Thursday, November 5, 2009

Habeas Corpus (2)

In theory the central court (King's Court) had a control over the entire province of criminal justice, and at times directed a sheriff to send prisoners to Westminster for trial; but such instances at this date were rare, and were generally from Chancery rather than from the justices, and were more governmental than judicial in their origin. Undoubtedly, also, if a man thought himself unlawfully imprisoned by the sheriff or by some lord of a franchise, and made himself heard in the King's Court, the justices of that court had power to order that his body be brought before them, a nd to liberate him if persuaded that his imprisonment was unlawful.

Although in 1234 the royal court, by the mouth of William Raleigh, declared null and void the outlawry of Hubert de Burgh, which the King had especially commanded, this victory of law over arbitrary power was gained only after a revolt and a change of Ministry. In spit of this, a man committed to jail by the 'mandate of the King' would have found none to liberate him. It was two hundred years before the habeas corpus as the appropriate instrument for enforcing the law of personal liberty granted by Magna Charta became well established, and it was not until the reign of Charles II, that the last vestige of the superiority of the King's mandate disappears.

In Darnel's case (3 Charles I., 1627) the judges declared that a return to a writ of habeas corpus directed to the warden of the Fleet Prison, which set forth that the prisoner was detained by warrant of the Privy Council, was a sufficient answer to the writ. The result of the indignation consequent upon this subserviency of the judges to the King's will was the passage of the Petition of Right (16 Charles I., ch. 10, sec. 8), which provided that the writ of habeas corpus should be granted as of course to a person committed by the King or Privy Council upon demand made to the Court of King's Bench or Common Pleas, thus extending the power of granting the writ to the Common Pleas Court by statute.

In 1676 the court refused to grant a writ upon such a motion in vacation, and this resulted in the passing of the Habeas Corpus Act. The substance of the act is that the sheriff or other person having a prisoner in his custody shall, when a writ of habeas corpus is directed to him, bring the body of his prisoner into court, within a time fixed, with the true cause of his detainer or imprisonment, unless the commitment was for treason or felony plainly expressed in the warrant; that the writ of habeas corpus should be granted in vacation time by the Lord Chancellor, the writ to be returnable immediately and the prisoner to be discharged on giving security for his appearance before the proper court, except in case of persons committed for treason or felony expressed in the warrant of commitment, persons convicted or suffering execution by legal process, and persons detained upon a legal process or for an offense not bailable upon a justice's warrant; that persons discharged on habeas corpus shall not be recommitted for the same offense except by the court having cognizance of the case; persons committed to prison for treason or felony if not indicted and tried in or before the second term or session after commitment should be discharged; and that no inhabitant of England (except convicted felons and those contracting to be transported) shall be sent as prisoners to Scotland, Ireland, Jersey, etc., or any place beyond the seas. Stringent penalties provided for a forfeit of £500 against a judge delaying the issue of the writ, costs and damages of not less than £500, besides the penalties of praemunire for illegal transportation beyond seas.

To be continued: Habeas Corpus (3)

Transcribed from my Collection of Books: The New International Encyclopedia: 1902-1905 Dodd, Mead and Company New York Total of 21 Volumes.

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