The Sun.
London, England, 1839-01-14 00:00:00

impression of Lord Eldon was, that the writ of habeas
corpus was a writ issuable at all times out of the Court of
Chancery, as that Court was always supposed to be sitting,
but that it could not be issued from any of the common law
Courts, except in term time.
Lord DENMAN—The question in that case was, whether
Lord Northington was right in what he had done.
Mr. Justice COLERIDGE—I think, if you look strictly
into that case, you will find that Lord Eldon rather shrunk
from giving countenance to applying to the Court of
Chancery for such writs. _

The SOLICITOR-GENERAL said that it was always the
desire of Lord Eldon, if possible, to shift off the Court
of Chancery the burthen of granting such writs,
and in doing so he often threw out observations
which left the law more at sea than before. In conclusion,
the Learned Gentleman called upon his Friends to show by
what authority the Court had granted the writ.
Sir F. PoLLocK was also on the same side. He
believed that the opinion of the profession always had
been, that out of term that Court could not issue the
writ. He did not think a single instance could be adduced
in which such a writ had been issued by that Court out of
term. He had looked over the decision in Swanston's
case, which had been adverted to by the Bench, but he
must confess that he saw no analogy between it and the
present case.

Lord DENMAN observed that a writ similar to the pre-
sent one might be issued in vacation, if it was made return-
able in term ; and for the purpose of supporting that
dictum, he had referred to three cases in which it had been
done.

Sir F. Poeeoce observed that all those cases bad taken place
since the Statute of Charles ; and Lord Eldon had said,.
with respect to Blackstone, that although he had given a
history of the writ of habeas corpus, he had not done so
with his usual accuracy. In the case of Jacques, an appli-
cation was made to the Chief Justice in vacation, and ha
refused to grant the writ. There could be no doubt that
it was Lord Eldon's clear opinion that the Courts of Com-
mon Law could not grant a writ like the present in vaca-
tion. In a recent edition of Bacon's Abridgment, there
was a collection of the opinions of all the Judges on no less
than ten questions put to them by the House of Lords. 'ln
the year 1758 an Act was brought into the House of Com-
mons, similar to Serjeant Onslow's Act, it passed the House
of Commons, and when it came into the House of Lords,
their Lordships proposed ten questions to the Judges, one
of which was, what would be the effect of the statute if it
passed ? The Judges resisted answering that question, on
the ground, that it was their duty to expound the law when
it was passed, but that it was no part of their pro-
vince to state •what the effect of a law would be,
previously to its coming into existence. The House
of Lords thought proper to dispense with the judge
ment of the Judges, and ultimately it was set-
tled by all the Judges that no writ could be issued in
vacation by any of the Common Law Judges. Upon the
whole he (Sir F. Pollock) submitted that the writ that had
been issued in the present instance was invalid.
Mr. WIGHTHAN was also on the same side, and sub-.
mitted that the Court had no power to grant a writ of
habeas corpus in vacation, and tested in vacation. He had
looked in vain for any authority for such a proceeding.
The Court of Chancery, it was true, might issue a writ of
habeas corpus at any time, because that Court was sup•
posed to be always sitting, but it was an undoubted fact
that the Courts of Common Law could not issue, such writ
in vacation.

Lord DENMAN—Do you find any prcedent of a writ
issued on the last day of term returnable immediately ?
Mr. WIGHTMAN--NO, I do not, my Lord.
Lord DENMAN—That was the fact in the cases that
have been referred to. ,
Mr. WIGHTMAN was perfectly awsre of that fact ; but
he defied his Friends to show a single case before the
Statute of Charles the Second in which a writ had been
issued in vacation mid made returnable at that period also'
After the Learned Judges had consulted for some time,
Lord DENMAN, addressing himself to Mr. Hill, said,
Are you prepared now to go into the question ?
Mr. HILL—Why, my Lord, I am in the hands of your
Lordships ; but considering the immense importance of the,
case to the parties whom I represent, I should pray 01
your Lordship to give me till to-morrow. I would not
presume to fix a day, but I should be perfectly prepared to-
morrow.
Lord DENMAN—WeII, let it come on to-morrow ;
sad
in the interim let all the points intended to be brought for-
ward be communicated by the one party to the other.