But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. (s) 25 This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term-time, but also during the vacation, (t) by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions: for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, (u) wher ever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereon; (v) unless the term shall intervene, and then it may be returned in court. (w) Indeed if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or suitor of the court, an habeas corpus ad subjiciendum might also by com. mon law have been awarded from thence; (x) and, if the cause of imprisonment were palpably illegal, they might have discharged him: (y) but, if he were committed for any criminal matter, they could only have [132] remanded him, or taken bail for his appearance in the court of king's bench, (z) which occasioned the common pleas for some time to discountenance such applications. But since the mention of the king's bench and common pleas, as co-ordinate in this jurisdiction, by sta. tute 16 Car. I. c. 10. it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common law writ, in either of those courts, at his option. (a) It has also been said, and by very respectable authorities, (b) that the habeas corpus may issue out of the court of chancery in vacation: but upon the famous application to lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation, (e) and therefore his lordship refused it. s St. Trials, viii. 142. t The pluries habeas corpus directed to Berwick in 43 Eliz. (cited 4 Burr. 856.) was teste'd die Jovis prox' post quinden' Sancti Martini. It appears by referring to the dominical letter of that year, that this quindena (Nov. 25.) happened that year on a Saturday. The Thursday after was therefore the 30th of November, two days after the expiration of the term. w Ibid. 460.542. 606. u Cro. Jac. 543. v 4 Burr. 856. x 2 Inst. 55. 4 Inst. 290. 2 Hal. P. C. 144. b 4 Inst. 182. 2 Hal. P. C. 147. (25) Bishop Burnet relates a circumstance respecting the habeas corpus act, which is more curious than credible; but though we cannot be induced to suppose that this important statute was obtained by a jest and a fraud, yet the story proves that a very formidable opposition was made to it at that time. "It was carried," says he, " by an odd artifice in the house of lords. Lord Grey and Lord Norris were named to be the tellers, lord Norris being a man subject to vapours, was not at all times attentive to what he was doing, so a very fat lord coming in, lord Grey counted him for ten as a jest at first, but seeing lord Norris had not observed it, he went on with this misreckoning of ten, so it was reported to the house, and declared that they who were for the bill were the majority, though it indeed went on the other side; and by this means the bill passed." 1 Burnet. Hist. Ch. II. 485. Christian. (26) It was determined, after a very elaborate investigation of all the authorities by lord Eldon in Crowley's case, that the lord chancellor can issue the writ of habeas corpus at common law in vacation, overruling the decision in Jenks's case. See 2 Swanst. 1. By two modern statutes, the 43 Geo. III. c. 140. and 44 Geo. III. c. 102. the habeas corpus ad testificandum has been rendered more efficient. By the first, a judge may award the writ for the purpose of bringing any prisoner from any gaol in England or Ireland as a witness, before any court-martial, commissioners of bankrupt, or for auditing public accounts, or other commissioners, under any commission or warrant from his majesty; (the statute has the same ap plication to the habeas corpus ad deliberandum). By the other statute, a similar power is given In the king's bench and common pleas it is necessary to apply for it by mo. tion to the court, (d) as in the case of all other prerogative writs (certiorari, d 2 Mod. 306. 1 Lev. 1. for bringing up any prisoner as a witness before any of the courts, or any justice of oyer and terminer, or gaol delivery, or sitting at nisi prius, in England or Ireland. The benefit of the writ of habeas corpus, which was limited by the former acts to cases of commitment or detainer for criminal, or supposed criminal matter, has been still further extended by the 56 Geo. III. c. 100. which enacts, that any one of the judges may issue a writ of habeas corpus in vacation, returnable immediately, before himself or any other judge of the same court in cases other than for criminal matter or for debt; and the non-observance of such writ is to be deemed a contempt of court. But if the writ be awarded so late in the vacation that the return cannot be conveniently made before term, then it is to be made returnable in court at a day certain. And if the writ be awarded late in term, it may be made returnable in vacation in like manner. The act applies to Ireland as well as England, and the writ may run into counties palatine, cinque ports, and privileged places, &c. Berwick-upon-Tweed, and the isles of Guernsey, Jersey, or Man.⚫ The writ of habeas corpus is the privilege of the British subject only, and therefore cannot be obtained by an alien enemy, or a prisoner of war. See the case of the three Spanish sailors, 2 Blk. 1324. 2 Burr. 765. The relief in such cases is by application to the secretary at war. On a commitment by either house of parliament for contempt or breach of privilege, the courts at Westminster cannot discharge on a habeas corpus; although on the return of the writ such commitment should appear illegal; for they have no power to control the privileges of parliament. 2 Hawk. c. 15. s. 73. 8 T. R. 314. The writ of habeas corpus, whether at common law or under 31 Car. II. c. 2., does not issue as a matter of course upon application in the first instance, but must be grounded on an affida vit, upon which the court are to exercise their discretion whether the writ shall issue or not. 3 B. & A. 420. 2 Chitty R. 207. A habeas corpus cum causa does not lie to remove proceedings from an inferior jurisdiction, into the court of K. B. unless it appears that the defendant is actually or virtually in the custody of the court below. 1 B. & C. 513. 2 Dowl. & R. 722. The court of K. B. will grant a habeas corpus to the warden of the Fleet, to take a prisoner confined there for debt before a magistrate, to be examined from day to day respecting a charge of felony or misdemeanor. 5 B. & A. 730. The court of exchequer will not grant a habeas corpus to enable the defendant in an information, who is confined in a county gaol for a libel under the sentence of another court, to attend at Westminster to conduct his defence in person;-the application should be made to the court by whom the defendant was sentenced. 9 Price, 147. Nor will the court of K. B. grant a writ of habeas corpus to bring up a defendant under sentence of imprisonment for a misdemeanor, to enable him to shew cause in person against a rule for a criminal information. 3 B. & A. 679. n. Where there are articles of separation between the husband and wife, if the husband afterwards confine her, she may have a habeas corpus and be set at liberty. 13 East, 173. n. A habeas corpus will be granted in the first instance, to bring up an infant who had absconded from his father and was detained by a third person without his consent. 4 Moore, 366. The court will not grant a habeas corpus to bring up the body of a feme-covert on an affidavit that she is desirous of disposing of her separate property, and that her husband will not admit the necessary parties, and that she is confined by illness and not likely to live long; nor will they under such circumstances, grant a rule to shew cause why the necessary parties should not be admitted to see her, for if there be no restraint of personal liberty, the matter is only cognizable in a court of equity. 1 Chitty R. 654. Where application had been made for the discharge of an impressed seaman, before the two years of his protection by the stat. 13 Geo. II. c. 17. were expired; which was then ineffectual, because the facts were not verified with sufficient certainty; yet the doubt being removed by another affidavit, the court granted a writ of habeas corpus for the purpose of liberating him, though the two years were expired. 8 East, 27. The court on affidavit, suggesting probable cause to believe that a helpless and ignorant female foreigner was exhibited for money without her consent, granted a rule on her keepers to shew cause why a writ of habeas corpus should not issue to bring her before the court, and directed an examination before the coroner and attorney of the court, in the presence of the parties applying and applied against. Ex. parte Hottentot Venus, 13 East, 195. The writ will be granted to a military officer under arrest for charges of misconduct, if he be not brought to trial pursuant to the articles of war, as soon as a court-martial can be conveniently assembled, unless the delay is satisfactorily explained. 2 M. & S. 423. The court will grant a habeas corpus to bring up the body of a bastard child within the age of nurture, for the purpose of restoring it to its mother, from whom it had been taken, first by fraud, and then by force, without prejudice to the question of guardianship, which belongs to the lord chancellor. 7 East, 579. Where a prisoner is brought up under a babeas corpus issued at common law, be may controvert the truth of the return by virtue of the 56 Geo. III. c. 100. s. 4. 4 B. & C. 136. Prisoner committed for manslaughter, upon the return of the habeas corpus, was allowed to give bail in the country, by reason of his poverty, which rendered him unable to appear with bail in court. 6 M. & S. 108. 1 B. & A. 209. 2 Chit. Rep. 110. With respect to the Return. A return in the following words, "I had not at the time of receiving this writ, nor have I since, had the body of A. B. detained in my custody, so that I could not hate her, &c." was holden bad, and an attachment was granted against the party who made prohibition, mandamus, &c.) which do not issue as of mere course, without shewing some probable cause why the extraordinary power of the crown is called in to the party's assistance. For, as was argued by lord chief justice Vaughan, (e) "it is granted on motion, because it cannot be had of course; "and there is therefore no necessity to grant it; for the court ought to be sa"tisfied that the party hath a probable cause to be delivered." And this seems the more reasonable, because (when once granted) the person to whom it is directed can return no satisfactory excuse for not bringing up the body of the prisoner. (f) So that if it issued of mere course, without shewing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king's service, a wife, a child, a relation, or a domestic, confined for insanity, or other pru[133] dential reasons, might obtain a temporary enlargement by suing out an habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore sir Edward Coke, when chief justice, did not scruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own shewing, sufficient grounds to confine him. (g) On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, (h) and therefore hath a right to be delivered, the writ of habeas corpus is then à writ of right, which "may not be denied, but ought to be granted to every "man that is committed, or detained in prison, or otherwise restrained, "though it be by the command of the king, the privy council, or any "other." (i) In a former part of these commentaries (k) we expatiated at large on the personal liberty of the subject. This was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commis. sion of some great and atrocious crime, and which ought not to be abridged in any case without the special permission of law. A doctrine coeval with the first rudiments of the English constitution, and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest: asserted afterwards and confirmed by the conqueror himself and his descendants; and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis of the provisions of magna carta, and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering its protection impossible: but the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to f Cro. Jac. 543. h 2 Inst. 615. e Bushel's case. 2 Jon. 13. i Com. Journ. 1 Apr. 1628. it. 5 T. R. 89. It seems sufficient to set forth, that the defendant is in custody under the sentence of a court of competent jurisdiction to inquire of the offence and pass such sentence, without setting forth the particular circumstances necessary to warrant such a sentence. 1 East, 306. 5 Dow. 199, 200. The court will not extend matter debors the return, in support of the sentence or proceeding against the defendant, 2 M. & S. 226. nor go into the merits, but decide upon the return of a regular conviction prima facie. 7 East, 376. Where a defendant was committed by an ecclesiastical judge of appeal for contumacy in not paying costs, and the significavit only described the suit to be a certain cause of appeal and complaint of nullity," without shewing that the defendant was committed for a cause within the jurisdiction of the spiritual judge, it was held, that the defendant was entitled to be discharged on habeas corpus. 5 B. & A. 791. 1 Dowl. & Ry, 460. Chitty. what degree the imprisonment of the subject may be lawful. This [134] it is, which induces the absolute necessity of expressing upon every commitment the reason for which it is made: that the court upon an habeas corpus may examine into its validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner. And yet, early in the reign of Charles I. the court of king's bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined (7) that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. This drew on a parliamentary inquiry, and produced the petition of right, 3 Car. I. which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a gene. ral charge of "notable contempts and stirring up sedition against the king "and government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And when at length they agreed that it was, they however annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment, the chief justice, sir Nicholas Hyde, at the same time declaring (m) that" if they were again remanded for that cause, perhaps the "court would not afterwards grant a habeas corpus, being already made "acquainted with the cause of the imprisonment. But this was heard with indignation and astonishment by every lawyer present; according to Mr. Selden's own (n) account of the matter, whose resent- [135] ment was not cooled at the distance of four-and-twenty years. These pitiful evasions gave rise to the statute 16 Car. I. c. 10. § 8. whereby it is enacted, that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas: who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still in the case of Jenks, before alluded to, (o) who in 1676 was committed by the king in council for a turbulent speech at Guildhall, (p) new shifts and devices were made use of to prevent his enlargement by law, the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum. &c. whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second or a third, called an alias and a pluries, were issued, before he produced the party; and many other vexatious shifts were practised to detain state-prisoners in custody. But whoever will attentively consider the English history, may observe, that the flagrant abuse of any power, by the crown or m Ibid. 240. 1 State Tr. vii. 136. "Etian judicum tunc primarius, nisi illud faceremus, rescripti illius forensis, qui libertatis personalis omnimodae vindex legitimus est fere solus, usum omnimodum palam pronuntiavit (sui semper similis) nobis perpetuo in posterum denegandum. Quod, ut odiosissimum juris prodigium, scientioribus hic universis censitam." (Vindic. Mar. claus. edit. A. D. 1658.) o Pag. 132. p Stat. Tr. vii. 471. its ministers, has always been productive of a struggle; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas [136] corpus act, 31 Car. II. c. 2. which is frequently considered as ano ther magna carta (q) of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs (though not within reach of that statute, but issuing merely at the common law) to the true standard of law and liberty. The statute itself enacts, 1. That on complaint and request in writing by or on behalf of any person committed and charged with any crime (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory, before the fact, to any petittreason or felony; or upon suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process,) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be indorsed, as granted in pursuance of this act, and signed by the person awarding them. 3. That the writ shall be returned and the prisoner brought up,within a limited time according to the dis tance, not exceeding in any case twenty days. 4. That officers and keep. ers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority (specified in the act,) shall for the first offence forfeit 1007. and for the second offence 2001. to the party grieved, and be disabled to hold his office. That no person once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 500l. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and ter[137] miner, be indicted in that term or session, or else admitted to bail; unless the king's witnesses cannot be produced at that time: and if ac. quitted, or if not indicted and tried in the second term, or session, he shall be discharged from his imprisonment for such imputed offence: but that no person, after the assises shall be open for the county in which he is detained, shall be removed by habeas corpus, till after the assises are ended; but shall be left to the justice of the judges of assise. 7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of 5001. 8. That this writ of habeas corpus shall run into the counties palatine, cinque-ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying, to be transported; or having committed some capital offence in the place to which they are sent) shall be sent q See Book I. ch. 1. |