Ch. J. MARSHALL said: "It is believed to be a correct position that the power to commit for offences of which it has cognizance, is exercised by every court of criminal jurisdiction, and that courts, as well as individual magistrates, are conservators of the peace.

"Were it otherwise, the consequence would only be that it would become the duty of the judge to descend from the bench, and in his character as an individual magistrate to do that which the court is asked to do." 1 Burr's Trial, 79.

A dangerous lunatic is not to be discharged as a matter of course, because the order of confinement does not fulfill the requisites of the statute under which the custody is claimed. In the matter of Shuttleworth, 9 Ad. & E., 651, it was contended that if the orders were deficient, the court would be under the necessity, however inconvenient, of allowing the lunatic his common law liberty. But Lord Denman answered:

"If the court thought that a party, unlawfully received or detained, was a lunatic, we should be betraying the common duties of members of society if we directed a discharge. But we have no power to set aside the order, only to discharge. And should we, as judges or individuals, be justified in setting such a party at large? It is answered that there may be a fresh custody. But why so? Is it not better, if she be dangerous, that she should remain in custody till the Great Seal or the Commissioners act? Therefore being satisfied, in my own mind, that there would be danger in setting her at large, I am bound by the most general principles to abstain from so doing; and I should be abusing the name of liberty if I were to take off a restraint for which those who are most interested in the party ought to be most thankful."

The English Court of Exchequer In the matter of Parker and others, 5 M. & W., 31, did not follow the

practice adopted in the case of Rex v. Marks, 3 East, 157. They declined to decide the questions involving the validity of the express commitment which it was claimed, justified the detention of the prisoners and refused to discharge them because the return disclosed a crime confessed by them, for which they ought to be tried if they were not already legally convicted and in the proper custody under the sen

tence.

The prisoners had been indicted in Lower Canada for treason, and under a statute of that province had applied for and received pardon upon the condition of transportation to Van Dieman's Land for fourteen years. In the execution of this condition, they were taken to Liverpool, and whilst means were preparing there to transport them to Van Dieman's Land they were delivered to the jailor of the city for safe-keeping.

The court having stated the substance of the return, proceeded:

"This is the substance of the return, against which many ingenious objections have been urged; the principal of which seem to be, that the legislature of Upper Canada had no authority to make any such law; that if they had, it could be binding only within the precincts of that province; that it could communicate no authority to any person out of that province, and therefore could give none to the jailor of Liverpool; that even if it could have that effect, the pardon granted under that law being conditional, it was not competent to the prisoner to accept a pardon, whereby he submitted himself to imprisonment or transportation; or that if it were competent to him to accept a pardon with such a condition, he has still a right to retract his consent, and

to be set free from the obligation imposed upon him by the condition.

"All these topics have been elaborately argued on both sides, and have received due attention from the court; but in the view which we take of the case, we do not think it necessary to pronounce any opinion upon them. If the condition upon which alone the pardon was granted be void, the pardon must also be void. If the condition were lawful, but the prisoner did not assent to it, nor submit to be transported, he cannot have the benefit of the pardon; or, if having assented to it, his assent be revocable, we must consider him to have retracted it by this application to be set at liberty, in which case he is equally unable to avail himself of the pardon. Looking then at the return, the position of the prisoner appears to be this: that he has been indicted for high treason committed in Canada against her Majesty; that he has confessed himself guilty of that treason; that he is liable to be tried for it in England; that he cannot plead the pardon which he has renounced; and that he is now in the custody of the jailor of Liverpool, under such circumstances as would justify any subject of the Crown of England in taking and detaining him in custody, until he be dealt with according to law. Any subject who held him in custody with a knowledge of the circumstances, would be guilty of a crime in aiding and assisting his escape, if he be permitted to go at large without lawful authority. How then can we order the jailor of Liverpool, or any other person who has him in custody, with knowledge of these circumstances, to let him go at large?

"If the prisoner cannot be lawfully transported under his present circumstances, it is to be presumed that the government, upon being so certified, will take proper measures for prosecuting him for the crime of treason in England. For these reasons we are of opinion that the prisoner must be remanded."

In pondering these reasons the prisoner may be supposed to have asked two questions, which he could not very readily answer.

1st. How was the government to be certified that he could not "lawfully be transported under his present circumstances," when the court expressly refused to decide that question.

2d. How long was he to be detained in prison under the presumption that the government would one day take proper measures for prosecuting him?

The Court of Queen's Bench had just had the same questions under consideration and evaded none of them. They also remanded the prisoners because they held them to be legally detained under the commitment, &c., as set forth in the return. Leonard Watson's case, 6 Ad. & Ellis, 731; 36 Eng C. L., 384.

But if the court granting the habeas corpus, does not possess the jurisdiction of a committing magistrate over the alleged offence, it must discharge the prisoner if the commitment be illegal. As where the power to arrest and deliver up fugitives from justice from France was by the Convention Act of 6 and 7 Vic., c. 75, vested in certain officers, the Court of Queen's Bench in Besset's case, after holding the commitment insufficient, refused to act upon the proofs and remand the prisoner on their own authority, on the ground that they had "no authority of the kind in such a case." Ex parte Besset, 51 Eng. C. L., 480.

In INDIANA it is provided in the habeas corpus act, sec. 21, Rev. Stat., 931, that "if any person be committed to prison, or be in custody of any officer, on any criminal

charge, by virtue of any warrant or commitment of a justice of the peace, such person shall not be discharged from such imprisonment or custody, by reason of any defect or informality of such warrant or commitment, if such warrant or commitment substantially allege against such person a criminal offence, of which such justice had jurisdiction.

And if the charge be "defectively or unsubstantially set forth," the court or judge granting the writ may subpœna witnesses, and hear the proofs at large and discharge, let to bail or recommit the prisoner as may be just and legal.

So in KENTUCKY, Rev. Stat., 1852, p. 379, sec. 16; and in ALABAMA, Clay Dig., 469, § 40; and in ARKANSAS, English's Dig., 577, sec. 13.

In DELAWARE, Rev. St., 1852, p. 412, sec. 14, it is provided: "But no person shall be discharged for a mere defect in the commitment, if the evidence before the court or judge is sufficient to require that he should be committed or bound for his appearance. In such case the committing magistrate shall be summoned, proper witnesses examined, and the accused committed properly."

And for this trouble of doing the work over, it is provided in the 15 sec. that the magistrate shall have "no compensation."

SECTION XII.

WARRANT PERFECT, PRISONER NOT ALWAYS REMANDED.

If the warrant be legally sufficient in all respects, the prisoner should ordinarily be remanded or in a proper case let to bail. Yet this is not an invariable rule.

In England it is said that "even though the commitment be regular the court will examine the pro