Habeas Corpus Act, 1679.

Ancient

remedies for illegal detention.

accounts of the several sums therein mentioned.'1 Commissioners (who were to report from time to time to the King and both Houses of Parliament) were nominated in the Act and invested with most extensive powers, not only for auditing the public accounts, but for investigating frauds in the expenditure of money and employment of stores. They were authorised to examine upon oath, to summon inquests, to commit to prison without bail all persons disobeying their orders, and to determine finally on the charge and discharge of all accounts; and upon a certificate of their judgment the barons of the Exchequer were directed to issue process for recovering money to the King's use, as if there had been an immediate judgment of their own court. The passing of this statute marked a further step in that transfer of the control of the Executive administration from the Crown to the House of Commons, which, throughout the long existence of the 'Pensionary' Parliament of Charles II., was quietly but steadily proceeding.

Of all the statutes passed in the reign of Charles II. perhaps the most celebrated is the Habeas Corpus Act. But although this Act afforded to the subject a prompt and efficacious remedy in many cases of illegal imprisonment, it is a mistake to suppose that it introduced any new principle or conferred any new right.

The right of personal liberty-the most precious of all rights-is as old as the Constitution itself. It rests upon the Common Law, which was merely defined and declared by Magna Charta and the stream of statutes which affirm that enactment. The subject was therefore always legally free from detention except upon a criminal charge or conviction, or for a civil debt. Besides the ancient writs De odio et atid and De homine replegiando (which were avail

1 19 Car. II. c. 9.

Hallam, Const. Hist. ii. 358-9. A great deal of abuse and misapplication of the public revenues were brought to light by the commission; and at the next meeting of Parliament, in October, 1669, Sir George Carteret, treasurer of the navy, was expelled the House for issuing money without legal warrant. —

able only in particular cases),1 any freeman imprisoned was entitled at Common Law to demand of the Court of King's Bench a writ of habeas corpus, or corpus cum causâ as it was called, directed to the keeper of the prison, and commanding him to bring up the body of the prisoner, with the cause of the caption and detention, in order that the Court might judge of its sufficiency, and either remand the prisoner, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and ex debito justitiae, and could not be denied. It possessed, however, various defects. 1. The gaoler was not bound to Their inademake an immediate return to the writ, but might wait for quacy. a second writ called an 'alias,' and a third, a 'pluries;' and other expedients, such as shifting the prisoner about from prison to prison, were sometimes adopted in order to evade obedience. 2. It was doubtful whether the Court of Common Pleas could issue this writ; and the Court of Exchequer seems never to have done so. It was also doubtful whether a single judge of the Court of King's Bench could issue it during the vacation.

These defects caused much delay in obtaining the writ; but a more serious matter was the attempt made by the Crown to defeat the right altogether, by maintaining that the 'special command of the King' was per se a sufficient cause to justify the commitment and detention of a subject. This vitally important point was, as we have seen, elaborately argued in Court and in Parliament, in the great case of the Five Knights (Darnel's case) in 1627, and was intended to have been settled by the Petition of Right which declared against it. The arbitrary arrest of Sir John Eliot, Selden, and other members, on the dissolution of Parliament in 1629, and the attempt made to evade the words of the Petition of Right by setting forth in the warrant and in the return to the habeas corpus a colourable cause of commitment, notable contempts of the King and government

Abortive attempts at a remedy.

and stirring up sedition,' led to the enactment of the remedial clauses concerning the writ of habeas corpus contained in the Act which abolished the Star Chamber.1

Under Charles II. the arbitrary conduct of Lord Clarendon, in procuring political offenders to be illegally imprisoned in distant and unknown places, directed public attention to the necessity for a more speedy and effective process of enforcing the subject's right to personal liberty.? In April, 1668, a bill to prevent the refusal of the writ of habeas corpus was introduced in the House of Commons, but did not pass through committee. In March, 1670, another bill to the same effect was sent up to the Lords, but fell through. In the session of 1673-74, the Commons passed two bills-one to prevent imprisonment in gaols beyond the seas, the other to give a more expeditious use of the writ of habeas corpus in criminal matters. These appear to have failed in the Upper House, as similar bills were sent up to the Lords in 1675, and with a like result. In 1676 the delay and difficulty in procuring a habeas Jenkes's case, corpus were forcibly exemplified in the case of Francis 1676. Jenkes, a citizen of London. He had delivered a speech at the Guildhall urging that a common council should speedily be held to petition the King, in the name of the City, to call a new Parliament. For this he was summoned before the Privy Council and committed to prison. Various attempts were unsuccessfully made to obtain his enlargement. The Court of Quarter Session for Westminster refused to admit him to bail, on the plea that he had been committed by a superior court; or to try him, because he was not entered in the calendar of prisoners. The Lord Chancellor, on being applied to for a habeas corpus, refused to issue it during the vacation; and the Chief Justice of the King's Bench, to whom in the next place recourse was had, made so many difficulties that Jenkes lay in prison many weeks before he was eventually enlarged on bail.

the Habeas

Corpus Act,

At length, in 1679, three years after the proceedings in The Act of 1679. Jenkes's case, the famous Habeas Corpus Act was passed. It is intituled 'An Act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas,' and is restricted to the case of persons imprisoned (before sentence) for 'criminal or supposed criminal matters.' It enacts: (1) That on complaint and request in Provisions of writing by or on behalf of any person committed and charged with any crime (unless committed for treason or 1679. felony plainly expressed in the warrant; or as accessory or on suspicion of being accessory before the fact to any petit treason or felony; or upon suspicion of such petit treason plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process) the Lord Chancellor or any of the judges in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two whole terms after his imprisonment to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges. And upon service thereof the officer in whose custody the prisoner is shall bring him before the said Lord Chancellor or other judge, with the return of such writ and the true cause of the commitment; and thereupon, within two days after the party shall be brought before them, the said Lord Chancellor or other judge shall discharge the prisoner, if bailable, upon giving security, in any sum according to their discretion having regard to his quality and the nature of his offence, to appear and answer to the accusation in the proper course of judicature. (2) That such writs shall be endorsed as granted in pursuance of this Act, and signed by the person awarding the same. (3) That the writ shall be returned, and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days after service of the writ. (4) That officers and keepers neglecting or refusing to make due returns, or not delivering to the prisoner or his agent within six hours. after demand a true copy of the warrant of commitment

or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in sec. 8 of the Act), shall for the first offence forfeit £100, and for the second offence £200 to the party grieved and be disabled to hold his office. (5) That no person once delivered by habeas corpus shall be re-committed for the same offence, on penalty to the party of £500. (6) That every person committed for treason or felony, shall, if he requires it, the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless it appear, upon oath made, that the king's witnesses cannot be produced at that time; and if acquitted, or not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence; but that no person, after the assizes shall be open for the county in which he is detained, shall be removed from the common gaol by habeas corpus till after the assizes are ended, but shall be left to the justice of the judges of assize. (7) That any such prisoner may move for and obtain his habeas corpus as well out of the Chancery or Exchequer as out of the King's Bench or Common Pleas; and the Lord Chancellor or judges denying the same, on view of the copy of the warrant, or oath that such copy is refused, shall forfeit severally to the party grieved the sum of £500. (8) That this writ of habeas corpus shall run into the Counties Palatine, the Cinque Ports, and other privileged places, and the islands of Jersey and Guernsey. (9) That no inhabitant of England (except persons contracting, or convicts praying, to be transported, or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, Tangier, or any places beyond the seas within or without the king's dominions, on pain that the party committing, his advisers,

1 The fortress of Tangier in Africa (together with the island of Bombay) was acquired by Charles II., in 1662, as a portion with his wife Katherine of Braganza. It was abandoned in 1683.