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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 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
* P. 14.
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, tvas 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.'
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. 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
the remarkable case of the Queen v. Paty,* familiar to all lawyers, and to which at the present time a peculiar interest is attached, from its application to the case of Stockdale v. Hansard. We have not room to pursue it. It established the point, that a writ of error lies upon a Habeas Corpus. In the year 1758 it appears that many important points connected with this writ were raised, and that ten of the judges delivered their opinions on ten distinct questions put to them in relation to the existing law by the House of Lords. The details are of too professional a character to permit us to pause upon them. The last period to which our attention is directed by the learned author is 1816, when the act, commonly called after its author, Mr. Serjeant Onslow's act, was passed, the 56 G. 3, c. 100. Its object was to extend the beneficial enactment of the Habeas Corpus act to other cases than that of crime, which came alone within that act.
At this point the introduction closes the exposition of the history of the writ; but it contains a statement by the author,t that
probably the reader will feel, on a careful consideration of the doctrines urged on the part of the crown, adopted almost to their full extent by the judges of the court of Queen's Bench, and not
expressly negatived by the barons of the Exchequer, that the law of Habeas Corpus is not in a satisfactory state; and that 'if, on further consideration, the views of the court of Queen's
Bench should be confirmed, this great writ is much less effica'cious for the protection of personal liberty than the people of England have hitherto fondly believed.' As the learned author, however, does not refer specifically to the positions maintained, which he conceives to have the injurious effect he here laments, we presume, on looking over the report, that there are two points in the case of the Canadians to which he intends to direct the reader's attention. Ist. That the return was considered to be sufficient in law, although it did not set out the various documents on which it claimed to justify the detention of the prisoners; and, 2nd. That as the court decided that the return is to be taken as true in fact, the only remedy left to a party applying for the writ, and unjustly imprisoned, is an action for a false return or the false imprisonment; which was an idle mockery, only capable of being used when it is of comparatively little value.
We do not profess to be lawyers; but we own we cannot but concur with Mr. Fry, in his apprehensions at the dangerous consequences which are likely to ensue, if these doctrines are to be supported by the courts on future inrestigation. The writ of Habeas Corpus, for instance, in the case before us, was directed to the gaoler of Liverpool, calling on him to show cause why be
Temp. Queen Ann, 1704.
+ Introd. p. 28.
detained the Canadian prisoners. In his return, (by which we understand a legal piece of pleading, setting out the causes assigned for the detention,) he tells a certain story, which may or may not be true; but to the effect that the prisoners had confessed certain treasons, and had on their petition been pardoned, on condition of transportation ; and that by a warrant of the Governor of Lower Canada, they were then in execution of their sentence. The learned counsel for the prisoners we find * objecting that the return was not sufficiently precise; and if they had grounded their argument on formal and technical points, we should not feel sufficient interest and importance attach to it, to detain our readers a moment upon it. But we own that we cannot but feel considerable force and public importance in the arguments adduced in support of this view :
• It was for the court, and not the gaoler, to judge how far the documents were of a legal character, and to what extent they justified the detention. The principle of the writ of Habeas Corpus was this: that the crown, through its judges, was entitled to know why any one of its subjects was held in custody by any other ; and for that purpose it was essential that the instruments on which the imprisonment was claimed to be justified, should be laid before them, that they might decide whether the legal effect of that instrument had been perverted or mistaken by the detaining party. The liberty of every English subject was secured by this necessity. To permit the person returning the cause of his imprisonment of a party applying for the writ, to state summarily what he chose to give as the legal effect of judicial proceedings, was to make him the judge of his own case, and to deprive the subject of the privilege of having his cause determined by the judges of the land.'
To this objection the court gave the following answer in their judgment :
“To this manifold objection one answer must serve. The fact is stated to the court upon the return, and we are bound to receive it as true. The party who makes the return has probably never seen the documents, but at his peril places his confidence in the captain who brought the prisoners from Canada, or in some other person ; but he is bound by the assertion which he makes on their credit ; and their truth may be questioned in any ulterior proceeding which it may be competent to the party to adopt.'
We confess, without pretending to be lawyers, or affecting to criticise the judgment of the court of Queen's Bench, that this sentence does appear to us fraught with danger to personal liberty. The court, forsooth, is bound to attend to a statement of facts, of which they morally believe the party making it knows nothing! If this be good law, the sooner, we humbly venture to think, it is altered by parliament, the better. But, 2ndly. We find it contended by the crown that the return was conclusive, as to the facts contained in it, in that stage of the proceedings; and that the only remedy open to the person detained by a false return was by an action. This doctrine was, we think, powerfully attacked by the counsel for the prisoners. Surely it cannot be law. If so, we agree with Mr. Fry, the law is not in a 'satisfactory state,' and must be altered forthwith. We perceive in the argument a very decided and, to our mind, convincing passage, quoted from Mr. Justice Foster, on this subject. He asks, ‘What remedy? An 'action against a man perhaps not worth a groat. But how re
* Report, p. 53.
responsible soever the officer may be, what satisfaction in damages 'is equal to the injury? Or if that were possibly to be had, what becomes of the action if the plaintiff should be knocked on the head in the service? Why truly moritur cum personâ. In short, 'he bath in this view of the case no remedy, unless you give him 'what I call the specific remedy, a right to controvert the truth of
the return before it is too late.' We confess this seems to us a common-sense view of the case. If the court of Queen's Bench did not adopt this view, we own we think there should be a reconsideration of the dangerous consequences which must result from the contrary doctrine. As far as we can collect from the report, however, the court, in a later stage of the case, suggested that if fraud could be proved in making the return, probably they would hear affidavits in answer to it, and quash it. This is a useful limitation of their own doctrine, but we cannot but think only a palliation. For why should a man be detained on a return that is false, whether fraudulent or not? The injury is the same; and the great object of the court should be to get, not at the motives of the person making the return, but the truth of his allegations. We therefore cannot refrain from expressing our views on this subject. The topics are of the highest importance; and whatever may be the guilt or innocence of the unfortunate persons in whose case they have been raised, demand the serious reflection of every Englishman. We know that our dearest rights and most valuable privileges have been attacked in the persons of unprincipled men. Through their sides, the whole community has been often wounded. But the personal impurity of Wilks did not hinder Lord Chatham from asserting the great principles of liberty which had been invaded in his person. The real truth is, that the more indignant our feelings towards any individual may be, the more zealous we should be to prevent his being condemned on principles which, strained in his case, may be turned one day upon ourselves. The jealousy of the law, which sometimes throws a shield over the guilty, was designed for the protection of the