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Non-obe dience to such writ,
tempt of court, and punishable accordingly.
award in vacation time, a writ of habeas corpus ad subjiciendum, returnable immediately before the person so awarding the same, or before any other judge of the court under the seal of which the said writ issued.]
II. And be it further enacted, by the authority aforesaid, that if the person, or persons, to whom any writ of habeas to be a con- corpus shall be directed, according to the provision of this act, upon service of such writ, either by the actual delivery thereof to him, her, or them, or by leaving the same at the place where the party shall be confined or restrained, with any servant or agent of the person or persons so confining or restraining, shall wilfully neglect or refuse to make a return, or pay obedience thereto, he, she, or they, shall be deemed guilty of a contempt of the court under the seal whereof such writ shall have issued; and it shall be lawful to and for the said justice, or baron, before whom such writ shall be returnable, upon proof made by affidavit of wilful disobedience of the said writ, to issue a warrant under his hand and seal, for the apprehending and bringing before him, or before some other justice, or baron, of the same court, the person, or persons, so wilfully disobeying the said writ, in order to his, her, or their being bound to the King's Majesty, with two sufficient sureties, in such sum as in the warrant shall be expressed, with condition to appear in the court of which the said justice, or baron, is a judge, at a day in the ensuing term, to be mentioned in the said warrant, to answer the matter of contempt with which he, she, or they are charged; and in case of neglect, or refusal to become bound as aforesaid, it shall be lawful for such justice, or baron, to commit such person, or persons, so neglecting, or refusing, to the gaol, or prison of the court of which such justice, or baron, shall be a judge, there to remain until he, she, or they shall have become bound as aforesaid, or shall be discharged by order of the court in term time, or by order of one of the justices or barons of the court in vacation; and the recognizance, or recognizances, to be taken thereupon, shall be returned and filed in the same court, and shall continue in force until the matter of contempt shall have been heard and determined, unless sooner ordered by the court to be discharged. Provided, that if such writ shall be awarded so late in the vacation, by any one of the said justices, or barons, that in his opinion obedience thereto cannot be conveniently paid during such vacation, the same shall, and may, at his discretion, be made returnable in the court of which the said in court in justice, or baron, shall be a justice, or baron, at a day certain in the next term; and the said court shall, and may, proceed thereupon, and award process of contempt, in case of disobedience thereto, in like manner as upon disobedience to any writ originally awarded by the said court: Provided also, that if such writ shall be awarded by the Court of returnable in King's Bench, or the Court of Common Pleas, or Court of
Judges to make writs of habeas corpus, issued in vacation,
term. Courts to make writs issued in
Exchequer, in the said counties respectively, which lastmentioned court shall have like power to award such writs as the respective Courts of King's Bench and Common Pleas, in each of the said counties, now have in term, but so late that, in the judgment of the court, obedience thereto cannot be conveniently paid during such term, the same shall and may, at the discretion of the said court, be made returnable at a day certain in the then next vacation, before any jastice, or baron, of the degree of the coif, or, if in Ireland, before any justice, or baron, of the same court, who shall and may proceed thereupon in such manner as by this act is directed concerning writs issuing in and made returnable during the vacation.
VI. And be it further enacted, by the authority aforesaid, Process of that the several provisions made in this act, touching the contempt making writs of habeas corpus, issuing in time of vacation, may be returnable into the said courts, or for making such writs, vacation awarded in term time, returnable in vacation, as the cases against permay respectively happen, and also for making wilful diso- sons disbedience thereto a contempt of the court, and for issuing writs of obeying warrants to apprehend and bring before the said justices, habeas coror barons, or any of them, any person, or persons, wilfully pus in cases disobeying any such writ, and, in case of neglect or refusal within to become bound as aforesaid, for committing the person, or 31 Car. 2. c. persons, so neglecting or refusing, to gaol as aforesaid, re- 2. specting the recognizances to be taken as aforesaid, and the proceeding, or proceedings, thereon, shall extend to all writs of habeas corpus, awarded in pursuance of the said act, passed in England in the thirty-first year of the reign of King Charles the Second.
Note. The writ of habeas corpus ad subjiciendum is a high prerogative writ, by which the king has a right to inquire the causes for which any of his subjects are deprived of their liberty, and the stat. 31 Ch. 2, c. 2, was passed in order to give this writ greater efficacy. It is issuable at common law out of the Court of Chancery, in vacation as well as in term time, the Court of Chancery being always open: 2 Inst. 53, and see Crowley's case, 1 Swanst. 1. For the manner in which the Chancellor proceeds in criminal cases, upon the return of the writ, see 2 H.P.C. 147. With regard to the Court of King's Bench, it seems doubtful whether a judge of that court has power at common law to issue writ of habeas corpus in the vacation.
As to the Courts of Common Pleas and Exchequer, see what is said in 2 H. P. C. 144. The power of the superior courts of justice to bail in criminal cases, does not seem to have been restrained by any statutes, for the 3 Ed. 1, c. 15, only pointed out what offences should be replevisable by the sheriff, and the 1 and 2 P. & M. c. 13, restrained justices of the peace from bailing persons not replevisable by the statute of Ed. 1. Still, though not within the purview of either of these statutes, the courts were guided in a great measure by the rules of the former: 2 H. P. C. 118; and probably they will equally be guided by every existing statute on the subject. For a general view of the history of bail
in criminal cases, see the Letter of Junius to Lord Mansfield, vol. 2, Woodfull's ed. The Court of King's Bench appears to have unlimited power in bailing in all criminal cases which savour of oppression, for it may, in its discretion, and upon consideration of the circumstances, bail any person who shall appear to have been unjustly deprived of his liberty by any inferior court, 2 H. P. C. 182; and that without any regard to the case being in or out of the Habeas Corpus Act. Thus, where the benefit of the Habeas Corpus Act was refused for irregularity in the proceedings, the prisoner was nevertheless bailed upon the special circumstances, he having been long in prison and dangerously ill: 3 Vin. Abr. 155. But as, on the one hand, this court may, where the suspicion is slight, bail in all cases of felony, even in case of murder, though there should be no doubt as to the validity of the warrant of commitment, so, on the other hand, it has power to remand the prisoner, notwithstanding that the warrant of commitment is defective, the corpus delicti appearing in the depositions: 3 East, 164. Moreover, the writ of habeas corpus at common law is not grantable by this court as of course; it issues upon a motion grafted on a copy of the commitment; for where it is evident, that upon the return of the
Bail by ! justice.
commitment, the prisoner must be remanded, it would be nugatory to grant such a writ of course. And even upon the Habeas Corpus Act, it is questionable whether the writ is grantable of course; for the act directs the judge to grant the writ in vacation, upon view of the copy of the warrant: Hobhouse's case, 3 B. & A. 420. For other cases on this subject, see ex parte Krans, 2 D. & R. 411; 1 B. & C. 258; Mitchell v. Matcheson, id. 513; ex parte Beeching, 6 D. & R. 209; 4 B. & C. 136. The truth of a return to a habeas corpus in criminal cases cannot be controverted: 2 Haw. P. C. 113. As to sufficient and insufficient returns, see Rex v. Winton, 5 T. R. 89; Rex v. Suddis, 1 East, 306; ex parte Eden, 2 M. & S. 226; ex parte Gill, 7 East, 376; and Com. Dig. title Bail. See also Sir W. Windham's case, 3 Vin. Abr. 515, in which the warrant was considered good, though merely expressing that Sir W. W. was "committed for high treason," without stating the specific treason, a determination founded on a subtle distinction of Lord Coke's, and directly at variance with the opinion of the Lord Chief Justice Holt, in Rex v. Kendal, 1 Lord Raym. 65. In bailing felonies, the Court of King's Bench invariably requires four sureties: Rex v. Shaw, 6 D. &. R. 154.
BEFORE JUSTICES OF THE PEACE.
Whereas it is expedient to define under what circumstances persons may be admitted to bail in cases of felony, and to make better provision for taking examinations, informations, bailments, and recognizances, and returning the same to the proper tribunals: and whereas the technical strictness of criminal proceedings might in many instances be relaxed, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence; and the administration of justice in that part of the united kingdom called England might in other respects be
rendered more effectual: be it therefore enacted, &c., that Who may be where any person shall be taken on a charge of felony, or admitted to suspicion of felony, before one or more justice or justices bail on a of the peace, and the charge shall be supported by positive felony, and and credible evidence of the fact, or by such evidence as, who may if not explained or contradicted, shall, in the opinion of the not. justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice, or justices, in the manner hereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him, shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody, until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices of the peace, shall be dence given in support of the charge shall, in their opinion, charged with felony, or on suspicion of felony, and the evinot be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charged, as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear judicial inquiry into his or her guilt, the person charged shall be admitted to bail by such two justices, in the manherein contained shall be construed to require any such ner hereinafter mentioned; provided always, that nothing justice or justices to hear evidence on behalf of any person so charged, as aforesaid, unless it shall appear to him or them to be meet and conducive to the ends of justice to
12 Geo. 1, c. 29.
IV. For avoiding the
great mischiefs and abuses which Persons con
this act, to
arise from infamous and wicked persons already convicted victed of of wilful perjury or forgery practising as attorneys or soli- forgery, &c. citors, in courts of law and equity, be it enacted, that if attorneys, forgery, or of wilful and corrupt perjury, or subornation of ing against any person who hath been, or who shall be convicted of &c. offendperjury, or common barratry, shall, after the said 24th day be transportof June, act or practise as an attorney, or solicitor, or agent, ed. in any suit or action brought, or to be brought, in any court of law or equity, within that part of Great Britain called England, the judge or judges of the court, where such suit or action is or shall be brought, shall, upon complaint or inopen court; and if it shall appear to the satisfaction of such formation thereof, examine the matter in a summary way in
judge or judges, that the person complained of, or against whom such information shall be given, hath offended contrary to this act, such judge or judges shall cause such offender to be transported for seven years to some or one of his Majesty's colonies or plantations in America, by such ways, means, and methods, and in such manner, and under such pains and penalties, as felons in other cases are by law to be transported.
Note.-Upon the subject of com mon barratry, see 4 Black. Com. 134; 1 H. P. C. c. 27; Bac. Abr. Barratry; 1 Russ. 185. No one can be a barrator in respect of one
act only; for every indictment for such a crime must charge the defendant with being a common barrator. Case of barratry, 8 Rep. 36.
Place of trial.
9 Geo. 4, c.
Be it enacted, that if any person, being married, shall marry any other person, during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable to be transported beyond the seas, for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol, or house of correction, for any term not exceeding two years; and any such offence may be dealt with, inquired of, tried, determined, and punished, in the county where the offender shall be apprehended, or be in custody, as if the offence Exceptions. had been actually committed in that county: provided always, that nothing herein contained shall extend to any second marriage contracted out of England, by any other than a subject of his Majesty, or to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.
Note.-Before the passing of this act, if the second marriage took place out of the jurisdiction of the law of England, it was not punishable under that law. Moreover, as the law then stood, a person, whose consort had been abroad for seven years, though known to be
living, might marry again with impunity; and it was also held, under one of the former statutes, that a person divorced a menså et thoro only, was exempt from the penalties of bigamy: 1 E. P. C. 466. The present enactment has worked improvements in all these respects.