[130]

eloigned, elongatus; upon which a process iffues (called a ca pias in withernam) to imprison the defendant himself, without bail or mainprize ", till he produces the party. But this writ is guarded with fo many exceptions", that it is not an effectual remedy in numerous inftances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every cafe hath almost entirely antiquate i them, and hath caufed a general recourse to be had, in behalf of perfons aggrieved by illegal imprison. ment, to

4. THE writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prifoners from one court into another for the more easy administration of juftice. Such is the habeas corpus ad refpondendum, when a man hath a caufe of action against one who is confined by the process of fome inferior court, in order to remove the prifoner, and charge him with this new action in the court above. Such is that ad fatisfaciendum, when a prifoner hath had judgment against him in an action, and the plaintiff is defirous to bring him up to fome fuperior court to charge him with procefs of execution P. Such also are thofe ad profequendum, teftificandum, deliberandum, &c; which iffue when it is neceffary to remove a prifoner, in order to profecute or bear teftimony in any court, or to be tried in the proper jurif diction wherein the fact was committed. Such is, laftly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster-hall, when a person is sued in fome inferior jurifdiction, and is defirous to remove the action into the fuperior court; commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is fre

quently denominated an habeas corpus cum caufa) to do and receive whatsoever the king's court fhall confider in that behalf. This is a writ grantable of common right, without any motion in court; and it instantly superfedes all proceedings in the court below. But, in order to prevent the furreptitious difcharge of prifoners, it is ordered by statute 1 & 2 P. & M. c. 13. that no habeas corpus fhall iffue to remove any prisoner out of any gaol, unless figned by some judge of the court out of which it is awarded. And, to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I. c. 23. that, where the judge of an inferior court of record is a barrister of three years ftanding, no caufe fhall be removed from thence by habeas corpus or other writ, after iffue or demurrer deliberately joined: that no caufe, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed: and that no cause shall be removed at all, if the debt or damages laid in the declaration do not amount to the fum of five pounds. But an 'expedient having been found out to elude the latter branch of the ftatute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the courfe of the court, the habeas corpus removed both actions together,) it is therefore enacted by ftatute 12 Geo. I. c. 29. that the inferior court may proceed in fuch actions as are under the value of five [131] pounds, notwithstanding other actions may be brought against the fame defendant to a greater amount. And by ftatute 19 Geo. III. c. 70. no caufe, under the value of ten pounds, fhall be removed by habeas corpus, or otherwife, into any fuperior court, unless the defendant, fo removing the fame, fhall give fpecial bail for payment of the debt and costs.

BUT the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad fubjiciendum: directed to the perfon detaining another, and commanding him to produce the body of the prifoner, with the day and caufe of his caption and detention, ad faciendum, fubjiciendum, et recipiendum, to do, fubmit to, and receive whatfoever the

92 Mod. 306. VOL. III.

L

Bohun, inftit, legal. 85. edit. 1708.
judge

Book III. judge or court awarding fuch writ fhallconfider in that behalf. This is a high prerogative writ, and therefore by the common law iffuing out of the court of king's bench not only in term-time, but alfo during the vacation', by a fiat from the chief juftice 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 fubjects is reftrained ", wherever that refraint may be inflicted. If it iffues in vacation, it is ufually returnable before the judge himself who awarded it, and he proceeds by himfelf thereon"; unless the term should intervene, and then it may be returned in court". Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or fuppofed to be) an officer or fuitor of the court, an habeas corpus ad fubjiciendum might alfo by common law have been awarded from thence; and, if the caufe of imprisonment were palpably illegal, they might have difcharged him: but, if he were [132] committed for any criminal matter, they could only have remanded him, or taken bail for his appearance in the court of king's bench; which occafioned the common pleas for fome time to discountenance fuch applications. But fince the mention of the king's bench and common pleas, as co-ordinate in this jurifdiction, by ftatute 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. It hath also been faid, and by very refpectable authorities, that the like habeas corpus may iffue out of the court of chancery in vacation: but, upon the famous application to lord Nottingham by Jenks, notwith.

ftanding the most diligent fearches, no precedent could be found where the chancellor had iffued fuch a writ in vacation, and therefore his lordship refufed it.

In the king's bench and common pleas it is neceffary to apply for it by motion to the court, as in the cafe of all other prerogative writs (certiorari, prohibition, mandamus, &c.) which do not iffue as of mere courfe, without fhewing fome probable caufe why the extraordinary power of the crown is called in to the party's affiftance. For, as was argued by lord chief juftice Vaughan, "it is granted on motion, because "it cannot be had of course; and there is therefore no neceffity to grant it; for the court ought to be fatisfied that "the party hath a probable caufe to be delivered." And this feems the more reasonable, because (when once granted) the perfon to whom it is directed can return no fatisfactory excufe for not bringing up the body of the prifoner f. So that, if it iffued of mere courfe, without fhewing to the court or judge fome reasonable ground for awarding it, a traitor or felon under fentence of death, a foldier or mariner in the king's fervice, a wife, a child, a relation, or a domeftic, confined for infanity or other prudential reasons, might obtain a temporary enlargement by fuing out an habeas corpus, [133] though fure to be remanded as foon as brought up to the court. And therefore fir Edward Coke, when chief juftice, did not fcruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy; there appearing, upon his own fhewing, fufficient grounds to confine him. On the other hand, if a probable ground be fhewn, that the party is imprisoned without juft caufe h, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which "may not be denied, but ought "to be granted to every man that is committed, or detained "in prifon, or otherwife reftrained, thought it be by the com"mand of the king, the privy council, or any other i."

Lord Nott. MSS. Rep. July 1676.

2 Mod. 306. 1 Lev. 1.

Bufhell's Cafe. 2 Jon. 13.

Cro. Jac. 543.

3 Bultr. 27. See alfo 2 Roll. Rep. 138.

h 2 Inft. 615.

i Com. Journ. 1 Apr. 1628.

[ 134 ]

k

IN a former part of thefe commentaries we expatiated at large on the perfonal liberty of the fubject. This was shewn to be a natural inherent right, which could not be furrendered or forfeited unless by the commiffion of fome great and atrocious crime, and which ought not to be abridged in any cafe without the fpecial permiffion of law. A doctrine co-eval with the firft rudiments of the English conftitution; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conqueft: afferted afterwards and confirmed by the conqueror himself and his defcendants: and though fometimes a little impaired by the ferocity of the times, and the occa fional defpotifm of jealous or ufurping princes, yet eftablished on the firmeft bafis by the provifions of magna carta, and a long fucceffion of statutes enacted under Edward III. To affert an abfolute exemption from imprisonment in all cafes, is inconfiftent with every idea of law and political fociety; and in the end would deftroy all civil liberty, by rendering it's protection impoffible: but the glory of the English law confifts in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the fubject may be lawful. This it is, which induces the abfolute neceffity of expreffing upon every commitment the reafon for which it is made: that the court upon an habeas corpus may examine into it's validity; and according to the circumftances of the case may discharge, admit to bail, or remand the prifoner.

AND yet, early in the reign of Charles I, the court of king's bench, relying on fome arbitrary precedents (and those perhaps misunderstood) determined' that they could not upon an habeas corpus either bail or deliver a prisoner, though com mitted without any cause affigned, in cafe he was committed by the fpecial 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 il1 State Tr. vii. 136.

* Book. I. ch. 1.

legal