The 31 Car. II. makes no alteration in the Practice of the Courts

in granting them: they are ftill moved for, in Term time, upon the fame foundation as they were before: and when a fingle Judge in Vacation grants them under the 31 Car. II. in criminal Cafes, a copy of the Commitment, or an Affidavit of the refusal of it, muft be laid before him. He muft judge, even in that cafe, whether Treafon or Felony is fpecially expreffed in the Warrant of Commitment: and there have been a great number of Cafes where a doubt has arifen on the frame and wording of the Warrant; so that even upon the Act, the probable caufe of Bailing is really disclosed to the Judge, unless the copy of the Commitment is refufed, and then the Law will prefume every thing againft it; and in Cafes out of the Act, which take in all kinds of confinement and restraint, not for criminal, or fuppofed criminal, matter, and to which this Question relates, it has been the uniform uninterrupted Practice, both of the Court of King's Bench, and of the Judges of that Court, that the foundation, upon which the Writ is prayed, fhould be laid before the Court or Judge who awards it.

The reasons of guarding the Writ in this manner, I take to be thefe: There are many kinds of private Reftraint that are lawful. There was a much greater number formerly. The Reformation opened the doors of Religious Prisons; and the abolition of Military Tenures unfettered an unhappy clafs of men, called Villeins, who lived in a state of captivity under their masters.

There are many kinds of Restraint that exift at this day; fome in the nature of Punishments. In domestic government, which takes in the Cafe of Husbands, Fathers, Guardians, and Mafters, the Law N

authorizes

Opinion on

the Writ of Habeas Corpus.

authorizes Reftraints, in order to enforce a performance of thofe natural, moral, and civil duties, which Wives, Children, Wards, and Apprentices, owe to their Superiors, in their feveral relative capacities. Thefe domeftic Governments could not fubfift without fuch authorities; and therefore all States have endeavoured moft anxioufly, fome in a greater degree, and others in a lefs degree, to preferve the greatest reverence for them.

The wifdom of our Ancestors would not fuffer this kind of Authoritics to be broken in upon wantonly, upon mere fuggeftion, and without feeing some reason for an interpofition; because they saw it would have encouraged difobedience and rebellion in private families; and, at all events, must have abated that awe and respect which act fo materially in the fupport of thofe Authorities. They may be abufed if they are, the Law fays, let it be fhewn, and the party fhall have Relief; but if he cannot fhew they are abufed, he is entitled to none. The legal prefumption is certainly in favour of these Authorities; the Law will not prefume they are unduly or irregularly executed.

But if thefe Writs were to have iffued without any Cafe made, they must have issued indifcriminately, in the Cafes of lawful Reftraints, as well as unlawful ones; which would have been levelling all distinction between them, and have been fubjecting the authority of Fathers, Husbands, Guardians, and Mafters, to be canvaffed and queftioned in the fame manner, and upon the fame fuggeftions, as the extravagant outrages of perfons acting without any authority at all.

It would have been proceeding upor an inversion of the legal prefumption, and would thereby have deftroyed all that order, difci

4

pline,

pline, and fubordination in private Families, which lead men into a habit of obedience, and difpofe them early to obey the Laws of their country.

When a Judge is called upon for a Habeas Corpus, in order to bail a man for a bailable Offence, the injuftice of the imprifonment is obvious and felf-evident: for Imprisonment before Trial, being only to fecure his being amenable to juftice; if that Security can be obtained by Bail, in bailable offences, it is unjuft that he fhould be kept in Prison. The Authority which committed him ought to have bailed him.

The Authorities I have mentioned are equally legal, and therefore within the spirit and reafon of the Habeas Corpus Act itself. The injustice of the Imprisonment ought to appear in the firft infiance, before the Party has a right to demand the remedy.

The Law laid this check, to prevent that scene of diforder and confufion which muft arife, if Wives, Children, Wards, and Apprentices, or any other perfon in their name, and on their behalf, were to be at liberty, without any foundation or caufe fhewn, to force a production of them in Westminster Hall, or before a Judge, whereever he fhould happen to be, whenever they pleafed, and as often as they pleased, at a rifk of having them refcued out of their hands, "in tranfitu," and without a poffibility of a fatisfaction from any body.

There are many other lawful Restraints befides thofe arifing under the Authorities I have mentioned :—All persons who are in cuftody upon Civil Process, or under special Authorities, created by Act of Parliament, procceding "civiliter," and not "criminaliter," against the perfons who are the objects of them :-Perfons who are bailed, Paupers in Hospitals or Workhouses, Madmen under Commiffions

Opinion on

the Writ of Habeas Cor

pus.

(a) From a

manufcript of Lord Raymond, in pof. feffion of Mr. Filmer.

of Lunacy, or confined by Parish Officers, under the Vagrant Act of 17 Geo. II. are all under a lawful confinement.

If all these perfons were to have had these Writs of Habeas Corpus of course, without fhewing any caufe or foundation for granting them, it would have been fuffering this great Remedial Mandatory Writ to have been used as an inftrument of vexation and oppreffion; it would have become a weapon in the hands of madmen, and of diffolute, profligate and licentious people, to harrass and disturb perfons acting under the powers which the Law had given them.-One most frightful inftance occurs: the Case of a crew performing Quarantine.--If this Writ were to iffue of course, it might bring back peftilence and death along with it.

The check upon the Writ, by requiring a probable cause to be flewn before it iffues, is only faying, “ fhew you want redrefs, and you fhall have it:" and if a perfon cannot disclose such a Case himself, as to fhew he is aggrieved when he tells his own ftory, and is not oppofed or contradicted by any body; it is decifive against his being in fuch a condition as to want Relief.

Befides the Practice, which is a decifive evidence of the Law, it appears from a Cafe (a) Hilary, 8th King William, called Griffiths's Cafe, that the Court would not grant this Writ, until a probable cause was laid before the Court that the party was entitled to it.

When this Writ was firft applied to relieve against private Reftraints, does not appear; but whenever it was, the manner of iffuing it seems to have been adopted from that of the Writ of Homine replegiando, which was the true common Law remedy for the affertion of liberty against a private perfon: and that Writ never iffued of courfe, but was applied for by Petition to the Great Seal, and an Affidavit

made,

the Writ of Habeas Cor

pus.

made, disclosing the foundation on which it was prayed. State Trials, Opinion on 3 Vol. 632. 2 Lill. Pr. Reg. 23. 2 Freeman, 27. Jennings's Cafe, upon Affidavit made, that Jennings had got a young Heiress into his cuftody without the confent of the Guardian, upon the motion of the Attorney. General, a Homine replegiando was granted. And as the Law checked that Writ of Homine replegiando; the Habeas Corpus, which feems by Practice to have been substituted in its place, took the check along with it.

Careful as the Law is to prevent this Writ from being abused, it cannot always prevent it: for if a man does not disclose the whole Cafe, it may iffue fometimes where it would not have issued, if the Cafe had been fairly stated.

I will mention one Cafe, which happened laft term, and which fhews the reafon of the Law, in expecting to fee a full ftate of the Cafe before the Writ iffues.

A gentleman applied to a Judge of the Court of King's Bench inrr.s Vacation time, for a Habeas Corpus to his Wife's mother, to bring

up his Wife, upon an Affidavit of detention of her from him. As

it was near Term, the Writ was returnable first day of Term.

The fact was, that they had entered into Articles of Separation, which had determined his right to the cuftody of his Wife; the mother brought the Wife into Court, and returned the Articles of Separation. The Return was of great length, and the Mother was put to a very great expence in the making it, and if she had brought her Daughter from the remoteft part of the Kingdom, fhe could have had no fatisfaction at all.

If the Affidavit had disclosed the Articles of Separation, as it ought to have done, the Court, or Judge, would have faid, " you have no