Re Carus Wilson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 759
QUEEN'S BENCH
S. C. 14 L. J. Q. B. 105, 201; 9 Jur. 393.
carus wilson's case. 1845. The writ of habeas corpus ad Bubjiciendum runs to Jersey. A Baron of the Exchequer may, in vacation time, under stat. 1 & 2 Viet, c. 45, s. 1, and in exercise of the common law power possessed before that statute by the Court of Q. B., issue such writ, under the seal of the Court of Q. B., returnable in that Court in term time. He may do so on affidavits entitled in the Exchequer, inasmuch as the application may be made to him as a Baron of the Exchequer, upon which application he may act, in his discretion, by making the writ returnable in Q, B. Serable, that, if such writ were obtained by fraudulent representation, this Court would quash it on motion. But this Court will not quash the writ because it appears that the Judge who issued it abstained from inquiring into facts which, if known to him, might probably have induced him either to refuse the writ or only to grant a rule nisi. Especially if such facts may be properly returned. The writ issued, directed to the viscount and gaoler of Jersey, commanding them to bring up the body of W., to undergo, &c. Return, that the viscount and gaoler took, and the gaoler detained, W., by virtue of a sentence of the Royal Court of Jersey, which was set out, and which stated that, in a cause depending before them, W., when the Court was about to deliver an interlocutory judgment, interrupted, by uttering in the most unbecoming tone a protest against the competency of the Court; and that the Court, conformably with an article in the Jersey laws ordering that all persons who shall have been wanting in respect to the bailiff should be imprisoned until they had asked pardon and paid the fine imposed, and considering that the bailiff had in the course of the cause ordered W. to be more respectful, condemned W. to a fine of 101. and to ask pardon of the Court; and, W. having refused to comply, he was sent to prison until he should have obeyed : that the sentence was legal according to the law of Jersey : that, by such law, the viscount and gaoler were obliged to take and the gaoler to detain : that they had not, and by such law could not have, any warrant other than the sentence: that the Court was presided over by the bailiff assisted by Judges called jurats, and had the power of punishing such a contempt in the manner directed by the sentence: that there was such an article as mentioned in the sentence: that the matters in the sentence were true: that the sentence was read aloud in the hearing of W., and was duly entered in a book of record called the book of criminal prosecutions, being the proper book for the purpose: and that the sentence was in due form, and a sufficient authority for the taking and detaining. Held, 1. That affidavits could not be received for the purpose of shewing that the Royal Court had acted inconsistently with the law of Jersey. 2. That the return was not objectionable for want of shewing a warrant for the caption or detainer. 3. That, as the words used might be, and were by the Royal Court adjudged to have been, uttered in such a manner and tone as made them contemptuous, this Court would consider that there had been a contempt. 4. That it sufficiently appeared that W. had been sentenced to ask pardon of the Court for the contempt, and was legally imprisoned until he obeyed. Prisoner remanded. Objection having been made to the return, on behalf of the prisoner, and counsel having been heard against the objection, one counsel was allowed to reply in support of it. [S. C. 14 L. J. Q. B. 105, 201 ; 9 Jur. 393.] The following order was made by Rolfe B. "R. M. Rolfe, Upon hearing Mr. Peacock for Charles Cams Wilson, and upon reading the several [985] affidavits," &c., " I do order that a writ of habeas corpus ad subjiciendum issue directed to John Kandich, gaoler of the gaol of Her Majesty's gaol in Jersey, and to John le Couteur, viscount of the said island, to bring up to the 760 carus wilson's case ? q. b. we. Court of Queen's Bench the body of Charles Carus Wilson; returnable on the 18th day of January 1845. Dated the 23d of December 1844." The rule was obtained on an affidavit of William Russell, sworn before Rolfe B., and entitled "Sworn in the Exchequer." He deposed that he had read an affidavit made by Mr. Wilson, and believed the same to be true. A copy of Wilson's said affidavit was annexed. The deponent stated therein that he was an Englishman, and a subject of Her Majesty, having been born in England and resided there until 1840, when he went to live in Jersey ; and that he had in part resided in Jersey up to the then present time. That, on 23d September then last, he was seized and taken by the Deputy Viscount of the island of Jersey to Her Majeaty's prison there, and lodged in the custody of John Kandich, the keeper of the said prison, in whose custody he had been detained ever since. That he was advised and believed that such imprisonment was illegal. That on the 23d and 24th September then last, and on several subsequent occasions, he " demanded of, and applied to the said John Kandich for, a copy of the warrant or warrants of commitment or detainer under which he, the said John Kandich, detained and detains this deponent in his custody; and that the said John Kandich, on each of those occasions, told deponent that he, the said John Kandich, had nothing of the kind to give to deponent." "That, on Sunday the 29th day of September last, the [986] said John Kandich' of his own will and accord, brought into and left in the cell where this deponent was then confined a paper writing in the words and figures following; that is to say : "'Sept. 23, 1844, Charles Carus Wilson condemned to pay a fine of ten pounds sterling to Her Majesty, and to make an apology to the Court, in default of which he is sentenced to be imprisoned in the gaol until he has obeyed the said judgment. (Signed) J. Le Couteur, Viscount. "'29 Sept. 1844.'" [A true copy.] '"John Kandich, Gaoler.'" That he, Wilson, had not received from Kandich, or any other person on his behalf, a copy of any other warrant, and verily believed that Kandich had no warrant whatever, unless the document of which the aforesaid was a copy could be called such. "That he verily believes that the pretence for this deponent's imprisonment is an alleged contempt of the Royal Court of Jersey, or rather a pretended Royal Court in Jersey; but this deponent verily believes that there is no valid judgment, order or warrant in existence against this deponent in respect of such alleged contempt, and that the Court, as then composed, was utterly incompetent to act as a judicial body on that occasion." That, prior to his imprisonment, he had often occasion to inquire whether there was any commissioner resident in Jersey duly authorised by the Court of Queen's Bench to take affidavits, and was unable to find any such commissioner; and that, since his imprisonment, he had again inquired, and believed it to be true that there was no such commissioner. That Edward Nicolle was one of the twelve [987] jurats or Judges of Her Majesty's Royal Court in Jersey; "and deponent verily believes that, from time immemorial, used and approved of, the said jurats of this isle have been accustomed to take and administer oaths, and solemn declarations or affirmations in lieu of oaths, in all matters, causes and things, civil or criminal, arising or pending in the island of Jersey, and that all such oaths," &c., " taken by and before any one of the said jurats, have been and are considered binding in law on the parties making the same to all intents and purposes of law whatsoever. "Sworn in Her Majesty's gaol in Jersey, by the within named prisoner, Charles Carus Wilson, this 22d day of October 1844, before me, Edward Nicolle, Esquire, one of the jurats or Judges of the isle of Jersey, who, from time to time immemorial, have been, and are, accustomed to make and administer oaths in all matters, civil or criminal, arising in the island of Jersey. " Before me, edward nicolle, Jurat, Jersey, "charles carus wilson, Prisoner." Russell, in his affidavit, verified the signature of Mr. Nicolle, and confirmed Wilson's statement as to Nicolle's authority to take affidavits. He deposed also to hie own belief that Wilson was imprisoned without lawful warrant or authority, and 7Q.B.SI8. carus wilson's cask 761 that the paper writing mentioned in Wilson's affidavit was the only authority for the detainer, and was not a sufficient or lawful warrant, according to the laws of Jersey or otherwise. Ha deposed, further, that a writ of habeas corpus was, on or about 6th November 1844, duly issued out of the Court of Queen's Bench, commanding Kandich to have the body of Wilson before the said Court, together [988] with the day and cause of his being taken or detained, at Westminster, immediately after the receipt of the writ. That deponent was informed and believed that an affidavit was prepared to prove service of this writ on Kandicb, and that Mr. Nicolle was requested to swear the party making such affidavit, but refused to do so. Russell added that he bad been informed and believed that there was no person in Jersey, competent to administer the oath, who would administer it. In pursuance of the above mentioned order of Rolfe B., the following writ issued, under the seal of this Court. " Victoria," &c. "To John Kandicb, keeper of our gaol of Jersey, in the island of Jersey, and to John le Couteur, viscount of said island, greeting. We command you that you have the body of Charles Carus Wilson, detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things...
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