Front Page Titles (by Subject) CHAPTER XIV: The Subject concluded.—Laws relative to Imprisonment. - The Constitution of England; Or, an Account of the English Government
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CHAPTER XIV: The Subject concluded.—Laws relative to Imprisonment. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
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The Subject concluded.—Laws relative to Imprisonment.
But what completes that sense of independence which the laws of England procure to every individual (a sense which is the noblest advantage attending liberty) is the greatness of their precautions upon the delicate point of Imprisonment.
In the first place, by allowing in most cases, of enlargement upon bail, and by prescribing, on that article, express rules for the Judges to follow, they have removed all pretexts which circumstances might afford of depriving a man of his liberty.
But it is against the Executive Power that the Legislature has, above all, directed its efforts: nor has it been but by slow degrees that it has been enabled to wrest from it a branch of power which enabled it to deprive the people of their Leaders, as well as to intimidate those who might be tempted to assume the function; and which, having thus all the efficacy of more odious means without the dangers of them, was perhaps the most formidable weapon with which it might attack public liberty.
The methods originally pointed out by the laws of England for the enlargement of a person unjustly imprisoned, were the writs of mainprize, de odio & atiâ, and de homine replegiando.1 Those writs, which could not be denied, were an order to the Sheriff of the County in which a person was confined, to inquire into the causes of his confinement; and, according to the circumstances of his case, either to discharge him completely, or upon bail.
But the most useful method, and which even, by being most general and certain, has tacitly abolished all the others, is the writ of Habeas Corpus, so called because it begins with the words Habeas corpus ad subjiciendum.2 This writ, being a writ of high prerogative, must issue from the Court of King’s Bench: its effects extend equally to every County; and the King by it requires, or is understood to require, the person who holds one of his subjects in custody, to carry him before the Judge, with the date of the confinement, and the cause of it, in order to discharge him, or continue to detain him, according as the Judge shall decree.
But this writ, which might be a resource in cases of violent imprisonment effected by individuals, or granted at their request, was but a feeble one, or rather was no resource at all, against the prerogative of the Prince, especially under the reigns of the Tudors, and in the beginning of that of the Stuarts. And even in the first years of Charles the First, the Judges of the King’s Bench, who in consequence of the spirit of the times, and of their holding their places durante bene placito, were constantly devoted to the Court, declared, “that they could not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King, or by the Lords of the Privy Council.”3
Those principles and the mode of procedure which resulted from them, drew the attention of Parliament; and in the Act called the Petition of Right,4 passed in the third year of the reign of Charles the First, it was enacted, that no person should be kept in custody, in consequence of such imprisonments.
But the Judges knew how to evade the intention of this Act: they indeed did not refuse to discharge a Man imprisoned without a cause; but they used so much delay in the examination of the causes, that they obtained the full effect of an open denial of Justice.
The Legislature again interposed, and in the Act passed in the sixteenth year of the reign of Charles the First, the same in which the Star-Chamber was suppressed, it was enacted that “if any person be committed by the King himself in person, or by his Privy Council, or by any of the Members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of Habeas Corpus; and that the Judge shall thereupon, within three Court days after the return is made, examine and determine the legality of such imprisonment.”5
This Act seemed to preclude every possibility of future evasion: yet it was evaded still; and, by the connivance of the Judges, the person who detained the prisoner could without danger, wait for a second, and a third writ, called an Alias and a Pluries, before he produced him.6
All these different artifices gave at length birth to the famous Act of Habeas Corpus, passed in the thirtieth year of the reign of Charles the Second, which is considered in England as a second Great Charter,7 and has finally suppressed all the resources of oppression (a) .
The principle articles of this Act are, to fix the different terms allowed for bringing a prisoner: those terms are proportioned to the distance; and none can in any case exceed twenty days.
2. That the Officer and Keeper neglecting to make due returns, or not delivering to the prisoner, or his agent, within six hours after demand, a copy of the warrant of commitment, or shifting the custody of the prisoner from one to another, without sufficient reason or authority (specified in the act), shall for the first offence forfeit one hundred pounds, and for the second two hundred, to the party grieved, and be disabled to hold his office.
3. No person, once delivered by Habeas Corpus, shall be recommitted for the same offence, on penalty of five hundred pounds.
4. Every person committed for treason or felony, shall, if he require it in the first week of the next term, or the first day of the next session, be indicted in that term or session, or else admitted to bail, unless the King’s witnesses cannot be produced at that time: and if not indicted and tried in the second term or session, he shall be discharged of his imprisonment for such imputed offence.
5. Any of the twelve Judges, or the Lord Chancellor, who shall deny a writ of Habeas Corpus, on sight of the warrant, or on oath that the same is refused, shall forfeit severally to the party grieved five hundred pounds.
6. No inhabitant of England (except persons contracting, or convicts praying to be transported) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any place beyond the Seas, within or without the King’s dominions,—on pain, that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved a sum not less than five hundred pounds, to be recovered with treble costs,—shall be disabled to bear any office of trust or profit,—shall incur the penalties of a praemunire(a) , and be incapable of the King’s pardon.
[1. ]“Of hatred and ill will” and “of redemption of the man.”
[2. ]“You shall cause the body to be brought before.”
[3. ]De Lolme quotes the sense but not the exact words of Chief Justice Nicholas Hyde’s statement in the famous 1627 Five Knights’ Case, where five gentlemen sued out a writ of habeas corpus in King’s Bench following their imprisonment for failing to comply with the crown’s Forced Loan of 1626. The failure of the legal proceeding, as De Lolme reports, helped stimulate the parliamentary initiative in the 1628 Petition of Right; see above book 1, chapter 3, p. 49, note 3.
[4. ]See above, book 1, chapter 7, p. 70, note 3.
[5. ]The statute “for regulating the Privy Council and for taking away the court commonly called the Star Chamber” was enacted in 1641.
[6. ]The two writs directed a sheriff to produce a defendant who had not been located on the basis of an earlier writ.
[7. ]That is, a second “Magna Carta.” The Habeas Corpus Amendment Act was enacted in 1679.
[(a) ]The real title of this Act is, An Act for better securing the Subject, and for prevention of imprisonment beyond the Seas.
[(a) ]The Statutes of praemunire, thus called from the writ for their execution, which begins with the words praemunire (for praemonere) facias, were originally designed to oppose the usurpations of the Popes. The first was passed under the reign of Edward the First, and has been followed by several others, which even before the Reformation, established such effectual provisions as to draw upon one of them the epithet of Execrabile Statutum. The offences against which those Statutes were framed, were likewise distinguished by the appellation of praemunire; and under that word were included in general all attempts to promote the Pope’s authority at the expence of the King’s. The punishment decreed for such cases, was also called a praemunire: it has since been extended again to several other kinds of offence, and amounts to “the imprisonment for life, and forfeiture of all goods and rents of lands during life.” See Blackstone’s Com. book iv. ch. 8. [[De Lolme draws selectively on Blackstone’s chapter-length “Of Praemunire” in Commentaries on the Laws of England, 4:102–18. “Praemunire facias” is “You shall cause to be forewarned.” “Execrabile Statutum” is “the execrable statute.”]]