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soned (n); [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 (o). 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.] These abuses at length 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 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 (p).

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The statute itself enacts, 1. That on complaint and request in writing by or on behalf of any person committed

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(says the Bishop, vol. i. p. 485) "by an odd artifice in the House "of Lords. Lord Grey and Lord "Norris were named to be the "tellers; Lord Norris, being a man "subject to vapours, was not at all "times attentive to what he was "doing, so a very fat lord coming "in, Lord Grey counted him for "ten as a jest at first, but seeing "Lord Norris had not observed it, "he went on with his mis-reckoning "of ten; so it was reported to the "House, and declared that they "who were for the bill, were the majority; though it indeed went on the other side; and by this means the bill past."

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[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 petittreason 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 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 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 (q). 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 bought up, within a limited time according to the distance, not exceeding in any case twenty days. 4. That any officer or keeper 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 1007., and for the second offence 2007., to the party grieved, and be disabled to hold his office (r). 5. That no person, once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 500l. 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

(q) Where the writ issues in vacation, returnable immediately before a judge at chambers, it does not expire by the commencement of the Term. (Rex v. Shebbeare, 1 Burr. 460.)

(r) A person, sent over from Ireland under a warrant from the

secretary of state from Ireland, charged with any offence, and committed to prison until he can be brought before a judge, is entitled to a copy of the warrant, under the Habeas Corpus Act, after it has been demanded. (Sedley v. Arbouin, 3 Esp. 194.)

[session of oyer and terminer, be indicted in that Term or session, or else admitted to bail-unless the witnesses for the Crown cannot be produced at that time. And that 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 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 assizes. 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 Queen's Bench, or Common Pleas; and the lord chancellor or judges denying the same, on sight of the warrant, or upon oath made that the same is refused, shall 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 (s). 9. That no inhabitant of England, Wales, or Berwick, (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, Guernsey, or any places beyond the seas, within or without the king's dominions; on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved, a sum not less than 500l.; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the king's pardon.

This is the substance of this great and important statute: which extends (we may observe) only to the case of commitments for such criminal charges as can produce no inconvenience to public justice, by a temporary enlargement of the prisoner: all other cases of unjust imprisonment being left,] by that statute, [to the habeas corpus at common

(s) See Carus Wilson's case, 7 Q. B. 984; The Queen v. Brenan, 16 L. J., Q. B. 289.

[law (r).] But to render the remedy more effectual, even in those cases, than it was at common law, it has been since provided by 56 Geo. III. c. 100-1. That where any person shall be restrained of his liberty, (other than for some criminal or supposed criminal matter, and except persons imprisoned for debt, or by process in any civil suit,) any of the barons of the exchequer of the degree of the coif, or any of the justices of either bench, shall upon affidavit showing a probable and reasonable ground for such complaint, award in vacation time a writ of habeas corpus, under the seal of the court whereof he is a judge, and directed to the person in whose custody the party is confined; which shall be returnable immediately before himself, or any other judge of the court. 2. That upon disobedience to the writ, the judge before whom it is returnable may issue a warrant to arrest the party guilty of such contempt. 3. That if the writ should be awarded so late in vacation that it cannot be conveniently obeyed during vacation, the same may be made returnable in the court to which the judge by whom it is awarded belongs, on a certain day in the next Term. 4. That if such writ shall be awarded by the Court itself of Queen's Bench, Common Pleas, or Exchequer, so late that it cannot be conveniently obeyed during the Term, the same may be made returnable in the then next vacation before any of the judges. 5. That though the return to the writ may be good in law, it shall be lawful for the judge before whom it is returnable, to proceed to examine into the truth of the facts—and if it appears doubtful to him whether they be true or not, it shall be lawful for such judge to let to bail the person so confined, upon his entering into a recognizance to appear in the court to which the judge belongs in the Term follow

(r)" Even upon writs of habeas I corpus at the common law," says Blackstone (vol. iii. p. 137), "it "is now expected by the court, "agreeable to antient precedents "and the spirit of the Act of par

"liament, that the writ should be "immediately obeyed, without wait"in for any alias or pluries; other"wise an attachment will issue." And see R. v. Cowle, 2 Burr. 586.

ing; which court may proceed to examine into the truth of the facts in a summary way by affidavit, and to order and determine as to the discharge, bailing, or remanding of the party. 6. That the like proceeding for controverting the truth of the return may be had in the case where the writ shall be awarded by the court itself, or be returnable therein. 7. That the several provisions aforesaid shall extend to all writs of habeas corpus, awarded in pursuance of the Act of the thirty-first year of Charles the second. Lastly, that the habeas corpus according to this Act of 56 Geo. III. c. 100, may run into any county palatine or cinque port, or other privileged place; or to the Islands of Jersey, Guernsey, and Man (s); or to any port, harbour, road, creek, or bay, upon the coast of England or Wales, lying out of the body of any county.

By which admirable regulations the remedy seems now to be complete for removing the injury of illegal confinement, [a remedy the more necessary,] says Blackstone (t), [because the oppression does not always arise from the ill nature, but sometimes from the mere inattention of government. For it frequently happens in foreign countries, (and has happened in England during the temporary suspension of the statute,) that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.]

VI. The writ of Certiorari. This issues out of the Court of Chancery, or a superior court of the common law (u), directed in the queen's name to the judges or officers of inferior courts of record (v), commanding them to return the record of a cause depending before them, to the end the party may have the more sure and speedy justice. This writ be had either in criminal or civil cases. may (s) See Carus Wilson's case, 7 Q. B. 984; The Queen v. Brenan, 16 L. J., Q. B. 289.

(t) 3 Bl. Com. p. 138.

(u) As to the Court of Exche

For quer, see In re Allison, 10 Exch. 561.

(v) Bac. Abr. Certiorari A. As to courts not of record, see Ex parte Phillips, 2 Ad. & El. 586.

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