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[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 500l. 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 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. 0. 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 may be had either in criminal or civil cases. For (s) See Carus Wilson's 7
quer, see In re Allison, 10 Exch. Q. B. 984; The Queen v. Brenan, 561. 16 L. J., Q. B. 289.
(v) Bac. Abr. Certiorari A. As (1) 3 Bl. Com. p. 138.
to courts not of record, see Ex parte (u) As to the Court of Exche- Phillips, 2 Ad. & El. 586.
in the former, the Queen's Bench has a superintendence over all inferior courts, and may remove the indictments or other proceedings therein depending, and transfer them to its own jurisdiction. But the consideration of this use of the writ, belongs more properly to a subsequent division of these Commentaries (x): and our attention is at present called to its application in civil cases only. Its object here, is similar in general to that of the habeas corpus cum causa—that is, to obtain relief from some inconvenience supposed, in the particular case, to arise from a cause being disposed of before an inferior jurisdiction, less capable than the superior court of rendering complete and effectual justice (y).
There is, however, this distinction between these two writs; viz., that a certiorari affects the proceedings only (2),—while by the habeas corpus cum causâ, the person of the defendant, if in custody, is (as we have seen) capable of being removed, as well as the proceedings, from the court below. So that where an arrest of the defendant has taken place in that court, it has been usual to resort to a habeas corpus, rather than a certiorari(a). The provisions before cited (6) from the Acts 21 Jac. I. c. 23; 7 & 8 Geo. IV. c. 71; and 8 & 9 Vict. c. 127, regulating the removal of causes by the writ of habeas corpus to the superior courts, apply equally to the writ now in question: and the Acts relative to the District County Courts established under 9 & 10 Vict. c. 95, enact that from those courts causes shall be removed by certioruri only, and under the regulations therein contained (c).
(x) Vide post, bk. vi. C. XIX.
(y) As to the practice in the superior courts, in causes removed from the inferior, see Reg. Gen. H. T. 1853 (Pr.), rr. 115-117.
(3) See Doe v. Dring, 1 B. & C. 253.
(a) Vide sup. p. 19, n. (o).
(1) Vide sup. p. 20.
(c) See 9 & 10 Vict. c. 95, s. 90 ; 13 & 14 Vict. c. 61, s. 16 ; 19 & 20 Vict. c. 108, ss. 38, 40–42, 44, 49, 67, 71; 23 & 24 Vict. c. 126, s. 22. As to the District County Courts, vide sup. vol. II. p. 396 et seq.
OF INJURIES COGNIZABLE IN THE COURTS OF
EQUITY WITH THEIR REMEDIES.
BEFORE we enter on the subject of the ensuing chapter, viz. the injuries cognizable in the courts of equity, with their appropriate remedies(a), it will be proper to recollect the observations made in a former part of this work on the nature of equity (6). Its nature has been there generally explained, and it has been shown to constitute a large and important portion of our juridical system distinct from and suppletory to the common law, and administered in its own peculiar courts. But it may be important now to enter into some further particulars, tending to throw more distinct light on this subject.
[The very terms of a court of equity, and a court of law, as contrasted with each other, are apt to confound and mislead us; as if the one judged without equity, and the other was not bound by any law. Whereas
Whereas every definition or illustration to be met with, which would draw a line between the two jurisdictions, by setting law and equity in opposition to each other,- will be found either totally erroneous, or erroneous to a certain degree.
1. Thus, in the first place, it is said (c), that it is the business of a court of equity, in England, to abate the rigour of the common law.] And in fact there have been some few instances, of its exercising this kind of interposition. But, in general, it contends for no such power. [Hard was the case of bond creditors, whose debtor de
(c) Lord Kaims, Prin. of Eq. 44.
(a) Vide sup. vol. 111. p. 472. (6) Vide sup. vol. 1. p. 82.