form of warrants, or to any one case that had been decided upon the subject of warrants, thought proper to inform the court that in an indictment it would have been necessary to have stated, that the crime was committed out of the realm, for what purpose was it to be stated, the prisoner was to be indicted under the statute of Henry VIII. which makes the question of the venue immaterial, otherwise than as a formal venue to be laid within the indictment; if he was to be brought within that statute, that then the counsel for the prisoner said, the crime should be described as committed out of the realm; that if that argument was well founded it would not avail the prisoner; it was enough for them to say, that no position concerning the forms of warrants, that no case respecting disputes upon those forms had been quoted; that all the cases that had ever arisen upon the forms of warrants had not gone upon technical expressions, but upon the fair direct substantial intendment of the warrant: suppose the counsel for the prisoner could prevail upon the court to believe, that for want of the averment in the warrant of its not being out of the realm the prisoner could not be tried here under that statute, then the consequence would be, that he must be sent over to the place in which, the crime was committed in order to be tried, which thing had been done over and over again; they quoted the case of Comberley in Strange 848, where the court went far enough to affirm the whole law they were now aiming at; namely, that a prisoner might be apprehended here, this being the place of his abode; and that he might be committed here, being the place of his abode, for a crime committed in Ireland, or a crime committed in any part of the king's dominions, and that being so apprehended the imprisonment is legal; and that he might be sent over by a warrant of the secretary of state, which is the only universal warrant known of, unless the court of King's Bench would exert that warrant, which the counsel said, they would not controvert if they did; in order to the person's being sent over to the place of his trial; then, if the counsel for the prisoner were right in supposing that it would be impossible to try him without averring in the indictment, that the offence was committed without the realm, the consequence would be that the statute of Henry VIII. as to him, was gone, but that he remained here in order to be sent over to that place, which he must be sent over to. The counsel said, that if they were to argue it upon that ground, they should take themselves to be rather stronger in insisting that he was not to be discharged in this manner, than in the taking it upon the other ground; that thus much was submitted to the court to shew, as far as that part of the argument went, that he remains a prisoner unless there were some other grounds upon which he was to be discharged; that with regard to these grounds, they had been taken so variously and argued consequently so differently, that in order to make their argument intelligible upon that subject, they would resort to a little division.

That they would first of all put the question as if the ground was perfectly free of all embarrassments upon the subject of the power supposed to be conferred by the habeas corpus act, and to make that hypothesis a little clear, they would suppose this motion now made in the court of King's Bench, whose authority is boundless as far as goes to their discretion in point of bail; that supposing the application made there, what case would be represented to that court, in order to entitle the prisoner to bail? why, the evidence before them would be this, that a man who had committed the crime of high treason, which is the highest crime in the estimation of the law of this land that a man can commit, that the warrant returned upon that habeas would inform the court that he was charged with committing that crime at the distance of 2 or 3000 miles off, at Savannah in Georgia, the warrant would inform the court that such a culprit had been committed for the space of six weeks before the return of the habeas; it would likewise inform the court that he had lain in gaol one term with these two circumstances telling each way about it: in the first place, that he had made no application to the court to be bailed; in the next place, that the prosecutor had preferred no indictment in the court of King's Bench against him; that the court of King's Bench had undoubtedly the jurisdiction to try this offence, and the indictment might be preferred there; that the prisoner was in the gaol of the court, speaking of its universal jurisdiction, and therefore in that sense the application would stand thus; that having been six weeks in the gaol of that court (without any indictment preferred against him during that term, and without any application on his part under the habeas corpus act) for a crime committed in the province of Georgia, and during the subsistence of the rebellion, in the course of which he committed that crime, he applies to the discretion of that court to be discharged; that it could not be assuming too much to say, that in such a case the wisdom of the court would not think itself called upon to effect such a discharge; that it was for that reason that they quoted the case of Sir William Wyndham , which turned clear of all embarrassments, upon the single ground of the discretion of the court of King's Bench to bail; that case was argued by Sir Joseph Jekyll , and the court, upon the ground that Sir William Wyndham had been apprehended at the time of the rebellion, which then existed, would neither bail or otherwise demean him at the first argument, but remanded him and ordered him to be brought up again upon the last day of the term; and after the rebellion was over, after he had lain four terms in prison, after one assize in Somersetshire; for it had been observed, in order to meet a suggestion made by the attorney general at that time, that the evidence would arise of an overt act in Somersetshire, which would require him to be indicted there, after four terms with the general supposition that he was to be indicted in Middlesex, and where in point of fact he must have been indicted, if indicted at all; the court did, after remanding him and bringing him up again, think proper to discharge him; the counsel observed that Lord Chief Justice Parker and the court at that time, who were very great men, were as zealous friends to the liberty of this country as ever sat in justice, and that they had no doubt that, if such an application as the present had been made to them, it would have been impossible for them to have conceived that the discretion of the court of King's Bench was called upon under the present circumstances, as they appear upon the warrant to operate their discharge; thus much was said upon the case, upon the supposition that it was clear of all embarrassments upon the fact of jurisdiction; and that the observation came to be material in another view, because it had not yet been contended, that the court of gaol delivery was bound to use no discretion upon the last day of sitting, supposing them to have that authority, but that the person who appears to be in gaol must be delivered ex necessitate and without reference to any kind of discretion, without reference to bail, which is a modified way; that of the counsel for the prisoner meant that then to be sure the argument they (the counsel for the crown) had been urging did not apply to that, but though there are in the State Trials abundance of cases which have been argued,

yet there never was an argument by the most sanguine counsel in Selden's case, or any of them, in which it had been hoped by them, that upon so narrow a case as that now presented to this court, the court of King's Bench would think themselves called upon in their discretion to discharge the prisoner; that a case had been mentioned in which the circumstances belli flagrantis operated at the time as an excuse for three of the terms out of four, for not bringing on the trial; that then, with regard to the grounds upon which the counsel for the prisoner applied to the court, the counsel for the prisoner had said, that every man in prison must be discharged at the last day of the sitting of the commission of gaol delivery. In answer to that the counsel said, that in every book upon the subject of gaol delivery the justices of that commission had been treated as a court of criminal jurisdiction, and of criminal jurisdiction only; that the court would not find in any book which treats of their authority to deliver prisoners, a hint that it refers to any other sort of prisoners than those which are confined for crimes; that if it had stood upon this ground only it would have gone a great way towards proving, that a court of gaol delivery was merely a court of criminal jurisdiction; but it is one of the most ancient commissions next to Eyre, known of in this country; it was very often sent out in the intervals of the commissions of Eyre, and that the terms in the commission were very general, and implied a very large and very extensive authority, and yet if the court would trace the history of that commission, and the history of the several cases decided upon it from year to year, in the year books they would find that there are bounds to their jurisdiction, why should there be other bounds to their jurisdiction than the walls of the prison itself? why should not the case of every prisoner for debt committed under special authorities, where the commitments are bad, be discharged? but till heard, the court could not say whether they were bad or no; why were not all those cases within the jurisdiction of gaol delivery? and yet it was agreed by every one, that they were not, and therefore the court of gaol delivery has bounds; why has it bounds? because the authority to act at all upon the cases of the several prisoners that are found in the gaol was incidental to the power of delivering the gaol on the one hand; on the other hand, it was confined to such sort of prisoners in gaol as were not attached by any other competent authority of a judicial sort, but as lie there purely for their deliverance; that before the 4th of Edward III. Chap. 2. it was not possible for the justices of gaol delivery to have proceeded upon an indictment taken before the justices of the peace: in the year book of the 15th of Henry VII. folio 5, B. it is laid down that the justices of gaol delivery may proceed to give judgment upon an indictment taken before the justices of the peace; it was there argued collaterally, for the point of that case was nothing to the purpose of gaol delivery, that was a case of an assize by writ of the King's court removed out of the Common Pleas, and the party insisting that he ought to be discharged of the damages, &c. to the King, that was the question that arose there; but in arguing the question they referred to that case; that the reason of that case was plainly referrable to the 4th of Edward III. because they had authority by that statute to proceed upon the case, even though another judicial authority had taken it up; but they go a great deal further, for by the first of Edward VI. Chap. 7. which was intended by the legislature merely to be a continuance of processes, began in the reign of Henry VIII. but which had by interpretation been properly and justly extended to authorize the gaol delivery to proceed upon all manner of indictments that were depending upon prisoners in that gaol, either before justices of the peace or justices of oyer and terminer to proceed on them, or to proceed to give judgment upon them; that the authority of a court of gaol delivery to pronounce judgment upon those indictments depended upon the operation and effect of that statute; that it was stated to be so by all the books; the counsel put this case; suppose a man had been indicted before a court of oyer and terminer, the statute of Edward VI. clearly confines the authority to the court of gaol delivery, as pronouncing judgment and awarding execution upon indictments then taken; suppose judgment had been pronounced either by a former court of gaol delivery or of oyer and terminer, which for want of continuance by adjournment was gone; suppose a commission of gaol delivery came after and found that man convicted by judgment, and that the man supposing a pardon had come to him in the mean time offered to plead his pardon, that court, it had been determined expressly, could not allow the pardon; they quoted a case in Daliston, folio 20. of the resolutions of two judges, Portman and Bromley, that they were neither authorized by the 4th of Edward III. which gave them jurisdiction to hear the indictments which came in by the justices, nor by the first of Edward VI. which gave them jurisdiction to pronounce judgment and award execution; that they were not authorized by one or the other, but they directed him to take his certiorari to carry his record into the King's Bench to plead his pardon and have it allowed there; the counsel said, they mentioned these cases only for the sake of shewing the nature of the jurisdiction of gaol delivery wherever a prisoner is laid in gaol for deliverance; they might from all antiquity proceed upon an indictment; if a man laid in gaol under no attachment at all, or under an attachment for deliverance only, and no prosecution was instituted against him before the court of gaol delivery, they might discharge him; but the language of the books upon that subject is, they may discharge him after inquest upon proclamation; Lord Coke and all the writers subsequent to him take after inquest, to mean where no sufficient evidence is given before the inquest; if a bill is returned ignoramus, or no bill is preferred against him, yet the court discharges suspects; for suspect is used in the original case in Edward III. which case has guided the language in the books upon this subject, what is the purport of the proclamation? It is calling upon the prosecutor to charge the party with a crime, and if he is not charged with a crime, then he is discharged; that is the whole extent and compass of the authority of gaol delivery; if a man is imprisoned there only for deliverance they may proceed to try him, they may discharge him without trial, if nobody will come to prosecute him; that in a case in the year book it was said, that it was for the profit of the King, that they should give judgment upon him, and that was the reason why the gaol delivery gave judgment upon him; that was not said by the court, but by the counsel argumentum it was said rashly, that it was not competent for the court to pronounce judgment upon him, the statute having made it law, consequently that is the extent of it. That the authority of a court of gaol delivery would not extend for delivering a prisoner beyond where they can go in point of authority to try him. That the counsel for the prisoner had put a case, that suppose a man was imprisoned in Newgate for a crime committed in Yorkshire, there would of course be an habeas corpus to remove him.

They said in answer to that, that there was in reality no writ of habeas corpus issued, but merely a warrant commanding the gaoler of the place where he is to deliver him, and the gaoler of the place where the offence is committed to receive him.

The court of gaol delivery cannot, nor ever did discharge such a man; but their manner is to make out a warrant in order to subject him to the proper tribunal for trial. That in a case where justice had no interposition in the matter at all, where the party seemed to lay upon small felonies, without any body appearing to prosecute, though that is not directly within the case of delivering suspects, the court would in such a case as that let him be delivered rather without arguing the point or deciding judicially upon it; that the court, they apprehended, would not think themselves much influenced by an accident of that kind having passed sub silentio, when it appears clear that the true grounds and principles of the jurisdiction of courts of gaol delivery could not possibly go beyond that case. That there had been instances where men had been committed for felonies in Ireland, and they were not discharged at the gaol delivery; the counsel likewise quoted a case of a murder at Barbadoes, and a felonious marriage in Ireland, where the parties were committed to Newgate, and nobody imagined they were to be discharged by proclamation the last day of the session; that it would be idle to call upon the King's serjeant and attorney on the last day of the session to prosecute a man for a felonious marriage in Ireland, or a murder at Barbadoes; it never was imagined that that man was to be discharged under that species of proclamation, that the court finding him attached under the charge of a crime which they have

no jurisdiction to try, he must remain there in order for trial; must he so? say the counsel for the prisoner, why then imprisonment must be for life; what is this the country in which people talk that there must be an imprisonment for life, because all jurisdictions are not confounded, because every justice of the peace is not at liberty to admit a man to bail for high treason? that a person who thought himself entitled to be bailed must apply to the court of King's Bench, which alone could bail him. That according to the idea of the prisoner's counsel a court of Quarter Sessions might bail high treason; that a competency to try the crime does not operate to bail it at all; and it had been expressly laid down, that no other court can bail but the court of King's Bench; that the argument on the part of the prisoner in the present case was a very extraordinary one, for the prisoner was here directly under the hand and jurisdiction of the court of King's Bench, which might have tried him or might have bailed him; that he having not applied to the court of King's Bench to be bailed, they come now to a court in which they had not made out that there was the least degree of authority to interpose in any manner whatever. That the counsel for the prisoner had said, that the prayer the prisoner is to make is, that he may be brought to his trial; now supposing the prisoner had made that prayer; the answer to it is, it is impossible he should be brought to his trial; well, but if he has gone through the form, as the gentlemen of counsel for the prisoner said, of moving to be brought to a trial, which upon the state of his petition it appeared impossible for him to be brought to, he has then satisfied the letter of the habeas corpus act, and in favour of liberty it shall be made nonsense of; and a man that never for an impracticable trial shall be set at liberty under the habeas corpus act, because it tends to liberty; it tends also to injustice; do the laws that protect the personal liberty of one individual mean to obtain the personal liberty of all the rest of mankind, and to leave the public open to all crimes being committed upon them? certainly not. That the question before the court was, whether the present case be that in which the court is directed to take this and that particular course; that the act of parliament does not enlarge or change their jurisdiction in any respect whatever, but only prescribes to them a mode of exercising it in favour of liberty; then as the court cannot possibly do justice to the public upon the offence, could the court bail him? if so, the court is to bail a person committed for a crime which it avows in the very moment of admitting him to bail that it has no cognizance of whatever.

Mr. HOWARTH in reply referred to the special commission under which Capt. Roche was tried for a murder at the Cape of Good Hope, which commission was issued under the 33d of Henry VIII. and that commission recited all the facts necessary to bring the party within the act; it recited that he had been vehemently suspected by the council (the word made use of in the act) it recited that the crime had been perpetrated in parts beyond the seas at the Cape of Good Hope, not stopping there, but without the kingdom; the commission there following the words of the act; it directs them to try a murder committed at the Cape of Good Hope without the king's dominions; so did the indictment follow the commission, and if the indictment had not followed the commission it would not have been good. The counsel likewise quoted the case of Mr. Sayre; he was committed for treasonable practices, and any thing that had the epithet of treasonable bestowed to it is, as the counsel for the crown had said, a crime of the first import for the magistrate to take care of; yet the learned judge whose abilities were never doubted (Lord Mansfield) said, that warrant did not contain any charge with convenient certainty, it was too vague, too general, that he could not tell what were the import of treasonable practices, and upon that ground and that ground only Mr. Sayre was admitted to bail.

The counsel put another case; suppose a man committed under a warrant for stealing a variety of things, though every body knows the import of stealing, yet such warrant would be bad unless it were said that he feloniously stole; is there any body that does not know that stealing is a felony? is there any doubt about the word or any ambiguity in it? it conveys full as strong an idea to the mind of a man as saying feloniously stealing; but yet such a warrant would be bad, and a person would be

bailed that stood under such a charge. The counsel contended that the offence must be described in a legal technical manner, as much as it ought to be upon an indictment. That the counsel for the crown had said, it had been admitted that a commitment for high treason is sufficient, and he was bound to yield to the presser of a case that had been determined, but the reasons upon that case and the conclusions did not bring conviction to his mind of their property; then if the court cannot bail this man, suppose the other mode was adopted as the counsel for the crown had pointed out, of the case of persons charged with felony in Ireland, that they are sent to the place where the crime is committed; that the present defendant had no objection to travel back to Georgia at the expence of government; and though it might have been practised in extraordinary cases where the parties never complained, or never sought redress, yet a secretary of state had not so broad a power as to send a person apprehended here over to Ireland to be tried; that it is a necessary and preparatory step to that power, that an indictment should be actually preferred at the place where the offence was committed; that a certificate of that indictment should be sent. over here; that upon that certificate the party should be sent over there to submit himself to a trial upon that indictment.

The COURT observed, that with respect to the warrant the counsel on each side allowed, that convenient certainty was sufficient in a warrant of commitment; that it was not necessary in a warrant of commitment to state that it was upon oath; that it might possibly be in many instances without oath; but when the charge comes to be made formally by an indictment, greater precision is required; that in the case of Sir William Wyndham it was said, there must be a credit given to the justice of peace that he keeps himself within due bounds. As to the rule of convenient certainty: This prisoner is committed being charged, as the warrant expresses it, upon oath; so far the charge was more explicit and full than it need have been by law; for the court said, they could not think themselves at liberty to quarrel with cases that had been most solemnly determined; first in the case of Kendall and Ross, and afterwards adopted by the court in the case of Sir William Wyndham , and again in a case in the Common Pleas, where the same objection had been made to the warrant; that it was fully established by these authorities, that a court had no right to throw things into confusion and subvert the solemn judgment of their predecessors. The warrant in question alledges, that the prisoner was charged upon oath by two persons named in the warrant with high treason at Savannah in Georgia, in North America, does not that convey to the court and to every bystander, that this North America is one of the four divisions of the world that is without the four seas of Great Britain? should the court here strain and say, why there may be a Savannah in Georgia, in North America, in England, the court is not bound to go against common sense, common language, and grammar; if this were an indictment it would be a very different consideration. As to that species of high treason the adhering to the king's enemies, the antient opinion was, and Lord Coke confirms it, that they might have been tried by the Common Law in this kingdom; but as to other species of high treason, though the offence was of equal magnitude if it was committed out of the realm, according to the established constitution of this country, they could not be tried here without the interposition of an act of parliament, the more especially when the crime was committed in foreign parts, not part of the dominions of this crown; with regard to such an high treason as that, the court said, that without giving any positive opinion respecting it they would readily yield to the course of the argument of the counsel for the prisoner, that it would be necessary in order to pursue the form of the special commission, and the language of the act, to state that it was in parts beyond the seas, without the realm; but with regard to the warrant the court were of opinion that it was a very proper formal warrant. Then as to the question whether there was any power in the court independent of the habeas corpus act to bail in cases of high treason; for with regard to the discharge of the prisoner, in the first place by proclamation, however that might have been, if it had passed sub silentio from a presumed assent of the crown was another consideration, but that was not the present case, for here the king's attorney general opposed the discharge

of this prisoner, or his being admitted to bail; that by the Common Law the court of King's Bench was the only court that had power to bail in cases of high treason; Lord Chief Justice Hale in his 2d vol. 129. says expressly, that the court of King's Bench might and still may bail in any case whatsoever, even in high treason or murder; but, says he, this is in the discretion of the court, and none can challenge it de jure; there is also a case in a book called, 8th Modern, which is called, the Case of the Prisoners in the Tower; it was in the 9th year of King George I. they were persons concerned in the plot Layer was concerned in, and there was a suspension of the habeas corpus act, but these prisoners brought writs of habeas corpus to be bailed in the court of King's Bench, and they contended that the court of King's Bench was not controuled by the act of suspension, because the act said, that no judge or justice should proceed to bail or try any of the prisoners described in the act without the allowance of his majesty, signed by six privy counsellors; now said they, this term judge or justice does not restrain the court of King's Bench, it not being an adequate and sufficient description of them; but the answer to that was, that there was no authority vested in any judge or justice to bail in such a case, except in the court of King's Bench; and from thence they argued in that case, that as the court of King's Bench was the only tribunal in which that might be done, and as that court consisted as well as other courts do of judges, it was there held, that upon that principle and upon that ground, that the act must necessarily hold to that court, because no other court had authority to bail in the case of high treason. - The court said, they were clearly of opinion that no court whatsoever could bail in cases of high treason but the court of King's Bench; and that it appeared from these authorities, that independent of the habeas corpus act, there could be no possible ground for the court of gaol delivery to admit a prisoner to bail. That with respect to the habeas corpus act, which should certainly be carried to the largest extent that a liberal construction could put upon it; yet as the judges did not set as legislators to make laws, but to execute the law, they must govern themselves by it; that by that act of parliament under certain terms and conditions, and in certain situations therein described, courts of oyer and terminer and goal delivery might bail prisoners; that as to the present offence it was certainly in the option of the crown either to proceed against the prisoner in this kingdom the same as if the offence had been committed here, either in the court of King's Bench, or else before commissioners in such shire of the realm as should be assigned by the king for that purpose; that in the catalogue of special commissions in the 2d vol. of Lord Hale from fol. 10 to 20, a special commission upon the statute of Henry VIII. is enumerated as one; then it is clear that no other judicature than the court of King's Bench or a special commission has any thing to do with those offences committed out of the realm; the provisions of the act as t o the method of proceeding is, first a prayer or petition is to be made by the party to the court of King's Bench in open court the first week of the term, or the first day of the session of oyer and terminer or general gaol delivery, to be brought to his trial; that the commission under which the present court of gaol delivery acts is a general commission of gaol delivery, for all offences in a common and ordinary way committed in the county of Middlesex, therefore it is clear that this is not such a case as is meant by this act, because to petition the court of gaol delivery, who have no power at all to try the prisoner, is nugatory and is nothing. Their lordships quoted the case of the King and Yates reported in Sir Bartholomew Shower 's Reports, folio 190, the case happened in the 2d year of William and Mary; the defendant was committed to the prison of Hull, Sir Bartholomew Shower applied on his behalf, but the court of gaol delivery were of opinion they had no authority to interpose. Now suppose a man had been committed for felony in Yorkshire, and preferring a petition of the same sort to be tried here; or suppose a man committed for felony in Cumberland at this time of the year when there was no assize at Cumberland till next Summer; or suppose the case of the King and Yates of a felony committed at Hull where a special commission is not sent sometimes for 4 or 5 years together, this court could not under the habeas corpus act give any relief. - Supposing there had been no power under the 35th of Henry VIII. to have tried this man in the court of King's Bench or by a special commission, and it appeared that he was in custody for a treason committed at Savannah in Georgia; all that the court could have done in that case would have been to have enquired into what method he could have been sent over to Georgia in order to receive a legal trial, but he could not entitle himself under the habeas corpus act to be discharged, With respect to Captain Roche's case, he was committed on the 10th of July, two days before the session at the Old Bailey began; Roche petitioned on the first day of the session to be admitted to bail, but the court did not allow his prayer, he continued in gaol till the next session, which was in September; towards the latter end of that session, Roche having been very active to obtain a special commission, the special commission came down, but on account of a dispute between Roche and the prosecutor, who should pay for the special commission, it went off, and he was not brought to trial till December session following; so it was decided by the court that not withstanding it was moved the first day of the session in July, he was not brought to his trial till the December session. The court mentioned the case of pirates who were committed to Newgate to be tried by a court of Admiralty, and no notice at all is taken of such persons at the gaol delivery, no enquiry is made when a commission of admiralty is to issue; that in the present case it does not depend entirely upon the will of the crown to grant a special commission or not, because the prisoner may apply to the court of King's Bench to be tried or else bailed; that the longest time he could remain in Newgate would be till he could make his prayer under the habeas corpus act to the court of King's Bench; that being the case, where was the great hardship upon the subject in this case?

Mr. SERJEANT GLYNN said, he did not accede to the position that the power and the notice of the justices of gaol delivery is confined only to cases that they are competent to the trial of, for he thought that contradicted common, and what was stronger, that it contradicted necessary experience: that he had always understood the power of gaol delivery to extend over every person committed for crimes, though they had not the jurisdiction to exercise a power as a court of error over summary convictions; their jurisdiction extended to enquire whether a person is confined by legal authority; that if persons are committed for the purpose of trial in other counties and by other jurisdictions, the court of gaol delivery takes proper notice of that, if they are committed for trial before the same jurisdiction, in that case the neglect of proceeding before themselves is the ground upon which the prisoner is to be delivered; but where they are committed for trial by other jurisdictions, what the court does upon that occasion is to take notice that it is a legal detention for a legal purpose, that of bringing the person to trial in another jurisdiction; but supposing the case that a prisoner is committed under a commitment so absurd and informal and substantially defective that it does not amount to a charge that imports that he should be carried to any jurisdiction to be tried; that in that case the prisoner is to be discharged by the gaol delivery. Mr. Serjeant Glynn mentioned his own determination of a case that occurred at the Old Bailey, where a man was charged with divers offences in different counties, that he could not let him remain in prison, because he could not understand where he was to be carried to be tried; that where a prisoner was in custody charged with an offence triable under a special commission, he was to remain a convenient time for the purpose of such trial; that the court takes notice where a person is committed for the purpose of being tried in another place, and therefore does not discharge him, for he is legally detained for that purpose; yet if he is detained beyond a legal time necessary for that purpose, that the court ought then to interpose; and the Serjeant said, he thought the power of deliverance was upon the ground frequently of their having no jurisdiction to try, and no care being taken or expedition used to bring the person to trial in a convenient time, as the liberty of the subject requires he should be before any other proper competent jurisdiction; that there he apprehended he was a proper object of deliverance by the court of gaol delivery, but concurred in opinion with the learned judges on the Bench, that the court could not at present interpose.

[The Prisoner was remanded.]

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