What is the name of the Supreme Court of Common Law?

Can the King himself hear and determine causes in this Court?

Is this a stationary Court?

What is the nature of the jurisdiction of this Court?

Who set up the Court of Exchequer ?

What are its chief duties supposed to be?

Why is it called "the Exchequer ?"

What is the word "Chancellor" said to be derived from?

State what you recollect of the nature and duties of the chancellor in ancient Rome and the Romish church?

How is the Lord Chancellor appointed?

What are his powers and duties ?

What are the hanaper office, and petty bag office?

What is the meaning of " Equity" as distinguished from "Law"? Did any but lawyers ever preside over the Court of Chancery? What was the great dispute between Lord Chancellor Ellesmere and sir Edward Coke? How did it terminate?

Who was the Earl of Nottingham, and what did he do for the Court of Chancery?

What is the judicial capacity of the House of Lords?

What are the Courts of Assise and Nisi Prius?

By what authority do the judges sit, upon circuit?

Explain the meaning of the words "Nisi Prius" as used in their legal sense.

THE WRIT OF HABEAS CORPUS.

THE writ of habeas corpus, is 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 to another for the more easy administration of justice.

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. This is a high prerogative writ, issuing out of the court of king's bench not only in term time, but also during the vacation, 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, wherever 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; unless the term should intervene, and then it may be returned in court. And since the statutes 16 Car. I. c. 10, and 56 G. III. c. 100, every subject of the kingdom is equally entitled to the benefit of the common law writ, in either the king's bench, common pleas, or exchequer, at his option. It hath also been said, and by very respectable 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, notwithstanding the most diligent searches, no precedent could be found

where the chancellor had issued such a writ in vacation, 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, mandamus &c.) which do not issue 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, "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. 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 temporary enlargement by suing out a 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. On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, 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 prison, or otherwise restrained, though it be by the command of the king, or privy council, or any other.

In a former part of these commentaries 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.

* Ante, pp. 66-69.

P

A doctrine coeval with the first rudiments of the English constitution; and handed down to us from our Saxon arcestors, 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 by the provisions of magna charta, 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 a 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 that they could not upon a 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 their good behaviour, which still protracted their imprisonment, the chief justice, sir Nicholas Hyde, at the same time declaring, 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 account of the matter, whose resentment 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, who in 1676 was committed by the king in council for a turbulent speech at Guildhall, 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 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 charta of the kingdom; and by consequence and analogy has also in