Star.
London, England, 1818-07-21 00:00:00

iATV INTELLIGIVCC.

COURT OF CHANCERY, JuLYtd.
TEMPEST V. ORD.

In consequece of what passed with nerd to this
case On Saturday last, the Court was this morning
crowded, but no motion of any kind was made by
either side, contrary to the expectation of the whole
Coutt.

Mr. HORNE, just at the rising of the Court, ad-
dressed his Lordship, My Lord, previous to rur
leaving the Court, i!llow me to mention in the case
of Tempest and Ord, for the purpn,e of relieving the
anxiety of the partie:, and to give no further trouble
to the Court, that it is not intended on the part of
Lard Stewart to make any further motion to the
Court. The motives of the other parties have been
taken, and I have no wish to make any. application."

LIBERTY OF THE SUBJECT.
CASE OP TUE BANKRUPT CRAWLEY.

It will be recollected that mention has been made
of this case in some of our preceding reports. It was
an application for a writ of Habeas Corpus, to dis-
charge the bankeupt out of custody ; the motion was
Opposed on the ground that there existed no power
in. the Lord Chancellor to grant writs of Habeas
Corpus in the vacation.
Tice tee, h ts teldereone a long argument on both
sides, and his Lordship this day, to pursuance to the
intimation he hau given, decided the case by his judo •
ment, thereby deciding the future practice of the
Court on this important question affecting. so mate •
riady the-liberty.of the subject.
The Logo Cuastest.t.oa inquired whether any no-
tice had been given to the Commissioners of Bank-
met o.) this motion?
Mr. Ross replied in the negative. He believed
no one appeared on behalf of the Commissioners. ,
The LORD CHANCEL Loft understood that there were
more than one action against the Commissioners foci
this very cemmitnient, and it appeared that the bank-,
nee eels pressing his discharge. in order to enhance
the damages upon the action. Under these circum4
stances, he should think himself hound to hear any
gentleman who should appear to-morrow on behalf
of the Commissioners; nut he should now proceed to
declare the opinion he had formed, after a very long
an 1 laborious examination into the various authors-
ties for and against the application. The maxim of
the law was, that the writ of Habeas Corpus was a
very high prerogative inherent in the Crown, by
which the King had the right of inquiring into the
cause why any of his subjects were deprived of their
liberties. The first authority to which he should
refer was that of Lord Coke, who, in his Readings
upon Magna Charta, had declared that the Court of
Chancery had the right of issuing writs of Habeas
Corpus, in the vacation as well as in Term time ;
giving as his reason, that this Court was 9.lflcina
juditi,r, and was never adjourned. Lord Coke also,
in page 81 of his 4to Institutes, took notice of this
power of the Court of Chancery, and observed that
" this Court is the rather always open ;" and gave the
special reason, that if a man be wrongfully impri-
wined in the vacation, the Lord Chancellor might do
him justice according to law. Neither the Court of
King's Bench nor the Common Pleas could grant
writs of Habeas Corpus out of Term, but the Court
of Chancery could grant them at any time. In page
82, spe iking of the remedy for unjust impnion-
ment, an I ie page 290, discussing the forest laws in
the 4th I ,litote, Lord Coke also touched upon this
qUestion, and re-assefeed his former declarations, that
• debito justUitz a subject was entitled to a set it of'
Habeas Corpus out of Chancery at all time:. His
Lordship nest referred to the statute 16 Car. I. which
made certain regulations relative to the Privy Coun-
cil, abuiished the High Court of Star Chamber, and
gave the Courts of King's Bench and Common Pleas
a power to interfere in favour of the subject, and to
grant writs of Habeas Corpus in certain cases men-
tioned in the statute. This, his Lordship observed,
was a statute by which it was impossible to ascertain
what were the powers of the Court of King's Winch,
as far as regarded these writs out of Term, or what,
was the power of the Common Pleas in these respects
either in or out of Term. The statute took eci notice
of the Court of Chancery. At present, there could'
be no doubt but that the Court of, King's Bench
could issue writs of Habeas Corpus both in and out
of Term, and the Common Pleas also, with a few
exceptions. This power was given to the latter Court
by the decision given in the famous case of Bushell,
reported in Vaughan. 'the next greet authority on
this point was that of Lord Chief Justice Hale, who
had followed the example of Lord Coke. in deciding,
that the Lord Chancellor had the power of granting
writs of Habeas Corpus in vacation. He considered
this opinion of Lord Hale to be of great weight, re-
gard being had to the time in winch his Lordship
had lived, and the various important olficee he had
filled. It would be recollected that Lord Hale was
made a Judge of the Common Pleas in ILIA, a Lord
Chief Baron in 1660, and aChici Justice of the Court
of King's Bench in 11771. He resigned that office in
167.5, and died 1676. It appeared, therefore, that
Lord Halelived in a period when he must have been
extremely conversant with what were the different
notions entertained in the various Courts in West-
minster-ball, as to what construction was to be put
lupon the statute of the bath Charles I. It was then
the opinion of Lord Hale, that ,4 by virtue of the
statute of Magna Charta, and also by common law,
writs of Habeas Corpus may issue out of :he Chan-
eery," but but it seems regularly that. d;is writ should
issue from the Court of Chancery in vacation, and
' from the Court of King's Bench in the Term time only.
Lord Hale had therefore adopted that great principle
upon which Lord Coke had acted, that wherever
the statute declared that no man should be deprived
of his liberty, but by the judgment of his peers, is
the law of the land, and this principle was inherent
in the Constitution. It was incumbent upon the
Courts of Law to find the means of making the law
effectual. This was the idea which this great man
entertained, and be considered that, as the Court of
King's Bench had only the power to grant writs of
Habeas Cos pus in term time, and that as the Com-
mon Pleas had then no power of granting such writs
in criminal cases, it was absolutely necessary for the
preservation of the liberty of the subject, that a
power of bailing should exist in some tribunal. The
Court of Chancery, being the ecitm justiiiir, was
considered to plums that power en all occasions.—
It might indeed be asked why the Statute of 15