The Constitution of England

Chapter XIV

135 u c h a p t e r x i v u The Subject concluded.— Laws relative to Imprisonment. 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. In the first place, by allowing in most cases, of 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 of depriving a man of his liberty. But it is against the Executive Power that the Legislature has, above all, directed its efforts: nor has it been but by slow degrees that it has been enabled to wrest from it a branch of power which enabled it to deprive the people of theirLeaders,aswellastointimidatethosewhomightbetempted 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. 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 & atiâ, and de homine replegiando.1 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 1. “Of hatred and ill will” and “of redemption of the man.” 136 book i tothecircumstancesof hiscase,eithertodischargehimcompletely,orupon bail. But the most useful method, and which even, by being most generaland certain, has tacitly abolished all the others, is the writ of Habeas Corpus, so called because it begins with the words Habeas corpus ad subjiciendum.2 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 thiswrit,whichmightbearesourceincasesof violentimprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all, against the prerogativeof thePrince,especially under the reigns of the Tudors, and in the beginning of that of the Stuarts. And even in the first years of Charles the First, 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.”3 Those principles and the mode of procedure which resulted from them, drew the attention of Parliament; and in the Act called the Petition of Right,4 passed in the third year of the reign of Charles the First, it was enacted, that no person should be kept in custody, in consequence of such imprisonments. 2. “You shall cause the body to be brought before.” 3. De Lolme quotes the sense but not the exact words of Chief Justice Nicholas Hyde’s statement in the famous 1627 Five Knights’ Case, where five gentlemen sued out a writ of habeas corpus in King’s Bench following their imprisonment for failing to comply with the crown’s Forced Loan of 1626. The failure of the legal proceeding, as De Lolme reports, helped stimulate the parliamentary initiative in the 1628 Petition of Right; see above book 1, chapter 3, p. 49, note 3. 4. See above, book 1, chapter 7, p. 70, note 3. chapter xiv 137 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 the First, the same...