xt7tdz02zp35 https://exploreuk.uky.edu/dips/xt7tdz02zp35/data/mets.xml Benjamin, L. N. 1865  books b92e47095b462009 English J. Lovell : Montreal Contact the Special Collections Research Center for information regarding rights and use of this collection. Young, Bennett Henderson, 1843-1919 Saint Albans Confederate Raid, 1864 The St. Albans raid; or, Investigation into the charges against Lieut. Bennett H. Young and command, for their acts at St. Albans, Vt., on the 19th October, 1864. Being a complete and authentic report of all the proceedings on the demand of the United States for their extradition, under the Ashburton Treaty. Before Judge Coursol, J. S. P., and the Hon. Mr. Justice Smith, J. S. C. With the arguments of counsel and the opinions of the judges revised by themselves. text The St. Albans raid; or, Investigation into the charges against Lieut. Bennett H. Young and command, for their acts at St. Albans, Vt., on the 19th October, 1864. Being a complete and authentic report of all the proceedings on the demand of the United States for their extradition, under the Ashburton Treaty. Before Judge Coursol, J. S. P., and the Hon. Mr. Justice Smith, J. S. C. With the arguments of counsel and the opinions of the judges revised by themselves. 1865 2009 true xt7tdz02zp35 section xt7tdz02zp35 
    
    
    
    
    
    
   THE

ST.  ALBANS RAID;

OR,

INVESTIGATION INTO THE CHARGES

against

LIEUT. BENNETT, H. YOUNG AND COMMAND,

FOR THEIR ACTS AT ST. ALBANS, VT., On the 19th October, 1864.

BEING A COMPLETE AND AUTHENTIC REPORT OP ALL  THE PROCEEDINGS ON THE DEMAND OF THE UNITED STATES FOR THEIR EXTRADITION, UNDER THE ASHBURTON TREATY.

BEFORE

JUDGE COURSOL, J.S.P.,

and the

HON. MR. JUSTICE SMITH, J.S.C.

With tub Asotnflarra of Counsel aud the Opisioss of the Judges revised

by themselves.

COMPILED BY

L.  N.  BENJAMIN, B.C.L.

PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET. 1865. 
    
   PREFACE.

The magnitude of the interests involved in the St. Albans Case, and the importance of the questions which arose during its discussion, have appeared to me such as to justify the publication of a complete report of the pi-oceedings ; and in preparing it accordingly, I have been indebted to the eminent Counsel engaged on both sides for such a revision of the reports of their arguments, as enables me to be certain of their substantial correctness.

Before going to press, documents arrived from England which appeared to sustain the correctness of two of the most important of the judgments rendered in the case. I have, therefore, added them as an appendix.

L. N. B.

Montreal, 17th April, 1865. 
    
   ST. ALBAN'S RAID.

Before Mr. Justice Badgley.

Mr. Kerr applied for a writ of habeas corpus to bring before bis Honor, William H. Hutchinson, alleged to be then in gaol upon the "ollowing commitment:   

PES;SM1   POLICE OFFICE.

To the keeper of the Common Gaol of the said District, greeting: pL i Whereas W. H. Hutchinson of the Parish of Montreal, in L ' 'J the said District, laborer, stands charged upon oath with felony. These are therefore to authorize and command you to receive into your custody the body of the said W. H. Hutchinson, and him safely keep for examination.

Given under my hand and seal at Montreal, this twenty-seventh clay of October, one thousand eight hundred and sixty-four, in the twenty-eighth year of Her Majesty's reign.

(Signed)   J. P: SEXTON,

Recorder.

And also for a writ of certiorari to bring up the information upon which the commitment issued, which was sworn to be of the following purport:

PROVINCE OF CANADA, )

Dhtrict of Montreal, City  >    POLICE OFFICE. of Montreal. )

The information and complaint of Guillaume Lamothe, of the city of Montreal, in the District of Montreal, Esquire, chief of police, taken upon oath, this twenty-seventh day of October, one thousand eight hundred and sixty-four, at the Police Office, in the city of Montreal, before the undersigned Recorder in and for the city of Montreal, who saith: Upon the twenty-fourth day of October instant, at the said city of Montreal, between the hours of six and eight of the clock in the afternoon, I arrested a person, who has since given his name as W. H. Hutchinson, upon suspicion of his having committed a felony at St. Albans, in the State of Vermont, one of the United States of America.   Upon the person of the said Hutchin- 
   son who is now a prisoner in my custody, I found after his said arrest ten thousand dollars of the Franklin County bank bills said bank being situate in St. Albans, in the State of Vermont, one of the United States of America, and two loaded revolvers. And I have reason to believe that the said sum of ten thousand dollars was feloniously stolen by the said Hutchinson, or by others with whom he was acting in concert.

Wherefore I pray for justice, and have signed

1  y    J       GUILLAUME LAMOTHE,

Chief of Police.

Sworn before me, at Montreal, this

27th October, 1864.

J. P. Sexton, Recorder.

Mr. Kerr opened two principal grounds of objection to the commitment.

1. That it contained no charge of any offence for which the prisoner could be committed; " suspicion of felony" not being such a charge.

2. That the warrant of commitment contained no limit as to the time during which the prisoner was to remain in confinement: though the time for which he could be remanded was expressly limited by the statute ; and though the text writers laid it down as a rule that the warrant should declare the limit; and though the form contained in the schedule to the statute, and the forms given in the books were all so framed as to limit the time.

Mr. Abbott, Q. C, followed on the same side.

The fact that the information contained no statement that warranted a suspicion of felony under the law of Canada, was also insisted on.

Mr. Johnson, Q. C, on behalf of the Crown, opposed the application, on the ground that the warrant was sufficient, and that the information disclosed a sufficient ground for the imprisonment, and further on the ground that being remanded for examination only the proceedings against the prisoner should not be interfered with.

Mr. Devlin, on behalf of the U. S. authorities, followed on the same side.

His Honor took time to consider; and at 2 P. M. the same day, rendered the following judgment:   

The warrant of commitment charges the prisoner with suspicion of felony, and orders his commitment for examination. Objections are made to both the generality of the charge and the unlimited remand. Now it is not necessary that the offence should be described with the nicety and technical precision of an indictment, but the prisoner should be charged with some legally defined and well known 
   3

offence for which he would be subjected to criminal proceedings

> either by indictment or otherwise, and that specific offence cannot

> _      be included under a general term which compendiously covers a

great variety of criminal offences.   The term felony includes a ^ number of crimes ranging between treason and larceny; and hence

3 it is not sufficient simply to designate the offence by the name of

the class of offences to which the magistrate may find or judge it to belong; and it is undoubtedly the received opinion that a commitment for felony in general without showing the species is not good. The reason given for requiring certainty is plain enough, to enable the judge. applied to for the habeas corpus, which is in the nature of a writ of error, to* determine whether the commitment is erroneous or not, otherwise the power of Courts and Judges under the law would be seriously abridged. A commitment, therefore, in 1_ the absence of any statutory provisions prescribing its forms and

contents does not sufficiently state the offence by simply designa-ie ting it by the class of crimes to which the committing magistrate

ig may consider it to belong; it should state the facts charged to con-

stitute the offence with sufficient particularity to enable the Court ie or Judge on Habeas Corpus, to determine what particular crime is

charged against the prisoner: if commitment fail to do this, the prisoner ought to be discharged from it: this is the law and the decision is explained and enforced by Mr. Hurd an American jurist, who has treated, ex professo, the subject of the writ of habeas corpus. Surely if the speciality of the offence is so strongly required in commitments for actual offences, how much more necessary and essential is it for offences merely suspected, as in this case, suspicion of felony. The charge itself is strangely incomplete and untechnical, being not alone general in its expression, but without any fact to show its application in any manner to the prisoner ; in this respect the commitment is clearly erroneous.

The second objection has reference to the generality of the order of detention ; the prisoner is remanded for examination, but without stating when or where. It is true that the magistrate may remand for examination from time to time, at his discretion, but that discretion is not unlimited, it is a legal discretion for the time and times provided for by the statute : that time, therefore should have been stated. The justice, as stated in the books, should not fail to state in his warrant of remand the time and place at which the prisoner is again to be brought up, and our Provincial Statute plainly enough provides for this and assists the magistrate with a form in this particular, leaving blanks for time and place, which the magistrate shall fill up. It is useless to say more upon this palpable error.

These two objections are formal against the face of the commit- 
   4

m'ent and, to my mind, render it bad and defective. _ I have considered this commitment simply as any other, issued in the course of ordinary proceedings before our magistrates, upon commitments for local offences, cognizable by provincial magistrates under the provisions of our local laws, and should not have advanced beyond the commitment itself but for the urgency of the counsel against the prisoner in directing my attention to the information,"with the view of supplementing the formal defects of the commitment by the other merits of the information. This latter document informs the magistrate that the informant, the police officer, had arrested the prisoner on suspicion of having committed a felony at St. Albans, in the State of Vermont, one of the IT. S. of America, &c. This document is exceedingly loose and defective, and does not justify the charge set out in the commitment, which in this case did not issue e mero motu of the magistrate, but upon this information. Now the law clearly requires that the commitment shall state some good cause certain, showing substantially a criminal matter over which the committing magistrate has jurisdiction, and for which the former may be legally committed, and that criminal matter must be stated with certainty to distinguish it from other offences. None of this cari be extracted from the information. Viewed as information of a crime committed in this Province, it wants every legal ingredient to give it effect; taken as the information of a crime committed in the United States, it is plainly one for which the committing magistrate could have no jurisdiction, being done in a foreign country, and, moreover, not in the category of offences for which extradition is allowed under the treaty.

It has been urged that the allowance of the habeas corpus will interfere with the course of justice. The writ, however, cannot be promoted or impeded on that account, if there is no legal commitment to detain the prisoner, as in this case. Even in the course of the examination of a prisoner before a magistrate, where there is a special charge en regie, it is quite competent for a magistrate to admit the prisoner to bail in the meantime ; and this does not prevent the continuance of the examination, which would go on, although the prisoner is at large under his bail bonds ; or the magistrate may even prevent him to go at large without bail, and still the examination would not be interfered with. Now, this statute allowing the remand, does not certainly interfere with the allowance of the habeas corpus, and as certainly, upon a defective commitment like the present, the allowance of the writ cannot be legally refused.

Writ granted returnable instanter.

The following is the gaoler's return to the writ of habeas corpus: 
   PROVINCE OF CANADA, ) District of Montreal. J

I, Louis Payette, keeper of Her Majesty's Common Gaol, in the city and District of Montreal, in the Province of Canada aforesaid, do hereby certify and return to our Sovereign Lady the Queen that before the coming of the annexed writ to me directed, to wit, on the 27th and 29th days of October, one thousand eight hundred and sixty-four, the body of William H. Hutchinson therein named, was committed into the said Gaol of our said Lady the Queen, under my custody, by yirtue of two warrants under the hand and seal of J. P. Sexton, Recorder of the city of Montreal, and Charles J. Coursol, Esquire, Judge of the Sessions of the Peace in and for the city of Montreal, which said warrants are in the words following, to wit:

PROVINCE OF CANADA, )    -pm Jnv nwrrr? District of Montreal.      $    POLICE 0*.fclCE.

To the keeper of the Common Gaol of the said District, greet-r -, ing: Whereas William H. Hutchinson, of the parish of LL,S,J Montreal, in the said District, laborer, stands charged upon oath with suspicion of felony : These are, therefore, to authorize and command you to receive into your custody the body of the said William H. Hutchinson and him safely keep for examination.

Given under my hand and seal at Montreal, this twenty-seventh day of October, one thousand eight hundred and sixty-four, in the twenty-eighth year of Her Majesty's reign.

(Signed)     J. P. SEXTON,

Recorder.

PROVINCE OF CANADA, >    p0LICE OFFICE. District of Montreal. )

To all or any of the Constables or other peace officers in the said District of Montreal, and to the keeper of the Common

[1,8.]

Gaol of the said city of Montreal, in the said District of

Montreal, greeting : Whereas William H. Hutchinson, late of the town of St. Albans, in the State of'Vermont, one of the United States of America, laborer, now in the city of Montreal, was this day charged before me, Charles Joseph Coursol, Esquire, Judge of the Sessions of the Peace, in and for the city of Montreal, on oath of Marcus Wells Beardsley and others, for that he the said William H. Hutchinson on the nineteenth day of October instant, at the town of St. Albans, in the State of Vermont, one of the United States of America, being then and there armed with a certain offensive weapon and instrument, to wit, a pistol, commonly called a revolver, loaded with powder and balls, and capped, in and upon < one Marcus Wells Beardsley feloniously did make an assault, and 
   6

him, the said Marcus Wells Beardsley, in bodily fear and danger of his life, then and there did put, and a certain sum of money, to wit, to the amount of seventy-six thousand dollars current money of the said United States of America, and of the value of seventy-six thousand dollars, current money aforesaid, of the moneys and property of the Franklin County bank, at St. Albans aforesaid, a body corporate, constituted and recognized by the laws of the said State of Vermont, from the person, custody and possession and against the will of the said Marcus Wells Beardsley, and in his presence then and there feloniously and violently did steal, take and carry away, against the form of the statutes of the said State of Vermont, in such case made and provided, and against the peace and dignity of said State.   These are therefore, to command you the said Constable or Peace Officers or any of you, to take the said William H. Hutchinson and him safely convey to the Common Gaol at the city of Montreal aforesaid, and there deliver him to the keeper thereof, together with this precept; and I do hereby command you the said keeper of the said Common Gaol to receive the said William II. Hutchinson into your custody in the said Common Gaol, and there safely to keep him until he shall be brought before me for the purpose of an examination upon oath of any person or persons touching the truth of the said charge, in conformity with the provision of the Statutes made to give effect to the Treaty between Her Majesty the Queen and the United States of America, for the apprehension and surrender of certain offenders, on the second day of November next.

Given under my hand and seal, this twenty-ninth day of October,., in the year of our Lord one thousand eight hundred and sixty-four, at the said city of Montreal, in the District aforesaid.

(Signed)        CHAS. J. COURSOL, J. S. P.

And that this is the cause and the only cause of the capture, commitment and detention of the said William H. Hutchinson in Her Majesty's Gaol aforesaid, the body of which said William H. Hutchinson I have here now as by writ it is commanded me.

Attested at the city of Montreal, in the said District of Montreal, in the said Province of Canada, this twenty-ninth day of October, in the twenty-eighth year of Her Majesty's reign, and in the year of Our Lord one thousand eight hundred and sixty-four (Signed) LOUIS PAYETTE, Gaoler.

By this return it appears that a subseqent warrant of commitment had been made out   and time till the following morning was granted to take communication of it. On the following day, before Judge Badgley, in Chambers, 
   7

Hon. Mr. Abbott, Q. C, on behalf of     Hutchinson, stated that the return which now appeared before the Judge contained not only the original commitment of the Recorder, but also a subsequent one; that the argument respecting the Recorder's commitment having disclosed the defects,   the second was prepared with the view of supplementing the first. The commitment of the Recorder was rendered inadequate by the omission to state the day, the place and the time when the prisoner should be brought up for examination. The attempt to cure the defect in the other warrant consisted in placing at the end of the description of the statute in the warrant the words " on the second day of November next," making the commitment read to the effect that the jailer was ordered to return the prisoner for examination on that day according to the terms of the statute passed for such and such purposes, on the second of November. As the return set forth the second commitment, it was necessary to show now   and he was ready to do so, that it was insufficient. The course of proceedings adopted in the subterranean regions of the police office, was very extraordinary, for as fast as one commitment was found fault with and was on the point of being quashed by his Honor the Judge, another was submitted in order that the accused might be kept in jail from day to day, till the learned gentlemen who drew up the first commitment should learn from the prisoner's counsel how to prepare one in a legal and valid manner. As long as the clerk of the crown, acting apparently in the capacity of clerk of the magistrate, continued to furnish affidavits and commitments, ihe should be careful how he managed the business, and not illegally infringe the liberty of individuals. The Judge, however, would doubtless take good care that personal freedom should not suffer from any contravention or overstraining of the law.

Mr. Carter objected to being styled clerk of the magistrate. He was not such, and had never acted in that capacity.

Hon. Mr. Abbott observed that all he could say was this, that when he arrived at St. Johns, as counsel for the prisoners, he found the learned gentleman who was dork of the crown for the District of Montreal, drawing up informations, preparing commitments, and acting in the capacity of magistrate's clerk in the District of Iberville. These were the duties of a magistrate's clerk, not those of clerk of the crown for the District of Montreal.

Mr. Carter said that if the learned counsel wanted to know in what capacity he acted, he would tell that gentleman, lie would tell him that he received a telegram from Hon. Mr. Cartier, desiring him to go to St. Johns to assist Judge Coursol in carrying on this investigation.

Hon. Mr. Abbott said that whether the learned gentleman had 
   3

acted at the iastance of the attorney-general or no, the task ho    was called upon to perform was precisely that of clerk to the magistrate. As to his being sent there by the attorney-general, he was surprised to hear it; for it was the first time in the history of constitutional government that a free government had _ been found assisting foreigners in attempting to effect the extradition of persons found within its fines, those persons intending no injury to the country in which they had taken refuge, and observing the laws of the country under whose protection they had placed themselves ; and it was a very strange mode of action on the part of the government to send salaried officials away from the duties of their offices, for any such purpose.   The learned counsel then went into the merits of the case, and assuming that the commitment made out by Mr. Sexton was quashed, shewed that the statute authorizing extradition clearly pointed out the course to be pursued. A magistrate was bound, on information being laid before him, to issue his warrant for the arrest of the party accused, and have him brought up for examination. The magistrate then had a right to examine into the facts, and hear the evidence, which, if satisfactory, would authorize him to send the accused to jail, to be dealt with according to the terms of the statute, and to be given up on the issue of the governor-general's warrant. But this particular warrant did not show that the prisoner had ever been brought before a magistrate ; it was simply a warrant sending him to jail, instead of having him brought before the proper authority to be dealt with according to law. In this case the terms of the statute had not been followed ; the magistrate had exceeded his jurisdiction, and his proceedings were absolutely null. The learned, counsel then went on to show that supposing the magistrate had power to remand the prisoner for examination, he was bound in the commitment remanding him, to order the jailor to bring him back for such examination, at such time as in his discretion he considered best, but within the limit fixed by the statute. But in the matter of this particular warrant, instead of fixing the time in that part of the warrant which related to the jailer, nothing at all was said about time ; but the jailer was merely ordered to keep the accused in prison for examination, when he should have been directed to bring him up at a time and place that should have been mentioned in the commitment. No such mention of time and place being made, and the attempt to fix a time was so clumsily made, that the literal and grammatical meaning of the words in the warrant, " the 2nd day of November," actually conveyed the idea that the statute was made and come into force only on that day. The warrant was illegal, and the commitment of the prisoner was the same ; and these few words, " the 2nd day of November," were interpolated at the end of the warrant to give 
   1)

it a validity it did not possess. Supposing the interpolation to mean that the examination was to take place on the 2nd day of November, there was no order to the jailer to bring him up on that day; he was ordered simply to hold the accused in custody. The learned gentleman then referred to the authorities cited on Saturday in reference to Mr. Sexton's commitment, showing the necessity of stating in the warrant the time and place when the prisoner should be brought up for examination. After some discussion,

His Honor said the first question was the irregularity of the whole proceeding. If the gentlemen opposed to Mr. Abbott had waited till they saw if the prisoner were discharged on the first warrant, then they might have arrested him on the 2nd, and the question of habeas corpus would have been unembarrassed. Had those gentlemen taken this step, the whole thing would have been more satisfactory. The jailor, probably could not help having the second commitment in his possession, but the whole proceeding was very irregular.

After some further argument,

Mr. Johnson, Q. C, said he desired to have time to argue the validity of the second commitment. If this right were conceded, he was prepared to go on at once.

Consent having been accorded to Mr. Johnson, the parties were heard on the validity of the commitment.

Mr. Carter came forward and desired to be heard on behalf of the police magistrate.

Hon. Mr. Abbott objected on the ground that the question of the validity of the commitment was a matter for the Judge alone.

Mr. Carter renewed his application to be heard.

Hon. Mr. Abbott said that the magistrate could not be represented by counsel. Further the statute laid it down that a clerk of the crown was prevented from acting as advocate, counsel, solicitor or proctor, in any case whatever.

His Honor said that if Mr. Carter came here to represent the Judge of the peace, he could not be heard.

Mr. Carter said he had a right to be heard.

The Judge of the peace came forward and said he had no desire to have counsel appear on his behalf; for if any thing had to bo said respecting the return he could say it himself.

Mr. Devlin said he was not prepared to discuss the validity of the second commitment, as he had not had sufficient notice.

Hon. Mr. Abbott replied that Mr. Devlin was present on Saturday, when he asked till Monday morning to consider the matter; his request was granted.   He had had ample time.

Judge Badgley intimated he would complete the hearing of the case at two o'clock. 
   10

At two o'clock before His Honor Judge Badgley,

Mr. Kerr, on behalf of the prisoner, said that the whole question was, whether the commitment set out in the return of the jailer was a valid one or not. This was the only question on which His Honor had to pronounce.

Mr. Devlin said he was not prepared to argue'the validity of the warrant or commitment to-day, and as far as was in his power he would protest against this mode of dealing with a question of this importance. Before the second warrant could be taken up the prisoner's counsel must come before His Honor with a second petition for a writ of habeas corpus.

Mr. Johnson, on behalf of the Crown, said he did not see why the Judge should grant an order for a discharge, when there was no petition.

His Honor observed that it was plain enough the habeas corpus and not the petition constituted the record. The application made by Mr. Devlin, in the interest of various parties, to have time to argue the second commitment involved was deserving of consideration, for the questions which might arise upon it a very large branch of what might be called international law. This was a matter of very great importance, and he would suggest to the counsel on all sides, for the purpose of avoiding further discussion, that the second commitment should not now be taken up. The whole proceeding had been very irregular. The man might have been discharged on the first warrant, and before he left the room been arrested on the second, but instead of this both warrants had been mixed up in a very irregular manner. The zeal of the prosecutors had outrun their discretion, and the whole thing was a complete series of blunders from first to last, and this evidently to make confusion. It would have been better in order to simplify the thing if the first warrant had been disposed of, and the second commitment could then have come up substantially, an 1 the questions involved been fairly discussed. He would suggest to the gentlemen on both sides to let judgment go on the first warrant,, reserving their right to take substantial issue on the second.

Hon. Mr. Abbott observed that to-morrow was a holiday, and the prisoner would be kept two days in jail, during which time any number of applications might be made against him. The object of prisoner's counsel was to have him released from illegal detention. . Jud3e Badgley   -The whole thing that comes up now is the sufficiency or insufficiency of the return ; and the question comes up on formal or technical grounds. The Judge only has to look on the face of the warrant to see that it bears out a sufficient commitment I think it does bear out a sufficient commitment to enable the Court to remand the prisoner for the present. That return is sufficient. 
   11

After some further discussion the warrant issued by the Recorder was pronounced by the Court to be illegal, null and void; and Friday was appointed for hearing the application for the discharge of the prisoner, from the warrant issued by the Judge of the sessions of the peace.   The prisoner remains in jail in the meantime.

   \      Motion of Writ of '' Habeas Corpus."

court of queen's bench, / -

In Chambers. { (Before Justices Aylwin, Mondelet ani

j Dbummond.)

Wednesday, Nov. 2nd, 1864.

This morning the Court was crowded, to hear the argument and decision on motions for a writ of habeas corpus in behalf of the St. Albans raiders, at present imprisoned in the Montreal jail.

Hon. Mr. Abbott, Q. C.; Mr. Laflamme, Q. C.; and Mr. Kerr appeared for the prisoners. Mr. Develin, representing the United States Government, associated with Hon. Mr. Edmonds, of Vermont. Messrs. Johnson, Q. C, and Carter, Q. C, appeared for the Crown. Messrs. E A. Sowles and Edson were present in the interest of the St. Albans banks robbed.

Mr. Kerr presented a petition for a writ of habeas corpus in behalf of Samuel Eugene Lackey and thirteen other prisoners concerned in the St. Albans raid.

Mr. Justice Mondelet.   Are all chai'ged with the same offences ?

Mr. Kerr.   Yes.

Judge Mondelet.   With specific offences ?

Mr. Kerr   One offence is murder committed within the jurisdiction of the United States, and the other robbery. The principles which would apply to those commitments are general and applicable to the whole.

Mr. Carter said he was clerk of the crown, and had a right to speak on the present occasion. He would beg to inform the Court that this was not a final commitment, but one for examination, and that the prisoners were now before the Judge of the sessions, who was about going on with the examination of witnesses and other requisite procedings. The argument for a writ of habeas corpus was actually delaying the argument about to take place before the Judge of the sessions.

Judge Aylwin   Asked for the petition, which was handed to and read by him.   He then asked, was there any final commitment ? Mr. Kerr.   None.

Judge Aylwin.   That is the end of the matter. Mr. Kerr asked to be heard. 
   12

Judges Aylwin and Drummond, though demurring to_ the propriety of such a course, before the prisoners were examined, permitted the Counsel for the latter to proceed.

Mr. Abbott said the point they intended to bring before _ their Honors was not one relative to the crimes charged, but applied to an excessive jurisdiction in this commitment. If the magistrate exercised excessive jurisdiction, even in a preliminary commitment, the Court would take notice of it. The statute authorizes a magistrate, under certain circumstances, to commit a prisoner for examination, for a limited period, in his discretion, not exceeding _ eight days. Of course, then, if a magistrate committed a prisoner, without reference to the statute, without limiting the time before examination,, there was an exercise of excessive jurisdiction.

Judge Mondelet asked if the learned gentleman had ever read or heard of a writ of habeas corpus being applied for while a preliminary investigation was proceeding before the magistrate or any justice whatever, in order to prevent such examination being completed. Suppose the' prisoners were discharged at this stage, what security would there be for the community at large. He did not allude to these prisoners in particular, as their case must come before the Court. The Judges were independent of the executive and every one else, and justice could and would be done the prisoners whatever the consecpiences. But, at the same time, the Court must take care and act according to the law, both as to the prisoners and foreigners interested.

Mr. Abbott said that the law had contemplated every case, including that of a person brought before a magistrate against whom there was not sufficient evidence at the moment to warrant a commitment for trial. The d