legal judgment, and enacts that no freeman hereafter fhall be fo imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majefty's fpecial command, under a general charge of "notable contempts and ftirring up "fedition against the king and government," the judges delayed for two terms (including alfo the long vacation) to deliver an opinion how far fuch a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding furetics for the good behaviour, which still protracted their imprisonment, the chief justice, fir Nicholas Hyde, at the fame time declaring", that "if they "were again remanded for that caufe, perhaps the court "would not afterwards grant a habeas corpus, being already "made acquainted with the cause of the imprisonment. But this was heard with indignation and aftonishment by every lawyer prefent; according to Mr. Selden's own" account [ 135 1 of the matter, whose resentment was not cooled at the dif tance of four and twenty years.

THESE pitiful evafions gave rife to the ftatute 16 Car. I. c. 10. § 8. whereby it is enacted, that if any person be committed by the king himself in perfon, or by his privy council, or by any of the members thereof, he fhall have granted unto him, without any delay upon any pretence whatfoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality of fuch commitment, and do what to juftice fhall appertain, in delivering, bailing, or remanding fuch prifoner. Yet ftill in the cafe of Jenks, before alluded to, who in 1676 was committed by the king in council for a turbulent fpeech at Guildhall P, new fhifts and

BOOK III. devifes were made ufe of to prevent his enlargement by law; the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad fubjiciendum in vacation, though at laft he thought proper to award the ufual writs ad deliberandum, &c. whereby the prifoner was discharged at the Old Bailey. Other abufes had alfo crept into daily practice, which had in fome meafure defeated the benefit of this great conftitutional remedy. The party imprisoning was at liberty to delay his obedience to the firft writ, and might wait till a fecond and a third, called an alias and a pluries, were iffued, before he produced the party: and many other vexatious fhifts were praised to detain state-prifoners in cuftody. But whoever will attentively confider the English hiftory may obferve, that the flagrant abufe of any power, by the crown or it's minifters, has always been productive of a struggle; which either difcovers the exercife of that power to be contrary to law, or (if legal) reftrains it for the future. This was the cafe in the prefent inftance. The oppression of an obfcure individual gave birth to the famous babeas corpus act, 31 Car. II. c. 2. which is frequently confidered as another [136] magya carta of the kingdom; and by confequence and analogy has alfo in fubfequent times reduced the general method of proceeding on thefe writs (though not within the reach of that statute, but iffuing merely at the common law) to the true ftandard of law and liberty (10).

q See book I. ch. 1.

THE

(10) Bishop Burnet relates a circumftance refpecting the babeas corpus act, which is more curious than credible; but though we cannot be induced to fuppofe that this important ftatute was obtained by a jeft and a fraud, yet the flory proves that a very formida ble oppofition was made to it at that time. It was carried (fays he) by an odd artifice in the houfe of lords. Lord Grey and lord Norris were named to be the tellers, lord Norris being a "man fubject to vapours, was not at all times attentive to what he "was doing, fo a very fat lord coming in, lord Grey counted him "for ten as a jet at first, but feeing lord Norris had not obferved it, he went on with this mifreckoning of ten, fo it was re

"ported

THE ftatute itself enacts, 1. That on complaint and requeft in writing by or on behalf of any perfon committed and charged with any crime (unless committed for treafon or felony expreffed in the warrant; or as acceffory, or on fufpicion of being acceffory, before the fact, to any petit-treafon or felony; or upon fufpicion of such petit-treafon or felony, plainly expreffed in the warrant; or unless he is convicted or charged in execution by legal procefs) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, fhall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prifoner, returnable immediately before himself or any other of the judges; and upon the return made fhall difcharge the party, if bailable, upon giving fecurity to appear and answer to the accufation in the proper court of judicature. 2. That fuch writs fhall be indorfed, as granted in pursuance of this act, and figned by the perfon awarding them. 3. That the writ fhall be returned and the prifoner brought up, within a limited time according to the diftance, not exceeding in any cafe twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prifoner or his agent within fix hours after demand a copy of the warrant of commitment, or shifting the cuftody of a prisoner from one to another, without fufficient reafon or authority, (fpecified in the act,) fhall for the first offence forfeit 100, and for the fecond offence 2001, to the party grieved, and be difabled to hold his office. 5. That no perfon, once delivered by habeas corpus, fhall be recommitted for the fame offence, on penalty of 500l. 6. That every perfon committed for treafon or felony fhall, if he requires it the first week of the next term, or the first day of the next feffion of oyer and terminer, be indicted in that term or feflion, or elfe admitted to bail; unless the

"

ported to the houfe, and declared that they who were for the "bill were the majority, though it indeed went on the other fide; ❝and by this means the bill paft." Burnet, Hift. Ch. II. 485.

king's witneffes cannot be produced at that time and if acquitted, or if not indicted and tried in the fecond term or feffion, he shall be discharged from his imprisonment for fuch imputed offence: but that no perfon, after the aflizes fhall be open for the county in which he is detained, fhall be removed by habeas corpus, till after the affizes are ended; but fhall be left to the justice of the judges of affize. 7. That any fuch prifoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the fame, on fight of the warrant or oath that the fame is refufed, forfeit feverally to the party grieved the fum of 500l. 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jerfey, and Guernsey. 9. That no inha bitant of England (except perfons contracting, or convicts praying, to be transported; or having committed fome capital offence in the place to which they are fent) fhall be sent prifoner to Scotland, Ireland, Jerfey, Guernsey, or any places beyond the feas, within or without the king's dominions: on pain that the party committing, his advifers, aiders, and affistants, shall forfeit to the party grieved a fum not less than 500, to be recovered with treble cofts; fhall be difabled to bear any office of truft or profit; fhall incur the penalties of praemunire; and fhall be incapable of the king's pardon.

THIS is the substance of that great and important statute: which extends (we may observe) only to the cafe of commitments for fuch criminal charge, as can produce no inconvenience to public juftice by a temporary enlargement of the prifoner all other cafes of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable to anticnt precedents and the fpirit of the act of parliament, that the writ fhould be immediately obeyed, without waiting for any alias or pluries; otherwife an attachment will iffue.

4 Burr. 856.

By

By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more neceffary, because the oppreflion does not always arife from the ill-nature, but fometimes from the mere inattention, of government. For it frequently happens in foreign countries, (and has happened in England during temporary fufpenfions* of the ftatute) that perfons apprehended upon fufpicion have fuffered a long imprisonment, merely because they were forgotten (11).

THE fatisfactory remedy for this injury of falfe imprifonment, is by an action of trefpafs, vi et armis, ufually called an action of falfe imprisonment; which is generally, and almoft unavoidably, accompanied with a charge of affault and battery alfo: and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.

III. WITH regard to the third absolute right of individuals, or that of private property, though the enjoyment of it,

See vol. I. pag. 136.

(11) Befides the efficacy of the writ of habeas corpus in liberating the fubject from illegal confinement in a public prifon, it also extends it's influence to remove every unjust restraint of perfonal freedom in private life, though impofed by a hufband or a father; but when women or infants are brought before the court by a babeas corpus, the court will only fet them free from an unmerited or unreasonable confinement, and will not determine the validity of a marriage, or the right to the guardianship, but will leave them at liberty to chufe where they will go; and if there be any reason to apprehend that they will be feized in returning from the court, they will be fent home under the protection of an officer. But if a child is too young to have any difcretion of it's own, then the court will deliver it into the cuftody of it's parent, or the perfon who appears to be it's legal guardian. See 3 Burr. 1434, where all the prior cafes are confidered by lord Mansfield.

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