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

point you have just raised about the issuing of the writ in
vacation, appears to me to be a preliminary objection, and
should haae been made before the return was read. They
have obtained that advantage, but, on the other hand,
there would be another writ immediately.
The ATTORNEY-GENERAL—I admit, my Lord, there
would have been another writ immediately at common law,
and then the points would have been stated for the infor-
mation of the Court and the Counsel for the Crown. Your
Lordships are aware that in the case of Sir J. Hobhouse,
Lord Tenterden laid it down that it was by no means a
matter of course to grant such a writ, and that the reasons
must be stated to the Court. That doctrine was laid
down in 3d Barnewall and Alderson. The Learned Gentle-
man then read the opinion of Mr. Justice Abbot on that
point, and contended, that if malefactors could have writs
of habeas corpus, as a matter of course, the sentence of the
law would be suspended. The 31st Charles I. made no
alteration in that doctrine.
Lord DENMAN—This is altogether in the nature of a
preliminary objection, and if you take it, I think we must
hear you first, as you are able to question the validity of
the return. You say that it is a case in which a writ ought
not to issue. The writ, however, having been issued and
the return made, they are in possession, and it is for you to
dispossess them.
The ATTORNEY-GENERAL—Your Lordships are aware
that at common law a writ of habeas corpus could not be
granted by the Court of Queen's Bench in term time,
unless upon motion, and that writs of mandamus, &c., can
only be granted by the Court. The Lord Chancellor,
might, however, grant writs out of term, his jurisdiction not
being confined to term.
Mr. Justice COLERIDGE—That point was ruled in
exactly the reverse way by Judge Blackstone, who decided
that writs of habeas corpus could be issued, not only in
term time, but during vacation, by application to the Chief
Justice or any other of the Judges.
The ATTORNEY-GENERAL—If issued during vacation.
Mr. Justice COLERIDGE—Then it is to be returnable
to the Judge by whom the writ was granted, and if during,
term, or if the term intervenes, then to the full Court.
The ATTORNEY-GENERAL—This is a writ returnable
before a single Judge.
Mr. Justice Coes:RlDGE—But agreed to be taken here.
The ATTORNEY-GENERAL—Yes, most undoubtedly, my
Lord, but it is agreed to be taken here as if bef re a sing],
Judge. Your Lordships are now supposed to be sitting at
Chambers in disposing of this case. The Learned Attor-
ney-General then went on to contend that, until the
passing of the Act 31 Charles 11., chap. 2, such a writ
could not be granted in a case like the present. He
submitted, however, that the Act did not contemplate a
case like the one now before the Court, because the hope
and object of that Court was to afford a remedy for a
grievance which had been carried to a great extent in that
and preceding reign, which was to delay the trial of per-
sons committed. They were sent to distant gaols, their
trials were postponed, and the greatest oppressions were
practised. To remedy that evil the Act of Charles had
been passed. In the third section power was given to a
single judge in vacation to issue a writ of habeas corpus, but
he submitted to their Lordships that looking at the language
of that section, it was only in criminal matters, where the
commitment was made with a view to trial, and where bail
was to be taken for the party, that the writ could issue.
The third section enacted that if any person should stand
committed for any crime, unless felony or treason, in vaca—
tion time, it should be lawful for him or any person on lis
behalf, to apply to the Lord Chancellor, or any of the
Judges or Barons of the Common Law Courts to issue
a writ of habeas corpus, directed to the officer in
whose custody the party was detained, returnable in eight
days afterwards ; that the return was to state the true
cause of commitment, and within two days after the party
was brought before the Lord Chancellor or other Judge,
he should be discharged from imprisonment, taking his
recognizance with one or more sureties, according to dis-
cretion, regard being had to the quality of the prisoner, and
the nature of the offence. Then came an important section
—that all prisoners committed should be brought to trial
within a certain time. It was clear, therefore, that the Act
contemplated a case where the prisoner was committed
by legal anthority, on a criminal charge, with a view to trial,
and not where, as in the present case, the party was there
in the execution of their sentence. lie apprehended,
therefore, that the case could not be brought within the
Act, which was generally called the Habeas Corpus Act.
There was another Act, the .56th of Geo. 111., brought in
by Sergeant Onslow, which provided—the former being
confined to criminal cases—that in cases not criminal the
power of issuing writs of habeas corpus in vacation
should be given—it was entitled "An Act for more effeb-
tually securing the liberty of the subject.
Mr. Justice COLERIDGE—That Act, I believe, was ex-
tended to commitments for smuggling.
The ATTORNEY-GENERAL--The latter Act contempla-
ted cases rather of a civil than of criminal nature.
Mr. Justice LITTLEDAI.E said he had faequently granted
writs in vacation. A week ago he had granted a writ to
a person committed to the House of Correction, under the
Act for Disobedience to Masters. There was an informa-
lity in the committ il, and he had granted a writ of habeas
corpus, and the prisoner was discharged. In the case of
Miss Coutts, which was heard before Lord Denman, the
prisoner was also discharged.
The ATTORNEY-GENERAL—That was the case of Dunn,
for not giving sureties of the peace.
Lord DENMAN—It was a commitment for want of
sureties.
The ATTORNEY-GENERAL submitted, that when the
parties were in the execution of their sentence for a criminal
matter, at common law, there could not be a writ issued in
vacation by a single Judge. He would refer their
Lordships to the case of Crosbie, reported in 2d Black-
stone, which their Lordships would find was a writ of
common law ; and in that case it was decided that, in
vacation, a Judge at Chamber could not take cogni-
zance of it, and the Lord Mayor and Alderman Oliver
were remanded. From that he (the Attorney-General) in-
ferred that the writ had been granted as Mr. Justice Lit-
tledale had granted it ; but when the matter came on
before them, the Court thought they had not juris-
diction, and, without entering into the merits
of the case, remanded the prisoners. Again, in Sir John
Hobhouse's case, it was stated that that was a writ of
habeas corpus at Common Law, intimating as he, the
Attorney-General humbly conceived, that it was such a
case as a single Judge would not grant in vacation .
Sir John Holshowe's warrant, was under the seal of the
Speaker of the House of Commons for a criminal matter.
He had an undoubted right tohave the opinion of the Court
as to the validity of that warrant, but being a writ of habeas
corpus at common law, could not be moved for, unless be-
fore the Court in Term time. By the return before them,
it appeared that the prisoners were in the execution of their
sentence for a criminal matter, and although he did not object
to this granting of the writ by Mr. Justice Littledale,
yet when, upon the return, the cause of commitment was
what it appeared to be, he conceived that the writ did not
give their Lordships jurisdiction to go into the merits.
Mr. Justice COLERIDGE—Did you look at Croley's case,
before Lord Denman, as to the right of Judges to issue
such writs in vacation ?

The ATTORNEY-GENERAL admitted that so far as the
Court of Chancery was concerned, that right existed.
Mr. Justice LITTLEDALE said that one object of Ser-
geant Onslow's Act was to allow parties to file affidavits,
and dismiss the merits of the case.

The ATTORNEY-GENERAL—That vt as one of the ob-
jects of the Act, but there was another; and what the
practice before the passing of the 56th Geo. 111. was, be
really did not know.

Mr. Justice LITTLEDALE said he believed the Act re-
ferred to lunatics' children withheld from their parents ;
in others denied access to their children ; and surely in
such cases a Judge in vacation would grant a writ of habeas
corpus.

Mr. HlLL—Chief Justice Willmott gave many in-
stances in which writs of habeas corpus had been grant .d
during vacation. His Learned Friend the Attorney-
General had complained that he had not been apprised of
the objections they intended taking; but in return he must
complain that no intimation had been given that a prelimi-
nary objectioo would be taken on the part of the Crown,
in order that they might have had time to look into a point
of such great importance touching the bulwark of the
liberty of the subject in that country, and which, so far as
his Learned Friend was concerned, went to destroy that
bulwark.

The ATTORNEY-GENERAL thought the interruption very
unnecessary. He was now considering what might be done
at common law, and he should have been ready to com-
municate anyargument and authority, if the Learned Counsel
on the other side had communicated with him. His
Learned Friend (the Solicitor-General) had considered
that point more fully, and would address the Court upon it ;
but he (the Attorney-General) would submit that at com-
mon law writs of habeas corpus, like writs of mandamus,
should be moved before this Court, and that during vaca-
tion a Judge had no jurisdiction to grant a writ of hat as
corpus in such a case. _

The SOLICITOR-GENERAL followed on the same side.
The Statute of the 31st of Charles the Second was in-
tended to remedy many of the evils whicL existed before it
passed, and it defined the species of offences that were
bailable, and those that were not. After having pointed
out the remedy where parties had been improperly confined,
directed that every sheriff should bring up the body of the
prisoner, with a certificate of the cause of his being detained.
Mr. Justice CoLF,atnnE inquired whether it was con-
tended that this was a writ under the Habeas Corpus Act. 1
Mr. HILL said hei ooked upon it as a writ issuing from
the Common Law, and that being such every one of their
Lordships had power to issue it at any time.
The SOLiCITOR-OgNZA4I, said that in crowley's case the