In High Places

When he had completed the ledger entry the clerk took a black gown from a peg and shrugged it around his shoulders. 'Come this way, please.'

He preceded Alan out of the Registry, along a panelled corridor, through double swing doors, and into the courthouse hallway where a wide stone staircase led to the upper floor. The building was quiet, their footsteps echoing. At this time of day most of the courts had risen and some of the building's lights were already turned out.

As they climbed the stairs, treading sedately one step at a time, an unaccustomed nervousness gripped Alan tautly. He subdued a childish impulse to turn and run. Earlier, in considering the arguments he intended to present, they had appeared plausible, even if some of the legal ground was shaky. But now, abruptly, the structure of his case seemed witless and naive. Was he about to make a fool of himself in the august presence of a Supreme Court judge? And if he did, what of the consequences? Judges were not to be trifled with, or special hearings demanded without good reason.

In a way he wished he had chosen another time of day, with the courthouse busy, as it usually was in the morning and early afternoon. The sight of other people might have been reassuring. But he had chosen this time carefully, to avoid attention and any more publicity which at this point might prove harmful. Most of the newspaper court reporters would have gone home by now, he hoped, and he had been careful to give other newspapermen who had phoned him several times today no hint of what was planned.

'It's Mr Justice Willis in chambers today,' the clerk said. 'Do you know him, Mr Maitland?'

'I've heard his name,' Alan said, 'but that's all.' He was aware that the roster of chamber judges changed regularly, each justice of the Supreme Court taking his turn to be available in chambers outside regular court hours. Therefore whichever judge one drew was mainly a matter of chance.

The clerk appeared about to speak, then changed his mind. Alan prompted him, 'Was there something you were going to tell me?'

'Well, sir, just a suggestion – if it isn't presumptuous.'

'Please go ahead,' Alan urged.

They had come to the head of the stairway and turned down a darkened corridor. 'Well, Mr Maitland' – the clerk lowered his voice – 'his lordship is a fine gentleman. But he's very strict about procedure and especially interruptions. Take as long as you like over your argument and he'll give you all the time you need. But once he's begun to talk himself he doesn't like anyone to speak, not even to ask questions, until he's finished. He can get very annoyed when that happens.'

'Thanks,' Alan said gratefully, 'I'll remember.'

Stopping at a heavy door, marked with the one word PRIVATE, the clerk rapped twice, his head cocked forward to listen. Faintly from inside a voice called 'Come!' The clerk opened the door, ushering Alan in.

It was a large, panelled room, Alan saw, carpeted, and with a tiled fireplace. In front of the fireplace a portable electric fire had two of its elements turned on. A mahogany desk, piled with files and books, occupied the room's centre, with more books and papers on a table behind. Brown velvet draperies were drawn back from leaded windows, revealing dusk outside, with lights of the city and harbour beginning to wink on. Within the room a single desk lamp burned, providing a pool of light. Outside the lamp's radius an erect lean figure had been putting on an overcoat and hat, preparing to leave, as the clerk and Alan entered.

'My lord,' the clerk said, 'Mr Maitland has an application for habeas corpus.'

'Indeed.' The one word, gruffly spoken, was the sole response. As the clerk and Alan waited, Mr Justice Stanley Willis carefully removed the coat and hat, replacing both on a stand behind him. Then, moving into the circle of light by the desk and seating himself, he instructed sharply, 'Come forward, Mr Maitland.'

His lordship, Alan judged, was a man of sixty or sixty-two, white-haired and sparely built, but with wide bony shoulders and a ramrod posture which made him seem taller than he was. His face was long and angular with a dominant jutting chin, bushy white eyebrows, and mouth set firmly in an even line. His eyes were penetrating and alert, yet unrevealing of themselves. The habit of authority sat naturally upon him.

Still nervously, despite his own inner reasoning, Alan Maitland approached the desk, the clerk remaining in the room as protocol required. From the briefcase Alan produced typed ribbon copies of the application and affidavit he had filed in Registry. Clearing his throat, he announced, 'My lord, here is my material and these are my submissions.'

Mr Justice Willis accepted the documents with a curt nod, moved closer to the light, and began to read. As the other two stood silently, the only sound was the rustle of pages turning.

When he had completed reading, the judge looked up, his expression noncommittal. Gruffly as before he asked; 'Do you intend to make an oral submission?'

'If Your Lordship pleases.'

Again a nod. 'Proceed.'

'The facts of the matter, my lord, are these.' In sequence, as he had memorized earlier, Alan described the situation of Henri Duval aboard the Vastervik, the refusal of the ship's captain on two occasions to bring the stowaway before immigration authorities ashore, and Alan's own submission – supported by his personal affidavit – that Duval was being illegally imprisoned in violation of basic human rights.

The crux of the situation, as Alan well knew, lay in establishing that the present detention of Henri Duval was procedurally wrong under the law, and therefore illegal. If this could be proven, the Court – in the person of Mr Justice Willis – must automatically issue a writ of habeas corpus, ordering the stowaway's release from the ship and his appearance before the court for consideration of his case.

Marshalling the arguments, and quoting statutes in support, Alan felt some of his confidence return. He was careful to confine himself to legal points only, leaving the emotional aspect of the stowaway's plight unspoken. Law, not sentiment, was what counted here. As he spoke the judge listened impassively, his expression unchanging.

Turning from the question of illegal detention to the present status of Henri Duval, Alan declared, 'It is argued by the Department of Immigration, my lord, that since my client is a stowaway and allegedly without documents, he has no legal rights and therefore cannot demand – as others may do at any Canadian port of entry – a special inquiry into his immigrant status. But it is my contention that the fact of his being a stowaway and apparently uncertain of his birthplace in no way detracts from this right.

'If Your Lordship will consider certain possibilities: a Canadian citizen by birth, travelling abroad and held unlawfully in custody, with papers taken from him, might find his only means of escape by stowing aboard a ship he knows to be destined to this country. Would he, in such case, because of his description as a stowaway and the absence of papers, be relegated to apparent non-existence, unable to prove his lawful right to enter Canada because an inquiry by the Department of Immigration had been denied him? I suggest, my lord, that this absurd situation could, in fact, exist if the department's present ruling were carried to its logical conclusion.'

The judge's bushy eyebrows went up. 'You're not suggesting, are you, that your client Henri Duval is a Canadian citizen?'

Alan hesitated, then replied carefully, 'That is not my suggestion, my lord. On the other hand, an immigration inquiry might reveal him as a Canadian, a fact which could not be established without the inquiry first.' When you had a weak case and knew it, Alan thought, even straws should be grasped at firmly.

'Well,' Mr Justice Willis said, and for the first time his face had the ghost of a smile, 'it's an ingenious argument, if a little thin. Is that all, Mr Maitland?'

Instinct told Alan: quit when you're ahead. He gave the slightest of bows. 'With respect, my lord, that is my submission.'

In the desk lamp's glow Mr Justice Willis sat meditatively silent. The momentary smile had gone, his face once more a stern immobile mask. The fingers of his right hand drummed the desk top softly. After a while he began, 'There is, of course, a time element involved – the question of the ship's sailing…'

Alan interjected, 'If Your Lordship pleases: in the matter of the ship…' He was about to explain the Vastervik's delay in Vancouver for repairs but stopped abruptly. At the interruption the judge's face had clouded angrily, his eyes beneath the bushy eyebrows bleak. Across the room Alan could sense the clerk's reproach. He swallowed. 'I beg Your Lordship's pardon.'

Briefly Mr Justice Willis stared coldly at the young lawyer. Then he continued, 'As I was about to observe, although there is a time limit involved, namely the question of the ship's departure, this must not interfere in any way with a matter of individual justice.'

Alan's heart leaped. Did this mean that the writ of habeas corpus was to be granted?… that afterwards he could take his time about procedure, moving slowly through successive legal steps while the Vastervik sailed, leaving Henri Duval behind?

'On the other hand,' the judge's voice proceeded evenly, 'as a matter of public policy, and in fairness to the shipping company concerned, which is somewhat an innocent bystander in this affair, it is equally pertinent that everything possible should be done to expedite procedure so as to render a final decision before the ship's normal sailing.'

So the optimism had been premature. Gloomily Alan reflected that not only Edgar Kramer, but now this judge, had seen through his ruse of a delaying action.

'I consider the matter of illegal detention not proven.' His lordship drew the submissions towards him and made a pencilled notation. 'But neither is it disproven and I am prepared to hear further argument. I shall therefore allow an order nisi.'

It was not defeat then, but partial victory, and a wave of relief swept over Alan. True he had achieved less than hoped for, but at least he had not made a fool of himself. The order nisi – the old English legal procedure – meant 'unless'. The nisi writ alone would not free Henri Duval from his shipboard prison and bring him before the Court. But it did mean that Edgar Kramer and Captain Jaabeck were to be summoned here to explain their stand. And unless their arguments -'or those of legal counsel – prevailed, the habeas corpus writ, releasing Duval, would follow.

'In the course of events, Mr Maitland, when will the ship sail?'

The eyes of Mr Justice Willis were upon him. Alan paused, wary before speaking, then realized the question was addressed directly.

'As far as I can learn, my lord, the ship will be here another two weeks.'

The judge nodded. 'It should be sufficient.'

'And the hearing on the writ, my lord?'

Mr Justice Willis pulled a desk calendar towards him. 'We should set the date, I think, for three days' time. If that is convenient.' It was the traditional courteous exchange between judge and lawyer, no matter how junior the latter might be.

Alan inclined his head. 'Yes, my lord.'

'You will have the papers drawn, of course.'

'If Your Lordship pleases, I have them ready.' Alan opened the briefcase.

'An order nisi'?''

'Yes, my lord. I foresaw that possibility.'

The moment the words were out Alan regretted them, as youthful and brash. In the ordinary way the writ would have been typed and submitted for the judge's signature next day. It had been Alan's idea to prepare a final order for signing promptly, and Tom Lewis had suggested the addition of an order nisi. Now, with slightly less assurance, Alan laid the typed pages, clipped together on the judge's desk.