HABEAS 
But, if he were committed for any criminal matter, 
they could only have remanded him, or taken bail for 
appearance in the court of king’s-bench ; which occa r 
honed the common-pleas to difcountenance fuch appli¬ 
cations. It hath alfo been argued by very refpeftable 
authorities, that the writ of habeas corpus may iffiue 
out of the court of chancery in vacation; but upon the 
famous application to lord Nottingham by Jenks, not- 
withftanding the molt diligent enquiry,-no precedent 
could be found where the chancellor had fffued fuch a 
writ in vacation ; and therefore his lordfhip refufed it. 
To obtain a writ of habeas corpus in the court of 
king’s-bench, it is neceflary to apply for it by motion to 
the court, as in the cafe of all other prerogative writs 
which do not ilfue as of mere courfe, without fhewing 
fome probable caufe why the extraordinary power of 
the crown is called in to the party’s affiftance. For, as 
was argued by lord chief-juftice Vaughan, “it is granted 
on motion, becaufe it cannot be had of courfe ; and 
there is therefore no necejjity to grant it: for the court 
ought to be fatisfied that the party hath a probable 
caufe to be delivered.” And this feems the more rea- 
fonable, becaufe, when once granted, the perfon to 
whom it is direfted can return no fatisfaftory excufe for 
not bringing up the body of the prifoner. So that, if it 
ifi'ued of mere courfe, without ffiowing to the court or 
judge fome reafonable ground for awarding it, a traitor 
or felon under fentence of death, a foldier or mariner in 
the king's fervice, a wife, a child, a relation, or a do- 
meftic, confined for infanity or other prudential reafons, 
might obtain a temporary enlargement by fuing out a 
habeas corpus, though fure to be remanded as foon as 
brought up to-the court. And therefore fir Edward 
Coke did not fcruple, in 13‘Jac. I. to deny a habeas 
corpus to one confined by the court of admiralty for 
piracy ; there appearing, upon his own fhowing, fuffi- 
cient grounds to 'confine him. On,the other hand, if a 
probable ground be lhown that the party is imprisoned 
without juft caufe, and therefore hath a right to be de¬ 
livered, 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 prifon, or 
.otherwife reftrained, though it be by the command of 
the king, the privy-council, or any other.” Com. Journ. 
Ap. 1, 1628. ilnjl. 615. 
In #ur article Government, vol. viii. p. 741, it has 
'Been (hewn, that the perfonal liberty of the fubjeft is a 
natural inherent right, which cannot be furrendered or 
forfeited unlefs by the commifiion of fome great and 
atrocious crime, and which ought not to be abridged, in 
any cafe without the fpecial permidion of law: a doc¬ 
trine coeval with the firft rudiments of our conftitution; 
and handed down to us from the Anglo-Saxons, not- 
withftanding all their ftruggles with the Danes, and the 
violence of tlie Norman conqueft : afferted afterwards 
and confirmed by the Conqueror himfelf, and his de¬ 
fendants : and though fometimes a little impaired by 
the ferocity of the times, and the occafional defpotifm 
of jealous or ufurpirig princes, yet eftablifiied on the 
(firmed: bafi? by the provifions of magmc charta, and a 
long lucceffion of ftatutes enacted under Edward III. 
To aff'ert an abfolute exemption from imprifonment in 
all cafes, is inconfiftent with every idea of law and po¬ 
litical fooiety ; and in the end would deftroy all civil 
liberty, by rendering its protection impoffible : but the 
glory of the Englifh law confifts in clearly defining the 
times, the caufes, and the extent, when, wherefore, and 
to what degree, the imprifonment of the fifcbjeft may 
■be lawful. This it is which induces the abfolute ne- 
ceility of exprefling upon everycommitment the reafon 
for which it is made; that the court, upon an habeas 
corpus, may examine into its validity; and according 
to the circumftances of the cafe may difcharge, admit 
to bail, or remand, the prifoner. 
The Habeas Corpus Act requires, t. That the 
CORPUS. 147 
Writ fhall be returned, and the prifoner brought up* 
within a limited time, according to the diftance, not ex 
ceeding in any cafe twenty days. 2. That fuch writ s 
fhall be endorfed, as granted in purfuance of this aft, 
and fjgned by the perfon awarding them. 3. That on 
complaint and reqneft in writing by or on behalf of any 
perfon committed and charged with any crime (unlefs 
committed for treafon or felony expreffed in the warrant, 
or for fufpicion of the fame, or as acceffary thereto be¬ 
fore the faft, or co'nvifted or charged in execution by 
legal procefs), the lord chancellor, or any of the'twelve 
judges in vacation, upon viewing a copy of the warrant, 
or affidavit that a copy is denied, fhall (unlefs the party 
has neglefted for two terms to apply to any court for 
his enlargement} award a habeas corpus for fuch pri¬ 
foner, returnableTmmediafely before himfelf or any other 
of the judges ; and upon the return made fhall difcharge 
the party, if bailable, upon giving fecurity to appear 
and anfwer to the accufation in the proper court of ju¬ 
dicature. 4. That officers and keepers neglefting to 
make due returns, or not delivering to the prifoner or 
his agent, within fix hours after demand, a copy of the 
warrant of commitment, or fluffing the cuftody of a pri¬ 
foner from one to another without fufficient reafon or 
authority (fpecified in the aft), fhall for the firft offence 
forfeit tool, and for the fecond offence 200I. to the party 
grieved, and be/lifabled to.hold his office. 5. That no 
perfon, once delivered by habeas corpus, fhall be re¬ 
committed for the fame offence, on penalty of .500!. 
6. That every perfon committed for treafon or felony 
fhall, if he requires it, the firff week of the next term, 
or the firft day of the next feffion of oyer and terminer, 
be indifted in that term or feffion, or elfe admitted to 
bail; unlefs the king’s witnefles cannot be produced at 
that time : and if acquitted, or if not indifted and tried 
in the fecond term or feffion, he fhall be difchafged from 
his imprifonment for fuch imputed'offence: but that .no 
perfon, after the afiizes fhall be opened for the county 
in which he is detained, fhall be removed by habeas 
corpus, till after the affizes are ended; but fhall be left 
to the juftice. of the judges of affize. 7. That any fuch 
prifoner may move for and obtain his habeas corpus, 
as well out of the chancery or exchequer as out of the 
king’s-bench or common-pleas; and the lord.chancellor 
or judges denying the fame, on fight of the warrant, or 
oath that the fame is refufed, forfeit 'Severally to the 
party grieved the fum of 500I. 8. That the writ of ha¬ 
beas corpus fhall run into the counties-palatine, cinque- 
ports, and other privileged places, and the iflands of 
Jerfey and Guernfey. 9. That no inhabitant of England 
■ (except perfons contracting, or convifts praying to be 
tranfported, or having committed fome capital offence 
in the place to which they are fent) (hall be fent pri¬ 
foner to Scotland, Ireland, Jerfey, Guernfey, or.any 
places beyond the feas, within or without the king’s 
dominions : on pain that the party committing, his ad- 
vifers, aiders, and afliftants, fhall forfeit to'the party 
grieved a fum not lefs than 500I. to be 'recovered with 
treble cofts; fhall be difabled to bear any office of truft 
or profit; fhall incur the penalties of praemunire ; and 
■fhall be incapable of the king’s pardon. 
' Such is the fubftance of- tins great and .important 
■ftatute, as it extends to the cafe of commitments fo.r 
1 fuch criminal charges as can produce no inconvenience 
to public juftice by a temporary enlargement .of the pri¬ 
foner ; all other cafes of unjuft impnionmenf being .left, 
to the habeas corpus at common law. But even upon 
writs at the 'common law it is now expected by the 
court, agreeable to ancient precedents and the fpirit .of 
the a6t of parliament, that the writ ftiould be immedi¬ 
ately obeyed, without waiting for any alias or plurlcs, 
otherwife an attachment will jfthe. By thefe admirable 
regulations, judicial as well parliamentary, the remedy 
is complete for removing the injury of unjuft and .ille¬ 
gal confinement. 
HABEE'BA, 
