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attention to this important constitutional case,' as Mr. Fry justly calls it, is to present before our readers a view of that muchlanded, but really little understood, yet vital security for our liberties, the writ of Habeas Corpus; in relation to which this case has been the means of raising some great and interesting points, and has produced a history of it from the learned author of the Report, in the shape of an Introduction.
Mr. Fry tells us that 'the inquiring reader will be probably 'much surprised to find that a writ of so just and wide a celebrity, and of so vitally important a character, has received but a very general notice from our legal writers, although they have been 'fully alive to its value;' and after referring to the eulogistic expressions, in reference to it, of Sir William Blackstone, in his Commentaries, observes : The information, concerning this writ, 'thus warmly and justly eulogized, is only to be found in scat'tered parts of various writers, and therefore I have presumed
that an attempt to deduce, historically, its existence and modifi'cations, will not be thought a useless one, although the task 'must of necessity be performed in a summary manner. have, then, a history of this great writ presented to us.
It must be necessarily of the highest interest to every Englishman, for the writ in question is one of the proud and peculiar characteristics of our free land.
We are told by the learned author of the work before us, 'that to expect it in oriental despotisms would be hoping to 'gather grapes from thorns, and figs from thistles. And in the nations of antiquity, where the democratic form of government would lead us to expect every species of personal security, nothing analogous to it existed.' A very curious and interesting fact is, however, brought to our notice in this essay, viz., the existence in Arragon, (of which Mr. Fry says, 'the ancient con
stitution was probably better adapted than any other in modern 'Europe, except our own, for the security of individual freedom,') of a process called manifestation, which is extremely similar to our writ of Habeas Corpus. It is described by Mr. Hallam, in his valuable work on the State of Europe during the Middle Ages,'(vol. ii., p. 75,) who says that 'It took place when any one was arrested without lawful process; and in such cases only the justiciary of Arragon, when recourse was had to him, interposed by manifest‘ing the person arrested; that is, by taking him into his own ' hands, out of the power of any judge,' in order that his case might be inquired into.
It appears that at the common law, as it is called, the principle of our constitution was clearly this : that no person could be imprisoned except by the express judgment of law, or that he was
* Introduct. p. 2, 3.
unable to procure pledges to answer for his appearance to a charge of felony. The assertion of this principle is familiar, probably, to most of our readers, as embodied in one of the famous clauses of Magna Charta ; and this provision was frequently reinforced and re-enacted by succeeding legislatures. Our great lawyers refer to this constant confirmation of Magna Charta, (which, we believe, took place more than forty times,) as a proof of the exceeding jealousy of parliament on this subject; but another inference equally obvious, which does not seem to have suggested itself to them with the same force, is, that this frequent repetition of the enactment shows its constant infraction, and how ineffectual the care of parliament was to restrain the violation of the charter by the power of the crown, in utter disregard of the royal oaths to maintain it. The opinions of our great legal writers, however, seem to have been uniform, and animated by this principle of our constitution, which, though distinctly asserted and claimed in those early times, has been really carried into effect only by gradual accessions of power in the people, which have restrained the arbitrary hand of the executive, and enabled the legislature to apply stringent and practical remedies for a breach of it. The Habeas Corpus act, as it is commonly called, viz., the statute 31 Car. 2, c. 3, was not, as imagined by a great number of the English people, an enactment securing personal liberty for the first time, but it only carried out and rendered more effectual the principles and provisions of the common law. Mr. Fry gives a summary account of the various writs which preceded the Habeas Corpus, in securing personal freedom; viz., that, De Odio et Atia, which enabled a person accused of murder to procure his discharge on bail, by showing that he was arrested by malice; and the writ De Homine Replegiando, by which persons detained by any others on any pretence might procure their liberation. These writs, however, appear to have been tedious and circuitous, and comparatively ineffectual, being guarded and limited by many exceptions. Accordingly the prerogative writ, called the writ of Habeas Corpus, directed immediately to the person confining the party applying for it, and enforcing instant obedience by the terrors of attachment, became the usual remedy for all persons unjustly deprived of their liberty. When it first became of frequent occurrence, it is difficult to say. Mr. Fry's researches seem to point to the reign of Henry VI. as the epoch, although he adduces some curious cases which happened in the time of Edward III., where proceedings analogous to those of this writ were adopted by the Privy Council. We entirely concur with him, however, in his observation, that the research for a higher 'origin than the time of Henry VI. is unnecessary. The investigation may amuse antiquarians, it cannot materially assist a
constitutional lawyer, and is quite needless for the practical security of the liberty of the subjects of Great Britain.*
This writ appears to have been used in the early times of its existence to redress the wrongs between subject and subject; and not until a comparatively late period to have been employed as a legal instrument to resist the oppressions of the crown. At what period it was first brought into exercise for that vitally important object, it is doubtless not easy to ascertain. Mr. Hallam says, there is, I believe, no recorded instance of a Habeas Corpus granted in any case of illegal imprisonment, by the crown or its officers, during the continuance of the Plantagenet dynasty ;' and Mr. Fry tells us the earliest precedents he can trace are to be found in the reign of Henry VII. Be that as it may, the value and efficacy of this great remedy against tyrannical conduct on the part of the crown was brought to the test in that epoch, to which every lover of liberty, civil and religious, no less than every historical student of his country, naturally turns as the period when all oppressive systems and usages of government were submitted to a searching scrutiny, and when so many of them were fortunately overturned for ever and a day. Our readers will at once anticipate us in referring to the reign of Charles I. In the third year of that monarch, he and his Privy Council committed Sir Thomas Darnell,I and other upright and independent gentlemen, to prison, for refusing to contribute to the general loan! They sued out their writ of Habeas Corpus, to which of course the return was the order of commitment by the Privy Council. Noy and Selden argued the case on behalf of the prisoners, objecting that the warrant should have specified the cause for which they were detained in custody. But the honest and independent judges of that day, who supported Charles in his conduct on ship money, decided that it was quite sufficient for the Privy Council to issue their special command,' without the least reason assigned for its exercise ! The perusal of the State Trials of that period makes every freeman's blood boil, to see the monstrous degradation of the judges, and the overbearing tyranny and insolence of the crown. Talk of the rebellion being justifiable! They only can doubt it, who have either never read the trials of those days that immediately preceded it; or, if they have, are so dead to every feeling that should animate the heart of an Englishman, that even the tyranny of a Turkish basha would probably see them contented with their lot. The case of Sir Thomas Darnell, however, and his brave associates, produced that memorable statute, the Petition of Right, of which one of the provisions was an express enactment that any such warrants of commitment by the Privy Council should be void, and no man should be detained under them. The headstrong and misguided monarch, however, could not allow the increasing freedom and boldness of his subjects to pass without again attempting to check, if not destroy it. Accordingly he apprehended Sir John Eliot and others for their courageous speeches in parliament, calling in question the illegality and tyranny of the proceedings of the government. Among those persons was the illustrious Selden, a man to whom the people of England are under the highest obligations, for the bold spirit which animated him, and the profound learning and
* Ib. p. 9.
+ Middle Ages, vol. ii. p. 72. See the State Trials, vol. viii. p. 63.
powerful logic by which he maintained the principles of public liberty. Never ought we to forget the labours of those great men, who fought the battle in its front rank when the contest was hottest, of which we are now securely and silently enjoying the blessed fruits. The objection to the warrant, (which, notwithstanding the Petition of Right, passed only two years before, was silent as to the grounds of the committal,) was, of course, that it ought to have specified the contempt of which Eliot and the others had been guilty. The judges, however, shuffled with the case, and these early martyrs in the cause of civil liberty, afterwards so hotly fought and so nobly won, were detained many months in prison under this manifestly illegal warrant. These two cases are of the highest interest and importance in relation to this subject. They were, as Mr. Fry tells us, the first in which the nature of this great writ appears to have been fully discussed.' The learning of Noy and Selden are brought to bear on the subject, with a fulness becoming the occasion, and with an earnestness on the part of the latter resulting from his deep sense of the value of liberty. Not long after the occurrence of these cases came the great Rebellion, partly produced by them, and which effectually stopped the evils that must have otherwise constantly resulted from them. The effects of that national effort, however, though in some respects of a permanent, were, unfortunately, in too many, of a transient nature. The restoration of the second Charles brought back the full tide of abuses; and, in a few years, a courageous linen-draper and freeman of the city of London had to refight the battle of Selden, Eliot, and Darnell. Honored be the memory of Jenkes for his bold and persevering exertions to render the remedy of Habeas Corpus efficacious, and to convert it from an idle subject of eulogy into a practical and working instrument !
The following is Mr. Fry's account of this case :*
"Jenkes was a liveryman of the city of London ; and at a public meeting in the Guildhall in 1676, after stating what he conceived to be great public grievances, concluded by moving that the Lord Mayor and aldermen should convene a common council, for the purpose especially of petitioning the king to summon a new parliament. For this presumption, (as the undoubted right of a freeman was held in those inauspicious days,) he was brought before the Privy Council, and after an examination, in which he conducted himself with great spirit, was committed to prison. With some difficulty he obtained a copy of the warrant under which he was confined, which purported to be issued by the Privy Council, and charged him with moving in a most seditious ‘and mutinous manner' that the common council might be convened to petition the king to call a new parliament. He then applied to the lord chancellor Nottingham for a writ of Habeas Corpus. The report of his application states that his counsel cited the authority of the lord Coke, who is most clear in the case, [that a writ of Habeas Corpus might be granted by the court of chancery during vacation,] and that they did likewise offer a precedent or two ; but the lord chancellor made light of the lord Coke's opinion, saying the lord Coke was not infallible, and slighting all that Mr. Jenkes's counsel had offered, overruled the matter, denying to grant the writ. Jenkes afterwards applied to the sessions at Westminster, to be brought up for trial, or to be bailed, but the court refused his application. And subsequently some of his friends petitioned the lord chancellor to bail him, but with no better effect. He then prayed the Privy Council to let him out on bail, but again he was unsuccessful. And finally, in the ensuing term, on moving the lord chief justice of the king's bench for a writ of Habeas Corpus, he was bailed. The ground on which lord Nottingham (evidently acting on political motives) refused the writ, viz., that it could not issue in vacation, was expressly overruled by lord Eldon in Crowley's case.'
* P. 14.
Mr. Fry then adds :
• The case of Jenkes has been generally thought to have produced the celebrated statute 31 Car. 2. c. 3, commonly called the Habeas Corpus act. Sir William Blackstone expressly states it to have done so. Alluding to it, he says, ' The oppression of an obscure individual 'gave birth to the famous Habeas Corpus act.' But Mr. Hallam tells us that this impression is erroneous, and that 'the arbitrary proceed.ings of Lord Clarendon’ were what really gave rise to it.
The provisions of that celebrated act are matter for attentive perusal, but not for the pages of our review. The main object of the act was to prevent the long, nay, indefinite incarceration for years, of persons confined, without being brought to trial, for some alleged offence. It accordingly provides for such cases, by allowing persons so circumstanced to apply to the court or a judge for their discharge, and to hasten on their trial. It inflicts a penalty of £500 on any one of the judges who should refuse to grant a Habeas Corpus. Mr. Fry then draws our attention to