The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Chapter V

THE RIGHT TO PERSONAL FREEDOM

The seventh article of the Belgian constitution establishes in that country prindples which have long prevailed in England. The terms thereof so curiously illustrate by way of contrast some: marked features of English constitutional law as to be worth quotation.

Art 7. La liberté individuelle est garantie.

Nul ne peut être poursuivi que dans les cas préous par la loi, et clans la forme qu'elle prescrit.

Hors le cas de flagrant délit, mul ne peut êtrearrêté qu'en vertu de i ordonnance motivée du juge, qui dolt être signifiée au moment de i arrestation, ou au plus tard dans les vingt-quatre heures.1

low sered in England The security which an Englishman enjoys for personal freedom does not really depend upon or originate in any general proposition contained in any written document. The nearest approach which our statute-book presents to the statement contained in the seventh article of the Belgian constitution is the celebrated thirty-ninth article2 of the Magna Charta:

Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae,

which should be read in combination with the declarations of the Petition of Right. And these enactments (if such they can be called) are rather records of the existence of a right than statutes which confer it. The expression again, “guaranteed,” is, as I have already pointed out, extremely significant; it suggests the notion that personal liberty is a special privilege insured to Belgians by some power above the ordinary law of the land. This is an idea utterly alien to English modes of thought, since with us freedom of person is not a special privilege but the outcome of the ordinary law of the land enforced by the Courts. Here, in short, we may observe the application to a particular case of the general principle that with us individual rights are the basis, not the result, of the law of the constitution.

The proclamation in a constitution or charter of the right to personal freedom, or indeed of any other right, gives of itself but slight security that the right has more than a nominal existence, and students who wish to know how far the right to freedom of person is in reality part of the law of the constitution must consider both what is the meaning of the right and, a matter of even more consequence, what are the legal methods by which its exerdse is secured.

The right to personal liberty as understood in England means in substance a person's right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority,3 and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are twofold4 namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus. Let us examine the general character of each of these remedies.

REDRESS FOR ARREST

illegible If we use the term redress in a wide sense, we may say that a person who has suffered a wrong obtains redress either when he gets the wrongdoer punished or when he obtains compensation for the damage inflicted upon him by the wrong.

Each of these forms of redress is in England open to every one whose personal freedom has been in any way unlawfully interfered with. Suppose, for example, that X without legal justification assaults A, by knocking him down, or deprives A of his freedom—as the technical expression goes, “imprisons” him—whether it be for a length of time, or only for five minutes; A has two courses open to him. He can have X convicted of an assault and thus cause him to be punished for his crime, or he can bring an action of trespass against X and obtain from X such compensation for the damage which A has sustained from X's conduct as a jury think that A deserves. Suppose that in 2725 Voltaire had at the instigation of an English lord been treated in London as he was treated in Paris. He would not have needed to depend for redress upon the goodwill of his friends or upon the favour of the Ministry. He could have pursued one of two courses. He could by taking the proper steps have caused all his assailants to be brought to trial as criminals. He could, if he had preferred it, have brought an action against each and all of them: he could have sued the nobleman who caused him to be thrashed, the footmen who thrashed him, the policemen who threw him into gaol, and the gaoler or lieutenant who kept him there. Notice particularly that the action for trespass, to which Voltaire would have had recourse, can be brought, or, as the technical expression goes, “lies,” against every person throughout the realm. It can and has been brought against governors of colonies, against secretaries of state, against officers who have tried by Court-martial persons not subject to military law, against every kind of official high or low. Here then we come across another aspect of the “rule of law.” No one of Voltaire's enemies would, if he had been injured in England, have been able to escape from responsibility on the plea of acting in an official character or in obedience to his official superiors,5 Nor would any one of them have been able to say that the degree of his guilt could in any way whatever be determined by any more or less official Court. Voltaire, to keep to our example, would have been able in England to have brought each and all of his assailants, including the officials who kept him in prison, before an ordinary Court, and therefore before judges and jurymen who were not at all likely to think that official zeal or the orders of official superiors were either a legal or a moral excuse for breaking the law.

Before quitting the subject of the redress afforded by the Courts for the damage caused by illegal interference with any one's personal freedom, we shall do well to notice the strict adherence of the judges in this as in other cases to two maxims or principles which underlie the whole law of the constitution, and the maintenance of which has gone a great way both to ensure the supremacy of the law of the land and ultimately to curb the arbitrariness of the Crown. The first of these maxims or principles is that every wrongdoer is individually responsible for every unlawful or wrongful act in which he takes part, and, what is really the same thing looked at from another point of view, cannot, if the act be unlawful, plead in his defence that he did it under the orders of a master or superior. Voltaire, had he been arrested in England, could have treated each and all of the persons engaged in the outrage as individually responsible for the wrong done to him. Now this doctrine of individual responsibility is the real foundation of the legal dogma that the orders of the King himself are no justification for the commission of a wrongful or illegal act. The ordinary rule, therefore, that every wrongdoer is individually liable for the wrong he has committed, is the foundation great constitutional doctrine of Ministerial responsibility. The second of these noteworthy maxims is, that the Courts give a remedy for the infringement of a right whether the injury done be great or small. The assaults and imprisonment from which Voltaire suffered were serious wrongs; but it would be an error to fancy, as persons who have no experience in the practice of the Courts are apt to do, the proceedings for trespass or for false imprisonment can where personal liberty is seriously interfered with. Ninety-nine hundred actions for assault or false imprisonment have reference to injuries which in themselves are trifling. If one ruffian gives another a blow, if a policeman makes an arrest authority, if a schoolmaster keeps a scholar locked up at school for half on hour after he ought to have let the child go home,6 if in short X interferes unlawfully to however slight a degree with the personal liberty of A, the offender exposes himself to proceedings in A Court of, low and the sufferer, if he can enlist the sympathies of a jury, may recover heavy damages for the injury which he has or is supposed to have suffered. The law of England protects the right of personal liberty, as also every other legal right, against every kind of infringement, and gives the same kind of redress (I do not mean, of course, inflicts the same degree of punishment or penalty) for the pettiest as for the gravest invasions of personal freedom. This seems to us so much a matter of course as hardly to call for observation, but it may be suspected that few features in our legal system have done more to maintain the authority of the law than the fact that all offences great and small are dealt with on the same principles and by the same Courts. The law of England now knows nothing of exceptional offences punished by extraordinary tribunals.7

The right of a person who has been wrongfully imprisoned on regaining his freedom to put his oppressor on trial as a criminal, or by means of an action to obtain pecuniary compensation for the wrong which he has endured, affords a most insufficient security for personal freedom. If X keeps A in confinement, it profits A little to know that if he could recover his freedom, which he cannot, he could punish and fine X. What A wants is to recover his liberty. Till this is done he cannot hope to punish the foe who has deprived him of it. It would have been little consolation for Voltaire to know that if he could have got out of the Bastille he could recover damages from his enemies. The possibility that he might when he got free have obtained redress for the wrong done him might, so far from being a benefit, have condemned him to lifelong incarceration. Liberty is not secure unless the law, in addition to punishing every kind of interference with a man's lawful freedom, provides adequate security that every one who without legal justification is placed in confinement shall be able to get free. This security is provided by the celebrated writ of habeas corpus and the Habeas Corpus Acts.

WRIT OF HABEAS CORPUS8

writ of habeas corpus It is not within the scope of these lectures to give a history of the writ of habeas corpus or to provide the details of the legislation with regard to it. For minute information, both about the writ and about the Habeas Corpus Acts, you should consult the ordinary legal textbooks. My object is solely to explain generally the mode in which the law of England secures the right to personal freedom. I shall therefore call attention to the following points: first, the nature of the writ; secondly, the effect of the so-called Habeas Corpus Acts; thirdly, the precise effect of what is called (not quite accurately) the Suspension of the Habeas Corpus Act; and, lastly, the relation of any Act suspending the operation of the Habeas Corpus Act to an Act of Indemnity. Each of these matters has a close bearing on the law of the constitution.

Nature of Writ

illegible Legal documents constantly give the best explanation and illustration of legal principles. We shall do well therefore to examine with care the following copy of a writ of habeas corpus:

Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith,

The character of the document is patent on its face. It is an order issued, in the particular instance, by the Court of Queen's Bench calling upon a person by whom a prisoner is alleged to be kept in confinement to bring such prisoner—to “have his body,” whence the name habeas corpus-—before the Court to let the Court know on what ground the prisoner is confined, and thus to give the Court the opportunity of dealing with the prisoner as the law may require. The essence of the whole transaction is that the Court can by the writ of habeas corpus cause any person who is imprisoned to be actually brought before the Court and obtain knowledge of the reason why he is imprisoned; and then having him before the Court, either then and there set him free or else see that he is dealt with in whatever way the law requires, as, for example, brought speedily to trial.

The writ can be issued on the application either of the prisoner himself or of any person on his behalf, or (supposing the prisoner cannot act) then on the application of any person who believes him to be unlawfully imprisoned. It is issued by the High Court, or during vacation by any judge thereof; and the Court or a judge should and will always cause it to be issued on being satisfied by affidavit that there is reason to suppose a prisoner to be wrongfully deprived of his liberty. You cannot say with strictness that the writ is issued “as a matter of course,” for some ground must be shown for supposing that a case of illegal imprisonment exists. But the writ is granted “as a matter of right,—that is to say, the Court will always issue it if prima facie ground is shown for supposing that the person on whose behalf it is asked for is unlawfully deprived of his liberty. The writ or order of the Court can be addressed to any person whatever, be he an official or a private individual, who has, or is supposed to have, another in his custody. Any disobedience to the writ exposes the offender to summary punishment for contempt of Court,10 and also in many cases to heavy penalties recoverable by the party aggrieved,11 To put the matter, therefore, in the most general terms, the case stands thus. The High Court of Justice possesses, as the tribunals which make up the High Court used to possess, the power by means of the writ of habeas corpus to cause any person who is alleged to be kept in unlawful confinement to be brought before the Court. The Court can then inquire into the reason why he is confined, and can, should it see fit, set him then and there at liberty. This power moreover is one which the Court always will exercise whenever ground is shown by any applicant whatever for the belief that any man in England is unlawfully deprived of his liberty.

The Habeas Corpus Acts

The Habeas Corpus Acts The right to the Writ of habeas corpus existed at common law long before the passing in 2679 of the celebrated Habeas Corpus Act,12 31 Car. II. c. 2, and you may wonder how it has happened that this and the subsequent Act, 56 Geo. m. c. 100, are treated, and (for practical purposes) rightly treated, as the basis on which rests an Englishman's security for the enjoyment of his personal freedom. The explanation is, that prior to 1679 the right to the writ was often under various pleas and excuses made of no effect. The aim of the Habeas Corpus Acts has been to meet all the devices by which the effect of the writ can be evaded, either on the part of the judges, who ought to issue the same, and if necessary discharge the prisoner, or on the part of the gaoler or other person who has the prisoner in custody. The earlier Act of Charles the Second applies to persons imprisoned on a charge of crime; the later Act of George the Third applies to persons deprived of their liberty otherwise than on a criminal accusation.

Take these two dasses of persons separately.

illegible A person is imprisoned on a charge of crime. If he is imprisoned without any legal warrant for his imprisonment, he has a right to be set at liberty. If, on the other hand, he is imprisoned under a legal warrant, the object of his detention is to ensure his being brought to trial. His position in this case differs according to the nature of the offence with which he is charged. In the case of the lighter offences known as misdemeanours he has, generally13 the right to his liberty on giving security with proper sureties that he will in due course surrender himself to custody and appear and take his trial on such indictment as may be found against him in respect of the matter with which he is charged, or (to use technical expressions) he has the right to be admitted to bail. In the case, on the other hand, of the more serious offences, such as felonies or treasons, a person who is once committed to prison is not entitled to be let out on bail. The right of the prisoner is in this case simply the right to a speedy trial. The effect of the writ of habeas corpus would be evaded either if the Court did not examine into the validity of the warrant on which the prisoner was detained, and if the warrant were not valid release him, or if the Court, on ascertaining that he was legally imprisoned, did not cause him according to circumstances either to go out on bail or to be speedily brought to trial.

The Act provides against all these possible failures of justice. The law as to persons imprisoned under accusations of crime stands through the combined effect of the rules of the common law and of the statute in substance as follows. The gaoler who has such person in custody is bound when called upon to have the prisoner before the Court with the true cause of his commitment. If the cause is insufficient, the prisoner must of course be discharged; if the cause is suffident, the prisoner, in case he is charged with a misdemeanour, can in general insist upon being bailed till trial; in case, on the other hand, the charge is one of treason or felony, he can insist upon being tried at the first sessions after his committal, or if he is not then tried, upon being bailed, unless the witnesses for the Crown cannot appear. If he is not tried at the second sessions after his commitment, he can insist upon his release without bail. The net result, therefore, appears to be that while the Habeas Corpus Act is in force no person committed to prison on a charge of crime can be kept long in confinement, for he has the legal means of insisting upon either being let out upon bail or else of being brought to a speedy trial.

Habeas corpus Act, 1816, 56 Geo III. c.100. A person, again, who is detained in confinement but not on a charge of crime needs for his protection the means of readily obtaining a legal decision on the lawfulness of his confinement, and also of getting an immediate release if he has by law a right to his liberty. This is exactly what the writ of habeas corpus affords. Whenever any Englishman or foreigner is alleged to be wrongfully deprived of liberty, the Court will issue the writ, have the person aggrieved brought before the Court, and if he has a right to liberty set him free. Thus if a child is forcibly kept apart from his parents,14 if a man is wrongfully kept in confinement as a lunatic, if a nun is alleged to be prevented from leaving her convent,—if, in short, any man, woman, or child is, or is asserted on apparently good grounds to be, deprived of liberty, the Court will always issue a writ of habeas corpus to any one who has the aggrieved person in his custody to have such person brought before the Court, and if he is suffering restraint without lawful cause, set him flee. Till, however, the year 1816 (56 Geo. III.) the machinery for obtaining the writ was less perfect15 in the case of persons not accused of crime than in the case of those charged with criminal offences, and the effect of 56 Geo. III. c. 100, was in substance to apply to non-criminal cases the machinery of the great Habeas Corpus Act, 31 Car. II. c. 2.

At the present day, therefore, the securities for personal freedom are in England as complete as laws can make them. The right to its enjoyment is absolutely acknowledged. Any invasion of the right entails either imprisonment or fine upon the wrongdoer; and any person, whether charged with crime or not, who is even suspected to be wrongfully imprisoned, has, if there exists a single individual willing to exert himself on the victim's behalf, the certainty of having his case duly investigated, and, if he has been wronged, of recovering his freedom. Let us return for a moment to a former illustration, and suppose that Voltaire has been treated in London as he was treated in Paris. He most certainly would very rapidly have recovered his freedom. The procedure would not, it is true, have been in 1726 quite as easy as it is now under the Act of George the Third. Still, even then it would have been within the power of any one of his friends to put the law in motion. It would have been at least as easy to release Voltaire in 1726 as it was in 1772 to obtain by means of habeas corpus the freedom of the slave James Sommersett when actually confined in irons on board a ship lying in the Thames and bound for Jamaica.16

The whole history of the writ of habeas corpus illustrates the predominant attention paid under the English constitution to “remedies,” that is, to modes of procedure by which to secure respect for a legal right, and by which to turn a merely nominal into an effective or real right. The Habeas Corpus Acts are essentially procedure Acts, and simply aim at improving the legal mechanism by means of which the acknowledged right to personal freedom may be enforced. They are intended, as is generally the case with legislation which proceeds under the influence of lawyers, simply to meet actual and experienced difficulties. Hence the Habeas Corpus Act of Charles the Second's reign was an imperfect or very restricted piece of legislative work, and Englishmen waited nearly a century and a half (1679–1816) before the procedure for securing the right to discharge from unlawful confinement was made complete. But this lawyer-like mode of dealing with a fundamental right had with all its defects the one great merit that legislation was directed to the right point. There is no difficulty, and there is often very little gain, in declaring the existence of a right to personal freedom. The true difficulty is to secure its enforcement. The Habeas Corpus Acts have achieved this end, and have therefore done for the liberty of Englishmen more than could have been achieved by any declaration of rights. One may even venture to say that these Acts are of really more importance not only than the general proclamations of the Rights of Man which have often been put forward in foreign countries, but even than such very lawyer-like documents as the Petition of Right or the Bill of Rights, though these celebrated enactments show almost equally with the Habeas Corpus Act that the law of the English constitution is at bottom judge-made law.17

Effect of writ of habeas corpus on authority of judges. Every critic of the constitution has observed the effect of the Habeas Corpus Acts in securing the liberty of the subject; what has received less and deserves as much attention is the way in which the right to issue a writ of habeas corpus, strengthened as that right is by statute, determines the whole relation of the judicial body towards the executive. The authority to enforce obedience to the writ is nothing less than the power to release from imprisonment any person who in the opinion of the Court is unlawfully deprived of his liberty, and hence in effect to put an end to or to prevent any punishment which the Crown or its servants may attempt to inflict in opposition to the rules of law as interpreted by the judges. The judges therefore are in truth, though not in name, invested with the means of hampering or supervising the whole administrative action of the government, and of at once putting a veto upon any proceeding not authorised by the letter of the law. Nor is this power one which has fallen into disuse by want of exercise. It has often been put forth, and this too in matters of the greatest consequence; the knowledge moreover of its existence governs the conduct of the administration. An example or two will best show the mode in which the “judiciary” (to use a convenient Americanism) can and do by means of the writ of habeas corpus keep a hold on the acts of the executive. In 1839 Canadian rebels, found guilty of treason in Canada and condemned to transportion, arrived in official custody at Liverpool on their way to Van Diemen's Land. The friends of the convicts questioned the validity of the sentence under which they were transported; the prisoners were thereupon taken from prison and brought upon a writ of habeas corpus before the Court of Exchequer. Their whole position having been considered by the Court, it was ultimately held that the imprisonment was legal. But had the Court taken a different view, the Canadians would at once have been released from confinement.18 In 1859 an English officer serving in India was duly convicted of manslaughter and sentenced to four years' imprisonment: he was sent to England in military custody to complete there his term of punishment. The order under which he was brought to this country was technically irregular, and the convict having been brought on a writ of habeas corpus before the Queen's Bench, was on this purely technical ground set at liberty.19 So, to take a very notorious instance of judicial authority in matters most nearly concerning the executive, the Courts have again and again considered, in the case of persons brought before them by the writ of habeas corpus, questions as to the legality of impressment, and as to the limits within which the right of impressment may be exercised; and if, on the one hand, the judges have in this particular instance (which by the way is almost a singular one) supported the arbitrary powers of the prerogative, they have also strictly limited the exercise of this power within the bounds prescribed to it by custom or by statute.20 Moreover, as already pointed out, the authority of the civil tribunals even when not actually put into force regulates the action of the government. In 1854 a body of Russian sailors were found wandering about the streets of Guildford, without any visible means of subsistence; they were identified by a Russian naval officer as deserters from a Russian man-of-war which had put into an English port; they were thereupon, under his instructions and with the assistance of the superintendent of police, conveyed to Portsmouth for the purpose of their being carried back to the Russian ship. Doubts arose as to the legality of the whole proceeding. The law officers were consulted, who thereupon gave it as their opinion that “the delivering-up of the Russian sailors to the Lieutenant and the assistance offered by the police for the purpose of their being conveyed back to the Russian ship were contrary to law.”21 The sailors were presumably released; they no doubt would have been delivered by the Court had a writ of habeas corpus been applied for. Here then we see the judges in effect restraining the action of the executive in a matter which in most countries is considered one of administration or of policy lying beyond the range of judicial interference. The strongest examples, however, of interference by the judges with administrative proceedings are to be found in the decisions given under the Extradition Acts. Neither the Crown nor any servant of the Crown has any right to expel a foreign criminal from the country or to surrender him to his own government for trial.22 A French forger, robber, or murderer who escapes from France to England cannot, independently of statutory enactments, be sent back to his native land for trial or punishment. The absence of any power on the part of the Crown to surrender foreign criminals to the authorities of their own state has been found so inconvenient, that in recent times Extradition Acts have empowered the Crown to make treaties with foreign states for the mutual extradition of criminals or of persons charged with crime. The exercise of this authority is, however, hampered by restrictions which are imposed by the statute under which alone it exists. It therefore often happens that an offender arrested under the warrant of a Secretary of State and about to be handed over to the authorities of his own country conceives that, on some ground or other, his case does not fall within the precise terms of any Extradition Act. He applies for a writ of habeas corpus; he is brought up before the High Court; every technical plea he can raise obtains full consideration,23 and if on any ground whatever it can be shown that the terms of the Extradition Act have not been complied with, or that they do not justify his arrest and surrender, he is as a matter of course at once set at liberty.24 It is easy to perceive that the authority of the judges, exercised, as it invariably must be, in support of the strict roles of law, cuts down the discretionary powers of the Crown. It often prevents the English government from meeting public danger by measures of precaution which would as a matter of course be taken by the executive of any continental country. Suppose, for example, that a body of foreign anarchists come to England and are thought by the police on strong grounds of suspicion to be engaged in a plot, say for blowing up the Houses of Parliament. Suppose also that the existence of the conspiracy does not admit of absolute proof. An English Minister, if he is not prepared to put the conspirators on their trial, has no means of arresting them, or of expelling them from the country.25 In case of arrest or imprisonment they would at once be brought before the High Court on a writ of habeas corpus, and unless some specific legal ground for their detention could be shown they would be forthwith set at liberty. Of the political or, to use foreign expressions, of the “administrative” reasons which might make the arrest or expulsion of a foreign refugee highly expedient, the judges would hear nothing; that he was arrested by order of the Secretary of State, that his imprisonment was a simple administrative act, that the Prime Minister or the Home Secretary was prepared to make affidavit that the arrest was demanded by the most urgent considerations of public safety, or to assure the Court that the whole matter was one of high policy and concerned national interests, would be no answer whatever to the demand for freedom under a writ of habeas corpus. All that any judge could inquire into would be, whether there was any rule of common or of statute law which would authorise interference with a foreigner's personal freedom. If none such could be found, the applicants would assuredly obtain their liberty. The plain truth is that the power possessed by the judges of controlling the administrative conduct of the executive has been, of necessity, so exercised as to prevent the development with us of any system corresponding to the “administrative law” of continental states. It strikes at the root of those theories as to the nature of administrative acts, and as to the “separation of powers,” on which, as will be shown in a later chapter,26 the droit administratif of France depends, and it deprives the Crown, which now means the Ministry of the day, of all discretionary authority. whichThe actual or possible intervention, in short, of the Courts, exercisable for the most part by means of the writ of habeas corpus, confines the action of the government within the strict letter of the law; with us the state can punish, but it can hardly prevent the commission of crimes.

illegible We can now see why it was that the political conflicts of the seventeenth century often raged round the position of the judges, and why the battle might turn on a point so technical as the inquiry, what might be a proper return to a writ of habeas corpus.27 Upon the degree of authority and independence to be conceded to the Bench depended the colour and working of our institutions. To supporters, on the one hand, of the prerogative who, like Bacon, were not unfrequently innovators or reformers, judicial independence appeared to mean the weakness of the executive, and the predominance throughout the state of the conservative legalism, which found a representative in Coke. The Parliamentary leaders, on the other hand, saw, more or less distinctly, that the independence of the; Bench was the sole security for the maintenance of the common law, which was nothing else than the rule of established customs modified only by Acts of Parliament, and that Coke in battling for the power of the judges was asserting the rights of the nation; they possibly also saw, though this is uncertain, that the maintenance of rigid legality, inconvenient as it might sometimes prove, was the certain road to Parliamentary sovereignty.28

Suspension of the Habeas Corpus Act

illegible During periods of political excitement the power or duty of the Courts to issue a writ of habeas corpus, and thereby compel the speedy trial or release of persons charged with crime, has been found an inconvenient or dangerous limitation on the authority of the executive government. Hence has arisen the occasion for statutes which are popularly called Habeas Corpus Suspension Acts. I say “popularly called,” because if you take (as you may) the Act 34 Geo. III. c. 5429 as a type of such enactments, you will see that it hardly corresponds with its received name. The whole effect of the Act, which does not even mention the Habeas Corpus Act, is to make it impossible for any person imprisoned under a warrant signed by a Secretary of State on a charge of high treason, or on suspicion of high treason, to insist upon being either discharged or put on trial. No doubt this is a great diminution in the securities for personal freedom provided by the Habeas Corpus Acts; but it falls very far short of anything like a general suspension of the right to the writ of habeas corpus; it in no way affects the privileges of any person not imprisoned on a charge of high treason; it does not legalise any arrest, imprisonment, or punishment which was not lawful before the Suspension Act passed; it does not in any wise touch the claim to a writ of habeas corpus possessed by every one, man, woman, or child, who is held in confinement otherwise than on a charge of crime. The particular statute 34 Geo. III. c. 54 is, and (I believe) every other Habeas Corpus Suspension Act affecting England, has been an annual Act, and must, therefore, if it is to continue in force, be renewed year by year. must, The sole, immediate, and direct result, therefore, of suspending the Habeas Corpus Act is this: the Ministry may for the period during which the Suspension Act continues in force constantly defer the trial of persons imprisoned on the charge of treasonable practices. This increase in the power of the executive is no trifle, but it falls far short of the process known in some foreign countries as “suspending the constitutional guarantees,” or in France as the “prodamation of a state of siege”;30 it, indeed, extends the arbitrary powers of the government to a far less degree than many so-called Coercion Acts. That this is so may be seen by a mere enumeration of the chief powers which were conferred by comparatively recent enactment on the Irish executive. Under the Act of 1881 (44 Vict. c. 4) the Irish executive obtained the absolute power of arbitrary and preventive arrest, and could without breach of law detain in prison any person arrested on suspicion for the whole period for which the Act continued in force. It is true that the Lord Lieutenant could arrest only persons suspected of treason or of the commission of some act tending to interfere with the maintenance of law and order. But as the warrant itself to be issued by the Lord Lieutenant was made under the Act conclusive evidence of all matters contained therein, and therefore (inter alia) of the truth of the assertion that the arrested person or “suspect” was reasonably suspected, e.g. of treasonable practices, and therefore liable to arrest, the result dearly followed that neither the Lord Lieutenant nor any official acting under him could by any possibility be made liable to any legal penalty for any arrest, however ground-less or malicious, made in due form within the words of the Act. The Irish government, therefore, could arrest any person whom the Lord Lieutenant thought fit to imprison, provided only that the warrant was in the form and contained the allegations required by the statute. Under the Prevention of Crime (Ireland) Act, 1882–45 & 46 Vict. c. 25—the Irish executive was armed with the following (among other) extraordinary powers. The government could in the case of certain crimes31 abolish the right to trial by jury,32 could arrest strangers found out of doors at night under suspicious circumstances,33 could seize any newspaper which, in the judgment of the Lord Lieutenant, contained matter inciting to treason or violence,34 and could prohibit any public meeting which the Lord Lieutenant believed to be dangerous to the public peace or safety. Add to this that the Prevention of Crime Act, 1882, re-enacted (incidentally as it were) the Alien Act of 1848, and thus empowered the British Ministry to expel from the United Kingdom any foreigner who had not before the passing of the Act been resident in the country for three years.35 Not one of these extraordinary powers flows directly from a mere suspension of the Habeas Corpus Act; and, in truth, the best proof of the very limited legal effect of such so-called suspension is supplied by the fact that before a Habeas Corpus Suspension Act runs out its effect is, almost invariably, supplemented by legislation of a totally different character, namely, an Act of Indemnity.

An Act of Indemnity

Act of Indemnity Reference has already been made to Acts of Indemnity as the supreme instance of Parliamentary sovereignty.36 They are retrospective statutes which free persons who have broken the law from responsibility for its breach, and thus make lawful acts which when they were committed were unlawful. It is easy enough to see the connection between a Habeas Corpus Suspension Act and an Act of Indemnity. The Suspension Act, as already pointed out, does not free any person from civil or criminal liability for a violation of the law. Suppose that a Secretary of State or his subordinates should, during the suspension of the Habeas Corpus Act, arrest and imprison a perfectly innocent man without any cause whatever, except (it may be) the belief that it is conducive to the public safety that the particular person—say, an influential party leader such as Wilkes, Fox, or O'Connell—should be at a particular crisis kept in prison, and thereby deprived of influence. Suppose, again, that an arrest should be made by orders of the Ministry under circumstances which involve the unlawful breaking into a private dwelling-house, the destruction of private property, or the like. In each of these instances, and in many others which might easily be imagined, the Secretary of State who orders the arrest and the officials who carry out his commands have broken the law. They may have acted under the bona fide belief that their conduct was justified by the necessity of providing for the maintenance of order. But this will not of itself, whether the Habeas Corpus Act be suspended or not, free the persons carrying out the arrests from criminal and civil liability for the wrong they have committed. The suspension, indeed, of the Habeas Corpus Act may prevent the person arrested from taking at the moment any proceedings against a Secretary of State or the officers who have acted under his orders. For the sufferer is of course imprisoned on the charge of high treason or suspicion of treason, and therefore will not, while the suspension lasts, be able to get himself discharged from prison. The moment, however, that the Suspension Act expires he can, of course, apply for a writ of habeas corpus, and ensure that, either by means of being put on his trial or otherwise, his arbitrary imprisonment shall be brought to an end. In the cases we have supposed the prisoner has been guilty of no legal offence. The offenders are in reality the Secretary of State and his subordinates. The result is that on the expiration of the Suspension Act they are liable to actions or indictments for their illegal conduct, and can derive no defence whatever from the mere fact that, at the time when the unlawful arrest took place, the Habeas Corpus Act was, partially at any rate, not in force. It is, however, almost certain that, when the suspension of the Habeas Corpus Act makes it possible for the government to keep suspected persons in prison for a length of time without bringing them to trial, a smaller or greater number of unlawful acts will be committed, if not by the members of the Ministry themselves, willat any rate by their agents. We may even go farther than this, and say that the unavowed object of a Habeas Corpus Suspension Act is to enable the government to do acts which, though politically expedient, may not be strictly legal. The Parliament which destroys one of the main guarantees for individual freedom must hold, whether wisely or not, that a crisis has arisen when the rights of individuals must be postponed to considerations of state. A Suspension Act would, in fact, fail of its main object, unless officials felt assured that, as long as they bonafide, and uninfluenced by malice or by corrupt motives, carried out the policy of which the Act was the visible sign, they would be protected from penalties for conduct which, though it might be technically a breach of law, was nothing more than the free exertion for the public good of that discretionary power which the suspension of the Habeas Corpus Act was intended to confer upon the executive. This assurance is derived from the expectation that, before the Suspension Act ceases to be in force, Parliament will pass an Act of Indemnity, protecting all persons who have acted, or have intended to act, under the powers given to the government by the statute. This expectation has not been disappointed. An Act suspending the Habeas Corpus Act, which has been continued for any length of time, has constantly been followed by an Act of Indemnity. Thus the Act to which reference has already been made, 34 Geo. HI. c. 54, was continued in force by successive annual re-enactments for seven years, from 1794 to 1801. In the latter year an Act was passed, 42 Geo. HI. c. 66, “indemnifying such persons as since the first day of February, 1793, have acted in the apprehending, imprisoning, or detaining in custody in Great Britain of persons suspected of high treason or treasonable practices.” It cannot be disputed that the so-called suspension of the Habeas Corpus Act, which every one knows will probably be followed by an Act of Indemnity, is, in reality, a far greater interference with personal freedom than would appear from the very limited effect, in a merely legal point of view, of suspending the right of persons accused of treason to demand a speedy trial. The Suspension Act, coupled with the prospect of an Indemnity Act, does in truth arm the executive with arbitrary powers. Still, there are one or two considerations which limit the practical importance that can fairly be given to an expected Act of Indemnity. The relief to be obtained from it is prospective and uncertain. Any suspicion on the part of the public, that officials had grossly abused their powers, might make it difficult to obtain a Parliamentary indemnity for things done while the Habeas Corpus Act was suspended. As regards, again, the protection to be derived from the Act by men who have been guilty of irregular, illegal, oppressive, or cruel conduct, everything depends on the terms of the Act of Indemnity. These may be either narrow or wide. The Indemnity Act, for instance, of 1801, gives a very limited amount of protection to official wrongdoers. It provides, indeed, a defence against actions or prosecutions in respect of anything done, commanded, ordered, directed, or advised to be done in Great Britain for apprehending, imprisoning, or detaining in custody any person charged with high treason or treasonable practices. Any no doubt such a defence would cover any irregularity or merely formal breach of the law, but there certainly could be imagined acts of spite or extortion, done under cover of the Suspension Act, which would expose the offender to actions or prosecutions, and could not be justified under the terms of the Indemnity Act. Reckless cruelty to a political prisoner, or, still more certainly, the arbitrary punishment or the execution of a political prisoner, between 1793 and 1801 would, in spite of the Indemnity Act, have left every man concerned in the crime liable to suffer punishment. Whoever wishes to appreciate the moderate character of an ordinary Act of Indemnity passed by the Imperial Parliament, should compare such an Act as 41 Geo. HI. c. 66, with the enactment whereby the Jamaica House of Assembly at, tempted to cover Governor Eyre from all liability for unlawful deeds done in suppressing rebellion during 1866. An Act of Indemnity, again, though it is the legalisation of illegality, is also, it should be noted, itself a law. It is something in its essential character, therefore very different from the proclamation of martial law, the establishment of a state of siege, or any other proceeding by which the executive government at its own will suspends the law of the land. It is no doubt an exercise of arbitrary sovereign power; but where the legal sovereign is a Parliamentary assembly, even acts of state assume the form of regular legislation, and this fact of itself maintains in no small degree the real no less than the apparent supremacy of law.

[1]Constitution de la Belgique, art. 7.

[2]See Stubbs, Charters (2nd ed.), p. 301.

[3]See as to arrests, Stephen, Commentaries, iv. (14th ed.), pp. 303-312.

[4]Another means by which personal liberty or other rights may be protected is the allowing a man to protect or assert his rights by force against a wrongdoer without incurring legal liability for injury done to the aggressor. The limits within which English law permits so-called “self-defence,” or, more accurately, “the assertion of legal rights by the use of a person's own force,” is one of the obscurest among legal questions. See Appendix, Note IV., Right of Self-Defence.

[5]Contrast the French Code Penal, art. 114.

[6]Hunter v. Johnson, 13 Q. B. D. 225.

[7]Contrast with this the extraordinary remedies adopted under the old French monarchy for the punishment of powerful criminals. As to which see Fléchier, Memoires surles Grand-Jours tenues a Clermont en 1665-66.

[8]See Stephen, Commentaries (14th ed.), iii. pp. 697-707; 16 Car. I. c. 1o; 31 Car. II. c. 2; 56 George III. c. 100; Forsyth, Opinions, 436-452,481.

[10]Rex v. Winton, 5 T. R. 89, and conf. 56 Geo. III. c. 100, s. 2; see Corner, Practice of theCrown Side of the Court of Queen's Bench.

[11]31 Car. II. c. 2, s. 4.

[12]See also 16 Car. I. c. 10, s. 6.

[13]See Stephen, Digest of the Law of Criminal Procedure, art. 276, note, and also art. 136 and p. 89, note 1. Compare the Indictable Offences Act, 1848 (11 & 12 Vict. c. 42), s. 23.

[14]See The Queen v. Nash, 10 Q. B. D. (C. A.) 454; and compare Re Agar-Ellis, 24 Ch. D. (C. A.) 317. For recent instances of effect of Habeas Corpus Act see Barnardo v. Ford [2892], A. C. 326; Barnardo v. McHugh [2891], A. C. 388; Reg. v. Jackson [1891], 1Q. B. (C. A.) 671; Cox v. Hakes, 25 App. Cas. 506; Reg. v. Barnardo, 24 Q. B. D. (C. A.) 283; and 23 Q. B. D. (C. A.) 305. Compare as to power of Court of Chancery for protection of children independently of Habeas Corpus Acts, Reg. v. Gyngall [1893], 2 Q. B. (C. A.) 232.

As to appeal to Privy Council, see Att. Gen. for Hong Kong v. Kwok-A-Sing (1873), L. R. 5P.C.179.

[15]The inconvenience ultimately remedied by the Habeas Corpus Act, 1816, was in practice small, for the judges extended to all cases of unlawful imprisonment the spirit of the HabeasCorpus Act, 1679, and enforced immediate obedience to the writ of habeas corpus, even when issued not under the statue, but under the common law authority of the Courts. Black-stone, Comm. iii. p. 138.

[16]Sommersett's Case, 20 St. Tr. 1.

[17]Compare Imperial Constitution of 1804, ss. 60–63, under which a committee of the Senate was empowered to take steps for putting an end to illegal arrests by the Government. See Plouard, Les Constitutions Francaises, p. 161.

[18]The Case of the Canadian Prisoners, 5 M & W. 32.

[19]In re Allen, 30 L. J. (Q. B.), 38.

[20]See Case of Pressing Mariners, 18 St. Tr. 1323; Stephen, Commentaries, ii. (14h ed.), p. 574; conf. Corner, Forms of Writs on Crown Side of Court of Queen's Bench, for form of habeas corpus for an impressed seaman.

[21]See Forsyth, Opinions, p. 468.

[22]See, however, Rex, v. Lundy, 2 Ventris, 314; Rex v. Kimberley, 2 Stra., 848; East India Company v. Campbell, 1 Ves. Senr., 246; Mure v. Kaye, 4 Taunt. 34; and Chitty, Criminal Law (1826), pp. 14, 16, in support of the opinion that the Crown possessed a common law right of extradition as regards foreign criminals. This opinion may possibly once have been correct. (Compare, however, Reg. v. Bernard, Annual Register for 1858, p. 328, for opinion of Campbell, C. J., cited In re Castioni [1891], 1 Q. B. 149,153, by Sir C. Russell, arguendo.) It has, however, in any case (to use the words of a high authority) “ceased to be law now. If any magistrate were now to arrest a person on this ground, the validity of the commitment would certainly be tested, and, in the absence of special legislative provisions, the prisoner as certainly discharged upon application to one of the superior Courts.”—Clarke, Extradition (3rd ed.), p. 27. The case of Musgrove v. Chun Teeong Toy [1891], A. C. 272, which establishes that an alien has not a legal right, enforceable by action, to enter British territory, suggests the possible existence of a common law right on the part of the Crown to expel an alien from British territory.

[23]In re Bellencontre [1891], 2 Q. B. 122.

[24]In re Coppin, L. R. 2 Ch. 47; The Queen v. Wilson, 3 Q. B. D. 42.

[25]Contrast the dealings of Louis Philippe's Government in 1833 with the Duchesse de Berry, for which see Grégoire, Histoire de France, i. pp. 356–361.

[26]See Chap. XII.

[27]Darnel's Case, 3 St. Tr. 1.

[28]See Gardiner, History of England, ii. chap. xxii., for an admirable statement of the different views entertained as to the position of the judges.

[29]Of which s. 1 enacts “that every person or persons that are or shall be in prison within the kingdom of Great Britain at or upon the day on which this Act shall receive his Majesty's royal assent, or after, by warrant of his said Majesty's most honorable Privy Council, signed by six of the said Privy Council, for high treason, suspicion of high treason, or treasonable practices, or by warrant, signed by any of his Majesty's secretaries of state, for such causes as aforesaid, may be detained in safe custody, without bail or mainprize, until the first day of February one thousand seven hundred and ninety-five; and that no judge or justice of the peace shall bail or try any such person or persons so committed, without order from his said Majesty's Privy Council, signed by six of the said Privy Council, fill the said first day of February one thousand seven hundred and ninety-five; and law or statute to the contrary notwithstanding.”

The so-called suspension of the Habeas Corpus Act under a statute such as 34 Geo. III. c. 54, produces both less and more effect than would the total repeal of the Habeas Corpus Acts. The suspension, while it lasts, makes it possible for the government to arrest and keep in prison any persons declared in effect by the government to be guilty or suspected of treasonable practices, and such persons have no means of obtaining either a discharge or a trial. But the suspension does not affect the position of persons not detained in custody under suspicion of treasonable practices. It does not therefore touch the ordinary liberty of ordinary citizens. The repeal of the Habeas Corpus Acts, on the other hand, would deprive every man in England of one security against wrongful imprisonment, but since it would leave alive the now unquestionable authority of the judges to issue and compel obedience to a writ of habeas corpus at common law, it would not, assuming the Bench to do their duty, increase the power of the government to imprison persons suspected of treasonable practices, nor materially diminish the freedom of any dass of Englishmen. Compare Blackstone, Comm. iii. p. 138.

[30]See Duguit, Manuel de Droit Constitutionnel, pp. 510–513, and article “État de Siège” in Chéruel, Dictionnaire Historique des Institutions de la France (6th ed.).

[31]Viz, (a) treason or treason-felony; (b) murder or manslaughter; (c) attempt to murder; (d) aggravated crime of violence against the person; (e) arson, whether by law or by statute; attack on dwelling-house.

[32]Sect. 1.

[33]Sect. 12.

[34]Sect. 13.

[35]Sect. 15.

[36]See pp. 10, 11, ante.