AND THE LORD SAID UNTO— 41
The Lord Chancellor (Lord Lyndhurst) observed, “What we have met here for is to ascertain the jurisdiction of the Supreme Court of Bombay. The object is discussion of what their power is.”
The prerogative of issuing writs of habeas corpus is inherent in the Crown, and can only be abolished by express words and none such are found in the charter. Such writs are issuable by the law of England from the Court of King’s Bench, and they run into any dominions under the sway of the English Crown. Such writs have frequently issued from the English Supreme Courts at the several Indian Presidencies, which have all the powers of the English King’s Bench vested in them by Act of Parliament. Certain restrictions are imposed on the jurisdiction of the Supreme Court with regard to the persons subject to it; but those must be applied, by a reasonable construction, to its ordinary operations as a Court of Oyer and Terminer and of Gaol Delivery, not extended to the power of issuing those high prerogative writs which are indispensable for the safety of all the liege subjects of the Crown when urgent necessity demands immediate and decisive inter-position. But even if the subjects purely native could not be questioned for the imprisonment of a fellow subject, still the agents of those courts which act under British Judges are manifestly excluded from the pretended exemption.
The celebrated statute of habeas corpus (31 Car. II. c.2) is intituled, “An Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas;” and in The King v. Cowle (R. v. Cowle, 1759, 2nd Burr. 835), it is stated, that the power of the King’s Bench in England extends to the granting writs of this description directed to persons in the colonies, though the necessity for issuing them had not then occured. That the court has such a power, appears from the authority of Lord Mansfield [ King v. Cowle, 2nd Burrows (835)], and from the fact that writs of this description have issued into all the dominions of the Crown of England. They may, and do, extend, therefore, beyond the limits of the ordinary civil jurisdiction of the court here; and so in India the Supreme Court may have this jurisdiction throughout all the conquered territories, though its civil jurisdiction be limited to Bombay alone. The duty of the Court of King’s Bench in England,