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31 C. 2. c. 2.

VII. De Bail by Wirit of Haveas Corpus. 31 C. 2. c. 2.

If bail cannot otherwise be obtained, the law hath provided a remedy in most cases by the habeas corpus act, 31 C. 2. c. 2. The substance of which is briefly this:

If the commitment be for any crime, unless for treason or Causes of com

felony, plainly and specially expressed in the warrant of commitmitment.

ment; or unless the person be committed and charged as accessary before the fact to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of commitment; the person so committed, by suing out a habeas corpus, shall be discharged on bail, unless detained for

such offence as by law is not bailable. $$ 2, 3. 21. Within what

Ø 7. Also if a person be committed for treason or felony espebrought to trial. cially expressed, yet if he shall, in open court, the first week of

the term, or first day of assize, petition to be tried, and shall not be indicted some time in the next term or assize after the com. mitment, he shall upon motion the last day of the term or assize be bailed, unless it shall appear to the judge upon oath that the king's witnesses could not be produced within that time, and then, if he be not tried in the second term or assize, he shall be

discharged. Penalty upon $ 5. If any officer or officers, his or their under-officer or underofficers. officers, under-keeper or under-keepers, or deputy, shall, upon

demand made by the prisoner or person in his behalf, refuse to

deliver, or within six hours after demand shall not deliver, to the Demand of copy person so demanding, a true copy of the warrant of commitment, of commitment. all and every the head-gaoler and keepers of such prisons, and

such other person in whose custody the prisoner shall be detained, his executors or administrators, shall forfeit to the prisoner or party grieved, his executors or administrators, the sum of 1001. for the

first offence, and 2001. for the second. Governor, un

The construction of this section is, that if the governor be preder keepers, &c. sent, there is then no deputy or under-keeper, on whom a service

of the demand can be made; but if the governor be not present, then the deputy may be served: and if the deputy have no deputy, then in the absence of the deputy, service may

be on the turnkey, or may be left at the gaol, for it is the duty of the governor to leave some person in his place. But if the gaoler be in the gaol and accessible, the demand must be made on him; if he be not accessible, it may be on the deputy. And at all events, the demand should be served in such a way that the person to whom it was delivered should understand its nature; and where the principal is (as in this case he was) within the gaol, some pains should be taken that it should come to his hands. Huntley v.

Luscombe, M. 42. G. 3. 2 Bos. & Pull. 530. How appli- By $ 3., the writ is to be marked, Per statutum tricesimo primo cation for writ

Caroli secundi regis, and to be signed by the person awarding the is to be made in vacation

same; and out of term time, the application for the writ is to be time.

made in writing by the prisoner or any person for him, attested and subscribed by two witnesses who were present at the delivery thereof to the lord chancellor or one of the judges; and a copy of the warrant of commitment shall be produced before them, or oath made that such copy was denied.

Upon such application, the lord chancellor or judges re- To be awarded spectively shall award a habeas corpus under the seal of their immediatè. court, directed to the officer or keeper, returnable immediatè.

Ey $ 10., if, on such application, in vacation time, the lord Denial of chancellor, or any of the judges, on view of the warrant of com- writ. mitment, &c., deny any writ of habeas corpus by that act required Penalty. to be granted, they shall forfeit 5001. to the prisoner or party grieved.

$ 4. But if any person had wilfully neglected by the space of Laches. two terms to apply for his enlargement, he shall not have a habeas corpus granted in the vacation.

§ 2. And the charges of bringing the prisoner shall be ascer. Charges of tained by the judge or court that awarded the writ, and indorsed removal. thereon, not exceeding 12d. a mile.

The writ shall be served on the keeper, or left at the gaol with any of the under officers; and the charges so indorsed shall be paid or tendered to him, and the prisoner shall give bond to pay the charges of carrying him back, if he shall be remanded, and that he will not make any escape by the way. Ibid.

This done, the officer shall, within three days after service Time of (if it be within twenty miles), return the writ and bring the body, removal. and shall then likewise certify the true cause of the imprisonment; if above twenty miles and less than a hundred, then within ten days; if above a hundred, then within twenty days; on like pain as before, 5. supra. Ibid.

§ 18. But after the assizes are proclaimed for the county where the prisoner is detained, he shall not be removed, but before the judge of assize.

3. If it shall appear to the said lord chancellor or judges If detainer be that the prisoner is detained on a legal process, order, or warrant, legal. out of some court that hath jurisdiction of criminal matters, or by warrant of a judge or justice of the peace for matters, for which by law he is not bailable; in such case the prisoner shall not be discharged.

And if he shall be discharged, he shall thereupon enter into recognizance to appear on his trial ; and the writ and return thereof and recognizance shall be certified into the court where the trial must be. Ibid.

$ 8. But persons charged in debt, or other action, or with process in any civil cause, after their discharge for a criminal offence, shall be kept in custody for such other suit.

$ 6. And persons so set at large shall not be recommitted for the same offence, unless by order of court, on pain of 500l. to the party grieved.

This is a remedial act, and indeed the most highly remedial act Statute rcwhich stands upon the statute book. But in respect to the penal medial. part, the most remedial act may contain penal clauses. . Per Chambre J. 2 Bos. & Pull. 539.

Two things I shall observe upon this statute :

1. That although the constable, by his own authority, without Party may be any warrant of commitment, may carry offenders to gaol, and this bailed, unless was the method of securing prisoners before there were any jus- there be warrant

of commitment. tices of the peace, yet, since the institution of the office of justices of the peace, it is better that they be carried before a justice, to be sent by him to gaol by warrant of commitment ; otherwise

they have a right to be bailed upon this act, whatever the offence

may be.

treason or


Warrant must Ž. That the warrant of commitment ought to set forth the cause specify the na- specially; that is to say, not for treason, or felony in general, but ture of the

treason for counterfeiting the king's coin, or felony, for stealing the felony.

goods of such an one of such a value, and the like; that so the court may judge thereupon, whether or not the offence be such for which

a prisoner ought to be admitted to bail. Court of K. B. The court of king's bench (or any judge thereof in time of vacamay bail in all tion) may bail for any crime whatsoever, be it treason, murder, or

any other offence, according to the circumstances of the case. 4 Bla. Com. 299. 2 Haw. c. 15. § 77.

This court (K. B.) has undoubtedly a discretionary power to bail in all cases whatsoever. Per Ld. Mansfield C. J., Rudd's case, 1 Cowp. 333.

A warrant of commitment for felony must contain the species of felony. Vide

per Pratt C. J., 2 Wils. 158. Warrant of But although a warrant of commitment be defective or informal, commitment

yet, if upon the depositions returned, the court see that a felony informal.

has been committed, and that there is reasonable ground of charge against a prisoner, they will not bail, but remand him. R. v.

Marks and others, 3 East, 157. R. v. Horner, Cald. 295. S. P. Rule by K. B. Where it appears to the court of K. B. that a prisoner ought to for bailment by be bailed for felony, if he be unable to defray the expences of a magistrate.

being brought to Westminster for that purpose, they will grant a rule to shew cause why he should not be bailed by a magistrate in the country, with a certiorari to return the depositions before them. R. v. Jones, M. 58 Geo. 3. 1 B. & A. 209. N. B. This was a case of manslaughter. The rule was afterwards made ab

solute. 43 G. 3. c. 140. By stat. 43 Geo. 3. c. 140., after reciting that “Whereas writs Any judge of

of habeas corpus have been frequently awarded by the judges of the courts at

H. M.'s courts of record at Westminster, for bringing persons deWestminster may award a tained in custody under civil or criminal process before magiswrit of habeas trates or courts of record, as well for trial as for examination,

touching matters depending before such magistrates or courts bringing up respectively (a): but doubts have arisen whether such judges have prisoners for trial or examin- power to award writs of habeas corpus for bringing persons deation before courts-martial, commissioners of bankrupt,&c.

(a) The court of K. B. will grant a habeas corpus to the Warden of the Fleet to take the body of a debtor confined there before a magistrate, to be examined from time to time respecting a charge of felony or misdemeanor. Er parte Griffiths, E. 1822. 5 B f A. 730. Chitty moved for a writ of habeas corpus to be directed o the Warden of the Fleet, commanding him to carry the body of G. before the Lord Mayor or some other justice of the city of London, at the Mansion House, there from day to day to be examined touching a charge of felony and misde

It appeared that a warrant had been obtained from the Lord Mayor against G., who had been a master of a ship, for the purpose of proceeding to convict him of the offence of refusing to deliver up the certificate of registry, pursuant to the stat. 34 G. 3. c. 68. § 18. (see now 3 & 4 W. 4. c. 55. Ships) and in order to enable the owner to obtain a registry de novo of the ship, if necessary. G. being, however, at this time a prisoner in the Fleet for debt, there was no power of taking him under the warrant, (see R. v. Woodham, Stra. 828.) unless the Court granted this writ. The Court thought it a proper case for their interference, and thereupon directed the writ to issue.

corpus for


tained as aforesaid before courts martial, commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting under commission or warrant from H. M. ; and whereas it is expedient to make provision for bringing prisoners before such courts martial or commissioners for the purposes herein-before mentioned, enacts, that any judge of the courts at Westminster may award a writ of habeas corpus to bring any prisoner, in any gaol in England, before a court-martial, commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting by virtue of any commission or warrant from H. M., in like manner as they award such writs to bring persons detained in gaol before magistrates or courts of record.

By stat. 44 Geo. 3. c. 102., any judge of the courts of K. B. or 44 G. 3. c. 102. C. P. of England and Ireland respectively, or any baron of the Any judge of court of exchequer of the degree of the coif in England, or any

the superior justice of O. and T. or gaol delivery, being such judge or baron land or Trend

Engaforesaid, may, at his discretion, award a writ of habeas corpus, may award writs for bringing any prisoner detained in any gaol or prison before any of habeas corpus of the said courts, or any sitting of nisi prius, or before any other for bringing court of record, to be there examined as a witness, and to testify prisoners before the truth before such courts, or any other grand, petit, or other

courts of record

to be examined jury, in any causes or matters, civil or criminal, whatsoever, which

as witnesses. now are or hereafter shall be depending, or to be inquired into or determined in any of the said courts.

The privileges of the famous act of habeas corpus before mentioned, which (as De Lolme, p. 191., observes) “is considered in England as the second great charter, and has extinguished all the resources of oppression,” have been still further extended by stat. 56 Geo. 3. c. 100. intituled “ An act for more effectually securing 56 G. 3. c.100. the liberty of the subject," which, after reciting that “whereas the writ of habeas corpus hath been found by experience to be an expeditious and effectual method of restoring any person to his liberty, who hath been unjustly deprived thereof: and whereas extending the remedy of such writ, and enforcing obedience thereunto, and preventing delays in the execution thereof, will be advantageous to the public: and whereas the provisions made by an act passed in England in the thirty-first year of king Charles the Second, intituled “ An act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas, and also by an act passed in Ireland in the twenty-first and twentysecond years of his present Majesty, intituled - An act for better securing the liberty of the subject,' only extend to cases of commitment or detainer for criminal or supposed criminal matter;" it is enacted, “that where any person shall be confined or restrained As to persons of his or her liberty (otherwise than for some criminal or supposed restrained of criminal matter, and except persons imprisoned for debt or by pro- otherwise than cess in any civil suit) within that part of G. B. called England, for criminal dominion of Wales, or town of Berwick-upon-Tweed, or the isles matters or by of Jersey, Guernsey, or Man, it shall and may be lawful for any process in civil one of the barons of the exchequer, of the degree of the coif, as well as for any one of the justices of one bench or the other ; and where any person shall be so confined in Ireland, it shall and may be lawful for any one of the barons of the exchequer, or of


56 G. 3. c. 100. the justices of one bench or the other in Ireland, and they are

hereby required, upon complaint made to them by or on the behalf of the person so confined or restrained, if it shall appear by affidavit or affirmation (in cases where by law an affirmation is allowed) that there is a probable and reasonable ground for such complaint, to award in vacation time a writ of habeas corpus ad subjiciendum, under the seal of such court, whereof he or they shall then be judges or one of the judges, to be directed to the person or persons in whose custody or power the party so confined or restrained shall be, returnable immediately before the person so awarding the same, or before any other judge of the court under the seal

of which the said writ issued.” Non-obedience § 2. enacts, “ that if the person or persons to whom any writ to such writ to

of habeas corpus shall be directed according to the provision of be a contempt

this act, upon service of such writ, either by the actual delivery of court, and punishable

thereof to him, her, or them, or by leaving the same at the place. accordingly. where the party shall be confined or restrained, with any

servant or agent of the person or persons so confining or restraining, shall wilfully neglect or refuse to make a return or pay obedience thereto, he, she, or they shall be deemed guilty of a contempt of the court, under the seal whereof such writ shall have issued ; and it shall be lawful to and for the said justice or baron, before whom such writ shall be returnable, upon proof made by affidavit of wilful disobedience of the said writ, to issue a warrant under his hand and seal, for the apprehending and bringing before him, or before some other justice or baron of the same court, the person or persons so wilfully disobeying the said writ, in order to his, her, or their being bound to the king's majesty, with two sufficient sureties, in such sum as in the warrant shall be expressed, with condition to appear in the court of which the said justice or baron is a judge, at a day in the ensuing term to be mentioned in the said warrant, to answer the matter of contempt with which he, she, or they are charged; and in case of neglect or refusal to become bound as aforesaid, it shall be lawful for such justice or baron to commit such person or persons so neglecting or refusing to the jail or prison of the court of which such justice or baron shall be a judge, there to remain until he, she, or they shall have become bound as aforesaid, or shall be discharged by order of the court in term time, or by order of one of the justices or barons of the court in vacation; and the recognizance or recognizances to be taken thereupon shall be returned and filed in the same court, and shall continue in force until the matter of such contempt shall

have been heard and determined, unless sooner ordered by the Judges may court to be discharged: provided, that if such writ shall be awarded make writs of

so late in the vacation by any one of the said justices or barons, habeas corpus issued in vaca

that, in his opinion, obedience thereto cannot be conveniently tion, returnable paid during such vacation, the same shall and may, at his discrein court in the tion, be made returnable in the court of which the said justice or next term, in baron shall be a justice or baron, at a day certain in the next certain cases. term; and the said court shall and may proceed thereupon, and

award process of contempt in case of disobedience thereto, in like manner as upon disobedience to any writ originally awarded by

the said court : provided also, that if such writ shall be awarded Courts to make writs issued in by the court of king's bench, or the court of common pleas, or term, return- court of exchequer, in the said countries respectively, which lastable in vacation.

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