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stat. 31 Car. 2, c. 2, but must apply for a writ of habeas corpus at common law, or under stat. 56 Geo. 3, c. 100, with respect to the operation of which it was said by Patteson, J.: "That statute excludes criminal matter and process in civil suits—meaning, as I understand it, to except all cases of proceedings at law, and to include merely cases where parties are detained without any authority:" Cams Wilsons Case, 7 Q. B. 1010.
In the opinion given by Chief Justice (then Mr. Justice) Wilmot, in 1758, to the questions proposed to the Judges by the House of Lords, on the second reading of a Bill "for giving a more speedy remedy to the subject upon the writ of habeas corpus," he said: "I am of opinion that in cases not within the Act of the 31 Car. 2, writs of habeas corpus ad subjiciendum, by the law as it now stands, ought not to issue of course, but on probable cause, verified by affidavit. A writ which issues upon a probable cause verified by affidavit is as much a writ of right as a writ which issues of course. .... There is no such thing as writs of grace and favour issuing from the Judges; they are all writs of right, but they are not all writs of course Writs of habeas corpus upon imprisonment for criminal matters were never writs of course; they always issued upon a motion grafted on a copy of the commitment; and
cases may be put in which they ought not to be granted If
malefactors under sentence of death in all the gaols of the kingdom could have these writs of course, the sentence of the law might be suspended, and perhaps totally eluded by them. The 31 Car. 2 makes no alteration in the practice of the courts in granting them. . . . And in cases out of the Act, which take in all kinds of confinement and restraint, not for criminal or supposed criminal matter, and to which this question relates, it has been the uniform uninterrupted practice, both of the Court of King's Bench and of the Judges of that Court, that the foundation upon which the writ is prayed should be laid before the Court or Judge who awards it:" Wilmot's Opinions and Judgments, 81-129 (i). A case is afterwards mentioned by the learned Judge, to show that the whole facts ought to be fully disclosed on the motion for the writ . A man obtained the writ, directed to his wife's mother, to bring up his wife, upon an affidavit of detention by her; the fact (i) The Bill was rejected by the House of Lords.
being, that he had entered into articles of separation, which had determined his right to the custody of his wife.
At common law the writ of habeas corpus is not grantable as of course. This was decided in Hothouse's Case,3 B. & Al. 420, where Abbott, C.J., said: "It would be a very strange inconsistency in the law of England if we were bound to do an act nugatory in itself; and that would be the case if, upon a view of the copy of the warrant, a writ was of course to issue, the only effect of which would be, that upon the return to it the prisoner must be remanded." And he referred to the opinion delivered by Wilniot, C.J., in 1758, in the House of Lords, where he said that writs of habeas corpus upon imprisonment for criminal matters were never writs of course; and cases might be put in which they ought not to be granted. In the same case Holroyd, J., said: "Even upon 31 Car. 2, c. 2, I should think it very questionable whether the writ was grantable of course, for that Act directs a Judge to grant in vacation upon view of the copy of the warrant." And, per Best, J.: " The cases in which prisoners have a right to the writ are where they are detained in prison, and when they are entitled to be admitted to bail. ... In cases which come under this statute, a single Judge may perhaps be obliged to grant the writ as of course, but in no other; and the provisions of this law do not apply to writs grantable by the Court in term time."
Thus the writ has been refused in the case of a prisoner of war: Case of the Spanish Sailors, 2 W. Bl. 1324; and even a writ of habeas corpus ad testificandum in such a case: Furby v. Newnham, 2 Doug. 419, where Lord Mansfield said that the presence of witnesses under like circumstances was generally obtained by an order of the Secretary of State. In that case, however, it seems that the order had been applied for without success. When Napoleon Bonaparte was on board the Bellerophon, and it was known that his destination was St . Helena, a plan was proposed for getting him on shore by the issue of a writ of habeas corpus ad testificandum, on the pretence of some action in which he would be required as a witness; but the idea was not carried into execution.
The Habeas Corpus Act specially excepts from the benefit of its| provisions persons committed or detained for treason or felony 1 plainly expressed in the warrant of commitment, and persons' convict or in execution by legal process. The Court of Exchequer refused to grant the writ for the purpose of charging in execution a person under military arrest. They said: "We have only civil jurisdiction, and have, no authority to change the custody in such a case as this:" Jones v. Danvers, 5 M. & W. 234. But the writ was granted in the case of a military officer who was tried and convicted of manslaughter by a general court-martial in the East Indies, and sentenced to four years' imprisonment; but who was afterwards removed and sent in military custody to England, to undergo the remainder of his sentence: Be Allen, 30 L. J. (M. C.) 38. A writ of habeas corpus is not grantable in general where the party is in execution on a criminal charge after judgment on an indictment according to the course of the common law: per cur. The Queen v. Lees, 27 L. J. (Q.B.) 407.
In the reign of Charles IL the Court of King's Bench refused to bail a man committed on a charge of murder in Portugal: Bex v. Hutchinson, 3 Keb. 785. Also where a man was charged with a felony in Ireland contrary to the Irish statute: Bex v. Kindersley, 2 Stra. 848; see Case of Canadian Prisoners, 5 M. & W. 32; Leonard Watsons Case, 9 Ad. & Ell. 731; Ex parte Newton, 24 L. J. (C. P.) 148; The Queen v. Lees, 27 L. J. (Q. B.) 403, where the Court refused to grant the writ in the case of a prisoner convicted of a crime in St. Helena, and in execution of a sentence passed for that offence. The prisoner was in St. Helena when the writ was applied for. Where several persons were detained without any warrant on board a ship of war, having been captured in a smuggling vessel on suspicion of murder, the Court refused to discharge them or inquire into the facts of the case, but ordered them to be committed to the custody of the marshal, in order that they might be taken before a magistrate to be examined and further dealt with according to law: Ex parte Kraus, 1 B. & C. 258. The Court refused the writ to bring up a wife, it appearing that she was living apart from her husband by her own free will, and was under no restraint whatever: Ex parte Sandilands, 21 L. J. (Q. B.) 342. The Courts of Exchequer and Common Pleas both refused to grant the writ in the case of a person who had been committed by a Court of Assize for a contempt in refusing to answer a question put to him as a witness during a trial: Ex parte Fernandez. 30 L. J. (C. P.) 321. For instances where the writ has been granted, and the prisoner discharged in the case of extradition treaties, see Be Fernan, 33 L. J. (M. 0.) 200; Be Windsor, 34 L. J. (M. C.) 163. In Ex parte Wideman, 14 L. T. (N. S.) 719, the writ was refused. When the return is substantially bad the Court will discharge the prisoner, and will not allow him to be arrested on another charge before due effect has been given to 1 heir judgment by his being allowed to leave the Court: In the Matter of Douglas, 3 Q. B. 825.
Where a prisoner had been committed for high treason under a warrant of the Secretary of State, and being brought up into the Court of King's Bench was charged with an indictment and recommitted by rule of Court, he afterwards applied for a writ of habeas corpus, and two out of the three Judges who were present decided that he was not entitled to it, as the Habeas Corpus Act speaks only of commitment by warrant, the prisoner was committed by rule of Court: Bex v. Leonard, 1 Stra. 142. But Parker, C.J., was of a different opinion. The Court refused also the writ where a person had been arrested in England for treason committed in Scotland, on the ground that the prayer for the writ "is only to be tried, and we cannot try a treason committed in Scotland:" Bex v. Mackintosh, 2 Stra. 308.
In Cams Wilson's Case, 7 Q. B. D84, a writ of habeas corpus was issued by a Baron of the Court of Exchequer in vacation under the seal of and returnable in the Court of Queen's Bench, and directed to the keeper of a gaol in Jersey, to bring up the body of the prisoner. An application was made to the Court of Queen's Bench to quash the writ, and it was contended that a Baron of the Exchequer had no such power as had been exercised; but the Court of Queen's Bench held that he had, and reliance was placed upon the statute 1 & 2 Vict. c. 45, s. 1, which provides that every Judge of the three superior Common Law Courts shall have jurisdiction relating to any suit or proceeding in any of those Courts, or relating to the granting writs of certiorari or habeas corpus, "in like manner as if the Judge transacting such business had been a Judge of the Court to which the jurisdiction of law belongs." The Court said that the learned Baron (Rolfe) "had a discretion as to the Court where the writ would be made returnable, and might lawfully on these affidavits send the matter before the Queen's Bench."
It seems to have been once doubted whether the Court of Common Pleas could issue the writ at common law, owing to certain dicta that that Court could only grant it if the person were privileged there, or in order to charge him with an action. But it has been decided that it has co-ordinate jurisdiction in this matter with the other Courts: Wood's Case, 2 W. Black. 745; and see BushelTs Case, Vaugh. 154.
Whatever doubts may formerly have been entertained as to the power of a Judge of one of the three Courts of Common Law to issue the writ in vacation, returnable before himself at chambers, in the case of a prisoner committed in execution for a criminal offence, and therefore not within the statute 56 Geo. 3, c . 100, it is now settled that he has the power: Leonard Watson's Case, 9 Ad. & Ell. 731; and see Bac. Abr. Habeas Carpus, B. 1. That the Court of Chancery has the power in vacation as well as in term had been previously decided by Lord Eldon in Crowley s Case, 2 Swanst. 1.
Another question is, ought the rule for issuing the writ to be a rule nisi, or absolute in the first instance? In Cams Wilson's Case, 7 Q. B. 1001, the Court of Queen's Bench said: « We do not intimate that a previous inquiry would be wrong where there is reason for supposing the prisoner to be under sentence of a court. On the contrary, we think such a course the most desirable, and may conjecture that the learned Judge would probably, on more reflection, have granted a rule nisi for that purpose."
In order to obtain a writ of habeas ^corpus an affidavit is necessary, and it ought to be made either by the party himself who claims the writ, or by some other person, so as to satisfy the Court that the prisoner is so coerced as to be unable to make it: Canadian Prisoners' Case, 5 M. & W. 32. In the case of the Hottentot Venus, 13 East, 195, the affidavits were made by the secretary and members of a society called " The African Institution;" and although it does not so appear in the report, it was said by the Court of Exchequer in the Canadian Prisoners' Case, that a reason was there assigned for not producing an affidavit from the party herself. The Court ordered that she should be examined by the coroner and