The case was, that Bushel and other jurors in London (for the trial of a traverse on an indictment against several persons for conventicling against the form of the statute lately made) were fin’d and imprisoned at the sessions in the Old Baily, because they gave their verdict against full evidence and the direction of the court in matter of law and so acquitted the prisoners. In this case it was first debated at the Bar, and on the Bench, whether the Common Pleas could award an habeas corpus in this case. Wild, Archer and Tyre1 Justices. This Court may well award it, and for this cited Anderson part 1, 297, 298. 2 Inst 615. Moor Rep 839, 1132. Brownl. part 1, 33, Vaughan Chief Justice on the contrary, and he said, that some habeas corpora’s are granted of course, others not without motion, and for tbis reason on motion, because it is not of necessity to be done of course, therefore there is no necessity for the granting it; for the Court ought to be satisfied that the party hath probably cause to be delivered. This Court has not power to grant it in general, but only in case of privilege, or excess of jurisdiction of an Inferior Court, in which case every one has the privilege of being discharged by the Courts of Westminster. This Court does not grant, because they have cognizance of the cause, but because it is a probable suggestion that this Court can deliver the party. If on the retorn the cause be expresly just, the party ought to be remanded, if expresly unjust, discharged, if doutbtful, bailed. The writ is ad subjiciend’ and recipiend’ qd’ Cur’ consideraverit and ut Cur’ nostr. visa causa illa; or qd’ de jure and consuetudine regni nostr’ fuerit faciend’ andc. But this Court in criminal causes cannot do this. He urged that the want of precedents in this Court is a great argument that such writs are not grantable here. The writ moreover requires that the body una cum die caption’ habeat’, by which the Court ought to be certified how long the party has been in custody ; for if for a long a time and no procedure against him, the Court ought to bail the prisoner though committed for felony or treason, which is improper for this Court that has no cognizance of crimes; for this Court is for Common Pleas, between subject and subject, but in a criminal case the plea is between the King and his prisoner.
Citations:
(1670) 6 St Tr 999, [1729] EngR 49, (1729) T Jones 13, (1729) 84 ER 1123, (1670) Jones T 13, 84 ER 1123
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Lists of cited by and citing cases may be incomplete.
Constitutional, Torts – Other, Criminal Practice
Updated: 10 June 2022; Ref: scu.194519