The British Press; or, Morning Literary Advertiser.
London, England, 1818-07-21 00:00:00

.i

of Lmieloo awl Middlesex, to enable him to
take the benefit of the Gaol Delivery an thu
Serii.insis or ther and Terminer at the 0141 Bailey.
'Floe Lord Chief Justice did tint know haw to act,
but went in Lord Nottinglisou'i house and consulted
with him, end stated to loin that he knew there
were precedents where prisoners had hers. removed
1 the Tower to Newgete. Lord Nottingham
reflected much on the case, and at lag felt that
imprisonments were intended in the rye of the
law nut fur old immune, but sal custodians. He also
It ;;ht that the prisoner hail been long enough in
gust and therefore he advised the Lord Chief Jus-
tice to acquaint the King iu Council that such was
his opinion, and as he could not attend the Council
in person, being confined with the gout, to request
his Majesty and the Privy Council to follow this
advice. This happened to be approved of
by the King in Council, and the prisoner
was taken to the Lord Chief Jnstice's dumber*
and discharged, oil finding sufficient hail for
Isis sppearance on the first slay of the fol-
lowing Term, if called upon. Having said so much
on this case of Jenks, I will now tell you what
feel is the proper constrectiou to be pot on the law
authorities, which I will du with as much brevity
as their different bearings will allow. The doe.
trine of the law. as it is understood by all his Mos.
jesty's subjects, is, that a writ of Habeas Corpus
is the high prerogative of the King, whose irnitent-
tive duty it is to inquire why any of his subjects
are deprived of their liberty, and to afford them
an opportunity of defending themselves. The
erst place of this being mentomied is in Lord
Coke's readings on the statute of Magma Charts,
who in that most valuable work declares that the
Name power was vented in the Lord Chancellor for
the time being. as is. the Court of King's Bench ;
for that the Court of Chancery being the qffiliMJ
jurtitier, was suffered never to be closed so long as
any subject had just cause to complain of being
w gly impri.oned, mid thin no man ought to be
deprived of Isis liberty except on a specific and de-
flated charge. Every Act of Parliament has proved
that !sessions so imprisoned have a right to redress,
for certainly if an injury is inflicted some propor-
tfonete redress should be awarded. Lord Coke
further adds, that every man so imprisoned has a
right to claim it writ of Habeas Corpus tither from
the Court of King** Bench or this Court, and in
privileged ease* from the Court of Common
Mae, and in event of their bring wrong int-
Pristmed they ore to be discharged from custody.
Its page 592 of the same book, that eminent lawyer
is not so explicit as ass former occasions. and of
course it is tint necessary for me to state it. In
leis eth lastitute, page 81, speaking of this
Court, lie says, it is rather (mark his expression)
open always to his Majesty's subjects, fur if a Mali
,we inspriwerly imprisnited during Term time, then
awit her slue Colin of King's Deitch nor Common
Tires could discharge him in vacation, but oily
the Lord Chancellor. It, therefore, seems quite
11.•:sr from lord Culce, that he felt that the Court
of King's Bench could only discharge in Term, and
that the CointirlOis Pleas could only do it where the
persons were privileged. The next point 1 have to
allude to is, the act of the abolition of the Star
'Chamber in the 16th of Charles I. This Act did
sway with that iniquitous Court called the Star
Chamber ; and it enacted, that in every case where
the person of any or his Majesty's subjects was com-
thit teal to prison by the Star Chamber, or soy Court
vretentling to have. or virtually laving the same
poweri, should have the privilege, as in common
caret, by applying to a Court for a discharge by a
writ of Habeas Corpus, and paying the usual fees.
The Act, it is true, took no notice of the Court of
Chancery, bolt I feel that there was much authority
for the Jori,aietion or the Court of Knig'e Bench
to issue out writs of m0i1... Corpus. The ease of
r),1,e11, io the reign of Choirs 11.. is ass impor-
tant precedent, for which reason I shall refer
to it now, as I think it is important us it bears on
this case. It is very singular, according to the notes
1 have of Ilnithell's case, that he, as a juryman,
should have been committed to Newgate, on ac-
coma of his agreeing to an improper verdict, and
nlso that lie was fined forty marks. This juryman
•,ss one of the jury its the case of Wm. Penu and
Joseph Meade—cases so well known now, as to ad.
mit of no possible doubt ; and when the Court
value to that decision. it ought to have had
sufficient evidence of the crime as to have jus.
titled the committal. The next question was,
e:lietlier the Court of Common Pleas had the power
In bail where the imprisoned was not privileged?
The case, us it came before that Court was, whe-
ther they could order a prisoner to be discharged
that was not a privileged ;serum ? Three of the
Judges were of opinion that they had the power ;
for they held, that, es sitting in Court " into je-
risareere ram" they were bound to discharge the
Juries; and one reason given against the exclu-
sive right of the Kinser Bench to the whole
power of issuing writs of Habeas Corpus was, that
the Lord Chancellor had done so repeatedly. Lord
Hale, in his Pleas of the Crown, holds, that the
Lord Chancellor has the poser of issuing this
writ ; and he says it had been so held from time
instatmovial. Such was the opinion of Lord
Hale, if one might judge safely from his writ.
tiny. His Lordship was perhaps the ablest
lawyer, ands what was saying much inure, the
sliest independent and indefatigable Judge who
titer ,darned West 11l i l taw Hall, and I can say
there is tin inan's op which I would sooner sub.
mit to. It may lie necessary for me to allude to
the time when Loud Hale was eppoisited to his dif-
ferent high situations : he was appointed one of the
Justices of the Court of Conimou Pleas in 1643;
to that of Lord Chief Baron of the Exchequer tit
1660, and Lord Chief J sistice of the Court of
Kong's Bench in 1671, which situation lie resigned
in 1675, and died its 1676, fell of years moil
justly-deserved honours. Daring the period that
this lioneet Judge and able Statesman loved. he
hoist have known what were the opinions of the
Courts of Westminster Hall ; considering the pe-
riod at which he presided, and the various high si-
tuations lie held as a Lawyer and s Judge, he must
have known the defects of the law, and yet he
states the doctrine on this most important point
to be, that the Courts of Chancery and Kstig's
Bench have unquestionably the right to discharge
persons on wtits of liebeis Corpus, although
they were not privileged, as was required by the
rules of the Court of Common Pleas. I must say
_
bas beeu

•
Ilirsvii-an my way. by the quotipg of Jeasks'ie ease.
God F.:n,' that the day shall e:ver arrive *lieu I.
or any other Judge of the hinted Empire, shall
dare to hike into our own him& the right of elf.
.snt single right which u British sub-
ject has ! I have nu drn,l,l but I sou considered as
*peeking wills sincerity by all who hear one, then
I must say, that iii the eerie of Michael Foster's
Bull, I find that the House of Lords hail found
that the ousometurn of the writ of I labeas Corpus,
issued by their Lordships, was a gross violation
of their order, sod also • great contempt or
their authority. Wow, if the House of Lords
could judge so Ink• Court, could any mass Sulk.
pose the Lord Chaticellor's authority was to be.
trifled with; fur does not the law and co:ninon
sense say, that, as Lord Chancellor, the version who
holds the Seale must say the mime thing, whether
he is on the woolsack or bitting iii this Court ?
Lord Hale afterwards toiik a different view of the
case, au alluding to the fatuous and never-to-
be-forgotteu statute of Alava Charta, where it is
held that no muss should be consisted without
bring tried by Isis peers, as expreesed by the old
law, that is, by his fellows, lii* etoiole. It was im-
portant to observe here, dial although the Court
of King's Beside had by 'ancient statutes the right
of granting. Habeas Corpus writs, yet still it
reommed with the Court of Chancery, it being
anciently privileged. No doubt there were
cusses where • Judge might refuse a writ ; for
example, a case might occur et sea, where a ship
might be detained under quarasitiiie, although a
person uni4lit, ill the strongest terms, petition for
hie liberation, lie would nevertheless Ise retained.
Looking, however, at the nutho.ities I have
stated. 1 will ask if the statute of Magna Charts
insures the liberty of the sul.ject, and in looking
over all list law authorities. I find net poly the
doctrine of the low clearly laid dowel, but also dm
very manner ill which the proceedings sire to he
carried on. 11'here is the authority of the Ch:ui-
tellor
founded, if it is not in the Act of Charles 11. ?
Are the Judges of the cwnuuwl Costae of Law
to be the wily Judges ? Ceresiiily nut; fur nu
Man sass suppose fur a single moment they
were to he so, especially in a point of such
iinpoitance. Wioli respect to the cave of Jetikv,
I inn (let:14101y of opiuiun that more iinimrtioice
has been attached to it as is precedent than it
sieserSed. I certainly differ isiateiially is inn the
view that Lord Nottingham unit of that case, I
omen as to the law of it, for Ido nut thick that it
was properly or legully laid down by his Lordship.
The case of %Wilkes is so well known, amid so his.
'Mbar to every person in Eligletitl, that it is
unnecessary for me to eider into it. The
case of Wood. in the Court of Con ttttt Pleas,
was perhaps of snore importence, fur when it came
nu to ler that insist rites Britt Judge, Mr.
Justice Wm:ketone, was sitting *so Court. The
motion made by Wood was. that his wife should
be brought up by Ilabeas Corpus, and di:charged
from isnpriso ttttt eut : un which Lord Chief Justice
De Grey made several °lies:toms, for lie thought
there were doubts, 34 lie wets of opinion that the
Court of King's Bench only hail the jurisdiction.
But my opiuiun is, that this sue sloes 11551 bear oil
the present one ; for there the question Of privilege
was riIiPCIL I must hear a vast deed more of taros%
convincing argument before I can lie of Opinion
that a person has iso right to apply to this Court
fur a discharge by Habeas COI pus, after having
been colifiiied two Terms; for, suppose I was
imprisoned 4131 a private mall for two Terme, and
such was nit' ignorance of the law that 1 did not
know witat was meant by being couffiseal for two
Terms, would tiny Judge, silting where I do, tell
nit I must tuffi-r from my igisoratice of Ilse law?
I find that persons have beets discharged under the
Act of George the Second, on petition; and I be-
lieve I have dune so in *lie owe of Tompkinson, and
also that of Taylor. If I ion wrung in the decision I
am now giving, almost all those who sat here before
me have been also wrong; I therefore have uo doubt
but this Court has the rig:it of grantiog a writ of
Habeas Corpus in vacation, and afli r two 'Fergus has
elapsed. In thus expressing myself, I have sus
doubt but some inconvenience may arise ; but
seiro jurunteute suo, I cannot in my conscience,
before my God amid the public, say ils .1 1 have a
right to refuse the Habeas Corpus. If the Com-
missioners of Basikrup:s wish to address use on the
form of their order of commitment, 1 will hear
them to-morrow by Counsel."

!F-
R
•
1
I
•

that very peat and auuccessary diffic
1111111111mimm