CHAPTER XIV. The Subject concluded. Laws relative to Imprisonment. DE LOIME. BUT what completes that sense of independence which the laws of England procure to every individual (a sense which is the noblest advantage attending liberty), is the greatness of their precautions upon the delicate point of imprisonment. Enlargement upon bail. It is against the executive power, ture has directed its efforts. In the first place, by allowing, in most cases, enlargement upon bail, and by prescribing, on that article, express rules for the judges to follow, they have removed all pretexts, which circumstances might afford, for depriving a man of his liberty. But it is against the executive power that the legisthat the legisla lature has, above all, directed its efforts: nor has it been but by slow degrees that it has been successful in wresting from it a branch of power which enabled it to deprive the people of their leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty. Writs of mainprize, de odio et atia, and de homine replegiando. The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprize, de odio et atia, and de homine replegiando. Those writs, which could not be denied, were an order to the sheriff of the county in which a person was confined, to inquire into the causes of his confinement; and, according to the circumstances of his case, either to discharge him completely, or upon bail. habeas corpus. But the most useful method, and which even, by NOTES. being most general and certain, has tacitly abolished The writ of all the others, is the writ of habeas corpus, so called, because it begins with the words habeas corpus ad subjiciendum'. This writ being a writ of high prerogative, must issue from the Court of King's Bench: its effects extend equally to every county; and the king by it requires, or is understood to require, the person who holds one of his subjects in custody, to carry him before the judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain him, according as the judge shall decree. But this writ, which might be a resource in cases of Its early history. violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all against the prerogative of the prince, especially under the sway of the Tudors, and in the beginning of that of the Stuarts. And even in the first years of Charles I., the judges of the King's Bench, who, in consequence of the spirit of the times, and of their holding their places durante bene placito, were constantly devoted to the court, declared, "that they could not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council." Right. Those principles, and the mode of procedure which The Petition of resulted from them, drew the attention of parliament; and in the bill called the Petition of Right', passed in the third year of the reign of Charles I., it was enacted, that no person should be kept in custody, in consequence of such imprisonments. DE LOLME. Stat. 16 Charles Evasion of the statute by the connivance of the judges. Stat. 31 Charles Bringing up the prisoner. The officer neglecting to make a due return. But the judges knew how to evade the intention of this act: they indeed did not refuse to discharge a man imprisoned without a cause; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of justice. The legislature again interposed, and in the act passed in the sixteenth year of the reign of Charles I., the same in which the Star-chamber was suppressed, it was enacted, that "if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without delay upon any pretence whatsoever, a writ of habeas corpus; and that the judge shall thereupon, within three court-days after the return is made, examine and determine the legality of such imprisonment." This act seemed to preclude every possibility of future evasion: yet it was evaded still; and, by the connivance of the judges, the person who detained the prisoner could, without danger, wait for a second, and a third writ, called an alias and a pluries, before he produced him. All these different artifices gave at length birth to the famous act of Habeas Corpus (passed in the thirty-first year of the reign of Charles II.), which is considered in England as a second Great Charter, and has extinguished all the sources of oppression**. The principal articles of this act are, 1. To fix the different terms allowed for bringing a prisoner: those terms are proportioned to the distance; and none can in any case exceed twenty days. 2. That the officer and keeper neglecting to make The real title of this is, "An Act for better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas." due returns, or not delivering to the prisoner, or his DE LOLME. agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in the act) shall for the first offence forfeit one hundred pounds, and for the second two hundred, to the party aggrieved, and be disabled to hold his office. 3. No person, once delivered by habeas corpus, shall be committed for the same offence, on penalty of five hundred pounds. 4. Every person committed for treason or felony, shall, if he require it, in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail, unless it should be proved upon oath, that the king's witnesses cannot be produced at that time: and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence. A person, once habeas corpus, delivered by cannot be recommitted. Traitors and felons can de mand a trial. writ. 5. Any of the twelve judges', or the lord chancellor, Denial of the who shall deny a writ of habeas corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party aggrieved five hundred pounds. from England. 6. No inhabitant of England (except persons con- Transportation tracting, or convicts praying to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the seas, within or without the king's dominions,-on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than five hundred pounds, to be recovered with treble costs, shall be disabled to bear any office of trust or profit-shall incur 5 Vide ante, Note (1.) 595. DE LOLME. the penalties of a præmunire*, and be incapable of the king's pardon. * The statutes of præmunire, thus called from the writ for their execution, which begins with the words præmunire (for præmoneri) facias, were originally designed to oppose the usurpations of the popes. The first was passed under the reign of Edward I., and was followed by several others, which, even before the Reformation, established such effectual provisions as to draw upon one of them the epithet of execrabile statutum. The offences against which those statutes were framed were likewise distinguished by the appellation of præmunire; and under that word were included all attempts to increase the power of the pope at the expense of the royal authority. The punishment decreed for such cases, was also called a præmunire; it has since been extended to several other kinds of offence, and amounts to imprisonment at the king's pleasure, or for life, and forfeiture of all goods and rents of lands®. This kind of prosecution is now obsolete. |