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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 remanded him, or taken bail for his appearance in the court of king's bench (2), which occasioned the common pleas for some time to discountenance such applications. But since the mention of the king's [*132] bench and common pleas, as co-ordinate in this jurisdiction, by statute 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 hath also been said, and by very respectable authorities (6), that the like 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 (c), and therefore his lordship refused it (23).

(a) 2 Mod. 198. Wood's Case, C. B. Hill. 11 Geo.

(2) 2 Inst. 53. 4 Inst. 290. 2 Hal. P. C. 141. 2 Ventr. 24.

(y) Vaugh. 155.
(2) Carter 221. 2 Jon. 13.


(0) 4 Inst. 182. 2 Hal. P. C. 147.
(c) Lord Nott. MSS. Rep. July, 1676.

(23) It was determined, after a very elabo- not be obtained by an alien enemy, or a prisonrate investigation of all the authorities by lord er of war. See the case of the three Spanish Eldon in Crowley's case, that the lord 'chan- sailors, 2 Blk. 1324. 2 Burr. 765. The recellor can issue the writ of habeas corpus at lief in such cases is by application to the secommon law in vacation, overruling the deci- cretary at war. On a commitment by either sion in Jenks's case. See 2 Swanst. I. house of parliament for contempt or breach of

By two modern statutes, the 43 Geo. III. c. privilege, the courts at Westminster cannot 140. and 44 Geo. III. c. 102. the habeas corpus discharge on a habeas corpus; although on ad testificandum has been rendered more effi- the return of the writ such commitment should cient. By the first, a judge may award the appear illegal; for they have no power to con. writ for the purpose of bringing any prisoner trol the privileges of parliament. 2 Hawk. C. from any gaol in England or Ireland as a wit- 15. s. 73. 8 T. R. 314. ness, before any court-martial, commissioners The writ of habeas corpus, whether at comof bankrupt, or for auditing public accounts, mon law or under 31 Car. II. c. 2. does not or other commissioners, under any commission issue as a matter of course upon application or warrant from his majesty ; (the statute has in the first instance, but must be grounded on the same application to the habeas corpus ad an affidavit, upon which the court are to exdeliberandum). By the other statute, a simia ercise their discretion whether the writ shall lar power is given for bringing up any prisoner issue or not. 3 B. & A. 420. 2 Chitty R. as a witness before any the courts, or any 207. A habeas corpus cum causa does not lie justice of oyer and terminer, or gaol delivery, to remove proceedings from an inferior jurisor sitting at nisi prius, in England or Ireland. diction, into the court of K. B., unless it ap

The benefit of the writ of babeas corpus, pears that the defendant is actually or virtually which was limited by the former acts to cases in the custody of the court below. 1 B. & C. of commitment or detainer for criminal, or aup. 513. 2 Dowl. & R. 722. The court of K. B. will posed crimoinal matter, has been still further grant a habeas corpus to the warden of the extended by the 59 Geo. III. c. 100. which Fleet, to take a prisoner confined there for enacts, that any one of the judges may issue a debt before a magistrate, to be examined from writ of habeas corpus in vacation, returnable day to day respecting a charge of felony or immediately, before himself or any other judge misdemeanor. 5 B. & 4. 730. The court of of the same court in cases other than for cri: exchequer will not grani a habeas corpus to minal matter or for debt; and the non-obser- enable the desendant in an information, who vance of such writ is to be deemed a contempt is confined in a county gaol for a libel under of court. But if the writ be awarded so late the sentence of another court, to attend at in the vacation that the return cannot be con- Westminster to conduct his defence in perveniently made before term, then it is to be son ;-the application should be made to the made returnable in court at a day certain court by whom the defendant was sentenced. And is the writ be awarded late in term, it 9 Price, 147. Nor will the court of K. B. may be made returnable in vacation in like grant a writ of habeas corpus to bring up a


The act applies to Ireland as well defendant under sentence of imprisonment for as England, and the writ may run into coun- a misdemeanor, to enable him to shew cause in ties palatine, cinque ports, and privileged person against a rule for a criminal informaplaces, &c. Berwick-upon-Tweed, and the iion. 3 B. & A. 679. n. Where there are arisles of Guernsey, Jersey, or Man.

ticles of separation between the husband and The writ of habeas corpus is the privilege wise, if the husband afterwards confine her, of the British subject only, and therefore canshe may have a habeas corpus and be set at


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In the king's bench and common pleas it is necessary to apply for it by motion to the court (d), as in the case of all other prerogative writs (certiorari

, prohibition, mandamus, fc.) 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 satisfied 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 (S). 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 prudential 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 (d) 2 Mod. 306. 1 Lev. 1.

(f) Cro. Jac. 543. (e) Bushel's case, 2 Jon. 13. liberty. 13 East, 173. n. A habeas corpus will it to its mother, from whom it had been taken, be granted in the first instance, to bring up an first by fraud, and then by force, without preinfant who had absconded from his father and judice to the question of guardianship, which was detained by a third person without his belongs to the lord chancellor. 7 East, 579. consent. 4 Moore, 366. The court will not Where a prisoner is brought up under a habeas grant a habeas corpus to bring up the body of corpus issued at common law, he may cona feme-covert on an affidavit that she is desi. trovert the truth of the return by virtue of the rous of disposing of her separate property, and 56 Geo. III. c. 100. s. 4. 4 B. & C. 136. Pri. that her husband will not admit the necessary soner committed for manslaughter, upon the parties, and that she is confined by illness and return of the habeas corpus, was allowed to not likely to live long; nor will they under give bail in the country, by reason of his posuch circumstances, grant a rule to shew verty, which rendered him unable to appear cause why the necessary parties should not be with bail in court. 6 M. & S. 108. IB. & admitted to see her, for if there be no restraint A. 209. 2 Chit. Rep. 110. of personal liberty, the matter is only cogni- With respect to the Return. A return in zable in a court of equity. 1 Chitty R. 654. the following words, “I had not at the time of Where application had been made for the dis- receiving this writ, nor have I since, had the charge of an impressed seaman, before the body of A. B. detained in my custody, so that two years of his protection by the stat. 13 Geo. I could not have her, &c." was holden bad, II. c. 17. were expired; which was then in. and an attachment was granted against the effectual, because the facts were not verified party who made it. 5 T. R. 89. It seems with sufficient certainty ; yet the doubt being sufficient to set forth, that the defendant is in removed by another affidavit, the court granto custody under the sentence of a court of comed a writ of habeas corpus for the purpose of petent jurisdiction to inquire of the offence liberating him, though the two years were ex- and pass such sentence, without setting forth pired. 8 East, 27. The court on affidavit, the particular circumstances necessary to warsuggesting probable cause to believe that a rant such a sentence. 1 East, 306.5 Dow. helpless and ignorant female foreigner was 199, 200. The court will not extend matter exhibited for money without her consent, grant. dehors the return, in support of the sentence ed a rule on her keepers to shew cause why a or proceeding against the defendant, 2 M. & writ of habeas corpus should not issue to bring S. 226. nor go into the merits, but decide upon her before the court, and directed an examina- the return of a regular conviction prima facie. tion before the coroner and attorney of the 7 East, 376. Where a defendant was comcourt, in the presence of the parties applying mitted by an ecclesiastical judge of appeal for and applied against. Ex parte Hottentot Ve- contumacy in not paying costs, and the signi. nus, 13 East, 195. The writ will be granted ficavit only described the suit to be "a certain to a military officer under arrest for charges of cause of appeal and complaint of nullity," misconduct, if he be not brought to trial pur- without shewing that the defendant was comsuant to the articles of war, as soon as a court- mitted for a cause within the jurisdiction of martial can be conveniently assembled, unless the spiritual judge, it was held, that the de. the delay is satisfactorily explained. 2 M. & fendant was entitled to be discharged on haS. 428. The court will grant a habeas corpus beas corpus. 5 B. & A. 791. •1 Dowl. & Ry. to bring up the body of a bastard child within 460. the age of nurture, for the purpose of restoring

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by the court of admiralty for piracy; there appearing, upon his own shewing, sufficient grounds to *confine him (g). On the [*133] 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 then a 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 (1)."

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 commission of some great and atrocious crime, and which ought not to be abridged in any case without the special permission of law. A doctrine

A 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 asterwards 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 by 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 what degree the imprisonment of the subject may be lawful. This 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 [*134] bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined (?) 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 general 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 (5) 3 Bulstr. 27. See also 2 Roll. Rep. 138. (k) Book I. chap. 1. (i) Com. Journ. 1 Apr. 1628.

(m) Ibid. 240.

1) 2 Inst. 615.

(1) State Tr. vii. 136.

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every lawyer present: 'according to Mr. Selden's own (n) account of the
matter, whose resentment was not cooled at the distance of four-and-twenty
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 [*135) himself in person, or by his privy *council, or by any of the mem

bers 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, fc. 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 and 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 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 corpus act, 31 Car. II. c. 2. which is frequently considered as another magna carta (9) 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 the reach of that statute, but issuing merely at the common law) to the true standard

of law and liberty. [*136] *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 petit-treason 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 (24)

(n) Etiam judicum tunc primarius, nisi illud hic universis censitum.” (Vindic. Mar. claus. edit. faceremus, rescripti illius forensis, qui libertatis A. D. 1653.) personalis omnimodae vinder legitimus est fere so- (0) Page 132. lus, usum omnimodum palam pronuntiavit (sui sem- (p) State Tr. vii. 471. per similis) nobis perpetuo in posterum denegandum. (9) See Book I. ch. 1. Quod, ut odiosissimum juris prodigium, scientioribus


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(24) In New-York the writ issues when a the following: viz. 1. A commitment under person is detained on any pretence, except process issued by any judge or court of the U.


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 distance, not exceeding in any case twenty days. 4. That officers and keepers 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 1001. 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 5001. 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 terminer, 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 acquitted, 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 assizes shall be *open [*137] for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended ; but shall be left to the justice of the judges of assize. 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 resused, 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 prisoner to Scotland, Ireland, Jersey, S. having exclusive jurisdiction of the matter The writ cannot be disobeyed for want of by the laws of the U.S.

form, and may be returnable immediately or 2. Commitments under the final judgment on a day certain : and if the proper officer re. or decree of any competent tribunal, or under fuse to allow the writ, he is liable to a fine of an execution thereon. But no order of com- 1000 dollars. If the person to whom it is di. mitment for a contempt, or upon proceedings rected refuses to obey it, the sheriff is ordered as for a contempt to enforce the remedies of a to arrest him, and keep him in close custody party, is considered as such judgment or de. till he obey it, and to bring up the body of the cree; and commitments for a contempt must person applying for the writ; and for that pur. specially and plainly charge the contempt. (2 pose, if necessary, to call to his aid the power of R. S.563, $ 22, id. 567, 0 40).

the county. When the party is brought before The application is founded on petition of the the officer who issued the writ, he is discharged party, or of some one on his behall, and is verifi. if there be no legal cause of detaining him: ed by his oath. It shows that the party does not otherwise he is remanded to his former confine. come within the exceptions above mentioned; ment. (See 2 R. S. 563, &c.) The act fully it states the name of the person detaining him, explains the mode of proceeding, and repeals and the place as accurately as it is known, and the common law provisions on the subject, exthe pretence of confinement. If the confine- cept so far as they may be necessary to carry ment is by virtue of any warrant, order, or pro- the provisions of the act into effect. (Id. 573, cess, a copy is annexed, or an excuse is alleg. Ø 73). It differs materially from the text. ed by showing that a copy was refused on ten- The Constitution of New-York forbids the der of the fees; or that the party was removed suspension of this writ, unless, when in cases or concealed before the demand could be made. of rebellion or invasion, the public safety may It must also be stated in what the illegality require its suspension. Ari. 7. sect. 6. So consists, and whether a habeas corpus or cer- also the Constitution of the U. S. art. 1. sect. tiorari is prayed for.

9. 9 2. VOL. II.



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