case the king against the earl OF orrery lord north and grey bishop OF  Rochester kelly and Cockran prisoner in the tower if a statute as Geo c  suspend the habeas corpus Act for a certain time and direct that no judge or  justice shall bail or try any prisoner without a order from the king a  prisoner in the tower commit by a secretary of state for high treason special  express in the warrant can enter his petition on the first day of the ensue  term under the habeas corpus Act to be try the same term for by such Act of  suspension the power of the king bench be suspend S c fort Mod by the habeas  corpus Act car c S it be provide that person commit for treason or felony  special express in the warrant shall upon prayer in open court in the first  week of the next term be bring to their trial and if not indict the next term  then upon motion on the last day of that term they shall be bail unless it  appear on oath that the king witness be not ready and if on such prayer they  be not indict or try the second term after commitment they shall be discharge  and the judge refuse to grant a habeas corpus shall forfeit five hundred pound  and the officer refuse to obey it a hundred pound by the statute Geo c the  habeas corpus Act be at this time suspend for a time one Kelly a prisoner in  the tower for high treason move for leave to enter his prayer pursuant to the  habeas corpus Act the same motion be make in behalf of Lord orrery and Lord  north and grey who be commit by a secretary of state for high treason and the  case of bernandi state trial append a be mention to show that this be a  reasonable motion because they may be entitle to the benefit of the Act if it  shall ever be revive for bernandi be hold to be out of the Act because be do  not enter his prayer the first modern report week of the term after his  commitment apprehend that he be not oblige to do it because the Act be then  suspend as it be now and it be adjudge in the case of the earl of Aylesbury I  salk vin Abr Mod comb a that a person lapse the first term after commitment  can never after take benefit of that Act for it be in nature of a condition  precedent require of they to make such prayer and for this omission the earl  be adjudge preclude by the statute though he be afterward bail by virtue of  the discretionary power in the court application must be make to that modern  report er p court which have power of trial for which reason in Leasons case  king v Leason and Edward ld ray same point king v Yates show c who be commit  to Surrey gaol for felony and move this court to enter his prayer the motion  be reject because this court not be the proper court for the trial of prisoner  in Surrey gaol the consequence of admit such prayer will be to bring all felon  burglars and other criminal to be try in this court the prisoner make the same  application on September to the judge at the old Bailey but the court reject  the motion as be against constant experience and without a single precedent to  maintain it for the tower to which they be commit be no part of the gaol of  Newgate to the delivery of which gaol alone their commission extend and they  hold that if they have even be in Newgate and the treason be commit in Surre  or any other county no prayer can be allow fort Rep d the like motion be make  in behalf of the bishop of Rochester and it be far urge by his counsel that  the habeas corpus Act be not suspend because the word of the Act of suspension  be that no judge or justice shall bail or try c without order from his majesty  privycouncil sign by six privycouncillors and this court be notIt be express  adjudge to be within the Act a little afterward in this term the king v the  bishop of Rochester e restrain by these word judge or justice for the power  and jurisdiction thereof can be take away but by plain and positive word  express the same Inst f and it be say that notwithstanding this Act of  suspension the Lord chancellor for the time be may bail such prisoner for he  be not restrain by these word judge or justice c this court by its original  jurisdiction be invest with a ordinary and extraordinary power which can be  take away by implication in any statute it have likewise a compulsory power by  virtue of the habeas corpus Act which command this court to bail person c  which power still subsist notwithstanding the suspension for these word no  judge or justice shall bail or try shall not include so high a judicature as  this court and this be agreeable to the usual construction of other act of  parliament therefore that statute which deprive a man of his liberty shall not  have so favourable a construction as other act of parliament and to induce the  court to be of this opinion some late case be mention where person be bail  during former suspension of this Act videlicet the case of Lord AylesburyI  salk comb Mod a and the case of Fitzpatrick and the case of sir William  Windham stram vin Abr c beside there be sufficient matter to satisfy the word  of the suspend Act without extend they to the jurisdiction of this court and  that be by restrain the justice of oyer and terminer and gaoldelivery and  justice of nisi prius from bail or try any man commit for treason so that it  shall not by any construction relate to this court Pengelley sergeant argue  for the king that if this court admit the prayer he fear the consequence will  be that they must be bail that if this motion shall be grant by the  discretionary power of this court then some extraordinary circumstance ought  to be show to induce the court to grant it in a case of high treason but there  be no pretence to such matter they only rely upon the word in the Act itself  as not restrain this court to bail person the word be that no judge or justice  c shall bail c which word as they will have they do modern report not extend  to this court but certain this must be a mistake because before the Act of  suspension be make no judge or justice can bail for high treason therefore  those word must relate to this court which be compose of judge now if this  court be not restrain the Act of suspension will be elude for some judicature  be intend to be restrain in the case of king v bernardi Michaelmas term Geo it  be adjudge that the first term after the expiration of a suspension Act be the  first term after commitment within the meaning of the statute car c for that  be the first term in which the prisoner be enable to make his prayer and that  then he have a right to make it strange and if be omit so to do he lose the  benefit of the Act Lord aylesbury case salk d and if not this court then it  can be no other because modern report er p a judge or justice before this Act  be make can not bail as bath be observe for high treason so that it be make  purposely to restrain this court the Lord aylesbury case be not parallel to  this case because the habeas corpus be suspend only to he and they who be  commit on suspicion of treason or treasonable practice but not to they who be  commit express for high treason so that it appear by a very plain indication  that the intent of the legislature be to restrain this court and if so it be  as good as if restrain by positive word now that it be so intend appear by the  very word of the Act of suspension no judge or justice shall bail c which word  restrain this court and also justice of oyer and terminer for if the judge be  restrain the court must be so too because it be compose of judge and my Lord  coke Inst e tell we that if the king sit here in person justice must be  administer by the judge it be to be observe that this Act be pen in the most  general word that can be think on and that the lawmaker can have no other  intention than to restrain the fudges from bail either in or out of court and  this seem to be the plain construction of the Act therefore if this court can  neither bail the prisoner or try they it will be to no purpose to grant a  habeas corpus so it be deny leave be give to enter their prayer note to former  edition a and the rather because it be deny in layer case ante b for the court  will not try he until they have a order from the king as the Act direct  michaelmas term the nine of George the first in the king bench sir John Pratt  Knt chief justice sir Littleton powys Knt sir Robert Eyre Knt sir John  fortescue aland Knt justice sir Robert Raymond Knt attorneygeneral sir Philip  York Knt solicitor general