court, but by whom placed there was not known; but that the 1801. practice had always been to deliver fuch writs to the chairman, or one of the justices attending in court. That none of the juftices The KING of the peace had received fix days' previous notice in writing, nor against any other notice of the iffuing of the certiorari, as required by and Others. ftat. 13 Geo. 2. c. 18. f. 5. The affidavits in anfwer fwore pofi- *[300] tively to the delivery of the writ by the attorney for the profecutrix to the clerk of the peace, by whom it was handed up to the magistrates. BATTAMS Blackstone, in fupport of the rule (a), contended, 1f, that the writ of certiorari had iffued irregularly, none of the magiftrates to whom it is directed having had fix days' notice of the iffuing of it, pursuant to the ftat. 13 Geo. 2. c. 18. By the prior ftat. of the 5 & 6 W. & M. c. 11. and 8 & 9 W. 3. c. 33. certain restraints were laid on defendants fuing out writs of certiorari to remove proceedings against them. This was followed up by the ftat. 5 Geo. 2. c. 19. providing generally that no certiorari fhould iffue for removing any judgment or order of the feffions on appeal, unless the party profecuting fuch writ fhall give a recognizance to profecute it with effect, and to pay the cofts in cafe the judgment or order should be affirmed. Then follows the act in question of the 13 Geo. 2. c. 18. which enacts, (f. 5.) " that no certiorari shall "be granted to remove any conviction, judgment, order, or other "proceedings had or made by or before any juftice or justices of "the peace, &c. or by the feffions, &c. unless fuch certiorari be applied for within fix calendar months next after fuch conviction, "&c. or other proceedings, and unless it be duly proved upon oath "that the faid party fuing forth the fame hath given fix days' notice "thereof in writing to the juftice or juftices, or to two of them, "&c. by and before whom fuch conviction, &c. or other proceeding [301] "fhall be fo had or made; to the end that fuch juftice or juftices, "or the parties therein concerned, may fhew cause, if they think "fit, against the iffuing or granting fuch certiorari." The mifchiefs which occafioned this act are stated in the preamble to be the vexatious delays and expence occafioned by the fuing out writs of certiorari for the removal of fuch convictions, judgments, orders," and other proceedings before the magistrates below; these apply as well to the cafe of profecutors as of defendants, and the words of the enacting part are comprehenfive enough to include both. Then the rule of law applies, that remedial laws are so to be conftrued as to reprefs the mischief and advance the remedy. 3 Rep. 7. In the cafe of The King v. The Justices of Glamorganshire (b) it was holden, that the notice required by the ftatute must be strictly obferved before any application for a certiorari for removing proceedings before juftices; and no diftinction was taken whether it were to remove an indictment on any fummary proceeding, or whether it were applied for on behalf of the defendant or the profecutor. There is a diftinction in this respect between the cafe of the king and that of a private profecutor; the Court are bound (a) The order in which counsel were heard upon fhewing caufe is here reverfed for the fake of a better arrangement of the objections and answers. (6) 5 Term Rep. 279, of BATTAMS 1801. of right to award it at the inftance of the king (a); but that is confined to cafes where the crown is the real profecutor: but in The KING the latter case it only iffues if no fufficient cause be fhewn against against it (6). 2dly, The writ bore tefte before the indictment was preand Others. ferred, and confequently could not operate to remove that which had no exiflence at the time. 3dly, But fuppofing the writ properly iffued, it was not regularly delivered to the justices fo as to [302] bind them to obey it. It ought to be delivered and authenticated by the party, on whofe behalf it is iffued, to one of the juftices to whom it is directed. No Lord Kenyon C. J. here obferved, that if the certiorari were produced in court and came to their knowledge, it could not admit of an argument whether or not it fhould be obeyed. doubt the Court were bound to yield obedience to it, and all fubfequent proceedings upon the matter were void. Here it was fworn that the writ was handed up to the bench and seen by feveral of the magiftrates, which is fufficient notice. And this Court would not lay down rules for regulating the manner in which the writ fhould be delivered to the juftices below. Garrow, Marryat, and Beft fhewed caufe against the rule. If, The act of the 13 Geo. 2. c. 18. does not relate to indictments, but merely to fummary proceedings before magiftrates: the words are, "convictions, judgments, orders, and other proceedings." The latter must mean other fummary proceedings like thofe before enumerated. They could not be intended of indictments and prefentments; for, as to fuch, other express provifions are made in refpect of removing them by certiorari by the ftatute 8 & 9 W. 3. c. 33. Neither can an indictment be fo removed after judgment, which is one of the terms used in the act of the 13 Geo. 2.; but it can then only be removed by writ of error; therefore it can only relate to fuch fummary proceedings as may be removed by certiorari after judgment. Alfo, by the conftant practice of the Crown Office ever fince the paffing of the act, upon application for a certiorari to remove a "conviction, judgment, or order" of any juftices of peace on behalf of a perfon against whom fuch proceedings were [303] had, fix days' previous notice has been given to the magiftrates; but never in the inftance of a certiorari to remove an indictment. Nor is it practicable in the latter cafe; for none of the juftices have any knowledge of an indictment till it comes before them for trial, and then it would be too late to apply for a certiorari. And even in the cafes of "convictions, judgments, and orders," it has not been confidered neceffary to give fuch notice under the ftatute where the certiorari was applied for at the inftance of the profecutor. For where the certiorari has even been taken away by the exprefs words of an act of parliament, if the object of the act have appeared to be (as in this inftance) to prevent vexation and unneceffary delay, the Court has decided that it only meant to deprive the defendants of the writ, and not to take it away from the profecutors; as in Rex v. Davies and others (c), upon the conftruc (a) 2 Hawk. ch. 27. f. 27. (b) R. v. Lewis, 4 Burr. 2456-8. 1801. The KING againft BATTAMS tion of the ftat. 25 Geo. 2. c. 36. f. 10.; and Rex v. The Inhabitants of the County of Cumberland (a), on the conftruction of the ftat. 1 Ann. c. 18. f. 5. Where indeed a defendant applies for a certiorari to remove an indictment, he must state some special ground by affidavit to induce the Court or a Judge to grant the writ (b). There is no foundation for the diftinction contended for between the crown and a private profecutor; as was determined in the cafe of R. v. The Inhabitants of Bodenham (c). At any rate the prefent rule cannot be fupported; for if the writ improperly iffued it [304] may be quafhed; yet fo long as it is in force it must be obeyed, and the grounds of iffuing it cannot be difputed by the feffions. 2. As to the teste of the writ being prior to the finding of the indictment, it is the conftant practice, and forms no objection to its operation. The effect of it is to remove all proceedings of the nature specified between the tefte and the date of the return. Cafe of Adrian Lampereve, and others, 1 Ventr. 60. 1 Rol. Abr. 395. cites Cheney's cafe. 2 Hawk. c. 27. S. 78. Crofs v. Smith and others, 1 Salk. 148. 2 Ld. Raym. 838. Ibid. 1305. Regina v. White, 1 Salk. 150. Fitzwilliam's cafe, Cro. Eliz. 915. Yelv. 32. and R. v. Spelman, 1 Keb. 93. After the delivery of the certiorari all the fubfequent proceedings in the court below were erroneous. 2 Hawk. c. 27. S. 64. Lord KENYON C. J. The words of the ftat. 13 Geo. 2. c. 18. do not feem to me to affect the prefent cafe. It begins with enumerating proceedings of a lower denomination than indictments, fuch as "convictions, judgments, and orders" by justices of the peace; then the words " other proceedings" muft mean proceedings before them ejufdem generis with those before mentioned, namely, fummary proceedings; and to fuch only it appears on perufal of [305] the act that other provifions of it apply. His Lordship then referred to the cafe of The King v. Farewell (d), (which he read from a MS. note of the late Mr. Mafterman of the Crown Office.) A certiorari having iffued at the inftance of the prosecutor to remove an indictment for a nufance in a highway from the quarter feffions, without an affidavit that the right of repair would come in queftion pursuant to the ftat. 5 & 6 W. & M. c. 11. or any recognizance given according to that or former ftatutes; it was moved in Hil. 17 Geo. 2. that the certiorari fhould be quafhed: The cafe was afterwards debated in Eafter, 17 Geo. 2. by fome of the ablest men at the bar; and Lord C. J. Lee, who was a judge of the greatest (a) 6 Term Rep. 194. (b) Vide R. v. Lewis and Others, 4 Burr. 2456. (c) Cowp. 78. In another refpect, however, a distinction prevails in the practice of the Crown Office between the cafe of the crown and that of a private perfon. Though a stature take away the certiorari from a defendant, or he cannot have it without laying fpecial ground by affidavit before the Court, yet the crown, if the defendant be one of its officers, or if for any other reafon it take up his defence, may have a certiorari in the name of the defendant, without laying any special ground. Thus in the two cafes alluded to by Lord Mansfield in 4 Burr. 2458., his lordship, when Attorney-General, obtained the writ; though a private individual would not have been entitled to it. Alfo in the case of Rex v. James, M. 26 Geo. 3., the Court granted the Attorney-General a certiorari to remove a record of conviction after fix months, although the ftat. 5 Gec. 2. c. 19. exprefsly directs that the certiorari fhall be applied for within that time. And in Rex v. Stannard, 4 Term Reps 161. the fame thing was done at the inftance of the Attorney-General applying for the defendant, although no special ground were laid before the Court by affidavit, as is required in other cafes. (d) Vide a Stra. 1194, 1209. caution, 1801. caution, enlarged the rule in order to look into the several a&is of parliament; but obferved at the time, "that he had never known an The KING inftance where an affidavit in fuch a cafe was ever made by or exagainst "pected from a profecutor, or any recognizance ever entered into:" BATTAMS and Others, and that it would make great confufion in the Crown Office to overturn the proceedings in fo many cafes of that fort as had occurred. Mr. Juftice Chapple alfo faid, "that the legislature by those acts of "parliament never intended to lay profecutors under any hard"fhips or difficulties." And it appears that ultimately the certiorari was deemed to have been properly iffued. It is true the decifion there was not upon the particular ftatute in queftion, but it was made upon a general review of the fubject; and the Court thought that the general words of the ftatutes reftraining the iffuing of writs of certiorari did not attach on profecutors. The fame [306] construction has been put upon the ftatute in question during a long course of practice, and it is now too firmly established to be broken in upon. These matters may not be fo well known to the magiftrates below, to whom I impute no blanie; but we must take care to preferve a congruity in our proceedings. If the writ had improperly iffued, there fhould have been an application to quafh it; but it thould not appear that there is a writ of the king's in force which is difobeyed. Monday, king may conftitute courts martial with A Per Curiam, Rule discharged with cofts. The KING against JOHN SUDDIS. Writ of habeas corpus was directed to Sir Wm. A. Pitt, governor of Portsmouth, to bring up the body of John Suddis make articles in cuítody under his orders; to which he made the following re of war and turn: that before the coming of the annexed writ to him, and before and at the time of the trial and fentence hereinafter mentioned, and alfo before and at the time of the committing of the ofpower to try fence in the fame fentence mentioned, John Suddis in the writ and punish, named was a gunner in his majefty's royal regiment of artillery, Great Bri- [397] then being stationed and in garrison at Gibraltar beyond the feas, tain, &c. as and was in the actual pay of the king as a member of the garrison as well in in Gibraltar, &c. By a fubfequent claufe no foldier fhall by fuch articles of war be fubjected to the punishment of dea b or lofs of limb within Great Britain, &c. (omitting Gibraltar) for any crime not expreffed to be fo pu nishable by the act. Then by the articles of war perfons found guilty by a court-martial at Gibraltar of theft, robbery, &c. or of having used violence or committed any offence against the perfons or property of others, hall fuffer death or fuch other punishment, according to the nature and degree of the offence, as "by the fentence of fuch court-martial hal! be awarded:" held that the court-martial have a discre tionary power by fuch words, and are not reftricted to pafs fuch fentence on a delinquent as would be warranted by the law of England. But fuppofing they were, yet that a return to a habeas corpus, ftating that upon a certain charge exhibited against the defendant before fuch a court, for certain offences alleged to have been committed by him at Gibraltar, fuch proceedings were had that the court-martial, after hearing the charge and the defence, found the defendant guilty of receiving certain goods named from the warehouse of W. (at G.) knowing them to be ftolen, in breach of the articles of war, whereupon they fetenced him to transportation for 14 years, is good. For fuch fentence would be warranted here by the ftat. 4 Geo. 1. c. 11. if the principal were convicted of the felony, and the receiver were indicted as acceffary after the fact. It feems a fufficient return to a habeas corpus that the defendant is in cuftody under the fentence of a court of competent jurifdiction to inquire of the offence, and to pafs fuch a fentence; without fetting forth the particular circumstances necessary to warrant such a fenter.ce. on against SUDDIS. of Gibraltar; and was under the command of Charles O'Hara Efq. 1801. governor of Gibraltar. That on the 19th of May 1800 the faid.. John Suddis, fo being in actual pay as a member of the garrifon of The KING Gibraltar, was tried by a general court-martial duly holden at Gibraltar, appointed by the faid C. O'Hara the faid governor, and erected and conftituted by and under the authority of his majesty, according to the form of the ftatute in that cafe made and provided, with power to try, hear, and determine any crimes or offences by and in purfuance of the articles of war made and established by his majefty for the better government of his majesty's forces, upon a certain charge exhibited against him before the fame court-martial for certain offences alleged to have been commited by him at Gibraltar aforefaid; and fuch proceedings were thereupon had by and before the faid court-martial, that afterwards, viz. on the day and year aforefaid, at Gibraltar aforefaid, the faid court-martial did pronounce upon the faid John Suddis the following fentence; (viz), the Court having heard the evidence in fupport of the profecution, together with what had been brought forward by the prisoner (the said John Suddis) in his defence, is of opinion that the prifoner John Suddis is guilty of receiving feveral pieces of printed cotton and two pieces of broad cloth ftolen from the warehouse of Mr. S. Watkins, knowing them to be ftolen, in breach of the articles of war, and doth therefore by virtue of the 4th article of the 24th fection of the articles of war fentence him. the faid John Suddis to be tranfported as a convict to Botany Bay for the term of 14 years. That afterwards the aforefaid fentence was approved of and confirmed by the faid governor of his majesty's [308] garrifon of Gibraltar; and the said governor did, in order to carry the fame fentence into effect, caufe the faid John Suddis to be fent to England in the cuftody of lieutenant Rogers, one of the lieutenants of the 70th regiment of his faid majefty. And that afterwards, the faid John Suddis having arrived in England and landed at Portsmouth aforefaid, in the cuftody aforefaid, and for the caufe and purpose aforefaid, was by the faid lieutenant Rogers delivered to him (Sir W. A. Pitt) as governor of his majesty's garrison at Portfmouth, to be by him fafely kept until he thould be fent to Botany Bay aforefaid, in purfuance and execution of the aforefaid fentence; and is now detained in his cuftody for the cause and purpofe aforefaid, the faid term of 14 years not being yet expired. And he further returned, that at the feveral times before mentioned the faid Samuel Watkins was and is a fubject of our faid lord the king; and no form of civil judicature was in force at Gibraltar aforefaid having power to try an offender being a person in actual pay as a member of the faid garrifon of Gibraltar; and that the faid warehouse in the fentence mentioned was and is fituate at Gibraltar aforefaid: and this is the caufe, &c. Erskine on behalf of the prifoner admitted that the king had a military power to try offenders of this defcription at Gibraltar, in the abfence of all civil judicature at that place: but objected to the infufficiency of the return, because it did not appear that the fentence of the court-martial was in conformity to the municipal law |