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their fuggeftions, and incur the fame pain the others fhould have had, if he were attainted, in cafe their fuggeftions be found evil; and that then the procefs of law be made against them, without being taken and imprisoned, against the form of the faid charter, and other ftatutes (k)." And yet again, 42d Edward III. ch. 3d. "It is affented and accorded for the good governance of the commons, that no man be put to answer without prefentment 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 fecure this point of liberty; but in the reign of Henry VII. there was an act of parliament paffed, that juftices of peace fhould have power to determine the validity of indictments (1): in virtue of which Empfom and Dudley proceeded: their manner was to cause divers fubjects to be indicted of fundry crimes, and fo 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 fuffer them to languish long in prifon, and by fundry artful devices and terrors, to extort from them great fines and ranfoms, which they termed compofitions and mitigations (m)."The high commiffioned ecclefiaftical 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 practifed in many cafes (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 ftill the same claim was continued, and carried into execution on the part of the crown, and the judges did not continue to oppofe it, or not with any effect; for in James the firft's reign, Sir W. Rawleigh reprefented a juftice of peace, and committed men with impunity. At laft the judges came to maintain in Weftminster hall, that the crown and its minifters might lawfully imprifon and detain men in custody, in several cafes, which were before difallowed. Judge Dodderidge gave it as his opinion (p), that the

(k) See Hale's obfervations 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. Mifc. Parl. p. 208.

(n) See Coll. Eccclefiaftical Hift.

(o) Lord Chief Juftice Anderfon's reports, p. 297. in Mid. Temp.

Libr.

(p) Treatifes of the nobility, p. 159. Edit. Lond. 1658.

king may, by his abfolute 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 caufe 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 affembled, 1627, 3d Car. I. by their joint petition to that prince, declared and requested, as their birth right, that no freeman fhould be taken or imprifoned, or be outlawed or exiled, or in any manner deftroyed, nor difinherited, nor put to death, without being brought to answer by due process of law (r). To which the king anfwered, without any faving of the rights of the crown, Soit droit fait comme il eft defiré (s); and afterwards we are informed that this Bill of rights paffed into an act (t).

But as there were afterwards feveral illegal commitments and imprisonments, during the course of this reign, and the following ufurpation, and in the next reign a great difpofition in the ministers to extend the prerogative royal; and as sheriffs, galers, &c. often used oppreffive delays, even on frivolous ex- a cufes, which were very expenfive to prifoners, before they would make returns for their relief, it was therefore at last found neceffary to fettle 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 perfon, not imprifoned for treason and felony, fpecially expreffed in the warrant for his commitment if a writ of habeas corpus fhall be brought in his behalf to the Theriff or galer, and due fecurity given for the charge of bring- ao/ ing, and if need be, carrying back the prifoner, and for his not making an escape, that then he fhall, within three days after the fervice 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 fhall to them be certified, unless he be committed in any place above twenty miles diftant from the place where fuch court or perfon 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.

(r) English Liber. p. 180.

(s) lb d. p. 185.

(t) See the bill of rights in Rapin, 1627.

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coif; and the faid lord chancellor, judge or baron, upon viewing a copy of their commitment, or upon oath made that a copy of it was denied, fhall grant a writ of habeas corpus, under the feal 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 faid courts, the keeper of the prifon fhall within the times before expreffed, bring the prifoner before the lord chancellor, or fome one of the judges, with the true caufe of his detainer. And thereupon the faid 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 prifoner from his imprisonment, upon his recognizance with one or more competent fureties, for his appearance at the King's Bench the term following, or at the next affizes, or goal delivery of the county, city, or place where the commitment was made, and fhall certify the faid writ, with the return thereof, and the recognizance into the fame court, where the appear ance is to be made. If the prifoner neglect to apply for his habeas corpus two whole terms, it fhall not be granted in vacation time. If any keeper fhall neglect or refufe to make fuch returns, or to bring the bodies of the prisoners, within the time before specified, or fhall refufe to deliver, within fix hours after demand, to the prifoner, or any perfon applying on his behalf, a true copy of the warrant of commitment, he fhall 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 prifoner difcharged in virtue of this act, fhall be recommitted by any one, that latter perfon, or any one who knowingly aids him in it fhall forfeit to the party grieved 500 1. If a prifoner who is committed for high treafon or felony, plainly or fpecially expreffed, fhall in open court, in the first week of the term, pray to be brought to his trial, and yet shall not be indicted fome time in the next term, or feffions of Oyer and Terminer, the judges, upon motion made to them in open court, the last day of the term, are obliged to fet 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 fecond term, he fhall be discharged from his imprisonment. No prisoner fhall be removed from one prison or cuftody to another, without an babeas corpus, or fome other legal writ or warrant, except in cafe of fire, infection, or other neceffity. If any person signs, or acts under a warrant for removing a prifoner, 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 cafes ought not to be exceffive. See ftat. 1. Will. and Mary.

any

any of the judges, fhall refufe to grant a writ of habeas corpus, upon due application, they fhall forfeit 500l. to the party grieved. No fubject of this realm, and inhabitant in the fame, fhall be fent prisoner into Scotland, or into any place beyond the feas. If he be, he fhall have an action of falfe imprisonment against all perfons concerned in it, of whom he shall recover treble cofts befides damages, which laft fhall not be less than 500l. And every perfon who fhall make or fign a warrant for fuch imprisonment, and be lawfully convicted thereof, fhall be henceforth difabled to bear any office of truft or profit in this kingdom; fhall incur a præmunire, and be incapable of any pardon from the king, his heirs or fucceffors.'

Who is there that can contemplate this powerful barrier, erected in defence of the liberties of his country; procured by the bold remonftrances, and fteady counfels of our wife anceftors; and at a time when the large ftrides of prerogative were ready to overrun the priviledges of the people, without the ftrongest emotions of delight and admiration! It furely cannot need an apology that we have fo minutely collected the claufes of this memorable statute, as every Englishman ought, if poffible, to know what the privileges of Englishmen are!

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But we follow our author, who is going on with his subject. By these provisions, effectual care is taken that no man fhall be too long kept in prifon; he muft foon be brought to his trial, which is what every innocent man under fufpicion, should earnestly defire. In the mean while, there is one circumftance of no small advantage, that the certainty of a man's foon 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 ufage in prifon. There are also particular provifions to prevent unneceffary and cruel feverities from being exercised upon perfons in confinement. Bracton says, Solent præfides in carcere continendos damnare, ut in vinculis contineantur; fed hujufmodi interdi&ta funt à lege, quia carcer ad cantinendos, non ad puniendos, haberi debet (w). Lord Coke fays, if a gaoler keeps the prifoner more ftreightly than he ought of right, whereof the prifoner dies, this is felony in the gaoler by common law and this is the caufe, why if a perfon dies in prifon, 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 fafe 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 fame order and condition with himself. In the first place, the bill of indictment must be found by the grand jury, confifting of twelve or more gentlemen, or freemen of fubftance and credit, in the county where the fact is supposed to have been committed (x), who being fworn to make true (w) Bracton, 1. iii. c. 6. fol. 154. (x) Hawkins, P. C. pag. 215. 1. ii. APP. Vol. XXXIII.

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prefentment, upon examining witneffes, are either to allow or reject the indictment as true or falfe: in doing which, at least twelve of them must agree together (y). Now this is of great advantage, in order to prevent an innocent perfon's life or reputation from being brought any further into hazard, if the bill, be not found: and by a variety of ftatutes upon this case, sufficient provifion is made that the grand juries fhall confift of perfons fit for that trust.

• I must add, that this advantage of having their cafe in capital matters determined by a grand jury, belongs to peers in like manner as to commoners, unlefs in cafes of an impeachment by the house of commons, which reprefenting the whole people of England, is confidered as a grand inquit, and therefore there is no other in fuch impeachments for either peer or commoner.

• And when the bill of indictment has been found by the grand jury, there ftill remains a more exact trial; in which the nobility in all cafes of treafon, mifprifion of treason, felony or mifprifion of felony, are tried by their peers; that is, by those who have a feat and vote in the Houfe of Lords; and who, on account of their common honour, will be difposed to fhew all the equity and regard that can reafonably be defired. The whole body of the nobility have a right to affift in the trial of each peer; they are to be fummoned with twenty days notice, and there must be a majority of those who are prefent to acquit or condemn. To this trial by their peers every peer and peeress of Great Britain has a right, except only in cafes of appeals of murder, and of præmunire, in which cafes they are to be tried by a jury of Commoners.

• Commoners in like manner are to be tried by a jury of their own rank; that is under the degree of peerage, but they must have all the following qualifications.-They must be free and reputable fubjects of England, not aliens, nor persons outlawed or attainted of any crime; nor infamous by having suffered the pillory or the like: but men of honeft characters, and in the eye of the law good fubjects, probi et legales homines. They must be men of competent fubftance and ability. The qualifications of jurors have been different in different periods of our history but by 3 George II, all jurors in England returned for a capital offence, muft have in their own name, or in truft for them, within the fame county 10 pounds per annum of freehold or copyhold lands, or lands in ancient demefne; and leafeholders twenty pounds per annum.-They must be of the fame county wherein the fact was committed:-And laftly, they must be impartial, i. e. not biaffed by any affection or prejudice.

(y) In the Saxon times indictments might be made by one legal perfon: fee Bacon, P. f. p. 54. but the Mirror fays, that Henry I. ordained that no man should be tried without an ind&ment by twelve perfons.

The

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