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Lenks on the history of Habeus Corpus

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Source: Chapter: 35.: EDWARD JENKS, THE STORY OF THE HABEAS CORPUS, Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1907). Vol. 2.

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THE STORY OF THE HABEAS CORPUS1

IT may sound a little surprising to assert, at the present day, that there is no readily accessible book, nor, indeed, so far as the writer is aware, any book, which gives, in a succinct and intelligible form, an account of the origin of this famous bulwark of our liberties. And yet there have been times in our history, and may be again, when ‘those famous words Habeas Corpus’ have been on the lips of every one who takes an interest in public affairs. Most of us know that the famous Habeas Corpus Act of 1679 created no new remedy, but merely strengthened and perfected an engine which had been used with effect in the great struggle between Crown and Parliament in the earlier years of the century. The older statutes, the Petition of Right and the 16 Car. I. c. 10, which mark the stages of that Titanic struggle, also refer to the writ of Habeas Corpus as a thing well known. As we follow back the story, we find the same assumption everywhere. The writ is accepted as a primordial fact. A few vague flourishes about ancient liberties are supposed to account for its existence. It would almost seem as though it were indiscreet to inquire too closely into the origin of this sacred instrument. And the writer believes that there was once a time at which such inquiry would indeed have been indiscreet—that those who then knew most and felt most strongly about the writ of Habeas Corpus had the best of reasons for discouraging antiquarian research. It is not likely that Coke and Selden and Prynne were really ignorant on the subject. But they often speak as though they were.1

In truth there is not a little about the Habeas Corpus which requires explanation. In the first place it seems odd (or it would seem odd in any system of law but our own) that the king’s writ, this ‘high prerogative writ,’ as Blackstone calls it,2 should have been the great engine for defeating the king’s own orders. In the second place, it is somewhat disconcerting to find that this high prerogative document is not an Original writ at all, but a mere interlocutory mandate, or judicial precept, which occurs in the course of other proceedings. Thirdly, and this perhaps is the most embarrassing discovery, the more one studies the ancient writs of Habeas Corpus (for there were many varieties of the article) the more clear grows the conviction, that, whatever may have been its ultimate use, the writ Habeas Corpus was originally intended not to get people out of prison, but to put them in it. These are facts which should surely arouse a just curiosity. Amongst other thoughts which they suggest, they seem to raise this not unimportant historical question—Were the champions of popular liberties, in those stormy days of the early seventeenth century, quite so conservative as they professed to be? When they were loudly asserting that they did but vindicate the existing order, were they in very truth effecting a revolution?

Now the great matter of the liberty of the subject did not rest on mere tradition in the days of Coke. Whatever may be the true meaning of that famous passage in Glanvil,3 which Coke so triumphantly quoted,4 whatever the precise value of that still better known and vaguely rhetorical clause of the Great Charter,1 neither of these vague authorities could stand before the precise and elaborate provisions of the great Statute of Westminster I,2 which, in its fifteenth chapter, had disposed exhaustively of the subject of bail. That chapter was in full force when Coke prepared his Second Institute. He wrote an elaborate criticism upon it. The chapter is too long to quote in full; but amongst those persons who are in the plainest language declared not to be ‘replevisable,’ are ‘those which were taken . . . by commandment of the king or of his Justices.’ Coke employs the whole force of his argument to show that the words ‘by commandment of the king’ do not mean what they obviously do mean, even descending so low as to assert, that ‘the commandment of the king’ means the order of the King’s Bench, while ‘of his Justices’ means the Common Pleas.3 But the whole of Coke’s commentary on the statute is an audacious piece of political controversy, thinly disguised under cover of legal exegesis. It is kindest to remember, that the Second Institute was not published until some time after its author’s death.

Plainly, then, the asserters of public liberties found a lion in the path. They could not use any of the ordinary remedies against unlawful imprisonment. This will be clear if we look for a moment at these remedies.

1. The writ de Homine Replegiando. This was the most obvious proceeding. It lay equally against the sheriff, i. e. the royal agent, and the private person.4 If the latter did not give up his prisoner, but sought to escape obedience by eloigning his captive—i. e. hiding him in a distant county—he could himself be summarily imprisoned by a Capias in withernam.5 Both sheriff and private person were liable to attachment if they disobeyed the writ. But when we read the writ, in any of those books of precedents which so rapidly appeared after the introduction of printing,1 we see in a moment why it was that the heroes of the seventeenth-century struggle could not venture to rely on it. Assuredly no Chancellor of James or Charles would have hesitated to affix the broad seal to the document. For it bade the sheriff replevy the prisoner nisi captus fuerit per speciale preceptum nostrum.

2. The writ de Manucaptione. This was a writ framed, apparently, on the latter part of the fifteenth chapter of Westminster I. According to its form, as given in the orthodox books,2 it was only available for persons indicted of larceny before sheriffs by inquest of office; and as, by a statute of the year 1354,3 sheriffs were forbidden to take indictments, the writ seems to have fallen into disuse. In any case, it expressly referred to the Statute of Westminster I, and could, therefore, hardly have been used by any one claiming to be set at liberty in defiance of the provisions of that statute. Moreover, a statute of the year 13314 had reissued the statutory restrictions on mainprize. The difference between bail and mainprize is explained by Coke,5 but does not seem to be material for our purpose.

3. The writ de Odio et Atia. This writ, which is fully described by Bracton,6 only lay in favour of a man imprisoned on an Appeal of homicide, i. e. at the suit of a private person. It directed the sheriff to hold an inquest whether the accused was accused on good grounds, or of ‘hatred and malice.’ It is said to have been the writ alluded to in the twenty-sixth chapter of the Great Charter, and it probably represents a very ancient right of a party challenged to battle.1 In its form of an inquest, it was, no doubt, a powerful agent in the gradual evolution of the criminal jury. Coke, who had his own reasons for magnifying the writ (which had probably fallen out of use long before his time), invents a statute of 28 Edw. III to abolish it, and then revives it by implication in the 42 Edw. III. c. 1.2 The real truth of the matter is, in all probability, that, with the dying out of Appeals of homicide, the writ ceased to be applicable, and fell into oblivion.3 In spite of the vague wording of the Statute of Westminster II,4 it can hardly be believed that it could have issued in favour of a prisoner at the king’s suit. In any case it would not, even if successful, have resulted in a Habeas Corpus, but in a writ de ponendo in ballium, of which the form is given by Bracton.5

Thus we have seen, that the three most obvious remedies for wrongful imprisonment were practically closed to the victims of Charles I. But their champions were mighty in the law, and knew all the mazes of the jungle. If they could not lead their prisoners out by the highway, they would drag them through secret windings to a place of safety.

We know that the instrument which they chose for their purpose was the writ of Habeas Corpus. But when we look for the writ of Habeas Corpus in the contemporary records, we are at first puzzled by the choice offered to us. To say nothing of the Habeas Corpus (or, rather, Habeas Corpora) directed to the sheriff, bidding him bring up the four knights for the Grand Assize,1 or the jurors in an ordinary inquest,2 we find that, under the more familiar name of Capias, the writ of Habeas Corpus plays a normal part in almost every personal action.3 The first step after the service of the writ is the summons, and the second is the Capias ad respondendum, which bade the sheriff have the body of the defendant on a given day before the Court. As the sheriff might have some difficulty in executing this order, he was warned a second and a third time before being attached for disobedience. These warnings went by the names of alias and pluries respectively; and these names will awaken certain memories. If the Capias ad respondendum proved ineffectual to secure the defendant’s appearance, the plaintiff might resort, at first only in trespass contra pacem, but afterwards in almost all other actions,4 to the elaborate process of outlawry. And when the necessary forms had been gone through, and the sheriff had returned quinto exactus, the plaintiff could then get a Capias utlagatum, which would direct the sheriff to seize the outlaw, and have him before the Justices at Westminster on a given date, ad faciendum et recipiendum quod Curia nostra de eo consideraverit.5 If, when the sheriff had got the defendant in prison, he failed to produce him at the proper time, alleging that the prisoner could not be moved for danger to his health, he might be reminded of his duty by a subsequent writ of Habeas Corpus super Languidus retorn’.6 If the accused was in custody on an Appeal of homicide, the sheriff might be directed to have his body before the Justices on a certain day, that they might proceed with the Appeal.1 A similar writ lay to apprehend a man who had been indicted of felony, but had eluded arrest under outlawry.2 Finally, if judgment were given against the defendant, the sheriff might be ordered by the writ of Ca. Sa. to have the body of the defendant before Our Justices, ad satisfaciendum the claim of the plaintiff.3

These writs have been mentioned, not because it is contended that any one of them is in itself the famous weapon of political warfare, but that we may be warned to look for the origin of that weapon, not in vague assertions of the liberty of the subject, but in what seems to be, at first sight, a wholly unlikely quarter, viz. that practice of arrest on mesne process, which was so long one of the great scandals of our legal procedure. As Pollock and Maitland have pointed out,4 the Habeas Corpus, in its form of a Capias, or arrest on mesne process, was making its way into English law before the close of the thirteenth century. And although, in the dearth of law books which followed the work of Bracton and his epitomists, exact proof is not forthcoming, we may regard it as fairly certain, that the writs we have enumerated were fully established as ordinary legal process before the end of the fourteenth century. The Capias ad respondendum, the Capias utlagatum, and the Capias ad satisfaciendum are practically as old as the common law itself.

But, if we look at the Statutes and Year Books of the fifteenth century, we shall, I think, gain the impression that another and very important form of the Habeas Corpus is making its way into legal procedure. This is the Habeas Corpus cum Causa (or, more briefly, Corpus cum causa), which bids the sheriff, or other custodian, ‘have the body of A in our prison under your custody as it is said’ before Our Justices at Westminster on a certain day, ‘together with the day and cause of his caption and detention, to do and receive what Our Court shall consider of him on this part.’ It is a little significant that this writ is, apparently, with the striking exception to be hereafter referred to, not to be found in the early printed books of forms. The next example I have met with is in Coke’s Entries, published in 1614.1 But it is quite clear, that the writ of Corpus cum causa was known, in one form or another, at least two hundred years before that date. What were the occasions on which it was used?

In the present state of the authorities, any statement about the law of the fifteenth century must be made with extreme caution. But as the result of a fairly earnest attack on Statutes and Year Books, I venture to put it, that the Corpus cum causa was used, for a long time, as a mere adjunct to two important writs Original, the writ of Certiorari and the writ of Privilege. A word on each of these.

1. Certiorari. This was, as is well known, a prerogative writ, by which the King’s Bench removed the proceedings from an inferior tribunal to its own forum. It appears that, as the law stands at the present day,2 the writ always issues as of right at the request of the Crown, but, at the request of the defendant or prisoner, only on cause shown. It seems, however, that, at the very beginning of the fifteenth century, the writ was employed as a means of chicane by both prosecutors and defendants. A statute of the year 14143 is directed against the practice by condemned prisoners of procuring the writ, and getting released on bail; and it is probable that the same practice is alluded to by another statute passed twenty years later.4 Much about the same time, the writ was used as a means of evading liabilities on Statute Staple. When arrested on the summary process provided by the Statutes of the Staple, debtors obtained a Corpus cum causa from Chancery, on the pretence of having a legitimate defence; and then, having procured bail, proceeded to issue a Sci. Fa. to test the validity of the recognizance.1 The Certiorari was also used by prosecutors as a means of oppression, with the object of snatching outlawries without giving the accused time to appear.2 Somewhat later, the same writ, with its accompanying Habeas Corpus, was used by defendants to delay proceedings in local courts, an abuse which was checked by two statutes of Elizabeth and James I.3 The principle of the Certiorari is indeed very old in our law; for it is, in essence, little more than a development of the ancient Pone.4 And it is worth noting, that, in the very earliest known Register of Writs, it is expressly said, that a Pone will only be granted to the tenant,aliqua ratione precisa vel de majori gratia.5

Although cases of Certiorari do not become frequent in the Year Books until the latter half of the reign of Henry VI, we may probably take it, that from the beginning of the fifteenth century the remedy was recognized, and that it was enforced by a Corpus cum causa. The connection between the two writs comes up in a curious quarter, viz. Cowell’s Interpreter, where the Habeas Corpus is treated merely as an incident in Certiorari.6 Cowell is certainly not above suspicion in the matter; but neither, for the matter of that, is Coke. Each must be taken for what he is worth. But the value of the Certiorari for Coke’s purpose was certainly discounted by the drawbacks:—(1) that it could only be applied for when proceedings had already been commenced in an inferior tribunal, (2) that the writ could not be claimed as of right by a prisoner or defendant.

2. Privilege. From very early times exemption, absolute or qualified, from legal process, was freely claimed by divers classes of persons. The most conspicuous example is, of course, that of the clergy; but other people were not slow to follow their example. As early as the reign of Henry IV1 a clerk of the Chancery who was sued in the Common Bench obtained a Supersedeas on the ground that he could only be sued in the tribunal of which he was an official. The Common Law Courts claimed similar privileges on behalf of their officials;2 and the privilege of members of Parliament rested on similar grounds.

Towards the middle of the fifteenth century, we notice a vigorous development of the theory of Privilege. Where a man is sued in a superior court, and, on coming to appear, is arrested on a process in an inferior tribunal, he is entitled to a Corpus cum causa, directed to the officers who have arrested him; and they will be ordered to produce him before the higher court.3

Needless to say, this chance of escape from liability was soon abused; and we find the Courts busily engaged, during the greater part of Henry VI’s reign, in deciding when Privilege might be allowed, and when not. Thus, it was early decided,4 that the application would only be granted where the applicant had been arrested veniendo morando vel redeundo, on the business of his case. What the superior tribunal would do with the applicant when he came before it is not quite clear; sometimes he was only allowed to appoint an attorney, sometimes, apparently, he was bailed. But it was always agreed that a Supersedeas,5 and, à fortiori, a Corpus cum causa,6 did not lie for a person imprisoned at the suit of the king, even where the king’s interest in the suit was purely formal, e. g. in an action of trespass contra pacem. In another case,7 where the proceedings in the superior tribunal were obviously feigned, the Court refused the Corpus cum causa, on the ground that the applicant could not have been coming to attend to his duties in the superior court invacation. A further rule laid down was, that if the proceedings in the superior court were commenced after the imprisonment, there was no case for the Habeas Corpus.1 In later cases the Court dealt sharply with persons who sought to abuse the process.2 If the memory of this class of cases had not entirely died out, we should hardly have found judges in the eighteenth century alleging that the Habeas Corpus did not apply in civil suits; nor should we have required a special statute to get over the difficulty.

3 The position at the end of the fifteenth century seems then to be tolerably clear. The remedy of Corpus cum causa is available to an imprisoned applicant; but only on one of two grounds. He must show either (1) that there is a proceeding in which the King’s Bench or the Chancery would be justified in issuing the prerogative writ of Certiorari or its equivalent, or (2) that he, the applicant, enjoys a special privilege which entitles him to exemption from proceedings in all but a particular tribunal.

In the sixteenth century, however, the Corpus cum causa expands beyond these limits. We note a disposition to use it to test the validity of an imprisonment.4

In one of the very earliest of the printed Form Books5 there appears a writ addressed to the Constable of the Tower, directing him, under penalty of £100, to have the body of a certain John Elyngton together with the day and cause of his caption and detention, before our Justices at Westminster, to answer to a plea brought against him for the sum of forty shillings by one Wilfred Armidel, et ad faciendum ulterius et recipiendum quod curia nostra, &c. The prisoner had been arrested in the suit at the Common Bench, and let out on bail. Then he had been arrested by the Constable of the Tower, who had refused to produce him on the first demand. Unhappily, there seems to be little clue to the date of the writ. It must, of course, have been before 1510, the date of Pynson’s book; but beyond that fact there is nothing to guide us.1 The language of the writ, however, the flourishes about the sworn duty of the king to render justice to all his subjects, and the suspiciously small amount of the claim in the Common Bench,2 point irresistibly to the conclusion, that we are here on the track of a struggle between the law courts and the executive, in which recourse is being had to the lately established theory of privilege for suitors, in order to test the validity of a State imprisonment. If so, the writ is a landmark in our story. A Year Book case of 1497,3 in which a lady obtained a Corpus cum causa to test the validity of a recaption of herself (after an escape) by a gaoler of a franchise, is also interesting, for it raises a question of which much was heard in later days. The gaoler sought to evade the point at issue by omitting the cause of detainer in his return. It was held that, where the arrest was made ex officio curiae, it was not necessary to specify the cause; otherwise where the arrest was at the suit of the party. Two writs in Rastell’s Register4 (both, alas, undated) are directed to securing the appearance of a defendant who has been arrested by the malice of the plaintiff, but the words cum causa are not found.

In the year 1588, two cases of a distinctly political character were decided on Habeas Corpus. In the first (Search’sCase)1 the applicant had been arrested by the Steward of the Marshalsey, for himself causing the arrest (presumably by due course of law) of one Mabbe, who had obtained Letters of Protection from the Queen. The Court of Common Pleas discharged Search from custody, and, on his subsequent re-arrest, issued an attachment against Mabbe and his friends.

Howell’s Case is still more striking. There the Steward of the Marshalsey returned to a Habeas Corpus that the prisoner was committed per mandatum Francisci Walsingham militis Principalis Secretarii et unius de privato concilio Dominae Reginae. The return was held to be insufficient, for not stating the cause; and then the Steward amended his return, alleging a committal ‘by the opinion and order of the whole Privy Council.’ With some reluctance the Court seems to have admitted that such a return was good; but it insisted that the prisoner should always be produced, so that ‘if it shall seem good to the Court, the prisoner shall have his privilege.’2

These cases led directly to the famous pronouncement known as The Resolution in Anderson. This dictum, one of the very few extra-judicial pronouncements of the English Bench, seems to be entirely unworthy of the contumely which has been heaped upon it. Read carefully, in the light of history, it appears to be a very exact and careful statement of the law, coloured neither by subserviency nor by arrogance. Put in its briefest form, it lays down two propositions:—

A. That persons committed ‘by Her Majesty’s commandment from her person, or by order from the Council Board, or if any one or two of her Council commit one for high treason,’—such persons are not bailable; but,

B. ‘Nevertheless the Judges may award the Queen’s writs to bring the bodies of such persons before them’ (and then remand them) ‘which cannot conveniently be done, unless notice of the cause in generality, or else specially, be given to the keeper or gaoler that shall have the custody of such a prisoner’3 (anno 1592).

So far from being an unworthy concession to Court influence, this Resolution marks a distinct advance in the development of the Habeas Corpus. It sweeps away the historical accidents of the writ—the accompaniments of Certiorari and Privilege—and definitely establishes the Habeas Corpus as a substantive remedy, which exists as of right for all prisoners. With regard to the vexed question of the ‘cause shown,’ the judges and barons who unanimously signed the Resolution knew perfectly well that for this further demand there was no legal authority, if the imprisonment was by order of the Crown. But in the most decided, though at the same time courteous, manner, they intimate that the Crown would do well to give way upon the minor point.

From this time the Habeas Corpus starts upon a new career of activity. At the very beginning of the seventeenth century it succeeded in procuring the release of Sir Thomas Shirley from the Fleet, whither he had been committed on an arrest for debt.1 In 1608 the Common Pleas, by its agency, rescued Sir Anthony Rooper from the clutches of the Court of High Commission.2 In 1610 the great case of the validity of the customs of London (Wagoner’s Case3 ) was decided on a Habeas Corpus. In 1615, in the case of Peter Furb, the Court of Common Pleas asserted its ancient privilege of protecting its suitors by the same writ.4

We are now, perhaps, in a position to understand the merits of the famous Five Knights’ Case of 1627.5 Sir Thomas Darnel and four others were committed to the Fleet by a warrant, signed by two members of the Privy Council, which alleged for cause only per speciale mandatum regis. Darnel applied to the King’s Bench for a Habeas Corpus, which was immediately issued. The warden of the Fleet made some little delay in returning the writ; but, on the receipt of an alias, put in a return which merely alleged the warrant as above described. The same course was taken with the other four prisoners. The Court of King’s Bench, after hearing lengthy arguments for the prisoners, remanded the latter to prison. It is difficult to see how, as the law then stood, the Court could have done otherwise. The writ of Habeas Corpus had been readily granted; but the return showed a cause for which the prisoners were not ‘replevisable.’ When the decision of the King’s Bench was under discussion in Parliament, in a conference between the two Houses, Coke met the difficulty by a bold argument. Admitting, as he was obliged to do, the plain meaning of the Statute of Westminster I, he urged that it applied only to proceedings by way of replevin in the Sheriff’s Court, ‘a petty and base Court, and not of record, where the sheriff is not the judge, but the jurors, that is John a Noke and John a Stiles, William Roe and John Doe, and such worthies as these.’1 But Coke must have known perfectly well, that the powers of his former colleagues of the King’s Bench, in the matter of bail, belonged to them only as justices of the peace, and not as justices of the bench. The business of the justices of the bench is, not to bail prisoners, but to try them.

Now the powers of justices of the peace to grant bail rested, unfortunately for Coke, upon express statute, and very limited they were. They seem to have been first given by a statute of 1483,2 which allowed justices of the peace to bail persons committed ‘on suspicion’ or ‘on light suspicion, of felony.’ Stringent precautions in the exercise of this power were imposed by a slightly later Act,3 while the great criminal statute of the year 15444 expressly reënacted the provisions of the Statute of Westminster I with regard to persons not replevisable, and ordered strict observance of them by all justices of the peace.

In the end Parliament did the only thing possible under the circumstances, by introducing a bill to alter the law. In the year 1628 this bill, now known as the Petition of Right, received the grudging assent of the king; and an obscure sentence in it gave the victory to the Parliament, by abolishing the power of the Crown to imprison without cause shown.1

The acceptance of the Petition of Right was almost immediately followed by the Six Members’ Case2 in 1629. As in the case of the Five Knights, the writ was granted without demur;3 but, contrary to the precedent of 1627, the prisoners were not produced at the bar of the King’s Bench, the different gaolers merely returning that the prisoners were committed by order of twelve of the Privy Council upon a warrant signed by the king himself.4 The cause of committal alleged in the latter document was, ‘notable contempts by him committed against Ourself and Our government, and for stirring up sedition against Us.’ It was strenuously argued, that this was no sufficient cause of committal within the terms of the Petition of Right;5 and Heath, the Attorney-General, had to resort to the meanest of quibbles, as well as the most dangerous constitutional doctrines, to get over the objection. Nevertheless, as is well known, the Court refused to enlarge the prisoners, though their committal was a clear breach of Parliamentary privilege, unless they would find sureties, not only for their reappearance, but for their good behaviour.6 This they naturally declined to do, as such a step would have been a virtual admission of guilt.7

The Six Members’ Case was followed by eleven of the blackest years in the history of English law, during which the growing indignation of the popular party found, owing to the suspension of Parliament, no adequate means of expressing itself. Whether the Courts during this period refused applications for Habeas Corpus, it is difficult to discover without an exhaustive search. But that they did so is highly probable, for one of the earliest acts of the Long Parliament, which met in November, 1640, was to appoint a Committee on the Courts of Justice,1 and, a few days later, to refer to it the question of Habeas Corpus.2 The result of the Committee’s action is very clearly shown in the sixth section of the famous Act for the Abolition of the Star Chamber,3 which received the royal assent in July, 1641; but it may be doubted whether the wording of the section, which was evidently the subject of much discussion, was altogether wise. At first the proposal seems to have been, to declare the Habeas Corpus claimable as of right by every prisoner, a course which, one would have thought, would have prevented many future disputes. But, after engrossment of the bill, the desire to refer to the hated tribunal by name seems to have got the better of the discretion of the House, and a rider was sewn on to the parchment4 which, in effect, limited the scope of the provision to commitment by a conciliar Court, or by the king’s personal warrant, or that of the Privy Council. Unhappily also, the Act did not touch upon the question of vacation, though it expressly attributed equal functions to the King’s Bench and the Common Pleas. As is well known, this omission gave an opening to a serious miscarriage of justice in Jenks’ Case, a proceeding in which the forms of law were perhaps more shamelessly abused by the judicial bench than in any of the more famous trials in the days of Charles I.

5 This has not been a very lucid story, but it has been no easy task to pierce the mists with which the barbarous condition of the evidence and the deliberate mis-statements of party controversy have covered the subject. The final word on the history of the Habeas Corpus will not be said, until the Year Books have been reëdited, and the long series of judicial rolls (or at least a good selection from them) carefully printed. Meanwhile, however, this paper claims to have suggested the answers to at least four questions which, for the last two hundred years, have puzzled the student who has grappled with the Habeas Corpus. As thus:

1. Q. Why was there any doubt whether the writ issued ‘as of right’?

A. Because the Certiorari never issued as of right on the demand of the defendant, and the Privilege only issued in certain special cases (xviii. L. Q. Rev. pp. 69, 70).

2. Q. Why was there any doubt as to the proper tribunal?

A. Because the Certiorari only issued by order of the King’s Bench, while the Privilege (writ or bill) sometimes issued out of the Chancery and sometimes out of the Common Pleas (ibid. p. 71).

3. Q. Why could the writ only be claimed in term time?

A. Because no one could take proceedings during vacation in a superior Court, and to take proceedings was, ex hypothesi, the object of the Corpus cum causa (ibid. p. 71).

4. Q. Why could the gaoler demand an alias and a pluries?

A. Because, the original Capias being an order to arrest a person, the sheriff, to whom it was addressed, might reasonably have some difficulty in catching his man (ibid. pp. 67, 68).

All of which questions were finally set at rest by the Habeas Corpus Act of 1679.1

[1 ]This essay was first published in the Law Quarterly Review, vol. XVIII, pp. 64-77 (1902).

[2 ]A biographical notice of this author is prefixed to Essay No. 2, in volume I of this Collection.

[1 ]The only serious attempt at history known to the writer is that of Mr. A. A. Fry, who was counsel for the Canadian prisoners in 1838, and who published a pamphlet on the subject. This pamphlet was afterwards made the basis of an essay by a learned Dutchman, Dr. Van der Veen (De Engelsche Habeas Corpus Act. Leiden. 1878). But Mr. Fry gives up the inquiry at the very point at which it becomes interesting, adding some rather unkind suggestions about antiquarians and their amusements (p. 9, n.).

[2 ]Commentaries, iii. 131. This has become the orthodox phrase.

[3 ]‘In all pleas of felony the accused is wont to be let out on bail, except in plea of homicide’ (xiv. 1). I doubt very much whether this includes the person indicted at the suit of the king. We must remember that the indictment was a novelty when Glanvil wrote. The corresponding passage in Bracton (fo. 123) clearly refers only to Appeals.

[4 ]2 Inst. 42.

[1 ]Cap. 39.

[2 ]Edw. I. c. 15.

[3 ]2 Inst. 186.

[4 ]See the form in F. N. B. 66 F.

[5 ]Ibid. 68 C.

[1 ]For convenience a few of these may be named: Natura Brevium (Pynson), about 1510; Liber Intrationum (Pynson), 1510; Novae Narrationes (Pynson), about 1516; Registrum Omnium Brevium (Rastell), 1531; Novel Natura Brevium (Fitzherbert), 1534; Natura Brevium (Rastell), 1534; Retorna Brevium, 1541 (but previously); Natura Brevium, newly and most trewly corrected (Redman), about 1543; Intrationum Liber (Henry Smythe), 1546; Registrum Omnium Brevium (Yetsweirt), 1595; Booke of Entries (Coke), 1614; Book of Entries (Moyle), 1658; Thesaurus Brevium, 1661; Brevia Judicialia (Brownlow), 1662; Officina Brevium, 1679.

[2 ]E. g. Registrum (Rastell), 83; F. N. B. 249 G.

[3 ]28 Edw. III. c. 9.

[4 ]4 Edw. III. c. 2.

[5 ]Little Treatise of Bail and Mainprize, cap. 3.

[6 ]Fo. 123 a.

[1 ]See Pollock and Maitland (2nd ed.), ii. p. 588 n.

[2 ]2 Inst. 43. The extreme unfairness of Coke’s argument on the Statute of Westminster I is apparent from the writ de bono et malo, which he quotes in another part of his book. This writ apparently allowed a prisoner to be delivered from gaol if he were willing to put himself upon a jury. But it contained the express words et non per aliquod speciale mandatum nostrum (2 Inst. 43). One would like to know more of this writ; but it seems to have disappeared before the Register got into print.

[3 ]It may be noted that in his Treatise on Bail and Mainprize (cap. 10), Coke had already given a different account of the disappearance of the writ de odio et atia.

[4 ]13 Edw. I. c. 29 ‘appealed or indicted.’

[5 ]Fo. 123 a. The writ de cautione admittenda, also alluded to by counsel for the prisoners in the Five Knights’ Case, seems to have been applicable only to secure the release of a person who had been taken on an excommunicato capiendo, and who was willing to purge himself of his contumacy (F. N. B. 63 C).

[1 ]Registrum (Rastell), ii. 23.

[2 ]Ibid. 29.

[3 ]Ibid. 1.

[4 ]13 Edw. I. c. 11 (Account); 25 Edw. III. st. v. c. 17 (Debt, Detinue, and Replevin); 19 Hen. VII. c. 9 (Case).

[5 ]Registrum, 24. The absurdities to which this clumsy form of procedure gave rise are well illustrated by the fact that, in the reign of Elizabeth, an outlawed defendant claimed to be discharged on the ground of a general pardon (Coke, Entries, 345, Pewe of Penrhyn’s Case). At one time he could always get out of prison by suing a supersedeas before he was finally exacted, or a pardon afterwards. These abuses were put an end to by statute (5 Edw. III. c. 12).

[6 ]If there was the slightest suspicion of the sheriff’s good faith, there might be added to this writ a subpoena duces tecum (Officina, 65), or a fine might be imposed on the sheriff at once (Registrum, ii. 76).

[1 ]Registrum, ii. 74.

[2 ]25 Edw. III. st. v. c. 14.

[3 ]Registrum, ii. 31.

[4 ]History (2nd ed.), ii. 593.

[1 ]Fo. 344. It should be noticed that Coke’s form does not always include the et detentionis.

[2 ]Hawkins, P. C. ii. 27, § 27; R. v. Eaton (1787) 2 T. R. 89; C. O. R. 1886, R. 29.

[3 ]2 Hen. V. st. i. c. 2. ‘Writs of certiorari and corpus cum causa.

[4 ]15 Hen. VI. c. 4. See also 6 Hen. VIII. c. 6, and 1 Ph. & M. c. 13, § 7.

[1 ]11 Hen. VI. c. 10. ‘Divers writs of corpus cum causa before the king in his Chancery.’ It is possible that the origin of the Chancery jurisdiction in this procedure is the statute of 1414 (2 Hen. V. c. 9). But, of course, recognizances were specially the concern of the Chancellor.

[2 ]10 Hen. VI. c. 6.

[3 ]43 Eliz. c. 5; 21 Jac. I. c. 23.

[4 ]Glanvil, vi. 7.

[5 ]Maitland, Harvard Law Review, iii. 113.

[6 ]Ed. of 1607, sub tit. Habeas Corpus. The writ referred to by Cowell in the Register Judicial (fo. 81) is not, however, the Corpus cum causa. See also under that title in Cowell.

[1 ]Y. B. 14 Hen. IV (Hill.), pl. 72.

[2 ]See the writ in Liber Intrationum, fo. 11.

[3 ]Y. B. 4 Hen. VI (Mich.), pl. 22; 9 Hen. VI (Mich.), pl. 40, Lucy Water’s Case.

[4 ]Y. B. 9 Hen. VI (Pasch.), pl. 16.

[5 ]Y. B. 9 Hen. VI (Mich.), pl. 24.

[6 ]Y. B. 22 Hen. VI (Hill.), pl. 34, Danby’s and Baker’s Case.

[7 ]Y. B. 39 Hen. VI (Hill.), pl. 15; affirmed, 2 Hen. VII (Mich.), pl. 6.

[1 ]Y. B. 8 Edw. IV (Mich.), pl. 23.

[2 ]Y. B. 16 Edw. IV (Mich.), pl. 5; Worlay v. Harrison (Dyer, 249 b).

[3 ]The Supersedeas as a writ of Privilege, with date 39 Edw. III, is given in the Registrum (Rastell), fo. 91. The Common Law Courts did not, apparently, issue a writ of Privilege; but, upon presentation of a Bill of Privilege by the applicant, awarded at once the Corpus cum causa to the gaoler.

[4 ]One very interesting writ in Brownlow (p. 115) bids the sheriffs (vobis . . . presumably, of London) nolentes ipsum W. vinclum imprisonamenti tamdiu subire, ‘to have the body of the said W. on Friday, the 3rd August next, before W. P. one of the Justices of Our Bench at the mansion house of the said Justice at Strond (? Stroud) Bridge to do and receive.’ If the W. P. referred to is William Peryam, the writ must date from the last quarter of the sixteenth century. But if it be William Paston, whose ancestors were settled at Horton, near Stroud (Glouc.), long before they colonized Norfolk, then the writ is 150 years older. But these are guesses.

[5 ]Liber Intrationum (Pynson), fo. 25.

[1 ]I cannot find any trace in the histories of any John Elyngton. He may have been the John Alyngton of whom we read in the Paston Letters (ed. Gairdner, i. 277) as having been one of the informers against the notorious rioter, Robert Ledham, in 1453. But this is mere conjecture.

[2 ]Obviously, the amount was only just enough to give the Bench jurisdiction (6 Edw. I. c. 8, Stat. Glouc. c. 8).

[3 ]13 Hen. VII (Mich.), pl. 1. This had been previously admitted (Y. B. 9 Hen. VI (Mich.), pl. 24).

[4 ]ff. 66, 81.

[1 ]1 Leon. 70.

[2 ]Ibid. 71.

[3 ]Anderson’s Reports, p. 298.

[1 ]C. J. i. 149. In this case the Habeas Corpus was issued by virtue of a warrant of the Speaker directed to the Clerk of the Crown in Chancery. In former days a writ of Privilege would have been necessary.

[2 ]See the writ in Brownlow, 122. Coke claimed (4 Inst. 333) that a similar victory had been obtained over the same Commission in 1567, in the case of Thomas Lee. But a reference to the writ in this case (Moyle, 61) shows that it issued on the ground of privilege. Lee was an attorney of the Common Pleas.

[3 ]Rep. 121 b.

[4 ]Moyle, 56.

[5 ]3 St. Tr. pp. 1-235.

[1 ]3 St. Tr. p. 127.

[2 ]1 Ric. III. c. 3.

[3 ]3 Hen. VII. c. 3.

[4 ]1 Ph. & M. c. 13, § 2.

[1 ]‘And that no freeman in any such manner as is before mencioned [i. e. without any cause shewed] be imprisoned or deteined.’

[2 ]3 St. Tr. (Howell), pp. 235-294.

[3 ]Hyde, however, threw out a hint that the Court might not be so complaisant on a future occasion (3 St. Tr. p. 289).

[4 ]3 St. Tr. p. 240. And production expressly refused (p. 286).

[5 ]Littleton’s argument (p. 262); Selden’s (p. 265).

[6 ]Ibid. p. 281.

[7 ]Ibid. p. 289.

[1 ]C. J. ii. 21, Nov. 6.

[2 ]Ibid. 28.

[3 ]16 Car. I. c. 10.

[4 ]Statutes (Record Commission), v. 112.

[5 ]6 St. Tr. 1189-1208, anno 1676.

[1 ]31 Car. II. c. 2

Last modified April 10, 2014