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eloigned, elongatus ; upon which a process issues (called a ca. pias in withernam) to imprison the defendant himself, with. out bail or mainprizem, till he produces the party. But this writ is guarded with so many exceptions n, that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquate i them, and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to

[ 130

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 prisoners from one court into another for the more easy adminiftration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court, in order to remove the prisoner, and charge him with this new action in the court above'. Such is that ad satisfaciendum, when a prisoner hath had judgment against him in an action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution P. Such also are those ad prosequendum, tillificandum, deliberandum, &c; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurif. diction wherein the fact was committed. Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior 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 free

m Raym. 474.

n Nifi captus eff per speciale praeceptum metrum, vel capitalis juftitiarii noftri, vel pro morte bominis, vel pro foresta noftra, vel pro aliquo alio retro, quare fecundum

consuetudinem Anglice non fit replegiabilis.
(Regiftr. 77.)

° 2 Mod. 198.
P 2 Lilly prac. reg. 4.

quently quently denominated an habeas corpus cum caufa) to do and receive whatsoever the king's court shall consider in that behalf. This is a writ grantable of common right, without any motion in court?; and it instantly supersedes all proceedings in the court below. But, in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 & 2 P. & M. C. 13. that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed 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 standing, no cause shall be removed from thence by habeas corpus or other writ, after issue or demurrer deliberately joined: that no cause, 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 sum of five pounds. But an "expedient having been found out to elude the latter branch of the statute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the course of the court, the habeas corpus removed both actions together,) it is therefore enacted by statute 12 Geo. I. c. 29. that the inferior court may proceed in such actions as are under the value of five ringi pounds, notwithstanding other actions may be brought against the fame defendant to a greater amount. And by statute 19 Geo. III. c. 70. no cause, under the value of ten pounds, shall be removed by habeas corpus, or otherwise, into any superior court, unless the defendant, fo removing the same, shall give special 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 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, Jubjicienduin, et recipiendum, to do, submit to, and receive whatsoever the 9 2 Mod. 306.

Bohun, inftit. iegal, 85. edit. 1908. VOL. III.


judge or court awarding such writ shall consider in that behalf'. This is a high prerogative writ, and therefore by the common law illuing out of the court of king's bench not only in term-time, but also during the vacation', by a fiat from the chie! 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 subicets is restrained", wherever that restraint may be inflicted. If it issues in vacation, ic is usually returnable before the judge himself who awarded it, and le 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 supposed to be) an officer or suitor of the court, an habeas corpus ad fibjicienum might also by common law have been awarded from thence*; and, if the cause of imprisonment were palpably

illegal, they might have discharged him Y : but, if he were [ 132 ) committed for any criminal matter, they could only have re

mauded him, or taken bail for his appearance in the court of king's bench?; which occafioned 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 statute ió Car. I. c. 10. it hath been holden, that every subjict of the kingdom is equally entitled to the benefit of the common law writ, in either of those courts, at his optiona. It hath also been said, and by very refpectable authorities, 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, notwith. s St. Trials. viii. 142.

u Cro. Jac. 543. The pluries Labeas corpus d'rected to v 4 Burr. 856. Berwink in 43 Fliz. (cite34 Burr. 856.) w Ibid. 460. 542. 605. was effe di Juvis prox' ty quinden' * 2 inkt. 55. 4. Inft. 290. 2 Hal. fonti Alustiri. Io a pears, by refer- P. C. 144. 2 Ventr. 22. ring to the dominical letter of that year, y Vaugh. 155. that this quindina (Nov. 25.) happened z Carter. 221. 2 Jon. 13. tbat year on a Saturday. The Thurs. * 2 Mod. 198. Wood's Cafe, C. B. day after was theref ve the 30th of No. Hili ni Geo. III. veniber, two days after the expiracion 04 Init. :32. 2 Hal. P. C. 147. of the term).


standing the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacaa tion', and therefore his lordship refused it.

In the king's bench and common pleas it is necessary to apply for it by motion to the court", as in the case of all other prerogative writs (certiorari, prohibition, maridamus, &c.) which do not issue as of mere course, without Thewing some probable cause why the extraordinary power of the crown is called in to the party's asistance. For, as was argued by lord chief justice Vaughan“, “ it is granted on motion, because “ it cannot be had of course; and there is therefore no ne.cesity 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 f. So that, if it issued of mere course, without sewing 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, s 1331 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, sussicient grounds to confine him 3. On the other hand, if a probable ground be sewn, that the party is imprisoned without just cause h, and there. ; fore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which may not be denied, but ought us to be granted to every man that is committed, or detained « in prison, or otherwise restrained, thought it be by the com. " mand of the king, the privy council, or any other i.”

Lord Nott. MSS. Rep. July 1676. & 3 Bulftr, 27. * See also 2 Roll. Ć 2 Mod. 306. i Lev. 1. 1 Rep. 138. < Buthell's Care. 2 Jon, 13.

h 2 latt. 615. I Cro. Jac. 543

i Com. Journ. Apr. 1628.

In a former part of these commentaries & we expatiated ac 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 cafe without the special permission of law. A doctrine co-eval 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 conqueft: 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 by the provisions of magna carta, and a long succession of statutes enacted under Edward III. To afa sert 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 it's protection impossible : 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 [ 134 )

the subject may be lawful. This it is, which induces the abfolute necessity of expressing upon every cummitment the reason for which it is made : that the court upon an habeas corpus may examine into it's 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' 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 ila Book. I. ch. s.

State Tr. vii. 336.


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