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In. provided, “ that no free man should be taken or imprisoned. Neither, says the king (e), will we go, or send upon him, unless by the legal judgment of his peers, or by the law of the land."-But how solemn foever this charter' was gratited 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 ministers to divers prisons, as if they had been Naves of the meanest degree, therein to be kept; of whom fome died in prison of hunger or grief, and the weight of their chains. From others they extorted infinité sum's of money for their ransoms (g).” This speech, with the notoriery of the facts, had such 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 thall be attacked by any accusation, nor fore-judged of his life or limb ; nor his lands, tenements, goods nor chattels, seized 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 indictment 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 againft 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 be, shall be put out of land or tenement, nor taken, nor imprison-". ed, 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 fhall find fureties before the king's grand council, “ to pursue
(e) • Nullus liber homo capiatur, vel imprisineur-nec fuper eum ibimus, nec fupra eum miliamus, nisi per legale judicium farium fuorum, aut per legem terræ.' Mag. Char. Coke's 2d Int. p. 45.
(f) See Echard's history, Vol. I. p. 309.
(h) Sir Robert Cotton, posth. p. 227, fays, "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 cvil; and that then the process of law be made against them, without being taken and imprisoned, against the form of the faid charter, and other statutes (k).” And yet again, 42d Edward 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 justices, 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 er
.One would think that here had been laws enough to fee cure 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 sundry 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 against 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 hall, that the crown and its ministers 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
ics, had a dised in mar of these reinill 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 stature books, but in Coke's 4 inft. p. 41.
(m) Petyt. Misc. Parl. p. 208. in) See Coll. Eccclesiastical Hist.
lo) Lord Chief Justice Anderson's reports, p. 297. in Mid. Temp. Libr. (p) Treatises of the nobility, p. 159. Edit. Lond. 1658.
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 o:hers, 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 cause (9).
Therefore in vindicating this great point of liberty, the lords spiritual 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 (o). To which the king answered, without any saving of the rights of the crown, Soit droit fait c'mme il est désiré (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, ggalers, &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 neceffary to settle that matter once for all, in the noted statute of 31st 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 Thall be brought in his behalf to the Sheriff or ghaler, and due security given for the charge of bring- 10/ 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 furthest. And if the commitment be made out of term rime, 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 view. ing a copy of their commitment, or upon oath made that a copy of it was denied, Mall 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 expressed, 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 faid 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 there. of, 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, thall 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 felony, plainJy or specially expressed, shall in open court, in the first week of the term, pray to be brought to his trial, and yet shall 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 Atat. i. Will. and Mary. .
any of the judges, shall refuse to grant a writ of habeas corpus, upon due application, they shall forfeit 500l. to the party grieved. No subject of this realm, and inhabitant in the same, shall be sent prisoner into Scotland, or into any place beyond the seas. If he be, he shall have an action of false imprisonment against all persons concerned in it, of whom he thall recover treble costs besides, damages, which last shall not be less than 500l. And every person who shall make or sign a warrant for such imprisonment, and be lawfully convicted thereof, shall be henceforth disabled to bear any office of crust or profie in this kingdom ; shall, incur a præmunire, and be incapable of any pardon from the king, his heirs or successors.
Who is there that can contemplate this powerful barrier, ereeted in defence of the liberties of his country ; procured by the bold remonstrances, and steady counsels of our wise ancestors; and at a time when the large strides of prerogative were ready to overrun the priviledges of the people, without the ftrongest emotions of delight and admiration! It surely cannot need an apology that we have so minutely collected the clauses of this memorable statute, as every Englishman ought, if possible, to know what the privileges of Englishmen are !
But we follow our author, who is going on with his subject.
"By these provisions, effectual care is taken that no man shall be too long kept in prison ; he must soon be brought to his trial, which is what every innocent man under suspicion, should earnestly desire. In the mean while, there is one circumstance of no small advantage, that the certainty of a man's soon being brought to trial, or even a probability of being at any time brought before the court by habeas corpus, in a great measure prevents ill usage in prison. There are also particular provisions to prevent unnecessary and cruel severities from being exercised upon persons in confinement. Bracton says, Solent præsides in carcere continendos damnare, ut in vinculis contineantur ; fed hujusmodi interdi&ta funt à lege, quia carcer ad continendos, non ad puniendos, haberi debet (w). Lord Coke says, if a gaoler keeps the prisoner more streightly than he ought of right, whereof the prisoner dies, this is felony in the gaoler by common law : and this is the cause, why if a person dies in prison, the coroner ought to fit upon him, and by a verdict of twelve jurors, to determine whether any foul means had been used to bring him to his death. - A man therefore is safe during his being in custody; and when his trial is to come on, he hath the great advantage of being tried by his country, that is, by men of the same order and condition with himself. In the first place, the bill of indictment must be found by the grand jury, consisting of twelve or more gentlemen, or freemen of substance and credit, in the county where the fact is supposed to have been committed (x), who being sworn to make true
(w) Bracton, 1. iii. c. 6. fol. 154. (x) Hawkins, P. C. pag. 215. 1. ii. App, Vol. XXXIII.
and iconer" more debet Tuis a lege,