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means of procuring his liberty, as long as the court shall think fit to deny it: however able he might be to give such proofs of his innocence, as would be fatisfactory to impartial judges, if his friends or agents were allowed to come to him, or he had the use of his papers, or knowledge of his accusers. He may be incapable of doing this when secluded from all correspondence, and when he is not so much as examined at all. At this rate he may continue for a number of
years in doleful folitude, to the great impairment of his health, and disorder of his estate : and if at last he gets out, he has no remedy; no action of false imprisonment or damages. The ministers by whole procurement perhaps he was imprisoned, are fafe under the royal prerogative.
" There have been times when this same power has been claimed, and with the like rigour exercised by the kings of England, not that there was any juft ground of law for it, for the antient Saxon conftitution, allowed men to be bailed in all cases. By the common law antiently, says lord Coke (a), a man accused and indicted of high treason, or of any felony whatsoeverx was bailable upon good security; so that the gifl
ad was only his pledge and surety, who could find no other : for the law of England, says the same learned author, is a law of mercy, that the innocent shall not be worn or wasted by long imprisonment, but fpeedily come to his trial, and that prisoners for criminal causes be humanely dealt withal. But after the Norman conquest it was provided, that not only in the case of homicide and high treason, but in moft other criminal causes, the offender was not bailable (b). And even when innocent persons were committed and detained in prison, they were obliged to sue out writs De odio et atia, from the court of chancery for their relief (c). Several of our kings after this aera had little regard to tbe part of the common law, but on the flightest pretences, or unjust fufpicions, imprisoned men of all ranks, and kept them, in confinement as long as they pleasedo The same kind of tyranny was practised by the ministers of king Henry II. John, &c. and even the barons in king Edward the first's time, were very, desirous of having the same power to imprison perfons at their will, for trespasses done in their parks and ponds, but the king would not grant it (d).. In opposition to these practices,
the great charter of 9 Henry
(a) Coke's ad Inft. p. 189. (b) Ibid. pe:49. 186.
(c) See an account of the writs de odio et atia, in Bacon's government of England, par. I. p. 168. By the antient law of the land, villains might be imprisoned by their lords without cause. (d) See Stat. Merton.
in. provided, "s that no free man should be taken or imprisoned. Neither, says the king (e), will we go, or fend upon him, unless by the legal judgment of his peers, or by the law of the land."-But how solemn foever this charter was granted and confirmed, yet in a little time there were frequent breaches made upon it, which plainly appears from a speech made in parliament by the archbishop of Canterbury, 18 Edward I. (f); among other grievances he represented, “ That very many freemen of the kingdom, had without any guilt on their part, been committed by the king's minifters to divers prisons, as if they had been saves of the meanest degree, therein to be kept; of whom some died in prison of hunger or grief, and the weight of their chains. From others they extorted infinité sums of money for their ransoms (g).” This speech, with the notoriery of the facts, had fuch an influence upon the parliament, that they indicted severe punishments upon some of the ministers and others.
• In the fifth year of the reign of Edward III. chap. 9. it was enacted, “ That no man from henceforth fhall be attacked by any accusation, nor fore-judged of his life or limb; nor his lands, tenements, goods nor chatrels, feized into the king's hands, against the form of the great charter, and 'law of the land.”. And again, in the 25th of the same reign, there was another act made more 'full and expressive, for it says, “ That from henceforth none shall be taken by petition or suggestion, made to our 'lord the king, or his council, unless it be by indi&tment or presentment of his good and lawful people of the fame neighbourhood, where fuch deeds be done, in due manner, or by process 'made by writ original at the common law : and that if any thing be done against the same, it shall be holden for none (h)." Again, in the 28th of the same reign, it is enact. ed. “ That no man, of what state or condition that he bt, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law (i).".
Also in 38th Edward III. ch. 18, it is enacted, that when suggestions are made by any persons against others, the former thall find fureties before the king's grand council, “ to pursue
(e) • Nullus liber homo capiatur, vel imprisineur-nec fuper cum ibi. mus, nec fupra eum mittamus, nisi per lega'e judrcium farium fuorum, aut per legem terræ.' Mag. Char. Coke's 2d Int. p. 45.
(f) See Echard's history, Vol. I. p. 309.
. That this law was
their suggestions, and incur the same pain the others should have had, if he were attainted, in case their suggestions be found evil; and that then the process of law be made against them, without being taken and imprisoned, against the form of the said charter, and other statutes (k).” And yet again, 420 Ed. ward III. ch. 3d. “ It is assented and accorded for the good governance of the commons, that no man be put to answer without presentment before the king's juftices, or matters of record, or by due process of writ original, according to the old law of the land; and if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”
« One would think that here had been laws enough to secure this point of liberty ; but in the reign of Henry VII. there was an act of parliament passed, that justices of peace should have power to determine the validity of indictments (1): in virtue of which Empfom and Dudley proceeded : their manner was to cause divers subjects to be indicted of sundry crimes, and so far forth to proceed in form of law; but when the bills were found to commit them, and nevertheless not to produce them in any reasonable time to their answers, but to suffer them to languish long in prison, and by fundry artful devices and terrors, to extort from them great fines and ransoms, which they termed compositions and mitigations (m).”—The high commissioned ecclesiastical court, erected in the reigns of Edward VI. and Elizabeth, to enquire of, and provide againft papists and heretics, had a power to fine and imprison them; which was accordingly practised in many cases (n). And tho' great complaint was made, in the latter of these reigns, by all the judges and the barons of the exchequer (o), yet still the same claim was continued, and carried into execution on the part of the crown, and the judges did not continue to oppose it, or not with any effect ; for in James the first's reign, Sir W. Rawleigh represented a justice of peace, and committed men with impunity. At last the judges came to maintain in Westminster ball, that the crown and its minifters might lawfully imprison and detain men in custody, in several cases, which were before disallowed. Judge Dodderidge gave it as his opinion (p), that the
(k) See Hale’s observations on Mag. Char. and the several statutes of Edward III. here quoted : Hift. P. C. ch. 13. b. ii. p. 109.
(1) See the act 11 Henry VII. ch. 3. which is not in the statute books, but in Coke's 4 inft. p. 41.
(m) Petyt. Misc. Parl. p. 208.
o) Lord Chief Justice Anderson's reports, p. 297. in Mid. Temp.
king may, by his absolute power, commit a nobleman to prison, durante bene placito fuo ; and in the 3d Car. I. Sir John Corbett and others, were brought into the King's Bench, and the caused of their commitment was declared by the lord chief justice, and other judges, per speciale mandatum domini regis, without affigning any other caufe (q).
• Therefore in vindicating this great point of liberty, the lords fpiritual and temporal, and the commons of England in parliament assembled, 1627, 3d Car. I. by their joint petition to that prince, declared and requested, as their birth right, that no freeman should be taken or imprisoned, or be outlawed or exiled, or in any manner destroyed, nor disinherited, nor put to death, without being brought to answer by due process of law (r). To which the king answered, without any saving of the rights of the crown, Soit droit fait c: nome il eft defiré (s); and afterwards we are informed that this Bill of rights passed into an act (t).
• But as there were afterwards several illegal commitments and imprisonments, during the course of this reign, and the following usurpation, and in the next reign a great disposition in the ministers to extend the prerogative royal ; and as sheriffs, gpulers, &c. often used oppressive delays, even on frivolous ex- ao, cuses, which were very expensive to prisoners, before they would make returns for their relief, it was therefore at last found necessary to settle that matter once for all, in the noted statute of -31ft Car. II. called the Habeas Corpus : wherein it is provided, that in the case of any person, not imprisoned for treason and felony, specially expressed in the warrant for his commitment : if a writ of habeas corpus shall be brought in his behalf to the Sheriff or ghaler, and due security given for the charge of bring- mol ing, and if need be, carrying back the prisoner, and for his not making an escape, that then he shall, within three days after the service of the writ, be brought before the lord chancellor, or the judges of that court from whence the writ shall, iflue ; and the true cause of his imprisonment shall to them be certified, unless he be committed in any place above twenty miles diftant from the place where such court or person is: and if he be above twenty miles, and not beyond a hundred miles, then he is to be brought within twenty days at the furtheft. And if the commitment be made out of term time, application may be made in the prisoner's behalf, to the lord chancellor, lord keeper, or any of the king's justices or barons, of the degree of the
(q) State trials, Vol. 7. p. 140.
coif; and the said lord chancellor, judge or baron, upon viewing a copy of their commitment, or upon oath made that a copy of it was denied, shall grant a writ of habeas corpus, under the seal of the court where he is judge. Upon which writ directed to the goaler, and returnable immediately before the said judge, or any other judge of any of the said courts, the keeper of the prison shall within the times before expresed, bring the prisoner before the lord chancellor, or some one of the judges, with the true cause of his detainer. And thereupon the said chancellor or judge, unless it appears that the commitment is for a matter in which bail is not allowed by law, shall discharge the said prisoner from his imprisonment, upon his recognizance with one or more competent sureties, for his appearance at the King's Bench the term following, or at the next assizes, or goal delivery of the county, city, or place where the commitment was made, and shall certify the said writ, with the return thereof, and the recognizance into the same court, where the appear. ance is to be made. If the prisoner neglect to apply for his habeas corpus two whole terms, it shall not be granted in vacation time. If any keeper thall neglect or refuse to make such returns, or to bring the bodies of the prisoners, within the time before specified, or shall refuse to deliver, within fix hours after demand, to the prisoner, or any person applying on his behalf, a true copy of the warrant of commitment, he shall forfeit to the party grieved, 100l. for the first offence, 2001. for the fecond offence, and be incapable of holding his office any longer.
If any prisoner discharged in virtue of this act, shall be recommitted by any one, that latter person, or any one who knowingly aids him in it shall forfeit to the party grieved 500 l. If a prisoner who is committed for high treason or telony, plainly or specially expresled, shall in open court, in the first week of the term, pray to be brought to his trial, and yet Ihall not be indicted some time in the next term, or sessions of Oyer and Terminer, the judges, upon motion made to them in open court, the last day of the term, are obliged to set him at liberty upon bail (u); unless it appears upon oath, that the king's witnesses could not be produced the fame term : and if he be not indicted and tried the second term, he shall be discharged from his imprisonment. No prisoner shall be removed from one prison or custody to another, without an babeas corpus, or some other legal writ or warrant, except in case of fire, infection, or other necessity. If any person signs, or acts under a warrant for removing a prisoner, contrary to this act, he is liable to the pains and forfeitures above mentioned. If the lord chancellor, or
(u) And bail in this and all other cases ought not to be excessive. See ftat. 1. Will. and Mary.